Case: 23-1101 Document: 76 Page: 1 Filed: 09/25/2024
United States Court of Appeals
for the Federal Circuit
______________________
ECOFACTOR, INC.,
Plaintiff-Appellee
v.
GOOGLE LLC,
Defendant-Appellant
______________________
2023-1101
______________________
Appeal from the United States District Court for the
Western District of Texas in No. 6:20-cv-00075-ADA, Judge
Alan D. Albright.
______________________
ON PETITION FOR REHEARING EN BANC
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ROBERT A. VAN NEST, Keker, Van Nest & Peters LLP,
San Francisco, CA, filed a petition for rehearing en banc for
Google LLC. Also represented by STEPHANIE JILL GOLDBERG, KRISTIN ELIZABETH HUCEK, LEO L. LAM, ROBERT
ADAM LAURIDSEN, EUGENE M. PAIGE.
REZA MIRZAIE, Russ August & Kabat, Los Angeles, CA,
filed a response to the petition for EcoFactor, Inc. Also represented by KRISTOPHER DAVIS, MARC A. FENSTER, MINNA
JAY, BRIAN DAVID LEDAHL, JAMES PICKENS.
______________________
Case: 23-1101 Document: 76 Page: 2 Filed: 09/25/2024
2 ECOFACTOR, INC. v. GOOGLE LLC
Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA,
TARANTO, CHEN, HUGHES, STOLL, and STARK, Circuit
Judges. 1
PER CURIAM.
ORDER
Google LLC (Google) filed a petition for rehearing en
banc. A response to the petition was invited by the court
and filed by EcoFactor, Inc. (EcoFactor). The court also accepted amicus briefs filed by US*Made, Garmin International, Inc., Red Hat, Inc., SAP America, Inc., SAS
Institute, Inc., Symmetry, LLC, Tesla, Inc., Vizio, Inc.,
Dell, Inc., Intel Corporation, Cisco Systems, Inc., Apple
Inc., and Lawyers for Civil Justice.
The petition and response were referred to the circuit
judges in regular active service. A poll was requested and
taken, and the court decided that the appeal warrants en
banc consideration.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for rehearing en banc is granted.
(2) The panel opinion in EcoFactor, Inc. v. Google LLC,
No. 2023-1101, 104 F.4th 243 (Fed. Cir. 2024), is vacated, and the appeal is reinstated.
(3) The parties are requested to file new briefs, which
shall be limited to addressing the district court’s adherence to Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), in its allowance of testimony from EcoFactor’s damages expert assigning a per-unit
1 Circuit Judge Newman and Circuit Judge Cunningham did not participate.
Case: 23-1101 Document: 76 Page: 3 Filed: 09/25/2024
ECOFACTOR, INC. v. GOOGLE LLC 3
royalty rate to the three licenses in evidence in this
case.
(4) Google’s en banc opening brief is due 45 days from
the date of this order. EcoFactor’s en banc response
is due within 45 days of Google’s en banc opening
brief, and Google’s reply brief within 30 days of the
response brief. The parties may file a supplemental
appendix within 7 days after service of the reply
brief. The court requires 30 paper copies of all briefs
and appendices provided by the filer within 5 business days from the date of electronic filing of the
document. The parties’ briefs must comply with
Fed. Cir. R. 32(b)(1).
(5) Any briefs of amici curiae may be filed without consent and leave of the court. Any amicus brief supporting Google’s position or supporting neither
position must be filed within 14 days after service
of Google’s en banc opening brief. Any amicus brief
supporting EcoFactor’s position must be filed
within 14 days after service of EcoFactor’s response
brief. Amicus briefs must comply with Fed. Cir. R.
29(b).
(6) Oral argument will be held at a time and date to be
announced later.
FOR THE COURT
September 25, 2024
Date
