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
               ______________________

    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 GOLD-
 BERG, 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 rep-
 resented 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 ac-
 cepted amicus briefs filed by US*Made, Garmin Interna-
 tional, 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, 

 (Fed. Cir. 2024), is va-
         cated, and the appeal is reinstated.
     (3) The parties are requested to file new briefs, which
         shall be limited to addressing the district court’s ad-
         herence to Federal Rule of Evidence 702 and Daub-
         ert v. Merrell Dow Pharmaceuticals, Inc., 

 (1993), in its allowance of testimony from Eco-
         Factor’s damages expert assigning a per-unit



     1 Circuit Judge Newman and Circuit Judge Cun-
 ningham 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 busi-
        ness 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 con-
        sent and leave of the court. Any amicus brief sup-
        porting 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