1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 1 of 21
`
`Michael A. Sherman (SBN 94783)
`masherman@stubbsalderton.com
`Jeffrey F. Gersh (SBN 87124)
`jgersh@stubbsalderton.com
`Sandeep Seth (SBN 195914)
`sseth@stubbsalderton.com
`Wesley W. Monroe (SBN 149211)
`wmonroe@stubbsalderton.com
`Stanley H. Thompson, Jr. (SBN 198825)
`sthompson@stubbsalderton.com
`Viviana Boero Hedrick (SBN 239359)
`vhedrick@stubbsalderton.com
`STUBBS, ALDERTON & MARKILES, LLP
`15260 Ventura Blvd., 20th Floor
`Sherman Oaks, CA 91403
`Telephone:
`(818) 444-4500
`Facsimile:
`(818) 444-4520
`
`Attorneys for Defendants
`[Additional Attorneys listed below]
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`CASE NO.: 5:18-md-02834-BLF
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`
`Case No.: 5:18-cv-00767-BLF
`
`
`IN RE PERSONALWEB TECHNOLOGIES,
`LLC, ET AL., PATENT LITIGATION
`
`
`
`
`AMAZON.COM, INC., et al.,
`
`
`
`v.
`
`Plaintiffs,
`
`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
`
`
`
`Defendants.
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`
`
`
`v.
`
`Counterclaimants,
`
`AMAZON.COM, INC. and AMAZON WEB
`SERVICES, INC.,
`
`
`
`
`
`
`Counterdefendants.
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 2 of 21
`
`Counterclaimant PersonalWeb Technologies, LLC (“Counterclaimant” or “PersonalWeb”)
`
`brings this Counterclaim for patent infringement against Counterdefendants Amazon.com, Inc.
`
`(“Amazon.com”) and Amazon Web Services, Inc. (“AWS”) (collectively, “Amazon” or
`
`“Counterdefendant”). Counterclaimant PersonalWeb alleges:
`
`PRELIMINARY STATEMENT
`
`1.
`
`PersonalWeb and Level 3 Communications, LLC (“Level 3”) are parties to an
`
`agreement between Kinetech, Inc. and Digital Island, Inc. dated September 1, 2000 (the “Agreement”).
`
`Pursuant to the Agreement, PersonalWeb and Level 3 each own a fifty percent (50%) undivided
`
`interest in and to the patents at issue in this action: U.S. Patent Nos. 6,928,442, 7,802,310, and
`
`8,099,420 (“Patents-in-Suit”). Level 3 has joined in this Complaint pursuant to its contractual
`
`obligations under the Agreement, at the request of PersonalWeb.
`
`2.
`
`Pursuant to the Agreement, Level 3 has, among other rights, certain defined rights to
`
`use, practice, license, sublicense and enforce and/or litigate the Patents-in-Suit in connection with a
`
`particular field of use (“Level 3 Exclusive Field”). Pursuant to the Agreement PersonalWeb has,
`
`among other rights, certain defined rights to use, practice, license, sublicense, enforce and/or litigate
`
`the Patents-in-Suit in fields other than the Level 3 Exclusive Field (the “PersonalWeb Patent Field”).
`
`3.
`
`All
`
`infringement allegations, statements describing PersonalWeb, statements
`
`describing any Counterdefendant (or any Counterdefendant’s products) and any statements made
`
`regarding jurisdiction and venue are made by PersonalWeb alone, and not by Level 3. PersonalWeb
`
`alleges that the infringements at issue in this case all occur within, and are limited to, the PersonalWeb
`
`Patent Field. Accordingly, PersonalWeb has not provided notice to Level 3—under Section 6.4.1 of
`
`the Agreement or otherwise—that PersonalWeb desires to bring suit in the Level 3 Exclusive Field in
`
`its own name on its own behalf or that PersonalWeb knows or suspects that Counterdefendant is
`
`infringing or has infringed any of Level 3’s rights in the patents.
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`1
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 3 of 21
`
`THE PARTIES
`
`4.
`
`Counterclaimant PersonalWeb Technologies, LLC is a limited liability company duly
`
`organized and existing under the laws of Texas with its principal place of business at 112 E. Line
`
`Street, Suite 204, Tyler, TX 75702.
`
`5.
`
`Counterclaimant Level 3 Communications, LLC is a limited liability company
`
`organized under the laws of Delaware with its principal place of business at 100 CenturyLink Drive,
`
`Monroe, Louisiana, 71203.
`
`6.
`
`PersonalWeb’s infringement claims asserted in this case are asserted by PersonalWeb
`
`and all fall outside the Level 3 Exclusive Field. Level 3 is currently not asserting patent infringement
`
`in this case in the Level 3 Exclusive Field against any Counterdefendant.
`
`7.
`
`Amazon alleges that Amazon.com, Inc. is a Delaware corporation with offices and
`
`employees throughout several of the United States, including the Northern District of California.
`
`8.
`
`Amazon alleges that AWS is a wholly-owned subsidiary of Amazon.
`
`JURISDICTION AND VENUE
`
`9.
`
`The court has subject matter jurisdiction of this counterclaim pursuant to 28 U.S.C.
`
`§§ 1331 and 1338(a) because this counterclaim arises under the patent laws of the United States,
`
`35 U.S.C. §§ 1 et seq.
`
`10.
`
`Venue is proper in this federal district pursuant to 28 U.S.C. §§ 1391(b)–(c) and
`
`1400(b) because, on information and belief, Counterdefendant has a regular and established place of
`
`business in this District and has committed acts of infringement in this District.
`
`11.
`
`This court has personal jurisdiction over Amazon.com because, in addition to the
`
`allegations in above paragraphs, Amazon.com has purposely directed its declaratory judgment
`
`activities related to the patents-in-suit into the Northern District of California. Further, on information
`
`and belief, Amazon.com purposefully directed activities at residents of California, the claims in the
`
`counterclaim arise out of and relate to those activities, and assertion of personal jurisdiction over
`
`Amazon.com would be fair.
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`2
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 4 of 21
`
`12.
`
`This court has personal jurisdiction over AWS because, in addition to the allegations
`
`in above paragraphs, AWS has purposely directed its declaratory judgment activities related to the
`
`patents-in-suit into the Northern District of California. Further, on information and belief, AWS
`
`purposefully directed activities at residents of California, the claims in the counterclaim arise out of
`
`and relate to those activities, and assertion of personal jurisdiction over AWS would be fair.
`
`PERSONALWEB BACKGROUND
`
`13.
`
`The Patents-in-Suit cover fundamental aspects of cloud computing, including the
`
`identification of files or data and the efficient retrieval thereof in a manner which reduces bandwidth
`
`transmission and storage requirements.
`
`14.
`
`The ability to reliably identify and access specific data is essential to any computer
`
`system or network. On a single computer or within a small network, the task is relatively easy: simply
`
`name the file, identify it by that name and its stored location on the computer or within the network,
`
`and access it by name and location. Early operating systems facilitated this approach with standardized
`
`naming conventions, storage device identifiers, and folder structures.
`
`15.
`
`Ronald Lachman and David Farber, the inventors of the Patents-in-Suit, recognized
`
`that the conventional approach for naming, locating, and accessing data in computer networks could
`
`not keep pace with ever-expanding, global data processing networks. New distributed storage systems
`
`use files that are stored across different devices in dispersed geographic locations. These different
`
`locations could use dissimilar conventions for identifying storage devices and data partitions.
`
`Likewise, different users could give identical names to different files or parts of files—or unknowingly
`
`give different names to identical files. No solution existed to ensure that identical file names referred
`
`to the same data, and conversely, that different file names referred to different data. As a result,
`
`expanding networks could not only become clogged with duplicate data, they also made locating and
`
`controlling access to stored data more difficult.
`
`16.
`
`Lachman and Farber developed a solution: replacing conventional naming and storing
`
`conventions with system-wide “substantially unique,” content-based identifiers. Their approach
`
`assigned substantially unique identifiers to “data items” of any type: “the contents of a file, a portion
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`3
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 5 of 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`of a file, a page in memory, an object in an object-oriented program, a digital message, a digital
`
`scanned image, a part of a video or audio signal, or any other entity which can be represented by a
`
`sequence of bits.” Applied system-wide, this invention would permit any data item to be stored,
`
`located, managed, synchronized, and accessed using its content-based identifier.
`
`17.
`
`To create a substantially unique, content-based identifier, Lachman and Farber turned
`
`to cryptography. Cryptographic hash functions, including MD4, MD5, and SHA, had been used in
`
`computer systems to verify the integrity of retrieved data—a so-called “checksum.” Lachman and
`
`Farber recognized that these same hash functions could be devoted to a vital new purpose: if a
`
`cryptographic hash function was applied to a sequence of bits (a “data item”), it would produce a
`
`substantially unique result value, one that: (1) virtually guarantees a different result value if the data
`
`item is changed; (2) is computationally difficult to reproduce with a different sequence of bits; and
`
`(3) cannot be used to recreate the original sequence of bits.
`
`18.
`
`These cryptographic hash functions would thus assign any sequence of bits, based on
`
`content alone, with a substantially unique identifier. Lachman and Farber estimated that the odds of
`
`these hash functions producing the same identifier for two different sequences of bits (i.e., the
`
`“probability of collision”) would be about 1 in 2 to the 29th power. Lachman and Farber dubbed their
`
`content-based identifier a “True Name.”
`
`19.
`
`Using a True Name, Lachman and Farber conceived various data structures and
`
`methods for managing data (each data item correlated with a single True Name) within a network—
`
`no matter the complexity of the data or the network. These data structures provide a key-map
`
`organization, allowing for a rapid identification of any particular data item anywhere in a network by
`
`comparing a True Name for the data item against other True Names for data items already in the
`
`network. In operation, managing data using True Names allows a user to determine the location of
`
`any data in a network, determine whether access is authorized, and to selectively provide access to
`
`specific content not possible using the conventional naming arts.
`
`20.
`
`On April 11, 1995, Lachman and Farber filed their patent application, describing these
`
`and other ways in which content-based “True Names” elevated data-processing systems over
`
`conventional file-naming systems. The first True Name patent issued on November 2, 1999. The last
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`4
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 6 of 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`of the Patents-in-Suit has expired, and the allegations herein are directed to the time period before
`
`expiration of the last of the Patents-in-Suit.
`
`21.
`
`PersonalWeb has successfully enforced its intellectual property rights against third
`
`party infringers, and its enforcement of the Patents-In Suit is ongoing. This enforcement has resulted
`
`in PersonalWeb obtaining settlements and granting non-exclusive licenses regarding the Patents-in-
`
`Suit.
`
`22.
`
`PersonalWeb has filed actions against various website operators (“website
`
`defendants”) for infringement of several of the True Name patents.1 In some of these actions, inter
`
`alia, PersonalWeb alleges that the website defendants infringe certain claims of the True Name patents
`
`through their control over and use of certain aspects of Amazon’s S3 system to distribute their webpage
`
`content so that downstream intermediate caches and end-point browsers only serve/use the latest
`
`content authorized by the website defendant. In those actions, PersonalWeb also alleges that the
`
`certain website defendants also infringe certain claims of the True Names patents through the
`
`combination of their control over and use of these certain aspects of Amazon’s S3 system and their
`
`control over and use of certain aspects of the website architecture they have used to produce webpages
`
`for their websites.
`
`23.
`
`In the actions against these website defendants, PersonalWeb alleges that the website
`
`defendants directly infringe the asserted True Name patents because for each of the elements of the
`
`asserted claims, the website defendants either perform or direct and control the vicarious performance
`
`of each claimed element and used the claimed system such that infringement is attributable to the
`
`website owner. See, Travel Sentry, Inc. v. Tropp, 497 Fed. App’x 958 (Fed. Cir. 2017). Moreover,
`
`while the law on direct infringement has been undergoing tremendous development since the U.S.
`
`Supreme Court’s decision in Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S. Ct. 2111
`
`(2014), it is also possible this Court may find in lawsuits against the website defendants that despite
`
`infringement of the patents-in-suit, such website defendants are not the ones directly infringing, but
`
`rather Amazon is. Thus, PersonalWeb is hereby pleading direct infringement by Amazon or the
`
`website defendants in the alternative. Fed. R. Civ. Proc. 8(d)(2); US Gypsum Co. v. Nat’l Gypsum
`
`
`
`
`1 See, FAC, ¶ 23.
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`5
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 7 of 21
`
`Co., 77 S. Ct 490, 495-96 (1956); Lifetime Indus., Inc. v. Trim-Lok, Inc., 869 F.3d 1372, 1381 (Fed.
`
`Cir. 2017); Milo & Gabby, LLC v. Amazon.com, Inc., 12 F. Supp. 3d 1341, 1353-54 (W.D. Wa. 2014).
`
`24.
`
`Apart from the issue of direct infringement, there is a legal question as to who is “using”
`
`the claimed methods and systems. In Joy Technologies v. Flakt, Inc., 6 F.3d 770 (Fed. Cir. 1993), the
`
`Federal Circuit held that when one party built a factory for a second party and the second party used
`
`the factory, it was the second party that “used” a method patent covering a method performed by the
`
`factory. The present cases are similar to the facts in Joy Technologies, except that instead of the second
`
`party (i.e., website operators) owning the system built by the first party, the second party is in essence
`
`leasing the system built by the first party so that it may use it to serve its webpages. As with direct
`
`infringement, though, the situation here is different enough from the facts of Joy Technologies that
`
`this or another court may find that it is the builder of the factory (i.e., Amazon) that is the “user” of
`
`the method performed by the factory rather than the purchaser/lessor of the factory (i.e., the website
`
`operators). Thus, as with direct infringement, if S3 performs all the elements of a method claim of a
`
`True Name patent, either Amazon or the website operator is the “user” of the method performed by
`
`Amazon’s S3 for the purposes of patent law. So, again, PersonalWeb is hereby pleading that the
`
`method performed by Amazon’s S3 is either by Amazon or the website defendants (or both), in the
`
`alternative.
`
`GENERAL BACKGROUND
`
`25.
`
`A webpage is a type of document that is typically retrieved over the World Wide Web,
`
`made viewable and formatted (rendered) by a web browser, and displayed electronically. A “webpage”
`
`often refers to what is visible in a browser, but sometimes also refers to a computer file “webpage base
`
`file”), usually written in Hypertext Markup Language (“HTML”) or a comparable markup language.
`
`Such HTML webpage base files typically include text, formatting, and references (hyperlinks) to other
`
`web contents, such as style sheets, scripts, and images that make up part of the webpage. Web contents
`
`referenced in an HTML or similar file are also called “webpage assets” or “asset files” herein. The
`
`web browser coordinates the retrieval of the various asset files of a webpage and renders the webpage
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`6
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 8 of 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`for display from the webpage base file and the asset files referenced in the webpage base file or
`
`referenced in other asset files.
`
`26.
`
`On the World Wide Web, hyperlinks generally include Uniform Resource Identifiers
`
`(“URIs”), which each typically include an address of a server (“host”) from which the asset file is to
`
`be retrieved (e.g., “www.website.com”), a “path” to the location of that asset file on the host server
`
`(e.g., “/directory/”), and a filename (e.g., “filename.ext”).
`
`27.
`
`On the Internet, a web browser typically retrieves a webpage base file from a remote
`
`web server and retrieves referenced asset files from the same or different servers. The web browser
`
`retrieves a webpage base file or an asset file by making a GET “request” to a web server using the
`
`Hypertext Transfer Protocol (“HTTP”), an industry standard. The web server may respond to such an
`
`HTTP request with a HTTP “response” that includes the requested web content and may include other
`
`information or instructions.
`
`28.
`
`A static webpage is delivered exactly as stored, as web content in the web server’s file
`
`system or memory. In contrast, a dynamic webpage is generated by a web server application, usually
`
`driven by server-side software, upon receipt of a request from a browser (user). For example, a picture
`
`of a building might be delivered as static content (a picture) whereas the latest traffic conditions may
`
`be delivered dynamically based on real time traffic information.
`
`29.
`
`The speed of a browser retrieving webpage base files and incorporated asset files can
`
`be increased by the browser storing previously retrieved webpage base files and asset files in a browser
`
`“cache” on the computer running the browser. If a browser’s user later requests a previously retrieved
`
`webpage base file or requests a webpage that includes an asset file previously used by the browser in
`
`rendering the same or a different webpage (for example, by reloading a webpage or visiting the same
`
`webpage again), the browser may use the cached webpage base file or asset file rather than having to
`
`download the same file repeatedly over the Internet again.
`
`30.
`
`Two computers communicating over the Internet usually are not directly connected to
`
`each other but rather interact via chains of network appliances and other computers (e.g., “switches”
`
`and “intermediate” servers). Many intermediate servers have caches similar to and complementing
`
`the browser cache that store webpage base files and assets that pass through that intermediate server.
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`7
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 9 of 21
`
`If a browser or server requests a file from the intermediate server that is present in that intermediate
`
`server’s cache, the intermediate server can use the content in its cache to respond to the request rather
`
`than send the request upstream towards the web server from which the file initially originated (also
`
`called the “origin server”).
`
`31.
`
`Responses to HTTP requests may include header elements (control elements) and a
`
`body (the “object” that was requested). Under HTTP, web servers can include a “cache-control”
`
`header with a response that includes a webpage or asset file. A “cache-control” header includes one
`
`or more directives that instruct browsers and intermediate server caches (“intermediate caches”) as to
`
`whether and for how long the file (object) included in the response may be cached or under what
`
`circumstances and under what conditions the cached content may be used. HTTP also provides for
`
`including other headers in responses that provide similar types of instructions to browsers and
`
`intermediate caches. Collectively, these other headers and directives in a “cache-control” header are
`
`referred to herein as “cache-control headers.”
`
`32.
`
`Given that webpage content changes, sometimes rather quickly and regularly, a
`
`problem that website owners face is effectively instructing a browser that is re-rendering a previously
`
`cached webpage that one or more of its cached files for that webpage are no longer the correct and
`
`authorized content (the content of those files has changed) and similarly reauthorizing the use of those
`
`cached files whose content has not changed.
`
`33.
`
`On one hand, website owners want to encourage the browsers that render their web
`
`pages to use cached files thereby reducing the number of requests for these files that are being made
`
`to their webpage servers. Therefore, they frequently will set cache-control headers that authorize the
`
`browser to cache their webpage base files and asset files so the files are on hand when the browser
`
`needs to render that webpage again. On the other hand, website owners want the browsers to use the
`
`latest authorized files so that their users do not see the wrong content when viewing their webpage.
`
`COUNTERDEFENDANT’S BACKGROUND
`
`34.
`
`On information and belief, Counterdefendant provided on-demand cloud computing
`
`services on a subscription basis.
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`8
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 10 of 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`35.
`
`On information and belief, in addition to the website defendants named in the above-
`
`referenced lawsuits, Amazon alleges that it “handles approximately 12 trillion requests per month”
`
`and Amazon’s S3 “services millions of requests per second.” Declaration of Trevor Rowe, Dkt. No.
`
`42-4, ¶ 5, Declaration of Dr. Preshant Shenoy, Dkt. No. 42-1, ¶ 35. On information and belief, Amazon
`
`thus has numerous additional customers (“web server customers”) that have used Amazon’s S3 as
`
`their web host server (“S3 web host server”) to host and serve certain content used in rendering the
`
`customers’ webpages since before expiration of the last to expire of the Patents-in-Suit.2
`
`36.
`
`On information and belief, the S3 web host servers provided a system of notifications
`
`and authorizations to allow their web server customers to control the distribution of content, e.g., what
`
`webpage content may be served from the S3 web host for the web server customers’ webpage(s) and
`
`intermediate caches and what cached webpage content a browser is re-authorized to use to render the
`
`web server customers’ webpage(s).
`
`37.
`
`On information and belief, S3 web host servers and their associated method of
`
`providing webpage content, responded on behalf of their web server customers to “conditional” HTTP
`
`GET requests with If-None-Match headers and associated content-based ETag values for webpage
`
`asset files that the web server customers uploaded to S3 web host servers for hosting and service, the
`
`asset files being required to render various webpages of the web server customers.
`
`38.
`
`On information and belief, S3 web host servers and associated method used these
`
`ETags to instruct both the intermediate cache servers and the endpoint caches at browsers to verify
`
`whether they were still authorized to reuse the previously cached webpage base files of the web server
`
`customers and to instruct them to obtain newly authorized content in rendering the web server
`
`customers’ webpage when that content had changed. In other words, whether the previously cached
`
`content was still considered valid for use by the web server customers.
`
`39.
`
`On information and belief, Amazon thereby reduced the bandwidth and computation
`
`required by its S3 web host servers (acting as origin servers for its web server customers) and any
`
`intermediate cache servers to field user requests to render the web server customers’ webpages as
`
`
`
`2 While the counterclaim is sometimes written in the present or present perfect tense, all
`specific allegations are directed to the system’s operations and the method’s performance in the
`
`relevant time period.
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`9
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 11 of 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`those servers only need to serve files whose content has changed. On information and belief, this has
`
`allowed for the efficient update of cached information only when such content has changed, thereby
`
`reducing transaction overhead and bandwidth and allowing the authorized content to be served from
`
`the nearest cache.
`
`40.
`
`On information and belief, the web server customers contracted with Amazon to use
`
`Amazon’s S3 system to store and serve the web server customers’ webpage content on their behalf,
`
`including certain automation features to perform certain accused portions of the method and operate
`
`certain accused portions of the system on their behalf. On information and belief, once the web server
`
`customers’ webpage files were compiled and are complete, the web server customers uploaded them
`
`to S3 web host servers as objects.
`
`41.
`
`On information and belief, an object’s value comprised a sequence of bits and, upon
`
`upload, an object’s associated ETag value was generated by the S3 web host server by applying a hash
`
`function to the sequence of bits; wherein any two objects comprising identical sequences of bits had
`
`identical associated ETag values. Thus, on information and belief, when an object’s content was
`
`changed and uploaded to the S3 web host server, a new associated ETag value was generated on the
`
`web server customers’ behalf. Upon information and belief, this ETag was used by Amazon and its
`
`web server customers in authorizing or disallowing the respective service or use of the object’s content
`
`by intermediate cache servers and endpoint caches such as browser caches.
`
`42. More particularly, on information and belief, each of the web server customers’
`
`webpages included a webpage base file (e.g., a main or initial HTML file) and one or more asset files
`
`referenced in the webpage base file (or referenced in other asset files that contained references to other
`
`asset files). On information and belief, the references in the webpage base file to the asset files needed
`
`to render the webpage were typically Uniform Resource Identifiers (“URIs”), which each typically
`
`included a filename, the address of a host server from which the asset file could be retrieved, and a
`
`“path” to the location of that asset file on that server.
`
`43.
`
`On information and belief, when the web server customers created a webpage base file
`
`for a webpage, whether dynamic or static, that webpage base file included a sequence of bits. On
`
`information and belief, the web server customers created these webpage base files without using
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`10
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 12 of 21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`Amazon S3 web host servers—rather, they were created on non-S3 servers and served to users’
`
`browsers by non-S3 web servers. On information and belief, in most cases an associated ETag value
`
`was generated for the webpage base file by the web server customers by applying a hash function to
`
`the sequence of bits, wherein any two webpage base files comprising identical sequences of bits had
`
`identical associated ETag values—but again, the ETags for webpage base files were generated
`
`independent of Amazon S3 web host servers.
`
`44.
`
`On information and belief, when an intermediate cache server or a browser requested
`
`a webpage from a web server customer for the first time, it sent an HTTP GET request with the web
`
`server customer’s webpage’s URI and the web server customer’s origin server (not an S3 web host
`
`server) responded by sending an HTTP 200 (OK) response message containing the webpage base file,
`
`along with any respective associated ETag, if such an ETag was generated. On information and belief,
`
`the intermediate cache server or a browser then sent individual HTTP GET requests, each with an
`
`asset file’s URI that was referenced in the webpage base file. For each such request, the server
`
`identified in the URI or an upstream cache server responded by sending an HTTP 200 response
`
`containing the requested asset file. On information and belief, if the URI of an asset file identified an
`
`S3 server, the HTTP 200 response included the asset file’s associated ETag.
`
`45.
`
`On information and belief, upon receipt of the HTTP 200 responses, the intermediate
`
`cache server or browser cached the webpage base file and asset files with their associated URIs and
`
`associated ETag values, if applicable, and the browser used them in rendering the requested web page
`
`of the web server customer. On information and belief, the intermediate cache servers and browser
`
`caches were caused to maintain databases/tables which mapped the URIs of asset files/webpage base
`
`files to their respective responses and, if applicable, associated cache-control headers and ETags.
`
`46.
`
`On information and belief, by responding to an HTTP GET request for a given webpage
`
`asset file by transmitting the content of an asset file with an associated ETag, Amazon and/or its web
`
`server customers instructed the browser cache, and all intermediate cache servers, to use an HTTP
`
`conditional GET request the next time that asset file is requested. More specifically, on information
`
`and belief, the browser or intermediate cache was instructed to include the ETag in the HTTP
`
`conditional GET request with an “If-None-Match” header to re-verify that they were still authorized
`
`
`
`
`FIRST AMENDED COUNTERCLAIM
`
`
`11
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 257 Filed 10/04/18 Page 13 of 21
`
`to serve or use that content or determine that they are no longer authorized to use that content and
`
`therefore must use new content.
`
`47.
`
`On information and belief, Amazon and/or its web server customers did this, for
`
`example, by causing cache-control headers to be included in HTTP responses containing the web
`
`server customers’ asset files. On information and belief, Amazon and