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`Case 5:18-md-02834-BLF Document 350 Filed 01/24/19 Page 1 of 17
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`
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`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`TODD R. GREGORIAN (CSB No. 236096)
`tgregorian@fenwick.com
`PHILLIP J. HAACK (CSB No. 262060)
`phaack@fenwick.com
`RAVI R. RANGANATH (CSB No. 272981)
`rranganath@fenwick.com
`CHIEH TUNG (CSB No. 318963)
`ctung@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
`
`Counsel for AMAZON.COM, INC., and
`AMAZON WEB SERVICES, INC.
`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
` Case No.: 5:18-md-02834-BLF
`
`Case No. 5:18-cv-00767-BLF
`REPLY IN SUPPORT OF MOTION OF
`AMAZON.COM, INC. AND AMAZON
`WEB SERVICES, INC. FOR SUM-
`MARY JUDGMENT ON DECLARA-
`TORY JUDGMENT CLAIMS AND DE-
`FENSES UNDER THE CLAIM PRE-
`CLUSION AND KESSLER DOC-
`TRINES
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`
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`
`
`IN RE: PERSONAL WEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`
`Defendants,
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Counterclaimants,
`
`v.
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`
`Counterdefendants.
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`Case 5:18-md-02834-BLF Document 350 Filed 01/24/19 Page 2 of 17
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`I.
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`C.
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`D.
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`TABLE OF CONTENTS
`INTRODUCTION ---------------------------------------------------------------------------------- 1
`A.
`Amazon Never Agreed to Permit the Relitigation of Claims------------------------- 1
`B.
`PersonalWeb’s Complaint Leaves No Doubt that this Case Involves the
`“Same Transaction or Series of Transactions” at Issue in the Texas Case --------- 2
`PersonalWeb’s Effort to Limit its Claims to Specific “Use Cases” of
`ETags Is Legally Baseless and, in All Events, Factually Incorrect ------------------ 2
`In All Events, PersonalWeb Expressly Accused the “Use Case” of
`Downloading Files in the Texas Case --------------------------------------------------- 4
`PersonalWeb Confuses Offensive and Defensive Privity in the Context of
`Non-Mutual Claim Preclusion ----------------------------------------------------------- 5
`PersonalWeb Misconstrues the Scope, Intent and Legal Significance of
`Amazon’s Agreement to Indemnify its Customers ------------------------------------ 7
`PersonalWeb Misconstrues the “Combinations” Exclusion in the AWS
`Customer Agreement ---------------------------------------------------------------------- 8
`PersonalWeb’s Argument About AWS CloudFront is Contradicted By Its
`Own Pleadings and Barred by the Rules of Standing in Patent Cases -------------- 8
`Claim Preclusion Is Not Limited to Acts of Infringement Occurring Prior to
`the Filing of the Complaint in the Prior Action --------------------------------------- 10
`Kessler Does Not Require an Actual Adjudication of Non-Infringement --------- 11
`
`E.
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`F.
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`G.
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`H.
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`I.
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`J.
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`Case 5:18-md-02834-BLF Document 350 Filed 01/24/19 Page 3 of 17
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`
`
`Cases:
`
`Page(s):
`
`TABLE OF AUTHORITIES
`
`Adobe Sys. Inc. v. Wowza Media Sys., LLC
`72 F. Supp.3d 989 (N.D. Cal.2014) -------------------------------------------------------------- 11
`
`Aspex Eyewear Inc. v. Marchon Eyewear Inc.,
`672 F.3d 1335 (Fed. Cir. 2012) -------------------------------------------------------------------- 1
`
`Brain Life LLC v. Elekta Inc.,
`746 F.3d 1045 (Fed. Cir. 2014) ----------------------------------------------------------- 3, 10–12
`
`Int’l Union of Operating Eng’rs v. Karr,
`994 F.2d 1426 (9th Cir. 1993) ...............................................................................................1
`
`Kessler v. Eldred,
`206 U.S. 285 (1907) .................................................................................................... passim
`
`Mars Inc. v. Nippon Conlux Kabushiki-Kaisha,
`58 F.3d 616 (Fed. Cir. 1995) .........................................................................................2–3, 6
`
`Molinaro v. AT&T Co.,
`460 F. Supp. 673 (E.D. Pa. 1978), aff’d, 620 F.2d 288 (3d Cir. 1980) ...............................11
`
`Nystrom v. Trex Co.,
`580 F.3d 1281 (Fed. Cir. 2009) ...........................................................................................10
`
`Pactiv Corp. v. Dow Chem. Co.,
`449 F.3d 1227 (2006) ..........................................................................................................12
`
`Ramirez v. AvalonBay Cmtys., Inc.,
`No. C 14-04211 WHA, 2015 WL 5675866 (N.D. Cal. Sept. 26, 2015) ...............................1
`
`Senju Pharm. Co. v. Apotex Inc.,
`746 F.3d 1344 (Fed. Cir. 2014) .............................................................................................3
`
`SpeedTrack, Inc. v. Office Depot, Inc.,
`791 F.3d 1317 (Fed. Cir. 2015) ...........................................................................................10
`
`Transclean Corp. v. Jiffy Lube Int’l, Inc.,
`474 F.3d 1298 (Fed. Cir. 2007) .........................................................................................5–6
`
`ViaTech Techs., Inc. v. Microsoft Corp.,
`No. 17-570-RGA, 2018 WL 4126522 (D. Del. Aug. 29, 2018) ...........................................4
`
`Other Authorities:
`
`Fifth Amendment ........................................................................................................................6
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`Wright & Miller, 18A Fed. Prac. & Proc. Juris. § 4460 (2d ed.) ................................................6
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`Wright & Miller, 18A Fed. Prac. & Proc. Juris. § 4463 (2d ed.) ............................................7–8
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`Case 5:18-md-02834-BLF Document 350 Filed 01/24/19 Page 5 of 17
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`I.
`INTRODUCTION
`It is undisputed that the ’791, ’442, ’310, and ’544 patents were asserted in the prior Texas
`case. (Opp. at 4.) It is undisputed that the ’420 patent, asserted in this case but not in the Texas
`case, is patentably indistinct from the others as a matter of law. (See Mot. at 4, 11.) It is undisputed
`that PersonalWeb asserted its patents against Amazon’s Simple Storage Service (S3) in the Texas
`case and does so again in this Court. (Opp. at 4.) And it is undisputed that PersonalWeb consented
`to a final judgment dismissing the Texas case with prejudice. (Dkt. Nos. 315-7, 315-8.) Under the
`circumstances, it would be unprecedented, to say nothing of anathema to the very purposes of claim
`preclusion and the Kessler doctrine, to allow PersonalWeb to proceed with this vexatious and
`wasteful campaign against Amazon’s customers. PersonalWeb’s salmagundi of arguments to the
`contrary are either legally incorrect, factually untrue, or simply immaterial to this motion. Some
`are all three, as discussed below.
`
`A.
`Amazon Never Agreed to Permit the Relitigation of Claims.
`PersonalWeb argues that the Texas judgment shows that Amazon agreed to allow Person-
`alWeb “to pursue both the identical as well as additional patent infringement claims.” (Opp. at 18
`(emphasis in original).) But the Texas judgment says no such thing, even according to Personal-
`Web. Instead, PersonalWeb urges the Court to infer this counterintuitive result. But courts in the
`Ninth Circuit may not infer such a result in the absence of an express agreement where, as here, to
`do so would undermine the application of res judicata. Int’l Union of Operating Eng’rs v. Karr,
`994 F.2d 1426, 1432-33 (9th Cir. 1993) (courts may not “‘supply by inference what the parties have
`failed to expressly provide [in a stipulation or even a settlement agreement], especially when that
`inference would suspend the application of this circuit’s principles of res judicata’”) (emphasis
`added, citation omitted); see also Aspex Eyewear Inc. v. Marchon Eyewear Inc., 672 F.3d 1335,
`1346 (Fed. Cir. 2012) (“the parties’ decision to depart from the normal rules of claim preclusion by
`agreement ‘must be express’”) (citation omitted). Nor may post-hoc speculation (see Hadley Decl.
`¶ 8) supply the want of express intent. See Ramirez v. AvalonBay Cmtys., Inc., No. C 14-04211
`WHA, 2015 WL 5675866, at *10 (N.D. Cal. Sept. 26, 2015) (declining to consider “inadmissible
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`speculation” in a lawyer declaration about an opposing party’s state of mind). PersonalWeb’s spec-
`ulation is especially insufficient where, as here, common sense leads to only one logical explanation
`for the terms of the Texas judgment. Amazon unilaterally preserved its rights to challenge the
`PersonalWeb patents because PersonalWeb, a professional patent litigation speculator, might try to
`assert those patents against new and different Amazon technology. (Shamilov Reply Decl., Ex. 14.)
`Stated differently, Amazon merely preserved its right to defend itself against future and different
`claims.
`
`B.
`
`PersonalWeb’s Complaint Leaves No Doubt that this Case
`Involves the “Same Transaction or Series of Transactions”
`at Issue in the Texas Case.
`PersonalWeb itself defined the “transaction or series of transactions” at issue in the Texas
`action in its Texas complaint. See Mars Inc. v. Nippon Conlux Kabushiki-Kaisha, 58 F.3d 616, 620
`(Fed. Cir. 1995) (looking to the prior complaint to determine whether two cases “related to the same
`set of transactions” for purposes of claim preclusion). And the Texas complaint could not have
`been clearer. The allegedly infringing “transactions” were making, using, and selling Amazon S3.
`For each asserted patent, PersonalWeb identically alleged: “Amazon has infringed and continues
`to infringe the [asserted] patent by its manufacture, use, sale, importation and/or offer for sale of
`the following products and services: Amazon Simple Storage Service (S3) . . . .” (Shamilov Reply
`Decl., Ex. 15 (Orig TX Compl) ¶¶ 16, 20, 24, 28, 32, 36, 40, 44.) Nowhere in any of the 16 pages
`of the original complaint, or in the 17 pages of the amended complaint, did PersonalWeb limit its
`infringement claims to any specific “use case” of S3, such as uploading versus downloading files,
`or even S3’s ETags. (Id.; Dkt. No. 315-2 (Amended TX Compl).) To the contrary, PersonalWeb
`would later confirm in its Texas infringement contentions, and then again during discovery, that at
`all times it accused every S3 conditional “use case” of ETags, as shown below. (See infra p. 5.)
`
`C.
`
`PersonalWeb’s Effort to Limit its Claims to Specific “Use Cases”
`of ETags Is Legally Baseless and, in All Events, Factually Incorrect.
`PersonalWeb asserts that its present claims are not precluded because it now accuses a “use
`case” of S3 ETags that is somehow different from the “use case” of S3 ETags accused in Texas.
`(Opp. at 7 (“Further distinguishing the use cases in the Texas Action and now . . . .”) (emphasis
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`added).) This scholastic view of claim splitting has never been endorsed by any court, much less
`the Federal Circuit. To the contrary, the Federal Circuit has held repeatedly that, in assessing
`whether two patent cases involve the same cause of action for purposes of claim preclusion, the test
`is whether the technology accused in the two cases is essentially the same, not whether essentially
`the same technology is used for a different purpose, especially if that different purpose could have
`been (or, as in this case, was) accused in the first litigation. Senju Pharm. Co. v. Apotex Inc., 746
`F.3d 1344, 1349 (Fed. Cir. 2014) (“[W]e consider in a patent case involving claim preclusion is the
`overlap of the product or process accused in the instant action with the product or process accused
`in the prior action.”) (emphasis in original). “[C]laim preclusion bars both claims that were brought
`as well as those that could have been brought,” Brain Life LLC v. Elekta Inc., 746 F.3d 1045, 1053
`(Fed. Cir. 2014) (emphasis in original), and prevents a patentee from bringing successive cases
`“with respect to the same patents and the same accused products.” Adaptix, Inc., 2015 WL
`4999944, at *11 (emphasis added, citation omitted); Mars Inc., 58 F.3d at 619 (“We agree with the
`district court, however, that the two complaints pleaded what in law is the same cause of action.”)
`(emphasis added).
`The rule against claim splitting applies with full force here. There is no distinction between
`using ETags to “upload” versus “download” files for purposes of claim preclusion. S3 is a storage
`service. (Dkt. No. 315-18 (Markle Decl.) ¶ 3.) Users “put” objects in S3 (i.e, upload) and then
`“get” (i.e., download) them from S3. (Id. ¶ 4.) S3 uses ETags to confirm that S3 is storing the
`correct object when the object is uploaded, and it uses ETags to confirm that it is either returning
`the correct object or that a user already has the correct object when the object is requested to be
`downloaded. (Id. ¶¶ 9-10; Shamilov Reply Decl., Ex. 18 at 152 (S3 API doc).) In either case, S3
`conditions the operations using ETags. This is important. In both the Texas case and in the instant
`cases, PersonalWeb alleged that ETags constitute the alleged “True Names” at the heart of its pa-
`tents. (See, e.g., Dkt. No. 340-2 at 1; Dkt. No. 175 (Airbnb Compl.) ¶ 31; Dkt. No. 257 (Am.
`Counterclaim) ¶ 37; Dkt. No. 315-13 at 5).) By analogy, a patentee with a patent on a hard drive,
`where accurate file identification is the “heart of the patent,” may not sue a hard drive manufacturer
`in one suit for writing files, then lose, and then sue the same defendant and its customers on the
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`same patent for reading files from the same drive. So, too, PersonalWeb may not split its claims
`by accusing the use of ETags in one suit when uploading objects, then lose, and then sue the same
`parties and their privies for using ETags when downloading objects. But that is precisely what
`PersonalWeb seeks to do here. (Opp. at 2 (“That [multipart upload] feature is not at issue here;
`rather S3’s downloading feature [is] . . . central to the present action”) (second emphasis in origi-
`nal).) That theory is a classic, even extreme, version of claim splitting.
`ViaTech Technologies, Inc. v. Microsoft Corporation is directly on point: “Plaintiff cannot
`repeatedly assert its patent against different parts of Windows in separate suits, even if one accused
`part is on the left-hand side of Windows and the other is on the right-hand side, so to speak.” No.
`17-570-RGA, 2018 WL 4126522, at *3 (D. Del. Aug. 29, 2018). PersonalWeb characterizes Vi-
`aTech as “based on the supposition that the first case asserted infringement against the entire Win-
`dows product, not just one aspect or feature of it.” (Opp. at 13.) But that is precisely the point of
`ViaTech. The complaint in the first suit accused Windows as a whole, but then the plaintiff pro-
`ceeded against only a specific Windows feature: “Plaintiff chose to limit its infringement argument
`in the First Action to Windows’s SPP feature.” ViaTech Tech., Inc., 2018 WL 4126522, at *3 n.5.
`It made no difference that the plaintiff pushed a different infringement theory in the second case
`because the scope of the original complaint—the test for claim preclusion—was Windows as such.
`Id. By focusing on what theories were actually pursued by a plaintiff in an earlier case, Personal-
`Web simply confuses issue preclusion with claim preclusion. And yet even that erroneous focus is
`no help to PersonalWeb, which undeniably urged the same theories in Texas that it urges in this
`Court.
`
`D.
`
`In All Events, PersonalWeb Expressly Accused the “Use Case”
`of Downloading Files in the Texas Case.
`PersonalWeb’s argument that the Texas case was limited to multipart upload and did not
`involve conditional GET downloading is simply untrue. First, in the Texas case PersonalWeb ex-
`pressly identified the same conditional GET operation—namely, using ETags to determine if a
`condition exists (e.g., Is the object the same or different?) for “getting” or downloading a file—that
`it now accuses in this case. That “use case” was just one of several “conditional operations” at
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`issue. (Shamilov Reply Decl., Ex. 25 at 22 (accusing S3 of infringement because in part “[w]hen
`doing GET, HEAD, PUT/COPY operation with certain conditional parameters, the existence of
`the particular item at a particular location is determined with Etag”) (emphasis added)); see also id.
`at 84 (similarly accusing “GET, HEAD, PUT/COPY operation with conditional parameters”).)
`Second, in briefing before the Texas court, PersonalWeb again said that the accused technology
`was “Amazon’s Simple Storage Service (S3),” and that “the accused functionalities of S3 include
`but are not limited to its ‘multipart upload’ feature and [other] ‘conditional operations.’” (Id., Ex.
`19 (motion to compel) at 1 (emphasis added).) This is consistent with the actual enumerated patent
`claims that PersonalWeb selected to pursue in the Texas case, which include claims limited to
`downloading. (Dkt. No. 340-2 at 1 (asserting claim 24 of the ’310 patent requiring “a request re-
`garding a particular data item, said request including at least a content-dependent name (an “ETag”)
`for the particular data item,” where the data item is downloaded (or not) based on the content-
`dependent name).) And finally, PersonalWeb’s discovery requests specifically targeted the “use
`case” of downloading, i.e., “a conditional matching GET Object operation, using an eTag, such as
`‘If-Match’ and ‘If-NoneMatch.’” (Id., Ex. 20 (December 4, 2013 Ltr. From J. Huang) at 3 (emphasis
`added); see also id. Ex. 21 (Gattu Dep. Tr.) at 90:19-23; 91:5-11 (taking testimony on conditional
`GETs); Dkt. No. 315-11 at Topic 43 (noticing deposition topics on conditional operations).) These
`are exactly the same conditional GETs that PersonalWeb accuses in this Court.
`
`E.
`
`PersonalWeb Confuses Offensive and Defensive Privity in the
`Context of Non-Mutual Claim Preclusion.
`PersonalWeb argues that the final judgment in Texas does not protect Amazon’s customers
`because Amazon and its customers are “on opposite sides of a contract” and are thus not in privity
`for purposes of claim preclusion. (Opp. at 7-8.) PersonalWeb relies on dicta in Transclean, where
`the patent owner sought to use privity offensively to bar a prior defendant’s customers from raising
`a non-infringement defense because the plaintiff had already prevailed in the prior action against
`the manufacturer of the accused technology. Transclean Corp. v. Jiffy Lube Int’l, Inc., 474 F.3d
`1298, 1302 (Fed. Cir. 2007). Obviously, claim preclusion could not apply to bind the prior defend-
`ant’s customers to an adverse judgment in a case in which the customers did not participate. See
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`Id. Indeed, any contrary result would have violated the most basic Fifth Amendment right to due
`process by depriving unrelated parties their day in court. PersonalWeb, however, is in the opposite
`position. PersonalWeb had its day in court and chose to surrender its claims because it could not
`win, or, as PersonalWeb crassly admits, the prospective spoils were deemed too small. (See
`Bermeister Decl. ¶ 5.) Amazon’s customers, by contrast, assert defensive claim preclusion against
`a familiar loser, not offensive claim preclusion against a stranger. It is this distinction that explains
`the Federal Circuit’s holding that “a lesser degree of privity is required for a new defendant to
`benefit from claim preclusion than for a plaintiff to bind a new defendant in a later action.” Mars,
`58 F.3d at 619 (quoting Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 966 (3d Cir. 1991)).
`Transclean, therefore, is inapposite, as is the section of Wright & Miller on which PersonalWeb
`heavily relies. That section, which does not even address indemnification, simply states the unre-
`markable proposition that parties on opposite sides of a contract typically cannot bind each other
`to an adverse result obtained by one party in litigation with others. 18A Fed. Prac. & Proc. Juris.
`§ 4460 (2d ed.). Here, Amazon does not seek to bind its customers to an adverse result; it seeks to
`bind PersonalWeb to the result to which it stipulated in the Texas case.
`PersonalWeb’s attempt to distinguish the closely analogous Adaptix case, which, like here,
`dealt with the defensive use of claim preclusion by a winner’s customers, is unpersuasive. There,
`Judge Grewal explained that customers who use the accused products have a “sufficient common-
`ality of interest” with the suppliers of the accused technology to reap the defensive benefit of claim
`preclusion. Adaptix, Inc., 2015 WL 4999944, at *6. PersonalWeb argues, however, that privity
`existed only because “the customer at issue in the later action had been known to the patentee during
`the patentee’s prior action against the supplier, and the patentee knew the customer was infringing
`the same technology at issue in the prior action.” (Opp. at 8.) That is untrue. In Adaptix, the
`customers in the second case were not known to the patentee even at the time of the second suit,
`which is why they were named as Doe Defendants. Nevertheless, Judge Grewal held that privity
`existed because “Adaptix was fully aware that customers like the John Does existed, were in pos-
`session of the allegedly infringing devices, and were operating those devices on carrier Defendants’
`LTE networks.” Adaptix, 2015 WL 4999944, at *6 (emphasis added). The same is true here.
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`PersonalWeb was fully aware in the Texas case that Amazon customers were using S3 and even
`accused Amazon customers of directly infringing in support of its indirect infringement theories.
`(Shamilov Reply Decl., Ex. 15 ¶ 48 (accusing Amazon customers as “direct infringers of the Pa-
`tents-in-Suit”).) Just as the Doe Defendants were in privity with their supplier in Adaptix for pur-
`poses of defensive claim preclusion, Amazon’s customers are in privity with Amazon and are pro-
`tected by the final judgment in Texas.
`
`F.
`
`PersonalWeb Misconstrues the Scope, Intent and Legal Significance of
`Amazon’s Agreement to Indemnify its Customers.
`PersonalWeb argues that Amazon somehow concocted a post-hoc, “two-step” scheme to
`modify its customer agreement solely to defeat PersonalWeb’s infringement claims. (Opp. at 9-
`10.) But it is undisputed that the AWS customer agreement has included an indemnification pro-
`vision since June 2017. (Dkt. No. 340-17 at 7-8.) That obligation applies to “any third-party claim”
`made after June 2017 and alleging that Amazon’s products, including S3, “infringe[] or misappro-
`priate[] that third-party’s intellectual property rights.” (Id.) PersonalWeb started suing Amazon’s
`customers six months later, or in January 2018. As Amazon’s corporate representative explained
`during his deposition, after PersonalWeb filed its complaints,
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`(Shamilov Reply Decl., Ex. 22 (Dean Depo Tr.) at 118:12-21
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`, especially in view of the AWS customer agreement, not some nefarious scheme con-
`ducted solely to deprive PersonalWeb of yet another day in court on the same claims.
`PersonalWeb cites no authority requiring that an indemnification obligation must exist at
`the time of the alleged acts of infringement as opposed to when a claim is asserted. Nor would
`such a requirement make sense. As Wright & Miller explains, it is the obligation to indemnify at
`the time of the second suit that justifies the extension of claim preclusion to indemnified customers:
`
`[A] denial of preclusion would force an impossible choice between unacceptable
`alternatives. If a second action can be maintained against the indemnitee, either
`the indemnitee must be allowed to assert his right of indemnification or the right
`must be defeated by the judgment in favor of the indemnitor. To allow the right
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`of indemnification would be to destroy the victory won by the indemnitor in the
`first action. To deny the right of indemnification would be to destroy the indem-
`nitee’s right by the result of an action in which he took no part. It is far better to
`preclude the third person, who has already had one opportunity to litigate, and who
`often could have joined both adversaries in the first action.
`18A Fed. Prac. & Proc. Juris. § 4463 (2d ed.). In other words, if the customer suit is not barred,
`either the supplier would be forced to indemnify, requiring the supplier to relitigate claims it already
`won and effectively destroying its judgment right, or the customer would be denied the right of
`indemnification provided in its agreement with the supplier. Neither outcome makes sense. And
`yet none of this is even relevant to this dispute. Even if a party has no obligation to indemnify its
`customers for acts of infringement—whenever asserted—and even if a party indemnifies its cus-
`tomers only after a case is filed, claim preclusion would still apply according to the Supreme Court
`in Kessler, where Mr. Kessler had no obligation to defend his customers, but stepped in to do so
`anyway, but not until after his customers were sued. Kessler v. Eldred, 206 U.S. 285, 286, 290
`(1907). PersonalWeb’s arguments about the scope and intent of Amazon’s agreement to indemnify
`its customers are therefore immaterial to this motion. What matters is that Amazon is indemnifying
`its customers, a fact that PersonalWeb nowhere disputes.
`
`G.
`
`PersonalWeb Misconstrues the “Combinations” Exclusion
` in the AWS Customer Agreement.
`The fact that the AWS customer agreement provides that Amazon need not indemnify cus-
`tomers against claims based on the “combination” of AWS services with third-party products or
`services is irrelevant. Even after subdividing its infringement theory into four sub-categories, Per-
`sonalWeb admits that at least one category (“Category 3”) is limited solely to S3. (Opp. at 2.)
`PersonalWeb admits also that this “Category 3” theory is asserted against Amazon and 61 customer
`defendants. (Dkt. No. 295.)
`
`H.
`
`PersonalWeb’s Argument About AWS CloudFront is Contradicted By
`Its Own Pleadings and Barred by the Rules of Standing in Patent Cases.
`AWS CloudFront is a content delivery network—this is undisputed. (Opp. at 4.) Person-
`alWeb is correct that AWS CloudFront was not at issue in Texas. And it is not at issue in this case,
`either. It is not named in any of PersonalWeb’s complaints. Better yet, it is categorically excluded.
`In each complaint, PersonalWeb affirmatively alleges that it does not assert any claims against any
`
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`content delivery networks (CDNs), which by definition excludes CloudFront.
`Until it served its infringement contentions in late October 2018, PersonalWeb had been
`true to its word. The only Amazon technology PersonalWeb had accused was Amazon S3. In its
`initial complaints against Amazon’s customers, PersonalWeb alleged that they infringe based on
`their use of the “Amazon S3 host[ing] system.” (See, e.g., Shamilov Reply Decl., Ex. 23 (Airbnb
`Compl.) ¶¶ 21-22, 56, 74.) In its answer to Amazon’s declaratory judgment complaint, Personal-
`Web stated that its infringement allegations against the Amazon’s customers are based on “their
`use or incorporation of certain aspects of S3.” (Case No. 5:18-cv-00767 (“DJ Action”), Dkt. No.
`62 (Answer) at ¶¶ 16, 50, 58, 66, 74, 82.) And in its amended counterclaims against Amazon,
`PersonalWeb again specifically accused S3. (See id., Dkt. No. 71 ¶ 22.) It told the same to the
`MDL panel. In re PersonalWeb Tech., LLC and Level 3 Comm’cns, LLC Pat. Litig., Case MDL
`No. 2834, Dkt. No. 1-1 at 7 (Feb. 27, 2018) (arguing for centralization by arguing that “[e]ach
`defendant” infringed by “using the same S3 host system”). Even after PersonalWeb subdivided its
`infringement theory into “four sub-categories,” it did not identify any Amazon service other than
`S3 as purportedly infringing its patents. (See Case No. 18-md-2834, Dkt. No. 96 (Preliminary CMC
`Statement).) It repeatedly told this Court, on numerous occasions, that the Amazon technology that
`it accuses is Amazon S3. PersonalWeb never once mentioned CloudFront in any of its numerous
`submissions to the Court—not in any of its 100+ complaints, its motion to dismiss, or in two dif-
`ferent joint case management statements—before it filed its opposition to this motion.
`And for good reason. PersonalWeb’s right to assert the patents-in-suits