Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 1 of 8
`
`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 PersonalWeb Technologies, LLC
`and Level 3 Communications, LLC
`[Additional Attorneys listed below]
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`IN RE PERSONALWEB TECHNOLOGIES,
`LLC, ET., AL., PATENT LITIGATION
`
`CASE NO.: 5:18-md-02834-BLF
`
`AMAZON.COM, INC., et., al.,
`
`Case No.: 5:18-cv-00767-BLF
`
` Plaintiffs,
`
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC,
`et., al.,
`
` Defendants.
`
`PERSONALWEB TECHNOLOGIES, LLC
`and LEVEL 3 COMMUNICATIONS, LLC,
`
`Counterclaimants,
`
`v.
`
`AMAZON.COM, INC. and AMAZON WEB
`SERVICES, INC.,
`
`DECLARATION OF SANDEEP SETH IN
`SUPPORT OF PERSONALWEB’S
`ADMINISTRATIVE MOTION FOR
`RELIEF TO FILE A SUR-REPLY TO
`AMAZON.COM, INC., AND AMAZON
`WEB SERVICES, INC.’S MOTION FOR
`SUMMARY JUDGMENT ON
`DECLARATORY JUDGMENT CLAIMS
`AND DEFENSES UNDER THE CLAIM
`PRECLUSION AND KESSLER
`DOCTRINES
`
`February 7, 2019
`Date:
`2:00PM
`Time:
`Dept.: Courtroom 3, 5th Floor
`Judge: Hon. Beth L. Freeman
`
`Counterdefendants.
`
`Trial Date: March 16, 2020
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`4814-4796-0198
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`DECLARATION OF SANDEEP SETH ISO
`PWEB’S ADMINISTRATIVE MOTION
`FOR RELIEF TO FILE A SUR-REPLY
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 2 of 8
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`DECLARATION OF SANDEEP SETH
`
`I, Sandeep Seth, declare as follows:
`
`1.
`
`2.
`
`I am over the age of 18 and competent to make this declaration.
`
`I am Of Counsel at Stubbs Alderton & Markiles, LLP in connection with the firm’s
`
`representation of Plaintiffs PersonalWeb Technologies, LLC (“PersonalWeb”) and Level 3
`
`Communications, LLC (“Level 3”) (collectively, “PersonalWeb”). The facts herein are, unless
`
`otherwise stated, based upon personal knowledge, and if called upon to do so, I could, and would
`
`testify to their truth under oath. I submit this declaration in support of PersonalWeb’s Administrative
`
`Motion for Relief to File a Sur-Reply to Amazon.Com, Inc., and Amazon Web Services, Inc.’s
`
`(collectively, “Amazon”) Motion for Summary Judgment on Declaratory Judgment Claims and
`
`Defenses Under The Claim Preclusion And Kessler Doctrines.
`
`3.
`
`On November 21 and 26, 2018, I and my co-counsel Ted Maceiko met and conferred
`
`with Phil Haack and Melanie Mayer, counsel for Amazon, regarding PersonalWeb’s discovery
`
`requests, including production requests that specifically focused on and sought information relating to
`
`CloudFront. Both before and after those meet and confers, Amazon produced CloudFront discovery.
`
`While it objected on other grounds, Amazon never raised a lack of standing issue regarding CloudFront
`
`as a basis to refuse to provide CloudFront discovery in either its responses to PersonalWeb’s discovery
`
`requests or in any of the parties’ interactions and exchanges.
`
`4.
`
`Attached as Exhibit 1 is a true and correct copy of the Sur-Reply that PersonalWeb
`
`respectfully requests to file in response to Amazon’s Reply because Amazon asserts for the first time
`
`in its Reply (Dkt. 350 at pp. 8-10, Section H) that PersonalWeb does not having standing to assert
`
`infringement regarding CloudFront.
`
`5.
`
`On January 31, 2019, my office emailed Amazon’s counsel asking Amazon to stipulate
`
`to PersonalWeb’s filing of a sur-reply on the ground that Amazon raised, for the first time, an issue of
`
`standing in its Reply, or to agree to withdraw Section H from its Reply. On January 31, 2019 Amazon
`
`responded that it refused to stipulate or withdraw its new argument, suggested PersonalWeb to file
`
`this administrative motion for relief to file a sur-reply and indicated in its email response that intends
`
`to oppose this administrative motion.
`
`4814-4796-0198
`
`DECLARATION OF SANDEEP SETH ISO
`PWEB’S ADMINISTRATIVE MOTION
`FOR RELIEF TO FILE A SUR-REPLY
`
`1
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 3 of 8
`
`I declare under penalty of perjury under the laws of the United States that the foregoing is
`
`true and correct.
`
`Executed this 31st day of January, 2019 in Los Angeles, California.
`
`/s/Sandeep Seth
`Sandeep Seth
`
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`4814-4796-0198
`
`DECLARATION OF SANDEEP SETH ISO
`PWEB’S ADMINISTRATIVE MOTION
`FOR RELIEF TO FILE A SUR-REPLY
`
`2
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 4 of 8
`Case 5:18-md-02834—BLF Document 354-1 Filed 01/31/19 Page 4 of 8
`
`EXHIBIT 1
`EXHIBIT 1
`
`

`

`Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 5 of 8
`
`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 PersonalWeb Technologies, LLC
`and Level 3 Communications, LLC
`[Additional Attorneys listed below]
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`IN RE PERSONALWEB TECHNOLOGIES,
`LLC, ET AL., PATENT LITIGATION
`
`CASE NO.: 5:18-md-02834-BLF
`
`AMAZON.COM, INC., et al.,
`
` Plaintiffs,
`
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC, et
`al.,
`
` Defendants.
`
`PERSONALWEB TECHNOLOGIES, LLC
`and LEVEL 3 COMMUNICATIONS, LLC,
`
`Counterclaimants,
`
`v.
`
`AMAZON.COM, INC. and AMAZON WEB
`SERVICES, INC.,
`
`Counterdefendants.
`
`Case No.: 5:18-cv-00767-BLF
`
`PERSONALWEB TECHNOLOGIES, LLC
`AND LEVEL 3 COMMUNICATIONS,
`LLC’S SUR-REPLY TO AMAZON.COM,
`INC., AND AMAZON WEB SERVICES,
`INC.’S REPLY IN SUPPORT OF
`MOTION FOR SUMMARY JUDGMENT
`ON DECLARATORY JUDGMENT
`CLAIMS AND DEFENSES UNDER THE
`CLAIM PRECLUSION AND KESSLER
`DOCTRINES
`
`February 7, 2019
`Date:
`2:00PM
`Time:
`Dept.: Courtroom 3, 5th Floor
`Judge: Hon. Beth L. Freeman
`
`Trial Date: March 16, 2020
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`4818-1581-2998
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`PWEB AND LEVEL 3’S
`SUR-REPLY
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 6 of 8
`
`Amazon asserts for the first time in its Reply (Dkt. 350 at 8-10, Section H) that PersonalWeb
`
`does not having standing to assert infringement regarding CloudFront. It is improper for Amazon to
`
`first raise this issue in its Reply rather than its initial Motion. Zamani v. Carnes, 491 F.3d 990, 997
`
`(9th Cir, 2007) (“the district court need not consider arguments raised for the first time in a reply
`
`brief”). Amazon’s new argument is that PersonalWeb’s complaint “affirmatively alleges that it does
`
`not assert any claims against any content delivery networks (CDNs), which by definition excludes
`
`CloudFront” and that it therefore is “barred by the rules of standing.” Reply at 8:24; 8:28-9:1
`
`(emphasis in original). This is incorrect.
`
`While Amazon does not explain where in the complaints PersonalWeb supposedly makes this
`
`“affirmative allegation,” Amazon does raise the issue of the scope of PersonalWeb’s exclusive field
`
`of use versus that of Level 3. See, e.g., Amended Counterclaim, Dkt. 71, ¶ 3. Specifically, Amazon
`
`argues that Level 3’s exclusive field of use is “the infrastructure services of one or more managed
`
`global content delivery networks (CDNs).” Id. at 9:24-25. Amazon, however, omits the bulk of the
`
`definition of Level 3’s Exclusive Field from the agreement. The unabridged definition of Level 3’s
`
`Exclusive Field in the agreement is:
`
`the infrastructure services of one or more managed global content delivery networks
`
`(CDNs) in which a customer’s content is served faster, on average, than if served from
`
`the customer’s origin server or the CDN can typically serve more users than a
`
`customer’s origin server alone; where at least some customer content on origin servers
`
`is replicated to possibly many alternate servers of the CDN, many of said CDN servers
`
`being at ISP sites, and where users’ requests for origin content are satisfied by
`
`directing them to CDN servers.
`
`Shamilov Reply Decl., Ex. 24, PERSONALWEB006814 (Kinetech-Digital Island Agreement,
`
`Schedule 1.2) (emphasis added).
`
`As Level 3 is an ISP (Internet Service Provider), its Exclusive Field does not extend generically
`
`to all CDNs, as argued by Amazon, but is expressly limited to CDNs deployed at ISPs (“many of said
`
`CDN servers being at ISP sites”). This limitation is critical because no evidence is presented that
`
`CloudFront operates as an ISP. Further, to PersonalWeb’s knowledge, none of CloudFront “CDN
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`4818-1581-2998
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`PWEB AND LEVEL 3’S
`SUR-REPLY
`
`1
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 7 of 8
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`servers” are “at ISP sites,” much less “many.” Amazon has submitted no evidence covering any of
`
`these issues.
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`As a factually unsupported and incorrect predicate to its argument, Amazon’s position is that
`
`it did not timely have notice of PersonalWeb’s claims as related to CloudFront infringement.
`
`PersonalWeb’s infringement contentions were served in October 29, 2018. Amazon’s argument is
`
`puzzling because it is exactly in these infringement contentions under Patent L.R. 3-1(b) where a
`
`patent owner is supposed to disclose the “Accused Instrumentality” of the alleged infringement. Such
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`an identification would not be needed if it was required to be in a complaint for patent infringement.
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`In any case, PersonalWeb’s complaints and counterclaims have explicitly included the role of
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`“intermediate cache servers” in the alleged infringement, which is precisely the CloudFront
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`functionality at issue here. See, e.g., PersonalWeb’s Answer and Counterclaim, ¶¶ 27, 32, 37, 39, 42,
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`49, 56, 57, 65. In PersonalWeb’s infringement contentions CloudFront is a specific Accused
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`Instrumentality that performs functions ascribed to “intermediate cache servers” as alleged in the
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`counterclaim.
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`Amazon’s Motion was filed on November 28, 2018. As with the timely service of the
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`infringement contentions accusing CloudFront, the parties met and conferred on November 21 and 26,
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`2018 on PersonalWeb discovery that specifically focused on CloudFront. Those meet and confers
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`resulted in Amazon providing certain discovery on CloudFront, and Amazon never once raised a lack
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`of standing issue regarding CloudFront in any of these interactions and exchanges as a basis to refuse
`
`to produce discovery. (Seth Decl. ¶ 3.)
`
`Amazon provides no explanation as to why its standing argument could not have been raised
`
`in its moving papers, or earlier, or that PersonalWeb’s arguments in its Opposition regarding
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`CloudFront were reasonably unforeseen.
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`Finally, Amazon incorrectly asserts that “PersonalWeb never once mentioned CloudFront in
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`any of its numerous submissions to the Court ….” Reply at 9:17-19. This is not true. For example, on
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`March 23, 2018, in support of its opposition to Amazon’s motion to enjoin, PersonalWeb filed the
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`declaration of Dr. Samuel H. Russ [Dkt. 37-2] in which he discusses his infringement analysis of
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`“website owner/operators that choose to have their website files hosted and served by Amazon through
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`4818-1581-2998
`
`PWEB AND LEVEL 3’S
`SUR-REPLY
`
`2
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 354-1 Filed 01/31/19 Page 8 of 8
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`their S3 servers (including those in the Amazon’s Cloudfront network)….” Id. at ¶ 5. Through the
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`remainder of Dr. Russ’ declaration, he describes aspects of the operation of “S3/Cloudfront” networks,
`
`systems, and servers six more times. Id.
`
`Dated: January 31, 2019
`
`STUBBS, ALDERTON & MARKILES, LLP
`
`By: /s/ Wesley W. Monroe
`Wesley W. Monroe
`Michael A. Sherman
`Sandeep Seth
`Jeffrey F. Gersh
`Stanley H. Thompson, Jr.
`Viviana Boero Hedrick
`
`Attorneys for PersonalWeb Technologies, LLC
`and Level 3 Communications, LLC
`
`Dated: January 31, 2019
`
`MACEIKO IP
`
`By: /s/ Theodore S. Maceiko
`Theodore S. Maceiko (SBN 150211)
`ted@maceikoip.com
`MACEIKO IP
`420 2nd Street
`Manhattan Beach, California 90266
`Telephone:
`(310) 545-3311
`Facsimile:
`(310) 545-3344
`
`Attorney for Plaintiff
`PERSONALWEB TECHNOLOGIES, LLC
`
`Dated: January 31, 2019
`
`DAVID D. WIER
`
`By: /s/ David D. Wier
`David D. Wier
`david.wier@level3.com
`Vice President and Assistant General Counsel
`Level 3 Communications, LLC
`1025 Eldorado Boulevard
`Broomfield, CO 80021
`Telephone: (720) 888-3539
`
`Attorney for Plaintiff
`LEVEL 3 COMMUNICATIONS, LLC
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`4818-1581-2998
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`PWEB AND LEVEL 3’S
`SUR-REPLY
`
`3
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-00767-BLF
`
`