Case 5:18-md-02834-BLF Document 405 Filed 04/12/19 Page 1 of 13
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`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
`
`
`J. DAVID HADDEN (CSB No. 176148)
`dhadden@fenwick.com
`SAINA S. SHAMILOV (CSB No. 215636)
`sshamilov@fenwick.com
`MELANIE L. MAYER (admitted pro hac vice)
`mmayer@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
`
`Attorneys for AMAZON.COM, INC. and
`AMAZON WEB SERVICES, INC.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`IN RE: PERSONALWEB TECHNOLOGIES,
`LLC ET AL., PATENT LITIGATION
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
`v.
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
` Case No. 5:18-md-02834-BLF
`
` Case No.: 5:18-cv-00767-BLF
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`JOINT STATEMENT RE
`RESOLUTION OF CUSTOMER
`CASES PER SUMMARY JUDGMENT
`ORDER
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`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
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`5:18-cv-00767-BLF
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`Amazon’s Statement
`The question the Court asked the parties to answer is which cases in the MDL are “fully
`adjudicated” by the summary judgment order (Dkt. 384). The parties agree that eight customer
`cases are fully adjudicated:
`• PersonalWeb Technologies, LLC et al. v. Patreon, Inc., No. 5:18-cv-05599;
`• PersonalWeb Technologies, LLC et al. v. Dictionary.com, LLC, No. 5:18-cv-05606;
`• PersonalWeb Technologies, LLC et al. v. Vox Media, Inc., No. 5:18-cv-05969;
`• PersonalWeb Technologies, LLC et al. v. Vice Media, LLC, No. 5:18-cv-05970;
`• PersonalWeb Technologies, LLC et al. v. Oath Inc., No. 5:18-cv-06044;
`• PersonalWeb Technologies, LLC et al. v. Buzzfeed Inc., No. 5:18-cv-06046;
`• PersonalWeb Technologies, LLC et al. v. Popsugar, Inc., No. 5:18-cv-06612; and
`• PersonalWeb Technologies, LLC et al. v. Ziff Davis, LLC, No. 5:18-cv-07119.
`PersonalWeb’s claims against these customers alleged infringement only by Amazon S3, and it has
`no evidence that any of these customers ever used CloudFront. The Court’s summary judgment
`order therefore fully and finally adjudicated all claims in these cases, and those Amazon customers
`are entitled to judgment in their favor.
`The parties dispute whether two additional cases are fully adjudicated:
`• PersonalWeb Technologies, LLC et al. v. Fab Commerce & Design, Inc., No. 5:18-cv-
`05378; and
`• PersonalWeb Technologies, LLC et al. v. Zoom Video Communications Inc., No. 5:18-
`cv-05625.
`PersonalWeb repeatedly told the Court that these cases, like the eight above, involved “Only S3
`Related Activity” and would be “out” of the MDL if the Court granted Amazon’s claim preclu-
`sion/Kessler motion. Like the eight above, these cases are fully adjudicated.
`In September, PersonalWeb told this Court that Amazon’s declaratory judgment claim re-
`garding claim preclusion and the Kessler doctrine would resolve all of its infringement claims in
`what it called “Bucket 3”—claims related to S3. See Dkt. 121, Transcript of September 20, 2018
`Case Management Conference, at 31:16–17 (“The Amazon case would resolve all of the S3, what
`JOINT STATEMENT RE RESOLUTION OF
`5:18-md-02834-BLF
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`CUSTOMER CASES PER SUMMARY JUDGMENT
`5:18-cv-00767-BLF
`ORDER
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`we call Bucket 3 claims.”); id. at 33:8–14 (explaining that while categories 1, 2, and 4 would not
`be affected by Amazon’s declaratory judgment claim, “Category 3, if they wait [sic; win] on Kess-
`ler, category 3 is out”); id. at 13:16–18 (“The three categories, categories 1, 2, and 4, and the ʼ544
`infringement, are all outside of S3. Category 3 is within S3.”). And in both September and No-
`vember, PersonalWeb filed charts stating that its complaints alleged infringement due only to S3-
`related activity for all ten of the defendants listed above. See Ex. Dkt. 295, “Infringement Activity
`Categories Alleged in Operative Complaints and Counterclaim as of November 2, 2018,” at column
`titled “Only S3 Related Activity Alleged”; Dkt. 96-1, at column titled “Only S3 Related Activity
`Alleged.” That is, PersonalWeb told Amazon, the customer defendants, and this Court that it al-
`leged infringement by those ten customers based only on their use of S3, and that Amazon’s sum-
`mary judgment motion would resolve the claims in those cases. PersonalWeb should be held to the
`representations it made to this Court subject to Rule 11, in its operative pleadings and in its other
`filings and hearing statements characterizing the pleadings. See Icon-IP PTY Ltd. v. Specialized
`Bicycle Components, Inc., No. 13:cv-03677-JST, 2013 WL 10448869, at *3 (N.D. Cal. Oct. 22,
`2013) (binding plaintiff to prior factual statements regarding accused products); Am. Title Ins. Co.
`v. Lacelaw Corp., 862 F.2d 224, 226–7 (9th Cir. 1988) (explaining that statements of fact in plead-
`ings are binding judicial admissions, and those in other filings “may be considered admissions of
`the party in the discretion of the district court”).
`PersonalWeb now argues, with no evidentiary support and no reasonable basis, that the
`category it twice identified to the Court as “only S3 related” is—to the contrary—not only S3, but
`also includes CloudFront. Yet the “Operative Complaints” today are the same as they were when
`PersonalWeb made its prior representations. See Dkt. 295. CloudFront is not accused in any of
`the complaints; the term appears incidentally in an exhibit in the Fab and Zoom complaints that
`PersonalWeb offered to show purported infringement by S3. See, e.g., Dkt. No. 5:18-cv-05378,
`Dkt. 54 at 11, ¶ 47 (“The example in Exhibit 1 is an asset file served by S3 with a content-based
`ETag generated by S3 for that asset file.” (emphases added).) PersonalWeb’s suggestion that these
`complaints “explicitly alleged infringement” by CloudFront (p.11, below) is belied by a review of
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`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
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`Case 5:18-md-02834-BLF Document 405 Filed 04/12/19 Page 4 of 13
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`the actual documents.
`PersonalWeb is 15 months into its litigation campaign against Amazon’s customers and still
`has not settled on a theory. Whenever it has needed to explain its infringement allegations, Per-
`sonalWeb has changed its positions, showing itself willing to say anything to keep Amazon’s cus-
`tomers in the case. But patent litigation is not a fishing expedition in which the plaintiff can swap
`its infringement theory each time it fails to get a bite. See, e.g., Phigenix, Inc. v. Genentech, Inc.,
`No. 15-cv-01238-BLF, 2018 WL 3845998, at *7 (N.D. Cal. Aug. 13, 2018) (finding case excep-
`tional under § 285 in part because of “litigant’s unreasonable manner in shifting theories of in-
`fringement”); Kilopass Tech. Inc. v. Sidense Corp., No. 10-cv-02066-SI, 2014 WL 3956793, at
`*13–14 (N.D. Cal. Aug. 12, 2014) (finding case exceptional where plaintiff presented three differ-
`ent baseless infringement theories over the course of the case). Fab and Zoom are entitled to and
`should receive the same judgment in their favor as the other eight customers.
`Finally, the summary judgment order disposes of all claims in the following cases that are
`part of the MDL in which PersonalWeb has alleged that any claim of the asserted patents is met by
`S3 (these cases do include infringement allegations which the summary judgment order did not
`fully resolve):
`• PersonalWeb Technologies, LLC et al. v. Airbnb, Inc., No. 5:18-cv-00149;
`
`• PersonalWeb Technologies, LLC et al. v. Amicus FTW, Inc., No. 5:18-cv-00150;
`
`• PersonalWeb Technologies, LLC et al. v. Atlassian, Inc., No. 5:18-cv-00154;
`
`• PersonalWeb Technologies, LLC et al. v. Cloud 66, Inc., No. 5:18-cv-00155;
`
`• PersonalWeb Technologies, LLC et al. v. Curebit, Inc., No. 5:18-cv-00156;
`
`• PersonalWeb Technologies, LLC et al. v. Fandor, Inc., No. 5:18-cv-00159;
`
`• PersonalWeb Technologies, LLC et al. v. Goldbely, Inc., No. 5:18-cv-00160;
`
`• PersonalWeb Technologies, LLC et al. v. GoPro, Inc., No. 5:18-cv-00161;
`
`• PersonalWeb Technologies, LLC et al. v. Heroku, Inc., No. 5:18-cv-00162;
`
`• PersonalWeb Technologies, LLC et al. v. Quotient Technology, Inc., No. 5:18-cv-
`00169;
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`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
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`Case 5:18-md-02834-BLF Document 405 Filed 04/12/19 Page 5 of 13
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`• PersonalWeb Technologies, LLC et al. v. Reddit, Inc., No. 5:18-cv-00170;
`
`• PersonalWeb Technologies, LLC et al. v. Roblox Corp., No. 5:18-cv-00171;
`
`• PersonalWeb Technologies, LLC et al. v. Stitchfix, Inc., No. 5:18-cv-00173;
`
`• PersonalWeb Technologies, LLC et al. v. Teespring, Inc., No. 5:18-cv-00175;
`
`• PersonalWeb Technologies, LLC et al. v. Tophatter, inc., No. 5:18-cv-00176;
`
`• PersonalWeb Technologies, LLC et al. v. Venmo, Inc., No. 5:18-cv-00177;
`
`• PersonalWeb Technologies, LLC et al. v. Webflow, Inc., No. 5:18-cv-00178;
`
`• PersonalWeb Technologies, LLC et al. v. Square, Inc., No. 5:18-cv-00183;
`
`• PersonalWeb Technologies, LLC et al. v. Spokeo, Inc., No. 5:18-cv-02140;
`
`• PersonalWeb Technologies, LLC et al. v. Lesson Nine GMBH, No. 5:18-cv-03453;
`
`• PersonalWeb Technologies, LLC et al. v. Karma Mobility Inc., No. 5:18-cv-03459;
`
`• PersonalWeb Technologies, LLC et al. v. Match Group, LLC et al., No. 5:18-cv-03462;
`
`• PersonalWeb Technologies, LLC et al. v. WeddingWire, Inc., No. 5:18-cv-03463;
`
`• PersonalWeb Technologies, LLC et al. v. BDG Media Inc. et al., No. 5:18-cv-03571;
`
`• PersonalWeb Technologies, LLC et al. v. Blue Apron, LLC, No. 5:18-cv-03573;
`
`• PersonalWeb Technologies, LLC et al. v. Centaur Media USA, Inc. et al., No. 5:18-cv-
`03577;
`• PersonalWeb Technologies, LLC et al. v. Food52, Inc., No. 5:18-cv-03579;
`
`• PersonalWeb Technologies, LLC et al. v. Panjiva, Inc., No. 5:18-cv-03580;
`
`• PersonalWeb Technologies, LLC et al. v. FanDuel Inc. et al., No. 5:18-cv-03582;
`
`• PersonalWeb Technologies, LLC et al. v. RocketHub, Inc. et al., No. 5:18-cv-03583;
`
`• PersonalWeb Technologies, LLC et al. v. Spongecell, Inc., No. 5:18-cv-03584;
`
`• PersonalWeb Technologies, LLC et al. v. Kickstarter, PBC, No. 5:18-cv-03997;
`
`• PersonalWeb Technologies, LLC et al. v. Cloud Warmer Inc., No. 5:18-cv-03998;
`
`• PersonalWeb Technologies, LLC et al. v. Strava, Inc., No. 5:18-cv-04627;
`
`• PersonalWeb Technologies, LLC et al. v. Peek Travel, Inc., No. 5:18-cv-04628;
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`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
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`• PersonalWeb Technologies, LLC et al. v. Curious.com, Inc., No. 5:18-cv-05198;
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`• PersonalWeb Technologies, LLC et al. v. NRT LLC et al., No. 5:18-cv-05201;
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`• PersonalWeb Technologies, LLC et al. v. ShareFile LLC, No. 5:18-cv-05202;
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`• PersonalWeb Technologies, LLC et al. v. StartDate Labs, Inc., No. 5:18-cv-05203;
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`• PersonalWeb Technologies, LLC et al. v. Tastytrade, Inc., No. 5:18-cv-05204;
`
`• PersonalWeb Technologies, LLC et al. v. Valassis Communications, Inc., No. 5:18-cv-
`05206;
`• PersonalWeb Technologies, LLC et al. v. Wework Companies Inc., No. 5:18-cv-05272;
`
`• PersonalWeb Technologies, LLC et al. v. Brooklyn Brewery Corp., No. 5:18-cv-05436;
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`• PersonalWeb Technologies, LLC et al. v. Goodreads LLC, No. 5:18-cv-05595;
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`• PersonalWeb Technologies, LLC et al. v. Slack Technologies, Inc., No. 5:18-cv-05600;
`
`• PersonalWeb Technologies, LLC et al. v. Twitch Interative, Inc., No. 5:18-cv-05619;
`
`• PersonalWeb Technologies, LLC et al. v. Upwork Global Inc., No. 5:18-cv-05624;
`
`• PersonalWeb Technologies, LLC et al. v. RetailMeNot, Inc., No. 5:18-cv-05966;
`
`• PersonalWeb Technologies, LLC et al. v. Vimeo, Inc., No. 5:18-cv-06042;
`
`• PersonalWeb Technologies, LLC et al. v. Trello, Inc., No. 5:18-cv-06043;
`
`• PersonalWeb Technologies, LLC et al. v. Optimizely, Inc., No. 5:18-cv-06614; and
`
`• PersonalWeb Technologies, LLC et al. v. Hootsuite Inc., No. 5:18-cv-06615.
`PersonalWeb’s Statement
`In its Order Granting In Part and Denying in Part Amazon’s Motion for Summary Judge-
`ment (the “summary judgment order”) the Court ruled that PersonalWeb’s infringement allegations
`“in which a feature or operation of S3 is alleged to infringe any claim of the patents-in-suit” were
`barred against Amazon and its customers by claim preclusion and under the Kessler doctrine. (Dkt.
`394 at 26, ¶ 2 and 27, ¶ 3 (“MSJ Order”.) The Court also ruled that “Amazon’s requested relief to
`preclude assertion that S3 meets any limitation of any claim of the patent-in-suit is denied as beyond
`the scope of the motion” and that “Amazon’s motion for summary judgment related to CloudFront
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`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
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`was denied without prejudice.” (Id. at 27, ¶¶ 5, 3). The Court further ordered the Parties to “advise
`the Court as to which customer cases are fully adjudicated by this Order, and which claims of the
`remaining cases are fully adjudicated regarding accused S3.” (Id. at ¶ 6.)
`Accordingly, PersonalWeb advises the Court that the following customer cases are fully
`adjudicated by the summary judgement order:
`• PersonalWeb Technologies, LLC et al. v. Patreon, Inc., No. 5:18-cv-05599;
`• PersonalWeb Technologies, LLC et al. v. Dictionary.com, LLC, No. 5:18-cv-05606;
`• PersonalWeb Technologies, LLC et al. v. Vox Media, Inc., No. 5:18-cv-05969;
`• PersonalWeb Technologies, LLC et al. v. Vice Media, LLC, No. 5:18-cv-05970;
`• PersonalWeb Technologies, LLC et al. v. Oath Inc., No. 5:18-cv-06044;
`• PersonalWeb Technologies, LLC et al. v. Buzzfeed Inc., No. 5:18-cv-06046;
`• PersonalWeb Technologies, LLC et al. v. Popsugar, Inc., No. 5:18-cv-06612; and
`• PersonalWeb Technologies, LLC et al. v. Ziff Davis, LLC, No. 5:18-cv-07119.
`PersonalWeb also advises the Court that claims in the following cases are fully adjudicated
`regarding “accused S3” (Id.), but which also include claims that the summary judgment order did
`not fully resolve because each allege claims beyond the “use or operation of S3” “in which a feature
`or operation of S3 is alleged to infringe any claim [of the patents-in-suit]” (Id. at 26:27) (e.g., Cat-
`egories 1, 2 and 4, as well as in certain instances, CloudFront):
`• PersonalWeb Technologies, LLC et al. v. Airbnb, Inc., No. 5:18-cv-00149;
`• PersonalWeb Technologies, LLC et al. v. Amicus FTW, Inc., No. 5:18-cv-00150;
`• PersonalWeb Technologies, LLC et al. v. Atlassian, Inc., No. 5:18-cv-00154 (CF);
`• PersonalWeb Technologies, LLC et al. v. Cloud 66, Inc., No. 5:18-cv-00155;
`• PersonalWeb Technologies, LLC et al. v. Curebit, Inc., No. 5:18-cv-00156 (CF);
`• PersonalWeb Technologies, LLC et al. v. Fandor, Inc., No. 5:18-cv-00159 (CF);
`• PersonalWeb Technologies, LLC et al. v. Goldbely, Inc., No. 5:18-cv-00160 (CF);
`• PersonalWeb Technologies, LLC et al. v. GoPro, Inc., No. 5:18-cv-00161;
`• PersonalWeb Technologies, LLC et al. v. Heroku, Inc., No. 5:18-cv-00162 (CF);
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`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
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`• PersonalWeb Technologies, LLC et al. v. Quotient Technology, Inc., No. 5:18-cv-
`00169;
`• PersonalWeb Technologies, LLC et al. v. Reddit, Inc., No. 5:18-cv-00170;
`• PersonalWeb Technologies, LLC et al. v. Roblox Corp., No. 5:18-cv-00171;
`• PersonalWeb Technologies, LLC et al. v. Stitchfix, Inc., No. 5:18-cv-00173 (CF);
`• PersonalWeb Technologies, LLC et al. v. Teespring, Inc., No. 5:18-cv-00175 (CF);
`• PersonalWeb Technologies, LLC et al. v. Tophatter, Inc., No. 5:18-cv-00176 (CF);
`• PersonalWeb Technologies, LLC et al. v. Venmo, Inc., No. 5:18-cv-00177;
`• PersonalWeb Technologies, LLC et al. v. Webflow, Inc., No. 5:18-cv-00178 (CF);
`• PersonalWeb Technologies, LLC et al. v. Square, Inc., No. 5:18-cv-00183 (CF);
`• PersonalWeb Technologies, LLC et al. v. Spokeo, Inc., No. 5:18-cv-02140 (CF);
`• PersonalWeb Technologies, LLC et al. v. Lesson Nine GMBH, No. 5:18-cv-03453 (CF);
`• PersonalWeb Technologies, LLC et al. v. Karma Mobility Inc., No. 5:18-cv-03459 (CF);
`• PersonalWeb Technologies, LLC et al. v. Match Group, LLC et al., No. 5:18-cv-03462
`(CF);
`• PersonalWeb Technologies, LLC et al. v. WeddingWire, Inc., No. 5:18-cv-03463;
`• PersonalWeb Technologies, LLC et al. v. BDG Media Inc. et al., No. 5:18-cv-03571;
`• PersonalWeb Technologies, LLC et al. v. Blue Apron, LLC, No. 5:18-cv-03573;
`• PersonalWeb Technologies, LLC et al. v. Centaur Media USA, Inc. et al., No. 5:18-cv-
`03577;
`• PersonalWeb Technologies, LLC et al. v. Food52, Inc., No. 5:18-cv-03579;
`• PersonalWeb Technologies, LLC et al. v. Panjiva, Inc., No. 5:18-cv-03580 (CF);
`• PersonalWeb Technologies, LLC et al. v. FanDuel Inc. et al., No. 5:18-cv-03582;
`• PersonalWeb Technologies, LLC et al. v. RocketHub, Inc. et al., No. 5:18-cv-03583
`(CF);
`• PersonalWeb Technologies, LLC et al. v. Spongecell, Inc., No. 5:18-cv-03584 (CF);
`• PersonalWeb Technologies, LLC et al. v. Kickstarter, PBC, No. 5:18-cv-03997;
`
`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
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`• PersonalWeb Technologies, LLC et al. v. Cloud Warmer Inc., No. 5:18-cv-03998 (CF);
`• PersonalWeb Technologies, LLC et al. v. Strava, Inc., No. 5:18-cv-04627;
`• PersonalWeb Technologies, LLC et al. v. Peek Travel, Inc., No. 5:18-cv-04628;
`• PersonalWeb Technologies, LLC et al. v. Curious.com, Inc., No. 5:18-cv-05198 (CF);
`• PersonalWeb Technologies, LLC et al. v. NRT LLC et al., No. 5:18-cv-05201;
`• PersonalWeb Technologies, LLC et al. v. ShareFile LLC, No. 5:18-cv-05202;
`• PersonalWeb Technologies, LLC et al. v. StartDate Labs, Inc., No. 5:18-cv-05203;
`• PersonalWeb Technologies, LLC et al. v. Tastytrade, Inc., No. 5:18-cv-05204;
`• PersonalWeb Technologies, LLC et al. v. Valassis Communications, Inc., No. 5:18-cv-
`05206 (CF);
`• PersonalWeb Technologies, LLC et al. v. Wework Companies Inc., No. 5:18-cv-05272
`(CF);
`• PersonalWeb Technologies, LLC et al. v. Brooklyn Brewery Corp., No. 5:18-cv-05436;
`• PersonalWeb Technologies, LLC et al. v. Goodreads LLC, No. 5:18-cv-05595;
`• PersonalWeb Technologies, LLC et al. v. Slack Technologies, Inc., No. 5:18-cv-05600;
`• PersonalWeb Technologies, LLC et al. v. Twitch Interactive, Inc., No. 5:18-cv-05619;
`• PersonalWeb Technologies, LLC et al. v. Upwork Global Inc., No. 5:18-cv-05624 (CF);
`• PersonalWeb Technologies, LLC et al. v. RetailMeNot, Inc., No. 5:18-cv-05966;
`• PersonalWeb Technologies, LLC et al. v. Vimeo, Inc., No. 5:18-cv-06042;
`• PersonalWeb Technologies, LLC et al. v. Trello, Inc., No. 5:18-cv-06043 (CF);
`• PersonalWeb Technologies, LLC et al. v. Optimizely, Inc., No. 5:18-cv-06614; and
`• PersonalWeb Technologies, LLC et al. v. Hootsuite Inc., No. 5:18-cv-06615.
`[To assist the Court, those cases where CloudFront allegations are found in the attached
`Exhibit 1’s to said amended complaints, the parenthetical “(CF)” appears.]
`In its statement, Amazon seeks to have the Court reconsider its ruling and order to deem the
`CloudFront allegations as within the scope of the summary judgement order despite the fact that
`Amazon made this argument at the summary judgement hearing and it was rejected. See Transcript,
`
`
`
`
`
`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
`
`8
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`5:18-md-02834-BLF
`5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 405 Filed 04/12/19 Page 10 of 13
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`2-28-19 hearing, at 10:19-12:5, 36:3-5 (Dkt. 376) and MSJ Order, at 27, ¶ 4).
`Amazon makes misstatements of law in its statement in its ongoing modus operandi of
`further disparaging PersonalWeb and denigrating its infringement claims. First, Amazon deni-
`grates PersonalWeb by suggesting it violated Rule 11, and cites to Icon-IP PTY Ltd. v. Specialized
`Bicycle Components, Inc., No. 13:cv-03677-JST, 2013 WL 10448869, at *3 (N.D. Cal. Oct. 22,
`2013), for the proposition that “PersonalWeb should be held to the representations it made to this
`Court subject to Rule 11, both those in its operative pleadings and in other filings characterizing
`those pleadings.” But Icon-IP had nothing to do with Rule 11. Icon-IP was the second of two
`patent infringement actions where Icon accused Specialized bike seats of infringing. Icon had at-
`tempted to amend its infringement contentions in the first suit to add more accused bike seats be-
`cause they “function in the same way and therefore infringe in essentially the same way.” When
`the court refused amendment, Icon filed the second suit on the same bike seats. The second case
`was dismissed for claim splitting, in part because of Icon’s statements in its proposed infringement
`contentions in the first suit that the bike seats it sought to add were essentially the same. Im-
`portantly, this case does not support Amazon’s Rule 11 attacks on PersonalWeb, since Personal-
`Web’s infringement contentions included CloudFront, and were served on Amazon before Amazon
`filed its motion for summary judgment. Icon-IP instead highlights the importance of allowing
`PersonalWeb to continue to pursue its CloudFront claims against the Category 3 website operators,
`as it asserted in its amended complaints.
`The pattern of continued Rule 11 threats to the side, Amazon also suggests that this is an
`exceptional case under 35 U.S.C. § 285, claiming that PersonalWeb is “inventing new theories of
`infringement [to] see if anything bites on the latest theory.” But PersonalWeb’s lawsuits are far
`from over and it is inappropriate to raise exceptional case status now. Further, Amazon cites to two
`§ 285 cases that are wholly distinguishable from the facts at hand. First, Amazon cites to Phigenix,
`Inc. v. Genentech, Inc., No. 15-cv-01238-BLF, 2018 WL 3845998, at *7 (N.D. Cal. Aug. 13, 2018)
`where this Court found the case was exceptional under § 285 in part because of “litigant’s unrea-
`sonable manner in shifting theories of infringement”. However, unlike this case, Phigenix’s new
`
`
`
`
`
`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
`
`9
`
`5:18-md-02834-BLF
`5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 405 Filed 04/12/19 Page 11 of 13
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`infringement theory was not in its infringement contentions and Phigenix neither notified Genen-
`tech of its new infringement theory nor amended its infringement contentions. Here, PersonalWeb
`did allege CloudFront in its infringement contentions and its amended complaints, so Amazon and
`the customer defendants have had notice of this infringement theory. Second, Amazon’s reliance
`on Kilopass Tech. Inc. v. Sidense Corp., No. 10-cv-02066-SI, 2014 WL 3956793, at *13–14 (N.D.
`Cal. Aug. 12, 2014) is confounding as there the court found the case exceptional because the patent
`plaintiff (1) asserted a theory of literal infringement even though its own counsel told plaintiff that
`defendant did not infringe plaintiff’s claims literally; (2) the patent plaintiff conceded that it took a
`different and “clearly irreconcilable” position before the Board of Patent Appeals and Interferences
`and the district court during claim construction; and (3) there was a complete absence of evidence
`from the record that plaintiff’s first counsel “ever engaged in any analysis to determine whether
`[defendant’s’] technology infringed the patents-in-suit under the equivalents.” Id. at *10-11.
`The parties were ordered by the Court to identify the customer cases that are fully or par-
`tially resolved by the summary judgement order, and that is what PersonalWeb has done. Amazon
`is now engaged in ad hominem attacks and a sideshow request for reconsideration. Such tactics
`should not be permitted.
`As to Amazon’s “changing stories” narrative regarding CloudFront, the record demon-
`strates that in its Amended Complaints filed on October 4, 2018, PersonalWeb identified 26 de-
`fendants who used CloudFront as part of an accused instrumentality. CloudFront was also a named
`accused instrumentality in PersonalWeb’s Infringement Contentions regarding Amazon, served
`October 29, 2018. Of the ten customer defendants who were only alleged to infringe via category
`3, PersonalWeb explicitly alleged infringement involving CloudFront in its First Amended Com-
`plaints against defendants Fab Commerce & Design, Inc. (No. 5:18-cv-05378, Dkt. 54, 54-1, Oc-
`tober 4, 2018) and Zoom Video Communications Inc. (No. 5:18-cv-05378, Dkt. 11, 11-1, October
`4, 2018). Specifically, both amended complaints included an Exhibit 1 that “lists a specific example
`of a file that was, on information and belief, served by or on behalf of Defendant during the relevant
`time period.” See, e.g., No. 5:18-cv-05378, Dkt. 54 at 11, ¶ 47. Exhibit 1 to the Fab amended
`
`
`
`
`
`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
`
`10
`
`5:18-md-02834-BLF
`5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 405 Filed 04/12/19 Page 12 of 13
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`complaint specifically identifies CloudFront as it identifies a file “fab_2_0_logo.png” served on
`March 23, 2014 from host server “dnok91peocsw3.cloudfront.net” with a self-identified host server
`type of “AmazonS3.” Dkt. 54-1. Similarly, Exhibit 1 to the Zoom amended complaint specifically
`identifies a file “logo3.png” served on March 2, 2013 from host server “d24cgw3uvb9a9h.cloud-
`front.net” with a self-identified host server type of “AmazonS3.” Dkt. 11-1. The service of such
`CloudFront files stored on S3 is discussed in great detail in the amended complaints and these
`Exhibit 1’s explicitly show that at least “fab_2_0_logo.png” (Fab) and “logo3.png” (Zoom) were
`served by Amazon’s CloudFront, not S3.
`As with the Fab and Zoom allegations, in twenty-three of the customer cases in which the
`infringement allegations involve CloudFront, service of specific files by a CloudFront server is
`explicitly contained in the “Exhibit 1’s” to each of the respective amended complaints.
`Nonetheless, despite the aforementioned facts, Amazon takes a column heading from “Ap-
`pendix A” referenced in PersonalWeb’s tutorial on November 2, 2018 out of context to argue that
`PersonalWeb affirmatively represented to the Court that PersonalWeb’s infringement theory did
`not include CloudFront. But as PersonalWeb explained in detail in its tutorial, the language “Only
`S3 Related Activity Alleged” was used to distinguish between Categories 1 and 2 (non-S3) and
`Category 3 (S3-related) infringement. This had nothing to do with the issue of whether the infringe-
`ment in any of Categories 1-3 involved CloudFront.
`Indeed, PersonalWeb’s position regarding CloudFront is entirely consistent with the lan-
`guage of the Appendix A heading: “Only S3 Related Activity Alleged.” The infringement involving
`CloudFront specifically alleged in October 2018 against Fab, Zoom (in their amended complaints),
`and against Amazon (in the infringement contentions) all relates to S3, but is not limited to S3
`(“requested relief to preclude assertion that S3 meets any limitation of any claim of the patents-in-
`suit is DENIED ….” SMJ Order at 27, ¶ 5). Amazon’s reading of this column in Appendix A also
`cannot be correct because PersonalWeb included Amazon itself in this column, having just served
`Infringement Contentions explicitly alleging infringement by Amazon involving CloudFront.
`Similarly, Amazon’s argument that CloudFront should be eliminated from the case because
`
`
`
`
`
`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
`
`11
`
`5:18-md-02834-BLF
`5:18-cv-00767-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 405 Filed 04/12/19 Page 13 of 13
`
`of a statement made during oral argument at the September 20, 2018 CMC is wrong. This joint
`statement is not a motion but rather is supposed to be made to allow the parties to advise the Court
`of which cases are fully adjudicated and which are not. Further, these statements were made before
`PersonalWeb had finished its Infringement Contentions regarding Amazon and finalized the
`amended complaints that were filed two weeks after that hearing. There is a “holier than thou”
`element to Amazon’s position in citing to oral argument, as Amazon’s counsel at the September
`20, 2018 hearing stated that the infringement in all of Categories 1, 2, 3, and 4 would be covered
`by the Amazon DJ case, which Amazon now concedes is not the case (see, e.g., Transcript, 9-20-
`18 hearing, at 44:19-20, 46:3-9, 48:8-11 (Dkt. 121).)
`
`Dated: April 12, 2019
`
`FENWICK & WEST LLP
`
`By: /s/ Phillip J. Haack
`J. DAVID HADDEN (CSB No. 176148)
`SAINA S. SHAMILOV (CSB No. 215636)
`MELANIE L. MAYER (admitted pro hac vice)
`PHILLIP J. HAACK (CSB No. 262060)
`RAVI R. RANGANATH (CSB No. 272981)
`CHIEH TUNG (CSB No. 318963)
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`Telephone:
`650.988.8500
`Facsimile:
`650.938.5200
`
`Attorneys for AMAZON.COM, INC. and
`AMAZON WEB SERVICES, INC.
`
`Dated: April 12, 2019
`
`STUBBS, ALDERTON & MARKILES, LLC
`
`By: /s/ Viviana Boero Hedrick
`Michael A. Sherman
`Jeffrey F. Gersh
`Sandeep Seth
`Wesley W. Monroe
`Stanley H. Thompson, Jr.
`Viviana Boero Hedrick
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
`
`JOINT STATEMENT RE RESOLUTION OF
`CUSTOMER CASES PER SUMMARY JUDGMENT
`ORDER
`
`12
`
`5:18-md-02834-BLF
`5:18-cv-00767-BLF
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