Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 1 of 12
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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
`
` Case No. 5:18-md-02834-BLF
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`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`Plaintiffs,
`
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Defendants.
`
` Case No.: 5:18-cv-00767-BLF
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`JOINT STATEMENT RE ZOOM
`VIDEO AND FAB COMMERCE
`CUSTOMER CASES
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`5:18-md-02834-BLF
`5:18-cv-00767-BLF
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`

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`Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 2 of 12
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`In accordance with the Court’s order (Dkt. 408), Amazon.com, Inc. and Amazon Web Ser-
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`vices, Inc. (collectively, “Amazon”) and PersonalWeb Technologies, LLC (“PersonalWeb”) hereby
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`submit their positions regarding the Zoom (Case No. 5:18-cv-05625) and Fab Commerce (No. 5:18-
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`cv-03578) cases. PersonalWeb has proposed that the parties stipulate to the filing of the amended
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`complaints attached (in redline form to show proposed changes) as Exhibits 1 and 2 to this state-
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`ment for the Fab and Zoom cases. Amazon does not agree to stipulate to the filing of the proposed
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`amended complaints.
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`I.
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`AMAZON’S STATEMENT
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`After PersonalWeb repeatedly changed its infringement theories, this Court set a deadline
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`of October 4, 2018 for PersonalWeb to amend its complaints in the customer cases, including the
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`cases against Zoom and Fab Commerce, so that the pleadings would finally be settled. Dkt. No.
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`157 at 2. PersonalWeb’s operative complaints against Zoom and Fab Commerce as of that date
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`allege infringement by Amazon’s S3. See Case No. 5:18-cv-05625-BLF, Dkt. No. 11 at 8 (“De-
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`fendant contracted with Amazon to use Amazon’s S3 system to store and serve at least some of
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`Defendant’s CBI ETag files (“S3 asset files”) on its behalf.”); Case No. 5:18-cv-03578-BLF, Dkt.
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`No. 54 at 9. The Court’s order on Amazon’s claim preclusion/Kessler motion fully adjudicated
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`those claims. Dkt. No. 394. But instead of agreeing to entry of judgment, PersonalWeb now asks
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`the Court for leave to amend its complaints so it can change its infringement theory yet again, this
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`time to target CloudFront, a completely different product.
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`PersonalWeb cannot show good cause, as required under Rule 16, to file an amended com-
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`plaint after the deadline in the scheduling order. PersonalWeb’s request for leave to amend is also
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`barred under Rule 15, including by bad faith, undue delay, prejudice, futility of the amendment,
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`and previous amendments to the complaints. PersonalWeb’s request should be denied.
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`A.
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`PersonalWeb has already repeatedly changed its infringement theories to the
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`detriment of the Court and parties.
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`PersonalWeb has already changed its infringement theories numerous times over the last 17
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`months:
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`1
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`5:18-md-02834-BLF
`5:18-cv-00767-BLF
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`Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 3 of 12
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`•
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`In January 2018, PersonalWeb sued Amazon’s customers because they use Amazon’s S3.
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`Not only did PersonalWeb admit that its cases all involved the same theory of infringe-
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`ment by S3, it expressly relied on that fact to encourage the JPML to transfer its scores of
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`cases into a single MDL proceeding before this Court.
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`• When Amazon moved for a preliminary injunction, PersonalWeb changed its position and
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`claimed that it accused the use of Ruby on Rails. See Case No. Case No.: 5:18-cv-00767-
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`BLF, Dkt. No. 37 at 1 (“PersonalWeb’s current actions are based on the defendant website
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`owner/operator’s use of the Ruby on Rails system architecture. . . .”).
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`• A few months later, in September 2018, PersonalWeb changed its position yet again,
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`claiming it accused “four categories” of infringement. See Dkt. 96-1. PersonalWeb con-
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`tinued to allege infringement by Amazon S3 as one category and Ruby on Rails became
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`part of a new “fingerprinting” theory, while two other categories involved “non-S3” the-
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`ories. Id.
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`The Court then set a deadline of October 4, 2018 for PersonalWeb to amend the pleadings in the
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`customer cases and Amazon’s declaratory judgment action (Dkt. No. 157 at 2), with the expectation
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`that this would settle the pleadings for the MDL. See Dkt. No. 121 at p. 27, lines 10-12 (Court
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`explaining to PersonalWeb that it does not “know what the case it about now because you have
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`asked me to allow you to amend everything”); p. 17, line 1 (PersonalWeb’s counsel acknowledging
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`that “it’s obviously critical that the pleadings be settled”). Now that it has lost on summary judg-
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`ment, PersonalWeb is attempting to change it infringement theories yet again – this time targeting
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`Amazon’s CloudFront product.
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`B.
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`PersonalWeb cannot show good cause to amend its complaints under Rule 16.
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`PersonalWeb can no longer amend its complaints as a matter of right and the October 4,
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`2018 deadline for doing so under the scheduling order has long since passed.
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`Under Rule 16, “[a] schedule may be modified only for good cause and with the judge’s
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`consent.” Fed. R. Civ. P. 16(b)(4). And even if good cause is established under Rule 16, the
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`moving party must also demonstrate that amendment of a pleading is appropriate under Rule 15(a).
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`2
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`5:18-md-02834-BLF
`5:18-cv-00767-BLF
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`4831-6061-9156, v. 2
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`

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`Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 4 of 12
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`See Finjan, Inc. v. Check Point Software Technologies, Inc., No. 18-cv-02621-WHO, 2019 WL
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`1455333, at *2 (N.D. Cal. Apr. 2, 2019) (Rule 16 applies once a court has entered a scheduling
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`order; “Only if the moving party establishes good cause to modify the scheduling order under Rule
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`16 should the court consider whether the moving party has also demonstrated that amendment is
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`appropriate under Rule 15(a)”); see also Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608
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`(9th Cir. 1992); EEOC v. Peter’s Bakery, No. 13-cv-04507-BLF, 2016 U.S. Dist. LEXIS 45519, at
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`*5-*6 (N.D. Cal. April 4, 2016).
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`PersonalWeb cannot show good cause for filing an amended complaint almost seven
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`months after the October 4, 2018 deadline in the scheduling order. Under Rule 16, “[g]ood cause
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`requires diligence by the moving party.” Lancaster v. Cty. of Pleasanton, No. 12-05267-WHA,
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`2013 U.S. Dist. LEXIS 131379, at *6 (N.D. Cal. Sept. 13, 2013); see also Johnson, 975 F.2d at
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`609. Here, PersonalWeb seeks to add infringement allegations based on conduct that allegedly
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`occurred in 2013-2015 and based on information that is publicly available from http://web.ar-
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`chive.org. PersonalWeb does not even attempt to argue that it acted diligently. Thus, there is no
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`excuse for PersonalWeb’s failure to diligently investigate its infringement contentions and include
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`the CloudFront allegations, if any, in its October 2018 complaints. See Clear-View Technologies,
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`Inc. v. Rasnick, No. 13–cv–02744–BLF, 2015 WL 1307112, at *3 (N.D. Cal. Mar. 23, 2015) (no
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`good cause shown where the movant knew the facts underlying the proposed amendment for over
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`eighteen months and had multiple opportunities to assert its claims but chose not to do so) (citing
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`In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir.2013) (“The good
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`cause standard typically will not be met where the party . . . has been aware of the facts and theories
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`supporting amendment since the inception of the action”).
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`The good cause analysis under Rule 16 also focuses “upon the moving party’s reasons for
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`seeking modification.” Johnson, 975 F.3d at 609. Here, the reason for PersonalWeb’s request is
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`clear: the Court’s summary judgment order fully adjudicates the pending claims against Zoom and
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`Fab Commerce, and PersonalWeb is making a last-ditch effort to keep these cases in the MDL. But
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`PersonalWeb has no standing to assert infringement by content delivery networks like CloudFront,
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`3
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`5:18-md-02834-BLF
`5:18-cv-00767-BLF
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`4831-6061-9156, v. 2
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`Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 5 of 12
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`as Level 3 has exclusive rights in that field—i.e., PersonalWeb does not even own the rights to the
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`infringement claims it proposes to assert. And, PersonalWeb’s new allegations regarding Cloud-
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`Front are factually incorrect, particularly its assertion that CloudFront is being used “as the origin
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`server” (see ¶ 37 of proposed amended Zoom complaint). Indeed, just a few months ago, in Feb-
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`ruary 2019, PersonalWeb’s counsel told this Court that CloudFront is an intermediate cache server,
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`not an origin server. Feb. 28, 2019 Hearing Tr. at 32:22-33:8 (“that is what CloudFront is, an
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`intermediate cache server”). The fact that CloudFront is not an origin server is confirmed by doc-
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`uments produced in this MDL. See AMZ_PWT 00006867 (Amazon CloudFront API Reference at
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`168) ( “Origin . . . . the Amazon S3 bucket or the HTTP server (for example, a web server) from
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`which CloudFront gets your files. You must create at least one origin.”) (emphasis added);
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`AMZ_PWT 00007900 (Amazon CloudFront Developer Guide at 3) (“How You Configure Cloud-
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`Front to Deliver Your Content ¶ 1. You configure your origin servers, from which CloudFront gets
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`your files for distribution from CloudFront edge locations all over the world.”).) In the proposed
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`amended complaints, PersonalWeb pleads that CloudFront is an origin server “on information and
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`belief.” But PersonalWeb cannot avoid Rule 11 by pleading facts it knows are false “on information
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`and belief.” PersonalWeb’s reasons for seeking to amend the complaints cut against a showing of
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`good cause.
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`PersonalWeb’s only argument for good cause under Rule 16 is that “the type of distinctions
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`and details involved in PersonalWeb’s proposed amended complaints would not be placed in a
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`complaint, but rather in the Infringement Contentions.” PersonalWeb is wrong. At a minimum, a
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`plaintiff must plead that “certain named and specifically identified products or product compo-
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`nents” infringe the asserted patent so that the defendant is put on notice of the claims and the
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`grounds upon which they rest. Anza Technology, Inc. v. Novatel Wireless, Inc., No.: 3:16-cv-
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`00585-BEN-AGS, 2016 WL 7555397, at *3 (N.D. Cal. Nov. 4, 2016); see also Big Baboon Inc. v.
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`SAP America, Inc. No.17-cv-02082-HSG, 2018 WL 1400443, at *4 (N.D. Cal. Mar. 20, 2018)
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`(conclusory allegations followed by vague references that the defendant is a “major provider” of
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`certain products that practice the patents are insufficient to state a claim); Continental Circuits LLC
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`5:18-cv-00767-BLF
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`4831-6061-9156, v. 2
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`Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 6 of 12
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`v. Intel Corp., No. CV16-2026 PHX DGC, 2017 WL 2651709, at *3 (D. Ariz. June 19, 2017)
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`(dismissing second amended complaint where it “contains no facts about [the] unspecified prod-
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`ucts,” and rejecting the plaintiff’s argument that the defendant can independently identify the prod-
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`ucts).
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`PersonalWeb also inexplicably argues that Amazon has not objected to PersonalWeb’s at-
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`tempt to improperly insert CloudFront in the Amazon case. In fact, Amazon has repeatedly ob-
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`jected to CloudFront, including in Amazon’s summary judgment briefing (see Dkt. No. 350 at 8
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`(“CloudFront . . . is not at issue in this case”), in response to PersonalWeb’s discovery requests
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`directed to CloudFront, and in letters to PersonalWeb. This Court has also made clear that “Ama-
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`zon is free to challenge the inclusion of CloudFront in a separate motion” (Dkt. No. 394 at 10),
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`which Amazon will do.
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`Finally, PersonalWeb attempts to explain its mischaracterization of CloudFront by saying
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`“this type of hyper-technical distinction is not the sort of thing that complaints are meant to cover.”
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`In fact, being factually accurate in pleading allegations in a complaint is exactly what Rule 11
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`demands. There is no good cause under Rule 16.
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`C.
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`Leave to amend the complaints is also inappropriate under Rule 15.
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`As explained above, even if PersonalWeb could show good cause under Rule 16 and it
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`cannot, it would still have to show that leave to amend the complaints is appropriate under Rule 15.
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`Under Rule 15(a), the Court may decline to grant leave if there is evidence of “undue delay, bad
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`faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amend-
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`ments previously allowed, undue prejudice to the opposing party by virtue of allowance of the
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`amendment, [or] futility of amendment, etc.” Sonoma Cty. Ass’n of Retired Emps. V. Sonoma Cty.,
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`708 F.3d 1109, 1117 (9th Cir. 2013) (citing Forman v. Davis, 371 U.S. 178, 182 (1962)); see also
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`Allen v. Cty. of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (“Five factors frequently used to
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`assess the propriety of a motion for leave to amend [under Rule 15(a)(2)]: (1) bad faith; (2) undue
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`delay; (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether plaintiff has
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`previously amended its complaint.” (citations omitted)).
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`5:18-md-02834-BLF
`5:18-cv-00767-BLF
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`4831-6061-9156, v. 2
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`Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 7 of 12
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`Prior Amendment. “The district court’s discretion to deny leave to amend is particularly
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`broad where plaintiff has previously amended the complaint.” Allen, 911 F.2d at 373. As discussed
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`above, after PersonalWeb repeatedly changed its infringement contentions, this Court gave Person-
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`alWeb leave to amend its pleadings in all of the customers cases and set an October 4, 2018 deadline
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`for PersonalWeb to do so. PersonalWeb amended the Fab Commerce and Zoom complaints at that
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`time. Thus, PersonalWeb “has previously amended its complaint[s].” Allen, 911 F.2d at 373 (factor
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`5).
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`Undue Delay. Late amendments to assert new theories are not reviewed favorably when
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`the facts and the theory have been known to the party seeking amendment since the inception of
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`the cause of action. Sanders v. Energy Nw., 812 F.3d 1193, 1198 (9th Cir. 2016) (quoting Royal
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`Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1016–17 (9th Cir.1999). The allegations that Per-
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`sonalWeb seeks to add to its complaints are based (a) on conduct that allegedly occurred in 2013-
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`2015 and (b) on publicly available information. PersonalWeb has not come forward with any in-
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`formation suggesting that it could not have accused CloudFront at the beginning of the cases. Fur-
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`ther, PersonalWeb identified the Fab and Zoom cases to the Court as involving S3 only, and the
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`Court decided a summary judgment motion on S3. That PersonalWeb seeks to evade the effect of
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`a summary judgment ruling also strongly supports a finding of undue delay. Schlacter-Jones v.
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`General Telephone of California, 936 F.2d 435, 443 (9th Cir. 1991) (“The timing of the motion,
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`after the parties had conducted discovery and a pending summary judgment motion had been fully
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`briefed, weighs heavily against allowing leave. A motion for leave to amend is not a vehicle to
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`circumvent summary judgment.”), abrogated on other grounds by Cramer v. Consol. Freightways,
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`Inc., 255 F.3d 683 (9th Cir. 2001). PersonalWeb’s attempt to add new allegations now—seven
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`months after the scheduling order deadline and after the Court granted summary judgment against
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`it—constitutes undue delay. Allen, 911 F.2d at 373 (factor 2).
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`Futility of Amendment. If a proposed amendment is futile, the Court can deny leave on
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`that basis alone, independent of its assessment of other factors. Steckman v. Hart Brewing, Inc.,
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`143 F.3d 1293, 1298 (9th Cir. 1998) (“Although there is a general rule that parties are allowed to
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`4831-6061-9156, v. 2
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`amend their pleadings, it does not extend to cases in which any amendment would be an exercise
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`in futility”). PersonalWeb’s proposed amended complaints here are futile, for the reasons discussed
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`above. PersonalWeb simply attempts to cross out “S3” from certain allegations and substitute
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`“CloudFront” in its place, ignoring important differences between the two products that make the
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`new proposed allegations false. As discussed above, PersonalWeb’s amended complaints allege
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`that CloudFront is an origin server, which is false. PersonalWeb also lacks standing to assert any
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`infringement by content delivery networks like CloudFront. See Max Sound Corp. v. Google, Inc.,
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`2016 WL 613256, at *2 (N.D. Cal. Feb. 16, 2016) (denying Rule 15 motion where the movant has
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`no standing to assert patent claim). Thus, PersonalWeb’s proposed amended complaints are factu-
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`ally incorrect and futile. Allen, 911 F.2d at 373 (factor 4); see also Khobragade v. Covidien LP,
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`No. 16cv468, 2019 WL 652424, at *14 (S.D. Cal. Feb. 15, 2019) (finding proposed allegations
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`futile); Bibo v. Federal Exp. Inc., No. C07–2505 TEH, 2010 WL 1688549, at *3 (N.D. Cal. Apr.
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`26, 201) (denying motion to amend where no evidence supports plaintiff’s proposed amendment,
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`and any such amendment would be futile).
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`Prejudice. PersonalWeb also ignores the substantial prejudice its amendments would im-
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`pose, not only to Zoom and Fab Commerce, but also to Amazon, Twitch and all of the other de-
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`fendants in this MDL. At the September 2018 CMC, PersonalWeb’s counsel acknowledged that
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`the whole point of the October 4, 2018 deadline was to finally settle the pleadings. See Dkt. No.
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`121 at p. 17, line 1. The Court and the parties relied on those settled pleadings to set a course for
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`the MDL. Amazon, Twitch and PersonalWeb have now completed infringement and invalidity
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`contentions and are in the middle of claim construction briefing. The Court and the parties also
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`relied on those settled pleadings to choose the Twitch representative customer case, which includes
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`all of PersonalWeb’s four categories of infringement. PersonalWeb represented to the Court that
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`it would not be able to proceed against the defendants in the other customer cases if it lost against
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`Twitch. Dkt. No. 300 at 6. PersonalWeb now attempts to throw all of that into disarray by amend-
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`ing the pleadings to add allegations to CloudFront, a product not accused in the Twitch case. Al-
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`lowing PersonalWeb to amend the customer complaints at this late stage would cause substantial
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`prejudice to every party to the MDL. Allen, 911 F.2d at 373 (factor 3).
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`Bad Faith. Finally, PersonalWeb’s request to amend the Zoom and Fab Commerce com-
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`plaints is made in bad faith. Allen, 911 F.2d at 373 (factor 1). PersonalWeb repeatedly told the
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`Court that these cases involved “Only S3 Related Activity” in Category 3. See Ex. Dkt. 295, “In-
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`fringement Activity Categories Alleged in Operative Complaints and Counterclaim as of November
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`2, 2018,” at column titled “Only S3 Related Activity Alleged”; Dkt. 96-1, at column titled “Only
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`S3 Related Activity Alleged.” PersonalWeb also repeatedly told the Court and the parties that these
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`cases would be “out” of the MDL if the Court granted Amazon’s claim preclusion/Kessler motion.
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`See Dkt. 121, Transcript of September 20, 2018 Case Management Conference, at 31:16–17 (“The
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`Amazon case would resolve all of the S3, what we call Bucket 3 claims.”); id. at 33:8–14 (explain-
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`ing that while categories 1, 2, and 4 would not be affected by Amazon’s declaratory judgment
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`claim, “Category 3, if they wait [sic; win] on Kessler, category 3 is out”); id. at 13:16–18 (“The
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`three categories, categories 1, 2, and 4, and the ʼ544 infringement, are all outside of S3. Category
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`3 is within S3.”). But now that the Court has granted Amazon’s claim preclusion/Kessler motion
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`as to S3, PersonalWeb is asserting factually incorrect allegations to attempt to keep these cases in
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`the MDL. See Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980) (“At some point, a party may not
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`respond to an adverse ruling by claiming that another theory not previously advanced provides a
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`possible grounds for relief and should be considered.”)
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`In sum, PersonalWeb cannot show good cause under Rule 16. In addition, bad faith, undue
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`delay, prejudice to the opposing party, futility of amendment, and previous amendments to the
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`complaint all preclude PersonalWeb’s attempt to amend the Zoom and Fab Commerce complaints
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`under Rule 15.
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`II.
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`PERSONALWEB’S STATEMENT
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`A.
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`Good cause exists to allow amendment of the complaints under Rule 16 and
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`leave to amend under Rule 15 should be given.
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`PersonalWeb has good cause for amending the Fab and Zoom complaints under Rule 16.
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`Ordinarily in a patent case, the type of distinctions and details involved in PersonalWeb’s proposed
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`5:18-cv-00767-BLF
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`amended complaints would not be placed in a complaint, but rather in the Infringement Conten-
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`tions. This is what happened in the Amazon case. The specific allegations regarding CloudFront
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`were included in PersonalWeb’s Infringement Contentions served on Amazon on October 29, 2018.
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`The Fab and Zoom cases, however, have been stayed both before and after the amended
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`complaints were filed in those cases on October 4, 2018. Accordingly, PersonalWeb has not had an
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`opportunity to serve Infringement Contentions for Fab or Zoom. It is only the unique circumstances
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`specific to the Court’s summary judgment Order that require the amendment to the complaints so
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`the partial summary judgment in the Order can be effectuated. These unique circumstances com-
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`bined with the stays of the Fab and Zoom cases are the good cause for Rule 16.
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`Under Rule 15, leave to amend the pleadings should be freely given when justice requires.
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`For the same reasons there is good cause to allow amendment of the complaints under Rule 16,
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`justice requires the amendments be made under Rule 15.
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`Turning to Amazon’s parade of horrors should amendment be allowed:
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`- Prejudice: The issues reflected in the proposed amended complaints were specifically
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`alleged against Amazon, and thus are already being fully considered in the ongoing
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`claim construction. These issues also would not have affected the selection of the Twitch
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`test case and they are involved in the Amazon DJ action.
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`- Bad Faith: The heading for the Category 3 column in the Appendix A discussed at the
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`CMC’s, “Only S3 Related Activity” was to distinguish the activity not related to S3 in
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`the other categories, not to affirmatively claim that Category 3 related only to S3. Word
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`order and context make a difference.
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`Amazon’s protestations also ring hallow in view of the absence of any objection to the
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`inclusion of CloudFront in PersonalWeb’s Infringement Contentions for Amazon in the seven
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`months since they were served on Amazon.
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`B.
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`PersonalWeb’s proposed amended complaints are not factually inaccurate and
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`not futile.
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`Amazon also contends that the allegations in PersonalWeb’s proposed amended complaints
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`are factually inaccurate.
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`The Exhibit 1’s of the First Amended Complaints identifies a specific file served by the
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`defendant on a specific date from a specific “host server.” For Fab, the “host server” is identified
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`in Exhibit 1 as “dnok91peocsw3.cloudfront.net.” For Zoom, the “host server” is identified as
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`“d24cgw3uvb9a9h.cloudfront.net.” In describing the requirements of the “host” field in an HTTP
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`request, HTTP 1.1, states, “The Host field value MUST represent the network location of the origin
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`server or gateway ….” RFC 2068, § 14.23. The distinction that Amazon seeks to make about the
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`meaning of “origin” is actually a very technical distinction between a “gateway” and “origin server”
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`in HTTP. Specifically, HTTP 1.1 defines “gateway” as, “A server which acts as an intermediary
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`for some other server. Unlike a proxy, a gateway receives requests as if it were the origin server for
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`the requested resource; the requesting client may not be aware that it is communicating with a
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`gateway.” RFC 2068, § 1.3.
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`In some cases of S3 being used with CloudFront, CloudFront is technically a “gateway”
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`and S3 is technically an “origin server.” However, the actions described in the complaint regarding
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`origin servers responding to HTTP GET requests are all actions the HTTP specification describes
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`as being done by an origin server or a gateway “as if it were the origin server.” PersonalWeb re-
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`spectfully suggests that this type of hyper-technical distinction is not the sort of thing that com-
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`plaints are meant to cover. Otherwise, patent complaints would have to be the size of Encyclope-
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`19
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`dias.
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`In any case, as Amazon already knows from PersonalWeb’s Infringement Contentions for
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`Amazon (in which only Category 3 activity is involved), in its CloudFront related contentions,
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`CloudFront is described as responding to GET requests from the browser exactly as is alleged in
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`the proposed amended complaints.
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`Dated: April 19, 2019
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`
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`
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`FENWICK & WEST LLP
`
`By: /s/ Melanie L. Mayer
`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)
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`JOINT STATEMENT RE ZOOM VIDEO AND FAB
`COMMERCE CUSTOMER CASES
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`5:18-md-02834-BLF
`5:18-cv-00767-BLF
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`Case 5:18-md-02834-BLF Document 410 Filed 04/19/19 Page 12 of 12
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`
`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.
`
`STUBBS, ALDERTON & MARKILES, LLC
`
`
`
`By: /s/ Wesley W. Monroe
`Michael A. Sherman
`Jeffrey F. Gersh
`Sandeep Seth
`Wesley W. Monroe
`Stanley H. Thompson, Jr.
`Viviana Boero Hedrick
`
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
`
`Dated: April 19, 2019
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