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`Case 5:18-md-02834-BLF Document 413 Filed 04/24/19 Page 1 of 10
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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
`
`Attorneys for AMAZON.COM, INC.
`and AMAZON WEB SERVICES, INC.
`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
`MOTION OF AMAZON.COM, INC.
`AND AMAZON WEB SERVICES, INC.
`FOR JUDGMENT ON THE PLEAD-
`INGS ON INFRINGEMENT CLAIMS
`AGAINST CLOUDFRONT
`
`Date:
`October 3, 2019
`Time:
`9:00 a.m.
`Dept:
`Courtroom 3, 5th Floor
`Judge:
`Hon. Beth L. Freeman
`Trial Date: March 16, 2020
`
`
`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.
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
`Counterclaimants,
`
`v.
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
`
`Counterdefendants.
`
`MOTION FOR JUDGMENT ON THE PLEADINGS
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`
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`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`TABLE OF CONTENTS
`NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS ---------------------------------- 1
`MEMORANDUM OF POINTS AND AUTHORITIES ------------------------------------------------- 1
`I.
`INTRODUCTION --------------------------------------------------------------------------- 1
`II.
`FACTUAL BACKGROUND -------------------------------------------------------------- 2
`III.
`LEGAL STANDARD ----------------------------------------------------------------------- 4
`IV. ARGUMENT --------------------------------------------------------------------------------- 4
`V.
`CONCLUSION ------------------------------------------------------------------------------ 7
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`MOTION FOR JUDGMENT ON THE PLEADINGS
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`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`Case 5:18-md-02834-BLF Document 413 Filed 04/24/19 Page 3 of 10
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`
`
`Cases:
`
`Page(s):
`
`TABLE OF AUTHORITIES
`
`Chavez v. United States,
`683 F.3d 1102 (9th Cir. 2012) ----------------------------------------------------------------------- 4
`
`Cook Inc. v. Medtronic, Inc.,
`No. C 06 00333 JSW, 2006 WL 1806159 (N.D. Cal. June 29, 2006) ------------------------- 5
`
`Fajardo v. County. of Los Angeles,
`179 F.3d 698 (9th Cir. 1999) ------------------------------------------------------------------------ 4
`
`Knowles Elecs., LLC v. Am. Audio Component, Inc.,
`No. 06 C 6213, 2017 WL 914461 (N.D. Ill. Mar. 8, 2017) ------------------------------------- 5
`
`McCoy v. Mitsuboshi Cutlery, Inc.,
`67 F.3d 917 (Fed. Cir. 1995) ------------------------------------------------------------------------ 5
`
`O’Connor v. Uber Techs., Inc.,
`58 F. Supp. 3d 989 (N.D. Cal. 2014) --------------------------------------------------------------- 5
`
`Phx. Techs. Ltd. v. VMware, Inc.,
`No. 15-cv-01414-HSG, 2017 WL 1289863 (N.D. Cal. Jan. 6, 2017) ------------------------- 6
`
`Swartz v. KPMG LLP,
`476 F.3d 756 (9th Cir. 2007) ------------------------------------------------------------------------ 5
`
`WiAV Sols. LLC v. Motorola, Inc.,
`631 F.3d 1257 (Fed. Cir. 2010) --------------------------------------------------------------------- 5
`
`Other Authorities:
`
`Fed. R. Civ. P. 12 --------------------------------------------------------------------------------------- 1, 4
`
`Fed. R. Civ. P. 56 ------------------------------------------------------------------------------------------ 1
`
`MOTION FOR JUDGMENT ON THE PLEADINGS
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`NOTICE OF MOTION FOR JUDGMENT ON THE PLEADINGS
`TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
`PLEASE TAKE NOTICE that, on October 3, 2019 at 9:00 a.m., at the United States Dis-
`trict Court for the Northern District of California, 280 South First Street, San Jose, California, in
`the courtroom of the Honorable Beth Labson Freeman, Amazon.com, Inc. and Amazon Web Ser-
`vices, Inc. (collectively “Amazon”) will and hereby do move the Court under Federal Rule of Civil
`Procedure 12(c) for an order rendering judgment on the pleadings in favor of Amazon and against
`PersonalWeb Technologies, LLC (“PersonalWeb”) on PersonalWeb’s claims accusing Amazon’s
`CloudFront content delivery network (CDN) of patent infringement, because PersonalWeb lacks
`standing to assert those claims.
`Amazon bases its motion on this notice, the accompanying memorandum of points and au-
`thorities, the request for judicial notice, the pleadings and records on file, the argument of counsel,
`and any other such matters as may be presented to the Court. In resolving this motion, should the
`Court consider any facts referenced in the motion to be outside the pleadings and not properly
`subject to judicial notice, Amazon requests that the Court convert the motion into a motion for
`summary judgment under Fed. R. Civ. P. 12(d) and 56.
`
`I.
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`INTRODUCTION
`PersonalWeb named Amazon’s Simple Storage Service (S3) as the sole allegedly infringing
`technology in scores of pleadings filed around the country and in this multidistrict litigation, with-
`out mentioning any other Amazon technology. But faced with the fact that PersonalWeb’s earlier
`unsuccessful lawsuit against Amazon barred those claims against S3, PersonalWeb in October 2018
`added Amazon’s CloudFront content delivery network to its infringement contentions. Personal-
`Web then argued that the Court should not grant Amazon summary judgment under claim preclu-
`sion and the Kessler doctrine at least as to these belated contentions. When the Court granted
`summary judgment against PersonalWeb’s S3 claims, it instructed Amazon to “challenge the in-
`clusion of CloudFront” by a separate motion. (Dkt. 381 at 10, 27.)
`Amazon now moves for judgment on the pleadings as to PersonalWeb’s claims against
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`MOTION FOR JUDGMENT ON THE PLEADINGS
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`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`CloudFront because PersonalWeb lacks standing to bring that claim. CloudFront indisputably is a
`content delivery network or “CDN,” and Level 3 Communications, the nominal co-plaintiff in this
`case, indisputably owns the exclusive right to enforce the patents against CDNs. Level 3 does not
`do so in this case. Nor has Level 3 granted PersonalWeb permission to do so. Because all material
`facts are established through PersonalWeb’s own pleadings, the written contract incorporated
`therein, and judicially noticeable facts, Amazon is entitled to judgment on the pleadings against
`PersonalWeb’s CloudFront claims, which disposes of all remaining issues in this case.
`
`II.
`
`FACTUAL BACKGROUND
`Amazon bases its motion on the following allegations and judicially noticeable facts incor-
`porated into the pleadings:
`(1) The Kinetech-Digital Island Agreement governs PersonalWeb’s right to sue.
`PersonalWeb asserts four patents in these proceedings. (See Case No: 5:18-md-02834,
`Dkt. 257 (“Amended Counterclaim”), ¶ 1; Case 5:18-cv-05619, Dkt. 13 (“Twitch Com-
`plaint”), ¶ 1.) Its right to assert these patents is governed by an agreement between Kine-
`tech, Inc., its predecessor in interest, and Digital Island, Inc., a predecessor to the nominal
`plaintiff in this action, Level 3. Id. The Agreement defines the patents it covers as “United
`States Patent No. 5,978,791 (‘The ’791 patent’) and all . . . continuation applications . . .
`issued to Kinetech [predecessor to PersonalWeb] before or during the term of” the Agree-
`ment “commencing upon the Effective Date” of September 2000 and “remain[ing] in effect
`as long as there are enforceable rights under any of the Patents.” (Request for Judicial
`Notice (“RJN”), Ex. 1 (“Agreement”) at 1.1, 9.1.) All four patents issued during the term
`of the Agreement and are continuations of the ’791 patent. (See Amended Counterclaim,
`¶¶ 1, 20; Twitch Complaint, ¶¶ 1, 18; RJN Ex. 1 at 9.1.)
`(2) The agreement grants Level 3 and PersonalWeb the exclusive right to enforce the
`patents within their respective fields of use. The Agreement specifies that PersonalWeb
`and Level 3 “each own a fifty percent (50%) undivided interest in and to the patents,” but
`it limits the right of each co-owner to enforce the patents to only their respective exclusive
`fields of use. (Amended Counterclaim, ¶¶ 1-2; Agreement, § 6.4.1 (“DI shall have the first
`
`MOTION FOR JUDGMENT ON THE PLEADINGS
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`2
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`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`right to institute suit for infringement(s) of any of The Patents (a) in the DI Field of
`Use…”).) Accordingly, PersonalWeb alleged that it may “enforce and/or litigate the Pa-
`tents-in-Suit in fields other than the Level 3 Exclusive Field (the ‘PersonalWeb Patent
`Field.’).” (Amended Counterclaim, ¶ 2 (emphasis added).)
`(3) PersonalWeb’s claims in this case are expressly limited to its own exclusive field,
`and it has not taken the steps required to allow it to assert the patents outside that
`field. PersonalWeb alleged that “that the infringements at issue in this case all occur within,
`and are limited to, the PersonalWeb Patent Field.” (Id. ¶ 3.) Nor can PersonalWeb assert
`claims outside its field. PersonalWeb may acquire a right to assert such claims only if it
`provides Level 3 with written notice that a third party infringes in that field and Level 3
`fails to file its own lawsuit after 180 days. (Id.; Agreement, § 6.4.1.) But PersonalWeb
`expressly alleged in its counterclaims against Amazon and in every complaint it filed that
`it “has not provided notice to Level 3—under Section 6.4.1 of the Agreement or otherwise—
`that [it] desires to bring suit in the Level 3 Exclusive Field in its own name on its own
`behalf” or “that [it] knows or suspects that [Amazon] is infringing or has infringed any of
`Level 3’s rights in the patents.” (Amended Counterclaim, ¶ 3.)
`(4) Level 3 has not asserted any claim against Amazon or any other party based on
`the patents. Level 3 does not allege any infringement claims against Amazon or any other
`defendant at all. It alleged:
`
`All infringement allegations, statements describing PersonalWeb,
`statements describing any Counterdefendant (or any Counterde-
`fendant’s products) and any statements made regarding jurisdiction
`and venue are made by PersonalWeb alone, and not by Level 3.
`(Amended Counterclaim, ¶ 3.) Level 3 recently reconfirmed its continued intent not to
`assert any claims in this action at the Court’s request. See RJN, Ex. 2 (Stipulation).
`(5) The Kinetech-Digital Island agreement gives Level 3 exclusive rights in the field
`of content delivery networks. The Agreement describes the Level 3 exclusive field as
`CDNs, including an exemplary description of the architecture and function of a CDN:
`[T]he infrastructure services of one or more managed global content
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`MOTION FOR JUDGMENT ON THE PLEADINGS
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`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.
`Agreement, § 1.2 & Schedule 1.2.
`(6) CloudFront is indisputably a content delivery network. PersonalWeb has made
`numerous judicial admissions to this Court that CloudFront is a CDN. See RJN, Ex. 3 (Per-
`sonalWeb’s summary judgment opposition brief) at 4:1-2; RJN, Ex. 4, ¶ 12; (“I am familiar
`with an Amazon product called CloudFront, which is a content delivery network, or CDN”);
`RJN, Ex. 5, ¶ 17 (“AWS describes CloudFront as ‘a fast content delivery network (CDN)
`service . . .’ I understand that CloudFront’s operation during the relevant timeframe for
`infringement was substantially the same as that description.”)
`
`III. LEGAL STANDARD
`“After the pleadings are closed – but early enough not to delay trial – a party may move for
`judgment on the pleadings.” Fed. R. Civ. P. 12(c). The analysis for a Rule 12(c) motion is sub-
`stantially identical to analysis under Rule 12(b)(6). Chavez v. United States, 683 F.3d 1102, 1108
`(9th Cir. 2012). Under both rules, “a court must determine whether the facts alleged in the com-
`plaint, taken as true, entitle the plaintiff to a legal remedy.” Id. (quoting Brooks v. Dunlop Mfg.
`Inc., No. C 10–04341 CRB, 2011 WL 6140912, at *3 (N.D. Cal. Dec. 9, 2011)). “[J]udgment on
`the pleadings is properly granted when, taking all the allegations in the non-moving party’s plead-
`ings as true, the moving party is entitled to judgment as a matter of law.” Fajardo v. County. of
`Los Angeles, 179 F.3d 698, 699 (9th Cir. 1999) (citation omitted).
`
`IV. ARGUMENT
`PersonalWeb lacks standing to assert any claim against CloudFront based on the patents in
`suit. To bring a claim for patent infringement, a plaintiff must show that it has the right to exclude
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`MOTION FOR JUDGMENT ON THE PLEADINGS
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`4
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`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`the defendants from engaging in the alleged infringing activity. See WiAV Sols. LLC v. Motorola,
`Inc., 631 F.3d 1257, 1267 (Fed. Cir. 2010). Here, PersonalWeb’s rights to the patents are governed
`by the Kinetech and Digital Island Agreement. Amended Counterclaim, ¶ 1; see also McCoy v.
`Mitsuboshi Cutlery, Inc., 67 F.3d 917, 920 (Fed. Cir. 1995) (“[I]ntellectual property rights, like any
`property rights, are subject to the contractual obligations of their owner and the applicable law...”)
`(citing Mallinckrodt, Inc. v. Medipart, Inc., 976 F.2d 700, 703 (Fed. Cir. 1992)). The Agreement
`sets forth separate exclusive fields of use for the two co-owners of the patents, and limits the en-
`forcement rights of each to its own field. PersonalWeb’s standing to accuse CloudFront of in-
`fringement therefore turns on whether it falls within PersonalWeb’s or Level 3’s exclusive field as
`defined by the Agreement.
`The Agreement is referenced and relied on in the pleadings. Amended Counterclaim, ¶¶ 1-
`3. The Court can therefore consider the complete document in determining whether the allegations
`of the complaint state a claim upon which relief can be granted. See Swartz v. KPMG LLP,
`476 F.3d 756, 763 (9th Cir. 2007) (also holding that explicit incorporation by reference in the com-
`plaint is not required); see also O’Connor v. Uber Techs., Inc., 58 F. Supp. 3d 989, 995 (N.D. Cal.
`2014). Specifically, the Court may apply the terms of the Agreement according to their ordinary
`meaning unless those terms are ambiguous on their face. See, e.g., Cook Inc. v. Medtronic, Inc.,
`No. C 06 00333 JSW, 2006 WL 1806159, at *4 (N.D. Cal. June 29, 2006) (interpreting contract in
`deciding motion for judgment on the pleadings based on the “usual and ordinary meaning” of the
`agreement’s language); see also Knowles Elecs., LLC v. Am. Audio Component, Inc., No. 06 C
`6213, 2017 WL 914461, at *5-7 (N.D. Ill. Mar. 8, 2017) (construing patent license incorporated
`into pleadings as a matter of law in granting motion for judgment on the pleadings).
`Level 3’s exclusive field of use in the Agreement is:
`[T]he 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
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`MOTION FOR JUDGMENT ON THE PLEADINGS
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`5
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`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`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.
`Agreement, Schedule 1.2. This provision defines Level 3’s exclusive field as content delivery net-
`works, and provides a description of general CDN functions and infrastructure, such as the “aver-
`age” speed of content service, “typical” number of users served, and possible replication of the
`content to “many” servers, some of which may be at ISP sites.
`The only argument PersonalWeb has advanced in support of its standing is that this provi-
`sion limits Level 3’s field to CDNs that are deployed at ISP sites. (See RJN, Ex. 6 (Sur-Reply) at
`1:25-27.) But that is not what the Agreement says. It states that in a CDN “some” customer content
`is replicated to “possibly many” alternate servers, “many” being at ISP sites. Reasonable parties
`would not use such loose language to allocate patent rights, which, like a property deed, must have
`precise boundaries. The only boundary in the definition of Level 3’s exclusive field is CDNs. The
`rest of the provision merely describes what CDNs typically entail: they may serve many users,
`they may be faster, they may include many servers (or may not), and some of those servers may be
`at ISP sites or may not. PersonalWeb is simply cherry-picking the phrase “ISP sites” out of context
`while ignoring the rest of the language in the same sentence.
`The result would be no different if the Court were to look provisionally to the extrinsic
`evidence, as the parties’ course of dealing confirms that the field of use provision is not ambiguous.
`Three weeks after signing the Agreement, Digital Island (Level 3’s predecessor in interest) sued
`Akamai Inc. for patent infringement by CDNs. It alleged:
`On information and belief, Akamai, with full knowledge of the ’791 patent, has
`provided and continues to provide an Internet content delivery service . . . that in-
`fringes one or more claims of the ’791 patent.
`(RJN, Ex. 7, ¶ 9). Digital Island did not limit its infringement allegations to CDNs “deployed at
`ISPs” or draw any other distinction along the lines PersonalWeb has suggested. “The conduct of
`the parties after execution of the contract and before any controversy has arisen as to its effect
`affords the most reliable evidence of the parties’ intentions.” Phx. Techs. Ltd. v. VMware, Inc.,
`
`MOTION FOR JUDGMENT ON THE PLEADINGS
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`6
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`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`

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`No. 15-cv-01414-HSG, 2017 WL 1289863, at *3 (N.D. Cal. Jan. 6, 2017) (citing Kennecott v. Un-
`ion Oil, 196 Cal. App. 3d 1179, 189-90 (1987)). The Court should apply the unambiguous meaning
`of the term granting Level 3 exclusive rights to enforce against CDNs, and reject PersonalWeb’s
`strained interpretation.
`
`V.
`
`CONCLUSION
`PersonalWeb has no standing to accuse CloudFront; only Level 3 does. And Level 3’s
`nominal presence in the lawsuit does not save PersonalWeb’s claims, because Level 3 has con-
`firmed it has not asserted any infringement claims against Amazon or any other defendant. The
`Court should therefore hold that PersonalWeb lacks standing to accuse CloudFront in this and all
`its other pending lawsuits in these proceedings, and dismiss PersonalWeb’s claims against Amazon
`in their entirety with prejudice.
`
`Dated: April 24, 2019
`
`
`
`Respectfully Submitted,
`
`
`
`FENWICK & WEST LLP
`
`
`
`By: /s/J. David Hadden
`J. David Hadden
`Saina S. Shamilov
`Todd R. Gregorian
`Phillip J. Haack
`Ravi R. Ranganath
`Chieh Tung
`
`Attorneys for AMAZON.COM, INC.
`and AMAZON WEB SERVICES, INC.
`
`MOTION FOR JUDGMENT ON THE PLEADINGS
`
`7
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`Case No.: 5:18-md-02834-BLF
`Case No.: 5:18-cv-00767-BLF
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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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