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`Case 5:18-md-02834-BLF Document 527 Filed 09/11/19 Page 1 of 10
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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 B. HEDRICK (SBN 239359)
`vhedrick@stubbsalderton.com
`STUBBS ALDERTON MARKILES, LLP
`15260 Ventura Boulevard, 20TH Floor
`Sherman Oaks, CA 91403
`Telephone:
`(818) 444-4500
`Facsimile:
`(818) 444-4520
`
`Attorneys for PersonalWeb Technologies, LLC
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`CASE NO.: 5:18-MD-02834-BLF
`IN RE PERSONAL WEB TECHNOLOGIES,
`LLC, ET AL., PATENT LITIGATION
`
`AMAZON.COM, INC. and AMAZON WEB
`SERVICES, INC.,
`
`Plaintiffs,
`v.
`
`PERSONALWEB TECHNOLOGIES, LLC,
`and LEVEL 3 COMMUNICATIONS LLC,
`
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC,
`and LEVEL 3 COMMUNICATIONS, LLC,
`
`Counterclaimants,
`v.
`AMAZON.COM, INC. and AMAZON WEB
`SERVICES, INC,
`
`
`
`Case No.: 5:18-cv-00767-BLF
`Case No.: 5:18-cv-05619-BLF
`REPLY ON MOTION FOR
`CLARIFICATION
`Hearing Date: December 12, 2019
`Time:
`9:00 a.m.
`Courtroom 3, 5th Fl.
`Place:
`Judge:
`Hon. Beth L. Freeman
`
`Trial Date: March 16, 2020
`
`Defendants.
`
`Counterdefendants.
`
`
`
`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
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`

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`Case 5:18-md-02834-BLF Document 527 Filed 09/11/19 Page 2 of 10
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`PERSONALWEB TECHNOLOGIES, LLC,
`and LEVEL 3 COMMUNICATIONS, LLC,
`
`Plaintiffs,
`v.
`
`TWITCH INTERACTIVE, INC., a Delaware
`corporation,
`
`
`
`
`Defendant.
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`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
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`

`

`
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`Case 5:18-md-02834-BLF Document 527 Filed 09/11/19 Page 3 of 10
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`I.
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`INTRODUCTION
`The Court’s Order Construing Claims in this case (Dkt. No. 485 (“Claim Construction
`Order”)) construes “unauthorized or unlicensed” as “not compliant with a valid license”. By this
`Motion, PersonalWeb does not seek reconsideration of said Order or said construction. Rather,
`PersonalWeb seeks either clarification or supplementation of the Court’s use of the word “license” in
`its claim construction. Local Rule 7-9(b) is inapplicable because Amazon changed its argument.
`This Motion is not predicated on changed facts or law. PersonalWeb disclaims any interest in
`seeking reconsideration of anything having to do with whether the two words “unauthorized” or
`“unlicensed” mean different things in the claims.
`The parties’ Joint Claim Construction and Prehearing Statement (Patent L.R. 4-3, Dkt. No.
`380), the claim construction briefing, the oral hearing itself—all culminating in the Claim
`Construction Order—result in what is in effect a construction that includes a form of the construed
`term in the construction itself (i.e., a definition that uses the word being defined). There is a certain
`circularity involved here. PersonalWeb submits that this Motion places the parties and Court at
`crossroads, i.e., Court clarification, now, of what a “license” or a “valid license” means is likely case
`dispositive. As PersonalWeb stated in its Motion, if the Court meant something different than “valid
`rights to content,” (i.e. a narrower/license instrument-type of meaning), then PersonalWeb will
`withdraw the report of its technical expert and consent to judgment of noninfringement, preserving
`its appellate rights.
`AMAZON AND TWITCH ARE TRYING TO HAVE IT BOTH WAYS
`II.
`On multiple occasions during the claim construction process Amazon and Twitch proposed
`constructions of the claim terms “licensed” and “unlicensed,” as meaning “valid / invalid right[s] to
`content.” (Dkt. 380 (Joint Claim Construction and Prehearing Statement), at 19; Ex. 1 to Sherman
`Decl. (Amazon’s Jan. 28, 2019 Patent L.R. 4-2 Disclosure, Ex. A, p. 12).) The entire basis of the
`sanctions threat is based on an Amazon/Twitch construction of “license” that differs from express
`positions and arguments that Amazon/Twitch repeatedly made in the process of the just-completed
`claim construction process. Having embraced and adopted Judge Gilstrap’s logic and conclusions
`about “licensed” meaning “valid rights to content”—and having prevailed before this Court—
`
`
`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`1
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`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
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`

`

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`Case 5:18-md-02834-BLF Document 527 Filed 09/11/19 Page 4 of 10
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`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
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`Amazon/Twitch’s sanctions threat disowns their prior representations. Amazon characterizing
`PersonalWeb as asking this Court to “plug[] into the Court’s construction of the term ‘unauthorized
`or unlicensed’ a construction by a different court of a different claim term not at issue here” (Dkt.
`No. 521 (Opp.) at 1:3-4) is ironic. It is ironic because Amazon’s claim construction arguments were
`based on the same Judge Gilstrap constructions. In retreating from its former position that
`“licensed” meant “valid rights to content,” Amazon/Twitch are reduced to making the tortured and
`nonsensical argument that the adjectival and noun forms of “licensed” and “license” mean different
`things. (Id. at pp. 5-6.)
`There are three data points that reveal the circularity of approach and now demonstrate the
`need for clarification:
`First, in Amazon’s Patent L.R. 4-2 Disclosure served on January 28, 2019, Amazon
`proposed constructions of the terms “licensed” and “unlicensed,” citing the Gilstrap Order as
`“valid/invalid rights to content.” (Declaration of Michael A. Sherman (“Sherman Decl.”), Ex. 1
`(Amazon’s Jan. 28, 2019 Patent L.R. 4-2 Disclosure, Ex. A, p. 12).) Twitch followed suit, and
`proposed constructions of the terms “licensed” and “unlicensed,” citing the Gilstrap Order as
`“valid/invalid rights to content.” (Sherman Decl., Ex. 2 (Twitch’s Jan. 28, 2019 Patent L.R. 4-2
`Disclosure, Ex. A, p. 12).) This was followed shortly by the parties’ Joint Claim Construction and
`Prehearing Statement pursuant to Patent Local Rule 4-3 filed on March 12, 2019 (Dkt. No. 380),
`where Amazon and Twitch again proposed constructions of the terms “licensed” and “unlicensed,”
`citing the Gilstrap Order, as “valid / invalid right to content.” (Dkt. 380, at 19.). Ultimately those
`two terms were not the actual terms subject to the Claim Construction Order because when the Court
`ordered the parties to reduce the number of terms for construction to 10 terms (April 9, 2019 Dkt No.
`401), the terms “licensed” / “unlicensed” did not make the final cut.
`Second, Amazon and Twitch persisted in embracing Judge Gilstrap’s “valid / invalid right to
`content” construction made in the IBM case when, on pages 3-9 of the Responsive Claim
`Construction Brief of Amazon and Twitch filed April 22, 2019 (Dkt. No. 412), in section III A, titled
`“The Patents-in-Suit treat ‘authorization’ and ‘licensing’ the same and disclose no alternate meaning
`for either concept” Amazon/Twitch asserted:
`
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`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`2
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`Judge Gilstrap recognized that licensing and authorization are the
`same concept in the patents, and provided the correct construction for
`these terms. (Compare Gilstrap Order at 25 (construing “licensed” as
`“valid rights to content”), with id. at 28 (construing “authorized” as
`“compliant with a valid license”); see also id. (“The Court therefore
`reaches the same conclusions [regarding the “authorization” terms] for
`substantially the same reasons as for the terms ‘licensed’ and
`‘unlicensed.’”).) In his order, Judge Gilstrap quoted the precise
`language proposed for construction here. (Gilstrap Order at 25
`(quoting the phrase “unauthorized or unlicensed copies” in the ‘442
`patent).).
`(Dkt. 412, at 8:3-10.)
`Third, at the claim construction hearing on May 24, 2019, the following two exchanges
`occurred, highlighting both (1) Amazon/Twitch’s equation of Judge Gilstrap’s prior constructions in
`the IBM case as directly applicable here, coupled with (2) the Court’s response to such equation, and
`the Court’s observation about the ease of a construction of “unlicensed:”
`
`Mr. Hadden: Good morning, Your Honor. I have some books, too. It’s
`probably not surprising.
`
`The Court: No. It’s always helpful.
`
`Mr. Hadden: (handing.) Okay. Obviously we have different
`constructions. We’re essentially adopting the constructions from
`Judge Gilstrap in the prior case where “unauthorized or unlicensed”
`means “not compliant with a valid license,” and “authorization” means
`“a valid license.”
`
`***
`The Court: When Judge Gilstrap issued his order, he was construing
`“authorization” and was not looking at this other claim term of
`“authorized” or “unlicensed” or --
`
`Mr. Hadden: Part of that is correct, part of that is not correct.
`The Court: So --
`Mr. Hadden: He construed “authorization” and he construed “license.”
`The Court: Well, license, yes, he did.
`Mr. Hadden: And he did not construe the terms together. But in his
`order, he quotes that language directly from that claim, “unauthorized
`or unlicensed,” in his construction of “authorization.”
`The Court: but since he wasn’t asked to deal with the term
`“unauthorized or unlicensed,” construing the term “unlicensed” is -- I
`mean, any of us can do that. That actually doesn’t need construction
`when it stands alone.
`
`
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`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`3
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`
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`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
`
`

`

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`Case 5:18-md-02834-BLF Document 527 Filed 09/11/19 Page 6 of 10
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`Mr. Hadden: understood.
`
`
`(Dkt. 446 (Transcript of claim construction hearing), at 15:15-23; 18:20-19:13.) As quoted above,
`the Court added, “when it stand[s] alone.” (Dkt 446, at 19:12.) Given the Court finding in its Claim
`Construction Order that “the patentee used the words ‘authorized’ and ‘licensed’ interchangeably in
`the ‘310 patent” (Dkt. 485, at 8:18-19), the Court’s observation on ease of construction appears
`consistent and directly applicable to the reason now for clarification/supplementation.
`PersonalWeb thus had good reason to rely on a meaning of “license” consistent with the
`positions consistently advocated by Amazon/Twitch in adopting Judge Gilstrap’s “valid rights to
`content” when the Court adopted Amazon’s/Twitch’s claim construction. At least until Mr.
`Hadden’s letter a few hours later, that same date, threatening Rule 11 sanctions.
`III. THERE IS EXTENSIVE JURISPRUDENCE RECOGNIZING THIS COURT’S
`AUTHORITY TO CLARIFY/SUPPLEMENT ITS CLAIM CONSTRUCTION
`ORDER VIA A MOTION JUST LIKE THIS, OR EVEN ON ITS OWN
`Amazon argues that the present motion is really a motion for reconsideration. But a motion
`for reconsideration requires a change in law or fact or a “manifest failure” to consider material facts
`or dispositive law. Local Rule 7-9(b). That Rule does not apply because Amazon changed its
`position, no facts or law changed, and the parties did not ask the Court to consider construction of
`“licensed” / “unlicensed”—said terms not making the final cut as explained above.
`Nor would a motion for reconsideration make logical sense, because the present motion does
`not ask the court to “reexamine any evidence” or “reconsider any factual finding or legal conclusion
`in the Court’s Order.” Advanced Transit Dynamics, Inc. v. Ridge Corp., 2015 WL 12765141, at *5
`(C.D. Cal. Oct. 23, 2015) (holding that a motion to clarify preliminary injunction was not a motion
`for reconsideration and did not require compliance with local rules regarding reconsideration); see
`also TriQuint Semiconductor, Inc. v. Avago Techs. Ltd., 2012 WL 1432529, at *9 (D. Ariz. Apr. 25,
`2012) (holding requests for reconsideration to legal standards similar to Local Rule 7-9 but allowing
`motion for clarification without discussing those standards when the “parties’ interpretations of the
`claim construction go beyond what the Court intended in its Markman order.”).
`
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`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
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`

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`CASE NO: 5:18-MD-02834-BLF
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`Amazon argues that PersonalWeb relies on caselaw regarding motions for reconsideration.
`However, each of the cases sought both reconsideration of already construed terms and clarification
`of the impact of claim construction on legal arguments. Thus, there is no authority that a motion for
`clarification, and clarification alone, requires compliance with Local Rule 7-9. Instead,
`PersonalWeb seeks clarification of the effect of the Court’s existing ruling on its infringement
`arguments. See Wi-Lan USA, Inc. v. Apple Inc., 2014 WL 12789112 at *1 (S.D. Cal. Apr. 11, 2014)
`(same).
`Seeking additional claim construction, or even “construction of a construction,” is proper.
`“[D]istrict courts may engage in ‘rolling claim construction, in which the court revisits and alters its
`interpretation of the claim terms as its understanding of the technology evolves.’” Conoco, Inc. v.
`Energy & Envtl. Int’l, L.C., 460 F.3d 1349, 1359 (Fed. Cir. 2006) (citation omitted). Further,
`“[w]hen the parties raise an actual dispute regarding the proper scope of these claims, the court, not
`the jury, must resolve that dispute.” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d
`1351, 1360 (Fed. Cir. 2008).
`The cases PersonalWeb relied on effectively resulted in the further construction of a term in
`the initial claim construction. The cases involved construing the construction by expounding on the
`court’s meaning of its construction and resolving the parties’ disputes regarding the constructions’
`effect. First, in the Wi-Lan case, like here, the parties disagreed about whether existing constructions
`foreclosed plaintiffs’ infringement arguments. Wi-Lan at *1. The court had construed “wireless
`subscriber radio unit/wireless communication radio unit”. Id. Wi-Lan argued that the court’s
`construction of that term did not preclude it from arguing that the element could be met by
`“components of a user device.” Id. The court clarified that its claim construction did not foreclose
`Wi-Lan’s argument. Id. at 2. In practical terms, this effectively added the phrase “including
`components of a user device” to the court’s prior construction of the claim term.
`Similarly, in EON Corp., the plaintiff sought clarification of an argument related to a
`construed term. EON Corp IP Holdings LLC v. Cisco Sys. Inc., 2014 WL 793323, at *1 (N.D. Cal.
`Feb. 25, 2014). The parties disagreed whether an infringement argument was foreclosed due to the
`court’s construction of a claim term. Plaintiff objected that the court’s construction might imply that
`
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`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`Case 5:18-md-02834-BLF Document 527 Filed 09/11/19 Page 8 of 10
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`CASE NO: 5:18-CV-05619-BLF
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`the “connection” in the construction must be of a particular type, namely a circuit-switched network.
`The court clarified by adding a caveat to its existing ruling. It noted that its construction “was not
`intended to imply that a connection must occur in a circuit-switched rather than packet-switched
`network.” Id. at *4. Thus, the court construed its prior construction to clarify that the term
`“connection” in its construction was not intended to “rule packet-switched networks inside or
`outside the scope of the claim.” Id.
`Amazon and Twitch make the ad hominem argument that “‘clarity’ is the opposite of what
`PersonalWeb hopes to achieve” (Dkt. No. 521 at 1:22-23), and reference arguments that
`PersonalWeb advanced during the claim construction hearing, purportedly in support of
`PersonalWeb’s “real” motives, now, in bringing this Motion. They ignore that PersonalWeb lost,
`and Amazon and Twitch’s arguments prevailed and were accepted. But opposing clarification
`knowing that their hoped-for outcome expressed in the Opposition is that litigation will likely
`proceed, and enormous time and money will continue to be expended on what could be easily
`clarified, is cynical. Most surprising (and equally cynical) is that Amazon and Twitch are not
`joining PersonalWeb in stipulating that clarification should now occur—albeit on whatever form of
`construction they may advocate.
`IV. RESPONDING TO AMAZON AND TWITCH’S NON-INFRINGEMENT
`ARGUMENTS CAST AS CLAIM CONSTRUCTION ARGUMENTS
`Mr. de la Iglesia’s analysis focuses on rights to use a web asset to render a website’s
`webpage (e.g., “Any given conditional GET request comes from a particular browser, so the
`verification steps are particular to that particular browser. Any given 304 Not Modified response
`only revalidates that browser’s rights to content for a further period of time.” ¶ 103). Amazon
`ignores this and tries to move the discussion to the right of a particular user (i.e., individual) to some
`content—something that Mr. de la Igelesia’s analysis does not involve. (compare Dkt. No. 521
`(Opp.) at 6:3-4, 6:16 and 6:22-23 to Gregorian Decl. to Opp., Ex. 1 (de la Iglesia Report at ¶¶ 29, 40,
`73, 74, 77, 103, 114, 132, 144, 179. 184, and 185).)
`Amazon then criticizes Mr. de la Iglesia for not focusing on user rights. (Dkt. No. 521 at
`6:24-7:1). This is, of course, a given, as Mr. de la Iglesia never asserts that Twitch’s infringement of
`
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`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`the patent involves either (a) rights to use content beyond the method for a browser to render a
`particular webpage, or (b) any aspect of a user’s legal rights to any content. Amazon’s example of
`the ability to continue to access and use expired files is irrelevant because accessing individual
`expired files from a cache has nothing to do with displaying webpages.
`V.
`CONCLUSION
`If the Court-ordered construction “a valid license” means “a valid right to content,” then
`PersonalWeb is comfortable proceeding to summary judgment and trial. If the Court chooses a more
`restrictive interpretation of “a valid license” (i.e. a narrower/license instrument-type of meaning),
`then PersonalWeb does not wish for the Court to expend the significant effort in the upcoming
`months on this matter, or for it, Amazon or Twitch to expend more time, money and effort at the trial
`court. While the transcript from the scheduling conference of September 4 makes clear that this is
`not a typical motion, then, in addition to the authority cited above, PersonalWeb offers to the Court
`the conclusion of the United States Supreme Court in Dietz v. Bouldin, 136 S. Ct. 1885, 1892, 195 L.
`Ed. 2d 161 (2016) involving the scope of a district court’s inherent powers:
`
`The Federal Rules of Civil Procedure set out many of the specific
`powers of a federal district court. But they are not all encompassing.
`They make no provision, for example, for the power of a judge to hear
`a motion in limine, a motion to dismiss for forum non conveniens, or
`many other standard procedural devices trial courts around the country
`use every day in service of Rule 1’s paramount command: the just,
`speedy, and inexpensive resolution of disputes.
`
`Dietz, 136 S. Ct. at 1892 (footnote omitted).
`
`Dated: September 11, 2019
`
`STUBBS, ALDERTON & MARKILES, LLP
`
`By: /s/ Michael A. Sherman
`Michael A. Sherman
`Jeffrey F. Gersh
`Sandeep Seth
`Wesley W. Monroe
`Stanley H. Thompson
`Viviana Boero Hedrick
`
`PERSONALWEB’S REPLY ON MOTION
`FOR CLARIFICATION
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`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
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`

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`Case 5:18-md-02834-BLF Document 527 Filed 09/11/19 Page 10 of 10
`
`Theodore S. Maceiko (SBN
`150211)
`ted@maceikoip.com
`MACEIKO IP
`420 2nd Street
`Manhattan Beach, CA 90266
`Telephone: (310) 545-3311
`Facsimile: (310) 545-3344
`Attorneys for PERSONALWEB
`TECHNOLOGIES, LLC
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