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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
`
`IN RE: PERSONALWEB
`TECHNOLOGIES, LLC ET AL PATENT
`LITIGATION
`
`AMAZON.COM, INC., et al.,
`
`Plaintiffs,
`
`v.
`
`PERSONAL WEB TECHNOLOGIES,
`LLC, et al.,
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`Defendants.
`
`PERSONALWEB TECHNOLOGIES, LLC,
`et al.,
`
`Plaintiffs,
`
`v.
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`TWITCH INTERACTIVE, INC.,
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`Defendant.
`
`
`
`
`
`
`
`Case No. 18-md-02834-BLF
`
`
`ORDER DECLINING TO CLARIFY OR
`SUPPLEMENT CLAIM
`CONSTRUCTION ORDER
`
`[RE: ECF 507]
`
`Case No. 18-cv-00767-BLF
`
`[RE: ECF 137]
`
`Case No. 18-cv-05619-BLF
`
`
`[RE: ECF 48]
`
`On August 16, 2019, this Court issued its Claim Construction Order in this multidistrict
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`litigation (“MDL”), construing all ten disputed claims terms identified by the parties. Mere hours
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`later, the parties began a heated dispute about whether any of PersonalWeb Technologies, LLC’s
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`(“PersonalWeb”) infringement theories were valid in light of the Court’s constructions. As a result,
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 2 of 10
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`PersonalWeb filed the present Motion to Clarify or Supplement Claim Construction Order, seeking
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`clarification or supplementation of the Court’s construction of the term “unauthorized or
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`unlicensed.” See Motion, ECF 507. PersonalWeb asserts that it “needs clarification to determine
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`if the Court meant something different than ‘valid rights to content’ (i.e., a narrower/license
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`instrument-type of meaning).” Motion at 2. If so, PersonalWeb states that it will withdraw its
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`technical expert’s infringement report and dismiss the case, preserving its appellate rights. Id.
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`After the Motion was filed, the Court held a telephone conference and heard the parties’
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`positions. ECF 514. Subsequently, Amazon filed an Opposition (Opp’n, ECF 521) and
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`PersonalWeb filed a Reply (Reply, ECF 527). Pursuant to Civil Local Rule 7-1(b), the Court finds
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`the instant motion suitable for decision without oral argument and hereby VACATES the hearing
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`set for December 12, 2019. For the reasons discussed below, the Court DENIES PersonalWeb’s
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`motion.
`
`I. BACKGROUND
`
`In this MDL, PersonalWeb alleges patent infringement by Amazon.com, Inc. and Amazon
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`Web Services, Inc., and separately by dozens of Amazon’s customers (collectively, “Amazon”),
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`related to the customers’ use of Amazon’s CloudFront and Simple Storage Service (“S3”) in
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`connection with downloading files from S3. Two of the cases comprising this MDL are proceeding
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`at this time: Amazon v. PersonalWeb (Case No. 5:18-cv-00767-BLF), in which PersonalWeb asserts
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`counterclaims of patent infringement, and PersonalWeb v. Twitch Interactive, Inc. (Case No. 5:18-
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`cv-05619-BLF), in which PersonalWeb asserts claims of patent infringement and which the Court
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`has designated as a representative customer case. In each of these two actions, PersonalWeb alleges
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`infringement of four patents: U.S. Patent Nos. 6,928,442 (“the ’442 patent”); 7,802,310 (“the ’310
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`patent”); 7,945,544 (“the ’544 patent”); and 8,099,420 (“the ’420 patent”).
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`PersonalWeb filed its opening claim construction brief on April 8, 2019. ECF 399. The
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`next day, the Court issued an order instructing the parties to limit the briefing to no more than ten
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`disputed terms, pursuant to Patent Local Rules for the Northern District of California. ECF 401,
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`See Patent L.R. 4-3(c). PersonalWeb filed an amended opening claim construction brief on April
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 3 of 10
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`12, 2019.
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`The term “licensed/unlicensed,” as found in claim 20 of the ’310 patent and claim 10 of the
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`’442 patent, was included in PersonalWeb’s initial (and noncompliant) opening claim construction
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`brief (ECF 399) but was dropped in the amended brief (ECF 406). The parties’ respective proposals
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`are below:
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`PersonalWeb’s Proposal
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`Amazon’s Proposal
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`“un-/licensed:” plain and ordinary meaning
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`Alternative Construction: “un/licensed:” not
`legally / legally permitted
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`valid / invalid right to content
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`ECF 399 at 2. Claim construction briefing was concluded on April 29, 2019. See ECF 406;
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`412; 420. The Court held a tutorial on May 2, 2019, followed by a Markman hearing on May 24,
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`2019, and issued its Claim Construction Order on August 16, 2019. Order, ECF 485.
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`The disputed term for which PersonalWeb seeks clarification, is “unauthorized or
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`unlicensed,” as found in claim 20 of the ’310 patent. The parties’ proposed constructions are listed
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`below:
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`PersonalWeb’s Proposal
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`Amazon’s Proposal
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`Plain and ordinary meaning
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`Alternatively:
`“not permitted or not permitted under a license”
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`“not compliant with a valid license”
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`Order at 6. During the claim construction proceedings, PersonalWeb contended that in the
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`context of the ’310 patent, the plain and ordinary meaning of “authorization” equates to
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`“permission.” See Id. In contrast, in PersonalWeb’s view, “license” was something narrower—“a
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`specific kind of authorization.” Id. In other words, PersonalWeb’s position was that “unauthorized”
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`should be construed differently than “unlicensed” and therefore the term “unauthorized or
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`unlicensed,” if construed at all, should be construed in a way that was boarder than “unlicensed”
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`and consistent with the “permission” theory. See ECF 406 at 7 (“If Amazon’s proposed construction
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`is adopted, it should be clarified that ‘unauthorized’ is not limited to the legal and/or contractual
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`sense of the of term ‘unlicensed.’”).
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 4 of 10
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`In distinguishing between “unauthorized” and “unlicensed,” PersonalWeb argued the
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`following:
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`A “license,” on the other hand, means something narrower. It is a
`specific kind of authorization. The specification discusses licenses in
`the sense of having legal permission to have a copy of a file. For
`example, the specification states that a license table 136 maintains a
`record of the True Names of “key files in the product (that is, files
`which are required in order to use the product, and which do not occur
`in other products)[.] Typically, for a software product, this would
`include the main executable image and perhaps other major files such
`as clip-art, scripts, or online help.” ’310 at 31:17-22. This
`demonstrates the specification contemplates having a license is
`having legal permission to possess things like program executables
`and images such as clip-art, items that may be the subject, for
`example, of a copyright license, or a license granted by an End User
`License Agreement (EULA).
`
`Id. at 2-3.
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`The Court rejected PersonalWeb’s argument and noted that “while PersonalWeb’s argument
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`in favor of separate meanings has superficial appeal, the intrinsic record reveals that the patentee
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`used the words ‘authorized’ and ‘licensed’ interchangeably in the ’310 patent.” Id. at 8. The Court
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`adopted Amazon’s proposed construction and held that “unauthorized or unlicensed” means “not
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`compliant with a valid license.” Order at 6-12.
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`During the claim construction proceedings, both parties discussed two Markman orders from
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`the Eastern District of Texas involving some of the patents-in-suit in the instant action: (1)
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`PersonalWeb Techs., LLC v. Amazon.com Inc., No. 6:11-cv-658, Dkt. No. 140 (E.D. Tex. Aug. 5,
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`2013) (“Davis Order”) and (2) PersonalWeb Techs., LLC v. IBM Corp., No. 6:12-cv-661-JRG, Dkt.
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`No. 103 at 25, 28 (E.D. Tex. Mar. 11, 2016) (“Gilstrap Order”). Order at 11. PersonalWeb argued
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`and the Court agreed that neither the Davis Order nor the Gilstrap Order were binding in this matter.
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`Id. The Court noted that “[n]either order addressed the ‘unauthorized or unlicensed’ term found in
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`claim 20 of the ’310 patent” and therefore neither order was “directly on point with the instant
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`dispute.” Id. Nevertheless, the Court found the Gilstrap Order to be the closer of two, in which
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`Judge Gilstrap noted that “‘authorization’ merely refers to a valid license” – a finding that was “not
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`inconsistent with the Court’s ruling on the instant dispute.” Id.
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`Shortly after the Court issued the Order, Counsel for Amazon reached out to PersonalWeb’s
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 5 of 10
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`counsel because Amazon believed that PersonalWeb had no viable patent infringement theories in
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`light of the Court’s constructions. Motion at 1. In response, PersonalWeb informed Amazon that
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`because Amazon had, earlier in the claim construction proceedings, advocated for the same
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`constructions as those in the Gilstrap Order, PersonalWeb intended to apply Judge Gilstrap’s
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`construction of “licensed/unlicensed” as “valid/invalid rights to content” to its infringement
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`analysis. Id. at 1-2. Over Amazon’s strong objection and threats of sanctions, PersonalWeb’s expert
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`did, in fact, apply Judge Gilstrap’s construction to his infringement analysis. Id. at 2. In addition,
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`PersonalWeb filed the present motion because it believes it needs “clarification to determine if the
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`Court meant something different than ‘valid rights to content’ (i.e., a narrower/license instrument-
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`type of meaning).” Id. If so, PersonalWeb states that it will withdraw the report of the technical
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`expert and dismiss, in order to preserve appellate rights. Id.
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`In PersonalWeb’s view, this Court’s Order “does not appear fully dispositive on what it
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`means for something to be ‘licensed’ versus ‘unlicensed.’” Motion at 2. Therefore, PersonalWeb
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`asks this Court to “expressly adopt Judge Gilstrap’s March 11, 2016 order, construing ‘licensed’
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`and ‘unlicensed.’” Id. at 4. To support this position, PersonalWeb points to several instances in
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`which Amazon advocated for Judge Gilstrap’s constructions during the claim construction
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`proceedings. Reply at 2-4 (citing Amazon’s Patent L.R. 4-2 Disclosures; the parties’ Joint Claim
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`Construction and Prehearing Statement (ECF 380); Amazon’s Responsive Claim Construction Brief
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`(ECF 412); May 24, 2019 claim construction hearing).
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` Amazon responds that PersonalWeb’s Motion “requests that the Court ‘supplement’ the
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`claim construction order by plugging into the Court’s construction of the term ‘unauthorized or
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`unlicensed’ a construction by a different court of a different claim term not at issue here.” Opp’n at
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`1. Amazon argues that “PersonalWeb had every opportunity to seek construction of different terms,
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`or to seek different constructions of ‘unauthorized’ or ‘unlicensed,’ or to oppose Amazon’s proposed
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`construction that the Court adopted because it was ‘unclear’ – PersonalWeb did none of those
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`things.” Id. at 2. Next, Amazon points out several instances in which PersonalWeb had argued
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`against Judge Gilstrap’s constructions because PersonalWeb believed that “‘license’ had a clear
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 6 of 10
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`meaning that was different from ‘authorization.’” See id. at 3-5. Amazon further argues that
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`PersonalWeb’s “requested change to the Court’s claim construction also misapplies Judge Gilstrap’s
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`order” because “Judge Gilstrap construed the claim terms ‘unauthorized’ and ‘unlicensed’ in the
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`same way as this Court did” and “referred to ‘rights to content’ to resolve an entirely different
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`dispute relating to patent claims not asserted in this case.” Id. at 9.
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`II.
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`PERSONALWEB’S MOTION TO CLARIFY OR SUPPLEMENT IS
`PROCEDURALLY PROPER
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`Amazon insists that PersonalWeb’s Motion is one for reconsideration because it has
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`“repackage[d] the same dispute that the Court already resolved against PersonalWeb on a complete
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`record.” Opp’n at 1. Thus, Amazon invites the Court to “summarily deny the motion” because
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`PersonalWeb failed to follow the local rules applicable to motions for reconsideration. Opp’n at 2;
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`7-8; see also Civil Local Rule 7-9(b).
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`PersonalWeb responds that its motion is not for reconsideration and acknowledges that “a
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`motion for reconsideration requires a change in law or fact or a ‘manifest failure’ to consider
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`material facts or dispositive law,” none of which are present here. Reply at 4.
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`The Court disagrees with Amazon. There is nothing inherently improper in requesting
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`clarification of a court’s claim construction. See EON Corp IP Holdings LLC v. Cisco Sys. Inc,
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`2014 WL 793323, at *3-4 (N.D. Cal. Feb. 25, 2014); Wi-Lan USA, Inc. v. Apple Inc., 2014 WL
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`12789112, at *1 (S.D. Cal. Apr. 11, 2014). “[D]istrict courts may engage in rolling claim
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`construction, in which the court revisits and alters its interpretation of the claim terms as its
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`understanding of the technology evolves.” Conoco, Inc. v. Energy & Envtl. Int’l, L.C., 460 F.3d
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`1349, 1359 (Fed. Cir. 2006) (citing Guttman, Inc. v. Kopykake Enters., Inc., 302 F.3d 1352, 1361
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`(Fed. Cir. 2002)). Thus, the Court finds that PersonalWeb’s Motion was properly submitted and
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`considers the arguments below.
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`III. THE WORD “LICENSE” IN THE COURT’S CONSTRUCTION DOES NOT
`REQUIRE CLARIFICATION OR SUPPLEMENTATION
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`In its Motion, PersonalWeb argues that this Court’s Claim Construction Order “does not
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`appear fully dispositive on what it means for something to be ‘licensed’ versus ‘unlicensed,’” an
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 7 of 10
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`issue that it believes is likely case dispositive. Motion at 2. PersonalWeb frames the parties’ dispute
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`as follows: PersonalWeb believes that “‘license’ only requires ‘valid rights to content’ as per Judge
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`Gilstrap’s order,’” while Amazon is of the opinion that “a ‘license’ requires some sort of a written
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`instrument or oral agreement.” Id. To resolve this dispute, PersonalWeb invites the Court to
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`expressly adopt and insert Judge Gilstrap’s construction for the term “licensed/unlicensed” into this
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`Court’s construction for the term “unauthorized or unlicensed,” effectively changing the Court’s
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`construction from “not compliant with a valid license” to “not compliant with a valid right to
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`content.” See generally Motion; Reply. For the reasons stated below, the Court declines to do so.
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`First, PersonalWeb’s unambiguous and consistent position before this Court and throughout
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`the claim construction proceedings has been that it understood what the term “licensed/unlicensed”
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`means in the context of the claims at issue. PersonalWeb consistently advocated that the terms
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`“unauthorized” and “unlicensed” (1) should be given their plain and ordinary meaning and (2) do
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`not mean the same thing. See ECF 406 at 1-5. PersonalWeb’s position has been that the plain and
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`ordinary meaning of “authorization” equates to “permission,” whereas “[a] ‘license,’ on the other
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`hand, means something narrower. It is a specific kind of authorization.” ECF 406 at 2 (emphasis
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`added); see also id. at 3 (“This demonstrates the specification contemplates having a license is
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`having legal permission to possess things like program executables and images such as clip-art,
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`items that may be the subject, for example, of a copyright license, or a license granted by an End
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`User License Agreement (EULA).”) (emphasis added).
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`PersonalWeb’s alternative construction for “unauthorized or unlicensed” further indicates
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`that PersonalWeb has never been confused about what the term “license” means. As an alternative
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`construction, PersonalWeb proposed that “unauthorized or unlicensed” should be construed as “not
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`permitted or not permitted under a license.” Order at 6 (emphasis added). If PersonalWeb believed
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`that the term “license” needed clarification, it could have, and should have, proposed a different
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`(and presumably clearer) construction.
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`PersonalWeb’s position was clear: it was asking the Court to construe “authorization” to
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`mean something different and boarder than “license.” See ECF 406 at 7 (“If Amazon’s proposed
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 8 of 10
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`construction is adopted, it should be clarified that ‘unauthorized’ is not limited to the legal and/or
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`contractual sense of the of term ‘unlicensed.’”) (emphasis added). PersonalWeb lost this argument
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`when the Court found that “the intrinsic record reveals that the patentee used the words ‘authorized’
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`and ‘licensed’ interchangeably.” Order at 8. In other words, in the battle between the broader
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`meaning of “unauthorized” and the narrower meaning of “unlicensed,” the Court chose the narrower
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`concept: regulating access to licensed content. Order at 10 (“[T]he specification explicitly and
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`interchangeably uses the words ‘authorized’ and ‘licensed’ to describe the same concept—
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`regulating access to licensed content.”). PersonalWeb’s proposed “clarification” appears to be
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`nothing more than an attempt to regain the broader meaning it sought (and did not get) for the well-
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`understood term “license” – which the Court, once again, rejects.
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`Second, PersonalWeb was on notice, for months, of Amazon’s proposed construction, which
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`the Court eventually adopted. PersonalWeb has had ample opportunity to inform the Court that it
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`believed Amazon’s proposed construction was unclear and ask for a different construction. Instead,
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`PersonalWeb consistently advocated for the plain and ordinary meaning of the terms “unauthorized”
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`and “unlicensed.” A request for clarification may be appropriate where a court puts forward its own
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`construction, which the parties may find unclear. But in this case, the Court adopted a construction
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`that was proposed by a party, Amazon. PersonalWeb was on notice that the Court may adopt
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`Amazon’s construction but chose to continue to advocate for plain and ordinary meaning and not to
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`discuss any potential ambiguity or lack of clarity regarding the use of the word “license” in
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`Amazon’s proposed construction.
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`Similarly, PersonalWeb was on notice
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`that
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`in
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`the Court’s view,
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`the
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`term
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`“licensed/unlicensed,” standing alone, does not require construction. The Court noted at the claim
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`construction hearing:
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`
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`The Court: but since [Judge Gilstrap] wasn’t asked to deal with the
`term “unauthorized or unlicensed,” construing the term “unlicensed”
`is -- I mean, any of us can do that.
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`That actually doesn’t need construction when it stands alone.
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`Mr. Hadden: understood.
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 9 of 10
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`ECF 446 (Transcript of claim construction hearing) at 19:9-13.
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`Third, PersonalWeb does not ask this Court to construe the stand-alone term
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`“licensed/unlicensed,” as it is used in an asserted claim. Instead, by way of “clarification,”
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`PersonalWeb is inviting this Court to adopt another court’s construction addressing different claims
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`not at issue in this case and resolving a different dispute not present here. PersonalWeb does not
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`explain why Judge Gilstrap’s construction for “licensed/unlicensed” is correct for this case—yet it
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`asks the Court to adopt that construction merely because Amazon had advocated for it at the earlier
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`stages of the claim construction proceedings. And again, focusing on the motion at hand,
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`PersonalWeb is seeking clarification of a claim construction, not a claim term in an asserted claim.
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`Moreover, PersonalWeb’s reliance on this Court’s characterization of the Gilstrap Order is
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`misplaced. This Court found the Gilstrap Order “persuasive and not inconsistent with the Court’s
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`ruling on the instant dispute,” but only to the extent that Judge Gilstrap, like this Court, equated
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`“authorization” with a “valid license.” See Order at 11.
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`IV. THE PARTIES’ INFRINGEMENT/NON-INFRINGEMENT ANALYSIS
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`In one sentence in its Reply brief, PersonalWeb states that it “seeks clarification of the effect
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`of the Court’s existing ruling on its infringement arguments.” Reply at 5. However, the Motion
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`does not make any arguments to that effect. In its Motion, PersonalWeb seems to be addressing,
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`“[a]s a corollary to the issue of construction,” whether PersonalWeb’s infringement theories in its
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`expert report are new and whether PersonalWeb should be foreclosed from asserting them. See
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`Motion 4-6. Nowhere in the Motion, has PersonalWeb invited the Court to clarify how the current
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`claim construction ruling impacts its infringement analysis. Moreover, it is not appropriate for the
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`sponsoring party to seek judicial approval of its expert reports; rather, it is up to an objecting party
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`to move to strike inadmissible evidence. In sum, The Court finds that this issue is not properly
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`before the Court.
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`V. CONCLUSION
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`For the foregoing reasons, the Court declines to clarify or supplement its Claim Construction
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`Order (ECF 485), on the basis that it is unnecessary. PersonalWeb’s Motion to Clarify or
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`Northern District of California
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`Case 5:18-md-02834-BLF Document 537 Filed 10/01/19 Page 10 of 10
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`Supplement Claim Construction Order is DENIED.
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`IT IS SO ORDERED.
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`Dated: October 1, 2019
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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