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`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 1 of 17
`
`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
`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.
`
`Case No.: 5:18-cv-00767-BLF
`PERSONALWEB TECHNOLOGIES,
`LLC’S NON-OPPOSITION TO
`AMAZON.COM, INC. AND AMAZON
`WEB SERVICES, INC.’S MOTION FOR
`SUMMARY JUDGMENT OF
`NONINFRINGEMENT AND
`OPPOSITION TO MOTION
`REGARDING STANDING
`
`Date: November 15, 2019
`Time: 9:00 a.m.
`Dept.: Courtroom 3, 5th Floor
`Judge: Hon. Beth Labson Freeman
`
`
`
`Trial Date:
`
`March 16, 2020
`
`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.
`
`
`
`
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 2 of 17
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`PersonalWeb does not oppose entry of judgment of noninfringement on all of its counterclaims
`as set forth in Amazon’s Proposed Order (Dkt. 541-1). PersonalWeb does oppose the entry of the
`portion of Amazon’s Proposed Order, in square brackets, regarding standing. PersonalWeb also
`opposes any opinion, finding or conclusion by the Court that includes that summary judgment is
`entered based on anything other than as a direct result of the Court’s Claim Construction Order (Dkt.
`485).
`I.
`
`INTRODUCTION
`Other than the square bracketed portion of Amazon’s Proposed Order, the order Amazon seeks
`is not substantively different than the order proposed in PersonalWeb’s Motion for Judgment (Dkt.
`538) (as modified in PersonalWeb’s Reply (Dkt. 548)). Accordingly, PersonalWeb requests that its
`Motion for Judgment be considered ahead of Amazon’s Motion for Summary Judgment of
`Noninfringement. The granting of PersonalWeb’s Motion for Judgment would then moot Amazon’s
`Motion for Summary Judgment of Noninfringement.
`Following entry of the Court’s Claim Construction Order, PersonalWeb agreed to Amazon’s
`request that PersonalWeb immediately dismiss all claims against Amazon with prejudice.
`PersonalWeb’s motion to clarify did not apply to PersonalWeb’s claims against Amazon because
`while Amazon controls whether content is provided or accessed, it does so based on parameters set or
`controlled by its customers, not based on whether there are valid rights to any specific content. Thus,
`prior to the date expert reports were due, Amazon and PersonalWeb were in agreement that all of
`PersonalWeb’s claims against Amazon should be dismissed with prejudice. Amazon has since reneged
`on its agreement for dismissals with prejudice and instead moved for summary judgment of
`noninfringement on new grounds unrelated to the issues addressed in the Claim Construction Order.
`Nonetheless, PersonalWeb does not oppose the entry of Amazon’s Proposed Order as
`submitted to the Court (without the portion in square brackets regarding standing), as it does not
`reference Amazon’s new grounds for noninfringement. However, PersonalWeb does oppose
`Amazon’s new noninfringement grounds: (1) permitting content to be provided or accessed, (2)
`determining whether a copy of a data file is present, or (3) comparison to a plurality of identifiers. All
`three of these new arguments are the subject of disputed, material facts. Moreover, none of these new
`
`
`1
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 3 of 17
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`grounds relate to the “unauthorized or unlicensed” issue. Nor do any of these new grounds relate to
`any of the other claim terms construed in the Claim Construction Order. PersonalWeb also opposes
`granting summary judgment based on the lack of an expert report or on the lack of standing.
`As to the substance of the new non-licensing noninfringement arguments, Amazon is now
`doing what it chastised PersonalWeb for purportedly doing in its motion to clarify—namely, seeking
`a redo of claim construction. In all three of its new noninfringement arguments, Amazon asks the court
`to read claim language to be substantively narrower than the plain meaning of the claim language (e.g.,
`“not permitting the content to be provided to or accessed” as “not permitting the content to be provided
`to or accessed forever;” “determining, using at least the name, whether a copy of the data file is present
`on at least one of said computers” as “determining, using only the name, whether a copy of the data
`file is present on at least one of said computers”; “whether a … name … corresponds to one of the
`plurality of identifiers” as a name is “compared to a plurality of identifiers or values”). Throughout its
`motion, Amazon only argues that it does not meet the limitation as it wished it was written, not as it
`was actually written. As the claims are actually written, Amazon meets each of the claim limitations
`it raises.
`Should Amazon’s substantive noninfringement arguments fail, it contends that the absence of
`an expert witness report alone supports granting summary judgment motion on these new issues,
`despite making the same new noninfringement arguments that are made in the Twitch summary
`judgment motion and citing extensively to Mr. de la Iglesia’s Twitch expert report.
`On the absence of an expert report, Amazon seeks to have it both ways. First, Amazon took
`the position that submitting any expert report of infringement once the Court had ruled against
`PersonalWeb on claim construction, would violate Rule 11. Now, Amazon says that PersonalWeb’s
`“failure” to submit an expert report on infringement entitles it to summary judgment of
`noninfringement based on grounds that have nothing to do with the Court’s claim construction.
`After the Court’s Claim Construction Order, Amazon threatened PersonalWeb with Rule 11
`sanctions if it did not immediately halt its litigation against Amazon and dismiss its case with
`prejudice. PersonalWeb agreed the next business day and outlined proposed terms for a stipulation for
`entry of judgment (Amazon knew that it would have to stipulate to the dismissal it demanded as it had
`
`
`2
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 4 of 17
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`answered PersonalWeb’s claims). Amazon said it would consider PersonalWeb’s proposal and both
`sides ceased all Amazon/CloudFront-focused discovery and discovery proceedings (i.e., motions to
`compel). So too, in reliance on Amazon’s indicated desire for immediate dismissal and the expectation
`that dismissal would be cooperatively worked-out and imminent, PersonalWeb did not serve expert
`reports in the Amazon case that were due on August 23, 2019.
`Over a month later, Amazon first conveyed that it had reversed course and would not agree
`to a dismissal. (Dkt. 538-1 (Sherman Decl. to Motion for Entry of Judgment) and Dkt. 538-2 – 538-
`4 (Ex. 1-3 to Sherman Decl.) Apparently, Amazon saw an opening to take advantage of
`PersonalWeb’s acceptance of Amazon’s dismissal demand and not producing expert reports (saving
`Amazon from having to rebut them). Now, based on the Amazon-induced absence of PersonalWeb
`expert reports, Amazon is attempting to receive an essentially “default” summary judgment on issues
`unrelated to the Claim Construction Order. This type of gamesmanship should not be rewarded by
`this Court. That is why PersonalWeb hereby requests under FRCP 56(d) that the Court consider the
`unsigned declaration of Erik de la Iglesia, that is attached to the Sherman declaration, and further
`consider the facts relayed in the Sherman declaration as sufficient grounds thereunder, to either (1)
`accept for service and filing the unsigned de la Iglesia declaration (to be executed before filing) in
`opposition to the new grounds of non-infringement, or (2) deny the new grounds of non-
`infringement urged by Amazon. Under all the circumstances, PersonalWeb chooses to not now
`submit an executed version of the de la Iglesia declaration, without Court permission.
`Amazon projects confidence it will win any appeal on claim construction. Yet, its stated reason
`for seeking summary judgment instead of dismissal is saving the Court from a possible remand and
`further appeal, which would only happen if Amazon loses a claim construction appeal. If Amazon
`wins the appeal, the only difference in having the Court rule on Amazon’s new grounds of
`noninfringement is that Amazon will be able to try to use the summary judgment for issue preclusion
`in other cases—under artificial circumstances created by Amazon that put PersonalWeb at a
`disadvantage in opposing it. This is a further reason that Amazon’s gamesmanship should not be
`rewarded by this Court.
`
`
`
`3
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 5 of 17
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`II.
`
`ARGUMENT
`Amazon servers send HTTP 304 messages which indicates to browsers operating under HTTP
`1.1. protocol that they are permitted to continue to access expired Amazon webpage content in their
`caches when Amazon wants the browsers to keep using the cached content in rendering Amazon
`webpages. Amazon servers send HTTP 200 messages that make new content available that browsers
`access instead of the previously cached content when Amazon no longer wishes the browsers to use
`the previously cached file content in rendering Amazon webpages. Amazon uses MD5 ETags (i.e.,
`ETag values generated by applying the MD5 hash algorithm to the file content and only the file
`content) in making the decision whether or not to continue to permit the browsers’ access to the
`previously cached file content or to provide new file content for the browser to access and use instead
`of the previously cached file content. The MD5 ETags inform Amazon whether a copy of the current
`version of the webpage file is already cached (present) at the browser or needs to be provided. If a
`copy of the current version is already present at the browser, Amazon sends the HTTP 304 message
`permitting the browser to continue accessing the cached copy. If the file at the browser is not a copy
`of the current file version, Amazon sends the HTTP 200 message for the browser to access instead of
`the previously cached version.
`Despite these undisputed facts, Amazon asserts that it “neither permits nor denies access to
`any data item stored by web browsers” because “web browsers can access any locally-stored Amazon
`data item, whether current or expired, licensed or unlicensed.” Amazon supports this argument by
`citing to situations wherein a browser uses expired content in its cache anyway based upon a manual
`user input (e.g. pressing the “back” button). But these situations do not involve communications or
`interactions with the Amazon server and do not address the actual infringement scenario in which the
`Amazon server determines whether to permit continued access to previously cached content or to
`provide new content for access. Amazon also argues that it does not infringe because it does not
`compare the MD5 ETag received from a browser in a conditional GET request to a plurality of MD5
`ETag values. But this argument is also unavailing because none of the asserted claims require such a
`one-to-many comparison.
`
`
`
`4
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`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 6 of 17
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`A.
`
`There is Uncontroverted Evidence that the CloudFront System Controls
`Whether Content is Provided or Accessed
`1)
`Amazon Is Seeking a New Claim Construction
`Amazon’s argument for non-infringement of claim limitations relating to “permitting” and
`“allowing” is based on a construction not adopted by the Court that equates “not allowing” and “not
`permitting” with “preventing” or “prohibiting”: “CloudFront, alone or in combination with S3, does
`not prohibit or grant access to content already cached by a web browser” and “[n]either the CloudFront
`servers nor the HTTP protocol prohibits or prevents a user from accessing and viewing old expired
`content previously cached by his or her browser” (Motion, at 9, 10 (emphasis added).)
`Amazon is arguing that the system must forever “prevent” access by any means forever. This
`is not consistent with the plain and ordinary meaning of these terms, Amazon never sought such a
`construction, and the claims do not require this. All that is required is that in the process of a specific
`transaction between the browser and the server that the system either allows/permits or does not
`allow/permit access to a file based on the processing of a content-based name for that file. In the
`present system, that specific transaction is the processing of a conditional GET request received from
`a browser. In the “back” button example provided by Amazon, no request for a file is sent to the server,
`so it cannot be said that the server did not prevent the cache content to be viewed. The server is not
`involved that action at all. Similarly, Amazon’s example of offline viewing of pages is irrelevant
`because offline viewing by definition does not involve communications with the server. The fact that
`one can find non-infringing uses after the infringement does not mean that the infringement does not
`take place. See Vulcan Eng’g Co. v. Fata Aluminium, Inc., 278 F.3d 1366,1375 (Fed. Cir. 2002) (“It
`is irrelevant whether an element has capabilities in addition to that stated in the claim. When the
`claimed function is performed in the accused system, by the same or equivalent structure, infringement
`of that claim element is established.”). Furthermore, the “back” button and offline use cases cited by
`Amazon are orthogonal to what the claims are about and what browsers are for, which is interactions
`between connected computers. The “back” and offline usage examples are no more the primary
`purposes of a browser than buying a car for the primary purpose so one can sit in the parked car in
`
`
`
`5
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`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 7 of 17
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`one’s driveway and listen to its sound system. Like the car analogy, Amazon’s back-button and offline
`usage examples have nothing to do with whether the claim is infringed.
`2)
`
`Claim 20 of the ’310 patent recites, in relevant part:
`based at least in part on said content-dependent name of said
`particular data item, the first device (A) permitting the
`content to be provided to or accessed by the at least one other
`computer if it is not determined that the content is
`unauthorized or unlicensed, otherwise, (B) if it is determined
`that the content is unauthorized or unlicensed, not permitting
`the content to be provided to or accessed by the at least one
`other computer.
`The evidence shows that Amazon’s system makes a determination to permit or not permit
`cached file content to be accessed based at least in part on an MD5 ETag value (the content-dependent
`name of said particular data item). The CloudFront servers operated in accordance with the HTTP 1.1
`protocol, RFC 2616. Specifically, the servers communicated with connected computers communicate
`via messages, including but not limited to those specified in RFC 2616 regarding GET requests
`(“HTTP GET requests”) (e.g., Sec. 9.3), conditional GET requests (“HTTP conditional GET
`requests”) with If-None-Match Headers (e.g., Sec. 14.9.4), ETags (e.g., Sec. 14.19), 304 messages
`(“HTTP 304 messages”) (e.g., Sec. 10.3.5), 200 messages (“HTTP 200 messages”) (e.g., Sec. 10.2.1),
`and cache control directives (e.g., Secs. 13.1, 13.2, 13.3.2-4, 14.9, 14.21, 14.26) to implement cache
`control. (unsigned de la Iglesia Decl. at ¶¶ 5-7, 10)
`HTTP 1.1 provides a mechanism for using ETags to instruct clients (such as browsers) whether
`or not the file contents in their caches may still be used to fulfill requests for content after the original
`time to use the file content has expired. HTTP version 1.1 added the ability to use the max-age and
`ETag in a conditional GET request. If a requested file is served along with a max-age caching directive
`and an ETag value, the client browser cache will store the file, the max-age and the ETag. As long as
`the object age in the cache is less than the max-age, the client cache will reuse the file for future
`requests. (RFC 2616 @ 51-52) However, after the permitted time to use the content has been exceeded,
`
`
`6
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 8 of 17
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`conditional GETs must be used to revalidate that the client is permitted to keep using the cached file
`content for some extended period of time. (Id. at ¶¶ 5-7, 11)
`During the relevant time period, CloudFront servers used content-based ETags that were
`generated by applying the MD5 hash algorithm to the content, and only the content, of the associated
`file. The evidence also confirms that the servers sent the MD5 ETag along with the file content and
`cache control directives in HTTP 200 messages and subsequently compared such MD5 ETags sent by
`clients (e.g. browsers and intermediate cache servers) in conditional GET requests with the current
`ETag values for the requested file stored at the server. (Id. at ¶¶ 5-7, 12)
`In accordance with the HTTP 1.1 protocol, the CloudFront server compares the ETag sent by
`a browser in a conditional GET request with a value for a data item stored at the server. (Id. at ¶¶ 10-
`12) If the server verifies that the ETag in the “If-None-Match” request header matches the current
`ETag of the requested file, it makes a determination to permit a browser to keep using the cached
`content and sends a 304 NOT MODIFIED message to the browser. (Id. at ¶¶ 11, 12) This capability
`relies on the fact that the server will update the ETag value for a file when that file changes. (Id. at ¶
`13) RFC 2616 does not describe the generation of ETag validators or require the use of content-based
`ETags that change only when the content itself changes but rather distinguishes weak from strong
`validators by requiring that strong validators change whenever the underlying file changes. (RFC 2616
`@ 54-57) (Id.) As was the case with HTTP version 1.0, the server operating in compliance with HTTP
`version 1.1 will respond with a 200 OK and a new file if the file on the server differs from the copy in
`the client’s cache. (Id. at ¶¶ 5-7, 12-17)
`When the CloudFront server does not find there to be an ETag match, it makes a determination
`not to permit a browser to keep using cached content and sends an HTTP 200 OK response with new
`content, which the browser will use instead of cached content in accordance with the HTTP protocol
`specification RFC 2616.
`3)
`Claim 25 of the ’420 patent recites, in relevant part:
`(C) based at least in part on said ascertaining in step (B), selectively
`allowing a copy of the particular sequence of bits to be distributed to or
`provided or accessed by or from at least one of the computers in said
`
`
`
`7
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 9 of 17
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`plurality of computers, wherein a copy of the sequence of bits is not to
`be distributed or provided or accessed without authorization, as
`determined based, at least in part, on whether or not the specific name
`for the particular sequence of bits corresponds to one of said plurality of
`identifiers.
`The evidence shows that Amazon’s system selectively allows a copy of a particular sequence
`of bits (a data item) to be accessed by a computer in a network, namely, a computer running a web
`browser. The CloudFront servers store many data items to which content-based ETag identifiers have
`been assigned. In accordance with the HTTP 1.1 protocol, the CloudFront server determines if the
`MD5 ETag sent by a browser in an HTTP conditional GET request matches one of the plurality of
`identifiers. When the server finds a match, it determines that the file content at the browser is a copy
`of the file content at the server and allows a browser to access the cached copy when it sends an HTTP
`304 Not Modified response. When the server does not find a match, it makes a determination not to
`allow a browser to access cached content when it sends an HTTP 200 OK response with new content,
`which the browser will then use instead of cached content if it is operating in accordance with the
`HTTP protocol specification RFC 2616. (unsigned de la Iglesia Decl. at ¶¶ 5-7, 21)
`Claim 166 of the ’420 patent recites, in relevant part:
`(a2) selectively permit the particular data item to be made available for
`access and to be provided to or accessed by or from at least some of the
`computers in a network of computers, wherein the data item is not to be
`made available for access or provided without authorization, as resolved
`based, at least in part, on whether or not at least one of said one or more
`content-dependent digital identifiers for said particular data item
`corresponds to an entry in one or more databases, each of said one or
`more databases comprising a plurality of identifiers, each of said
`identifiers in each said database corresponding to at least one data item
`of a plurality of data items, and each of said identifiers in each said
`database being based, at least in part, on at least some of the data in a
`
`
`
`8
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 10 of 17
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`corresponding data item.
`The evidence shows that Amazon’s system selectively permits access to a data item to be
`accessed by a computer in a network, namely, a computer running a web browser. The evidence
`supporting this limitation of claim 166 of the ’420 patent is the claim as for the limitation in claim 25
`of the ’420 patent discussed above. (unsigned de la Iglesia Decl. at ¶¶ 5-7, 23)
`Claim 11 of the ’442 patent recites, in relevant part:
`A method as in claim 10 further comprising: allowing the file to be
`provided from one of the computers having an authorized or licensed
`copy of the file.
`The evidence shows that Amazon allows a file provided from a computer in a network, namely,
`the Amazon web server. As discussed above, the CloudFront server determines if the ETag sent by a
`browser in an HTTP conditional GET request matches an identifier for a file on the web server. When
`the server does not find a match, the web server is allowed to provide the file and sends an HTTP 200
`OK response with new content for the browser to use instead of cached content in accordance with the
`HTTP protocol specification RFC 2616. (Id. at ¶¶ 5-7, 25)
`This description of how the Amazon web server met this specific claim limitations is consistent
`with the plain and ordinary meaning of “allow” and “permit,” for which Amazon did not request
`constructions from the Court. As shown above, as part of that transaction the Amazon server either
`allows/permits or does not allow/permit access to a file based on processing an ETag sent with the
`request, which is a content-based name for the requested file. (Id. at ¶ ¶ 26-28)
`B.
`
`There is Uncontroverted Evidence Amazon Determines Whether A Copy Of A
`Data File Is Present Using The Name
`Asserted claim 10 [and dependent claim 11] of the ‘442 patent requires: “determining, using
`at least the name, whether a copy of the data file is present on at least one of said computers.” Amazon
`asserts that this limitation is not met because “ETags are not used by CloudFront to locate files or to
`determine if they are present.” (Dkt. 541 (Amazon’s Motion), at 11:24-25.)
`In making this argument, Amazon mistakes the infringement read. PersonalWeb asserts that
`the accused ETags are used by Amazon CloudFront Point of Presence (“PoP”) servers to determine
`
`
`9
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 11 of 17
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`whether various of its customers’ webpage files in browser caches are copies of various customer
`webpage files hosted at CloudFront PoP servers. As PersonalWeb asserts, if a CloudFront PoP server
`determines that a file at the browser cache is a copy of the file at the server, then the CloudFront PoP
`server can send an HTTP 304 message instructing the browser to keep using the cached copy for some
`extended time period. And, conversely, if the CloudFront PoP server determines that a copy of the file
`at the CloudFront PoP server is not already present at the browser cache, the CloudFront PoP server
`can send an HTTP 200 message to provide the browser with a copy and instructions for how long of
`a period the browser can use the copy without having to check back with the CloudFront PoP server
`whether it may keep using it. As Mr. De La Iglesia explains, the ETag is used to match content in
`order to determine whether that content is present at a given location, i.e., to determine whether a copy
`is present. (unsigned de la Iglesia Decl., ¶30.)
`Amazon however argues that, “before the ETags can be compared, the files must already have
`been located, and are thus deemed present. The comparison of the ETags determines only if two files
`match, not whether the files are present in any computer system.” (Dkt. 541, at 12:7-10.) This is not
`a factual argument. By making it, Amazon posits that “determining…whether a copy of a data file is
`present” in claim 10 means exactly the same thing as “locating” a file. It does not, and Amazon has
`never advanced such a claim construction position. It is not a file that is being determined as present;
`the claim specifically requires determining whether a “copy” of a file is present, which is precisely
`what Amazon does.
`Amazon does not dispute that by merely receiving an ETag in a conditional GET request,
`without doing anything further with it, Amazon cannot know whether a copy of a given file is present
`at the browser cache. That is because it is necessary for Amazon to compare the content-based ETag
`with another ETag to determine whether the file located at the browser is actually a copy of the file
`located at the server, i.e., that the content of the file at the browser cache is a copy of the content of
`the file at the server. Indeed, without this determination, Amazon could not know whether to send the
`HTTP 304 (extending the permitted time that the browser can use the cached copy of the file) or to
`send an HTTP 200 message with a copy of the current version of the file. (see also unsigned de la
`Iglesia Decl. at ¶¶ 30-32)
`
`
`10
`
`
`NON-OPPOSITION TO AMAZON’S MOTION
`FOR SUMMARY JUDGMENT OF NONINFRINGEMENT
`AND OPPOSITION TO MOTION REGARDING STANDING
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 550 Filed 10/25/19 Page 12 of 17
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`The point Amazon misses in making its argument that a URI is used to locate a copy of a file
`is that all it can determine with just the URI is that a file having that URI is located at a given computer,
`not whether that file is a copy of another file. This is the whole point of using ETags—both the URI
`and ETag are needed to determine whether the file at the browser cache has the same content as the
`file at the webpage server, i.e., only when both the URI and the ETag received in the conditional GET
`request match the URI and ETag at the server, does Amazon determine that the file at the browser
`cache is an actual copy of the file at the server. Amazon admits as much when it states “[t]he
`comparison of ETags determines only if two files match, not whether the files are present in any
`computer system.” (Dkt. 541, at 12:8-10) (emphasis added). Only when the two files have the same
`content is one a “copy” of the other. (see also Id.)
`Finally, it is noteworthy that Amazon consistently misquotes the claim language in making its
`arguments. For example, Amazon states that “ETags are not used to identify, locate or retrieve files.”
`[Dkt. 541, at 12 (PDF at 14/16)]. But neither claim 10 nor claim 11 requires retrieving files, for
`example. And nowhere does Mr. de la Iglesia make any statement that an ETag does not identify the
`file or is not used to locate a copy of a file. To the contrary, the de la Iglesia report states that the ETag
`is used to identify the file content so that it can be used to determine whether a copy of a given file is
`present at browser. (Id.)
`C.
`
`The Asserted Claims Do Not Require a “One-To-Many” Comparison to a
`Plurality of Identifiers
`Claim 69 of the ‘310 patent was the only claim that PersonalWeb had asserted in its
`infringement contentions that requires a one-to-many comparison of the identifiers. But this claim is
`no longer asserted in the de la Iglesia report. The other two claims for which Amazon makes this
`argument are claims 25 and 166 of the ‘420 patent. And these claims do not recite a one-to-many
`comparison.
`Claim 25 recites: “ascertaining whether or not said first content-dependent name for the
`particular sequence of bits corresponds to one of a plurality of identifiers.” This language does not
`require that the first content-dependent name is compared to more than on