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`Case 5:18-md-02834-BLF Document 561 Filed 11/01/19 Page 1 of 5
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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
`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
`
`Counsel for AMAZON.COM, INC., AMAZON
`WEB SERVICES, INC., and TWITCH
`INTERACTIVE, INC.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`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,
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`Defendants.
`
`
`PERSONALWEB TECHNOLOGIES, LLC and
`LEVEL 3 COMMUNICATIONS, LLC,
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`Counterclaimants,
`
`
`v.
`
`AMAZON.COM, INC., and AMAZON WEB
`SERVICES, INC.,
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`Counterdefendants.
`
`HADDEN REPLY DECL. ISO AMAZON
`AND TWITCH MOTIONS FOR SUM-
`MARY JUDGMENT
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`
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`
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`Case No.: 5:18-md-02834-BLF
`
`Case No. 5:18-cv-00767-BLF
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`REPLY DECLARATION OF J. DAVID
`HADDEN IN SUPPORT OF MOTION
`FOR SUMMARY JUDGMENT OF
`NONINFRINGEMENT BY
`AMAZON.COM, INC. AND AMAZON
`WEB SERVICES, INC. AND MOTION
`OF TWITCH INTERACTIVE, INC.
`FOR SUMMARY JUDGMENT OF
`NONINFRINGEMENT AND TO
`EXCLUDE THE TESTIMONY OF
`ERIK DE LA IGLESIA
`
`Date:
`November 14, 2019
`Time:
`9:00 a.m.
`Dept:
`Courtroom 3, 5th Floor
`Judge:
`Hon. Beth L. Freeman
`Trial Date: March 16, 2020
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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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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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`

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`Case 5:18-md-02834-BLF Document 561 Filed 11/01/19 Page 2 of 5
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`Case No.: 5:18-cv-05619-BLF
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`PERSONALWEB TECHNOLOGIES, LLC, a
`Texas limited liability company, and LEVEL 3
`COMMUNICATIONS, LLC, a Delaware lim-
`ited liability company,
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`Plaintiffs,
`
`
`v.
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`TWITCH INTERACTIVE, INC. a Delaware
`corporation,
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`Defendant.
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`HADDEN REPLY DECL. ISO AMAZON
`AND TWITCH MOTIONS FOR SUM-
`MARY JUDGMENT
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`
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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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`Case 5:18-md-02834-BLF Document 561 Filed 11/01/19 Page 3 of 5
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`I, J. David Hadden, declare as follows:
`I am a partner with the law firm of Fenwick & West LLP, counsel to Amazon.com,
`1.
`Inc., Amazon Web Services, Inc. (collectively, “Amazon”), and Twitch Interactive, Inc. (“Twitch”)
`in this matter. I have personal knowledge of the facts set forth herein.
`I understand that PersonalWeb’s brief (Dkt. 550) states: “After the Court’s Claim
`2.
`Construction Order, Amazon threatened PersonalWeb with Rule 11 sanctions if it did not immedi-
`ately 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 answered PersonalWeb’s
`claims).” (Dkt. 550 at 2-3.) That representation does not accurately reflect the parties’ conversa-
`tions, as I discuss below.
`On August 16, 2019, the Court issued its claim construction order. Dkt. 485. The
`3.
`Court’s constructions left PersonalWeb Technologies, LLC (“PersonalWeb”) with no viable
`infringement claims against Amazon and Twitch.
`On August 16, 2019, shortly after the Court issued its claim construction order, I
`4.
`sent a letter to PersonalWeb’s lead counsel, Michael Sherman. This letter requested that
`PersonalWeb dismiss all claims against Amazon and Twitch with prejudice in light of the Court’s
`claim construction order. Attached hereto as Exhibit 1 is my August 16, 2019 letter.
`On August 19, 2019, Mr. Sherman sent me a letter outlining PersonalWeb’s position.
`5.
`The letter stated that PersonalWeb did not agree to dismiss all claims as Amazon and Twitch had
`requested. Instead, PersonalWeb proposed dismissing claims against only Amazon, not Twitch,
`and subject to a number of conditions. PersonalWeb proposed stipulating to a judgment of non-
`infringement for PersonalWeb’s counterclaims in case no. 5:18-cv-00767-BLF for CloudFront and
`S3. PersonalWeb also proposed stipulating to a judgment of non-infringement on U.S. Patent No.
`7,945,544 claims against Twitch and all other customers in the MDL. PersonalWeb’s proposal was
`contingent on Amazon dismissing its complaint in case no. 5:18-cv-00767-BLF without prejudice.
`Attached hereto as Exhibit 2 is Mr. Sherman’s August 19, 2019 letter.
`
`HADDEN REPLY DECL. ISO AMAZON
`AND TWITCH MOTIONS FOR SUM-
`MARY JUDGMENT
`
`
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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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`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

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`Case 5:18-md-02834-BLF Document 561 Filed 11/01/19 Page 4 of 5
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`On August 20, 2019, I responded via email. I indicated that Amazon and Twitch
`6.
`would consider PersonalWeb’s proposal and asked for PersonalWeb’s Rule 11 basis for continuing
`with the remaining three patents against Twitch. Mr. Sherman explained that PersonalWeb would
`alter the Court’s claim constructions and use pieces of Judge Gilstrap’s claim constructions to main-
`tain their claims. I replied by explaining that this was improper, and that HTTP cache control
`headers and ETags have nothing to do with determining “compliance with a valid license” generally
`or as used by Twitch. I then reiterated that we would seek all appropriate sanctions. Attached
`hereto as Exhibit 3 is the email correspondence between me and Mr. Sherman on August 20, 2019.
`On August 21, 2019, I spoke with Mr. Sherman on the phone. During that conver-
`7.
`sation, Mr. Sherman tried to persuade Amazon to agree to the stipulation outlined in PersonalWeb’s
`August 19, 2019 letter. I told Mr. Sherman that it did not make sense to stipulate in the Amazon
`case while continuing to litigate the same issues in the Twitch case. I told Mr. Sherman that Amazon
`would consider PersonalWeb’s stipulation, but I never agreed to it or to any stipulation at all. I also
`reiterated my positions outlined in my August 16, 2019 letter and August 20, 2019 emails to Mr.
`Sherman.
`On August 23, 2019, four days after PersonalWeb sent their letter, the parties ex-
`8.
`changed opening expert reports. PersonalWeb did not serve an expert report for any claims against
`Amazon or for U.S. Patent No. 7,945,544 claims against Twitch. PersonalWeb’s recent opposition
`brief claims that it failed to do so in reliance on some understanding that Amazon would eventually
`agree to PersonalWeb’s proposal. (Dkt. 550 at 3 (“[I]n 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.”).) However, as outlined above, Amazon’s position has always been that PersonalWeb
`lacks a Rule 11 basis to continue its claims against Amazon or Twitch (or any of the other Amazon
`customers in the MDL), and that it should dismiss all those claims subject to its appeal rights or
`instead face sanctions. PersonalWeb’s failure to serve complete expert reports was therefore its
`own choice and in no way induced by Amazon.
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`HADDEN REPLY DECL. ISO AMAZON
`AND TWITCH MOTIONS FOR SUM-
`MARY JUDGMENT
`
`
`
`2
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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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`ATTORNEYS AT LAW
`
`FENWICK & WEST LLP
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 561 Filed 11/01/19 Page 5 of 5
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`On September 23, 2019, Mr. Sherman sent me an email attaching PersonalWeb’s
`9.
`proposed joint stipulation of non-infringement and motion for final judgment. PersonalWeb’s pro-
`posed stipulation covered only Amazon, not Twitch or the other customers in the MDL. Attached
`hereto as Exhibit 4 is Mr. Sherman’s September 23, 2019 email and the attached proposed joint
`stipulation of non-infringement and motion for final judgment.
`On September 26, 2019, I responded to Mr. Sherman’s September 23, 2019 email,
`10.
`indicating that Amazon was not interested in entering into PersonalWeb’s stipulation. On
`September 26, 2019 and September 27, 2019, Mr. Sherman sent me emails requesting that Amazon
`enter into a stipulation with PersonalWeb. Attached hereto as Exhibit 5 is this email chain between
`me and Mr. Sherman from September 26-27, 2019.
`Attached hereto as Exhibit 6 is a true and correct copy of the Patent Owner’s Re-
`11.
`sponse filed as Paper 15 in Apple v. PersonalWeb Techs., IPR2013-00596 (PTAB June 16, 2014).
`Attached hereto as Exhibit 7 is a true and correct copy of the Patent Owner’s Pre-
`12.
`liminary Response filed as Paper 9 in Rackspace US, Inc. v. PersonalWeb Techs., IPR2014-00058
`(PTAB January 18, 2014).
`
` I
`
` declare under penalty of perjury under the laws of the United States that the foregoing is
`true and correct. Executed on November 1, 2019.
`
`
`
`/s/ J. David Hadden
`J. David Hadden
`
`
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`HADDEN REPLY DECL. ISO AMAZON
`AND TWITCH MOTIONS FOR SUM-
`MARY JUDGMENT
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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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`ATTORNEYS AT LAW
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`FENWICK & WEST LLP
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