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`Case 5:18-md-02834-BLF Document 608-6 Filed 06/18/20 Page 1 of 10
`
`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
`
`
`DECLARATION OF WESLEY W.
`MONROE IN SUPPORT OF
`PERSONALWEB TECHNOLOGIES,
`LLC’s OPPOSITION TO AMAZON.COM,
`INC., AMAZON WEB SERVICES, INC.,
`AND TWITCH INTERACTIVE, INC.’S
`MOTION FOR ATTORNEY FEES AND
`COSTS
`
`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.
`
`
`
`
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
`
`
`
`
`
`

`

`Case 5:18-md-02834-BLF Document 608-6 Filed 06/18/20 Page 2 of 10
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`PERSONALWEB TECHNOLOGIES, LLC, a
`Texas limited liability company, and
`LEVEL 3 COMMUNICATIONS, LLC, a
`Delaware limited liability company
`
`Plaintiffs,
`v.
`TWITCH INTERACTIVE, INC. a Delaware
`corporation,
`
`Defendant.
`
`
`
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`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 608-6 Filed 06/18/20 Page 3 of 10
`
`I, Wesley W. Monroe, declare as follows:
`1.
`I am a member of the bar of the State of California and am admitted to practice
`before the United States District Court for the Northern District of California as well as other
`numerous federal courts, and am a registered patent attorney. I am Of Counsel with Stubbs,
`Alderton & Markiles, LLP, counsel for PersonalWeb Technologies, LLC (“PersonalWeb”). The
`facts herein are, unless otherwise stated, based upon personal knowledge, and if called upon to do
`so, I could, and would testify to their truth under oath. I submit this declaration in support of
`PersonalWeb’s Opposition to Motion of Amazon Web Services, Inc., Amazon.com, Inc. and
`Twitch Interactive, Inc. (collectively, “Amazon”) for Attorney Fees and Costs.
`2.
`I received a Bachelor of Science degree in mathematics and computer science from
`the University of California, Los Angeles in 1987 and a juris doctor degree from Loyola law School
`in 1990.
`3.
`In addition to practicing patent law since 1990, I was the CEO of a startup company
`in the field of advertising analytics using a number of internet technologies from 2015 to 2017. In
`addition to being the CEO, I also designed, built, and wrote all the computer code for a prototype
`device using Python programming language. During the development of this prototype device, I
`became considerably skilled in programming in Python as well as details of the operation of HTTP
`in real-time web traffic.
`4.
`I began working on PersonalWeb matters in December 2017. In connection with
`the work I performed for PersonalWeb when my work began, and prior to the time the first set of
`lawsuits were filed in January 2018, I became aware that Dr. Russ, an expert in the field of
`computer networking and content delivery over the internet and other networks, and PatBak, a
`patent engineering consulting company retained by PersonalWeb, respectively, conducted
`heuristic analysis to determine whether a website used RoR, S3, or both. I am familiar with this
`heuristic analysis through studying descriptions of it and studying the results of the analysis. This
`approach looked at markers in webpages archived on archive.org during the relevant time period
`that are indicative, but not conclusive, of the use of RoR or S3 in serving that webpage at the time
`
`1
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`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 608-6 Filed 06/18/20 Page 4 of 10
`
`it was archived. This heuristic analysis used industry accepted techniques to determine the
`likelihood that a particular website used RoR and/or served webpage assets with Amazon S3.
`5.
`On or about February 23, 2018, our office received a letter from Ryan M. Hubbard
`of Kirkland & Ellis LLP regarding their client, Lithium Technologies (“Lithium”), which was one
`of the defendants PersonalWeb sued in January 2018. In this letter, Mr. Hubbard asserted that
`Lithium’s website “was not developed with and has not used RoR architecture from 2012 to 2016.”
`A true and correct copy of this letter is attached as Exhibit 4 to the declaration of Michael A.
`Sherman, filed concurrently herewith.
`6.
`After receipt of this letter, my colleague Sandy Seth reached out to Dr. Russ to
`perform a re-analysis and verify our understanding of infringement by Lithium. Dr. Russ informed
`me that he had re-analyzed the archived webpages he had for Lithium. He also informed me that
`he had now discovered details in Uniform Resource Identifiers (“URIs”) that he had previously
`concluded included fingerprints that convinced him that RoR was not used to create those URIs.
`Dr. Russ also informed me that he discovered that some of the markers used previously in the
`heuristics for RoR were not as accurate as previously understood. I then independently analyzed
`the heuristics for RoR and came to the same conclusion as Dr. Russ.
`7.
`On March 6, 2018, based on both Dr. Russ’s reanalysis of the markers and
`heuristics for identifying the use of RoR in the archived files he had regarding Lithium, and my
`independent analysis regarding the use of RoR by Lithium, PersonalWeb dismissed its complaint
`against Lithium without prejudice.
`8.
`Through March and April 2018, I reanalyzed the markers and heuristics for
`identifying the use of RoR for all the defendants sued in January 2018. This reanalysis discovered
`five additional defendants that had suspect markers for use of RoR: Hootsuite, Optimizely, Ziff
`Davis, Popsugar.com, and Stumbleupon. As a result of my reanalysis, PersonalWeb subsequently
`dismissed each of these defendants without prejudice on March 13, 2018, March 12, 2018, April
`5, 2018, April 9, 2018, April 25, 2018, respectively.
`
`2
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`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 608-6 Filed 06/18/20 Page 5 of 10
`
`9.
`In April 2018, I began to investigate whether I could find a way to identify evidence
`in the archived website files that shows which URIs are in a specific format that we believed was
`only produced by the RoR architecture (the format was a traditional filename, such as “puppy.jpg”
`with an underscore character followed by a 32 character string made of hexadecimal characters
`(numerical digits and letters “a” to “f”) inserted before the period in the filename). To accomplish
`this, I directed PatBak to download HTTP archive files (“HAR files”) for webpages archived
`during the relevant time period for all the defendants. A HAR file contains all the HTTP requests
`and responses that passed between a browser and a web server in the course of downloading a
`single webpage. This information is stored in a commonly used database format known as
`JavaScript Object Notation (“JSON”).
`10.
`In April 2018, based on my computer science programming expertise and
`experience using the programming language, Python, I began writing a computer program using
`Python that systematically drilled deeply into the information in a HAR file and determined
`whether URIs used in HTTP/1.1 requests to load a webpage were in the specific RoR format.
`11.
`Continuing in April 2018 and in the following months, I continued to add
`functionality to the Python program. One such functionality was that, with respect to some
`archived webpage files that had URIs containing text strings that had the appearance of being a
`content-based identifier such as URIs in the specific RoR format (i.e., there appeared to be
`fingerprints in the filenames), the Python program was able to definitively show that the text string
`in the URI was, in fact, a content-based identifier for the file identified by the URI. This particular
`technique was able to determine if the suspect text strings in URIs created by RoR contained an
`actual content-based identifier for the file identified by the URI, as opposed to a text string the
`program could not verify was a content-based identifier for the file identified by the URI. However,
`this technique also resulted in the Python program identifying websites of some defendants that
`did not show signs of using RoR, but nevertheless had URIs that contained text strings that were
`definitively shown to use content-based identifiers of the files identified by the URIs (fingerprints
`in filenames). In other words, what this Python program analysis revealed was that despite the
`
`3
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`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 608-6 Filed 06/18/20 Page 6 of 10
`
`website operator not having used RoR to develop its website, it nonetheless inserted content-based
`identifiers in URIs as covered by certain of the claim elements.
`12.
`As a result of the discoveries in March and April 2018, PersonalWeb began to
`amend its complaints, commencing in May 2018, to remove specific references to ROR and instead
`include the underlying infringing technique—involving fingerprints in URIs—that were part of
`infringing activity, whether the fingerprints were generated by RoR or some other architecture.
`13.
`The Python program also identified any HTTP responses that included a header that
`indicated that the source of the file in the response was served by Amazon S3 when the webpage
`was originally archived. The Python program then determined if such HTTP responses included a
`header that indicated that the file in the response was served with an ETag when the webpage was
`originally archived and determined if the ETag was in a format consistent with it being a content-
`based identifier. For these files, the Python program then calculated content-based identifiers for
`the content archived for the file using several different hashing methods, including MD5. The
`Python program then compared the content-based identifiers calculated by the Python program
`with the ETag served with the file when the webpage was originally archived. If there was a match,
`it was definitive proof that the ETag served with the file when the webpage was originally archived
`was a content-based ETag.
`14.
`I then modified the Python program to analyze whether there was an indication that
`any ETag served with a file when a webpage was originally archived was served by S3 or not, and
`to determine if the ETag was a content-based identifier for that file. I determined that a number of
`files in defendant websites that did not include headers indicating they were served by Amazon
`S3, nevertheless were served with ETags that were content-based identifiers for the files.
`15.
`This further led to PersonalWeb amending its complaints in May 2018 to remove
`specific references to Amazon S3 generating ETags that were content-based identifiers, and
`instead include the underlying infringing technique—serving files with ETags that were content-
`based identifiers—that were part of infringing activity, whether the files were served by Amazon
`S3 or some other web server.
`
`4
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`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 608-6 Filed 06/18/20 Page 7 of 10
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`16.
`In August 2018, I was able to further modify the Python program so that it would
`also be able to calculate a content-based identifier of a file in an archived webpage in the same
`way RoR calculates it. Accordingly, after this modification, the Python program would definitively
`show when the text string in a URI in RoR format was, in fact, a content-based identifier for the
`file identified by the URI.
`17.
`Based on the foregoing, I determined that the remaining defendants from the initial
`filing in January 2018 had webpages archived during the relevant time period that had ETags
`containing content-based identifiers. I also determined that four of the six initial defendants that
`were previously dismissed as referenced in paragraphs 7 and 8 above, had webpages archived
`during the relevant time period that included asset files that were served with ETags containing
`content-based identifiers. Also based on the foregoing, for each additional defendant that
`PersonalWeb sued from July 2018 and October 2018, before the complaint was filed, I determined
`that it had webpages archived during the relevant time period that included asset files that were
`served with ETags containing content-based identifiers and, if alleged in the complaint for that
`defendant, the it had webpages archived during the relevant time period that included asset files
`with URIs that included content-based identifiers.
`18.
`As a result of my further investigation, I determined that all but three of the
`remaining January 2018 defendants had webpages archived during the relevant time period that
`used fingerprints in URIs for files in the applicable webpage. I was also able to determine from
`archived webpages that three of the six previously dismissed defendants had utilized fingerprints
`in URIs for files in the webpage. Thus, the results of my investigation utilizing the Python program
`established that, of the forty-eight cases that were pending in May 2018, based on Dr. Russ’s
`heuristics, 88% (42 of 48) conclusively used fingerprints in URIs for files in their archived
`webpages. And, 94% (45 of 48) conclusively served webpage assets with ETags headers
`containing a content-based identifiers of the assets.
`19.
`The factual differences between the various website operator defendants were
`depicted in the chart submitted with the Preliminary Joint CMC Statement in September 2018
`
`5
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`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 608-6 Filed 06/18/20 Page 8 of 10
`
`showing four subsets (categories) of infringing activity (Dkt. 96, 96-1). The four categories were
`not new infringement theories as Amazon distorts in its Motion, but rather were all subsets of the
`same infringement theory that was pleaded in the very first complaint filed against Airbnb.
`20.
`As to Twitch, the Python program definitively showed either content-based ETags
`or fingerprints in URIs for each of the files listed in Exhibit 1 to the Twitch amended complaint—
`a determination that was made before filing the initial complaint against Twitch, even though the
`original complaint did not attach Exhibit 1.
`21.
`In an effort to verify the results of my investigation and conclusions, in October
`and November 2018, I directed three different computer experts that had previously been retained
`by PersonalWeb as consulting experts in this matter, Erik de la Iglesia, Patrick McClory, and
`Bradley Bennett, to independently review, analyze, and confirm my conclusions discussed above
`with respect to the results of my Python program for all of the website operator defendants. My
`analysis and conclusions were confirmed as set forth above, which I understood to support the
`viability of the complaints and the amended complaints.
`22.
`After PersonalWeb submitted its infringement contentions to Amazon, on April 18,
`2019, PersonalWeb sought to amend its infringement contentions and asked Amazon if they would
`stipulate or not oppose leave to amend the infringement contentions. Despite the fact that the
`Markman hearing was not to be heard until May 24, 2019, Amazon did not advise PersonalWeb
`whether it would oppose leave to amend the infringement contentions until shortly before the
`Markman hearing. As a result, on June 11, 2019 PersonalWeb filed its Motion for Leave to Amend
`Infringement Contentions well before the Court issued its Markman order on August 16, 2019 (Dkt
`485). PersonalWeb’s seeking to amend infringement contentions was not motivated by the
`Markman hearing.
`23.
`The proposed, amended infringement contentions continued to have the same core
`components, i.e., (1) fingerprints in URIs, many of which were RoR-generated, (2) content-based
`ETags, many of which were S3-generated, and (3) using HTTP 200 and 304 messages to control
`browsers’ use of cached web page files.
`
`6
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`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 608-6 Filed 06/18/20 Page 9 of 10
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`Attached as Exhibit 1 is a true and correct copy of a comparison between of the
`24.
`original and first amended complaint in an exemplary case, Airbnb, demonstrating no changed
`theories, as was filed with the JPML. (In re PersonalWeb Techs., LLC & Level 3 Commc’ns, LLC
`Patent Litig., MDL No. 2834, Dkt. 120-2.)
`25.
`At the direction of Michael A. Sherman, in late December 2017 and early January
`2018, I researched the law on claim and issue preclusion in patent cases and the Kessler doctrine.
`I also reviewed and analyzed the filings in the prior Texas action, including the dismissal
`documents. Based upon my research and analysis, I prepared a memorandum dated January 3,
`2018 that contained my analysis and conclusions of the applicability of issue and claim preclusion
`and the Kessler doctrine to the cases that we were preparing to file on behalf of PersonalWeb. I
`concluded that issue preclusion did not apply, it was unlikely that claim preclusion would apply,
`and less likely than not that the Kessler doctrine would apply. Attached hereto as Exhibit 2 is a
`true and correct copy of this memorandum.
`26.
`Also at the direction of Michael A. Sherman, in late December 2017 and early
`January 2018, I also researched the law on direct and indirect infringement as well as the facts as
`they were alleged in the to-be-filed complaints and the infringement analysis of the asserted patent
`claims based on these facts. Before the first complaint was filed in January 2018, I concluded that
`it was most likely that, under applicable Supreme Court and Federal Circuit precedent, the
`individual website operators would be considered to be direct infringers in the infringement alleged
`based on their use of S3 and that Amazon would not be considered to be a direct infringer based
`on the website operators’ use of S3.
`27.
`Attached hereto as Exhibits 3 and 4 are true and correct copies of Responses and
`Objections of Amazon Web Services, Inc. to PersonalWeb’s Fifth Set of Interrogatories (Nos. 19-
`25) and Responses and Objections of Twitch Interactive, Inc. to PersonalWeb’s Second Set Of
`Interrogatories (Nos. 9-19), respectively.
`I declare under the penalty of perjury under the laws of the United States of America
`that the foregoing is true and correct.
`
`7
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`CASE NO: 5:18-MD-02834-BLF
`CASE NO: 5:18-CV-00767-BLF
`CASE NO: 5:18-CV-05619-BLF
`
`

`

`Case 5:18-md-02834-BLF Document 608-6 Filed 06/18/20 Page 10 of 10
`Case 5:18-md-02834-BLF Document 608-6 Filed 06/18/20 Page 10 of 10
`
`Executed this June 18, 2020 in Pasadena, California.
`
`Wesley W. Monroe
`
`\OOO\IO\U‘I-I>UJI\)I—‘
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`8
`DECLARATION OF WESLEY W. MONROE ISO PERSONALWEB’S OPPOSITION TO
`MOTION OF AMAZON AND TWITCH FOR ATTORNEY FEES AND COSTS
`
`CASE N
`CASE N
`CASE N
`
`0: 5:18-
`0: 5:18-
`0: 5:18-
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`MD-02834-BLF
`CV—00767-BLF
`CV—05619-BLF
`
`