Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 1 of 18 PageID #: 8353
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`VB ASSETS, LLC,
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`Plaintiff,
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`v.
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`AMAZON.COM, et al.,
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`Defendants.
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`Case No.: 19-1410-MN
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`PLAINTIFF VB ASSETS, LLC’S RESPONSE TO AMAZON’S
`MOTION TO EXCLUDE THE UNRELIABLE TESTIMONY OF
`VB ASSETS’ DAMAGES EXPERT BRETT REED
`
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`
`Ian R. Liston (Bar No. 5507)
`Jennifer A. Ward (Bar No. 6476)
`222 Delaware Avenue, Suite 800
`Wilmington, DE 19801
`Telephone: (302) 304-7600
`iliston@wsgr.com
`jward@wsgr.com
`
`Attorneys for Plaintiff VB Assets, LLC
`
`
`
`
`
`Dated: March 3, 2023
`
`OF COUNSEL:
`
`James C. Yoon, admitted pro hac vice
`Ryan Smith, admitted pro hac vice
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`Facsimile: (650) 493-6811
`jyoon@wsgr.com
`rsmith@wsgr.com
`
`Erik J. Carlson, admitted pro hac vice
`Jamie Y. Otto, admitted pro hac vice
`Ryan S. Benyamin, admitted pro hac vice
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071-2027
`Telephone: (323) 210-2900
`Facsimile: (866) 974-7329
`ecarlson@wsgr.com
`rbenyamin@wsgr.com
`jotto@wsgr.com
`
`
`REDACTED VERSION
`FILED MARCH 10, 2023
`
`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 2 of 18 PageID #: 8354
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`TABLE OF CONTENTS
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`PAGE
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`
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`I.
`
`II.
`
`NATURE AND STAGE OF THE PROCEEDINGS ......................................................... 1
`
`SUMMARY OF ARGUMENT .......................................................................................... 1
`
`III.
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`FACTUAL BACKGROUND ............................................................................................. 2
`
`A.
`
`B.
`
`C.
`
`The Asserted Patents and Accused Technology ..................................................... 2
`
`Alexa Shopping and the
`
` ........................................................................ 3
`
`Mr. Reed’s Damages Opinions ............................................................................... 4
`
`1.
`
`Mr. Reed Shows that
`
`
`
`. ................. 5
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`IV. ARGUMENT ...................................................................................................................... 7
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`A.
`
`B.
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`Legal Standard ........................................................................................................ 8
`
`The Court Should Deny Amazon’s Motion to Exclude Mr. Reed’s
`
`Testimony................................................................................................................ 8
`
`1.
`
`2.
`
`3.
`
`Amazon’s Disagreements with Mr. Reed’s Interpretation of the
`
`Evidence Provide No Basis to Exclude His Opinion .................................. 9
`
`Amazon’s Misunderstandings of Mr. Reed’s Opinions Are Not
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`Grounds to Exclude Them. ....................................................................... 11
`
`Amazon’s Disagreement with Dr. Polish’s Opinions (Which
`
`Amazon Has Not Moved to Exclude) Provides No Basis to Exclude
`
`Mr. Reed’s Opinions ................................................................................. 11
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`4.
`
`Amazon Inaccurately Characterizes Mr. Reed’s Analysis of
`
` and Its Impact on Amazon Shopping Growth......................... 12
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`i
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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 3 of 18 PageID #: 8355
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`TABLE OF AUTHORITIES
`
`CASES
`
`PAGES
`
`Daubert v. Merrell Dow Pharms., Inc.,
`509 U.S. 579 (1993) .............................................................................................................1
`
`Hanson v. Alpine Valley Ski Area, Inc.,
`718 F.2d 1075 (Fed. Cir. 1983)........................................................................................8, 9
`
`In re Paoli R.R. Yard PCB Litig.,
`35 F.3d 717 (3d Cir. 1994)...................................................................................................8
`
`InterDigital Commc’ns, Inc. v. ZTE Corp., No. 1:13-cv-00009-RGA,
`2014 WL 4272726 (D. Del. Aug. 28, 2014) ..................................................................8, 13
`
`Intuitive Surgical, Inc. v. Auris Health, Inc.,
`No. 18-1359-MN, 2021 WL 3662842 (D. Del. Aug. 18, 2021) ..........................................8
`
`Schneider ex rel. Estate of Schneider v. Fried,
`320 F.3d 396 (3d Cir. 2003).................................................................................................8
`
`Shire Viropharma Inc. v. CSL Behring LLC,
`No. 17-414 Consol., 2021 WL 1227097 (D. Del. Mar. 31, 2021) .......................8, 9, 11, 13
`
`TC Tech., LLC v. Sprint Corp.,
`No. 16-cv-153-WCB, D.I. 300 (D. Del. Jan. 16, 2019) ...................................................8, 9
`
`TC Tech., LLC v. Sprint Corp.,
`No. 16-cv-153-WCB, D.I. 393 (D. Del. June 18, 2019) ..................................................8, 9
`
`
`
`RULES
`
`FED. R. EVID. 702 .............................................................................................................................8
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`
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`-ii-
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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 4 of 18 PageID #: 8356
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`EXHIBIT /D.I. NO. DESCRIPTION
`
`TABLE OF EXHIBITS
`
`
`D.I. 183-1, Ex. 1
`
`8/15/22 Expert Report of Brett L. Reed (“Reed Op.”)
`
`D.I. 183-1, Ex. 2
`
`10/14/22 Reply Expert Report of Brett L. Reed (“Reed Rep.”)
`
`D.I. 183-1, Ex. 5
`
`D.I. 183-1, Ex. 7
`
`D.I. 183-1, Ex. 8
`
`D.I. 190-1, Ex. 9;
`D.I. 183-1, Ex. 6
`
`D.I. 190-1, Ex. 11
`
`Ex. A
`
`Ex. B
`
`Ex. C
`
`Ex. D
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`Ex. E
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`Ex. F
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`Ex. G
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`Ex. H
`
`Ex. I
`
`Ex. J
`
`
`
`6/22/22 Rebuttal Expert Report of Keith R. Ugone, Ph.D. (“Ugone
`Reb.”)
`
`
`AMZ_VB_00342253 – AMZ_VB_00342259
`
`
`
`AMZ_VB_00490726
`AMZ_VB_00490737
`
`8/15/22 Opening Expert Report of Dr. Nathaniel Polish (“Polish Op.”)
`
`10/14/22 Reply Expert Report of Nathaniel Polish, Ph.D. (“Polish
`Rep.”)
`
`6/24/22 Amazon Supp. Objections & Response to First Set of
`Interrogatories (Nos. 1 and 11)
`
`AMZ_VB_00434252 - AMZ_VB_00434282
`
`AMZ_VB_00386884 - AMZ_VB_00386904
`
`Bakewell Dep. Ex. 7 4.23.21)
`AMZ_VB_100002071 - AMZ_VB_100002081
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`AMZE_VB_00436348 - AMZE_VB_00436354
`
`
`AMZ_VB_00439635 - AMZ_VB_00439645
`
`
`
`
`
`
`
` (C.
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`
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`12/12/22 Remote Video Deposition Transcript of Brett L. Reed
`
`TC Tech., LLC v. Sprint Corp., No. 16-cv-153-WCB, D.I. 300 (D.
`Del. Jan. 16, 2019) TC’s Answering Br. in Opp’n to Sprint’s Consol.
`Mot to Exclude Expert Testimony of Reed and Regis Bates
`
`TC Tech., LLC v. Sprint Corp., No. 16-cv-153-WCB, D.I. 393 (D.
`Del. June 18, 2019) Memo Opinion
`
`9/22/22 Rebuttal Expert Report of Keith Ugone, Exhibits 13-14
`
`-iii-
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`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 5 of 18 PageID #: 8357
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`I.
`
`NATURE AND STAGE OF THE PROCEEDINGS
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`Through this action, Plaintiff VB Assets, LLC (“VoiceBox”) seeks to hold Amazon
`
`accountable for its infringement of U.S. Patent Nos. 8,073,681 (the “’681 patent”), 9,626,703 (the
`
`“’703 patent”), 7,818,176 (the “’176 patent”), 8,886,536 (the “’536 patent”), and 9,269,097 (the
`
`“’097 patent”), collectively, the currently “Asserted Patents.” D.I. 22 (“Amended Complaint”). 1
`
`Fact and Expert discovery have closed; no trial date has been set (D.I. 172; D.I. 179).
`
`Defendants (collectively, “Amazon”) have moved to exclude the testimony of VoiceBox’s
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`damages expert, Brett Reed (D.I. 181 (the “Daubert Motion”); D.I. 182 (“Opening Daubert Brief”
`
`or “ODB”)). VoiceBox hereby responds to Amazon’s Daubert Motion.
`
`II.
`
`SUMMARY OF ARGUMENT
`
`1. The Court should deny Amazon’s Daubert Motion. Mr. Reed’s calculation of a
`
`reasonable royalty is based on the costs (specifically customer acquisition costs) that Amazon
`
`avoided through use of the patented technology, which is a methodology for calculating a
`
`reasonable royalty that has been accepted by this Court. Mr. Reed’s opinions are reliable in that
`
`they are based on his interpretation of available evidence, including documents Amazon produced
`
`in this action, and the application of accepted methodologies grounded in economic principles, not
`
`speculation. They will assist the trier of fact in assessing VoiceBox’s claims for damages in this
`
`matter. Amazon’s disagreements with Mr. Reeds’ methods and his analysis of the evidence are
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`matters for the jury to consider, not bases for exclusion under Daubert.
`
`2. Mr. Reed’s Reply Report corrects a math error from his Opening Report and explains
`
`the other adjustments required to ensure that his calculations remained consistent with all available
`
`evidence. Amazon (which did not move to exclude Mr. Reed’s Reply Expert Report, and instead
`
`submitted a Sur-Reply Report from its damages expert Dr. Keith Ugone), by contrast, argues that
`
`
`1 VoiceBox also asserted U.S. Patent No. 9,015,049 but subsequently dropped that patent.
`
`-1-
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`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 6 of 18 PageID #: 8358
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`Mr. Reed should apply the mathematical fix mechanically without changes to any other aspects of
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`the analysis in Mr. Reed’s Opening Report, even if fixing only the number in a vacuum would
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`result in an outcome that is inconsistent with the evidence in the case. Amazon’s disagreement
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`with the manner in which Mr. Reed ’s Reply Report addressed the math error in his Opening Report
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`and considers the available evidence are issues for the jury, not exclusion under Daubert.
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`3. Amazon misunderstands the substance of Mr. Reed’s analysis, particularly regarding the
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`ability to measure by proxy the contributions of the patented technology, the importance of extra
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`dialog turns in the Alexa Shopping customer experience (see ODB at 8), and the introduction of
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`9). Amazon also ignores Mr. Reed’s reliance on VoiceBox’s technical expert. Amazon’s
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`misunderstandings of Mr. Reed’s opinions and its discounting of the bases thereof do not justify
`
` (see ODB at
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`excluding his testimony.
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`III.
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`FACTUAL BACKGROUND
`
`A.
`
`The Asserted Patents and Accused Technology
`
`VoiceBox alleges that Amazon infringes five Asserted Patents. The ’681 patent generally
`
`relates to using shared knowledge accumulated over time to identify the intended meaning of a
`
`voice utterance. Polish Op. ¶ 35. The ’176, ’536, and ’097 patents (collectively, the “Voice Ads
`
`Patents”) generally relate to providing targeted advertisement in response to a voice request. Id.
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`¶¶ 45-47. The ’703 patent generally relates to completing a purchase via a single voice utterance.
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`Id. ¶¶ 40-44. While the Asserted Patents address different aspects of a user’s interactions with a
`
`voice recognition interface, each patent provides benefits associated with reducing unnecessary
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`dialog turns during the interactions, thereby reducing speech recognition errors and enhancing user
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`experience. Specifically, VoiceBox alleges that since Alexa’s launch in November 2014, Amazon
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`has infringed the Asserted Patents (initially, the ’681 and ’176 patents, and the other Asserted
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`Patents once granted) through the Alexa voice service, including via Alexa Shopping and
`
`-2-
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`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 7 of 18 PageID #: 8359
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`Amazon’s Alexa-enabled devices, enabling nearly all user interactions with Alexa to require at
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`least 1-2 fewer dialog turns to accomplish the desired results of the interactions. Polish Op. ¶¶ 758-
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`772; Polish Rep. ¶¶ 103-128 (discussing Amazon’s proposed non-infringing alternatives); Reed
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`Op. at 117-121 (explaining Mr. Reed’s reliance on Dr. Polish).
`
`B.
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`Alexa Shopping and the
`
`
`
` Ex.2 A (Amazon Supp. Rog Resp.) at 10; D.I. 183-1, Ex. 7 (AMZ_VB_00342253 at 254.
`
`
`
`As of the beginning of 2018,
`
`By mid-2018,
`
` D.I. 183-1, Ex. 7 (AMZ_VB_00342253) at 254. Therefore, in
`
` See infra.
`
`
`
`
`
`
`
`
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`183-1, Ex. 7 (AMZ_VB_00342253) at 254.
`
`. Ex. B (AMZ_VB_00434252) at 261; D.I.
`
`
`
`
`
`
`
`(AMZ_VB_00434252) at 271 (
`
`
`
` Ex. C (AMZ_VB_00386884) at 8993; see also Ex. B
`
`The introduction of
`
` proved to be a success, and Amazon began seeing an
`
`significant increase in the use of Alexa Shopping beginning in
`
`. E.g., Ex. D
`
`).
`
`(AMZ_VB_100002071) at 075; Reed Op. at Tabs 5-6; id. at 57-58.
`
`
`
`
`
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`2 “Ex.” shall mean exhibits to the Declaration of Ian R. Liston filed concurrently herewith.
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`3 Emphases are added unless indicated otherwise.
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`-3-
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`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 8 of 18 PageID #: 8360
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`Reed Rep. at 20-21, Tab 16-R.
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`points to in its Daubert Motion shows
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` (see AMZ_VB_00436348) at 348))
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`
`
`
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`
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`, the document Amazon
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`
`
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`
`:
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`D.I. 183-1, Ex. 8 (AMZ_VB_00490726) at 737 (excerpted). As highlighted in yellow in the table
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`above,
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`
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`
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`C. Mr. Reed’s Damages Opinions
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`
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`Mr. Reed opines that, absent Amazon’s infringement, user dialogs with Alexa would have
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`been longer and less
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` and that Alexa and Alexa Shopping would have experienced
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`slower growth than it was able to achieve through its infringement of the Asserted Patents. Reed
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`Op. at 4; Reed Rep. at 7 n.12 (citing Ex. F (AMZ_VB_00439635) at 636). Mr. Reed explains that
`
`the patented technology enabled Amazon to save costs that it would otherwise have been required
`
`to incur to obtain the customers reflected in its historical growth rates. Those costs—including, for
`
`-4-
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`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 9 of 18 PageID #: 8361
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`example, the costs of
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` in order to increase the Alexa
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`user base—“is the basis of the reasonable royalty determination.” Reed Op. at 4, 74-75, 111-113.
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`The first step of this analysis was to estimate the amount of growth in Alexa overall and
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`Alexa Shopping that Amazon would have been unable to achieve absent its ability to employ the
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`patented technology, which, according to VoiceBox’s technical expert, would have resulted in
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`adding at least 1-2 extra turns to nearly all Alexa interactions since November 2014. See Reed Op.
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`at 116 n.323 (relying upon Dr. Polish’s discussions in his Infringement Expert Report of Amazon’s
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`purported non-infringing alternatives at ⁋⁋ 759, 767-772 regarding the the’681 patent, ⁋⁋ 759, 760-
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`762 regarding the Voice Ads Patents, and ⁋⁋ 759, 763-766 regarding the ’703 patent); id. at 142
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`n.363; Ex. G (Reed Tr.) at 23:18-26:17.
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`1.
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`Mr. Reed Shows that
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`Mr. Reed identified data that could be used as a proxy for that very purpose:
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`.
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`
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`(AMZ_VB_00342253) at 254 (
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` D.I. 183-1, Ex.7
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`
`
`
`
`); Reed Rep. at Tab 16-R; id. at 13, 18-19, 23; Reed Op. at 52-54; 137-
`
`139. As a result,
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`In his Opening Report, due to a spreadsheet input error, Mr. Reed calculated and used
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`. Reed Rep. at 11, 18, Tab 16-R.
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`. Reed Op. at 139 and n.360; Reed Rep. at 11. Although
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`-5-
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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 10 of 18 PageID #: 8362
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`
`
`, Mr. Reed believed
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` was too high a number to attribute solely to extra turns in view
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`of all the evidence he has seen. As such, Mr. Reed apportioned only 20% of the growth differential
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`to the
`
`, and the rest to other contributions of Amazon made
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`to Alexa Shopping, such as
`
`. Reed Op. at 142, 163 n.397. Therefore, in
`
`his Opening Report, Mr. Reed considered the
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` time period and used an
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`apportioned
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` user growth difference as the proxy for the benefits the Asserted Patents had
`
`been providing to Alexa (including Alexa Shopping) since the launch of Alexa in November 2014.
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`Mr. Reed viewed this as consistent with the apportioned growth seen after the introduction of
`
`. Reed Op. at 142-144, Tabs 5, 6.
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`
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`Mr. Reed believed that correcting his math error also required him to reassess how he had
`
`considered the incorrect number in his Opening Report and the apportionment that he had applied
`
`in view of it. One of adjustments Mr. Reed made is reflected in Line [A] of Tab 16-R, focused
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`directly on the
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`. Reed Rep. at Tab 16-R.
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`
`
` Line [A] represents
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`, i.e., the result of not
`
`infringing the patents-in-suit. Another of the adjustments Mr. Reed made in light of his math
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`correction is reflected in Line [B] of Tab 16-R, which addressed the amount by which
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`139; Reed Rep. at 11, 18, 21, Tab 16-R.
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`In his Reply Report, Mr. Reed showed that
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` Reed Op. at
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`-6-
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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 11 of 18 PageID #: 8363
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`. Reed Rep. at 20, Tab 16-
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`R. Based on this, Mr. Reed opined that Amazon would have expected
`
`
`
`.
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`Reed Rep. 19-20, Tab 16-R. The difference between the actual growth in Alexa Shopping users
`
`from
`
` compared to the expected growth, assuming that improvements similar
`
`to
`
` were part of Amazon’s growth expectations, was
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`. Reed Rep. at 21; Tab 16-R
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`at Line [B]. But, because Mr. Reed recognized
`
`
`
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`
`, Mr. Reed apportioned that
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` by the same 80%/20% ratio as he used in his
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`Opening Report to account for Amazon’s expected contributions unrelated to the Asserted Patents,
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`resulting in his assessment that approximately
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` of the difference between Alexa Shopping’s
`
`expected and actual growth as of
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` was d ue to
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`
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`. Reed Rep. at 21, n.41; Ex. G (Reed Tr.) at 69:16-24; 73:8-12; 87:12-15;
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`111:12-15; 112:1-113:4; 142:20-143:13.
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`Mr. Reed viewed the user growth
`
` differential4 as a proxy for estimating the
`
`detrimental effect on the user growth of Alexa overall (including Alexa Shopping) if all or nearly
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`all Alexa interactions (including Alexa Shopping interactions) included at least 1-2 extra,
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`unnecessary turns. Reed Op. at 141-142, 163-164, 167, 174-175; Ex. G (Reed Tr.) at 75:6-25.
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`Finally, Mr. Reed examined the costs Amazon expended to obtain new customers and used those
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`costs to determine what Amazon would have had to pay in order to replace
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` of growth in
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`Alexa (including Alexa Shopping) if it had been unable to use VoiceBox’s patented technology.
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`IV. ARGUMENT
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`
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`4
` is the lower of the two growth differentials addressed by Mr. Reed (i.e., lower than the
` lower growth Mr. Reed stated he could have reasonably estimated for the impact of
`
`), and a reasonable proxy for measuring the user-preserving benefit of the patents.
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`-7-
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`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 12 of 18 PageID #: 8364
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`A.
`
`Legal Standard
`
`“Rule 702 embodies a trilogy of restrictions on expert testimony: qualification, reliabilit y
`
`and fit.” Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003) (citing
`
`FED. R. EVID. 702). The Third Circuit has construed the qualification requirement liberally,
`
`holding that “a broad range of knowledge, skills, and training qualify an expert .” In re Paoli R.R.
`
`Yard PCB Litig., 35 F.3d 717, 741 (3d Cir. 1994). To be reliable, the opinion must be “ground[ed]
`
`in the methods and procedures of science” and “more than subjective belief or unsupported
`
`speculation.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993). To show fit, an
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`expert opinion “must be relevant for the purposes of the case and must assist the trier of fact.”
`
`Intuitive Surgical, Inc. v. Auris Health, Inc., No. 18-1359-MN, 2021 WL 3662842, at *2 (D. Del.
`
`Aug. 18, 2021) (citing Schneider, 320 F.3d at 404). Further, disagreements between experts over
`
`the proper methodology is “a credibility and weight dispute for the jury and not a basis for Daubert
`
`exclusion.” Shire Viropharma Inc. v. CSL Behring LLC, No. 17-414 Consol., 2021 WL 1227097,
`
`at *9 (D. Del. Mar. 31, 2021); InterDigital Commc’ns, Inc. v. ZTE Corp., No. 1:13-cv-00009-
`
`RGA, 2014 WL 4272726, at *4 (D. Del. Aug. 28, 2014).
`
`“Reliance upon estimated cost savings from use of the infringing product is a well settled
`
`method of determining a reasonable royalty.” Hanson v. Alpine Valley Ski Area, Inc., 718 F.2d
`
`1075, 1080-81 (Fed. Cir. 1983). Indeed, this Court has previously approved the determination of
`
`a reasonable royalty based on the costs of replacing customers saved by employing patented
`
`technology. Ex. H (TC Tech., LLC v. Sprint Corp., No. 16-cv-153-WCB, D.I. 300 (D. Del. Jan.
`
`16, 2019) (“TC Tech.”) at 6 (describing Mr. Reed’s calculation of “the cost to Sprint of customers
`
`it would have lost had Sprint kept offering slower, 3G services” and not a faster service enabled
`
`by the asserted patents as informing his reasonable royalty calculation) and Ex. I (TC Tech., D.I.
`
`393 (D. Del. June 18, 2019)) at 4-6 (rejecting the defendants’ Daubert challenges to that method).
`
`B.
`
`The Court Should Deny Amazon’s Motion to Exclude Mr. Reed’s Testimony
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`-8-
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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 13 of 18 PageID #: 8365
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`1.
`
`Amazon’s Disagreements with Mr. Reed’s Interpretation of the Evidence
`Provide No Basis to Exclude His Opinion
`
`Amazon does not challenge either Mr. Reed’s qualifications as an expert or his
`
`employment of a cost-savings methodology, in general, in determining a reasonable royalty for
`
`Amazon’s infringement of the Asserted Patents. Mr. Reed’s opinions are reliable, are based on
`
`substantial evidence of the costs (specifically customer acquisition costs, such as the cost s of
`
` or of providing promotions and gift
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`cards to incentivize use of Alexa Shopping) that Amazon avoided through use of the patented
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`technology, after estimating the amount of growth in Alexa overall (including Alexa Shopping)
`
`that was attributable directly to the patented technology. See supra § III.C.; see also Reed Op. at
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`4, 26-27, 74-75, 111-113, 127-128, 160-176; id. at Tabs 10-12, 18, E1-E4. Mr. Reed’s assessment
`
`of Amazon’s ability to avoid such costs by use of the patented technology employed an accepted
`
`basis for calculation of a reasonable royalty. See Hanson, 718 F.2d at 1080-81; Exs. H, I (TC Tech.,
`
`D.I. Nos. 300 and 393). His opinions are grounded in the available evidence, and they will assist
`
`the trier of fact in assessing VoiceBox’s claims for damages. Indeed, Amazon’s motion does
`
`nothing more than criticize the manner in which Mr. Reed interpreted the evidence he reviewed
`
`and applied the methodology he believed appropriate to that evidence. That is not a basis for
`
`excluding Mr. Reed’s testimony under Daubert. Shire Viropharma Inc., 2021 WL 1227097, at *9.
`
`For example, Amazon criticizes the manner in which Mr. Reed corrected the mathematical
`
`error that was present in his Opening Report. Having realized this mistake, Mr. Reed submitted a
`
`Reply Report and corrected the growth differential to
`
`. Reed Rep. at Tab 16-R.
`
`But despite now claiming that the corrected calculations are based on alleged ly “new” and
`
`“concocted” assumptions and methodology, Amazon did not move to strike Mr. Reed’s Reply
`
`Report. To the contrary, Amazon negotiated with VoiceBox so that its damages expert, Dr. Ugone,
`
`could submit a Sur-Reply Report in response to Mr. Reed’s Reply Report. ODB at 2; D.I 179.
`
`-9-
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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 14 of 18 PageID #: 8366
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`Amazon also deposed Mr. Reed and questioned him extensively on how he formed his opinions,
`
`including the way he evaluated the evidence in view of his correction of the math error in the
`
`Opening Report. Amazon’s criticisms based on differences between Mr. Reed’s Opening and
`
`Reply Reports are properly the subject of cross-examination at trial, not a Daubert motion.
`
`So, too, are Amazon’s criticisms of the methodologies Mr. Reed used to estimate damages.
`
`Amazon agrees with the corrected
`
` growth differential used in Mr. Reed’s Reply Report. See
`
`Ugone Reb. at ¶ 234 and n.689 (using
`
` as the growth differential). Amazon disputes whether
`
`Mr. Reed, as he believes was necessary to do, was permitted to evaluate that corrected figure in
`
`view of the other evidence he reviewed. See description of Mr. Reed’s analysis at § III.C.1.
`
`By contrast, Amazon argues that Mr. Reed was only permitted to address his math error in
`
`exactly the same way Dr. Ugone proposed: Fix the one math error and mechanically carry forward
`
`all the other subsequent calculations of Mr. Reed’s Opening Report, without any other
`
`considerations. Mr. Reed explained his view that this methodology was improper: Dr. Ugone “did
`
`not consider the relative growth that would have been expected for Alexa Shopping if it was not
`
`subject to the additional unneeded dialog turns, and thereby incorrectly imputes consequences of
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`the correction that do not hold.” Reed Rep. at 18; see also Ex. G (Reed Tr.) at 93:18-97:9
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`(explaining Dr. Ugone’s calculations disregarded other appropriate adjustments and the underlying
`
`logic of Mr. Reed’s methodology). According to Amazon’s and Dr. Ugone’s analysis, the impact
`
`of
`
` would only improve growth by
`
`. Ex. J (Ugone Reb. Exs. 13-14) at
`
`Adjustment #2 (applying a 20% apportionment on the corrected
`
` growth differential). That
`
`result is inconsistent with
`
`
`
`
`
`. Ex. E (AMZ_VB_00436348, cited in Ugone Reb. at Ex. 3, Facts Data
`
`and Other Information Received at 72) at 348 (showing that
`
`
`
`
`
`-10-
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`

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`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 15 of 18 PageID #: 8367
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`). These, and other, disagreements between the experts as to the proper methodology and
`
`interpretation of the evidence, are matters properly left to the consideration of the finder of fact, in
`
`this case the jury, not for exclusion under Daubert. Shire Viropharma, 2021 WL 1227097, at *9.
`
`2.
`
`Amazon’s Misunderstandings of Mr. Reed’s Opinions Are Not Grounds to
`Exclude Them.
`
`Further, contrary to Amazon’s claim, Mr. Reed’s analysis neither rests on the assumption
`
`that the accused features caused
`
` nor
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`values
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` rather than the contribution of the asserted patents. ODB at 8; id. at 9; Ex. G
`
`(Reed Tr.) at 86:13-87:15. Rather, Mr. Reed (relying on Dr. Polish) explained that without the
`
`benefits of the Asserted Patents,
`
`
`
`. Reed Op. at 142 n.363; Polish Op. ¶ 759. Mr.
`
`Reed examined the effect of these
`
` on Alexa Shopping’s growth as a proxy for
`
`estimating the effect of the loss of the patented benefits, which would have caused an increase of
`
`at least 1-2 turns in nearly all Alexa interactions (including Alexa Shopping interactions). See
`
`supra § III.C.1; Reed Op. at 141-142, 163-164, 167, 174-175; Ex. G (Reed Tr.) at 75:6-25.
`
`
`
` Mr. Reed also examined the
`
`growth Alexa Shopping experienced due to
`
` (see infra § IV.B.4, citing Reed Op. at Tab
`
`6), which he apportioned to identify the growth percentage attributable to reducing turns and used
`
`as a proxy for the impact of the loss of the patented benefits on Alexa and Alexa Shopping and to
`
`demonstrate the reasonableness of his apportionment analysis. That is not “merely valu[ing]
`
`.” Amazon’s mistaken characterizations of Mr. Reed’s opinions do not merit exclusion.
`
`3.
`
`Amazon’s Disagreement with Dr. Polish’s Opinions (Which Amazon Has
`Not Moved to Exclude) Provides No Basis to Exclude Mr. Reed’s Opinions
`
`Amazon also argues that Mr. Reed’s
`
` analysis is inapplicable to the
`
`allegedly
`
` Alexa interactions (ODB at 9), but this argument ignores Dr. Polish’s opinion
`
`-11-
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`

`

`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 16 of 18 PageID #: 8368
`
`that, without the benefits of the ’681 patent, a majority of Alexa interactions would have required
`
`additional turns. ODB at 8-9; Reed Rep. at 42 (citing Polish Op. ¶¶ 159-163, Polish Rep. ¶¶ 74-
`
`75, 114-115, and conversations with Dr. Polish). For example, Mr. Reed explained that he relied
`
`on a conversation in which Dr. Polish told him that a user could ask Alexa to find the song “Hello”
`
`by Lionel Richie and save it in the Amazon Music library. The user’s subsequent , single-turn
`
`requests to “play Hello” would prompt Alexa to play the song saved in the Amazon Music library,
`
`instead of songs with the same title or performed by other artists. Ex. G (Reed Tr.) 25:25-26:17;
`
`Polish Op. ¶¶ 168, 178. Amazon did not move to exclude Dr. Polish’s expert opinions. Mr. Reed’s
`
`testimony should not be excluded where it is supported by reliance on those opinions.
`
`4.
`
`Amazon Inaccurately Characterizes Mr. Reed’s Analysis of
`Its Impact on Amazon Shopping Growth
`
` and
`
`Amazon also takes issue with Mr. Reed’s reliance on
`
`, arguing that it is a new
`
`and unsupported assumption, and that it has “no conceivable connection” to the Asserted Patents.
`
`ODB at 2. Both arguments are wrong. First,
`
` was discussed in detail and relied upon by
`
`Mr. Reed in his Opening Report. Mr. Reed addressed
`
`
`
`
`
`. Reed Op. at 57, 134, 139, 176-177, Tabs 5-6. For example,
`
`in Tabs 5-6, Mr. Reed compared Alexa’s and Alexa Shopping’s respective growth before and after
`
`the deployment of
`
`, and summarized Amazon internal assessment of the impact of
`
`. Relying on the impact of
`
` on Alexa Shopping growth, while recognizing
`
`that other Amazon efforts also contributed to the growth, Mr. Reed concluded that original
`
`
`
`growth differential likely overestimated the contributions of the Asserted Patents and therefore
`
`needed further apportionment. Reed Op. at 141-42, Tab 16; Ex. G (Reed Tr.) at 68:14-67:24. Put
`
`differently, Mr. Reed did not simply adopt the specific calculations he performed in Tab 16 of his
`
`Opening Report, but also relied on the totality of the evidence he has seen, including the impact of
`
`-12-
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`

`

`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 17 of 18 PageID #: 8369
`
`, to confirm the reasonableness of his growth differential calculations.
`
`Second, Amazon seems to imply that
`
`
`
` from the outset of
`
`’s implementation. ODB at 2, 7, 9. This is
`
`demonstrably false. As discussed supra,
`
`. In addition, contrary to Amazon’s claim that
`
` (ODB at 7),
`
`
`
`
`
`
`
` and presented in Amazon’s motion
`
`. As
`
`addressed above, Mr. Reed did give considerable credit to Amazon’s other contributions in the
`
`post
`
` period, which would account for
`
`
`
`. To the extent Amazon argues that Mr. Reed
`
`did not give adequate consideration to the
`
`, that argument goes to
`
`the weight of Mr. Reed’s testimony, which is for the jury to resolve. Shire Viropharma, 2021 WL
`
`1227097, at *9; InterDigital Commc’ns, 2014 WL 4272726, at *4.
`
`V.
`
`CONCLUSION
`
`For the reasons stated, VoiceBox respectfully requests that Amazon’s motion be denied.
`
`
`
`Dated: March 3, 2023
`
`OF COUNSEL:
`
`James C. Yoon, admitted pro hac vice
`Ryan Smith, admitted pro hac vice
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`Telephone: (650) 493-9300
`Facsimile: (650) 493-6811
`jyoon@wsgr.com
`rsmith@wsgr.com
`
`
`Erik J. Carlson, admitted pro hac vice
`
`-13-
`
`
`
`
`
`
`
`
`
`WILSON SONSINI GOODRICH & ROSATI, P.C.
`
`
`
`/s/ Ian R. Liston
`
`Ian R. Liston (Bar No. 5507)
`Jennifer A. Ward (Bar No. 6476)
`222 Delaware Avenue, Suite 800
`Wilmington, DE 19801
`Telephone: (302) 304-7600
`iliston@wsgr.com
`jward@wsgr.com
`
`Attorneys for Plaintiff VB Assets, LLC
`
`
`

`

`Case 1:19-cv-01410-MN Document 206 Filed 03/10/23 Page 18 of 18 PageID #: 8370
`
`Jamie Y. Otto, admitted pro hac vice
`Ryan S. Benyamin, admitted pro hac vice
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071-2027
`Telephone: (323) 210-2900
`Facsimile: (866) 974-7329
`ecarlson@wsgr.com
`rbenyamin@wsgr.com
`jotto@wsgr.com
`
`
`
`
`
`-14-
`
`