Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 1 of 10 PageID #: 10660
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`IN THE UNITED STATES DISTRICT COURT 
`FOR THE DISTRICT OF DELAWARE 
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`VB ASSETS, LLC, 
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`v. 
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`Plaintiff, 
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`C.A. No. 1:19-cv-01410-MN 
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`JURY TRIAL DEMANDED
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`FILED UNDER SEAL
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`AMAZON.COM SERVICES LLC, 
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`Defendant. 
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`PLAINTIFF VB ASSETS, LLC’S MOTION TO AMEND TRIAL EXHIBIT LIST
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`SMITH, KATZENSTEIN & JENKINS LLP
`Neal C. Belgam (No. 2721)
`Jason Z. Miller (No. 6310)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`jmiller@skjlaw.com
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`Counsel for Plaintiff VB Assets, LLC
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`Of counsel:
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`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`James C. Yoon, admitted pro hac vice
`Ryan Smith, admitted pro hac vice
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`(650) 493-9300
`jyoon@wsgr.com
`rsmith@wsgr.com
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`Matthew A. Macdonald, admitted
`pro hac vice
`Jamie Otto, admitted pro hac vice
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`(323) 210-2900
`Matthew.Macdonald@wsgr.com
`jotto@wsgr.com
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`Brad Tennis, admitted pro hac vice
`1700 K Street NW, Fifth Floor
`Washington, DC 20006-3814
`(202) 973-8800
`btennis@wsgr.com
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`October 27, 2023
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 2 of 10 PageID #: 10661
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`One of Amazon’s central defenses in this case is that Alexa cannot infringe the patents-in-
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`suit because Alexa has no long-term memory and does not identify a context for a user’s utterance.
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`As Amazon explained in its motion for summary judgment: “Alexa does not and cannot determine
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`the context of each utterance or look up information about each user’s prior conversations to
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`understand their current request.” Mot. for Summ. J. (D.I. 186) at 6. But eve-of-trial public
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`announcements by Amazon contradict this story and support the opinions offered by the experts
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`retained by Plaintiff VB Assets, LLC (“VB Assets”). Amazon has now announced to the world
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`that Alexa LLM features launching soon will make of use long-term memory about user
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`conversations as an interpretive aid to establish context. A public page on Amazon’s website states
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`that Alexa “retrieve[s] content based on user context, device context and memory (which includes
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`conversation history, and event timeline).” Ex. A (emphasis added).
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`By this motion, VB Assets seeks leave to add three documents reflecting these public
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`statements to the trial exhibit list—two pages from Amazon’s website and a YouTube video posted
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`by Amazon. These materials are attached hereto as Exhibits A-C. Good cause exists to add them
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`to the trial exhibit list and to permit their use to further elucidate the expert opinions in this case.
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`• The documents are highly probative. They go to the core issue of infringement and
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`directly contradict statements made in Amazon’s summary judgment papers about how
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`Alexa works. Moreover, Exhibit C contains a live demonstration of the newly
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`announced features that clearly shows infringement of VB Assets’s ‘681 patent on
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`contextual
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`conversations.
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`See
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`Ex.
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`C
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`(https://www.youtube.com/watch?v=uH24S9wzcQ0)
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`• VB Assets has been diligent. The documents were never produced in discovery and
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`were publicly revealed after the parties exchanged trial exhibit lists. VB Assets
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 3 of 10 PageID #: 10662
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`discovered them by chance after the Proposed Pretrial Order was filed and then
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`promptly brought them to Amazon’s attention and filed this motion.
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`• There is no prejudice to Amazon. Amazon must have long known about the use of
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`long-term memory and context disclosed in these statements, whether that use is solely
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`in the new features or was also in already launched features. It was Amazon’s decision
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`to make these announcements on the eve of trial. Moreover, these documents do not
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`entail any new theories or opinions. VB Assets rather seeks leave to use them as further
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`evidence that reinforces the opinions that its experts have already disclosed.
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`I.
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`Background and Legal Standard
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`VB Assets asserts in this case that Alexa infringes on its patent numbered 8,073,681 (the
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`“’681 patent”), which concerns the use of short-term and long-term shared knowledge to identify
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`context for aiding in computer understanding of human speech. In relevant part, claim 13 of the
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`‘681 patent discloses “accumulat[ing] long-term shared knowledge about the user, wherein the
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`long-term shared knowledge includes knowledge about one or more past conversations with the
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`user” and “identify a context associated with the utterance, wherein a conversational speech engine
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`identifies the context associated with the utterance from the short-term shared knowledge and the
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`long-term shared knowledge.”
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`The parties completed expert discovery on October 7, 2022. Amazon thereafter moved for
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`summary judgment, contending among other things that Alexa did not infringe the patents because
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`Alexa (i) does not have the ability to use past user conversations to interpret a current utterance,
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`and (ii) does not determine a “context” for an utterance. See, e.g., Mot. for Summ. J. at 7 (“Alexa’s
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`NLU does not retain any ‘state’ for previous utterances and Alexa does not identify any context
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`before processing a user’s current utterance”); id. at 34 (Alexa’s NLU has “no memory of any
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`prior utterances from the user”); . The Court denied Amazon’s motion on July 7, 2023.
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 4 of 10 PageID #: 10663
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`The parties exchanged exhibit lists per agreement on September 7, 2023. Approximately
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`two weeks later, Amazon publicly posted the materials reflected in Exhibits A-C on September
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`20, 2023. The parties’ exhibit lists were filed together with the Proposed Pretrial Order on
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`September 28, 2023, Dkt. 239 & Exs. 6-8, per the Court’s Scheduling Order, Dkt. 227. Amazon
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`did not make VB Assets aware of these materials under Rule 26(e), which imposes a continuing
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`obligation to supplement or correct disclosures that are materially incorrect or incomplete. Fed. R.
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`Civ. P. 26(e). VB Assets was not aware of the documents in Exhibits A-C when they were posted
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`or when the Proposed Pretrial Order was filed. VB Assets discovered them by chance on October
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`11, 2023. VB Assets notified Amazon of its discovery in a letter dated October 20, 2023, and the
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`parties met and conferred regarding the instant motion on October 26, 2023.
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`The final pretrial order has not yet been signed, and the pretrial conference is set for
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`October 30, 2023. Oral Order of Oct. 3, 2023. This motion therefore falls under Federal Rule of
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`Civil Procedure 16(b), which allows modification of a scheduling order for “good cause.” Fed. R.
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`Civ. P. 16(b)(2); see also Preferences & Procedures for Civil Cases, the Honorable Maryellen
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`Noreika (Sept. 2019) (“Exhibits not listed [in a pretrial order] will not be admitted unless good
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`cause is shown.”).
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`II.
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`Amazon’s public statements directly contradict its litigation positions.
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`Exhibits A-C show that Alexa currently uses or will soon use long-term memory in ways
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`that contradict Amazon’s positions in summary judgment. Exhibit A states that Alexa “retrieve[s]
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`content based on user context, device context and memory (which includes conversation history,
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`and event timeline).” Ex. A (emphases added). To illustrate this sentence, the article includes the
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`following graphic—prepared by Amazon itself—which clearly shows the use of “long term
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`memory” (arrow added).
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 5 of 10 PageID #: 10664
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`Similarly, the presenter in the video reflected in Exhibit C states that “[Alexa’s new AI] characters
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`remember your conversations and adapt to your preferences.” Ex. C (emphasis added).
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`Amazon’s summary judgment briefing is directly to the contrary, stating: “Alexa does not
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`and cannot determine the context of each utterance or look up information about each user’s prior
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`conversations to understand their current request.” Mot. for Summ. J. at 6. Amazon further stated
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`in summary judgment that Alexa is “fundamentally different” from a system based on “processing
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`a user’s multi-utterance conversations and remembering the user’s past requests.” Id.
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`Exhibits A-C also show that Alexa identifies and uses context in ways that infringe VB
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`Assets’s patents and that Amazon expressly denied at summary judgment. In a live demonstration
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`of the newly announced LLM features, the presenter in the video reflected Exhibit C observes: “So
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`just like talking to another human being, I was able to restart that conversation. It didn’t lose any
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`context.” Ex. C (emphasis added). This live demonstration of an implemented feature infringes
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`VB Assests’s patents regardless of whether the feature has yet been released to customers.
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 6 of 10 PageID #: 10665
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`The webpages at Exhibits A and B clearly establish the connection between the
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`demonstrated feature and the use of long-term memory and identified context disclosed in the ‘681
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`patent. Exhibit B notes that users can ask follow-up questions “without needing to restate any of
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`the prior context.” Ex. B (emphasis added). And Exhibit A notes that the LLM model behind the
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`demonstrated feature makes use of “additional signals and data such as memory, context and user
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`preferences.” Ex. A (emphasis added). The article provides the following image—again, prepared
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`by Amazon—showing use of context and long-term memory in the box on the left, to help explain
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`this statement (arrow added).
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`Again, Amazon’s summary judgment briefing is directly to the contrary. Amazon stated that Alexa
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`“responds to the user’s spoken requests without identifying a single specific context or
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`interpretation and without using knowledge about prior conversations the user may have had with
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`the system.” Mot. for Summ. J. at 27. Amazon further claims that Alexa works “without an
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`identified context.” Id. at 30-31.
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 7 of 10 PageID #: 10666
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`Exhibits A-C are highly probative of questions about Alexa’s operation that are central to
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`the jury’s determination of infringement. It is essential that the jury see the contradiction between
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`Amazon’s public statements about Alexa and Amazon’s litigation positions and that VB Assets’s
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`experts be able to point to these statements as further evidence of their opinions.
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`III. Good cause exists to permit VB Assets to supplement its trial exhibit list.
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`This Court has previously held that “[g]ood cause exists when the [s]chedule cannot
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`reasonably be met despite the diligence of the party seeking the extension.” Apex Clearing Corp.
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`v. Axos Fin. Inc., No. 19-2066 (MN), 2022 U.S. Dist. LEXIS 140323, at *4-5 (D. Del. Aug. 8,
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`2022) (Noreika, J.) (quoting ICU Med., Inc. v. RyMed Techs., Inc., 674 F. Supp. 2d 574, 577 (D.
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`Del. 2009)); see also In re Chanbond, LLC, No. 15-842-RGA, 2021 U.S. Dist. LEXIS 73638, at
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`*2 (D. Del. Apr. 16, 2021) (good cause is shown where “a more diligent pursuit of discovery was
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`impossible.” (quoting Dow Chem. Can. Inc. v. HRD Corp., 287 F.R.D. 268, 270 (D. Del.
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`2012), aff’d, 587 F. App’x 741, 744-45 (3d Cir. 2014))).
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`Exhibits A-C were posted publicly on September 20, 2023 and were not discovered by VB
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`Assets until after the Proposed Pretrial Order was filed on September 28, 2023. This is not a failure
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`of diligence. Cf. Trustid, Inc. v. Next Caller Inc., No. 18-172 (MN), 2021 WL 3015280, at *2 (D.
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`Del. July 6, 2021) (Noreika, J.) (denying motion to amend for “documents produced two years
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`ago that [movant] chose not to include on its exhibit list until shortly before trial.” (emphasis
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`added)). Diligence does not require that VB Assets continually monitor all Amazon’s public
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`statements in real time. Courts have found good cause to exist even when much longer periods
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`have passed between the posting of a public statement by a party and its discovery. For example,
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`one court permitted amendment of an exhibit list where the statement had been publicly available
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`for two years. See Am. Family Mut. Ins. Co. v. Teamcorp Inc., No. 07-cv-00200-WYD-MJW, 2008
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 8 of 10 PageID #: 10667
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`U.S. Dist. LEXIS 135302, at *4, 8 (D. Colo. Dec. 18, 2008) (permitting amendment under the
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`more rigorous “manifest injustice” test of Rule 16(e)).
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`Once the moving party has established that it has acted diligently, some courts assessing
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`good cause under Rule 16(b) have also considered whether amendment would prejudice the
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`opposing party or whether curing any prejudice would disrupt trial. At the outset, there can be no
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`prejudice or surprise to Amazon as these materials were created and publicly posted by Amazon
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`itself. See Lassere v. Home Depot U.S.A., Inc., No. 12-2131, 2015 U.S. Dist. LEXIS 191944, at
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`*4-5 (E. D. La. Jan. 23, 2015) (noting prejudice to opposing party minimal when material sought
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`to be added to exhibit list was in that party’s possession). Amazon doubtless knew these
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`announcements were coming and had plenty of time to prepare.
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`In any case, courts have allowed amendment even where (unlike here) additional discovery
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`would be required to ensure any potential prejudice would be cured. For instance, in Sonder United
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`States v. 635 N. Scott, a party sought to add exhibits that, as in this case, “simply did not yet exist”
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`at the close of discovery as well as new witnesses. No. 18-13891, 2021 U.S. Dist. LEXIS 249663,
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`at *15 (E.D. La. Feb. 23, 2021). The court allowed the amendment but reopened limited purpose
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`document and deposition discovery to mitigate any potential prejudice. Id. at *20. Similarly in
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`Wilson v. Liberty Mut. Ins. Co., the court granted the plaintiff’s motions to amend its exhibit and
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`witness lists where the evidence was important to plaintiff’s case, the plaintiff acted diligently, and
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`“any minimal prejudice” could be cured by allowing depositions and a petition for a continuance.
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`No. CV 15-1416, 2016 WL 10932620, at *3 (W.D. La. Apr. 28, 2016). In this case, no further
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`discovery concerning the additional exhibits is necessary. Exhibits A-C do not raise new factual
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`issues but rather reinforce opinions already disclosed in the reports of VB Assets’s experts. Any
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 9 of 10 PageID #: 10668
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`conceivable prejudice could be cured through trial testimony about these documents from Amazon
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`witnesses knowledgeable about how Alexa works.
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`VB Assets respectfully requests that the Court grant permission to add Exhibits A-C to its
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`Respectfully submitted,
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`SMITH, KATZENSTEIN & JENKINS LLP
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`/s/ Jason Z. Miller
`Neal C. Belgam (No. 2721)
`Jason Z. Miller (No. 6310)
`1000 West Street, Suite 1501
`Wilmington, DE 19801
`(302) 652-8400
`nbelgam@skjlaw.com
`jmiller@skjlaw.com
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`Counsel for Plaintiff VB Assets, LLC
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`pretrial exhibit list.
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`October 27, 2023
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`Of counsel:
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`WILSON SONSINI GOODRICH &
`ROSATI, P.C.
`James C. Yoon, admitted pro hac vice
`Ryan Smith, admitted pro hac vice
`650 Page Mill Road
`Palo Alto, CA 94304-1050
`(650) 493-9300
`jyoon@wsgr.com
`rsmith@wsgr.com
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`Matthew A. Macdonald, admitted
`pro hac vice
`Jamie Otto, admitted pro hac vice
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`(323) 210-2900
`Matthew.Macdonald@wsgr.com
`jotto@wsgr.com
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`Brad Tennis, admitted pro hac vice
`1700 K Street NW, Fifth Floor
`Washington, DC 20006-3814
`(202) 973-8800
`btennis@wsgr.com
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`Counsel for Plaintiff VB Assets, LLC
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`Case 1:19-cv-01410-MN Document 254 Filed 10/27/23 Page 10 of 10 PageID #: 10669
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`CERTIFICATE OF SERVICE
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`I hereby certify that on the 27th day of October, 2023, the attached PLAINTIFF VB
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`ASSETS, LLC’S MOTION TO AMEND TRIAL EXHIBIT LIST was served upon the
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`below-named counsel of record at the address and in the manner indicated:
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`Steven J. Balick
`Andrew C. Mayo
`ASHBY & GEDDES
`500 Delaware Avenue, 8th Floor
`P.O. Box 1150
`Wilmington, DE 19899
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`J. David Hadden
`Saina S. Shamilov
`Ravi R. Ranganath
`Vigen Salmastlian
`Allen Wang
`Johnson Kuncheria
`Min Wu
`Jeffrey A. Ware
`Rebecca A.E. Fewkes
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
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` /s/ Jason Z. Miller
`Jason Z. Miller (No. 6310)
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