Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 1 of 25 PageID #: 12243
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`VB ASSETS, LLC
`
`Plaintiff,
`
`v.
`
`AMAZON.COM, INC., et al.,
`
`Defendants.
`
`C.A. No. 19-1410-MN
`
`PUBLIC VERSION -
`NO REDACTIONS
`
`PLAINTIFF VB ASSETS, LLC’S OPENING BRIEF
`IN SUPPORT OF ITS POST-TRIAL MOTIONS
`
`SMITH, KATZENSTEIN & JENKINS LLP
`
`Neal C. Belgam (No. 2721)
`Jason Z. Miller (No. 6310)
`1000 North West Street, Suite 1501
`Wilmington, Delaware 19801
`(302) 652-8400
`ncb@skjlaw.com
`jzm@skjlaw.com
`
`Attorneys for Plaintiff VB Assets, LLC
`
`Of counsel:
`WILSON SONSINI GOODRICH
`& ROSATI P.C.
`
`James C. Yoon
`Ryan R. Smith
`650 Page Mill Road
`Palo Alto, CA 94304
`jyoon@wsgr.com
`rsmith@wsgr.com
`
`Matthew A. Macdonald
`Jamie Otto
`Alexander J. Turner
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`matthew.macdonald@wsgr.com
`jotto@wsgr.com
`aturner@wsgr.com
`
`Bradley T. Tennis
`1700 K Street NW, Fifth Floor
`Washington, DC 20006
`btennis@wsgr.com
`
`Mikaela E. Evans-Aziz
`One Market Plaza, Spear Tower, Suite 3300
`San Francisco, CA 94105
`mevansaziz@wsgr.com
`
`

`

`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 2 of 25 PageID #: 12244
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`TABLE OF CONTENTS
`
`I.
`
`II.
`
`NATURE AND STAGE OF THE PROCEEDINGS ......................................................... 1
`
`SUMMARY OF THE ARGUMENT ................................................................................. 1
`
`III.
`
`ARGUMENT ...................................................................................................................... 2
`
`A.
`
`B.
`
`C.
`
`D.
`
`VB Assets Requests an Ongoing Royalty ............................................................... 2
`
`VB Assets Requests Pre-Judgment Interest ............................................................ 3
`
`VB Assets Is Entitled to Post-Judgment Interest .................................................... 4
`
`VB Assets Requests Enhanced Damages ............................................................... 4
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`Legal Standards for Enhancing Damages ................................................... 5
`
`Amazon’s Defenses at Trial ........................................................................ 6
`
`Read Factor 2: Amazon Offered No Evidence of Any Good Faith
`Belief of Non-Infringement or Invalidity ................................................... 9
`
`Read Factor 3: Amazon’s Behavior as a Party to the Litigation
`Supports Enhancement.............................................................................. 11
`
`a.
`
`b.
`
`Prior to Trial, Amazon Hid the Ball by Over-Litigating its
`Defenses ........................................................................................ 11
`
`At Trial, Amazon Presented Only a Small and Inconsistent
`Case ............................................................................................... 14
`
`Read Factor 4: Amazon’s Size and Financial Condition Support
`Enhancement ............................................................................................. 16
`
`Read Factor 5: This Was Not a Close Case .............................................. 17
`
`Read Factors 6, 7: Duration of Misconduct and Remedial Action ........... 18
`
`Read Factors 8, 9: Motivation for Harm and Concealing
`Misconduct ................................................................................................ 19
`
`Read Factor 1: While VB Assets Did Not Argue Deliberate
`Copying to the Jury, There Was Evidence at Trial Related to this
`Factor ........................................................................................................ 20
`
`IV.
`
`CONCLUSION ................................................................................................................. 20
`
`i
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 3 of 25 PageID #: 12245
`
`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`PAGE(S)
`
`Amgen Inc. v. Hospira, Inc.,
`336 F. Supp. 3d 333 (D. Del. 2018) .....................................................................................4
`
`ArcherDX, LLC v. Qiagen Scis., LLC,
`2022 WL 4597877 (D. Del. Sept. 30, 2022) (Noreika, J.) .............................................3, 17
`
`Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc.,
`670 F.3d 1171 (Fed. Cir. 2012), vacated on other grounds, 467 F. App’x
`747........................................................................................................................................2
`
`Chamberlain Grp., Inc. v. Techtronic Indus. Co.,
`315 F. Supp. 3d 977 (N.D. Ill. 2018) .................................................................................18
`
`Creative Internet Advert. Corp. v. Yahoo! Inc.,
`674 F. Supp. 2d 847 (E.D. Tex. 2009) .................................................................................3
`
`Del Mar Avionics, Inc. v. Quinton Instrument Co.,
`836 F.2d 1320 (Fed. Cir. 1987)..........................................................................................19
`
`Eaves v. Cty. of Cape May,
`239 F.3d 527 (3d Cir. 2001).................................................................................................4
`
`
`EagleView Techs., Inc. v. Xactware Sols., Inc.,
`
`522 F. Supp. 3d 40, 51 (D.N.J. 2021) ..............................................................10, 11, 18, 20
`
`Energy Transp. Grp., Inc. v. William Demant Holding A/S,
`697 F.3d 1342 (Fed. Cir. 2012)............................................................................................3
`
`Fresenius USA, Inc. v. Baxter Int’l, Inc.,
`582 F.3d 1288 (Fed. Cir. 2009)............................................................................................2
`
`GM Corp. v. Devex Corp.,
`461 U.S. 648 (1983) .............................................................................................................3
`
`Halo Elecs., Inc. v. Pulse Elecs., Inc.,
`579 U.S. 93 (2016) .........................................................................................................5, 20
`
`Lucent Techs., Inc. v. Newbridge Networks Corp.,
`168 F. Supp. 2d 269 (D. Del. 2001) ...................................................................................19
`
`nCUBE Corp. v. SeaChange Int’l, Inc.,
`313 F. Supp. 2d 361 (D. Del. 2004) .......................................................................17, 18, 19
`
`Purewick Corp. v. Sage Prods., LLC,
`2023 WL 2734418 (D. Del. Mar. 31, 2023) (Noreika, J.), appeal
`dismissed, 2023 WL 4230367 (Fed. Cir. June 28, 2023) .................................................3, 4
`
`ii
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 4 of 25 PageID #: 12246
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`
`
`Read Corp. v. Portec, Inc.,
`970 F.2d 816 (Fed. Cir. 1992).................................................................................... passim
`
`SRI Int’l, Inc. v. Cisco Sys.,
`254 F. Supp. 3d 680 (D. Del. 2017), aff’d in relevant part, reinstated in
`part, 14 F.4th 1323 (Fed. Cir. 2021) ..................................................................6, 13, 15, 17
`
`Sun Ship, Inc. v. Matson Navigation Co.,
`785 F.2d 59 (3d Cir. 1986)...................................................................................................3
`
`Tate Access Floors, Inc. v. Maxcess Techs., Inc.,
`222 F.3d 958 (Fed. Cir. 2000)..............................................................................................5
`
`Telcordia Techs., Inc. v. Cisco Sys., Inc.,
`612 F.3d 1365 (Fed. Cir. 2010)............................................................................................2
`
`Travelers Cas. & Sur. Co. v. Ins. Co. of N. Am.,
`609 F.3d 143 (3d Cir. 2010).................................................................................................4
`
`TruePosition Inc. v. Andrew Corp.,
`611 F. Supp. 2d 400 (D. Del. 2009), aff’d, 389 F. App’x 1000 (Fed. Cir.
`2010) ..................................................................................................................................19
`
`Uniroyal, Inc. v. Rudkin-Wiley Corp.,
`939 F.2d 1540 (Fed. Cir. 1991)............................................................................................3
`
`Vectura Lt d. v. GlaxoSmithKline LLC,
`2019 WL 4346502 (D. Del. Sept. 12, 2019) ........................................................................2
`
`STATUTES
`
`28 U.S.C. § 1961(a) .........................................................................................................................4
`
`35 U.S.C. § 284 ............................................................................................................................4, 5
`
`
`
`iii
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 5 of 25 PageID #: 12247
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`
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`Pursuant to the Court’s November 16, 2023 Order (D.I. 295) permitting the parties to file
`
`post-trial motions, Plaintiff VB Assets, LLC (“VB Assets”) respectfully requests that the Court
`
`award an ongoing royalty, pre- and post-judgment interest, and enhanced damages against
`
`Defendant Amazon.com Services LLC (“Amazon”) for Amazon’s willful infringement of VB
`
`Assets’s patents. Amazon’s adjudged misconduct, its ongoing infringement, its litigation
`
`behavior, and the governing case law all support granting VB Assets’s post-trial motions.
`
`I.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`From November 2-8, 2023, the Court held a five-day jury trial on VB Assets’s claims
`
`against Amazon for infringement of four patents: U.S. Patent Nos. 7,818,176 (“the ’176 Patent”),
`
`8,073,681 (“the ’681 Patent”), 9,269,097 (“the ’097 Patent”), and 9,626,703 (“the ’703 Patent”).
`
`On November 8, 2023, after less than two hours of deliberation, the jury found that all four patents
`
`were valid, that Amazon infringed each of them, and that Amazon’s infringement was willful. The
`
`jury awarded VB Assets $46,700,000 in reasonable royalty damages—the full amount sought. D.I.
`
`291. The Court entered judgment in favor of VB Assets the same day. D.I. 293.
`
`II.
`
`SUMMARY OF THE ARGUMENT
`
`VB Assets respectfully requests that the Court grant it the following post-trial relief:
`
`1. The jury found damages for Amazon’s ongoing patent infringement based on a running
`
`royalty. D.I. 291. VB Assets, therefore, requests that the Court establish an ongoing royalty for
`
`Amazon’s continuing patent infringement at the same rate that the jury found at trial ($0.40 per
`
`net new Alexa user for the ’681 Patent; $0.22 per net new Alexa Shopping user for the ’176 and
`
`’097 Patents; and $0.22 per net new Alexa Shopping purchaser for the ’703 Patent).
`
`2. VB Assets requests an award of pre-judgment interest at the prime rate compounded
`
`quarterly on the damages owed by Amazon, including any enhanced damages awarded by the
`
`Court, and post-judgment interest on the total award.
`
`1
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 6 of 25 PageID #: 12248
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`
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`3. In light of Amazon’s willful infringement and litigation conduct, VB Assets requests
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`that the Court enhance the jury’s damages award by one-half, from $46.7 million to $70.05 million.
`
`III. ARGUMENT
`
`A.
`
`VB Assets Requests an Ongoing Royalty
`
`VB Assets respectfully requests that the Court order Amazon to pay an ongoing royalty on
`
`its new Alexa users, new Alexa Shopping users, and new Alexa Shopping purchasers.
`
`“[T]he Federal Circuit has indicated that a prevailing patentee should receive compensation
`
`for any continuing infringement.” Vectura Ltd. v. GlaxoSmithKline LLC, 2019 WL 4346502, at
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`*6 (D. Del. Sept. 12, 2019).1 This is because “[a] damages award for pre-verdict sales of the
`
`infringing product does not fully compensate the patentee because it fails to account for post-
`
`verdict sales.” Fresenius USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1303 (Fed. Cir. 2009).
`
`The jury here found that Amazon’s Alexa and Alexa Shopping willfully infringed all four of VB
`
`Assets’s asserted patents and assessed damages through the end of 2023. But Amazon has done
`
`nothing to change its infringing practices going forward, and the verdict does not compensate VB
`
`Assets for Amazon’s infringement in the future. As a result, VB Assets is entitled to an ongoing
`
`royalty. See Telcordia Techs., Inc. v. Cisco Sys., Inc., 612 F.3d 1365, 1379 (Fed. Cir. 2010)
`
`(holding an ongoing royalty was appropriate because the plaintiff had not been compensated for
`
`the defendant’s continuing infringement).
`
`As to the amount of the ongoing royalty, courts routinely award ongoing royalties above
`
`the rate set forth in the jury award. Vectura Ltd., 2019 WL 4346502, at *7 (citing Bard Peripheral
`
`Vascular, Inc. v. W.L. Gore & Assocs., Inc., 670 F.3d 1171, 1193 (Fed. Cir. 2012), vacated on
`
`other grounds, 467 F. App’x 747) (jury’s damages award is “a starting point for evaluating ongoing
`
`
`1 Unless noted, all emphasis herein is added, and all internal citation and quotation is omitted.
`
`2
`
`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 7 of 25 PageID #: 12249
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`royalties”); Creative Internet Advert. Corp. v. Yahoo! Inc., 674 F. Supp. 2d 847, 861 (E.D. Tex.
`
`2009) (observing that the Federal Circuit “has instructed that post-verdict infringement should
`
`typically entail a higher royalty rate than the reasonable royalty found at trial” because, following
`
`a verdict, a prevailing plaintiff will have greater bargaining leverage).
`
`VB Assets nonetheless seeks an ongoing royalty only at the rates underpinning the jury’s
`
`verdict. Specifically, VB Assets seeks $0.40 per net new Alexa user as an ongoing royalty on the
`
`’681 Patent; $0.22 per net new Alexa Shopping user as an ongoing royalty on the’176 and ’097
`
`Patents; and $0.22 per net new Alexa Shopping purchaser as an ongoing royalty on the ’703 Patent.
`
`Using the reasonable royalty rate awarded at trial is consistent with prior decisions of this Court.
`
`PureWick Corp. v. Sage Prods., LLC, 2023 WL 2734418, at *16-17 (D. Del. Mar. 31, 2023)
`
`(Noreika, J.), appeal dismissed, 2023 WL 4230367 (Fed. Cir. June 28, 2023); ArcherDX, LLC v.
`
`Qiagen Scis., LLC, 2022 WL 4597877, at *15-16 (D. Del. Sept. 30, 2022) (Noreika, J.). VB Assets
`
`respectfully requests that the Court do the same in this case.
`
`B.
`
`VB Assets Requests Pre-Judgment Interest
`
`VB Assets also requests that the Court award pre-judgment interest at the prime rate,
`
`compounded quarterly.
`
`An award of pre-judgment interest is “the rule, not the exception.” Energy Transp. Grp.,
`
`Inc. v. William Demant Holding A/S, 697 F.3d 1342, 1358 (Fed. Cir. 2012). Pre-judgment interest
`
`is awarded to restore a plaintiff to the position it would have been in had there been no wrongdoing.
`
`See GM Corp. v. Devex Corp., 461 U.S. 648, 655-56 (1983). The Court has discretion over the
`
`appropriate interest rate to apply. See, e.g., Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59,
`
`63 (3d Cir. 1986); Uniroyal, Inc. v. Rudkin-Wiley Corp., 939 F.2d 1540, 1545 (Fed. Cir. 1991).
`
`The District of Delaware’s common practice is to use the prime rate, compounded quarterly. See,
`
`e.g., PureWick, 2023 WL 2734418, at *18 (“The prime rate is by far the most common practice in
`
`3
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 8 of 25 PageID #: 12250
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`the District of Delaware.”); see also Amgen Inc. v. Hospira, Inc., 336 F. Supp. 3d 333, 364 (D.
`
`Del. 2018).
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`VB Assets’s damages expert, Brett Reed, has calculated pre-judgment interest on the jury
`
`award by applying the prime rate compounded quarterly, which results in pre-judgment interest of
`
`$7,784,517. Evans-Aziz Decl. Ex. 1, Reed Decl. ¶ 4.2
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`C.
`
`VB Assets Is Entitled to Post-Judgment Interest
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`Post-judgment interest is mandatory for damages awarded in civil cases. 28 U.S.C. §
`
`1961(a). The appropriate rate is “equal to the weekly average 1-year constant maturity Treasury
`
`yield . . . for the calendar week preceding the date of the judgment.” Id. Post-judgment interest is
`
`computed daily, compounded annually, and based on the total monetary award. Id.; see also Eaves
`
`v. Cty. of Cape May, 239 F.3d 527, 534 (3d Cir. 2001). The weekly average one-year constant
`
`maturity Treasury yield for the five-day week (October 30 – November 3, 2023) preceding entry
`
`of judgment on November 8, 2023, was 5.38%. See Reed Decl. ¶ 6. Thus, the appropriate daily
`
`post-judgment interest on the jury’s damages award is $6,865 per day, starting from the date
`
`judgment on the jury verdict was entered (November 8, 2023). Id. To the extent that the Court
`
`awards pre-judgment interest or enhanced damages under 35 U.S.C. § 284, post-judgment interest
`
`should also accrue on those amounts once the amended judgment is entered. See Travelers Cas.
`
`& Sur. Co. v. Ins. Co. of N. Am., 609 F.3d 143, 175 (3d Cir. 2010).
`
`D.
`
`VB Assets Requests Enhanced Damages
`
`Enhanced damages are appropriate in this case to give meaning to the jury’s willfulness
`
`finding and to compensate VB Assets for the unnecessary effort it was forced to exert to vindicate
`
`its rights. The factors outlined by the Federal Circuit in Read Corp. v. Portec, Inc., 970 F.2d 816
`
`2 “Evans-Aziz Decl. Ex.” refers to the exhibits attached to the Declaration of Mikaela E. Evans-
`Aziz filed herewith in support of VB Assets’s post-trial motions.
`
`4
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 9 of 25 PageID #: 12251
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`(Fed. Cir. 1992) strongly support enhancement. The case was not close: the jury took less than
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`two hours to render a verdict in favor of VB Assets on every issue. Amazon’s defenses at trial
`
`were based on false premises unsupported by the evidence. Indeed, Amazon’s central trial
`
`theme—that Amazon and VB Assets were on “two paths”—was flatly contradicted by Amazon’s
`
`own documents and ultimately abandoned by its own experts. Amazon’s willful infringement
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`continued for nearly a decade, yet Amazon offered evidence neither that it held a good faith belief
`
`that its conduct was lawful nor that it has ever attempted to avoid infringing. Amazon’s size and
`
`financial condition mean that enhanced damages will be a drop in the ocean of Amazon’s profits.
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`And perhaps most importantly of all, Amazon massively over-litigated this case prior to trial and
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`then presented a narrow defense that omitted critical witnesses and evidence at trial, wasting both
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`party and judicial resources.
`
`Though VB Assets could ask for as much as a 200% enhancement, it asks only for a 50%
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`enhancement (from $46.7 million to $70.05 million). This modest enhancement is reasonable and
`
`necessary to give the jury’s award meaning and to redress the excessive burden that VB Assets
`
`faced in litigating the case to its overwhelmingly successful conclusion.
`
`1.
`
`Legal Standards for Enhancing Damages
`
`Whether to award enhanced damages—and in what amount—is within the Court’s
`
`discretion. Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 93, 103 (2016). The Court may
`
`“increase the damages up to three times the amount found or assessed.” 35 U.S.C. § 284. The
`
`Federal Circuit has indicated that after a “finding of willful infringement, a trial court should
`
`provide reasons for not increasing a damages award.” Tate Access Floors, Inc. v. Maxcess Techs.,
`
`Inc., 222 F.3d 958, 972 (Fed. Cir. 2000). “The paramount determination in deciding to grant
`
`enhancement and the amount thereof is the egregiousness of the defendant’s conduct based on all
`
`the facts and circumstances.” Read, 970 F.2d at 826.
`
`5
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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 10 of 25 PageID #: 12252
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`Enhancement determinations are case-specific and guided by the Read factors: (1) whether
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`the infringer “deliberately copied the ideas or design of another”; (2) whether the infringer, “when
`
`he knew of the other’s patent protection, investigated the scope of the patent and formed a good-
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`faith belief that it was invalid or [] not infringed”; (3) the infringer’s “behavior as a party to the
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`litigation”; (4) “defendant’s size and financial condition”; (5) “closeness of the case”; (6) “duration
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`of defendant’s misconduct”; (7) “remedial action by the defendant”; (8) “defendant’s motivation
`
`for harm”; and (9) “whether defendant attempted to conceal its misconduct.” SRI Int’l, Inc. v.
`
`Cisco Sys., 254 F. Supp. 3d 680, 721 (D. Del. 2017) (“SRI I”), aff’d in relevant part, reinstated in
`
`part, 14 F.4th 1323, 1330 (Fed. Cir. 2021) (citing Read, 970 F.2d at 826-27).
`
`2.
`
`Amazon’s Defenses at Trial
`
`Amazon’s failure to put forth any good-faith defense of non-infringement is relevant to
`
`multiple Read factors. From its opening statement onward, Amazon sought to distinguish between
`
`Amazon’s Alexa technology and the patented technology by asserting that the “case is really about
`
`two different paths” taken by the companies. 11-2-23 Trial Tr. 120:4-5 (Amazon Opening).
`
`Amazon repeatedly argued that it did not infringe because it took the path of machine learning and
`
`deep neural networks, while VoiceBox took the path of rules. Id. 120:5-20 (“because Amazon
`
`chose instead to use machine learning . . . Amazon does not infringe these patents”). But
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`Amazon’s “two different paths” story was flawed and wasted the Court’s time in two major ways:
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`(1) it was contradicted by the evidence and by the testimony of Amazon’s witnesses; and (2) it
`
`was entirely irrelevant to the question of whether Amazon infringed.
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`First, Amazon’s story presented a false dichotomy; rules and statistics-based machine
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`learning are not mutually exclusive processes. Indeed, the evidence and testimony at trial revealed
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`indisputably that Alexa’s NLU uses both. The Amazon “Natural Language Understanding Deep
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`Dive” training document relied on by both sides confirmed that Alexa’s NLU had three paths, one
`
`6
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 11 of 25 PageID #: 12253
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`clearly labeled as a rules-based path and one labeled as a “model” or machine learning path. PTX-
`
`226 at 11. Another key Amazon technical document illustrated that the vast majority of the Alexa
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`NLU was rule-based, not based on machine learning. DTX-389 at 21. These Amazon documents
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`are reproduced below:
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`Faced with Amazon’s own technical documents, Amazon’s star fact witness, Dr. Nikko
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`Strom, admitted that Alexa uses at least hundreds of rules. See 11-6-23 Trial Tr. 587:8-17 (Strom
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`Cross); see also id. 569:15-24 (Strom Direct). Amazon’s technical expert, Dr. Johnson, also
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`acknowledged that Alexa used rules. See 11-7-23 Trial Tr. 761:14-17 (Johnson Cross). This fact
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`was further established through the testimony of VB Assets’s experts Dr. Polish and Mr. Peck.
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`11-3-23 Trial Tr. 316:10-13, 327:22-328:1 (Polish Direct); 440:13-15 (Peck Direct).
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`Amazon’s attempt to confuse the jury on this basic fact is best illustrated by its misleading
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`presentation of PTX-226, the “Natural Language Understanding Deep Dive” document. This
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`document was authored by Kelly Vanee, an expert on the Alexa NLU. But instead of bringing
`
`Mr. Vanee to trial, Amazon brought Dr. Strom, who testified that his expertise was in ASR
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`technology rather than the NLU. See 11-6-23 Trial Tr. 577:15-21 (Strom Cross). Amazon
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`nevertheless elicited testimony from Dr. Strom about the meaning of this presentation. Dr. Strom
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`stated, “What’s important here is this is a slide from our NLU experts, and in red here it says the
`
`7
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 12 of 25 PageID #: 12254
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`NLU models are currently not aware of dialogue context.” Id. 563:21-564:4 (Strom Direct). But
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`Dr. Strom and Amazon completely ignored the speaker notes from the very same slide declaring
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`that “Rules can do it”:
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`Second, the “two different paths” story was irrelevant to whether Amazon infringed.
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`Amazon’s expert admitted that infringement of the claims at issue did not depend on whether a
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`system used rules or some other method. 11-7-23 Trial Tr. 763:6-25 (Johnson Cross) (“I would
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`note [] that none of the infringement allegations that I have looked at have mentioned anything
`
`about rules, so I don’t know that this is relevant to Alexa infringement. But it’s true that this shows
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`some rules.”). Amazon nevertheless focused myopically on the small portion of its NLU that used
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`a specific method—machine learning—to process utterances and ignored the rest. For example,
`
`during Amazon’s cross-examination of VB Assets’s technical expert Dr. Polish, Amazon’s counsel
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`asked Dr. Polish about Alexa’s NLU and how it processes words but directed him to only address
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`the deep neural networks within the NLU. 11-3-23 Trial Tr. 381:14-382:10 (Polish Cross).
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`Amazon’s misdirection underscores the lack of any good-faith defense of non-infringement on the
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`Alexa NLU as a whole.
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`The irrelevance of the “two different paths” story is made all the more clear by Amazon’s
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`repeated statements to the jury that VoiceBox had no products that embodied or practiced the
`
`8
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`

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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 13 of 25 PageID #: 12255
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`asserted patents. See, e.g., Trial Tr. 131:3-7 (Amazon Opening). Prior to trial, Amazon filed a
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`motion in limine to argue that any copying by Amazon of any VoiceBox products is “legally
`
`irrelevant unless the [product] is shown to be an embodiment of the claims.” See D.I. 249-14 at 6.
`
`Yet at trial, Amazon continued to push the “two paths” narrative comparing Amazon’s products
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`against VoiceBox’s products to demonstrate non-infringement. See e.g., Trial Tr. 131:3-7, 132:23-
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`133:6 (Amazon Opening).
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`3.
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`Read Factor 2: Amazon Offered No Evidence of Any Good Faith
`Belief of Non-Infringement or Invalidity
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`The jury found that Amazon willfully infringed VB Assets’s patents. The trial record is
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`replete with evidence supporting that conclusion. In October 2011, VoiceBox informed Amazon
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`and its executive team that the company had 12 awarded patents for contextual and conversational
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`speech technologies and 14 pending patent applications. See 11-2-23 Trial Tr. 156:4-162:14
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`(Kennewick Direct); PTX-65 at 10. The presentation VoiceBox showed Amazon at the October
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`2011 meeting even included an image of the cover page of the ’176 Patent, as shown below:
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`Figure 4 (PTX-65 at 11): VoiceBox’s October 2011 Presentation to Amazon
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`Amazon acquired additional knowledge of the VoiceBox patents in 2015, when the ’681 Patent
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`and other related patents were cited during prosecution of Amazon’s own patents. See 11-3-23
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`Trial Tr. 467:1-7 (Hayden Video). Further, Amazon became aware of the ’197 Patent and the ’703
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`Patent when approached concerning a potential acquisition prior to this litigation being filed. See
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`9
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`11-7-23 Trial Tr. 802:11-803:1 (Ugone Direct); DTX-96. As explained by Amazon’s expert Dr.
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`Ugone, “Amazon…would have…their engineers in the legal department kind of look at these
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`patents and make a determination if it was something that was worthy of buying.” 11-7-23 Trial
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`Tr. 798:23-799:5 (Ugone Direct). In sum, there is extensive evidence that Amazon was aware of
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`the patents (and what they covered) for many years before this lawsuit.
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`Nevertheless, Amazon appears to have studiously avoided providing any witness who
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`could address whether and to what extent Amazon conducted an investigation into infringement.
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`The witnesses that Amazon did bring to trial indicated that they had not even seen the patents—
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`and they were not sure who had. See 11-6-23 Trial Tr. 615:9-19 (Thomas Direct); id. 622:7-23
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`(Thomas Cross). There is also no testimony in the record that the Amazon employees at the
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`meetings with VoiceBox did any kind of investigation on the patents (despite Amazon’s diligence
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`request to VoiceBox for them). See id. 582:18-25 (Strom Cross); 11-2-23 Trial Tr. 176:20-177:5
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`(Kennewick Direct). Further, Amazon’s principal witness, Dr. Strom, maintained that he did not
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`attend the meetings with VoiceBox, nor did he review the VoiceBox patents at any time. See id.
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`572:22-573:3, 580:16-24, 583:6-12 (Strom Cross). Nor did Amazon present any evidence that it
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`investigated infringement via former VoiceBox engineers that it hired, including Dr. DiCristo, who
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`was deposed in this case. None of the “engineers in the legal department” testified. 11-6-2023
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`Trial Tr. 798:23-799:1 (Ugone Direct); 11-8-2023 Trial Tr. 983:21-984:1 (Amazon Closing).
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`Amazon’s failures to offer any evidence of investigation weigh in favor of enhanced
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`damages. EagleView Techs., Inc. v. Xactware Sols., Inc. is instructive here. 522 F. Supp. 3d 40,
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`51 (D.N.J. 2021). As here, defendants there “offer[ed] no evidence showing that they actually
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`investigated whether they were infringing EagleView’s patents or even instructed their employees
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`to avoid infringing EagleView’s patents.” Id. Because “the record [was] devoid of any evidence
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`10
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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 15 of 25 PageID #: 12257
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`that Defendants had someone investigate [Plaintiff’s] patents” this factor supported enhanced
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`damages. Id. at 52.
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`Moreover, Amazon dropped non-infringement theories at trial despite repeatedly pressing
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`them earlier in the case. For instance, Amazon argued prior to trial that Alexa does not show
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`advertisements. D.I. 186 (MSJ Opening Br.) at 34, n.15. But at trial, when addressing the patent
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`claim elements that required an advertisement, Amazon’s expert Dr. Johnson did not dispute that
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`Alexa shows advertisements. See 11-6-23 Trial Tr. 695:7-19 (Johnson Direct).
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`4.
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`Read Factor 3: Amazon’s Behavior as a Party to the Litigation
`Supports Enhancement
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`Amazon forced VB Assets to expend considerable resources at every turn to combat
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`Amazon’s litigation machine. On the one hand, Amazon over-litigated the case by saddling
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`VoiceBox and the Court with voluminous motions and reports and avoiding narrowing the case in
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`helpful ways. On the other hand, as discussed above, Amazon under-litigated the case by failing
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`to bring the relevant witnesses to trial and putting on a narrowly-scoped non-infringement case
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`that was inconsistent with its own documents and witness testimony.
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`a.
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`Prior to Trial, Amazon Hid the Ball by Over-Litigating its
`Defenses
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`Amazon’s preferred strategy in this case was to overwhelm VB Assets (and the Court) with
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`sheer volume of argument. For example, Amazon submitted a 1500-page opening expert report
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`from Dr. Johnson on infringement and validity. The court accurately described this as “absolutely
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`mind-boggling and unnecessary.” D.I. 248 (SJ Hr’g Tr.) at 14:17-18. The report included 16
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`separate grounds, 55 theories, and 92 prior art references (including source code, articles, and
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`videos but not including declarations and testimony). Dr. Johnson added to this with a 500-page
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`reply report. By contrast, VB Assets’s opening and reply reports totaled just 342 pages
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`combined—substantially less than 1/4 of what Amazon submitted.
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`11
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`Case 1:19-cv-01410-MN Document 308 Filed 12/13/23 Page 16 of 25 PageID #: 12258
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`Amazon relied on so many sources of prior art that it took 256 pages of text just to describe
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`them. See D.I.s 188-1, 189-2 (Ex. 6, Johnson Report) at pp. 91-347. This unnecessary assertion
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`of potential prior art sources required VB Assets to then submit extensive rebuttal expert testimony
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`from Dr. Polish—incurring a significant amount of time and expense in the process. Moreover,
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`Amazon artificially labeled MIT Galaxy as a singular “system” described by 15 different articles,
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`videos, and source code, along with declarations and testimony, which prevented VB Assets from
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`having any insight into which specific references Amazon intended to rely on at trial, causing VB
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`Assets to prepare for 15 separate articles, videos, and source code utilizing or describing various
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`aspects of the MIT Galaxy framework (spanning 64 pages of Johnson’s Opening Report). But
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`Amazon only relied on four of these references at trial. See DDX-4 at 144-188; D.I.s 188-1, 189-
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`2 (Ex. 6, Johnson Report) ¶¶ 91-155. Ultimately at trial, Amazon’s expert Dr. Johnson relied on
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`just six total prior art references: MIT Galaxy (described by four references), United (described by
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`one reference), and the Partovi/Tellme patent. See DDX-4.
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`While it is appropriate for a party to pare down its case to what it believes are its strongest
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`arguments at