Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 1 of 25 PageID #: 12300
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`VB ASSETS, LLC,
`
`Plaintiff,
`
`v.
`
`
`
`
`
`
`
`C.A. No. 19-01410-MN
`
`AMAZON.COM SERVICES LLC,
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`Defendant.
`
`
`
`
`
`
`
`
`
`PLAINTIFF VB ASSETS, LLC’S ANSWERING BRIEF IN OPPOSITION TO
`DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW
`
`
`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
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: January 2, 2024
`
`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
`
`
`
`

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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 2 of 25 PageID #: 12301
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`
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`TABLE OF CONTENTS
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`I.
`
`II.
`
`LEGAL STANDARDS ...................................................................................................... 1
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`SUBSTANTIAL EVIDENCE SUPPORTED THE JURY’S INFRINGEMENT
`VERDICT ........................................................................................................................... 2
`
`A.
`
`Substantial Evidence Supports Infringement of the ’681 Patent ............................ 4
`
`1.
`
`2.
`
`“generate a response to the utterance, wherein the conversational
`speech engine grammatically or syntactically adapted the response
`based on the intended meaning established within the identified
`context” ....................................................................................................... 4
`
`“identify a context associated with the utterance, wherein a
`conversational speech engine identifies the context associated with
`the utterance from the short-term shared knowledge and the long-
`term shared knowledge” ............................................................................. 5
`
`3.
`
`“receive an utterance” and steps performed with “the utterance” ........... 7
`
`Substantial Evidence Supports Infringement of the ’176 Patent ............................ 8
`
`Substantial Evidence Supports Infringement of the ’097 Patent ............................ 9
`
`Substantial Evidence Supports Infringement of the ’703 Patent .......................... 10
`
`B.
`
`C.
`
`D.
`
`III.
`
`SUBSTANTIAL EVIDENCE SUPPORTS THAT CLAIM 23 OF THE ’097
`PATENT HAS SUFFICIENT WRITTEN DESCRIPTION............................................. 11
`
`IV.
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`THE ASSERTED CLAIMS ARE ELIGIBLE UNDER 35 U.S.C. § 101 ........................ 13
`
`A.
`
`B.
`
`Alice Step 1: Claim 40 of the ’176 Patent Is Not Directed to an Abstract
`Idea, and VB Assets Does Not Reargue Step 1 on the ’703 or ’097 Patents ........ 13
`
`Alice Step 2: The Jury Correctly Determined that the Asserted Claims of
`the ’703, ’097, and ’176 Patents Are Eligible Under § 101 .................................. 14
`
`1.
`
`2.
`
`3.
`
`Claim 25 of the ’703 Patent ...................................................................... 14
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`Claim 40 of the ’176 Patent ...................................................................... 15
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`Claim 23 of the ’097 Patent ...................................................................... 16
`
`C.
`
`The Court Correctly Granted Judgment as a Matter of Law for VB Assets
`on § 101 Eligibility of Claim 13 of the ’681 Patent .............................................. 17
`
`V.
`
`THE JURY CORRECTLY FOUND THAT AMAZON WILLFULLY
`INFRINGED THE ASSERTED PATENTS .................................................................... 18
`
`VI.
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`CONCLUSION ................................................................................................................. 20
`
`
`
`
`
`i
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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 3 of 25 PageID #: 12302
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`TABLE OF AUTHORITIES
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`CASES
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`
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`PAGE(S)
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`Aqua Connect, Inc. v. TeamViewer US, Inc.,
`2023 WL 6387791 (D. Del. Sept. 29, 2023) ..............................................................1, 3, 10
`
`Arctic Cat Inc. v. Bombardier Rec. Prods. Inc.,
`876 F.3d 1350 (Fed. Cir. 2017)..........................................................................................19
`
`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018)..........................................................................................18
`
`CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc.,
`357 F.3d 375 (3d Cir. 2004).................................................................................................1
`
`Centricut, LLC v. Esab Group, Inc.,
`390 F.3d 1361, 1370 (Fed. Cir. 2004)..............................................................................2, 3
`
`Energy Transp. Grp., Inc. v. William Demant Holding A/S,
`697 F.3d 1342 (Fed. Cir. 2012)............................................................................................3
`
`Fireman’s Fund Ins. Co. v. Videfreeze Corp.,
`540 F.2d 1171 (3d Cir. 1976).........................................................................................2, 12
`
`Gov’t of the Virgin Islands v. Archibald,
`987 F.2d 180 (3d Cir. 1993).................................................................................................5
`
`Hewlett–Packard Co. v. Bausch & Lomb, Inc.,
`909 F.2d 1464 (Fed. Cir. 1990)..........................................................................................11
`
`Kim v. ConAgra Foods, Inc.,
`465 F.3d 1312 (Fed. Cir. 2006)............................................................................................5
`
`Leader Techs., Inc. v. Facebook, Inc.,
`770 F. Supp. 2d 686 (D. Del. 2011), aff’d, 678 F.3d 1300 (Fed. Cir. 2012) .....................14
`
`Lightning Lube v. Witco Corp.,
`4 F.3d 1153 (3d Cir. 1993)...................................................................................................1
`
`Liquid Dynamics Corp. v. Vaughan Co.,
`449 F.3d 1209 (Fed. Cir. 2006)........................................................................................1, 3
`
`Lucent Techs., Inc. v. Gateway, Inc.,
`543 F.3d 710 (Fed. Cir. 2008)..........................................................................................3, 4
`
`Martek Biosciences Corp. v. Nutrinova, Inc.,
`579 F.3d 1363 (Fed. Cir. 2009)..................................................................................1, 3, 10
`
`ii
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`

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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 4 of 25 PageID #: 12303
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`
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`McRO v. Bandai Namco Games Am. Inc.,
`837 F.3d 1299 (Fed. Cir. 2016)..........................................................................................14
`
`MHL Custom, Inc. v. Waydoo USA, Inc.,
`2023 WL 5748755 (D. Del. Sept. 6, 2023) ..........................................................................3
`
`Mihalchak v. Am. Dredging Co.,
`266 F.2d 875 (3d Cir. 1959).................................................................................................2
`
`NexStep, Inc. v. Comcast Cable Comms., LLC,
`2022 WL 1503922 (D. Del. May 12, 2022) .........................................................................2
`
`PIN/NIP, Inc. v. Platte Chem. Co.,
`304 F.3d 1235 (Fed. Cir. 2002)..........................................................................................13
`
`PureWick Corp. v. Sage Prods., LLC,
`2023 WL 2734418 (D. Del. Mar. 31, 2023) ................................................................12, 14
`
`Shopify Inc. v. Express Mobile, Inc.,
`2021 WL 4288113 (D. Del. Sept. 21, 2021) ......................................................................20
`
`Smith v. Garlock Equipment Co.,
`658 F. App’x 1017 (Fed. Cir. 2016) ....................................................................................5
`
`Sunoco Partners Mktg. & Terminals L.P. v. Powder Springs Logistics, LLC,
`624 F. Supp. 3d 473 (D. Del. 2022) .........................................................................3, 19, 20
`
`Syngenta Seeds, Inc. v. Monsanto Co.,
`409 F. Supp. 2d 536 (D. Del. 2005) ...................................................................................12
`
`STATUTES
`
`35 U.S.C. § 101 ..................................................................................................................13, 14, 17
`
`
`35 U.S.C. § 282 ..............................................................................................................................11
`
`RULES
`
`Fed. R. Evid. 103(a)(1) ....................................................................................................................5
`
`Fed. R. Evid. 703 .......................................................................................................................3, 10
`
`iii
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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 5 of 25 PageID #: 12304
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`Amazon’s motion for judgment as a matter of law (D.I. 299, “JMOL”) provides no basis
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`for overturning any part of the jury’s verdict. Contrary to the central thesis of Amazon’s motion,
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`there is no rule requiring a plaintiff to prove infringement by pointing to specific lines of source
`
`code. A plaintiff can prove infringement through any form of competent evidence, including
`
`testing, experimentation, witness testimony, or internal documents. See Martek Biosciences Corp.
`
`v. Nutrinova, Inc., 579 F.3d 1363, 1372 (Fed. Cir. 2009) (“A patentee may prove infringement by
`
`any method of analysis that is probative of the fact of infringement.”).1 Indeed, “there is no
`
`requirement that direct evidence [of infringement] be introduced” at all; a plaintiff may prove its
`
`case by circumstantial evidence alone. Liquid Dynamics Corp. v. Vaughan Co., 449 F.3d 1209,
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`1219 (Fed. Cir. 2006). Here, VB Assets presented a wealth of evidence, both direct and
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`circumstantial,
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`including:
`
`the patents
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`themselves, Dr. Polish’s
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`testimony and video
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`demonstrations, source code identified by Mr. Peck, testimony of other witnesses, and Amazon
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`technical documents. This evidence was more than sufficient to support the jury’s verdict on
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`infringement. The same conclusion holds with respect to validity and willfulness.
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`I.
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`LEGAL STANDARDS
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`“Entry of judgment as a matter of law is a remedy to be invoked only ‘sparingly.’” Aqua
`
`Connect, Inc. v. TeamViewer US, Inc., No. 18-1572-MN, 2023 WL 6387791, at *2 (D. Del. Sept.
`
`29, 2023) (quoting CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc., 357 F.3d 375, 383
`
`(3d Cir. 2004)). “In determining whether substantial evidence supports the jury verdict, the Court
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`may not make credibility determinations, weigh the evidence or substitute its own conclusions for
`
`that of the jury where the record evidence supports multiple inferences.” Aqua Connect, 2023 WL
`
`6387791, at *2 (citing Lightning Lube v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
`
`
`1 Unless noted, all emphasis herein is added, and all internal citations and quotations are omitted.
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`1
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`

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`“Substantial evidence is such relevant evidence from the record taken as a whole as might be
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`accepted by a reasonable mind as adequate to support the finding under review.” NexStep, Inc. v.
`
`Comcast Cable Comms., LLC, 2022 WL 1503922 at *1 (D. Del. May 12, 2022). “[T]he Court
`
`must give the non-moving party, as the verdict winner, the benefit of all logical inferences that
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`could be drawn from the evidence presented, resolve all conflicts in the evidence in [its] favor and,
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`in general, view the record in the light most favorable to [it].” Id.
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`Amazon bore the burden of proof with respect to validity and therefore faces an even higher
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`hurdle that “requires the judge to test the body of evidence not for its insufficiency to support a
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`finding, but rather for its overwhelming effect.” Fireman’s Fund Ins. Co. v. Videfreeze Corp., 540
`
`F.2d 1171, 1177 (3d Cir. 1976) (quoting Mihalchak v. Am. Dredging Co., 266 F.2d 875, 877 (3d
`
`Cir. 1959)). The court “‘must be able to say not only that there is sufficient evidence to support
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`the finding … but additionally that there is insufficient evidence for permitting any different
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`finding.’” Id. (quoting Mihalchak, 266 F.2d at 877).
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`II.
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`SUBSTANTIAL EVIDENCE SUPPORTED THE JURY’S INFRINGEMENT
`VERDICT
`
`Amazon’s motion creates out of whole cloth a requirement that a technical expert “explain
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`how the evidence about the accused technology demonstrates infringement.” JMOL 2 (emphasis
`
`in original). Amazon marshals this invented rule to argue that the jury’s verdict should be thrown
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`out unless Dr. Polish has mapped the patent language to specific lines of code in the infringing
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`product. This position finds no support in the law.
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`There are no general rules as to what type of expert testimony is required to prove
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`infringement. The law is clear that “[a] patentee may prove infringement by any method of
`
`analysis that is probative of the fact of infringement.” Martek Biosciences Corp., 579 F.3d at 1372.
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`Direct infringement may be proven “by either direct or circumstantial evidence.” Liquid Dynamics
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`2
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`

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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 7 of 25 PageID #: 12306
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`
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`Corp., 449 F.3d at 1219. This can include an expert’s personal observations of the infringing
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`device. See MHL Custom, Inc. v. Waydoo USA, Inc., 2023 WL 5748755, at *10 (D. Del. Sept. 6,
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`2023). “[E]xpert testimony on an issue may be supported by facts that the expert has been made
`
`aware of or has personally observed — there is no requirement that an expert have documentary
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`or testimonial evidence to support every aspect of their opinion.” Aqua Connect, Inc., 2023 WL
`
`6387791, at *4 (citing Fed. R. Evid. 703).
`
`The cases cited by Amazon do not say otherwise. Energy Transp. Grp., Inc. v. William
`
`Demant Holding A/S is inapposite because it concerns the doctrine of equivalents rather than direct
`
`infringement. 697 F.3d 1342 (Fed. Cir. 2012). Sunoco Partners Mktg. & Terminals L.P. v. Powder
`
`Springs Logistics, LLC, 624 F. Supp. 3d 473, 479 (D. Del. 2022), states no general requirements
`
`for expert testimony. In that case, the court rejected expert testimony that using a constant for
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`butane vapor pressure satisfied claim limitations requiring that the system “receive” and “transmit”
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`a butane vapor pressure. Id. at 479. The issue was not a failure to explain how the product
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`infringed; it was that the expert’s testimony was not probative of the requirements of the claim.
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`Lucent Techs., Inc. v. Gateway, Inc., in fact underscores the legal error in Amazon’s argument.
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`543 F.3d 710 (Fed. Cir. 2008). In that case, the technical expert identified infringing source code
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`but could not verify whether the infringing code or alternative non-infringing code was actually
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`executed. Id. at 723-24. The court found that testimony, standing alone, insufficient for a finding
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`of infringement. Id. The expert clearly identified how the product would infringe but did not offer
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`sufficient evidence that it infringed. It is the latter question that is legally relevant, and plaintiffs
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`may prove the fact of infringement through any competent evidence.
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`As shown below, substantial evidence supports the jury’s infringement verdict. It was not
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`disputed that Alexa operates by computer executed instructions. See, e.g., Trial Tr. 359:10-360:4,
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`3
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`

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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 8 of 25 PageID #: 12307
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`363:2-14 (Polish Direct); 569:12-24 (Strom Direct). Dr. Polish explained what functions the Alexa
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`software carried out through source code analysis from Mr. Peck, technical documents, and his
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`own observations. Amazon did not dispute that the technical documents Dr. Polish examined
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`accurately described Alexa and did not dispute that Dr. Polish’s video demonstrations accurately
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`reflected Alexa’s behavior. The jury credited all the evidence presented by VB Assets and found
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`that Amazon infringed each asserted claim. Amazon’s failure to produce relevant rebuttal
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`testimony from knowledgeable percipient witnesses—and its apparently intentional decision not
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`to bring witnesses familiar with Amazon’s NLU to trial—confirm that the jury got it right.
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`A.
`
`Substantial Evidence Supports Infringement of the ’681 Patent
`
`1.
`
`“generate a response to the utterance, wherein the conversational speech
`engine grammatically or syntactically adapted the response based on the
`intended meaning established within the identified context”
`
`Amazon’s own internal documents, in addition to Dr. Polish’s testimony and his use of
`
`Alexa, establish that Alexa “grammatically or syntactically adapts” its responses. See, e.g., PTX-
`
`226; Trial Tr. 296:9-20 (Polish Direct). Contrary to Amazon’s argument, Dr. Polish did not testify
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`to the “bare conclusion” that Alexa “generates a response to an utterance.” JMOL 4. He testified
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`at length about how Amazon’s internal NLU training document shows several examples of Alexa
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`grammatically and syntactically adapting responses based on the intended meaning of each
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`utterance within the identified context of setting an alarm notification. PTX-226 at 32; Trial Tr.
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`351:1-14 (Polish Direct); 407:19-408:19 (Polish Cross). Dr. Polish also recounted his personal
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`observations of Alexa producing adapted responses in variations of the alarm conversation shown
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`in his video demonstrations. Trial Tr. 340:1-17 (Polish Direct); PDX3-13, 18 (showing video
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`dialogue).
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`Amazon’s contention that Dr. Polish’s testimony is “conclusory” misapplies Federal
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`Circuit Law. Kim v. ConAgra Foods, Inc., 465 F.3d 1312 (Fed. Cir. 2006), is inapposite. The Kim
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`4
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`court found the plaintiff’s expert’s testimony conclusory because she “did not support [her]
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`determination with any examinations or tests of the actual accused products.” Id. at 1319-20. In
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`contrast, Dr. Polish extensively tested Alexa’s operation and examined it through analysis of
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`internal Amazon technical documents and source code identified by Mr. Peck. Smith v. Garlock
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`Equipment Co., 658 F. App’x 1017 (Fed. Cir. 2016) is likewise inapposite. In that case, the court
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`found an expert’s testimony as to the fact of infringement conclusory because the supporting
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`evidence did not match the requirements of the claim. In Smith, the claim required that a particular
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`component rotate, but the expert testified instead that the limitation was met because a larger
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`assembly rotated. Id. at 1025. There is no mismatch in this case. Dr. Polish explained what this
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`claim element required: “[O]ne of ordinary skill would understand that ‘grammatically or
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`syntactically adapted’ simply means that it’s not just a canned response, it’s not just ‘okay,’ or
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`some canned response, it’s something which is customized to the situation.”2 Trial Tr. 407:8-18
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`(Polish Cross). This is exactly how the patent describes this functionality. See, e.g., JTX-001
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`5:61-66; 17:21-34. Dr. Polish’s testimony thus reflects that Alexa adapted responses in the precise
`
`way required by the patent claim and is sufficient to support the jury’s finding of infringement.
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`2.
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`“identify a context associated with the utterance, wherein a conversational
`speech engine identifies the context associated with the utterance from the
`short-term shared knowledge and the long-term shared knowledge”
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`Dr. Polish relied on Amazon documents to explain how Alexa uses both short-term and
`
`long-term shared knowledge to identify a context associated with an utterance and demonstrated
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`that infringement with videos showing conversations with Alexa. An Amazon wiki document
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`states that the Alexa NLU performs “the act of taking recognized text and turning it into an intent”
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`2 Amazon complains in an improper footnote (JMOL at 4-5 n.8) that this testimony during Dr.
`Polish’s cross-examination was somehow “undisclosed,” but Amazon never made such an
`objection at trial and cannot do so now. Gov’t of the Virgin Islands v. Archibald, 987 F.2d 180,
`184 (3d Cir. 1993); Fed. R. Evid. 103(a)(1) (requiring a party to timely object or move to strike).
`
`5
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`

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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 10 of 25 PageID #: 12309
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`and defines “intent [as] a language understanding concept referring to the goal of the speech; what
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`the speaker was trying to communicate.” PTX-78 at 2; Trial Tr. 317:24-319:23 (Polish Direct).
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`Another Amazon technical document (PTX-472) shows that the NLU establishes a context when
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`it “emits [or outputs] the intent results in the Blueshift Intent Format (BIF).” PTX-472 at 1; see
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`also Trial Tr. 334:6-335:16 (Polish Direct).
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`Dr. Polish’s testimony was based in part on Amazon’s internal NLU training document
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`(PTX-226). See, e.g., Trial Tr. 322:13-332:14 (Polish Direct). The presentation explains how
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`Alexa identifies a context and establishes the intended meaning through a two-step approach.
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`First, a recognizer component generates an intent and slots for the current context; second, a
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`context interpreter component merges the current and previous contexts that were identified based
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`on prior utterances.
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`NLU Deep Dive Presentation (PTX-226) Slides 34 & 35: Step 1 and Step 2
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`The document provides an example conversation about setting an alarm to demonstrate this
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`process. PTX-226 at 36-40. Slide 36 shows that for the utterance “six,” Alexa uses short-term
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`knowledge about the current conversation (shown in the “PreviousIntent” and “Filled Slots” fields)
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`to establish a context and meaning for the otherwise ambiguous utterance:
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`6
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`

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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 11 of 25 PageID #: 12310
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`NLU Deep Dive Presentation (PTX-226) Slide 36: Merge Example for “Six”
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`Dr. Polish’s explanation of PTX-226 was corroborated by other evidence. Mr. Peck confirmed
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`that the Alexa source code includes a contextual intent carrier that performs the functions Dr.
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`Polish and PTX-226 described. Trial Tr. 442:11-443:20 (Peck Direct). Dr. Polish also showed
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`how short-term knowledge was used to identify context for utterances in videos of his own testing
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`of Alexa. Trial Tr. 340:1-17 (Polish Direct); see, e.g., PDX3-13, 18 (showing video dialogue).
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`Dr. Polish also explained that Amazon’s speaker ID feature provided long-term shared
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`knowledge for Alexa for every conversation and utterance based on his own observations and
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`usage of Alexa and on Amazon internal documents. See, e.g., Trial Tr. 333:1-334:24 (Polish
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`Direct); 420:20-421:22 (Polish Redirect); 391:18-392:22 (Polish Cross); 343:2-11 (Polish Direct).
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`He specifically explained how Alexa used long-term shared knowledge from the speaker ID
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`feature to know that he had previously set an alarm during his second alarm conversation. See
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`Trial. Tr. 343:16-344:16 (Polish Direct). Again, Dr. Polish’s testimony was corroborated by
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`Amazon documents. PTX-472 showed that “user-specific info” is an input “consume[d]” by the
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`NLU in order to “emit[] the intent results in the Blueshift Intent Format (BIF),” which as explained
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`above is the collection of intents and slots used to identify the context. See PTX-472.
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`3.
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`“receive an utterance” and steps performed with “the utterance”
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`Contrary to Amazon’s argument, there is no legal requirement that VB Assets prove each
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`element on a single utterance. Dr. Polish provided example utterances for each claim element that
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`7
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`

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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 12 of 25 PageID #: 12311
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`clearly demonstrated infringement and testified extensively about technical documents and source
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`code showing how Alexa processes utterances in general. Amazon presented no evidence that any
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`of the examples discussed by Dr. Polish was a special case processed with different mechanisms.
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`From this evidence, a jury could reasonably conclude—and apparently did conclude—that the
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`infringing mechanisms VB Assets demonstrated as to particular utterances were in fact applied to
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`all utterances processed by Alexa.
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`In any case, Dr. Polish did walk the jury through a conversation showing infringement of
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`each element of Claim 13 of the ’681 Patent using both an Amazon technical document containing
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`the example and a video demonstration of a conversation setting an alarm. Trial Tr. 423:18-427:1
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`(Polish Redirect); see also, e.g., PDX3-13, 18 (showing video dialogue). In this conversation,
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`Alexa received the utterance “six.” PTX-226 at 32, 36; Trial Tr. 424:3-7 (Polish Redirect). The
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`Alexa NLU accumulated short-term shared knowledge “about the utterance” and “about the
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`current conversation,” including knowledge based on the user’s prior utterance “Alexa set an
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`alarm.” PTX-226 at 32, 36; Trial Tr. 424:12-424:22 (Polish Redirect). Dr. Polish also pointed out
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`two examples of long-term shared knowledge accumulated from a prior conversation (the user’s
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`speaker ID info and having previously set an alarm). Id. 425:1-8. Based on the two-step approach
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`for identifying context, discussed and shown in detail at slide 36 of PTX-226, Alexa identified the
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`context as setting an alarm for Dr. Polish. Trial Tr. 424:12-425:8, 430:2-20 (Polish Redirect).
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`Alexa then determined that “six” meant a time either 6:00 or 18:00. PTX-226 at 32, 36; Trial Tr.
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`342:4-14 (Polish Direct). Finally, Alexa generated a grammatically and syntactically adapted
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`response of “Is that six in the morning or evening?” PTX-226 at 32. This example is an
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`independently sufficient basis for the jury’s verdict.
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`B.
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`Substantial Evidence Supports Infringement of the ’176 Patent
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`VB Assets presented ample evidence to support the jury’s finding of infringement as to
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`8
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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 13 of 25 PageID #: 12312
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`Claim 40 of the ’176 Patent.3 With respect to the adaptive misrecognition engine portion of this
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`element, Dr. Polish testified about a re-ranking process, described in the Amazon NLU training
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`document, by which Alexa may re-rank the generated NBest list based on a variety of inputs,
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`including context, in order to correctly identify the user’s intent. PTX-226 at 22; Trial Tr. 358:5-
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`16 (Polish Direct). That Dr. Polish did not use the phrase “adaptive misrecognition engine” in his
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`testimony is immaterial as he expressly identified the functions described in the Amazon NLU
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`training document with this claim element. Id. Amazon may disagree with Dr. Polish’s analysis,
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`but such a dispute must be resolved in favor of VB Assets at this stage.
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`Dr. Polish further testified, again based on Amazon technical documents, that Alexa uses
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`“various kinds of input including context that would cause it to re-rank” to establish that Alexa
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`responds to predetermined events. Trial Tr. 411:7-12 (Polish Cross); see also PTX-226 at 21. An
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`example concerning resolving the phrase “Hunger Games” in the Amazon internal NLU training
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`document demonstrates this clearly. See PTX-226 at 18-20. When the user says “play hunger
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`games,” the NBest list identifies the song named “Hunger Games” as the best hypothesis of the
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`user’s intent. See Trial Tr. 328:24-329:11 (Polish Direct); see also PTX-226 at 18. However,
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`when the same request is made on an Amazon FireTV, the intents are re-ranked based on the pre-
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`determined event of identifying that the request originated from a FireTV to place the Hunger
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`Games video first. See Trial Tr. 329:23-330:7 (Polish Direct); PTX-226 at 19. Again, Dr. Polish’s
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`testimony was sufficient to support the jury’s verdict.
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`C.
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`Substantial Evidence Supports Infringement of the ’097 Patent
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`VB Assets presented more than sufficient evidence to support the jury’s verdict as to claim
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`3 Amazon’s motion concerns the limitation of “an adaptive misrecognition engine configured to
`determine that the conversational language processor incorrectly interpreted the words or phrases
`in response to detecting a predetermined event, wherein the conversational language processor
`reinterprets the words or phrases in response to the predetermined event.” JTX-003 at 17:1-6.
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`9
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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 14 of 25 PageID #: 12313
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`23 of the ’097 patent.4 Dr. Polish demonstrated that when he asked Alexa, “What color?” it
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`responded with an unsolicited definition of the color peach. Trial Tr. 362:1-6 (Polish Direct);
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`PDX-3 40, 42 (showing video dialogue). In contrast, when Dr. Polish later asked, “What color is
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`it?”, Alexa was responsive to the existence of the pronoun and identified the color of the advertised
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`iPhone case as “stone.” Id. 362:1-13. Dr. Polish’s expert evaluation of this sequence of utterances,
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`based on his review of extensive technical evidence concerning Alexa design and operation,
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`sufficiently supports a finding of infringement. See Martek, 579 F.3d at 1372; Aqua Connect, Inc.,
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`2023 WL 6387791, at *4 (citing Fed. R. Evid. 703). Amazon’s contention that Dr. Polish should
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`have pointed to source code or documentary evidence on Alexa’s handling of a “pronoun” goes to
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`the weight and credibility of his testimony and not its sufficiency to support a verdict.
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`Amazon arguments regarding “what [Alexa has] done with the pronoun” on the back end,
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`JMOL 10, are irrelevant because this claim element concerns only whether Alexa’s interpretation
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`of an utterance is responsive to and resolves a pronoun. Dr. Polish testified to exactly that: “[W]hat
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`I know and what I have shown here, is that [Alexa] is responsive to the existence of the pronoun
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`in the natural language utterance. So the pronoun exists in one utterance, doesn’t exist in another,
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`and there are different responses.” Trial Tr. 411:24-412:15 (Polish Cross). That testimony is
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`sufficient to support the jury’s finding that Amazon infringed this element.
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`D.
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`Substantial Evidence Supports Infringement of the ’703 Patent
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`VB Assets provided more than sufficient evidence to support the jury’s infringement
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`4 Amazon’s motion concerns the limitation to “interpret the natural language utterance based on
`the advertisement and, responsive to the existence of a pronoun in the natural language utterance,
`determine whether the pronoun refers to one or more of the product or service or a provider of the
`product or service.” JTX-005 at 15:1-12.
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`10
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`Case 1:19-cv-01410-MN Document 311 Filed 01/03/24 Page 15 of 25 PageID #: 12314
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`
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`finding on Claim 25 of the ’703 Patent.5 Dr. Polish pointed to Alexa’s response to the utterance
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`“I want to buy an iPhone case” as an example of infringement. Trial Tr. 368:3-369:13 (Polish
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`Direct). In response, Alexa described a specific case and prompted Dr. Polish: “You can say ‘buy
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`it now.’” Dr. Polish testified that, because of the speaker ID feature, Alexa had already identified
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`him and obtained his shipping and payment information and that Alexa’s prompt constituted
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`confirmation to use that information to purchase the iPhone case. Trial Tr. 421:2-422:14 (Polish
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`Redirect). This testimony precisely matches the requirements of the claim element and is sufficient
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`to support the jury’s finding of infringement.
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`Amazon’s motion focuses on a single question from Dr. Polish’s cross-examination:
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`“Nowhere did you show Alexa saying ‘Dr. Polish, please confirm this payment information and
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`the shipping information,’ right?” JMOL 11 (citing Trial Tr. 419:16-25 (Polish Cross)). This
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`single exchange cannot support overturning the jury’s verdict. The question is irrelevant because
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`the claim requires confirmation to use the information, not confirmation of the information itself.
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`The jury was in any case entitled to disregard this testimony and instead credit Dr. Polish’s
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`testimony on direct and redirect, described above, that established infringement of this element.
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`III.
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`SUBSTANTIAL EVIDENCE SUPPORTS THAT CLAIM 23 OF THE ’097
`PATENT HAS SUFFICIENT WRITTEN DESCRIPTION
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`Patents are presumed valid. See