Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 1 of 15 PageID #: 12929
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`VB ASSETS, LLC,
`
`Plaintiff,
`
`v.
`
`AMAZON.COM SERVICES LLC,
`
`Defendant.
`
`C.A. No. 19-cv-01410-MN
`
`REDACTED PUBLIC VERSION
`
`PLAINTIFF VB ASSETS, LLC’S REPLY BRIEF
`IN SUPPORT OF ITS POST-TRIAL MOTIONS
`
`Of counsel:
`
`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
`
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`
`James C. Yoon
`Ryan R. Smith
`650 Page Mill Road
`Palo Alto, CA 94304
`jyoon@wsgr.com
`rsmith@wsgr.com
`
`Matthew A. Macdonald
`953 East Third Street, Suite 100
`Los Angeles, CA 90013
`matthew.macdonald@wsgr.com
`
`Bradley T. Tennis
`1700 K Street NW, Fifth Floor
`Washington, DC 20006
`btennis@wsgr.com
`
`

`

`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 2 of 15 PageID #: 12930
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`TABLE OF CONTENTS
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`I.
`
`II.
`
`INTRODUCTION .............................................................................................................. 1
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`VB ASSETS SHOULD BE AWARDED PRE-JUDGMENT INTEREST ........................ 2
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`III.
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`VB ASSETS SHOULD BE AWARDED AN ONGOING ROYALTY ............................ 3
`
`A.
`
`B.
`
`VB Assets Properly Seeks an Ongoing Royalty at the Jury-Awarded Rate ........... 3
`
`Amazon Fails to Show that the Jury-Awarded Rate Is Not an Appropriate
`Ongoing Royalty for Its Continued Infringement .................................................. 5
`
`IV.
`
`VB ASSETS SHOULD BE AWARDED ENHANCED DAMAGES ............................... 7
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`Read Factor 2: Pre-Suit Knowledge and Failure to Investigate ............................. 7
`
`Read Factor 3: Amazon’s Behavior as a Party to the Litigation............................ 7
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`Read Factor 4: Amazon’s Financial Condition ...................................................... 9
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`Read Factor 5: The Jury Verdict Was Not Close ................................................... 9
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`Read Factors 6 and 7: Duration of Misconduct and No Remedial Action ............ 9
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`Read Factors 8 and 9: Motivation for Harm and Attempt to Conceal .................. 10
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`Read Factor 1: Evidence Relating to Deliberate Copying of Ideas Is
`Neutral................................................................................................................... 10
`
`V.
`
`CONCLUSION ................................................................................................................. 10
`
`i
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`

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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 3 of 15 PageID #: 12931
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`TABLE OF AUTHORITIES
`
`CASES
`
`
`
`PAGE(S)
`
`Apple, Inc. v. Samsung Elecs. Co.,
`2014 WL 6687122 (N.D. Cal. Nov. 25, 2014) ....................................................................4
`
`Cioffi v. Google, Inc.,
`2017 WL 4011143 (E.D. Tex. Sept. 12, 2017) ....................................................................4
`
`Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc.,
`246 F.3d 1336, 1361-62 (Fed. Cir. 2001) ............................................................................2
`
`Enzo Biochem, Inc. v. Applera Corp.,
`2014 WL 29126 (D. Conn. Jan. 3, 2014),
`vacated on other grounds, 780 F.3d 1149 (Fed. Cir. 2015).................................................2
`
`Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co.,
`2017 WL 3034655 (E.D. Tex. July 18, 2017) .................................................................3, 4
`
`i4i Ltd. P’ship v. Microsoft Corp.,
`598 F. 3d 831 (Fed. Cir. 2010).............................................................................................7
`
`Kaneka Corp. v. SKC Kolon PI, Inc.,
`198 F. Supp. 3d 1089, 1124 (C.D. Cal. 2016) .....................................................................2
`
`Lucent Techs., Inc. v. Newbridge Networks Corp.,
`168 F. Supp. 2d 269 (D. Del. 2001) ...............................................................................9, 10
`
`Lummus Indus., Inc. v. D.M. & E. Corp.,
`862 F.2d 267 (Fed. Cir. 1988)..........................................................................................2, 3
`
`Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings,
`370 F.3d 1354 (Fed. Cir. 2004)........................................................................................7, 9
`
`MHL Custom, Inc. v. Waydoo USA, Inc.,
`2023 WL 5805889 (D. Del. Sept. 7, 2023) ......................................................................3, 4
`
`Mondis Tech. Ltd. v. LG Elecs., Inc.,
`2023 WL 3749992 (D.N.J. June 1, 2023) ............................................................................7
`
`PureWick Corp. v. Sage Prods., LLC,
`2023 WL 2734418 (D. Del. Mar. 31, 2023) ................................................................1, 3, 4
`
`Trading Techs. Int’l, Inc. v. IBG LLC,
`2022 WL 103894 (N.D. Ill. Jan. 11, 2022) ..........................................................................3
`
`
`
`ii
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`

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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 4 of 15 PageID #: 12932
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`Voda v. Cordis Corp.,
`2006 WL 2570614 (W.D. Okla. Sept. 5, 2006),
`aff’d, 536 F.3d 1311 (Fed. Cir. 2008) ..................................................................................2
`
`XY, LLC v. Trans Ova Gens.,
`890 F.3d 1282 (Fed. Cir. 2018)............................................................................................5
`
`iii
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`

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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 5 of 15 PageID #: 12933
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`
`
`I.
`
`INTRODUCTION
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`Trials have consequences. Amazon’s kitchen-sink opposition to VB Assets’s post-trial
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`motions reflects its inability to accept those consequences. Most egregiously, Amazon uses its
`
`ongoing royalty argument as a Trojan Horse to bring in brand new evidence not introduced at trial
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`to launch unfounded attacks on the jury’s damage judgment. The data that Amazon now offers
`
`was available—it is all pre-trial data from January 2021-November 2023—and the arguments
`
`Amazon makes based on that data were ones it could have made at trial. The time to critique Mr.
`
`Reed’s methodology has long passed, and nothing in Mr. Mehta’s tardy declaration and data has
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`any bearing on whether the jury-awarded rate is appropriate to apply going forward.
`
`Amazon also recycles unsuccessful old arguments. For example, Amazon reargues its
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`Daubert challenge to Mr. Reed’s damages methodology that the Court rejected both pretrial and
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`on the morning of the testimony—but which Amazon notably did not include in its renewed
`
`JMOL. At this stage, Amazon’s argument is simply disagreement with the jury’s determinations.
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`Many of Amazon’s other arguments—e.g., rearguing willfulness—also amount to mere gripes
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`with the jury’s findings. Amazon also repurposes its JMOL arguments that VB Assets did not
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`provide Amazon explicit pre-suit notice of infringement—but cites no cases requiring notice for
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`enhancement or pre-judgment interest. Amazon’s efforts to re-litigate this case should be rejected.
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`All of these shortcomings exist despite Amazon improperly helping itself to several extra
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`pages of briefing. In violation of this Court’s standing orders, Amazon uses footnotes to cram in
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`caselaw citations and parentheticals, trial record citations, and arguments that it could not fit within
`
`the page limits. Prefs. & Procs. for Civ. Cases at 1; PureWick Corp. v. Sage Prods., LLC, 2023
`
`WL 2734418, at *9 n.14 (D. Del. Mar. 31, 2023)1 (arguments made in a footnote “are considered
`
`
`1 Unless noted, all emphasis herein is added, and all internal citations and quotations are omitted.
`
`1
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`

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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 6 of 15 PageID #: 12934
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`
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`forfeited”). Amazon’s disregard for the rules is consistent with its ongoing strategy of wasting
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`judicial and party resources—which the Court has rightly described as “excessive.” D.I. 221 at 2.
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`VB Assets requests that the Court strike these improper footnotes and arguments made therein.
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`II.
`
`VB ASSETS SHOULD BE AWARDED PRE-JUDGMENT INTEREST
`
`Amazon does not dispute the methods of VB Assets’s interest calculations or resulting
`
`amounts. Amazon’s sole argument is purported prejudice to Amazon because VoiceBox did not
`
`provide Amazon explicit pre-suit notice of infringement. But Amazon cites no case requiring a
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`plaintiff to provide pre-suit notice to recover pre-judgment interest, and the cases it does cite relied
`
`on egregious conduct or total absence of any reasonable explanation for the timing of the suit. In
`
`Crystal Semiconductor Corp. v. TriTech Microelectronics Int’l, Inc., the plaintiff engaged in “self-
`
`serving” delay by sending demand letters to 30-40 companies but not defendant, purposely waiting
`
`to sue until defendant’s sales increased. 246 F.3d, 1336, 1361-62 (Fed. Cir. 2001). The plaintiff
`
`in Kaneka Corp. v. SKC Kolon PI, Inc. “offer[ed] no compelling explanation” for waiting four
`
`years to bring suit. 198 F. Supp. 3d 1089, 1124 (C.D. Cal. 2016). Here, there is no evidence of
`
`bad faith or dilatory motive; the record shows Amazon had ongoing reminders of VoiceBox’s
`
`patents and the parties were engaged in attempts to find a commercial resolution. Trial Tr. 160:17-
`
`161:19; 174:6-12; 176:8-177:5 (Kennewick Direct). Not immediately moving to sue a
`
`significantly larger competitor that could put VoiceBox out of business while in discussions is
`
`hardly a “self-serving” delay that could warrant denying pre-judgment interest. Courts have
`
`awarded pre-judgment interest in cases with much longer gaps where the gap is reasonable. See,
`
`e.g., Voda v. Cordis Corp., 2006 WL 2570614, at *1 (W.D. Okla. Sept. 5, 2006), aff’d, 536 F.3d
`
`1311 (Fed. Cir. 2008) (eight years); Enzo Biochem, Inc. v. Applera Corp., 2014 WL 29126, at *2
`
`(D. Conn. Jan. 3, 2014), vacated on other grounds, 780 F.3d 1149 (Fed. Cir. 2015) (seven years).
`
`2
`
`

`

`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 7 of 15 PageID #: 12935
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`Delay might justify withholding pre-judgment interest only if that delay prejudices the
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`defendant. See Lummus Indus., Inc. v. D.M. & E. Corp., 862 F.2d 267, 275 (Fed. Cir. 1988).
`
`Amazon has pointed to no evidence that it would have done something different if given explicit
`
`notice of infringement sooner—and has not even made that contention. Amazon has only
`
`speculated that it could have altered Alexa. Opp’n 19-20; see MHL Custom, Inc. v. Waydoo USA,
`
`Inc., 2023 WL 5805889, at *7 (D. Del. Sept. 7, 2023) (finding no prejudice where defendant only
`
`argued it “could have” altered the product—not that it “would have”). Amazon cannot seriously
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`argue it would have redesigned Alexa when (1) it is not disputed that Amazon learned about certain
`
`patents three years before Alexa launched; and (2) there is no evidence that Amazon took any steps
`
`to design around the patents during this four-year litigation. See Trading Techs. Int’l, Inc. v. IBG
`
`LLC, 2022 WL 103894, at *2–3 (N.D. Ill. Jan. 11, 2022) (defendant’s argument “undercut by the
`
`fact that [it] never altered [the product] even after being sued”). Indeed, Amazon argues that it
`
`had “no reason [] to redesign the accused products” even after suit was filed. Opp’n 12.
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`III.
`
`VB ASSETS SHOULD BE AWARDED AN ONGOING ROYALTY
`
`Amazon should pay an ongoing royalty because there is no evidence that Amazon’s willful
`
`infringement of VB Assets patents will stop post-trial. Amazon’s argument (1) ignores that jury-
`
`awarded damages are the starting point for an ongoing royalty; (2) asserts new requirements; (3)
`
`rehashes old arguments about Mr. Reed’s damages model; and (4) relies on brand new evidence.
`
`A.
`
`VB Assets Properly Seeks an Ongoing Royalty at the Jury-Awarded Rate
`
`Amazon’s argument that VB Assets did not demonstrate a change in the parties’ post-
`
`verdict bargaining position is wholly irrelevant because VB Assets has not asked for an upward
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`departure from the jury award. “Generally, the jury’s damages award is a starting point for
`
`evaluating ongoing royalties.” E.g., PureWick, 2023 WL 2734418, at *16; see also
`
`Erfindergemeinschaft UroPep GbR v. Eli Lilly & Co., 2017 WL 3034655, at *7 (E.D. Tex. July
`
`3
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`

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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 8 of 15 PageID #: 12936
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`
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`18, 2017) (“UroPep”) (“royalty rate found by the jury” has been “uniformly held [to be] the
`
`starting point”). A trial court is not required to reevaluate the Georgia-Pacific factors, though it
`
`may consider them in its discretion. See PureWick, 2023 WL 2734418, at *16; Apple, Inc. v.
`
`Samsung Elecs. Co., 2014 WL 6687122, at *2 (N.D. Cal. Nov. 25, 2014). From there, a plaintiff
`
`“seeking a higher rate bears the burden to show that enhancement of the jury’s rate is appropriate
`
`in a given case.” Cioffi v. Google, Inc., 2017 WL 4011143, at *3 (E.D. Tex. Sept. 12, 2017).
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`Amazon’s citation to PureWick supports VB Assets’s position. The plaintiff there sought
`
`double the jury-awarded rate based on the bare contention that its post-verdict bargaining position
`
`was stronger due to the verdict. PureWick, 2023 WL 2734418, at *15-17. The Court denied the
`
`upward departure but awarded an ongoing royalty at the jury-determined rate, exactly what VB
`
`Assets requests here. Amazon’s citation to MHL Custom is also unavailing. The court there did
`
`not “den[y] the request” for ongoing royalties. Opp’n at 15; MHL Custom, 2023 WL 5805889, at
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`*7. Rather, defendant opposed the jury-awarded rate based on marketplace changes including
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`“new competitors, new products [] at lower price points, etc.” and the court found in its discretion
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`that the parties were “best positioned to negotiate a royalty.” Id. Amazon has offered no such
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`evidence. In any case, the court dismissed without prejudice, stating that plaintiff was “free to
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`file” again if negotiations failed. Id. Amazon’s position that VB Assets was required to first
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`negotiate, Opp’n 15 n.14, is pulled from thin air. VB Assets respectfully submits that, given
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`Amazon’s position that the JMOL should erase the verdict, negotiation would be futile. UroPep,
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`2017 WL 3034655, at *3 (declining to order negotiation that was “unlikely to be successful” and
`
`awarding ongoing royalty). Moreover, the jury award is an appropriate ongoing royalty as it is
`
`unambiguous from the $46.7 million in running royalty damages that they relied on the $0.40,
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`$0.22, and $0.22 rates Mr. Reed presented at trial. Trial Tr. 511:3-23 (Reed Direct); PDX 4-27.
`
`4
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`

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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 9 of 15 PageID #: 12937
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`B.
`
`Amazon Fails to Show that the Jury-Awarded Rate Is Not an Appropriate
`Ongoing Royalty for Its Continued Infringement
`
`Amazon’s arguments for a downward departure from the starting point of the jury-awarded
`
`rate fail. Amazon offers no evidence that “economic factors have changed in [its] favor post-
`
`verdict.” XY, LLC v. Trans Ova Gens., 890 F.3d 1282, 1298 (Fed. Cir. 2018). Amazon offers only
`
`speculation that it may, hypothetically, at some unknown date, redesign to avoid infringement.
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`Amazon bases this not on the trial record, but on evidence that Amazon itself moved to exclude.
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`Opp’n 19; D.I. 265 (Pre-Trial Conf. Tr.) at 36:2-40:22. Amazon is not entitled to a free pass on
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`infringement the jury found to be occurring today because it might someday stop. Nor can Amazon
`
`argue that changes in Alexa popularity would justify a lower royalty rate. Amazon increases sales
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`and unveils new models of these infringing products every year. Op. Br., Evans-Aziz Decl. Ex. 4.
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`The fundamental logic of Mr. Reed’s royalty calculation, which the jury adopted, remains
`
`fully applicable. That calculation compensates VB Assets for the costs of growing Amazon’s
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`customer base avoided due to benefits of using the patents. Amazon is still realizing those same
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`benefits, regardless of any changes to VB Assets’s position or corporate form. If anything,
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`ancillary negotiation factors favor a higher rate now: Amazon acknowledges the jury’s award
`
`accounted for the risk Amazon posed to VoiceBox’s business. Opp’n 16. This risk actually came
`
`to pass, so VB Assets can now rely only on licensing to realize patent value. Amazon claims that
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`VB Assets has no “customer relationships or product on the market.” Id. As Mr. Reed explains,
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`“The products on the market are its intellectual property and the ability to consult with companies
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`interested in voice ads and voice commerce expertise.” Tennis Decl. Ex. 1,2 Reed Supp. Decl. ¶
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`9. Finally, Amazon’s argument that the jury’s award “more than fully compensates” VB Assets,
`
`Opp’n 16, is nonsense. The jury specifically awarded a “running royalty,” not a “lump sum.”
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`2 “Tennis Decl. Ex.” refers to the exhibits to the Declaration of Bradley T. Tennis filed herewith.
`
`5
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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 10 of 15 PageID #: 12938
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`The Court should disregard Amazon’s criticisms of Mr. Reed’s methodology. Amazon’s
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`arguments at Opp’n 17-18 about how Mr. Reed calculates his royalty base (a subject not relevant
`
`to determination of an ongoing royalty rate) were never presented at trial and rely on the brand
`
`new Mehta Declaration. These arguments based on new fact evidence were not presented to the
`
`jury nor subject to cross-examination. Nevertheless, Mr. Reed explains that these criticisms are
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`meaningless. Reed Supp. Decl. ¶¶ 3-5. Moreover, Amazon’s argument concerning single-turn
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`utterances, Opp’n 18, was settled by the jury after Mr. Reed testified extensively about the subject.
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`Trial Tr. 532:12-533:24 (Reed Cross); 542:14-543:3 (Reed Redirect). The jury heard and rejected
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`Amazon’s argument, awarding damages based on Mr. Reed’s calculation. Similarly, Amazon’s
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`argument that Mr. Reed’s cost-savings model fails to isolate the infringing effect, Opp’n 18-19,
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`has already been rejected twice by the Court on motions to exclude. Amazon also made this
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`argument unsuccessfully to the jury. Amazon should not get another bite at the apple.
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`With its opposition, Amazon provides a declaration from Rajiv Mehta, an employee
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`Amazon brought to trial but declined at the last minute to present, that includes
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`Mehta Decl.; id. Ex. 9.
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` see Reed Supp. Decl. ¶ 7, indicating that the jury’s verdict
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`undercompensated VB Assets and underscoring the need for an ongoing royalty. For purposes of
`
`calculating that ongoing royalty, the estimated figures presented to the jury—and not these new
`
`data provided by Amazon post-trial—should therefore be used as the year-end 2023 figures. This
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`will ensure that VB Assets is compensated for all the net new users and purchasers that Amazon
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`has actually realized, which was the unambiguous intent of the jury in adopting wholesale Mr.
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`Reed’s damages model.
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`6
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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 11 of 15 PageID #: 12939
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`IV.
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`VB ASSETS SHOULD BE AWARDED ENHANCED DAMAGES
`
`A.
`
`Read Factor 2: Pre-Suit Knowledge and Failure to Investigate
`
`Amazon argues that it received no pre-suit “charge of infringement,” but cites no cases
`
`requiring such notice for enhancement. Courts routinely enhance damages where there was no
`
`such notice but defendant “should have known” it may be infringing and failed to investigate. See,
`
`e.g., i4i Ltd. P’ship v. Microsoft Corp., 598 F. 3d 831 (Fed. Cir. 2010) (affirming enhancement
`
`where party was notified of the patent, with no mention of an infringement notice, and failed to
`
`investigate); Metabolite Labs., Inc. v. Lab. Corp. of Am. Holdings, 370 F.3d 1354, 1370-71 (Fed.
`
`Cir. 2004) (affirming enhancement where party “knew or should have known” of infringement).
`
`Amazon’s reliance on Mondis is unavailing. That case considered pre-suit notice to be a
`
`factor but did not require it for enhancement. See Mondis Tech. Ltd. v. LG Elecs., Inc., 2023 WL
`
`3749992, at *8 (D.N.J. June 1, 2023). Critically, and unlike here (where the jury has found willful
`
`infringement), the defendant there had a good-faith belief in invalidity, as the patents had all been
`
`under USPTO reexamination for the infringement period and each patent had at least one rejected
`
`claim. Id. The opposite is true here. Amazon does not deny that it knew about VoiceBox’s patents
`
`beginning in at least 2011. Yet Amazon presented no investigation evidence—to the contrary,
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`Amazon’s witnesses testified that they had no knowledge of any investigation. And unlike in
`
`Mondis, Amazon waited until VB Assets filed suit before filing any IPR petitions.3
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`B.
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`Read Factor 3: Amazon’s Behavior as a Party to the Litigation
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`Amazon cannot credibly justify its well-documented history of excessive litigation by
`
`blaming VB Assets. Opp’n 6-8. That Amazon won on a handful of issues prior to trial does not
`
`excuse its overall litigation behavior. It was Amazon who wielded control over VB Assets’s access
`
`3 Of the eight IPR petitions filed by Amazon, six were denied institution, one resulted in all claims
`being upheld, and only one resulted in the claims being found unpatentable.
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`7
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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 12 of 15 PageID #: 12940
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`
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`to Amazon technical documents, source code, and information crucial for VB Assets to build and
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`refine (or drop) its infringement case and claims, which were ultimately proven meritorious at trial.
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`In contrast, Amazon’s opposition admits that it insisted on litigating an excessive number of issues
`
`in the case, at one point refusing VB Assets’s proposed narrowing and insisting on half-a-dozen
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`prior art grounds per claim. See Opp’n 7; D.I. 248 (SJ Hr’g Tr.) at 14:17-20; D.I. 313-6.
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`Amazon’s persistent misuse of footnotes further exemplifies Amazon’s unreasonably excessive
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`behavior. In addition to the 18 paragraph-length footnotes in its opposition to the present motion,
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`Amazon’s invalidity contentions also footnoted, for example, that its list of 9 MIT Galaxy prior
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`art references was a “non-limiting list of publications describing the MIT Galaxy system.” D.I.
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`313-2 at 14.
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`Amazon fails to respond at all to VB Assets’s argument on the time Amazon wasted before
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`and during trial on whether there was an open issue on the meaning of “context.” Amazon’s
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`opposition further illustrates the unnecessary hurdles that Amazon has put in VB Assets’s way. In
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`discovery, VB Assets requested documents relating to “Amazon’s tracking of the installed base of
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`the Alexa Product,” and Amazon agreed to provide “documents sufficient to show use of the
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`accused functionalities . . . in the U.S.” Tennis Decl. Ex. 2. But the only evidence of usage evident
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`in Amazon’s production were one-off references in planning documents, forcing VB Assets to
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`reverse-engineer much of the necessary data. Reed Supp. Decl. ¶ 6. Yet when it suited Amazon’s
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`purposes, Amazon produced precise, tabulated, monthly data on key usage metrics that were
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`apparently kept in the ordinary course of its business. Mehta Decl. ¶ 3. These data, produced for
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`the first time after trial, show that Amazon’s user growth has been substantially higher than what
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`was implied by the documents Amazon produced (a fact that Amazon remained silent about until
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`after the jury rendered its verdict). Id. Ex. 9. This conduct further supports enhancement.
`
`8
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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 13 of 15 PageID #: 12941
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`
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`Trial Theme. Amazon does not dispute that VB Assets never asserted a rules-based vs.
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`machine-learning dichotomy in its infringement theories. Amazon contrived that artificial
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`framework for trial to distract the jury from the infringement evidence. Dr. Polish’s report
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`discusses more than machine learning (¶¶ 160-63); it discusses other ways Alexa incorporates
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`context and infringes, including device-specific mutable model and profile information (¶ 164),
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`speaker ID feature (¶ 165), user’s enabled skills (¶ 166), order history (¶ 167), alarm information
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`(¶ 169). D.I. 190-1. Amazon selectively quotes ¶ 172’s reference to NLU machine-learning
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`models, Opp’n 9, but ignores the rest explaining that Alexa determines context by using “personal
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`artifacts, Dialog Acts, ASR and NLU machine-learning models[.]” D.I. 190-1 at ¶ 172. But
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`Amazon failed to adduce evidence on these and chose to myopically focus on machine learning.
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`C.
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`Read Factor 4: Amazon’s Financial Condition
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`Amazon is simply incorrect that a defendant’s financial condition is only applied to weigh
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`against enhancement. See, e.g., Metabolite Lab., 370 F. 3d at 1371 (extensive financial means of
`
`defendant supports enhancement in light of other factors).
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`D.
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`Read Factor 5: The Jury Verdict Was Not Close
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`Amazon’s only argument is that the length of the jury’s deliberations “tends to suggest that
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`it failed to scrutinize all the issues.” Opp’n 12. Amazon offers no basis for impugning the jury in
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`this way. There is no reason to believe that the jury failed to understand the case or faithfully
`
`apply the law. That the jury required just a few hours to find that Amazon willfully infringed four
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`VB Assets patents and that those patents were valid suggests strongly the case was not close.
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`E.
`
`Read Factors 6 and 7: Duration of Misconduct and No Remedial Action
`
`Amazon makes no arguments specific to these factors in its opposition and instead points
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`generally to the timing of this suit and its belief that its defenses were meritorious. Opp’n 12. As
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`discussed in VB Assets’s opening brief and this reply, those arguments have no merit. Amazon’s
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`9
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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 14 of 15 PageID #: 12942
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`
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`“failure to discontinue” infringing conduct weighs in favor of enhanced damages. Lucent Techs.,
`
`Inc. v. Newbridge Networks Corp., 168 F. Supp. 2d 269, 275 (D. Del. 2001).
`
`F.
`
`Read Factors 8 and 9: Motivation for Harm and Attempt to Conceal
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`VoiceBox was a growing company with major customers, like Toyota and Samsung, when
`
`it first presented its technology and patents to Amazon. See, e.g., Trial. Tr. 172:6-11 (Kennewick
`
`Direct). Once Amazon launched Alexa, the two companies competed to provide voice recognition
`
`software, including for auto and smartphone applications. The evidence shows Amazon sought
`
`out information about VoiceBox’s patented technology and used software infringing VoiceBox’s
`
`patents to target its biggest customers. See, e.g., Trial Tr. 156:4-162:14, 172:3-185:24 (Kennewick
`
`Direct), 814:14-822:15 (Ugone Cross); PTX-65; PTX-271; PTX-265; PTX-632. Amazon also
`
`targeted and recruited VoiceBox’s engineers. See Trial Tr. 172:6-22 (Kennewick Direct).
`
`G.
`
`Read Factor 1: Evidence Relating to Deliberate Copying of Ideas Is Neutral
`
`Nothing in VB Assets’s motion is contrary to the agreed limitations concerning direct
`
`copying. See D.I. 239-1, Ex. 14; D.I. 259. As noted above, Amazon met with VoiceBox to learn
`
`about its technology and then later targeted key VoiceBox customers. Amazon attempts to deflect
`
`from this evidence by focusing on VoiceBox’s conduct and the hardware on which the software
`
`products at issue run (a tactic also deployed to distract the jury at trial). Neither is relevant to
`
`Amazon paying enhanced damages for infringing VB Assets’s patents in Alexa’s software. This
`
`factor is therefore at worst neutral and certainly does not preclude enhancement. The Court should
`
`grant VB Assets’s motion as the totality of the factors weighs in favor of enhancement.
`
`V.
`
`CONCLUSION
`
`For the foregoing reasons, VB Assets respectfully requests that the Court grant its post-
`
`trial motions for pre- and post-judgment interest, an ongoing royalty, and enhanced damages.
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`
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`Case 1:19-cv-01410-MN Document 322 Filed 01/24/24 Page 15 of 15 PageID #: 12943
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`SMITH, KATZENSTEIN & JENKINS LLP
`
`/s/ Jason Z. Miller
`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 17, 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
`
`11
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`