Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 1 of 25 PageID #: 24423
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`ACCELERATION BAY, LLC, a
`Delaware Limited Liability Corporation,
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`AMAZON WEB SERVICES, INC., a
`Delaware Corporation,
`
`
`Defendant.
`
`
`
`
`
`
`C.A. No. 22-904-RGA-SRF
`
`
`
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`
`
`
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`
`PLAINTIFF ACCELERATION BAY, LLC’S REPLY IN SUPPORT
`OF ITS MOTION FOR SUMMARY JUDGMENT AND DAUBERT MOTION
`
`
`
`Philip A. Rovner (#3215)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay, LLC
`
`
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`Michael H. Lee
`Kristopher Kastens
`Christina M. Finn
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`333 Twin Dolphin Drive, Suite 700
`Redwood Shores, CA 94065
`(650) 752-1700
`
`Aaron M. Frankel
`Marcus A. Colucci
`Cristina L. Martinez
`Pooja P. Parekh
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: June 28, 2024
`
`PUBLIC VERSION
`
`Public version dated: July 11, 2024
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 2 of 25 PageID #: 24424
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`There is No Genuine Dispute That AWS’ Transit Gateway is M-Regular and
`Incomplete........................................................................................................................... 1
`
`A.
`
`B.
`
`C.
`
`D.
`
` Forwarding is M-Regular and Incomplete ....................................... 1
`
`Transit Gateway’s
`
` is M-Regular and Incomplete ............................. 4
`
`Multicast on Hyperplane is M-Regular and Incomplete ......................................... 5
`
`AWS Arguments on Apportionment are Irrelevant to Infringement ...................... 7
`
`II.
`
`Summary Judgment of No Invalidity is Required Because AWS Does Not Have Any
`Admissible Evidence to Support its Defense ...................................................................... 7
`
`A.
`
`B.
`
`C.
`
`AWS Abandoned its Anticipation Defense ............................................................ 7
`
`Mr. Greene’s Unexplained Inherency Opinions Should Be Excluded ................... 7
`
`Mr. Greene’s Obviousness Analysis is Insufficient as a Matter of Law ................ 9
`
`III.
`
`AWS’ Non-Infringing Alternative Opinions Should be Excluded and Summary
`Judgment Granted That There are No Non-Infringing Alternatives ................................. 12
`
`A.
`
`B.
`
`Ms. Sultanik’s Opinions on Alleged Alternatives are Unsupported and
`Unreliable .............................................................................................................. 12
`
`Ms. Kindler’s NIA Opinions Fall With Ms. Sultanik’s Unreliable
`Opinions ................................................................................................................ 14
`
`C.
`
`Summary Judgment of No Non-Infringing Alternatives is Appropriate .............. 15
`
`IV. Ms. Kindler’s Damages Opinions Should Be Excluded ................................................... 16
`
`A.
`
`B.
`
`Ms. Kindler’s Methodology is Unsound ............................................................... 16
`
`Ms. Kindler Failed to Assume Infringement ........................................................ 18
`
`V.
`
`CONCLUSION ................................................................................................................. 20
`
`
`
`
`
`i
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`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 3 of 25 PageID #: 24425
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)................................................................................................10
`
`Conceptus, Inc. v. Hologic, Inc.,
`771 F. Supp. 2d 1164, 1179 (N.D. Cal. 2010) .........................................................................12
`
`Dali Wireless, Inc. v. CommScope Techs. LLC,
`No. 19-952 (MN), 2022 WL 19830016, at *3 (D. Del. Jan. 28, 2022) ...................................14
`
`GPNE Corp. v. Apple, Inc.,
`No. 12-cv-02885-LHK, 2014 WL 1494247, at *4-6 (N.D. Cal. Apr. 16, 2014) .....................14
`
`Innogenetics, N.V. v. Abbott Lab’ys,
`512 F.3d 1363 (Fed. Cir. 2008)................................................................................................10
`
`InTouch Techs., Inc. v. VGO Commc’ns, Inc.,
`751 F.3d 1327 (Fed. Cir. 2014)................................................................................................10
`
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) .............................................................................................................9, 10
`
`Mars, Inc. v. Coin Acceptors, Inc.,
`527 F.3d 1359, 1372-73 (Fed. Cir. 2008) ................................................................................15
`
`Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574, 585-87 & n.10 (1986) .........................................................................................4
`
`Meyer Intellectual Properties Ltd. v. Bodum, Inc.,
`690 F.3d 1354 (Fed. Cir. 2012)................................................................................................11
`
`MobileMedia Ideas, LLC v. Apple Inc.,
`209 F. Supp. 3d 756, 766 (D. Del. 2016) .................................................................................13
`
`NXP USA, Inc. v. Impinj, Inc.,
`No. 2:20-cv-01503-JHC, 2023 WL 3933877 (W.D. Wash. June 8, 2023) ..............................15
`
`Open Text S.A. v. Box, Inc.,
`No. 13-cv-04910-JD, 2015 WL 349197, at *3, *6 (N.D. Cal. Jan. 23, 2015) .........................17
`
`PAR Pharm., Inc. v. TWI Pharms., Inc.,
`773 F.3d 1186, 1195-96 (Fed. Cir. 2014) ..............................................................................7, 8
`
`ii
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 4 of 25 PageID #: 24426
`
`Persawvere, Inc. v. Milwaukee Elec. Tool Corp.,
`No. 21-400-GBW, 2023 WL 8019085, at *10 (D. Del. Nov. 20, 2023) .................................17
`
`TQ Delta, LLC v. Cisco Sys., Inc.,
`942 F.3d 1352, 1360 (Fed. Cir. 2019)..................................................................................9, 10
`
`Other Authorities
`
`Fed. R. Civ. P. 26 ...........................................................................................................................11
`
`Fed. R. Evid. 702 ...........................................................................................................8, 11, 13, 14
`
`
`
`
`
`iii
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 5 of 25 PageID #: 24427
`
`I.
`
`There is No Genuine Dispute That AWS’ Transit Gateway is M-Regular and
`Incomplete
`
`Acceleration Bay (“AB”) established that AWS’ Transit Gateway uses infringing m-
`
`regular and incomplete networks through (1)
`
`, (2)
`
`, and (3)
`
`Multicast. D.I. 151 (“Br.”) at 2-12. AWS denies infringement, but its Opposition (D.I. 159,
`
`“Opp.”) fails to come forward with any evidence to create a genuine dispute as to this limitation.
`
`As shown below, AWS does not offer any affirmative explanation for how Transit Gateway’s
`
`networks are structured, attacks strawman arguments that AB is not making, and relies on non-
`
`existent claim limitations and unsupported attorney argument.
`
`A.
`
` is M-Regular and Incomplete
`
`AB provided unrebutted evidence that Transit Gateway’s core
`
`
`
`functionality is implemented with networks that are m-regular and incomplete. Br. at 7-9. As
`
`shown with AWS’ technical documents, engineer testimony, and Dr. Medvidović’s expert
`
`analysis, each participant in
`
` has the same number of connections (m-
`
`regular) but does not connect to
`
` (incomplete). Id.
`
`For example, Dr. Medvidović explains that AWS’ documentation depicting
`
`
`
` shows that “[e]ach of the
`
` are connected to
`
`, making the
`
`network -regular and incomplete.” AB MSJ Ex. 11, Medvidović Rpt. at ¶ 318 (citing AB MSJ
`
`Ex. 6, AMZ_AB_000124568). AWS does not dispute that this document shows
`
`,
`
`with each connected to
`
`, and that this is an m-regular, incomplete network.
`
`See Opp. at 6-7. Similarly, AWS concedes the
`
` network is incomplete
`
`because of “shuffle sharding,” which means that not every
`
` is connected to every
`
`. Id.
`
`
`1 “AB MSJ Ex.” refers to exhibits attached to the Declaration of Christina M. Finn in support of
`AB’s Motion for Summary Judgment and Daubert Motion. D.I. 152.
`
`
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 6 of 25 PageID #: 24428
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`at 5 (“Because of shuffle sharding, not
`
` . . . . So,
`
` engage in a process called
`
` . . . .”). As such, there is no dispute that
`
`these elements are present in the Transit Gateway.
`
`AWS does not offer any alternative affirmative explanation for the structure that
`
` uses, for example, by contending that the network diagram AB and its expert rely
`
`upon is inaccurate. Instead, AWS contends that the
`
` in isolation, as shown in the diagram, do
`
`not form an m-regular network. Id. at 6. This is an argument against a strawman infringement
`
`claim, because the participants forming the m-regular network are
`
`, not
`
` in
`
`isolation. The
`
`that represents
`
` which is a networking component in a VPC
`
`. See id. at 5. Thus, the
`
` together act as the network “participants,” meeting the Court’s definition of “computer
`
`processes that are connected by a network.” D.I. 81 at 3. AWS incorrectly claims that “AB does
`
`not define
`
` as participants; it identifies
`
` as the participants.” Opp. at 6. As shown
`
`below, Dr. Medvidović’s infringement opinion clearly identifies the
`
` as the
`
`participant, and he shows that each
`
` (the left column) is connected to exactly
`
`
`
` (listed in the right column), thus forming a -regular incomplete network.
`
`AB MSJ Ex. 1, Medvidović Rpt. at ¶ 318 (annotated), excerpted in Br. at 8.
`
`
`
`2
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 7 of 25 PageID #: 24429
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`Neither AWS nor its expert, Ms. Sultanik, responds to AB’s infringement claim based on
`
`, explains why a
`
` is not a participant as construed by the Court, or
`
`explains how the network connections identified by Dr. Medvidović are not an m-regular
`
`incomplete network. These undisputed facts alone warrant summary judgment.
`
`AWS contends that “a diagram alone cannot show m-regularity under the Court’s
`
`construction” because “[a]n m-regular network must be configured to maintain a state where the
`
`participants are connected to the same number of participants.” Opp. at 7. This is another attack
`
`on a strawman argument, because Dr. Medvidović is not relying on a “diagram alone.” Rather, he
`
`provides a detailed analysis, including citations to AWS’ source code, documents, and deposition
`
`testimony, to establish that
`
` is indeed configured to provide the network
`
`shown in the diagram. See, e.g., AB Reply Ex. 12, Medvidović Rpt. at ¶¶ 319, 323-338.
`
`For example, Dr. Medvidović explained that Transit Gateway, will “maintain[] the network
`
`as m-regular and incomplete by
`
`.” Br. at 7 (citing AB MSJ Ex. 1 at ¶¶ 272, 317 (“
`
`
`
`
`
`
`
`”). AB cites AWS internal documents and deposition testimony that describe how
`
`Transit Gateway starts with
`
`
`
`. Id. at 9. While AWS points to deposition testimony
`
`that “[n]othing requires [] a network [to] operate at the limit,” (Opp. at 8), there is no dispute that,
`
`even when not at the limit, the
`
` are connected to the same number of connections due
`
`to AWS’
`
`. AB MSJ Ex. 1, Medvidović Rpt.
`
`
`2 “AB Reply Ex.” refers to exhibits attached to the Declaration of Christina M. Finn in support of
`AB’s Reply in Support of its Motion for Summary Judgment and Daubert Motion.
`
`3
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 8 of 25 PageID #: 24430
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`at ¶¶ 202-206; AB MSJ Ex. 11 at AMZ_AB_000124573 (“
`
`”), AMZ_AB_000124575 (“there’s
`
`
`
`
`
`”);
`
`see also AB MSJ Ex. 12, MacCarthaigh Tr. at 187:19-188:23 (describing how “each Transit
`
`Gateway customer
`
`” and
`
`describing the Auto Scaling to
`
`.). This shows that AWS would still
`
` these
`
` to allow for scaling to avoid hitting the limit on
`
`the number of
`
`, as admitted by AWS. Opp. at 5 (“To spread workload out amongst computing
`
`resources, AWS implements a technique called shuffle sharding to connect each
`
`In sum, AWS does not offer any affirmative evidence that
`
` …”).
`
` uses a
`
`network structure different from the m-regular, incomplete structure Dr. Medvidović identified,
`
`leaving his opinion unrebutted. Given AWS’ failure to “come forward with specific facts showing
`
`that there is a genuine issue for trial,” summary judgment is warranted. Matsushita Elec. Indus.
`
`Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 & n.10 (1986) (citations and emphasis omitted).
`
`B.
`
`Transit Gateway’s
`
` is M-Regular and Incomplete
`
`Transit Gateway also infringes because its
`
`, responsible for monitoring
`
`,
`
`is m-regular. Br. at 9. For example, AWS’ technical documents show a
`
` architecture
`
`with
`
` connected to
`
` in that
`
`. AB Reply Ex. 1, Medvidović
`
`Rpt. at ¶ 489 (citing D.I. 149, AWS Ex. 19 at AMZ_AB_000124590, Fig. 4). AWS does not
`
`dispute these facts regarding
`
`
`
`Instead, AWS argues that the
`
` “is not concerned with maintaining the same
`
`number of connections amongst all
`
` at a given time since
`
` missing connection is
`
`not enough to trigger any reconfiguration of the network . . . to achieve any particular
`
`
`
`.” Id. at 10. The anthropomorphic “concerns” of the network are not relevant, and
`
`4
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 9 of 25 PageID #: 24431
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`AWS offers no evidence to support this claim. See id. Rather, as Dr. Medvidović establishes, the
`
` is
`
` be connected to the same number of
`
`. Br.
`
`at 9. Indeed, AWS does not dispute that its expert confirmed during her deposition that when the
`
`system is operating as envisioned, there are
`
` in Figure 4, which each
`
`
`
`. AB MSJ Ex. 13, Sultanik Tr. at 92:8-21. This
`
`makes the network -regular and incomplete, notwithstanding AWS’ claims about its intentions.
`
`AWS notes that the
`
` is used to send
`
`, which it contends is
`
`unrelated to m-regularity. Opp. at 9. But the claims do not require that the specific data that are
`
`broadcasted “relate” to m-regularity. Rather, the asserted claims require that the underlying
`
`network is m-regular and incomplete. See, e.g., D.I. 50-1, Ex. A-2, ’966 Pat. at Claim 12.
`
`Finally, AWS contends that the
`
` is complete, but does not offer any evidence
`
`supporting this conclusion. Opp. at 10. At most, AWS cites to the deposition testimony of an
`
`AWS engineer that
`
` is sending
`
`. Id., n.41. But as shown
`
`in Dr. Medvidović’s unrebutted analysis, the
`
`
`
`through the through the m-regular, incomplete network, with
`
` relaying to
`
`, and
`
`. Br. at 9. Thus, AWS fails to come
`
`forward with evidence to create a triable issue of fact as to the
`
`, and the Court should
`
`grant summary judgment that it uses m-regular, incomplete networks.
`
`C. Multicast on Hyperplane is M-Regular and Incomplete
`
`Transit Gateway also infringes through it use of Multicast, which is based on m-regular,
`
`incomplete networks. Id. at 10. As AWS acknowledges, Transit Gateway’s Multicast organizes
`
`, where
`
` receive a message and then
`
` to their connected
`
` and so on. Opp. at 12. This is undisputedly an incomplete, broadcast network, as no
`
`5
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`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 10 of 25 PageID #: 24432
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`participant is connected to all others participants and participants relay messages so they reach all
`
`participants.
`
`AWS does not dispute that AB and its expert identify a diagram showing such an m-regular,
`
`incomplete network. Id. at 13; Br. at 10 (citing AB MSJ Ex. 9, Fig. 4). Instead, AWS contends
`
`that the “diagram does not depict m-regularity,” because “[i]t shows nothing about the state the
`
`network seeks to maintain.” Opp. at 13. AWS again ignores the detailed evidence of infringement
`
`Dr. Medvidović identifies in his reports and offers no affirmative evidence of Multicast having an
`
`architecture that is not m-regular and incomplete. See, e.g., AB MSJ Ex. 1 at ¶ 274 (citing AB
`
`MSJ Ex. 9 at AMZ_AB_000124581 (“For every
`
`. This
`
` is
`
`. When
`
`
`
`
`
`
`
`.”)).
`
`AWS contends without explanation that Multicast is not incomplete. Opp. at 12-14. AWS
`
`cites no evidence to support this claim, and its expert never opined that every
`
` is connected to
`
`. AWS also argues that AB did not consider “the connection from
`
` to
`
`,” but the
`
` connection are not part of the broadcast channel
`
`because the multicasting only takes place
`
`, as AWS acknowledges. Id. at 12-13
`
`(“Hyperplane supports multicasting by organizing
`
` into
`
`.”). Thus, AWS fails
`
`to come forward with a genuine dispute, and summary judgment that Multicast uses m-regular,
`
`incomplete networks is appropriate. Matsushita, 475 U.S. at 585-87 & n.10 (a party must “come
`
`forward with specific facts showing that there is a genuine issue for trial” to defeat summary
`
`judgment) (internal quotations, citations and emphasis omitted).
`
`6
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 11 of 25 PageID #: 24433
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`D.
`
`AWS Arguments on Apportionment are Irrelevant to Infringement
`
`In Section IV.A.5 of its Opposition, AWS argues that AB has not correctly apportioned the
`
`value of Hyperplane. Opp. at 16-17. This argument about damages has no relationship to AB’s
`
`motion, which is based on the absence of any genuine dispute that Transit Gateway uses m-regular,
`
`incomplete networks. In particular, AWS does not explain how its argument about apportionment
`
`is a basis to oppose summary judgment on infringement. Moreover, as AB explained in its
`
`Opposition to AWS’s Motion for Summary Judgment, AB’s expert properly apportioned Transit
`
`Gateway revenue for damages purposes. D.I. 161 at 30-31.
`
`II.
`
`Summary Judgment of No Invalidity is Required Because AWS Does Not Have Any
`Admissible Evidence to Support its Defense
`
`A.
`
`AWS Abandoned its Anticipation Defense
`
`AWS abandoned its anticipation defense, leaving that portion of AB’s motion unopposed.
`
`Opp. at 18 n.84.
`
`B. Mr. Greene’s Unexplained Inherency Opinions Should Be Excluded
`
`Having withdrawn anticipation, AWS is only asserting inherency in the context of
`
`obviousness. The standard to do so is “high,” because to assert inherency for obviousness, “the
`
`limitation at issue necessarily must be present, or the natural result of the combination of elements
`
`explicitly disclosed by the prior art.” PAR Pharm., Inc. v. TWI Pharms., Inc., 773 F.3d 1186,
`
`1195-96 (Fed. Cir. 2014) (emphasis added). Exclusion of Mr. Greene’s inherency opinions and
`
`summary judgment of no inherency is warranted because his reports are devoid of any explanation
`
`as to why either is purportedly true for any element of the Asserted Claims. Br. at 15-17.
`
`By asserting that every reference inherently discloses every element in every asserted claim
`
`of every asserted patent, Mr. Greene is purporting to present over 450 inherency opinions. The
`
`sum total of the basis for those inherency opinions in his two reports is his invocation of the
`
`7
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 12 of 25 PageID #: 24434
`
`boilerplate phrase for every element that, “[t]o the extent Acceleration Bay contends that [prior art
`
`reference X] does not disclose this element, it is . . . inherent.” Br. at 15-16. These unexplained,
`
`ipse dixit opinions should be excluded. Id.
`
`Mr. Greene conflated the requirements for obviousness and inherency during his
`
`deposition. When asked to explain why these elements are inherently disclosed in references, Mr.
`
`Greene testified that he did need to provide such an explanation because “it seemed obvious” and
`
`“[b]ut again, to others, it might not be. But it’s something that we had to know at the time . . . .”
`
`AB MSJ Ex. 25, Greene Tr. at 186:10-20 (emphasis added). Even if it was true that a claim
`
`limitation was obvious at the time, that is not evidence that “the limitation at issue necessarily must
`
`be present” in a specific reference (or in a combination of references), which is required to establish
`
`inherency. PAR Pharm., 773 F.3d at 1195-96.
`
`AWS cannot explain away Mr. Greene’s error. It contends that Mr. Greene has “30-plus-
`
`years of experience as an implementor of technical solutions” and that the asserted patents
`
`purportedly acknowledge that “computer networks were utilized to distribute information to
`
`participants.” Opp. at 18-19. Neither proposition is a substitute for the required explanation of
`
`why the specific element was “necessarily present” in the specific reference or (unspecified)
`
`combination of references. Fed. R. Evid. 702 advisory committee’s note to 2000 amendments (an
`
`expert witness relying on experience “must explain how that experience leads to the conclusion
`
`reached”). Similarly irrelevant is AWS’ claim that in 741 pages of claim charts Mr. Greene
`
`supposedly provided express disclosures for many of the elements. Opp. at 17-18. The issue is
`
`Mr. Greene’s total failure to disclose the basis for an inherency opinion for each of these elements.
`
`AWS’ citation to Appendix C1 is illustrative of the deficiencies in Mr. Greene’s analysis.
`
`Appendix C1 is Mr. Greene’s claim chart for “the ’634 patent claims over the combination of Du,
`
`8
`
`

`

`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 13 of 25 PageID #: 24435
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`Hughes, Hwang, and [Olson].” AB MSJ Ex. 14, Greene Rpt. ¶ 155. As AWS explains, “element
`
`10.c show[s] express disclosure in Du, with reference to inherency and previous claim elements in
`
`other references of the combination.” Opp. at 18 n.86. However, AWS fails to mention that, in
`
`addition to the “express disclosure from Du,” Mr. Greene also states that, “[t]o the extent AB
`
`contends that Du does not disclose this element, it is either inherent, or a POSITA would have
`
`been motivated and found it obvious to include this element with Du based upon a POSITA’s own
`
`knowledge,” just as he did for the other three references. AB MSJ Ex. 18, Appx. C1 at 33-34. Mr.
`
`Greene offers no analysis to support inherency. The Asserted Patents’ general acknowledgement
`
`that “computer networks were utilized to distribute information to participants” says nothing about
`
`whether Du, Hughes, Hwang, and/or Olson necessarily disclose a “non-routing table based
`
`broadcast channel.” See Opp. at 19 (emphasis added).
`
`Mr. Greene should not be permitted at trial to rely on his myriad boilerplate placeholders
`
`to provide previously undisclosed opinions. His inherency opinions should be excluded as ipse
`
`dixit and AWS’ inherency defense should be disposed of on summary judgment.
`
`C. Mr. Greene’s Obviousness Analysis is Insufficient as a Matter of Law
`
`AWS’ obviousness defense and Mr. Greene’s obviousness opinions fail because they
`
`impermissibly depend on hindsight. Obviousness approaches that rely, as Mr. Greene’s admittedly
`
`did, “on the [challenged] patent itself as [a] roadmap for putting . . . pieces of a ‘jig-saw puzzle’
`
`together” are improper. TQ Delta, LLC v. Cisco Sys., Inc., 942 F.3d 1352, 1360 (Fed. Cir. 2019)
`
`(citation omitted); Opp. at 21. Twelve years after KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398
`
`(2007), the Federal Circuit explained that its decisions in InTouch, ActiveVideo and Innogenetics,
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`each of which AB cited, “rejected obviousness determinations based on conclusory and
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`unsupported expert testimony” because such testimony “risks allowing the challenger to use the
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`challenged patent as a roadmap to reconstruct the claimed invention using disparate elements from
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`the prior art—i.e., the impermissible ex post reasoning and hindsight bias that KSR warned
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`against.” TQ Delta, LLC, 942 F.3d at 1360-61 (citations omitted); Br. at 18-21; InTouch Techs.,
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`Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327 (Fed. Cir. 2014); ActiveVideo Networks, Inc. v.
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`Verizon Commc’ns, Inc., 694 F.3d 1312 (Fed. Cir. 2012); Innogenetics, N.V. v. Abbott Lab’ys, 512
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`F.3d 1363 (Fed. Cir. 2008). Accordingly, Mr. Greene’s impermissible approach is not admissible
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`to support AWS’ obviousness defense, and summary judgment of no obviousness is required.
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`AWS’ defense of Mr. Greene’s obviousness opinion is limited to (1) citing to his
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`discussions of how the asserted references are in similar technological fields and (2) contending
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`that “a POSITA’s normal practice was to assemble pieces of different technologies together to
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`solve problems and deliver technical solutions.” Opp. at 20-21. Neither is sufficient to establish
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`a prima facie case of obviousness. Obviousness requires an explanation of “how specific
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`references could be combined, which combination(s) of elements in specific references would
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`yield a predictable result, [and] how any specific combination would operate or read on the asserted
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`claims,” because the absence of such an explanation fails to “explain why a [POSITA] would have
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`combined elements from specific references in the way the claimed invention does.” TQ Delta,
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`LLC, 942 F.3d at 1360 (quoting ActiveVideo, citing KSR).
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`As a matter of law, it is not enough for Mr. Greene to have opined that each claim element
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`can be found in some analogous reference. To pass muster, he needed to provide an explanation
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`of why (absent hindsight) a POSITA would have combined them in a particular way to reach the
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`specific inventions of the asserted claims. AWS is unable to identify any such explanation in Mr.
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`Greene’s reports, because there is none. Even AWS’ Opposition is not clear as to which
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`permutations of prior art references Mr. Greene actually relies on and which disclosures from each
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`reference are used for each combination.
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`Case 1:22-cv-00904-RGA-SRF Document 176 Filed 07/11/24 Page 15 of 25 PageID #: 24437
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`For example, AWS identifies Mr. Greene’s first obviousness combination as “consist[ing]
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`of ’882 Maxemchuk, ATT Maxemchuk, Hughes, and InsideDirectX.” Opp. at 20 n.95. However,
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`in explaining motivation to combine and reasonable expectation of success, AWS only discusses
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`pairs of two references, i.e. ’882 Maxemchuk and ATT Maxemchuk; ’882 Maxemchuk and
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`Hughes; and, ’882 Maxemchuk and InsideDirectX. Id. at 20, 24. Neither AWS nor Mr. Greene
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`ever addresses the motivation to combine or reasonable expectation of success in doing so for all
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`four references. And even for the pairs, neither AWS nor Mr. Greene explains why a POSITA
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`would have combined them in a particular way to reach a specific asserted claim. Mr. Greene’s
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`hundreds of pages of “requirements matrices” littered with thousands of “puzzle pieces” are not a
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`substitute for disclosure of a reasoned opinion explaining how to purportedly piece them together
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`in the way the claimed invention does and why a POSITA would have done so.
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`AWS cites to a single Federal Circuit case purportedly supporting admissibility. But that
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`case, Meyer Intellectual Properties Ltd. v. Bodum, Inc., pertains to whether an expert’s report met
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`the disclosure requirements of Rule 26, not whether an opinion was sufficiently supported to be
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`admissible under FRE 702 and Daubert to carry the challenger’s clear and convincing evidentiary
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`burden. 690 F.3d 1354, 1374 n.7 (Fed. Cir. 2012); Opp. at 21-22. Further, in Meyer, as in KSR,
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`the technology was relatively simple. Here, the technology is complex, as demonstrated by Mr.
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`Greene’s admission that explaining how to “combine the teachings of Du, Hughes, Hwang and/or
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`Olson to arrive at the asserted claims” to a jury would not be possible “in a short period of time”
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`and would require “several, fairly thick books on the topic.” D.I. 160-1, AWS Opp. Ex. H, Greene
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`Tr. at 61:16-62:16. That it would have taken significant effort to explain an opinion does not give
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`Mr. Greene a free pass for having failed to do so.
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`In sum, Mr. Greene’s obviousness opinions should be excluded and summary judgment
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`should issue because he fails to provide a prima facie case of obviousness as to any asserted claim.
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`III. AWS’ Non-Infringing Alternative Opinions Should be Excluded and Summary
`Judgment Granted That There are No Non-Infringing Alternatives
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`A. Ms. Sultanik’s Opinions on Alleged Alternatives are Unsupported and
`Unreliable
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`The purported non-infringing alternatives (“NIAs”) of AWS’ technical expert, Ms.
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`Sultanik, should be excluded because she failed to rely on sufficient facts or data. Br. at 22-26.
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`Ms. Sultanik failed to offer even a prima facie case for a viable NIA because she did not provide
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`any of the requisite facts or analysis that an alleged NIA was available and acceptable. Id. at 22-
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`25. In particular, she does not offer any analysis of how the proposed changes to the Accused
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`Products would impact performance, which is necessary to show a valid NIA. Id. AWS concedes
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`this point by failing to identify opinion from Ms. Sultanik on this issue. See Opp. at 25-28.
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`Moreover, Ms. Sultanik does not support her claim that the ’069 Patent allegedly identifies prior
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`art that would be NIAs for all Asserted Patents, which AWS also leaves unrebutted. Br. at 25-26.
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`These undisputed gaps in Ms. Sultanik’s analysis are alone sufficient grounds to exclude her
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`opinion and grant summary judgment of no NIAs.
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`Ms. Sultanik’s NIA opinions should also be excluded because she adopted nearly-verbatim
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`AWS’ interrogatory response, which was devoid of any factual support, and then added no analysis
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`of her own. Br. at 22-26. Ms. Sultanik cannot simply copy an interrogatory response into her
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`report and, without analysis or any underlying support, adopt it as her opinion. Id. at 22-23 (citing
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`Conceptus, Inc. v. Hologic, Inc., 771 F. Supp. 2d 1164, 1179 (N.D. Cal. 2010)).3
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`3 Conceptus is squarely on point. In that case, an expert’s conversation with company employees
`was insufficient, without more, to support an NIA opinion. Br. at 23 (citing 771 F. Supp. 2d at
`1179). Here, Ms. Sultanik did not even speak with any AWS employees, nor does AWS’
`interrogatory response cite to any of its employees. Thus, the case for exclusion is even stronger.
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`AWS contends that Ms. Sultanik’s reliance on its interrogatory response was appropriate
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`because its engineer, Mr. MacCárthaigh, “vetted” the NIAs. Opp. at 25. This is not in evidence.
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`AWS’ interrogatory does not cite to any statements from Mr. MacCárthaigh. To the contrary, AB
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`asked in its interrogatory that AWS identify the “most knowledgeable individuals” about NIAs,
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`and AWS failed to identify Mr. MacCárthaigh or anyone else. AB MSJ Ex. 27 at 21-22
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`(Interrogatory No. 6); see also id. at 22-27 (AWS’ responses failing to identify or refer to Mr.
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`MacCárthaigh).4 Moreover, Ms. Sultanik never spoke with Mr. MacCárthaigh, so she cannot have
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`relied on any information known to him in forming her opinions. AB MSJ Ex. 10, Sultanik
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`Rebuttal Rpt. at ¶¶ 717-724 (Ms. Sultanik’s opinions not citing Mr. MacCárthaigh).
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`To give an opinion at trial as an expert, Ms. Sultanik was obligated to have satisfactorily
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`disclosed in her report an opinion “based on sufficient facts or data” that was “the product of
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`reliable principles and methods.” Fed. R. Evid. 702. Ms. Sultanik did not disclose such an opinion.
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`At most, AWS suggests that Mr. MacCárthaigh had in his mind undisclosed facts that could have
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`given Ms. Sultanik a valid basis for her opinions, but that cannot retroactively render her ipse dixit
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`opinion well-founded, because she did not rely on those facts.5
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`The deposition testimony of AB’s expert, Dr. Cole, does not render Ms. Sultanik’s opinions
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`reliable. Dr. Cole simply testified that he had “worked on those types of networks before,”
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`4 Given this failure to identify Mr. MacCárthaigh in its interrogatory response, AB would move to
`strike a