Case 1:22-cv-00904-RGA-SRF Document 259 Filed 09/20/24 Page 1 of 4 PageID #: 28489
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY, LLC,
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`Plaintiff,
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`V.
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`AMAZON WEB SERVICES, INC.,
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`Defendant.
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`Civil Action No. 22-904-RGA
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`MEMORANDUM ORDER
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`The parties have filed various letters in connection with the trial scheduled to start on
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`Monday.
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`Two letters concern whether Scott Hayden can testify in connection with willfulness.
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`(D.I. 225; D.I. 234). The issue arose because Mr. Hayden was on the live witness list, and I
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`asked Defendant at the pretrial conference about what he was going to testify. The response at
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`the pretrial conference was that Mr. Hayden would testify about "general licensing practices"
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`and about "the licensing in this case." Plaintiff raises a disclosure issue. I think Plaintiffs
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`argument has merit- Mr. Hayden was not disclosed as someone knowledgeable about the letter
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`at issue in this case. Defendant conceded that Mr. Hayden has no personal knowledge of the
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`letter. (PTC Tr. at 78: 1-12). 1 Thus, regardless of whether Defendant failed to disclose, it seems
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`clear that Mr. Hayden should not be testifying about something of which he does not have
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`1 In the subsequent letter (D.I. 225), Amazon backtracked and said he has "personal knowledge"
`of the letter "in his role as Vice President . . . and oversight of Amazon's licensing activities,
`even though he was not directly involved" with the letter. At the PTC, counsel said Mr.
`Hayden' s knowledge was "after the fact. " (PTC Tr. at 78:9-10). "After the fact" knowledge is,
`generally speaking, another way to say, hearsay knowledge.
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`Case 1:22-cv-00904-RGA-SRF Document 259 Filed 09/20/24 Page 2 of 4 PageID #: 28490
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`personal knowledge. The relevance of Amazon's general licensing practices seems irrelevant to
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`willfulness. Thus, I exclude Mr. Hayden from testifying about the letter or the processes for
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`handling similar letters. And, while I am doubtful that Mr. Hayden has any relevant information,
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`he was disclosed for "licensing practices," so I cannot exclude his testimony to the extent it
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`concerns "licensing practices." But since I doubt its relevance, if Defendant wants me to
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`consider permitting such testimony, it needs to submit a detailed proffer about what Mr. Hayden
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`would say no later than Monday, September 23, at 10 a.m.
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`I have read the letter concerning Ms. Kindler's use of "portfolio" licenses. (D.I. 235). I
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`do not think there is any similarity between Ms. Kindler' s "portfolio" licenses and Plaintiff s
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`expert' s use of two specific portfolio licenses, which I excluded at the pretrial conference. Thus,
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`Plaintiffs expert's use of the two specific portfolio licenses remains excluded, but Ms. Kindler' s
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`use of her "portfolio" licenses is not excluded.
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`In connection with one of Defendant's motions in limine (D.I. 200), which I denied, I
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`asked that Plaintiff submit a proffer regarding Dr. Medvidovic' s proposed testimony about how
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`the accused products meet the "broadcast channel" limitation. The point was to help me prepare
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`for anticipated trial objections. Plaintiff submitted the proffer. (D.I. 236). In response,
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`Defendant raised a different issue, saying that one paragraph at pp. 4-5 of the proffer was a
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`previously undisclosed (or new) infringement theory. (D.I. 255). Plaintiff responded. (D.I. 256).
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`The gist of Defendant's complaint is that Dr. Medvidovic opines, "BigMac uses Hyperplane and
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`infringes through that use." (D.I. 255). The proffer' s disputed paragraph states that Dr.
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`Medvidovic "explains that BigMac ... utilizes a 'HyperPlane Health Layer' . ... " and that
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`"BigMac utilizes ' Multicast on Hyper Plane' ... . " The paragraph of the proffer cites various
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`sections of Dr. Medvidovic' s opening report talking about Hyperplane's Health Layer, but, as
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`Case 1:22-cv-00904-RGA-SRF Document 259 Filed 09/20/24 Page 3 of 4 PageID #: 28491
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`Defendant points out, none of the paragraphs contain a whisper about BigMac. In Plaintiff's
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`response, Plaintiff relies upon paragraph ~ 15 in Dr. Medvidovic' s Reply Report to say that he
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`"clearly set forth his opinion that Hyper Plane is part of BigMac." Plaintiff says this paragraph is
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`in response to two paragraphs of Ms. Sultanik's report, which Plaintiff (accurately, I think)
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`characterizes as Ms. Sultanik saying that Dr. Medvidovich was relying on code relating to
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`Transit Gateway/Hyperplane for analysis ofVPC. Dr. Medvidovic' s paragraph~ 15 is not what
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`I would call "clear." What I think he says is that "hyperplane terminology" is not "specific only
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`to the transit gateway. Amazon uses this term in its source code ... for multiple technologies,
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`including with respect to BigMac .... [T]o the extent that this code is related to transit gateway,
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`it is also exemplary of the code for VPCs." (D.I. 256). What I think Dr. Medvidovic is saying is
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`that there is BigMac source code that in some fashion refers to "hyperplane," but I do not think
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`he says that any and all "Hyperplane" technology provides a basis to say that BigMac infringes.
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`I also note that Plaintiff's argument, to the extent that it is, BigMac infringes through
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`HyperPlane, seems to be completely inconsistent with the arguments Plaintiff has been making
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`to date. At summary judgment, Plaintiff claimed that VPC's infringing functionality was
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`entirely attributable to VPC Peering and BigMac. (See D.I. 219 at 28-30). HyperPlane
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`technology related to Transit Gateway, not to VPC, VPC Peering, or to BigMac. I think to the
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`extent Plaintiff is now arguing that CloudFront or VPC infringes through HyperPlane, Plaintiff is
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`advancing a new theory, and I exclude it.
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`Lastly, I have two letters concerning Mr. Gunderson's five-page third supplemental
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`expert report. (D.I. 228; D.I. 238). The timing of the report followed my instructions at the
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`pretrial conference. (D.I. 227). I gave Defendant the opportunity to submit a supplemental report
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`of its damages expert. Though I do not think I have been provided with them, I see from the
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`Case 1:22-cv-00904-RGA-SRF Document 259 Filed 09/20/24 Page 4 of 4 PageID #: 28492
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`docket that Ms. Kindler wrote supplemental reports served on September 16th (D.I. 222) and on
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`September 18th (D.I. 229). As far as I can tell from the letters concerning Mr. Gunderson, there
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`are some factual challenges to his opinions. Those are issues for cross-examination at trial, and
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`presumably are the subject of Ms. Kindler's September 18th report. There are also some
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`disclosure challenges, but while my last-minute rulings have necessitated some scrambling in
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`order for both sides to have expert opinions tailored to the way things now stand, I am not
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`convinced that Amazon has had insufficient time to be able to conduct an effective cross
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`examination and to present contrary opinions from its expert. Thus, the motion to strike Mr.
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`Gunderson's third supplemental report is denied.
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`IT IS SO ORDERED this 20th day of September 2024.
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