Case 6:20-cv-00272-ADA Document 92 Filed 03/27/23 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`VOIP-PAL.COM, INC.,
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`Plaintiff,
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`v.
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`CASE NO. 6:20-cv-00272-ADA
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`AMAZON.COM, INC.,
`AMAZON.COM SERVICES LLC, and
`AMAZON WEB SERVICES, INC.,
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`Defendants.
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`AMAZON’S RESPONSE IN OPPOSITION TO PLAINTIFF VOIP-PAL.COM’S
`OPPOSED MOTION FOR ENTRY OF FIRST AMENDED SCHEDULING ORDER
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`VoIP-Pal misstates Amazon’s position: VoIP-Pal has elected to prolong the claim con-
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`struction process in this case. Amazon merely asks the Court to wait to enter a case schedule until
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`VoIP-Pal’s motion for reconsideration of the Court’s Markman order is resolved.1 That will enable
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`the parties to address the case-dispositive nature of that order and determine how to proceed.
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`In its Markman order, the Court adopted Amazon’s proposed construction of the claim
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`term “routing message.” (ECF No. 87 at 2.) That construction requires that the “routing message”
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`have three specific fields, including a time-to-live field. (Id.) VoIP-Pal’s infringement contentions
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`make no assertion that any routing messages in the accused system has a time-to-live field. There-
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`fore, following the Court’s claim construction, Amazon repeatedly asked VoIP-Pal to identify any
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`basis for asserting that a routing message in the accused Amazon system contains a time-to-live
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`1 In emails on March 8 and 14, Amazon told VoIP-Pal that the parties should address the case
`schedule after the resolution of VoIP-Pal’s motion for reconsideration of the Court’s claim con-
`struction order. (ECF No. 90-2; Ex. A.)
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`Case 6:20-cv-00272-ADA Document 92 Filed 03/27/23 Page 2 of 5
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`field. (ECF 90-2 at 3, 4; Ex. A.)2 VoIP-Pal could not identify any such basis. Instead, VoIP-Pal
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`asserted that it needed discovery about Amazon’s message routing system, so Amazon produced
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`over 10,000 pages of documents. (ECF 90-2 at 3; Ex. A.) VoIP-Pal still could not identify any
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`basis for asserting that a routing message in Amazon’s accused system contains a time-to-live
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`field. (ECF 90-2 at 2.)3
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`Throughout a litigation, a party must possess an adequate basis for its legal and factual
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`contentions. Fed. R. Civ. P. 11(b)(2) and (3). An adverse claim construction does not relieve a
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`party from that obligation. Taurus IP, LLC v. DaimlerChrysler Corp., 726 F.3d 1306, 1328 (Fed.
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`Cir. 2013) (“[A] party cannot assert baseless infringement claims and must continually assess the
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`soundness of pending infringement claims, especially after an adverse claim construction.”). Nor
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`does an adverse claim construction entitle a party to conduct a fishing expedition in hope of finding
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`some basis to support its infringement contentions, which is exactly what VoIP-Pal has indicated
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`it intends to do in this case. (Mot. at 2.)
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`Waiting to enter a case schedule until after the Court resolves VoIP-Pal’s motion for re-
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`consideration regarding claim construction will facilitate the orderly conduct of the proceedings
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`in this case. First, it will preclude broad, unbounded discovery from VoIP-Pal under an assertion
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`that the Court might reconsider its claim construction. Second, it will present a decision point for
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`2 “Ex. A” refers to Exhibit A of the Declaration of Daniel T. Shvodian, filed concurrently
`herewith.
`3 Rather than identifying any basis for asserting that a routing message in Amazon’s system
`contains a time-to-live field, VoIP-Pal asked Amazon to prove that it does not infringe (ECF 90-2
`at 2, 3), a burden that Amazon does not bear. Amazon, nevertheless, did identify evidence that its
`system does not have routing messages that contain a time-to-live field. (Ex. A). VoIP-Pal never
`responded to that March 14 email from Amazon and purposefully excluded that email from the
`correspondence that VoIP-Pal submitted in support of its motion. (See ECF 90-2 (excluding Am-
`azon’s March 14 response).)
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`Case 6:20-cv-00272-ADA Document 92 Filed 03/27/23 Page 3 of 5
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`VoIP-Pal on whether it should stipulate to noninfringement and appeal the claim construction or-
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`der or risk proceeding in this case without an adequate basis for asserting that the “routing mes-
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`sage” claim limitation is met by the accused system. Upaid Sys., Ltd. v. Card Concepts, Inc., No.
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`17-C-8150, 2022 WL 4482762, at *2 (N.D. Ill. Sept. 27, 2022) (“So, after the court issued its
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`Markman order, [the plaintiff] should have conceded that its infringement claims failed as a matter
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`of law and either ended the litigation or appealed on the ground that the court’s Markman ruling
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`was erroneous.”). Third, it will enable Amazon, if necessary, to bring an early dispositive motion
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`for summary judgment of noninfringement, without VoIP-Pal opposing the motion based upon the
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`pending motion for reconsideration.
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`For those reasons, Amazon requests that the Court deny VoIP-Pal’s motion for an imme-
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`diate case schedule. Instead, Amazon requests that the Court order the parties to await the Court’s
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`ruling on the motion for reconsideration. After that ruling, the parties can evaluate their positions
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`and, if VoIP-Pal refuses to stipulate to a judgment of noninfringement, the parties can submit a
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`proposed schedule to the Court within two weeks of that ruling.
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`Case 6:20-cv-00272-ADA Document 92 Filed 03/27/23 Page 4 of 5
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`Dated: March 27, 2023
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`Respectfully submitted,
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`/s/ Daniel T. Shvodian
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`M. Craig Tyler, Bar No. 00794762
`Perkins Coie LLP
`500 W 2nd St, Suite 1900
`Austin, TX 78701-4687
`Tel. No. 737.256.6113
`Fax No. 737.256.6300
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`Daniel T. Shvodian, Admitted Pro Hac Vice
`Christopher Kelley, Admitted Pro Hac Vice
`Perkins Coie LLP
`3150 Porter Drive
`Palo Alto, CA 94304-1212
`Tel. No. 650.838.4300
`Fax No. 650.838.4350
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`ATTORNEYS FOR DEFENDANTS
`Amazon.com, Inc.; Amazon.com Services
`LLC; and Amazon Web Services, Inc.
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`Case 6:20-cv-00272-ADA Document 92 Filed 03/27/23 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a true and correct copy of the above and foregoing
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`document has been served March 27, 2023 to all counsel of record, via the Court’s CM/ECF sys-
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`/s/ Daniel T. Shvodian
`Daniel T. Shvodian
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`tem.
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`161573741
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