Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Plaintiff,
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`v.
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`Case No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`ALMONDNET, INC.,
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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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`PLAINTIFF ALMONDNET, INC.’S MOTION FOR SUMMARY JUDGMENT OF
`DEFENDANT AMAZON’S SIXTEENTH AFFIRMATIVE DEFENSE OF
`DEDICATION TO THE PUBLIC
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`PUBLIC VERSION
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Plaintiff,
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`v.
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`Case No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`ALMONDNET, INC.,
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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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`PLAINTIFF ALMONDNET, INC.’S MOTION FOR SUMMARY JUDGMENT OF
`DEFENDANT AMAZON’S SIXTEENTH AFFIRMATIVE DEFENSE OF
`DEDICATION TO THE PUBLIC
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`PUBLIC VERSION
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 2 of 9
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`I.
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`II.
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`TABLE OF CONTENTS
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`INTRODUCTION .............................................................................................................. 1
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`FACTUAL BACKGROUND ............................................................................................. 1
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`III.
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`LEGAL STANDARD ......................................................................................................... 2
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`IV.
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`ARGUMENT ...................................................................................................................... 3
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`A.
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`Amazon Adduced
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`V.
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`CONCLUSION ................................................................................................................... 4
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 3 of 9
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`Cases
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`TABLE OF AUTHORITIES
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`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) .................................................................................................................... 2
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`Celotex Corp. v. Catrett,
`477 U.S. 317 (1986) .................................................................................................................... 2
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`PSC Comput. Prod., Inc. v. Foxconn Int’l, Inc.,
`355 F.3d 1353 (Fed. Cir. 2004) .............................................................................................. 2, 3
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`Ragas v. Tenn. Gas Pipeline Co.,
`136 F.3d 455 (5th Cir. 1998) ...................................................................................................... 2
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`Toro Co. v. White Consol. Indus., Inc.,
`383 F.3d 1326 (Fed. Cir. 2004) .............................................................................................. 2, 3
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`Rules
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`Fed. R. Civ. P. 26 ............................................................................................................................ 3
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`Fed. R. Civ. P. 56(a) ....................................................................................................................... 2
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 4 of 9
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`I.
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`INTRODUCTION
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`Pursuant to Federal Rule of Civil Procedure 56 Plaintiff AlmondNet, Inc. (“AlmondNet”)
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`respectfully moves for summary judgment on one of the nineteen defenses asserted by defendants
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`Amazon.com, Inc.; Amazon.com Services LLC; and Amazon Web Services, Inc. (collectively,
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`“Amazon”) in its First Amended Answer (Dkt. No. 93). As further detailed below, Amazon has
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`1 Moreover, Amazon’s experts
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` despite Amazon
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`bearing the burden to show that a person of ordinary skill in the art would understand there to be
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`a difference between the specification and the claims. Amazon should not be permitted to waste
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`the Court’s time and resources, nor attempt to confuse the jury, with its meritless defense.
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`II.
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`FACTUAL BACKGROUND
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`On August 27, 2021, AlmondNet filed its complaint for patent infringement against
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`Amazon. Dkt. No. 1. On November 8, 2021, Amazon filed its Answer, asserting twenty-six
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`affirmative defenses, including dedication to the public. Dkt. No. 16 at 13-17.
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`On August 19, 2022, AlmondNet served interrogatories including its first interrogatory
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`requesting “all factual bases for, including identification of any documents or witnesses that you
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`contend support, the Affirmative Defenses asserted in your Answer.” Ex. 1 at 5 (Omnibus
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`Supplemental Objections and Responses of Defendants Amazon.com, Inc., Amazon.com
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`Services LLC And Amazon Web Services, Inc. To Plaintiff AlmondNet, Inc.’s Interrogatories
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`(Nos. 1-27)).
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`In its initial response to AlmondNet’s interrogatories, and in support of its dedication
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`defense, Amazon stated
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`1 All emphasis has been added unless otherwise noted.
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`1
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 5 of 9
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`Id. at 12. Yet, Amazon did not
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`despite supplementing its response to AlmondNet’s Interrogatory No. 1 on at least two occasions,
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`Amazon provided
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` Id. at 12-16. Amazon’s experts likewise
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`On March 10, 2023, Amazon filed its Amended Answer in this action, withdrawing certain
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`defenses, but maintaining its dedication to the public defense, renumbering it as Amazon’s
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`sixteenth defense. Dkt. No. 93 at 10-13.
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`III. LEGAL STANDARD
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`A motion for summary judgment shall be granted when the record demonstrates that there
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`is no genuine dispute as to any material fact and that the moving party is entitled to judgment as
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`a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25
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`(1986); Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). “Only disputes over
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`facts that might affect the outcome of the suit under the governing laws will properly preclude
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`the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
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`“[T]he disclosure-dedication rule likewise presents a question of law.” Toro Co. v. White
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`Consol. Indus., Inc., 383 F.3d 1326, 1331 (Fed. Cir. 2004). In analyzing dedication to the public,
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`“claims must be interpreted as one of ordinary skill in the art would understand them.” PSC
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`Comput. Prod., Inc. v. Foxconn Int’l, Inc., 355 F.3d 1353, 1359 (Fed. Cir. 2004) (“[O]ne of
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`ordinary skill in the art should be able to read a patent, to discern which matter is disclosed and
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`discussed in the written description, and to recognize which matter has been claimed.”).
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`2
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 6 of 9
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`IV. ARGUMENT
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`A.
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`Amazon Adduced
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`Summary judgment is appropriate as to Amazon’s dedication to the public defense
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`because Amazon
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`As such, Amazon should not be permitted to waste this Court’s time and resources, nor attempt
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`to confuse the jury, with its meritless dedication defense.2
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`Instead, Amazon’s responses during discovery
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` If Amazon
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`, they were required to include that information in response to
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`AlmondNet’s interrogatories. Fed. R. Civ. P. 26.
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` here is dispositive,
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`demonstrating that there are no facts to support Amazon’s defense. Thus, summary judgment in
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`AlmondNet’s favor is warranted on this basis alone.
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`But even so, the lack of support and specificity for Amazon’s dedication defense is
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`particularly problematic here, because it is “one of ordinary skill in the art should be able to read
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`a patent, to discern which matter is disclosed and discussed in the written description, and to
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`recognize which matter has been claimed.” PSC Comput., 355 F.3d 1353 (Fed. Cir. 2004). Yet,
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`2 As noted above, dedication to the public presents a question of law. Toro Co. v. White Consol.
`Indus., 383 F.3d at 1331. Pursuant to Court MIL No. 5, any evidence, testimony, or argument
`related to this defense should not be presented to the jury. Dkt. No. 104 at 2.
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`3
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 7 of 9
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`here, Amazon has not
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`. And this is the critical question, because the
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`“ability to discern both what has been disclosed and what has been claimed is the essence of
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`public notice.” Id. at 1360 (“The disclosure must be of such specificity that one of ordinary skill
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`in the art could identify the subject matter that had been disclosed and not claimed.”). Thus, on
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`this basis alone summary judgment in favor of AlmondNet is warranted.
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`But even if Amazon were given the opportunity to present its defense to the Court, it
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`would still reveal no dispute as to any material fact, because there are no material facts which
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`support Amazon’s defense. Indeed, Amazon
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`. Thus, Amazon provides no evidence or opinion on which
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`it could base any dedication defense and Amazon cannot manufacture one now.
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`Thus, summary judgment in AlmondNet’s favor is warranted.
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`V.
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`CONCLUSION
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`Because Amazon has not
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`, this Court should grant summary
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`judgment in AlmondNet’s favor. Amazon should not be permitted to waste the Court’s time and
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`resources, nor attempt to confuse the jury, with its meritless defense of dedication to the public.
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 8 of 9
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`Date: August 23, 2023
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`Respectfully submitted,
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`By: /s/ Jason M. Wietholter
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`Reza Mirzaie
`Marc A. Fenster
`Benjamin T. Wang
`Adam Hoffman
`James A. Milkey
`Amy E. Hayden
`James S. Tsuei
`Jonathan Ma
`Daniel B. Kolko
`Jason M. Wietholter
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard 12th Floor
`Los Angeles, California 90025
`Tel: 310-826-7474
`Fax: 310-826-6991
`rmirzaie@raklaw.com
`mfenster@raklaw.com
`bwang@raklaw.com
`ahoffman@raklaw.com
`jmilkey@raklaw.com
`ahayden@raklaw.com
`jtsuei@raklaw.com
`jma@raklaw.com
`dkolko@raklaw.com
`jwietholter@raklaw.com
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`Counsel for Plaintiff ALMONDNET, INC.
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`Case 6:21-cv-00898-ADA Document 144 Filed 08/30/23 Page 9 of 9
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`CERTIFICATE OF SERVICE
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`Pursuant to the Federal Rules of Civil Procedure and Local Rule CV-5, I hereby certify
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`that, on August 23, 2023, counsel of record who have appeared in this case are being served with
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`a copy of the foregoing via email.
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` /s/ Jason M. Wietholter
`Jason M. Wietholter
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