Case 6:21-cv-00898-ADA Document 205 Filed 09/21/23 Page 1 of 16
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`UNITED STATES DISTRICT COURT
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`FOR THE WESTERN DISTRICT OF TEXAS
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`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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`REPLY IN SUPPORT OF
`PLAINTIFF’S MOTION TO EXCLUDE CERTAIN OPINIONS OF DR. HENRY HOUH
`AND TO STRIKE PORTIONS OF HIS EXPERT REPORT
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`Case 6:21-cv-00898-ADA Document 205 Filed 09/21/23 Page 2 of 16
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`TABLE OF CONTENTS
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`I. THE COURT SHOULD EXCLUDE OR STRIKE HOUH’S NIA OPINIONS BECAUSE
`HE FAILED TO ASSUME INFRINGEMENT .................................................................... 1
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`II. THE COURT SHOULD EXCLUDE AND STRIKE ANY OF HOUH’S OPINIONS
`THAT ARE INCONSISTENT WITH THE COURT’S MARKMAN ORDER ..................... 2
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`A. Houh Reads a “Saturation” Limitation into the Claims of the ’639 Patent ....................... 2
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`B. Amazon’s Opposition Confirms that It Intends Present Trial Testimony from Houh that
`There Must be Past Sale of Advertisements ..................................................................... 3
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`III. THE COURT SHOULD EXCLUDE AND STRIKE HOUH’S NEW UNSUPPORTABLE
`CLAIM CONSTRUCTION THEORIES .............................................................................. 4
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`A. Houh’s Interpretation of “first Internet site” in the Claims of the ’639 Patent Is in Direct
`Contradiction with the File History ................................................................................... 5
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`B. Houh’s Interpretation of “directing” in Claim Element 37(a) of the ’139 Patent Is in
`Direct Contradiction with the File History ........................................................................ 6
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`C. Houh’s Construction of “first price” in the Claims of the ’639 Patent Is Inconsistent with
`Both the Markman Order and the Intrinsic Record ........................................................... 6
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`D. Houh’s Requirement that “authorizing” in Claim 37 of the ’139 Patent Must Be for a
`“Future Event” Is Inconsistent with the Claim Language ................................................. 7
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`E. Houh’s Purported Requirement that the “condition” of Claim 37 of the ’139 Patent Must
`be “Predetermined” is Unsupported .................................................................................. 7
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`F. Houh’s “Expected Profit” Requirement for the Claims of the ’139 Patent Excludes
`Embodiments Disclosed in the Specification .................................................................... 8
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`G. Houh’s Requirement that the “third party server computer” of ’139 Patent Claim 37
`Must Be the Same for “each of a multitude of electronic visitors” Is Inconsistent with
`the Intrinsic Record ........................................................................................................... 8
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`IV. IF AMAZON DOES NOT AGREE THE PARTIES WILL NOT PRESENT ARGUMENT,
`TESTIMONY, AND EVIDENCE ABOUT THE PREAMBLES AT TRIAL, THE COURT
`SHOULD STRIKE HOUH’S PREAMBLE OPINIONS ...................................................... 8
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`V. THE COURT SHOULD STRIKE HOUH’S OPINIONS THAT RELY ON CORPORATE
`ENTITY INFORMATION THAT AMAZON DID NOT DISCLOSE DURING FACT
`DISCOVERY ......................................................................................................................... 9
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`VI. THE COURT SHOULD EXCLUDE OR STRIKE HOUH’S
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` OPINIONS ........... 10
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`A. The Court Should Exclude Under Daubert Houh’s Opinions that
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`Within the Meaning of the ’139 Patent Claims ............................... 10
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`B. The Court Should Also Exclude or Strike Dr. Houh’s Opinions that
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` Within the Meaning of the ’639 Patent Clams ...................................... 10
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`TABLE OF AUTHORITIES
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`Cases
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`Eon Corp. IP Holdings LLC v. Silver Springs Networks, Inc.,
`815 F.3d 1314 (Fed. Cir. 2016) ................................................................................................. 5
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`Fenner Invs., Ltd. v. Cellco P’ship,
`778 F.3d 1320 (Fed. Cir. 2015) ................................................................................................. 6
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`Levy v. Gadsby,
`7 U.S. (3 Cranch) 180 (1805) ........................................................................................................ 5
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`Markman v. Westview Instruments, Inc.,
`52 F.3d 967 (Fed. Cir. 1995) ..................................................................................................... 5
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`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ................................................................................................. 5
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`Prism Techs. LLC v. Sprint Spectrum LP,
`849 F.3d 1360 (Fed. Cir. 2017) ................................................................................................. 2
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`Rules
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`Fed. R. Civ. P. 26 ........................................................................................................................ 10
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`Fed. R. Civ. P. 37(c) ...................................................................................................................... 9
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`Case 6:21-cv-00898-ADA Document 205 Filed 09/21/23 Page 5 of 16
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`I.
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`THE COURT SHOULD EXCLUDE OR STRIKE HOUH’S NIA OPINIONS
`BECAUSE HE FAILED TO ASSUME INFRINGEMENT
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`Amazon contends that AlmondNet’s request to exclude Houh’s non-infringing
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`alternative (“NIA”) opinions is based on a “mistaken premise,” and quotes a portion of Houh’s
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`report stating:
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` Opp. (Dkt. 163) 1 (quoting
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`AN Ex. 11 ¶354) (emphasis2 in Opp.). But despite this statement, this is not what Houh does.
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`The only “non-infringement arguments” Houh
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` Mot. (Dkt. 134) 2-4.
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`Amazon asserts that “the reasons why the alternative technology does not infringe those
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`claim limitations are different than those underlying Dr. Houh’s
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` because “Dr. Houh opines[]
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`.’” Opp. 2 (quoting
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`AN Ex. 1 ¶¶356-357) (emphasis in original). But Amazon’s proposed NIA is not that Amazon
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`would avoid
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`. Rather, recognizing that would not be a commercially acceptable alternative,
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`Amazon and Houh propose an alternative in which both (a)
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`and (b)
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`. AlmondNet does not
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`dispute that the
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` “would not result in infringement,” but the
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`would nevertheless
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` Mot. 2.
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`1 Both sides used numerical labels. AlmondNet precedes citations with AN or AMZ for clarity.
`2 All emphases added unless otherwise noted.
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` Id. 2-4. Thus, Amazon’s NIA
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`does not avoid infringement under AlmondNet’s theory.
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`Amazon further claims “if the accused technology was modified to
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`. Opp. 2 (first two emphases in original). But yet again, that is
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`simply a restatement of the same arguments
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`. See, e.g.,
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`AN Ex. 1 ¶245
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`); see also Mot. 2-4.
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`Moreover, Amazon’s argument is also at least partially based on the false premise that
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`the Accused Products can
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` See, e.g., AN Ex. 1 ¶358
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`.”). Amazon’s “agnostic” argument fails for this additional reason.
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`The Court should exclude and strike Houh’s NIA opinions because he fails to assume
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`infringement under AlmondNet and its expert’s theories, as required by controlling precedent.
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`See, e.g., Prism Techs. LLC v. Sprint Spectrum LP, 849 F.3d 1360, 1369 (Fed. Cir. 2017).
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`II.
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`THE COURT SHOULD EXCLUDE AND STRIKE ANY OF HOUH’S OPINIONS
`THAT ARE INCONSISTENT WITH THE COURT’S MARKMAN ORDER
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`A.
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`Houh Reads a “Saturation”3 Limitation into the Claims of the ’6394 Patent
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`Faced with the harsh reality that its expert has offered opinions contrary to the Markman
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`order, Amazon simply pretends those opinions do not exist:
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`3 AlmondNet does not seek to “forbid[]” Houh “from mentioning ‘saturation’ while its own
`experts testify freely about it.” Opp. 4, 5 n.5. To the extent that Houh’s testimony
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`AlmondNet does not seek to exclude or strike such testimony.
`4 This reply brief does not discuss the ’586 patent because AlmondNet dropped that patent as
`part of the parties’ case narrowing agreement. See Dkt. 168.
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` Opp. 3. But that is not true. See, e.g., AN Ex. 2 51:18-
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`52:19 (
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`Indeed, Amazon confirms it wants to have the ability to have Houh
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` see also Mot. 5.
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`Opp. 4 (citing AN Ex. 1 ¶238); see also AN Ex. 1 ¶238 (
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` Amazon’s intention is further confirmed by its remarkable statement that the
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`Court did not “expressly reject[] Amazon’s proposal” that saturation is a claim element, despite
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`the Court’s clear holding to the contrary. Opp. 3 n.4; see also Dkt. 113 (Markman order) 14
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`(“The claims do not require that the first Internet site is saturation with advertisements.”).
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`Such testimony should be excluded as inconsistent with the Markman order, and
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`stricken because if permitted it will result in jury confusion and undue prejudice to AlmondNet.
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`B.
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`Amazon’s Opposition Confirms that It Intends Present Trial Testimony
`from Houh that There Must be Past Sale of Advertisements
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`This dispute centers around the term “sold”5 in the ’639 patent claims. The Court’s
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`Markman order rejected Amazon’s contention that “the advertisement must have been
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`previously sold” because an Applicant statement to which Amazon pointed did not amount to
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`disclaimer, and also because “the plain language of this statement does not describe that
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`payment must occur prior to placement of the advertisement at the second Internet site. By
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`contrast, payment could be made, for example, at the end of the month.” Dkt. 113 14-15
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`(emphasis in original). Houh flouts the Court’s rulings and
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`5 The “has paid” language referenced in the opening and responsive briefs appears only on the
`’586 patent, which is no longer asserted in this case.
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` Mot. at 6. His testimony must be excluded and stricken.6
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`Amazon astoundingly claims in its opposition, despite the clear holdings in the Court’s
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`Markman order, that the Court did not in fact reject its proposal because “sold” was not
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`specifically proposed for construction; rather, a longer claim phrase containing “sold” was.
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`Opp. 5-6. Amazon then reasons that because that longer phrase was assigned its plain meaning
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`by the Court, Houh is free to opine on what that plain meaning is, presumably even if his “plain
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`meaning” is in direct contradiction with reasoning in the Markman order. See id. Amazon of
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`course cites no authority for this unprecedented and illogical position.
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`Amazon also claims that the Court’s “prior sale” ruling was limited to “the suggestion
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`that the claims require a previous sale for the first site, not that the advertisement must have
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`been previously sold at all, as AlmondNet argues.” Id. 6. But this argument is again belied by
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`the Markman order itself, which bears repeating: “[T]he plain language of th[e applicant
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`statement] does not describe that payment must occur prior to the placement of the
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`advertisement at the second Internet site.” Dkt. 113 15 (first underlining in original).
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`III. THE COURT SHOULD EXCLUDE AND STRIKE HOUH’S NEW
`UNSUPPORTABLE CLAIM CONSTRUCTION THEORIES
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`Amazon argues multiple times that construction of a claim term in view of statements in
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`the specification and file history “is a point for cross-examination” (see, e.g., Opp. 8; see also
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`id. 1, 9) and otherwise implies that during a jury trial is an appropriate time for experts to
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`analyze the intrinsic record and offer competing claim construction opinions (id. 10, 12). This
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`is, of course, improper. Markman v. Westview Instruments, Inc., 52 F.3d 967, 978 (Fed. Cir.
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`6 In response to this issue and others, Amazon contends that AlmondNet seeks to strike too
`broad of portions of Houh’s report. Opp. 1, 7 n.6, 9 n.7, n.8, 11 n.10, 12, 17 n.14, 19 n.15.
`AlmondNet disagrees; it identified specific paragraphs that contain the problematic opinions in
`an effort to aid the parties and the Court. However, to the extent that the Court desires only to
`strike the portions of those paragraphs that relate directly to the problematic opinions,
`AlmondNet would agree that is a sound approach. AlmondNet’s concern is of course preventing
`unreliable, irrelevant, and unduly prejudicial testimony from being presented to the jury.
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`1995) (“The reason that the courts construe patent claims as a matter of law and should not give
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`such task to the jury as a factual matter is straightforward: It has long been and continues to be a
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`fundamental principle of American law that ‘the construction of written evidence is exclusively
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`with the court.’”) (quoting Levy v. Gadsby, 7 U.S. (3 Cranch) 180, 186 (1805)).
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`This long-rooted principle has been reaffirmed by recent Federal Circuit jurisprudence,
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`requiring the court to rule on claim construction disputes, even if those claim construction
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`issues arise close in time to trial. Eon Corp. IP Holdings LLC v. Silver Springs Networks, Inc.,
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`815 F.3d 1314, 1318-19, 1323 (Fed. Cir. 2016) (reversing jury verdict where “the court left [a]
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`question of claim scope unanswered, leaving it for the jury to decide” because “[t]his was legal
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`error”); see also O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1361 (Fed.
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`Cir. 2008) (“A determination that a claim term ‘needs no construction’ or has the ‘plain and
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`ordinary meaning’ may be inadequate when a term has more than one ‘ordinary’ meaning or
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`when reliance on a term’s ‘ordinary’ meaning does not resolve the parties’ dispute.”).
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`Each of the construction issues presented here can be readily resolved in the context of
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`the instant briefing, as each of Houh’s corresponding opinions can be excluded from the trial
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`and stricken from his expert report because they are unsupported by the intrinsic record. See
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`Mot. 7-14. AlmondNet now replies to Amazon’s response on each construction issue in turn.
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`A.
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`Houh’s Interpretation of “first Internet site” in the Claims of the ’639
`Patent Is in Direct Contradiction with the File History
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`The files history makes clear the term “‘site’ [singular] is not being used to refer to a
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`particular URL, domain name or IP address; after all, for example, a given site [singular] may
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`have multiple URLs, domain names, or IP addresses,” and “[t]he references in the claims to
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`‘first site’ [singular] and ‘second site,’ [singular] therefore refers to sites operated for the
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`benefit of different (and not commonly owned) proprietors.” AN Ex. 9 3377 (first emphasis
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`and all underlining in original). This is consistent with another portion of that paragraph:
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`“‘sites’ in the claims [] refer[] to collections of one or more Internet pages operated for the
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`benefit of a particular entity, who or which is sometimes referenced as a ‘proprietor.’” Id.
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`Amazon argues because “sites” is plural in this latter instance, “site” (singular) in the claims
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`cannot refer to “collections of one or more Internet pages.” Opp. 8. But this strained
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`interpretation is at odds with the other parts of that paragraph, and also ignores that the
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`applicant made clear a “site” is the set of pages operated for the benefit of a single proprietor,
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`regardless of, for example, whether they are from the same domain not. AN Ex. 9 3377.
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`B.
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`Houh’s Interpretation of “directing” in Claim Element 37(a) of the ’139
`Patent Is in Direct Contradiction with the File History
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`Amazon does not dispute there are “statements in the file history by the applicant that
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`‘directing’ includes ‘indirect’ forms of communication.” Opp. 9 (emphasis in original); see AN
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`Ex. 8 156. Rather, Amazon argues “AlmondNet does not show they were ever acknowledged,
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`much less accepted by the Examiner.” Opp. 9. Amazon cites no authority for its
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`“acknowledgement” and “acceptance” theory, and AlmondNet is aware of none. Indeed, Houh
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`and AlmondNet has moved to exclude this opinion in limine as inconsistent with controlling
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`law. Dkt. 174 1-4; see, e.g., Fenner Invs., Ltd. v. Cellco P’ship, 778 F.3d 1320, 1325 (Fed. Cir.
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`2015) (“the interested public has the right to rely on inventor’s statements made during
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`prosecution, without attempting to decipher whether the examiner relied on them, or how much
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`weight they were given”). Nor does AlmondNet seek to “expand the disclosures in the
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`specification” (see Opp. 9), but is rather illustrating that
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`C.
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`Houh’s Construction of “first price” in the Claims of the ’639 Patent Is
`Inconsistent with Both the Markman Order and the Intrinsic Record
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`First, Amazon makes clear that the purported “predetermined,” “fixed,” and “same for
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`multiple visitors” requirements are grounded in its flawed “sold in the past” theory. Opp. 10.
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`Those arguments fail because that theory is inconsistent with the Markman order. See supra §
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`III.B; Mot. 6-7. Second, Amazon is incorrect that the claims
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` Rather, such an
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`interpretation would result in independent claim 24 never being met. Mot. 10-11.
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`D.
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`Houh’s Requirement that “authorizing” in Claim 37 of the ’139 Patent Must
`Be for a “Future Event” Is Inconsistent with the Claim Language
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`Amazon claims that, without this requirement, the “at a time after” language would be
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`read out of the claim. Opp. 11-12. Reading the claim illustrates this is not so: “authorizing the
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`server computer to automatically cause display of an advertisement, to the electronic visitor
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`when the electronic visitor visits the second media property at a time after the electronic visitor
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`visits the first media property.” Ex. 5 cl. 37. The “at a time after” language simply imparts the
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`requirement that the electronic visitor visits the first media property before visiting the second
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`media property. That language has nothing to do with whether the authorization occurs before
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`the visitor visits the second media property or concurrently with that visit; the claim is not
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`limited to either option.
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`E.
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`Houh’s Purported Requirement that the “condition” of Claim 37 of the ’139
`Patent Must be “Predetermined” is Unsupported
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`In the same paragraph in its responsive brief, Amazon argues (a) that “Dr. Houh does
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`not opine that
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`because he rather opines that
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` Opp. 12. It is unclear how (a) and (b) are different things or can
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`be squared with each other, as Amazon is admitting
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`F.
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`Houh’s “Expected Profit” Requirement for the Claims of the ’139 Patent
`Excludes Embodiments Disclosed in the Specification
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`Amazon asserts Houh does “impose this limitation on the claims.” Id. 12-13. But he
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`states in his report:
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` AN Ex. 1 ¶51; see Mot. 12-13. Amazon
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`argues such statements are not in
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`Opp. 13. Where these opinions appear, and why he gives them, are of no event⎯what matters is
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`they are rooted in a construction that excludes embodiments in the specification. Mot. 12-13.
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`G.
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`Houh’s Requirement that the “third party server computer” of ’139 Patent
`Claim 37 Must Be the Same for “each of a multitude of electronic visitors”
`Is Inconsistent with the Intrinsic Record
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`In an apparent attempt to avoid Houh’s unsupported construction, Amazon does not
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`respond at all on this point, but rather addresses unrelated issues. Compare id. 13-14 with Opp.
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`13-14. While Amazon conclusorily asserts nothing “show[s] that
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` Amazon does not dispute that
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` Mot. 13-14. Confoundingly, Amazon does not address
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`AlmondNet’s assertions, instead opting to provide discussion of irrelevant matters. Opp. 13-14.
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`IV.
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`IF AMAZON DOES NOT AGREE THE PARTIES WILL NOT PRESENT
`ARGUMENT, TESTIMONY, AND EVIDENCE ABOUT THE PREAMBLES AT
`TRIAL, THE COURT SHOULD STRIKE HOUH’S PREAMBLE OPINIONS
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`AlmondNet has proposed the following stipulation to Amazon: “No argument,
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`testimony, or evidence [from either side] concerning whether or not the Accused Products or the
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`prior art meet the limitations of the preambles of the asserted claims.” If Amazon will not agree
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`to this stipulation, the Court should strike Houh’s opinions concerning the preambles of the
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`asserted claims for the reasons detailed in AlmondNet’s opening brief. See Mot. 14-15.
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`V.
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`THE COURT SHOULD STRIKE HOUH’S OPINIONS THAT RELY ON
`CORPORATE ENTITY
`INFORMATION THAT AMAZON DID NOT
`DISCLOSE DURING FACT DISCOVERY
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`As an initial matter, Amazon is incorrect that “AlmondNet … seeks to exclude Dr.
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`Houh’s opinions while it presents its own expert opinions on the same [corporate entities]
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`topic.” Opp. 15. AlmondNet only retroactively seeks leave to serve a supplemental expert report
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`on this topic in the event the Court denies its motion to strike. See Mot. 15-18.
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`The Court should grant AlmondNet’s motion to strike because Amazon does not show,
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`as it must, that its failure to disclose the entity information during discovery “was substantially
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`justified or is harmless.” See Fed. R. Civ. P. 37(c). Amazon’s claim that AlmondNet’s
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`deposition topic asking for
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`(AN Ex. 10, Ex. A 5) “did not give fair notice” (Opp. 15-16) makes no sense. But in any event,
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`AlmondNet did not move to compel on this topic as it was unaware until it received Houh’s
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`report that it was germane to any issue in the case. See id. 16. And contrary to Amazon’s
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`allegations, AlmondNet did not shift its theories between its infringement contentions and its
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`expert report or “add new accused instrumentalities during expert discovery.” See id. 16-17.
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`Rather, as exemplified in the portion cited by Amazon, in its infringement contentions,
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`AlmondNet merely provided a non-exhaustive example of a webpage that visitor could visit, as
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`indicated by the “For example” and “e.g.,” language preceding “
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`,” and in no way
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`limited its infringement theories to activity on
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`. See AMZ Ex. 9 4, 31, 65, 99.
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`Amazon’s attempt to manufacture an excuse for its late disclosure should be rejected.
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`In the alternative, the Court should grant AlmondNet’s motion for leave to serve a
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`supplemental expert report, particularly where Amazon does not oppose this relief. Opp. 15. As
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`Amazon recognizes, AlmondNet promptly provided Amazon with its supplement in a way that
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`did not prejudice Amazon, and did not and will not delay this case. Id.
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`VI.
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`THE COURT SHOULD EXCLUDE OR STRIKE HOUH’S
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` OPINIONS
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`A.
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`The Court Should Exclude Under Daubert Houh’s Opinions that
` Within the Meaning of the ’139 Patent Claims
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`
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`As Amazon fails to even mention this issue in its responsive brief (id. 17-19), this Court
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`has the discretion to grant this portion of the motion as unopposed (CV-7(e)(2)). And the Court
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`should exclude these opinions for the reasons in AlmondNet’s opening brief. Mot. 18-20.
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`B.
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`The Court Should Also Exclude or Strike Dr. Houh’s Opinions that
`Within the Meaning of the ’639 Patent Clams
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`Houh does not offer adequate explanation for why
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`particularly not in his expert report as required by Rule 26. Id. 19-20. Amazon merely parrots
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`back his conclusory opinions that do not explain why he believes this to be the case, and which
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`also do not rely on any supporting evidence. Opp. 17-19. Amazon attempts to excuse its failure
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`to disclose this
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` during discovery by again alleging that AlmondNet shifted its
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`infringement theories between its infringement contentions and expert reports. Id. 18-19. But as
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`explained above, in its contentions, AlmondNet in no way limited its infringement theories to
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`activity on
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` as opposed to, for example,
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`AMZ Ex. 9 4, 31, 65, 99. The Court should exclude under Daubert this
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`. See
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`lacking any reasoned explanation and strike it based on Amazon’s failure to disclose it during
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`discovery. To the extent that the Court does neither, it should grant AlmondNet’s unopposed
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`(Opp. 19) motion for retroactive leave to serve a supplement expert report on this point.
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`Case 6:21-cv-00898-ADA Document 205 Filed 09/21/23 Page 15 of 16
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`Date: September 15, 2023
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`Respectfully submitted,
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`By: /s/ Amy E. Hayden
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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 205 Filed 09/21/23 Page 16 of 16
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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 September 15, 2023, all counsel of record who have appeared in this case are being
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`served with a copy of the foregoing via email.
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`/s/ Amy E. Hayden
`Amy E. Hayden
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