Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ALMONDNET, INC.,
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`Plaintiff,
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`v.
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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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`Civil Action No. 6:21-cv-00898-ADA-DTG
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`JURY TRIAL DEMANDED
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`PUBLIC VERSION
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`AMAZON’S REPLY IN SUPPORT OF ITS MOTION FOR SUMMARY
`JUDGMENT OF NO WILLFUL INFRINGEMENT (DKT. 133)
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 2 of 15
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`INTRODUCTION .............................................................................................................. 1
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`ARGUMENT .......................................................................................................................3
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`A.
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`B.
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`AlmondNet’s Willfulness Evidence Cannot Meet the Controlling
`Threshold Requiring a Deliberate or Intentional State of Mind ..............................3
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`Amazon Does Not Conflate Willfulness and Enhanced Damages, and
`Their Distinction as Legal Issues is beside the Point on this Motion ......................7
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`III.
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`CONCLUSION ....................................................................................................................9
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`i
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 3 of 15
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
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`Arctic Cat Inc. v. Bombardier Rec. Prods.,
`876 F.3d 1350 (Fed. Cir. 2017)..................................................................................................7
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`BASF Plant Sci., LP v. Commonwealth Sci. & Indus. Rsch. Org.,
`28 F.4th 1247 (Fed. Cir. 2022) ..................................................................................................6
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`Bayer HealthCare LLC v. Baxalta Inc.,
`989 F.3d 964 (Fed. Cir. 2021)................................................................................................6, 7
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`Halo Elecs., Inc. v Pulse Elecs., Inc.,
`579 U.S. 93 (2016) .........................................................................................................1, 3, 4, 6
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`Ironburg Inventions Ltd. v Valve Corp.,
`64 F.4th 1274 (2023)..............................................................................................................3, 7
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`Kolcraft Enterprises, Inc. v. Chicco USA, Inc.,
`2018 WL 3329706 (N.D. Ill. July 6, 2018) ................................................................................7
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`Pinn, Inc. v. Apple Inc.,
`2020 WL 7315459 (C.D. Cal. Nov. 24, 2020) ...........................................................................7
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`SRI Int'l, Inc. v. Cisco Sys.,
`14 F.4th 1323 (Fed. Cir. 2021) ..............................................................................................3, 6
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`Washburn v. Harvey,
`504 F.3d 505 (5th Cir. 2007) .................................................................................................2, 5
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`STATUTES AND RULES
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`35 U.S.C. § 284 ........................................................................................................................2, 8, 9
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`35 U.S.C. § 298 ............................................................................................................................4, 5
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`Fed. R. Civ. P. 8 ...............................................................................................................................8
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`Fed. R. Civ. P. 26 .....................................................................................................................1, 2, 8
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`Fed. R. Civ. P. 37 .............................................................................................................................2
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`Fed. R. Civ. P. 37(c)(1) ....................................................................................................................2
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`ii
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 4 of 15
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`I.
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`INTRODUCTION
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`AlmondNet’s opposition only confirms summary judgment is ripe and warranted. In it,
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`AlmondNet acknowledges the same limited universe of evidence Amazon identified in its moving
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`brief, consisting merely of AlmondNet’s notice letters, two non-substantive emails, the parties not
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`having a follow-up call to discuss the matter, and minimal deposition testimony from an Amazon
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`witness
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`. So now, at this close of briefing, these facts are and remain undisputed. It also remains
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`indisputable—rationally, reasonably, legally—that these facts sum to evidence showing nothing
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`more than notice, which is insufficient as a matter of law to support finding willful infringement.
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`To be sure, AlmondNet did not in its opposition, just as it cannot at trial, point to any other
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`argument or evidence that could suffice to show Amazon’s corporate state of mind “at the time of
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`the challenged conduct” was to deliberately or intentionally infringe—the evidentiary standard
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`clarified by the Supreme Court in Halo Elecs., Inc. v Pulse Elecs., Inc., 579 U.S. 93 (2016).
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`AlmondNet’s own extensive citation to Halo and its Federal Circuit progeny make clear
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`that mere notice is never enough, but must be coupled with, at a minimum, evidence of a specific
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`intent to infringe. Absent some such evidence, like the record in this case, AlmondNet simply
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`cannot meet its burden of production, much less persuasion, at trial. It follows, and AlmondNet’s
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`opposition confirms, that at the close of its case-in-chief, the sum total of evidence that AlmondNet
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`may offer to support its willfulness case comprises no fact that is either disputed or legally material.
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`That is, no reasonable juror could find willful infringement on the evidentiary record AlmondNet
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`gave Amazon Rule 26 notice of in this case. Summary judgment is therefore ripe and appropriate,
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`and the Court Should grant it.
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`In its brief, AlmondNet unsurprisingly and improperly attempts to fill the insufficient
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`evidentiary gaps in its willfulness case. In so doing, it essentially requests the Court to assume
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`facts not present in the discovery record to manufacture an eleventh-hour issue of fact—ostensibly,
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`whether an adverse inference might be drawn—and to present new theories of willfulness
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`AlmondNet did not previously disclose. In short, these new items appearing in AlmondNet’s
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`opposition brief are that (1)
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` and (2) the
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` and thus, according to AlmondNet, such statement permits the
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`presumptuous conclusion that
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`. Leaving
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`aside that these new theories of willful infringement are non-sequiturs on their face—or, at very
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`best, require the assumption of many additional facts to so much as suggest causation, Rules 26
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`and 37 preclude AlmondNet from disclosing them for the first time in a summary judgment
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`opposition brief and at trial. Moreover, Fifth Circuit precedent precludes assuming facts to create
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`disputes on summary judgement. See Washburn v. Harvey, 504 F.3d 505, 511 (5th Cir. 2007)
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`(affirming summary judgment explaining the court “cannot presume” facts critical to plaintiff’s
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`claims). The Court should accordingly disregard and preclude AlmondNet’s reliance upon the
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`newly identified evidence and theories. (See Dkt. 133 (Mot.) at 5 (citing Rule 37(c)(1) and cases
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`showing courts exclude such belated supplements on summary judgment.) Their untimely notice
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`notwithstanding, like the rest of the already scarce support AlmondNet proffers for willful
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`infringement, these facts are not probative of the material factual question of intent or deliberation.
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`Contrary to AlmondNet’s assertion, Amazon does not conflate the issues of willful
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`infringement and statutorily-permissive “enhanced” damages under Section 284. Indeed, that
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`whole line of (supposed) argument in AlmondNet’s brief is one big distraction, and quite a
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 6 of 15
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`confusing one. Neither party disputes that the pertinent, controlling law is unambiguous:
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`“[w]illfulness and enhancement are separate issues.” Ironburg Inventions Ltd. v Valve Corp., 64
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`F.4th 1274, 1295 (2023) (citing Halo, 579 U.S. at 106). That legal distinction is meaningful
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`context underscoring Amazon’s entitlement to summary judgment, and it has zero salvaging
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`import for AlmondNet. The simple and only question for resolution here is whether the very few
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`facts AlmondNet disclosed it intends to prove at trial—if credited and drawing all inferences in
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`AlmondNet’s favor—can suffice, legally, for a reasonable jury to find willful infringement. The
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`answer remains it cannot. Nothing AlmondNet argued, cited, or otherwise presented in its
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`opposition changes that.
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`II.
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`ARGUMENT
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`A.
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`AlmondNet’s Willfulness Evidence Cannot Meet the Controlling Threshold
`Requiring a Deliberate or Intentional State of Mind.
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`There is no dispute for the jury as to the ultimate, material question of fact pertinent here:
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`whether AlmondNet’s willfulness evidence meets the evidentiary threshold for showing specific
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`intent—that is, sufficiently showing “deliberate or intentional infringement.” SRI Int'l, Inc. v.
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`Cisco Sys., 14 F.4th 1323, 1330 (Fed. Cir. 2021). At the close of briefing here, AlmondNet’s
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`universe of evidence is clear, and confirmed as effectively negligible. AlmondNet recites the same
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`evidence Amazon identified in its opening brief for its willfulness allegations: the notice letters
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`and the parties’ two emails. (Compare Mot. at 1-2, with Dkt. 158 (Opp.) at 3-5.) This is the only
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`evidence
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`. (Mot. at 2.)
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`Even in the aggregate, and even when viewed in a light most reasonable to AlmondNet, no
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`reasonable jury could find it amounts to anything more than mere pre-suit notice of the asserted
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`patents and accusations of their infringement. Stated differently: no reasonable juror could
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 7 of 15
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`conclude the evidence shows, or even could permit an inference that, on that notice, Amazon
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`deliberately or intentionally infringed the patents.
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`The notice letters and email exchanges,
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` still only evidence notice. They do not show, as a matter of common sense,
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`and cannot show, as a matter of law, intent or deliberation. That is the standard, and it is a sensible
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`one. If the standard called for anything less, an accused infringer could never obtain summary
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`judgment on these facts, i.e., where evidence is indisputably limited to mere notice,
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`. Such a minimal burden would, in the absence of evidence of any
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`further conduct, effectively impose a legal obligation to respond substantively to any and every
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`infringement accusation received, whereby failing to do so waives the right to obtain summary
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`judgement in any downstream litigation. Such obligation would be quite unreasonable for many
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`companies frequently targeted with infringement accusations like Amazon. It also does not square
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`with the prejudice-safeguarding policy underlying statutes explicitly directed to willfulness. See
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`e.g., 35 U.S.C. § 298; see also Halo at 108-09; id. at 111-12 (concurring).
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`AlmondNet cannot salvage its willful infringement claim, and in no case should it be
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`permitted to even go about trying to, at least not as it does here. AlmondNet improperly doubles
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`its opposition brief as a vehicle to supplement deficient discovery responses and remedy its failure
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`to notify Amazon of all its alleged bases and support for willfulness. For the very first time in this
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`case, AlmondNet now discloses in its opposition brief additional evidence and theories it intends
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`to advance at trial: (1)
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`; and (2)
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`. (Opp. at 4-5.) The Court must disregard these new theories and enter
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`judgement on the limited facts AlmondNet timely disclosed. (See Mot. at 5.) Indeed,
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`AlmondNet’s opposition does not dispute that such preclusion is improper or unnecessitated here.
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 8 of 15
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`In any event, AlmondNet’s newly-disclosed theories do not raise triable issues of fact
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`because AlmondNet presumes inferences from facts not in the record, and also mischaracterizes
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`facts in the record to arrive at those presumptions. Something AlmondNet cannot do. See
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`Washburn, 504 F.3d at 511. AlmondNet presumes
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`false. What the witness earnestly said was no more than
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` (Opp. at 3, 4.) That is
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` (Dkt. 158-4 at 25:22-26:5.) Notably, AlmondNet posed no additional questions to
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`Mr. Hayden on this topic.
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`. AlmondNet cannot avoid
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`summary judgment on this assumption. Moreover, AlmondNet cannot use its flawed presumption
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`to show that
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`.
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`Amazon, moreover, did not then, and does not still, have any legal obligation to
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`, and AlmondNet cited no authority precluding summary judgment on
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`willfulness for an accused infringer who did not undertake such effort. Imposing, or even tacitly
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`imputing, such an obligation would be both non-sensical and highly prejudicial in this motion
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`posture; in essence, it would allow the patent owner to assume infringement in order to demonstrate
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`it might be able to prove willful infringement. It rationally follows that the Court should not
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`seriously entertain AlmondNet’s suggestion that Amazon’s discovery response
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 9 of 15
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` (Dkt. 158-5 at 17) presents an issue of fact necessary to resolve willfulness.
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`Bayer remains controlling, on-point, binding Federal Circuit precedent. AlmondNet’s
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`opposition to the contrary is unavailing. AlmondNet agrees willfulness requires “deliberate or
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`intentional infringement.” (Opp. at 1.) Yet AlmondNet refuses to recognize the pertinent holding
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`in Bayer—knowledge of a patent, plus no evidence other than redesigning a product, post-notice,
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`to a design that later becomes accused of infringement, is insufficient to prove deliberation or intent
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`as a matter of law. Bayer HealthCare LLC v. Baxalta Inc., 989 F.3d 964, 987 (Fed. Cir. 2021)
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`(“[k]nowledge of the asserted patent and evidence of infringement is necessary, but not sufficient,
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`for a finding of willfulness.”). The Federal Circuit’s decision in SRI did not “abrogate” Bayer’s
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`holding as AlmondNet proclaims. SRI merely clarified the respective standards applied to the
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`willfulness and enhancement inquiries. See SRI Int'l, Inc. v. Cisco Sys., 14 F.4th 1323, 1329-30
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`(Fed. Cir. 2021). Indeed, it is decidedly the case that Bayer’s holding remains controlling Federal
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`Circuit precedent, irrespective of and unaffected by the court’s decision in SRI. See BASF Plant
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`Sci., LP v. Commonwealth Sci. & Indus. Rsch. Org., 28 F.4th 1247, 1274-75 (Fed. Cir. 2022)
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`(holding mere evidence of awareness and keeping track of ultimately asserted patents is
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`insufficient to prove willfulness (citing Bayer, 989 F.3d at 987-88, post SRI)).
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`AlmondNet’s cited cases, insofar as any are in fact binding or analogous, and faithfully
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`read, stand for nothing different than the holding in Bayer. Those decisions only support summary
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`judgment when their facts are fairly contrasted. More specifically, common to the facts in those
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`cases was evidence that is critically absent in Bayer and AlmondNet’s evidence here: some
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`evidence beyond mere knowledge of the patent and infringement allegations, at the relevant time
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`“of the challenged conduct” (Halo, 579 U.S. at 105), of an affirmative act reasonably consistent
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 10 of 15
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`with deliberate or intentional infringement. See, e.g., Ironburg Inventions Ltd., 64 F.4th at 1283,
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`1296, 1300 (defendant’s general counsel engaged in several calls with plaintiff and admitted he
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`never provided the patents to the company’s engineers for them to investigate a design around);
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`Arctic Cat Inc. v. Bombardier Rec. Prods., 876 F.3d 1350, 1371 (Fed. Cir. 2017) (infringer
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`conducted only a cursory review and unsuccessfully tried to buy the patents through a third party).1
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`No evidence of knowledge or awareness plus any of the foregoing affirmative conduct is
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`present in the record in this case. AlmondNet and Amazon did not have several calls with each
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`other. AlmondNet shows no evidence that Amazon’s general counsel did not provide the patents
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`to Amazon’s engineers for a design around. AlmondNet cannot show Amazon conducted only a
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`cursory review, or no review, of the patents. And Amazon did not try to buy or license the patents.
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`Without any compounding evidence of this sort, AlmondNet cannot establish Amazon had any
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`specific intent to infringe. The Court should accordingly grant summary judgment against
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`AlmondNet’s willfulness claim.
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`B.
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`Amazon Does Not Conflate Willfulness and Enhanced Damages, and Their
`Distinction as Legal Issues is beside the Point on this Motion.
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`It is AlmondNet that confuses the enhancement inquiry with the willfulness inquiry;
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`Amazon hardly “conflates” the two. Amazon understands well and never disputed that willfulness
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`1 The two other cases AlmondNet string cites to pre-date Bayer and are thus not applicable.:
`Kolcraft Enterprises, Inc. v. Chicco USA, Inc., 2018 WL 3329706, at *5 (N.D. Ill. July 6, 2018);
`Pinn, Inc. v. Apple Inc., 2020 WL 7315459, at *3 (C.D. Cal. Nov. 24, 2020) (noting at that time a
`split in how to address the sufficiency of pre-suit notice for willfulness, and stating the Central
`District of California in some cases “joins the majority of district courts in the Ninth Circuit in
`finding that allegations of knowledge alone are not sufficient to state a claim for willful
`infringement.”). AlmondNet is also wrong that Amazon’s independent development “cannot help
`it avoid a willfulness finding.” (Opp. 6-7.) For example, AlmondNet’s reliance on Pinn is
`misplaced. There, Pinn notified Apple of his patents “before Apple released its first AirPods
`products.” Pinn, Inc., 2020 WL 7315459, at *2. Here, Amazon’s challenged conduct started long
`before AlmondNet provided Amazon with pre-suit notice. (Mot. at 2-3.) And AlmondNet does
`not dispute Amazon independently developed the products before notice of AlmondNet’s patents.
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`is an issue for the jury, and the question of enhanced damages under Section 284 is one reserved
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`exclusively for the Court’s analysis and discretion. AlmondNet’s rambling arguments concerning
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`Section 284 enhancement are confusing and largely off-topic. But the takeaway appears to be that
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`AlmondNet believes the legal issue of enhancement consists of factual inquiries are determined
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`by the jury in addition to those reserved for willfulness, and the product of that alleged overlap
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`must include some disputed fact precluding summary judgement. To the extent Amazon
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`understands AlmondNet’s argument, that is not so, and it certainly is not so in this case.
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`At the outset, it is in any event all beside the point. AlmondNet is barred from obtaining
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`enhanced damages under Section 284 because it never pled a demand for that relief nor developed
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`its enhancement case. (Dkt. 171 (Amazon’s Motions in Limine) at 8 (citing Fed. R. Civ. P. 8; Am.
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`Comp. (Dkt. 68 at 18); see Mot. at 2 (citing AlmondNet’s interrogatory responses).)
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`Even assuming AlmondNet did not waive its right to increased damages under Section 284,
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`it still does not follow that AlmondNet’s alleged “disputed material issues” are questions for the
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`jury creating triable issues of facts. (See Opp. at 7 (emphasis added) (citing the Read factors).) To
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`the contrary, the differing evidentiary standards and factual inquiries anchored to willfulness, a
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`question for the jury whether Amazon intentionally or deliberately infringed, and enhancement, a
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`question solely for the Court who may use the Read factors to help determine whether conduct is
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`egregious, respectively informed Amazon’s discussion of Section 284’s enhancement in its
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`moving brief in the first place. A point which AlmondNet misses entirely.
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`The issue is quite simple and has more to do with notice under Rule 26 than it does
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`enhancement under Section 284. Deliberate or intentional conduct (willfulness standard) may not
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`rise to the level of egregiousness (enhancement standard), while the opposite is often, though not
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`necessarily always true. In instances where it is true—that evidence of egregious, enhancement-
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 12 of 15
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`level conduct offered to prove willfulness under the lesser, deliberate/intentional threshold—just
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`as in any trial of any patent infringement action, the accused infringer has the right to discover all
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`evidence the patent owner intends to use to prove willfulness. If some of that same evidence is
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`evidence that the Court might also consider in deciding whether to enhance damages downstream,
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`it is no less discoverable simply because that is a possibility post-trial, only if and after a judgment
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`of infringement, and after any jury awards damages for that infringement.
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`All Amazon intended to demonstrate in its moving brief is that there exists no disputed
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`facts precluding summary judgement because (a) it discovered the evidence AlmondNet will offer
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`to prove willfulness, and (b) to the extent there is any further evidence that may show
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`egregiousness,
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`. That’s all there is to the Section 284 issue. The dispute raised
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`by AlmondNet is accordingly a red herring. On the facts of this case, it has no bearing on and
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`should not preclude a grant of summary judgment as to AlmondNet’s willfulness claim.
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`III. CONCLUSION
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`The Court should hold AlmondNet accountable for its failure to disclose and sufficiently
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`support its claims. Summary judgment is proper because AlmondNet’s notice evidence is not
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`sufficient to show Amazon had a specific intent to infringe. Accordingly, AlmondNet cannot
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`present its willfulness claim to the jury and the Court should enter summary judgment.
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 13 of 15
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`Dated: September 15, 2023
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`Of Counsel:
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`Deron R. Dacus (TX Bar #00790553)
`ddacus@dacusfirm.com
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel: (903) 705-1117
`Fax: (903) 581-2543
`
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`Respectfully submitted,
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`
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`By: /s/ Eric A. Menist
`
`J. David Hadden (CA Bar No. 176148)
`Email: dhadden@fenwick.com
`Saina S. Shamilov (CA Bar No. 215636)
`Email: sshamilov@fenwick.com
`Ravi R. Ranganath (CA Bar No. 272981)
`Email: rranganath@fenwick.com
`Johnson K. Kuncheria (TX Bar No. 24070092)
`Email: jkuncheria@fenwick.com
`Johnathan L. Chai (CA Bar No. 339315)
`Email: jchai@fenwick.com
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`Tel: (650) 988-8500
`Fax: (650) 938-5200
`
`Todd R. Gregorian (CA Bar No. 236096)
`Email: tgregorian@fenwick.com
`Eric B. Young, (CA Bar No. 318754)
`Email: eyoung@fenwick.com
`Dargaye Churnet (Admitted Pro Hac Vice)
`Email: dchurnet@fenwick.com
`Christopher L. Larson (CA Bar No. 308247)
`Email: clarson@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Tel: (415) 875-2300
`
`Jeffrey A. Ware (WA Bar No. 43779)
`Email: jware@fenwick.com
`FENWICK & WEST LLP
`401 Union Street, 5th Floor
`Seattle, WA 98101
`Tel: (206) 389-4510
`
`James S. Trainor (Admitted Pro Hac Vice)
`Email: jtrainor@fenwick.com
`Jessica Lin (NY Bar No. 5035860)
`Email: jessica.lin@fenwick.com
`Eric Menist (NY Bar No. 5721568)
`Email: emenist@fenwick.com
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 14 of 15
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`FENWICK & WEST LLP
`902 Broadway, 18th Floor
`New York, NY 10010
`Tel: (212) 921-2001
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`Counsel for Defendants
`AMAZON.COM, INC., AMAZON.COM SERVICES
`LLC, and AMAZON WEB SERVICES, INC.
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`Case 6:21-cv-00898-ADA Document 207 Filed 09/21/23 Page 15 of 15
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically in
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`compliance with Local Rule CV-5(a). All other counsel of record not deemed to have consented
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`to electronic service were served with a true and correct copy of the foregoing by first class mail.
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`Additionally, this document and the attachments thereto were served via email on all counsel of
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`record.
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` /s/ Eric A. Menist
`Eric A. Menist
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