Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 1 of 18
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`ALMONDNET, INC.,
`
`Plaintiff,
`
`v.
`
`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and AMAZON WEB
`SERVICES, INC.,
`
`Defendants.
`
`Civil Action No. 6:21-cv-00898-ADA-DTG
`
`JURY TRIAL DEMANDED
`
`PUBLIC VERSION
`
`AMAZON’S REPLY IN SUPPORT OF MOTION TO EXCLUDE THE UNRELIABLE
`TESTIMONY OF ALMONDNET’S DAMAGES EXPERT JIM W. BERGMAN
`
`

`

`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 2 of 18
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`TABLE OF CONTENTS
`
`Page
`
`I.
`
`MR. BERGMAN’S INCREMENTAL BENEFIT ANALYSIS IS
`UNRELIABLE AND CONTRARY TO LAW ...................................................................2
`
`A.
`
`B.
`
`Mr. Bergman’s “next best alternative” methodology is not supported
`by Federal Circuit law ..............................................................................................2
`
`Mr. Bergman’s purported “apportionment” of Amazon’s Offsite
`Revenue does not reflect the incremental value of the patented
`technology ................................................................................................................6
`
`II.
`
`ALMONDNET IDENTIFIES NO RELIABLE EVIDENCE SUPPORTING
`MR. BERGMAN’S ARBITRARY BARGAINING SPLIT ................................................8
`
`III.
`
`CONCLUSION ..................................................................................................................10
`
`
`
`
`i
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 3 of 18
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012)................................................................................................10
`
`Alice Corp. Pty. v. CLS Bank Int'l,
`573 U.S. 208 (2014) ...................................................................................................................6
`
`Apple Inc. v. Motorola, Inc.,
`757 F.3d 1286 (Fed. Cir. 2014)..................................................................................................5
`
`Apple Inc. v. Samsung Elecs. Co., 786 F.3d 983 (Fed. Cir. 2015),
`rev'd and remanded, 580 U.S. 53, 137 S. Ct. 429, 196 L. Ed. 2d 363 (2016) ...........................3
`
`Aqua Shield v. Inter Pool Cover Team,
`774 F.3d 766 (Fed. Cir. 2014)................................................................................................3, 4
`
`AstraZeneca AB v. Apotex Corp.,
`782 F.3d 1324 (Fed. Cir. 2015)..................................................................................................3
`
`Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd.,
`807 F.3d 1283 (Fed. Cir. 2015)..................................................................................................5
`
`Droplets, Inc. v. Yahoo! II,
`No. 12-cv-03733-JST, 2021 WL 9038355 (N.D. Cal. Aug. 9, 2021) ........................................9
`
`Droplets, Inc. v. Yahoo! Inc. I,
`No. 12-cv-03733-JST, 2021 WL 9038509 (N.D. Cal. Apr. 27, 2021) ......................................3
`
`Ericsson v. D-Link,
`773 F.3d 1201 (Fed. Cir. 2014)..............................................................................................2, 4
`
`Exmark Mfg. Co. Inc. v. Briggs & Stratton Power Prod. Grp., LLC,
`879 F.3d 1332 (Fed. Cir. 2018)..............................................................................................2, 4
`
`Finjan, Inc. v. Blue Coat Sys., Inc.,
`879 F.3d 1299 (Fed. Cir. 2018)..............................................................................................6, 7
`
`Garretson v. Clark,
`111 U.S. 120 (1884) ...............................................................................................................1, 4
`
`Grain Processing Corp. v. Am. Maize-Prod. Co.,
`185 F.3d 1341 (Fed. Cir. 1999)..................................................................................................3
`
`ii
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 4 of 18
`
`TABLE OF AUTHORITIES
`(Continued)
`
`Page(s)
`
`LaserDynamics, Inc. v. Quanta Computer, Inc.,
`694 F.3d 51 (Fed. Cir. 2012)......................................................................................................2
`
`Mentor Graphics Corp. v. EVE-USA, Inc.,
`870 F.3d 1298 (Fed. Cir. 2017)..............................................................................................2, 3
`
`Presidio Components, Inc. v. Am. Tech. Ceramics Corp.,
`875 F.3d 1369 (Fed. Cir. 2017)..................................................................................................3
`
`Prism Techs. LLC v. Sprint Spectrum L.P.,
`849 F.3d 1360 (Fed. Cir. 2017)..................................................................................................5
`
`Skyhook Wireless, Inc. v. Google, Inc.,
`No. CV 10-11571-RWZ, 2015 WL 13620764 (D. Mass. Feb. 18, 2015) .................................8
`
`
`STATUTES AND RULES
`
`Federal Rule of Evidence 702 ..........................................................................................................1
`
`
`
`
`
`
`iii
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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 5 of 18
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`TABLE OF DOCKET CITES
`
`
`Docket No. Description
`
`126
`
`128-3
`
`128-4
`
`128-12
`
`162
`
`162-4
`
`Amazon’s Motion to Exclude the Unreliable Testimony of AlmondNet’s
`Damages Expert Jim W. Bergman, filed August 23, 2023 (Mot.)
`Expert Report of Jim W. Bergman regarding damages, served June 16, 2023
`(Bergman Rep.)
`Excerpts from the deposition transcript of Jim W. Bergman regarding
`damages, taken August 9, 2023 (Bergman Dep.)
`Excerpts from Plaintiff’s Fourth Supplemental Objections and Responses to
`Defendants’ First Set of Interrogatories (Nos. 1 and 9), served April 11, 2023
`(AlmondNet 4th Supp. Rog Responses)
`Opposition to Motion to Exclude the “Unreliable” Testimony of
`AlmondNet’s Damages Expert Jim W. Bergman, filed September 7, 2023
`(Opp.)
`Excerpts from the Expert Report of Dr. Eric Koskinen Regarding
`Infringement, served June 16, 2023 (Koskinen Rep.)
`
`
`
`
`
`iv
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 6 of 18
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`AlmondNet’s response brief confirms that the Court should exclude Mr. Bergman’s
`
`testimony under FRE 702 and Daubert. AlmondNet attempts to justify Mr. Bergman’s opinion
`
`that subject to a
`
` “bargaining split,” it is entitled to recovery of all Amazon’s net revenue
`
`associated with off-site advertising using first-party targeting data—that is all revenue Amazon
`
`receives after paying the off-site publisher but before deducting Amazon’s own expenses. But
`
`AlmondNet’s argument that a purported “next best alternative” methodology authorizes Bergman
`
`to skip apportionment of conventional elements and Amazon’s own sophisticated unclaimed
`
`features—including its rich data set and advanced AI technology—is incorrect. First,
`
`apportionment of non-patented and conventional features has been black letter law for more than
`
`a century. See Garretson v. Clark, 111 U.S. 120, 121 (1884). Second, AlmondNet’s case law it
`
`relies on for the “next best alternative” do not use that term, and in those cases, experts considered
`
`the accused features compared to using actual non-infringing alternatives. By contrast, Mr.
`
`Bergman compares Amazon’s purported infringing revenues with zero revenues—i.e., abandoning
`
`this service entirely. That is not a viable non-infringing alternative, and Mr. Bergman’s exception
`
`swallows bedrock apportionment law. AlmondNet’s argument that Mr. Bergman sufficiently
`
`“apportioned” by whittling Amazon’s entire off-site advertising revenues to just first-party
`
`targeting fees and employing a “bargaining split” is also incorrect. Those revenues still include
`
`Amazon’s and others’ unpatented contributions, and Mr. Bergman’s “bargaining split” opinion of
`
`his asserted “incremental benefit” does not mention apportionment. Finally, AlmondNet’s
`
`assertion that its bargaining split is properly tied to the facts of this case carries no weight when
`
`Mr. Bergman’s analysis provides no supported rationale for applying the
`
`
`
`
`
`to the accused Amazon technology.
`
`1
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 7 of 18
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`I.
`
`MR. BERGMAN’S INCREMENTAL BENEFIT ANALYSIS IS UNRELIABLE
`AND CONTRARY TO LAW
`
`A reasonable royalty “must be based on the incremental value that the patented invention
`
`adds to the end product.” Ericsson v. D-Link, 773 F.3d 1201, 1226 (Fed. Cir. 2014) (emphasis
`
`added). Mr. Bergman’s analysis fails to adhere to “the governing rule,” that the royalty base and
`
`the royalty rate “must reflect the value attributable to the infringing features of the product, and no
`
`more.” Id. With a multi-component system like Amazon’s accused advertising systems, which
`
`includes patented and unpatented components, “apportionment is required.” Mentor Graphics
`
`Corp. v. EVE-USA, Inc., 870 F.3d 1298, 1299 (Fed. Cir. 2017). However, by failing to perform
`
`any apportionment between patented and unpatented features of Amazon’s accused system and by
`
`taking the entire first-party audience fee as Amazon’s “incremental” benefit from the asserted
`
`patents, Mr. Bergman’s analysis “improperly compensate[s] [AlmondNet] for non-infringing
`
`components” of Amazon’s systems that allegedly provide the infringing functionality.
`
`LaserDynamics, Inc. v. Quanta Computer, Inc., 694 F.3d 51, 67 (Fed. Cir. 2012). Further, where
`
`the claims recite conventional elements, the incremental value of the patented invention also
`
`requires apportioning or separating “between the patented improvement and the conventional
`
`components of the multicomponent product.” Exmark Mfg. Co. Inc. v. Briggs & Stratton Power
`
`Prod. Grp., LLC, 879 F.3d 1332, 1348 (Fed. Cir. 2018). Mr. Bergman’s analysis does not at all
`
`consider, nor mention, apportioning between the asserted patents’ patented improvement and
`
`conventional components. Because Mr. Bergman’s analysis is contrary to these black-letter legal
`
`principles, the Court should exclude his opinions as unreliable.
`
`A. Mr. Bergman’s “next best alternative” methodology is not supported by
`Federal Circuit law
`
`Instead of providing the required apportionment analysis, AlmondNet contends that Mr.
`
`Bergman’s analysis captures the asserted patents’ incremental benefit through a comparison of
`
`2
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 8 of 18
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`profits from Amazon’s use of first party data on third party websites (an allegedly infringing use)
`
`versus Amazon’s profit that would result from “remov[ing] Amazon’s ability to target users on
`
`third-party publisher websites using Amazon’s first party data” (a non-infringing use). (Dkt. 162
`
`(Opp.) at 3 (citing Dkt. 128-3 (Bergman Rep.) ¶ 223).) AlmondNet calls this methodology
`
`“valuing the incremental benefit of the infringing features over the next-best alternative” and
`
`asserts that this method is recognized by the Federal Circuit. (Opp. at 1.) AlmondNet’s assertion
`
`in misleading in two ways. First, the Federal Circuit has not identified or defined a “next-best
`
`alternative” method that captures the incremental benefits or profits of an accused product.1 Nor
`
`do any Federal Circuit cases refer to this method as an appropriate method for apportioning
`
`between patented and unpatented features of an accused product. To the extent that the Federal
`
`Circuit affirms the consideration of non-infringing alternatives in a reasonable royalty analysis, it
`
`is the cost and availability of the non-infringing alternatives that are “variables [which] may affect
`
`the hypothetical forecast.” Aqua Shield v. Inter Pool Cover Team, 774 F.3d 766, 771 (Fed. Cir.
`
`2014), see also Droplets, Inc. v. Yahoo! Inc. I, No. 12-cv-03733-JST, 2021 WL 9038509, at *10
`
`(N.D. Cal. Apr. 27, 2021) (“Non-infringing alternatives are relevant to two factors: first, they help
`
`value the invention, and second, they may limit the infringer's willingness to pay in a hypothetical
`
`negotiation.”) (citing AstraZeneca AB v. Apotex Corp., 782 F.3d 1324, 1334 (Fed. Cir. 2015)).
`
`
`1 Grain Processing Corp. v. Am. Maize-Prod. Co. is one case that describes “comparing the
`patented invention to its next-best available alternative(s)” in order to “discern the market value of
`the patent owner's exclusive right, and therefore his expected profit or reward, had the infringer's
`activities not prevented him from taking full economic advantage of this right.” 185 F.3d 1341,
`1351 (Fed. Cir. 1999). However, recent Federal Circuit cases citing Grain Processing only
`consider “acceptable, non-infringing alternatives” in the context of lost profits analyses, which is
`not at issue in this case. Presidio Components, Inc. v. Am. Tech. Ceramics Corp., 875 F.3d 1369,
`1380 (Fed. Cir. 2017); Mentor Graphics Corp. v. EVE-USA, Inc., 870 F.3d 1298, 1301 (Fed. Cir.
`2017); Apple Inc. v. Samsung Elecs. Co., 786 F.3d 983, 1004 (Fed. Cir. 2015), rev’d and remanded,
`580 U.S. 53, 137 S. Ct. 429, 196 L. Ed. 2d 363 (2016).
`
`3
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 9 of 18
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`However, it is apportionment of value that is “legally attributable to the patented feature” that is
`
`the “starting point” for patent damages analysis, not comparison to non-infringing alternatives.
`
`Ericsson, Inc., 773 F.3d 1201, 1227 (Fed. Cir. 2014).
`
`Second, Mr. Bergman does not actually perform any real comparison between Amazon’s
`
`accused systems with a non-infringing alternative, one that would ascertain the purported patent
`
`benefit “compared to using non-infringing alternatives” and “value enhancements compared to
`
`alternative[s].” (Opp. at 9 (citing Aqua Shield).) Instead, Mr. Bergman only compares the
`
`presence of Amazon’s accused features with their absence:
`
`
`
`
`
` (Bergman Rep. ¶ 223 (emphasis added).) The complete absence
`
`of an accused feature cannot be a valid alternative. In essence, Mr. Bergman broadly declares that
`
`the only non-infringing alternative for Amazon would be to leave the targeted advertising business
`
`altogether, which then improperly captures the entire value of the infringing feature, rather than
`
`the value of the patented improvement. Exmark, 879 F.3d at 1348. In Exmark, while the claims
`
`were directed to an entire mower, the Court explained that the expert must apportion such that the
`
`patentee “is compensated for the patented improvement (i.e., the improved flow control baffle)
`
`rather than the entire mower.” Id. Mr. Bergman’s
`
`
`
`fails to separate the patented improvements as required by the Federal Circuit, and thus
`
`fails to achieve the goals of apportionment. See Ericsson, 773 F.3d at 1233 (“when a patent is for
`
`an improvement, and not for an entirely new machine or contrivance, the patentee must show in
`
`what particulars his improvement has added to the usefulness of the machine or contrivance.”)
`
`(quoting Garretson); Dkt. 128-4 (Bergman Dep.) 93:5-11 (
`
`
`
`
`
`4
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 10 of 18
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` (edited for clarity).
`
`The cases cited by AlmondNet are inapplicable to Mr. Bergman’s theory and fail to support
`
`Mr. Bergman’s conception of a “next-best non-infringing alternative” as an accused feature’s
`
`absence. See Prism Techs. LLC v. Sprint Spectrum L.P., 849 F.3d 1360, 1376 (Fed. Cir. 2017)
`
`(describing defendant’s cost savings from use of patented technology as compared to alternative
`
`of building a private backhaul network); Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 807
`
`F.3d 1283, 1305 (Fed. Cir. 2015) (comparison to non-infringing alternative not required when
`
`parties did not dispute that none existed). Indeed, unlike Mr. Bergman’s analysis, the expert in
`
`Apple v. Motorola considered an actual non-infringing alternative by comparing the accused
`
`gestures described in the asserted claims with a non-infringing Trackpad that included comparable
`
`features. Apple Inc. v. Motorola, Inc., 757 F.3d 1286, 1316 (Fed. Cir. 2014). In contrast, Neither
`
`Mr. Bergman nor Dr. Koskinen perform any type of comparability analysis of the alleged next-
`
`best alternative to the claimed features. Compounding the unreliability of his opinion, Dr.
`
`Koskinen does not – and cannot – reconcile that
`
`
`
`. (Dkt. 162-4 (Koskinen Rep.)
`
`¶ 297.) Allowing Mr. Bergman to testify on this “next-best” yet unacceptable alternative would
`
`fail to accomplish any kind of required apportionment and further confuse the jury.
`
`Moreover, Mr. Bergman’s formulation of the next-best non-infringing alternative, which
`
`ultimately fails to achieve the required apportionment between patented features and unpatented
`
`features and between convention and non-conventional elements, is indicative of AlmondNet’s
`
`impermissibly broad reading of the patent claims. AlmondNet complains that “Amazon has a
`
`much narrower definition of the infringing features and the scope of the patents-in-suit than
`
`AlmondNet.” (Opp. at 10.) It further argues that “Mr. Bergman is entitled to rely on Dr.
`
`5
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 11 of 18
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`Koskinen’s definition of the infringing functionality as ‘the use of Amazon’s first-party data (the
`
`first-party behavioral segments) to sell advertisement services on third-party sites through the use
`
`of targeting advertising.’” (Id.) Yet, if the “next-best alternative” means there is effectively no
`
`alternative to accomplish the patent’s benefits
`
` (Bergman Dep. at
`
`117:2-10), and if there are no comparisons between the value of conventional and unconventional
`
`elements in the asserted claims, AlmondNet’s damages theory is also inconsistent with its position
`
`that the patents are not invalid under Section 101 and further implicates “the pre-emption concern
`
`that undergirds [] § 101 jurisprudence.” Alice Corp. Pty. v. CLS Bank Int'l, 573 U.S. 208, 223
`
`(2014). The Court should thus reject Mr. Bergman’s incremental benefit analysis as unreliable, as
`
`it has no reasonable basis in the law.
`
`B. Mr. Bergman’s purported “apportionment” of Amazon’s Offsite Revenue
`does not reflect the incremental value of the patented technology
`
`Although AlmondNet admits that Mr. Bergman does not explicitly apportion the value of
`
`the accused system between patented and unpatented elements, AlmondNet nevertheless maintains
`
`that Mr. Bergman’s method accounts for and excludes Amazon’s contributions that are not covered
`
`by the asserted patents, such as
`
`.
`
`(Opp. at 10-11.) From the
`
` kinds of fees that Amazon receives as revenue from ads displayed
`
`on third party websites—
`
`
`
`Amazon’s offsite revenue to
`
`
`
`—AlmondNet claims that Mr. Bergman “apportions”
`
` (Bergman Rep. ¶¶ 255-262; Opp. at 11.) However,
`
`Mr. Bergman’s reduction of Amazon’s total offsite revenue to relevant, infringing revenue is
`
`insufficient. Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1311 (Fed. Cir. 2018) (“Further
`
`apportionment [is] required to reflect the value of the patented technology compared to the value
`
`6
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 12 of 18
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`of the unpatented elements.”) (emphasis added). Mr. Bergman must further apportion and separate
`
`between the value of patented contributions versus non-patented contributions, or contributions
`
`from conventional technology.2 Id. Neither Mr. Bergman nor Dr. Koskinen provide any rationale
`
`or explanation for why “real time bidding and machine learning technology are addressed by
`
`excluding Amazon’s tech fee,” nor why the remaining first party audience fee only captures the
`
`contribution of the patented invention and not Amazon’s contribution. (See Opp. at 11 (citing
`
`Bergman Rep. ¶ 243).) The only evidence that AlmondNet cites in its brief is paragraph 243 of
`
`Mr. Bergman’s report, but there is no analysis whatsoever as to how or why the exclusion of
`
`Amazon’s tech fee removes the contribution of real-time bidding and machine learning
`
`technology:
`
`As it relates to bid requests that are processed by the ADSP Cornerstone bidder,
`
`Amazon,
`
`
`
`.” Per
`
`
`
`
`
`
`Here, Mr. Bergman is merely stating that first party data contributes to the real-time bidding
`
`. (Bergman Rep. ¶ 243 (footnotes omitted).)
`
`process; nothing in this paragraph analyzes any of the fees that Amazon receives, nor which
`
`features of real-time bidding or machine learning are actually and truly captured in any particular
`
`
`2 AlmondNet attempts to distinguish the isolation of Amazon’s first party audience fees from
`the infringing traffic passing through the DRTR’s device in Finjan, stating that because “not all
`traffic passing through that component was infringing,” further apportionment was required of the
`expert in Finjan, but not of Mr. Bergman because all of the first party audience fees cover
`infringing features. (Opp. at 10.) However, that is an incorrect interpretation of the facts in Finjan.
`The Court stated that “as part of the analysis” of the relevant web traffic passing through the DRTR
`device, the DRTR performs an infringing security analysis. That DRTR also performs other kinds
`of non-infringing analysis on the web traffic still means that the web traffic passing through the
`DRTR device is infringing. Id.
`
`7
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`

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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 13 of 18
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`fees. AlmondNet does not even attempt to argue that the contributions from the first party data
`
`itself is apportioned out of the isolation of first party audience fees. Nor could it, since Mr.
`
`Bergman does not attempt actual apportionment. Thus, because Mr. Bergman’s analysis does not
`
`and cannot reflect the incremental value provided by the asserted patents, it must be excluded.
`
`As a last resort, AlmondNet claims that the bargaining split is yet another way to apportion
`
`between the patented and unpatented components and that the bargaining split accounts for the
`
`inherent value of Amazon’s first party data. (Opp. at 11-12.) Yet, Mr. Bergman’s report clearly
`
`separates the analysis of incremental benefit from the analysis of the bargaining split between the
`
`parties. (See Bergman Rep. ¶¶ 418-419 (“
`
`
`
`
`
` (emphasis added)).) Nowhere in the bargaining split analysis does Bergman
`
`use the term “apportion” or identify Amazon’s contributions in the bargaining split, much less
`
`factor them into an economic valuation. (Id. ¶¶ 420-434). As further explained below, Mr.
`
`Bergman’s bargaining split is also unreliable and unsupported.
`
`II.
`
`ALMONDNET IDENTIFIES NO RELIABLE EVIDENCE SUPPORTING MR.
`BERGMAN’S ARBITRARY BARGAINING SPLIT
`
`AlmondNet can identify no reliable evidence or testimony that supports Mr. Bergman’s
`
` bargaining split between AlmondNet and Amazon. Mr. Bergman relies on a handful
`
`of
`
`
`
`
`
`. (Mot. at 8.) However,
`
` is not a party, does not practice
`
`the patents, and Dr. Koskinen provides no opinion explaining the differences and similarities
`
`between the technology in
`
` and Amazon’s technology. (Bergman Rep.
`
`¶¶ 426–433; Bergman Dep. at 166:12–15; 128-12 (AlmondNet 4th Supp. Rog Responses) at 7-8.)
`
`For these reasons alone, the Court should exclude Mr. Bergman’s opinion relying on the
`
`
`
`8
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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 14 of 18
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` for the bargaining split. See, e.g., Skyhook Wireless, Inc. v. Google, Inc., No. CV 10-11571-
`
`RWZ, 2015 WL 13620764, at *3 (D. Mass. Feb. 18, 2015) (excluding expert’s testimony on
`
`licenses for reasonable royalty analysis because the expert could not rely on the technical expert’s
`
`opinion on technical comparability of the licenses).
`
`AlmondNet accuses Amazon of stating that the Federal Circuit has rejected profit splits,
`
`but Amazon’s position, as stated clearly in its opening brief, is that the Federal Circuit prohibits
`
`arbitrary and unsupported profit splits. (Opp. at 12; Mot. at 12.) Far from relying on analysis
`
`that is “properly tied to the facts of a case,” AlmondNet does not at all acknowledge or respond to
`
`the fact that Mr. Bergman relies on his own personal experience reviewing “hundreds of
`
`[unproduced] agreements.” (Mot. at 13.) Moreover, Mr. Bergman’s analysis is exactly like his
`
`excluded opinion on Nordstrom’s profit split in Droplets, Inc. v. Yahoo! II, because there is “no
`
`logical connection” between the
`
`, which involve non-parties to this case and were
`
`, and Amazon’s incremental profits.
`
`No. 12-cv-03733-JST, 2021 WL 9038355, at *7 (N.D. Cal. Aug. 9, 2021). By comparison, Mr.
`
`Bergman’s opinion regarding Yahoo’s profit split was not excluded because he had actually
`
`analyzed data directly relevant to Yahoo!. Id.
`
`AlmondNet attempts to show that the
`
` are technically comparable to the
`
`asserted patents. (Opp. at 14.) But this is largely attorney argument. Mr. Bergman does not
`
`compare the functions covered by the
`
` with any of the claimed limitations, nor is
`
`he qualified to. (See Bergman Rep. ¶¶ 426-434.) Not only does Mr. Bergman fail to show
`
`technical comparability between the
`
` and the asserted patents, but he also fails in
`
`his analysis to explain that
`
` is not a party and that the agreements were executed
`
`
`
`. His
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`9
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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 15 of 18
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`failure to acknowledge these key facts further renders his opinions on the bargaining split
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`unreliable and should thus be excluded. ActiveVideo Networks, Inc. v. Verizon Commc'ns, Inc.,
`
`694 F.3d 1312, 1332 (Fed. Cir. 2012) (district court had a “legitimate reason to exclude” testimony
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`describing licenses post-dating hypothetical negotiation by four years).
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`III. CONCLUSION
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`Mr. Bergman’s failure to apportion between the value contributions of patented and
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`unpatented components in the accused features, his unfounded methodology relying on the “next-
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`best” non-infringing alternative, and his arbitrary and unsupported bargaining split renders his
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`damages opinions unreliable. The Court should strike Mr. Bergman’s opinions in their entirety.
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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 16 of 18
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`Dated: September 15, 2023
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`
`
`
`Of Counsel:
`
`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
`
`
`Respectfully submitted,
`
`
`
`By: /s/ Jessica W. Lin
`
`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
`
`11
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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 17 of 18
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`FENWICK & WEST LLP
`902 Broadway, 18th Floor
`New York, NY 10010
`Tel: (212) 921-2001
`
`Counsel for Defendants
`AMAZON.COM, INC., AMAZON.COM SERVICES
`LLC, and AMAZON WEB SERVICES, INC.
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`12
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`Case 6:21-cv-00898-ADA Document 208 Filed 09/21/23 Page 18 of 18
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`CERTIFICATE OF SERVICE
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`
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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.
`
`
`
` /s/ Jessica W. Lin
` Jessica W. Lin
`
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`13
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