Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 1 of 8
`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 1 of 8
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`EXHIBIT A
`EXHIBIT A
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`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 2 of 8
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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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`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and AMAZON WEB
`SERVICES, INC.,
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`v.
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`Civil Action No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`Defendants.
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`SUR-REPLY IN OPPOSITION TO PLAINTIFF’S
`MOTION TO ENTER FINAL JUDGMENT
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`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 3 of 8
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`Amazon respectfully submits this sur-reply to address MR Techs. GMBH v. Western Digit.
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`Techs., Inc., C.A. No. 8:22-cv-1599, Dkt. 589 (C.D. Cal. Aug. 14, 2024) (“W. Digit. Ord.”), a
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`decision cited by AlmondNet for the first time in reply that issued after Amazon filed its opposition
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`brief.
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`AlmondNet argues that Western Digital shows that Treasury Bill rates are “artificially low”
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`and should be “disfavored” as the benchmark for prejudgment interest. (Reply at 2, 7–8.) But that
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`case does not apply for several reasons:
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`To begin, the amount and nature of prejudgment interest should be awarded based on the
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`specific facts of the case; the Court need not, and should not, defer to a decision of a court applying
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`inapplicable Ninth Circuit law to different facts. See, e.g., VLSI Tech. LLC v. Intel Corp., C.A.
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`No. 6:21-cv-57-ADA, 2022 WL 1477728, at *2 (W.D. Tex. May 10, 2022) (“The rate of
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`prejudgment interest . . . [is] left largely to the discretion of the district court.”). The Western
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`Digital facts differ from this case in important ways.
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`First, in that case, the court awarded prejudgment interest at the prime rate based on its
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`finding that for a full third of the damages period, “virtually all interest rates were at record lows
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`in the early part of the 2020s . . . to counter the massive negative economic effects of the COVID-
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`19 pandemic.” W. Digit. Ord. at 2; (see also Ex. 1 (W. Digit., Dkt. 579-1 (Plaintiff MR
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`Technologies, GmbH’s Application for Prejudgment Interest (“W. Digit. Br.”)) at 1.) Here, in
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`contrast, AlmondNet seeks prejudgment interest going back 12 years, to 2012, when Amazon first
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`launched the accused Demand Side Platform (DSP). (Trial Tr. at 396:25–397:2 (Bergman); id. at
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`749:5–8 (Houh).) The pandemic had no effect on the T-Bill rate for the vast majority of the
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`damages period, including at the (pre-statute of limitations) 2012 hypothetical negotiation date,
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`the 2015 start of the damages period or during the nearly five years that followed, or at any time
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`1
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`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 4 of 8
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`after early 2022.1 The facts here are like those in VLSI, where the Court awarded prejudgment
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`interest at the T-Bill rate for a damages period that encompassed the 2020–2022 pandemic period.
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`VLSI, 2022 WL 1477728, at *2; (Ex. 2 (VLSI, Dkt. No. 715 (Intel Corp.’s Response to Opposition
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`to VLSI Tech. LLC’s Motion for Prejudgment Interest and Postjudgment Interest)) at 1, 9.)
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`Second, in Western Digital the plaintiff had delayed filing suit by only 3.5 years, and
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`moreover offered specific credible justifications for that delay. (See W. Digit. Br. at 2.) Indeed,
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`the patent inventor had contacted the defendant shortly after the earliest of the asserted patents
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`issued, pursued negotiations over the next two years, and filed suit promptly after the second of
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`the asserted patents issued. Id. The court had no trouble finding the plaintiff had neither acted
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`unreasonably nor inflicted undue prejudice on the defendant. (W. Digit. Ord. at 2.) By contrast,
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`AlmondNet delayed filing for nine years without support or credible justification.
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`“The period of delay is measured from the time the plaintiff knew or reasonably should
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`have known of the defendant’s alleged infringing activities to the date of the suit.” A.C. Aukerman
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`Co. v. R.L. Chaides Constr. Co., 960 F.2d 1020, 1032 (Fed. Cir. 1992 (en banc)) (emphasis added);
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`see also Ultimax Cement Mfg. Corp. v. CTS Cement Mfg. Corp., 587 F.3d 1339, 1349 (Fed. Cir.
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`2009).2 Amazon launched its DSP in August 2012. AlmondNet’s infringement allegations were
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`based on information about the operation of DSP that was publicly available as of its 2012 release.
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`(See, e.g., Dkt. No. 1 at Exs. 2, 4, 6, 8, 10, 12, 14, 16, 18, 20.) Moreover, since 2012,
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`. (See Dkt. Nos. 301
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`1 Western Digital is also distinguishable because the entire infringement period in that case fell
`within the six-year statutory period, whereas here AlmondNet is attempting to recover interest on
`a period of three years for which it was barred from seeking damages under 35 U.S.C. § 286.
`2 These cases involve the laches defense, which AlmondNet agrees can “define undue delay
`and prejudice in this [prejudgment interest] context.” (Reply at 3 n.1.)
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`2
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`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 5 of 8
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`(Opp.) at 2–4, 303 (Ware Decl.) ¶¶ 2–4.) In other words, AlmondNet was able to investigate and
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`give notice of any claims against Amazon as of August 2012, and merely elected not to do so as it
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`pursued other litigation targets.3
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`AlmondNet also does not dispute facts related to the prejudice Amazon suffered as a result
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`of this delay. It does not dispute that
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` (See Opp. at 8.) And it concedes that instead of approaching Amazon any time before 2019,
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`it chose to
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`and to then leverage the results against Amazon in its eventual notice letter. (See Opp. at 2–3;
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`Ware Decl. ¶ 2; Dkt. 283-4 (July 24, 2019 letter listing, among others, AlmondNet’s
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`related to delay and prejudice.4
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`For these reasons, and those in Amazon’s opposition, the Court should deny AlmondNet’s
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`).) Western Digital involved no such facts
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`motion for entry of judgment.
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`3 AlmondNet offers no support or explanation for its delay save the insinuation that it did not
`know of Amazon’s purported infringement before 2019. Its apparent claim that it did not know or
`should not reasonably have known given these undisputed facts is not credible.
`4 The facts in this case more closely resemble those in Crystal Semiconductor Corp. v. TriTech
`Microelecs. Int’l, Inc., 246 F.3d 1336, 1361–62 (Fed. Cir. 2001), where the district court declined
`to award prejudgment interest for a two-year period of “self-serving” delay, during which plaintiff
`sent notice “letters to 30 or 40 [other] companies,” but did not notify the defendant of any alleged
`infringement.
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`3
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`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 6 of 8
`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 6 of 8
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`Dated: August 26, 2024
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`Respectfully submitted,
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`Of Counsel:
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`Deron R. Dacus (TX Bar #00790553)
`ddacus@dacusfirm.com
`THE DACUSFIRM,P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel: (903) 705-1117
`Fax: (903) 581-2543
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`By:_/s/ Eric B. Young
`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
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`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
`Brian M. Hoffman (Admitted Pro Hac Vice)
`Email: bhoffman@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Tel: (415) 875-2300
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`Jeffrey A. Ware (WA Bar No. 43779)
`Email: jware@fenwick.com
`FENWICK & WEST LLP
`401 UnionStreet, Sth Floor
`Seattle, WA 98101
`Tel: (206) 389-4510
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`James S. Trainor (Admitted Pro Hac Vice)
`Email: jtramor@fenwick.com
`Kevin X. McGann (Admitted Pro Hac Vice)
`Email: kmcegann@fenwick.com
`Jessica Lin (NY Bar No. 5035860)
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`Case 6:21-cv-00898-ADA Document 313 Filed 08/29/24 Page 7 of 8
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`Email: jessica.lin@fenwick.com
`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 313 Filed 08/29/24 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served with a true and correct copy of this document on August 26, 2024, via
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`the Court’s CM/ECF system per Local Rule CV 5. Additionally, this document and the
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`attachments thereto were served by email on all counsel of record.
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`/s/ Eric B. Young
`Eric B. Young
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