Case 6:21-cv-00898-ADA Document 315 Filed 09/03/24 Page 1 of 5
`Case 6:21-cv-00898-ADA Document 315 Filed 09/03/24 Page 1of5
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`Exhibit A
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`Case 6:21-cv-00898-ADA Document 315 Filed 09/03/24 Page 2 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE 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
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`JURY TRIAL DEMANDED
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`SUR-SUR-REPLY IN SUPPORT OF PLAINTIFF ALMONDNET, INC.’S
`OPPOSED MOTION TO ENTER FINAL JUDGMENT
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`Case 6:21-cv-00898-ADA Document 315 Filed 09/03/24 Page 3 of 5
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`Amazon’s sur-reply does not dispute that it failed to provide any evidence AlmondNet
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`knew of Amazon’s infringement prior to AlmondNet’s 2019 notice––a showing Amazon must
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`make in opposing the presumptive award of prejudgment interest to establish that there was any
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`delay. Having made no such showing, Amazon’s now argues for the first time that AlmondNet
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`“reasonably should have known” about its infringement as early as 2012, citing to A.C. Aukerman.
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`See Sur-Reply at 2. But the case on which Amazon relies was abrogated by the Supreme Court––
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`a fact Amazon fails to disclose in its sur-reply. See SCA Hygiene Prod. Aktiebolag v. First Quality
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`Baby Prod., LLC, 580 U.S. 328, 331–33 (2017) (abrogating A.C. Aukerman). Thus, Amazon fails
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`to cite any non-abrogated authority for its manufactured “reasonably should have known”
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`standard.
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`Additionally, Amazon fails to show delay even under the “reasonably should have known”
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`standard, because its arguments are based on pure speculation. While Amazon asserts that the
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`public availability of its DSP in 2012 is sufficient to establish undue delay, its briefing lacks any
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`evidence to support this claim. Amazon has provided no documents, testimony, or expert analyses
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`demonstrating what specific materials regarding its DSP were available in 2012. Even if such
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`materials existed, Amazon has not shown how they would have made infringement obvious in
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`2012 for each of the asserted patents. The mere fact that AlmondNet’s complaint in 2021 was
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`based on public sources does not mean that infringement was obvious in 2012. Indeed, several
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`sources cited in AlmondNet’s complaint did not even exist until after 2020.1 The complexity of
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`the infringement disputes that arose during this litigation only underscores that determining
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`1 For example, the complaint charts for the ’139 and ’639 Patents frequently cite sources that
`were not publicly available until much later. See Dkt. 1, Exs. 1-14, 1-16. The link,
`https://www.amazon.com/gp/help/customer/display.html?nodeId=202075050, now redirects to
`https://www.amazon.com/gp/help/customer/display.html?nodeId=GLVB9XDF9M8MU7UZ,
`and has no record on the Internet Archive (web.archive.org) before September 8, 2020. The link,
`https://advertising.amazon.com/amazon-advertising-platform, repeatedly cited for the ’139
`Patent, now redirects to https://advertising.amazon.com/solutions/products/amazon-dsp, with no
`Internet Archive record before June 25, 2020. Additionally, link,
`https://aps.amazon.com/aps/unified-ad-marketplace/index.html, is cited for multiple limitations
`of the ’639 Patent chart, including exclusively for limitation 1[c], and has no Internet Archive
`record prior to August 11, 2021.
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`Case 6:21-cv-00898-ADA Document 315 Filed 09/03/24 Page 4 of 5
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`infringement requires a highly detailed technical analysis. Not all uses of DSPs are infringing.
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`Therefore, it cannot be assumed that AlmondNet reasonably should have been aware of Amazon’s
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`infringement from the moment the DSP was released. Without specific evidence from Amazon,
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`its undue delay argument remains speculative, unsubstantiated, and legally unsound.
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`Finally, even if “reasonably should have known” were the correct standard and Amazon
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`had provided evidence supporting such a finding, that would still be insufficient. Amazon would
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`additionally need to show that any delay in filing suit was for some improper purpose and
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`prejudice, which it failed to do for the reasons articulated in prior briefing.
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`Date: August 28, 2024
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`Respectfully submitted,
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`/s/ Reza Mirzaie
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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 315 Filed 09/03/24 Page 5 of 5
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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
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`certify that, on August 28, 2024 counsel of record who have appeared in this case are being served
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`with a copy of the foregoing via email.
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` /s/ Reza Mirzaie
`Reza Mirzaie
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