Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 1 of 29
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`THAT’SIN 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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`
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`OPENING BRIEF IN SUPPORT OF DEFENDANTS’
`RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
`PURSUANT TO FED. R. CIV. P. 50(b)
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`
`
`

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`
`I.
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`II.
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 2 of 29
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`TABLE OF CONTENTS
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`Page
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`INTRODUCTION ...............................................................................................................1
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`PLAINTIFF FAILED TO PROVE INFRINGEMENT .......................................................1
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`A.
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`AlmondNet failed to prove that Amazon infringed claim 24 of the ’639
`patent. .......................................................................................................................2
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`1.
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`2.
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`3.
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`4.
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`“computer-facilitating delivery to visitor computers visiting a
`second, different Internet site of advertisements sold, for a first
`price, for placement on visitor computers that have visited the
`first Internet site” .........................................................................................2
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`“computer-causing the proprietor of the second Internet site to
`receive revenue from direction of the advertisements to the visitor
`computers visiting the second Internet site as a consequence of
`computer-determining, using the tags and said electronic records,
`that such visitor computers have visited the first Internet site” ...................5
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`“wherein the revenue received by the second Internet site is in an
`amount less than the first price for the advertisements” ..............................9
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`“wherein the proprietor of the first Internet site retains at least part
`of the difference between the first price and the revenue received
`by the proprietor of the second Internet site” .............................................10
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`B.
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`AlmondNet failed to prove that Amazon infringed claim 37 of the ’139
`patent. .....................................................................................................................10
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`1.
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`2.
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`3.
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`4.
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`“for each of a multitude of different electronic visitors to a first
`media property:” ........................................................................................10
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`“automatically directing to a third-party server computer …
`[an] indicia of a condition for display of an advertisement” .....................13
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`“automatically electronically authorizing the server computer to
`automatically cause display of an advertisement . . . when the
`electronic visitor visits the second media property at a time after the
`electronic visitor visits the first media property.” ......................................13
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`“the act of authorizing in part (b) is based on information indicating
`at least one of a plurality of profile attributes possibly applicable to
`the electronic visitor, which indicated profile attribute or attributes
`was received by the system comprising one or more computers as a
`result of the electronic visitor visiting the first media property” ...............16
`
`i
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 3 of 29
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`TABLE OF CONTENTS
`(CONTINUED)
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`III. ASSERTED CLAIM 37 OF THE ’139 PATENT IS INVALID. ......................................17
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`A.
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`Asserted claim 37 of the ’139 patent recites no inventive concept at
`Alice step two and thus fails to claim patentable subject matter under
`35 U.S.C. § 101. .....................................................................................................17
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`Page
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`ii
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 4 of 29
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`TABLE OF AUTHORITIES
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`Page(s)
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`
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`CASES
`
`ACTV, Inc. v. Walt Disney Co.,
`346 F.3d 1082 (Fed. Cir. 2003)................................................................................................15
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`573 U.S. 208 (2014) .................................................................................................................17
`
`Broadcom Corp. v. Qualcomm Inc.,
`543 F.3d 683 (Fed. Cir. 2008)....................................................................................................5
`
`BSG Tech LLC v. Buyseasons, Inc.,
`899 F.3d 1281 (Fed. Cir. 2018)................................................................................................19
`
`CellTrust Corp. v. ionLake, LLC,
`625 F. Supp. 3d 810 (D. Minn. 2022) ........................................................................................4
`
`Chamberlain Grp., Inc. v. Techtronic Indus. Co.,
`935 F.3d 1341 (Fed. Cir. 2019)................................................................................................18
`
`Chewy, Inc. v. IBM,
`94 F.4th 1354 (Fed. Cir. 2024) ................................................................................................17
`
`CommScope Techs. LLC v. Dali Wireless Inc.,
`10 F.4th 1289 (Fed. Cir. 2021) ................................................................................................13
`
`Customedia Techs., LLC v. Dish Network Corp.,
`951 F.3d 1359 (Fed. Cir. 2020)................................................................................................17
`
`Donghee Am., Inc. v. Plastic Omnium Advanced Innovation & Rsch.,
`812 F. App’x 988 (Fed. Cir. 2020) ............................................................................................4
`
`Energy Transp. Grp., Inc. v. William Demant Holding A/S,
`697 F.3d 1342 (Fed. Cir. 2012)..........................................................................................2, 7, 9
`
`Enplas Display Device Corp. v. Seoul Semiconductor Co.,
`909 F.3d 398 (Fed. Cir. 2018)....................................................................................................1
`
`Eon Corp. IP Holdings v. Silver Spring Networks,
`815 F.3d 1314 (Fed. Cir. 2016)..................................................................................................3
`
`Free Stream Media Corp. v. Alphonso Inc.,
`996 F.3d 1355 (Fed. Cir. 2021)................................................................................................17
`
`
`
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`
`iii
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 5 of 29
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`TABLE OF AUTHORITIES
`(CONTINUED)
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`Page(s)
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`Freshub, Inc. v. Amazon.com, Inc.,
`93 F.4th 1244 (Fed. Cir. 2024) ................................................................................................15
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`Hewlett-Packard Co. v. Mustek Sys., Inc.,
`340 F.3d 1314 (Fed. Cir. 2003)............................................................................................4, 11
`
`In re TLI Commc’ns Pat. Lit.,
`823 F.3d 607 (Fed. Cir. 2016)..................................................................................................19
`
`KOM Software Inc. v. NetApp, Inc.,
`697 F. Supp. 3d 203 (D. Del. 2023) ...................................................................................17, 20
`
`Lexion Med., LLC v. Northgate Techs., Inc.,
`641 F.3d 1352 (Fed. Cir. 2011)............................................................................................3, 15
`
`Metacluster LT, UAB v. Bright Data Ltd.,
`No. 2:22-CV-00011-JRG-RSP, 2023 WL 8868064 (E.D. Tex. July 7, 2023) ..........................4
`
`Microlinc, LLC v. Intel Corp.,
`No. 2:07-cv-488, 2013 WL 2471551 (E.D. Tex. June 7, 2013) ................................................4
`
`Modavox, Inc. v. Tacoda, Inc.,
`607 F. Supp. 2d 530 (S.D.N.Y. 2009)........................................................................................4
`
`Pannu v. Iolab Corp.,
`155 F.3d 1344 (Fed. Cir. 1998)..................................................................................................1
`
`PersonalWeb Techs. LLC v. Google LLC,
`8 F.4th 1310 (Fed Cir. 2021) ...................................................................................................19
`
`RecogniCorp, LLC v. Nintendo Co., Ltd.,
`855 F.3d 1322 (Fed. Cir. 2017)................................................................................................20
`
`Securus Techs., Inc. v. Global Tel*Link Corp.,
`701 F. App’x 971 (Fed. Cir. 2017) ..........................................................................................10
`
`Straight Path IP Grp., Inc. v. Sipnet EU S.R.O.,
`806 F.3d 1356 (Fed. Cir. 2015)..................................................................................................4
`
`Synopsys, Inc. v. Mentor Graphics Corp.,
`839 F.3d 1138 (Fed. Cir. 2016)................................................................................................19
`
`Tuna Processors, Inc. v. Hawaii Int'l Seafood, Inc.,
`327 F. App’x 204 (Fed. Cir. 2009) ............................................................................................4
`
`iv
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 6 of 29
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`TABLE OF AUTHORITIES
`(CONTINUED)
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`Page(s)
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`Ultramercial, Inc. v. Hulu, LLC,
`772 F.3d 709 (Fed. Cir. 2014)..................................................................................................20
`
`Uniloc USA, Inc. v. Microsoft Corp.,
`632 F.3d 1292 (Fed. Cir. 2011)..................................................................................................1
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`Universal Secure Reg. LLC v. Apple Inc.,
`10 F.4th 1342 (Fed. Cir. 2021) ................................................................................................19
`
`USC IP P’ship, L.P. v. Facebook, Inc.,
`576 F. Supp. 3d 446 (W.D. Tex. 2021)....................................................................................18
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`VLSI Tech. LLC v. Intel Corp.,
`No. 6:21-CV-057-ADA, 2022 WL 1477725 (W.D. Tex. May 10, 2022) .................................1
`
`Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc.,
`853 F.3d 1272 (Fed. Cir. 2017)................................................................................................15
`
`Wis. Alumni Rsch. Found. v. Apple Inc.,
`905 F.3d 1341 (Fed. Cir. 2018)........................................................................................3, 4, 11
`
`Wyers v. Master Lock Co.,
`616 F.3d 1231 (Fed. Cir. 2010)..................................................................................................2
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`STATUTES
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`35 U.S.C. § 101 ........................................................................................................................17, 19
`
`35 U.S.C. § 102 ..............................................................................................................................19
`
`RULES
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`Fed. R. Civ. P. 50(b) ........................................................................................................................1
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`
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`v
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 7 of 29
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`I.
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`INTRODUCTION
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`Amazon moves for judgment as a matter of law under Fed. R. Civ. P. 50(b).1 First, the
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`Court should grant JMOL of noninfringement as to both the ’639 and ’139 patents. The parties
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`did not dispute the operation of the accused Demand Side Platform and Sponsored Display, which
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`do not meet multiple claim limitations. Moreover, AlmondNet failed its burden of proof for both
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`patents because it elicited no infringement opinion from its expert Dr. Koskinen under the plain
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`and ordinary meaning of several such limitations.
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`Second, the Court should grant JMOL of invalidity of the asserted claim of the ’139 patent
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`for failure to claim eligible subject matter. The Court already held that this patent is directed to an
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`abstract idea. The undisputed trial record showed that the claim limitations—individually and as
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`an ordered combination—were conventional at the time of the patent’s filing. Instead of
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`contesting conventionality, AlmondNet’s validity expert opined that the novelty of the patent
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`established an inventive ordered combination. Under governing Federal Circuit law, such an
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`argument is insufficient as a matter of law. Thus, no reasonable jury could find that the ’139 patent
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`recites patentable subject matter.
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`II.
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`PLAINTIFF FAILED TO PROVE INFRINGEMENT
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`The patentee “bears the burden of proof to show the presence of every element” in the
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`accused technology. Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1301 (Fed. Cir. 2011).
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`Where that technology is “complex” and “beyond the comprehension of laypersons,” the patentee
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`1 The Court grants JMOL under Rule 50(b) where the jury’s findings are not supported by
`substantial evidence or the legal conclusions implied by the verdict are unsupported by those
`findings. Pannu v. Iolab Corp., 155 F.3d 1344, 1348 (Fed. Cir. 1998); see VLSI Tech. LLC v. Intel
`Corp., No. 6:21-CV-057-ADA, 2022 WL 1477725, at *1 (W.D. Tex. May 10, 2022). Substantial
`evidence is evidence that a reasonable mind might accept as adequate to support the finding under
`review. Enplas Display Device Corp. v. Seoul Semiconductor Co., 909 F.3d 398, 407 (Fed. Cir.
`2018).
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`1
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`must provide opinion testimony from an expert to carry this burden. Wyers v. Master Lock Co.,
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`616 F.3d 1231, 1240 n.5 (Fed. Cir. 2010) (citation omitted). The testimony must explain how the
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`evidence about the accused technology demonstrates infringement of each limitation. See Energy
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`Transp. Grp., Inc. v. William Demant Holding A/S, 697 F.3d 1342, 1353 (Fed. Cir. 2012). A failure
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`to offer such testimony as to any claim element warrants JMOL of noninfringement.
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`A.
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`AlmondNet failed to prove that Amazon infringed claim 24 of the ’639 patent.
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`1.
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`“computer-facilitating delivery to visitor computers visiting a second,
`different Internet site of advertisements sold, for a first price, for
`placement on visitor computers that have visited the first Internet site”
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`Claim 24 requires “computer-facilitating delivery” of advertisements to “visitor
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`computers” visiting a second Internet site for placement on the same “visitor computers” that have
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`visited a first Internet site. The claim also requires that those delivered advertisements have been
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`sold for a “first price.” But at trial it was undisputed that Amazon, in response to each individual
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`access to a third-party website, submits bids into a real-time bidding system, where both the sale
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`and the price of ads are determined by a third party at an auction in real-time. Amazon does not
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`deliver the same advertisements to multiple visitor computers that visit a particular second site
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`after having visited a particular first site. Nor does Amazon deliver advertisements that were sold
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`for an established price.
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`AlmondNet’s expert Dr. Koskinen confirmed this functionality is undisputed and non-
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`infringing. First, he admitted that the claim requires delivery to multiple “visitor computers.”
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`(Trial Tr. at 341:7-15 (“Q. This [claim] . . . says deliver to visitor computers, plural, right? A.
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`Yes.”).) Yet in his testimony he ignored that requirement and opined about a single visitor, “Bob,”
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`who uses a single device. (Id. at 241:4-12 (“Q. And for the visitor computer’s (sic) limitation, can
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`you tell us a little more about that? A. Yes. So this visitor computer refers to the fact that Bob
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`previously may have visited the first Internet site and now is visiting the publisher. And it’s the
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`2
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 9 of 29
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`same person that has visited both locations. Q. Visited [by] the same person on the same device?
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`A. Yes.”).2)3 That omission matters. Evidence about a single visitor device is not evidence that
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`Amazon’s system satisfies the limitation with respect to multiple “visitor computers.” Given the
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`undisputed evidence that Amazon’s system performs an individualized auction for each ad space
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`in real time (i.e., concurrently with a user visit), the jury was not free to simply speculate that other
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`visitors to both the first and second sites would receive delivery of the same ad as Bob’s device.
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`AlmondNet presented no evidence that would occur or had ever occurred, and all evidence of
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`record was to the contrary: that ad delivered to a second visitor computer was determined by an
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`individualized auction conducted by a third party outside of Amazon’s system. This is exactly the
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`sort of failure of proof for which the Federal Circuit has previously reversed district courts and
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`should result in JMOL of noninfringement here. See Wis. Alumni Rsch. Found. v. Apple Inc., 905
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`F.3d 1341, 1347-50 (Fed. Cir. 2018) (reversing JMOL denial because the plaintiff’s literal
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`infringement theory ignored that the unconstrued claim term “particular” required a single load
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`instruction rather than multiple load instructions).
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`Second, the claim requires “computer-facilitating delivery” of advertisements that have
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`been “sold” for a “first price.” Dr. Koskinen agreed that “sold” in this limitation is a past tense
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`verb. (Trial Tr. at 334:25-335:3.)4 Thus, applying the parties’ shared view that the plain meaning
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`2 All emphasis is added unless otherwise noted.
`3 Dr. Koskinen also acknowledged that this plain meaning interpretation of the claim is
`consistent with the example found in the abstract. (Trial Tr. at 341:19-342:15.) This is important
`because plain meaning is not determined in a vacuum; rather it should be harmonized with the
`intrinsic record. See Lexion Med., LLC v. Northgate Techs., Inc., 641 F.3d 1352, 1356 (Fed. Cir.
`2011); Wis. Alumni Rsch. Found., 905 F.3d at 1348.
`4 The Court previously construed the claim phrase in which “sold” appears to have its plain-
`and-ordinary meaning. (D.I. 113 at 9, 15.) But as the Federal Circuit warns, such a construction
`“may be inadequate . . . when reliance on the term’s ordinary meaning does not resolve the parties’
`dispute.” Eon Corp. IP Holdings v. Silver Spring Networks, 815 F.3d 1314, 1320 (Fed. Cir. 2016)
`(“Silver Spring argues that the court’s decision not to construe the terms improperly delegated to
`the jury the task of determining claim scope . . . . Second, Silver Spring argues that no reasonable
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`3
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`of “sold” refers to an event in the past, “advertisements, sold for a first price” requires
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`advertisements that have been “sold” before those ads are delivered at this step of the claim.
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`Yet, despite agreeing that “sold” indicated the past tense, Dr. Koskinen told the jury that
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`there is no “specific time requirement for when the advertisement must be sold;” and that all that
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`matters is “that the advertisements are sold at some point.” (Trial Tr. at 243:6-9.) That reads out
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`the claim’s requirement that the advertisements delivered have sold for a first price, Amazon is
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`entitled to a JMOL of no infringement. See Wis. Alumni Rsch. Found., 905 F.3d at 1347-50
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`(reversing JMOL denial); Hewlett-Packard Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1321 (Fed.
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`Cir. 2003) (reversing JMOL denial because the verdict was contrary to plain meaning); see also
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`jury could have found infringement, as the plain and ordinary meaning of the terms cannot
`encompass Silver Spring’s products. . . . We agree with Silver Spring on both points.”) (citation
`omitted). The Federal Circuit has on multiple occasions directed that a claim term written in the
`past tense must carry that meaning in the context of the claim. See, e.g., Tuna Processors, Inc. v.
`Hawaii Int'l Seafood, Inc., 327 F. App’x 204, 208–09 (Fed. Cir. 2009) (in construing a claim step
`reciting exposure of tuna meat to “smoke cooled to between 0° and 5° C,” explaining that “the use
`of the past participle in ‘the smoke cooled’” [] “requires that the smoke have been cooled prior to
`contacting the tuna meat”); Donghee Am., Inc. v. Plastic Omnium Advanced Innovation & Rsch.,
`812 F. App’x 988, 990–91 (Fed. Cir. 2020) (construing method step requiring “closing the
`multilayer plastic fuel tank with the stake-fastened accessory therein” as requiring the accessory
`to be stake-fastened to the fuel tank wall before the tank was closed); see also Metacluster LT,
`UAB v. Bright Data Ltd., No. 2:22-CV-00011-JRG-RSP, 2023 WL 8868064, at *13–14 (E.D. Tex.
`July 7, 2023) (concluding that “there is not any reasonable interpretation of the claim language
`that allows for executing ‘the removed embedded script’ before it is “removed’”); Microlinc, LLC
`v. Intel Corp., No. 2:07-cv-488, 2013 WL 2471551, at *22 (E.D. Tex. June 7, 2013) (in a claim
`reciting “a second buffer for storing a copy of a packet transmitted,” explaining that “[b]y using
`the past tense, the claims recite that the packets have already been ‘transmitted’ by the first
`interface.”); Modavox, Inc. v. Tacoda, Inc., 607 F. Supp. 2d 530, 535 (S.D.N.Y. 2009) (holding
`that “automatically executing a first code module embedded in said Web page” requires that the
`“embedded code is a code that has already been placed into the architecture of the web page.”);
`CellTrust Corp. v. ionLake, LLC, 625 F. Supp. 3d 810, 835 (D. Minn. 2022) (in concluding
`“configured for” means “having been previously configured to be capable of,” explaining that “the
`use of a past participle in a claim limitation typically describes an object with a preexisting
`characteristic.”); cf. Straight Path IP Grp., Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1360 (Fed.
`Cir. 2015) (holding that “[t]he present tense ‘is’ in ‘is connected to the computer network’ plainly
`says that the query transmitted to the server seeks to determine whether the second unit is
`connected at that time”).
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`4
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`Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 696-97 (Fed. Cir. 2008). Accordingly,
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`AlmondNet did not offer evidence of any prior sale of the ads identified in its infringement
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`presentation at an established “first price,” a failure of proof that likewise warrants JMOL.
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`Moreover, there are no “advertisements sold” even under AlmondNet’s theory that a sale
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`may occur contemporaneous with Amazon’s alleged performance of the claim. (This is what Dr.
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`Koskinen opined: that the limitation is met by the advertisement that ultimately is delivered to a
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`visitor to the second website. (Trial Tr. at 241:13-19.)) That is because Amazon’s system does
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`not perform that function. Instead, a third-party publisher’s ad server does, and that third party
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`has the “final say about what [ad] is displayed” and thus what advertiser is offered a sale. (Id. at
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`203:6-11.)5 Amazon’s system merely submits bids for consideration by the publisher ad server.
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`(Id.) As Dr. Koskinen admitted on cross, when Amazon submits such a bid, no advertisement has
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`yet been sold. (Id.at 340:6-9.) There are no ads sold—nor is any first price established for an ad—
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`until the publisher’s ad server receives all candidate bids and then (i.e., in the future, after Amazon
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`has completed the step that AlmondNet alleged met the limitation) exercises its “final say”
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`following a real-time auction of which candidate bid it will accept. (See, e.g., id.at 231:21-232:14
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`(Dr. Koskinen); 681:21-682:5 (Dr. Houh).) Because there are no advertisements “sold” for a “first
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`price” when Amazon submits bids in the accused process, JMOL is warranted.
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`2.
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`“computer-causing the proprietor of the second Internet site to receive
`revenue from direction of the advertisements to the visitor computers
`visiting the second Internet site as a consequence of computer-determining,
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`5 It was undisputed at trial that the publisher’s ad server is not operated by Amazon. (Id. at
`203:12-15 (Dr. Koskinen admitting “the publisher ad server” is not “part of Amazon Ads,” and
`that instead “[i]t’s part of the publisher, some third party.”).)
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`5
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`using the tags and said electronic records, that such visitor computers have
`visited the first Internet site”
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`Claim 24 requires “computer-causing the proprietor of the second Internet site to receive
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`revenue” from “direction” of the ads to the visitor computers visiting the second site “as a
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`consequence of computer-determining, using the tags and said electronic records, that such visitor
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`computers have visited the first Internet site.” The undisputed functionality of the accused
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`products does not meet this limitation either, for multiple reasons.
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`First, Amazon does not “direct” any advertisements to any visitor computers. The claim
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`requires that the direction of advertisements to visitor computers on the second site cause the
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`receipt of revenue. But AlmondNet did not dispute at trial that in the accused process, an
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`advertisement is shown to a visitor of a website after the third party’s real-time auction, where the
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`winner of the auction wins the opportunity to show an ad to the visitor. (Id. at 289:12-19; 290:17-
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`291:9; 311:14-21; 312:13-18.) Again, Amazon’s system merely submits bids to such auctions; it
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`is the third party’s ad server that directs ads to visitor computers according to its auction and
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`placement decisions. (Id. at 199:10-13; 202:6-19; 203:6-15; 231:21-232:14; 263:1-6; 168:8-24.)
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`There was thus no evidence from which the jury could conclude that Amazon “directed” an ad to
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`the visitor computer merely by submitting a bid in an auction, when the undisputed record showed
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`that Amazon does not control or direct whether its bids win or lose the auction, nor does Amazon
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`control or direct whether an ad ultimately is provided to a visitor computer even if Amazon sent in
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`the winning bid.
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`Second, Amazon does not submit bids “as a consequence of” a computer determining that
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`visitor computers visiting a second website previously visited Amazon’s website, let alone do so
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`using tags and electronic records. Because no such step exists in the accused process,
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`AlmondNet’s expert Dr. Koskinen did not identify any at trial. Instead, Dr. Koskinen provided
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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 13 of 29
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`conclusory testimony that the limitation is met, without evidence or explanation of how the system
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`actually performs the limitation beyond stating that it uses “the tags and records that we talked
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`about earlier to do that.” (Id. at 244:22-245:6.) This is insufficient to carry AlmondNet’s burden
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`of proof as a matter of Federal Circuit law. See Energy Transp. Grp., 697 F.3d at 1353 (expert
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`testimony must explain how the evidence about the accused technology demonstrates infringement of
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`each limitation).
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`Moreover, Dr. Koskinen went further and confirmed the absence of this limitation when he
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`admitted that ads corresponding to Amazon’s bids can be shown to any visitor computer, even if
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`it had never previously visited a first Amazon site. (Trial Tr. at 350:8-352:2.) Indeed, Dr.
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`Koskinen confirmed that a user with a brand-new computer could be shown an ad corresponding
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`to an Amazon submitted bid:
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`Q. Okay. And in that situation, that same visitor computer is not the visitor
`computer that you're showing on this slide and the little orange guy at the bottom
`right?
`
`A. In that situation.
`
`Q. Right. So there is no requirement when Amazon pays a publisher that the same
`visitor computer is the computer on which the user is seeing the ad, correct?
`
`A. In that situation.
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`(Id. at 353:11-20 (Koskinen).) The fact that ads corresponding to Amazon bids are shown to visitor
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`computers irrespective of whether they have ever visited an Amazon site previously establishes
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`that Amazon makes no computer-determination that the same visitor computers previously visited
`
`an Amazon site as part of delivering an ad. In other words, Amazon’s system is not acting “as a
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`consequence of” any computer-determination of prior computer visits to an Amazon site as the
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`claim requires.6
`
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`6 During redirect, AlmondNet’s counsel elicited testimony suggesting that this particular scenario
`was not part of Dr. Koskinen’s infringement theory. (Id. at 370:25-371:13.) But that is irrelevant:
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`7
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`

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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 14 of 29
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`Third, and by extension, Amazon does not cause receiving revenue for displaying ads to
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`visitor computers at a non-Amazon site as a consequence of determining that the same computers
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`previously visited an Amazon site. (See id. at 352:23-353:10 (Koskinen); 703:1-5 (Houh).)
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`Further, even if an Amazon bid wins an auction and the corresponding ad is shown, the resulting
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`payment process does not involve “using [] tags” in any computer determination as this claim
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`limitation requires. (Id. at 351:13-17 (Koskinen) (“Q: In the process of paying for advertisers to
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`publish by Amazon again, that payment process does not involve tags. Correct? A. The payment
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`process doesn’t. No.”).) In real-time bidding, the publisher always receives revenue based on the
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`winning bid from a real-time auction, and not from any other considerations. (Id. at 156:25-157:2
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`(Koskinen) (“If Amazon is successful with a bid that it returns to a publisher, whatever we bid, we
`
`pay a publisher 100 percent of that bid.”); 703:1-3 (Houh).) Accordingly, payment to the
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`proprietor of the second site does not occur as a consequence of any computer-determination,
`
`using tags and electronic records, that the same visitor computers visiting the second site
`
`previously visited the first site.
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`Finally, despite the claim expressly requiring “computer-determination,” Dr. Koskinen
`
`pointed to no “computer” functionality described in technical documents or source code where the
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`accused system makes the supposed “computer-determin[ation]” that the visitor computers now
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`visiting the second non-Amazon site are the same visitor computers that have visited the first
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`Amazon site, in connection with and before Amazon submits a bid to display an ad. (See, e.g., id.
`
`at 246:1-8.) Thus, a judgment of no infringement is warranted because AlmondNet never
`
`presented any evidence as to how such “computer-determining … that such visitor computers have
`
`
`if an Amazon-submitted ad can be shown to a visitor computer that clearly never visited an
`Amazon site, then it follows that in the accused products, ads are not shown as a consequence of
`any previous visits to Amazon’s site.
`
`
`8
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`

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`Case 6:21-cv-00898-ADA Document 325 Filed 10/22/24 Page 15 of 29
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`visited the first Internet site” is necessarily performed “using the [same] tags and said electronic
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`records” it points to in earlier parts of the claim. Energy Transp. Grp., 697 F.3d at 1353.
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`Accordingly, because AlmondNet has not proffered evidence that this limitation is met by the
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`accused products, Amazon is entitled to JMOL of no infringement.
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`3.
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`“wherein the revenue received by the second Internet site is in an amount
`less than the first price for the advertisements”
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`Claim 24 requires “revenue received by the second Internet site is in an amount less than
`
`the first price for the advertisements.” But it was undisputed that that the publisher of the alleged
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`“second Internet site” receives 100% of the bid amount in Amazon’s system, which means
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`Amazon does not retain any of that revenue. (Trial Tr. at 353:23-354:3, 350:16-22 (Koskinen);
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`see also id. at 552:20-553:3 (Knapp) (confirming that Amazon takes no cut from what the
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`advertiser bid and that Amazon earns revenue by charging a fee to use its services fees).) At trial,
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`Dr. Koskinen opined that the “first price” could consist of the bid price plus separate fees that
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`Amazon charges for its services that he neither showed as generated during the steps of the accused
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`process nor charged in connection with a particular delivered ad. He incorrectly suggested to the
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`jury that the Court had construed the term “first price” in this manner. (Id. at 243:15-244:4.) That
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`“first price” was in fact unconstrued7 is important because its plain meaning must not conflict
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`with the specification’s disclosure, (id. at 293:12-15 (“Q. So every other word in that claim that
`
`you put up, we have to understand those words based on how they’re used in the specification,
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`right? A. Yes. The plain and ordinary.”)), which Dr. Koskinen acknowledged he did not do in his
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`analysis. (Id. at