Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 1 of 13
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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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`PLAINTIFF’S BILL OF COSTS MOTION PURSUANT TO CV-54(a)(3)(B)
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`Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 2 of 13
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`TABLE OF CONTENTS
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`I.
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`Legal Standard .......................................................................................................................1
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`II. Uncontested Costs .................................................................................................................2
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`III. Contested Costs under Section 1920(4) ................................................................................4
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`A. Trial Animations/Graphics............................................................................................ 4
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`B. Trial Technician ............................................................................................................ 7
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`IV. Conclusion .............................................................................................................................8
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`Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 3 of 13
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`TABLE OF AUTHORITIES
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`Cases
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`Favata v. Nat’l Oilwell Varco, LP,
`No. 2:12-CV-82, 2014 WL 5822781 (S.D. Tex. Nov. 10, 2014) .............................................. 7
`
`MV3 Partners LLC v. Roku, Inc.,
`No. 6:18-CV-00308-ADA, 2022 WL 1913619 (W.D. Tex. June 3, 2022) ....................... 1, 4, 7
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`NCS Multistage Inc. et al. v. TCO AS,
`No. 6:20-cv-00622, Dkt. No. 358 (W.D. Tex. Aug. 26, 2024) ............................................. 4, 7
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`NCS Multistage Inc. et al. v. TCO AS,
`No. 6:20-cv-00622-ADA, Dkt. No. 328 (W.D. Tex. Mar. 16, 2023) ....................................... 7
`
`NCS Multistage Inc. v. Nine Energy Serv., Inc.,
`No. 6:20-cv-00277-ADA, Dkt. No. 267 (W.D. Tex. June. 17, 2022) ....................................... 7
`
`NCS Multistage Inc. v. Nine Energy Serv., Inc.,
`No. 6:20-cv-00277-ADA, Dkt. No. 300 (W.D. Tex. Dec. 12, 2022) ........................................ 7
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`Schwarz v. Folloder,
`767 F.2d 125 (5th Cir. 1985) ..................................................................................................... 1
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`Two-Way Media, LLC v. AT&T Servs., Inc.,
`No. SA-09-CA-00476-OLG, 2013 WL 12090356 (W.D. Tex. Nov. 22, 2013) ............... 4, 5, 7
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`Versata Software, Inc. v. SAP Am., Inc.,
`No 2:07-CV-153 CE, 2011 WL 4436283 (E.D. Tex. Sept. 23, 2011) .................................. 5, 8
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`Statutes
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`28 U.S.C. § 1920 .................................................................................................................. passim
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`Rules
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`Fed. R. Civ. P. 54(d) ...................................................................................................................... 1
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`ii
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`Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 4 of 13
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`Plaintiff AlmondNet, Inc. files this motion pursuant to Local Rule CV-54(a)(3)(B) to
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`inform the Court of costs to which the parties agree should be awarded to AlmondNet, to set forth
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`compromises the parties’ reached as compared with the Bill of Costs AlmondNet originally filed,
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`and to indicate why AlmondNet should be awarded costs on the remaining areas of
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`disagreement⎯costs incurred for a trial technician for the five court days of trial, and creation of
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`trial graphics explaining for the jury how the complex accused products and prior art systems
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`operated. As such trial technician and trial graphics costs aid the jury in better understanding the
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`case in an efficient manner, this Court has recognized that they are qualifying exemplification
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`costs under 28 U.S.C. § 1920(4).
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`I.
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`Legal Standard
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`The Federal Rules of Civil Procedure state, “[u]nless a federal statute, these rules, or a
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`court order provides otherwise, costs—other than attorney’s fees—should be allowed to the
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`prevailing party.” FED. R. CIV. P. 54(d)(1). “Under this rule, there is a strong presumption ‘that
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`the prevailing party will be awarded costs.’” MV3 Partners LLC v. Roku, Inc., No. 6:18-CV-
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`00308-ADA, 2022 WL 1913619, at *1 (W.D. Tex. June 3, 2022) (Albright, J.) (quoting Schwarz
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`v. Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). “The Fifth Circuit has held that this presumption
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`intended to create prima facie entitlement to payment of costs and that the burden of overcoming
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`this presumption shifts to the losing party.” Id. (citing Schwarz, 767 F.2d at 131). The Court must
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`articulate a good reason for denying or reducing a prevailing party’s request for costs. Id.
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`A prevailing party is permitted to recover the following categories of costs under 28
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`U.S.C. § 1920:
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`1. Fees of the Clerk and Marshal;
`2. Fees for printed or electronically recorded transcripts necessarily
`obtained for use in the case;
`3. Fees and disbursements for printing and witnesses;
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`4. Fees for exemplification and the costs of making copies of any materials
`where the copies are necessarily obtained for use in the case;
`5. Docket fees under section 1923 of this title;
`6. Compensation of court appointed experts, compensation of interpreters,
`and salaries, fees, expenses, and costs of special interpretation services
`under section 1828 of this title.
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`II.
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`Uncontested Costs
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`On October 8, 2024, AlmondNet filed its original Bill of Costs and its memorandum in
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`support. See Dkt. Nos. 322-323. On October 17, 2024, the parties met and conferred about
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`AlmondNet’s request for costs, and in an effort to limit the number of disputes, the parties agreed
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`to numerous compromises on costs.
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`Amazon does not object that the following costs be awarded to AlmondNet:
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`• $402.00 for fees to the Clerk as AlmondNet originally requested (§ 1920(1); see
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`Dkt. No. 322 at 3; Dkt. No. 323 at 2);
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`• $95,318.40 for printed or electronically recorded trial and deposition transcripts
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`and deposition videos necessarily obtained for use in this case (§ 1920(2)),
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`consisting of:
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`o $34,121.05 for
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`trial, pre-trial conference, and Markman hearing
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`transcripts1;
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` 1
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` To avoid a dispute, AlmondNet agreed to withdraw its $171.80 request for transcription of two
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`discovery hearings. This is the only reduction as compared with AlmondNet’s original request.
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`See Dkt. No. 322 at 3; Dkt. No. 323 at 2-3.
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`2
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`o $52,165.95 for deposition transcripts2; and
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`o $9,031.40 for video depositions3;
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`• $3,619.47 for witness fees (§ 1920(3))4;
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`• $12,500.00 for copies of materials necessarily obtained for use in the case (§
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`1920(4))5; and
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` 2
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` In its original Bill of Costs, AlmondNet sought to recover $77,543.45 for deposition transcript
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`costs. Dkt. No. 322 at 3; Dkt. No. 323 at 3-7; Dkt. No. 322-5 (AlmondNet’s invoices for
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`deposition transcripts). After multiple exchanges with counsel for Amazon, in an effort to
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`compromise AlmondNet agreed to remove certain incidental expenses and thus reduce its request
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`to $52,165.95.
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`3 In its original Bill of Costs, AlmondNet sought to recover $31,963.90 for deposition video costs.
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`Dkt. No. 322 at 3; Dkt. No. 323 at 7-8; Dkt. No. 322-5 (AlmondNet’s invoices for deposition
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`videos). To streamline the disputed issues, AlmondNet agreed to limit its request to videos for
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`depositions that it played at trial, reducing its request for video deposition costs to $9,031.40.
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`4 AlmondNet originally sought to recover $14,747.81 in witness fees. Dkt. No. 322 at 3-4; Dkt.
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`323 No. at 8-10; Dkt. No. 322-7 (travel receipts). To avoid a dispute, AlmondNet agreed to reduce
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`these charges to $3,619.47, consisting of $2,201 for attendance/subsistence, and $1,418.47 for
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`travel.
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`5 AlmondNet originally sought to recover $36,837.45 for its document reproduction costs. Dkt.
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`No. 322 at 3; Dkt. No. 323 at 13-14; Dkt. No. 322-12 (itemization of AlmondNet’s total document
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`reproduction costs and supporting invoices). As a compromise, AlmondNet agreed to a reduction
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`in its total document reproduction charges to $12,500.00.
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`3
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`• $2,381.21 for payment to the Court’s technical advisor as AlmondNet originally
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`requested (§ 1920(6); see Dkt. No. 322 at 3; Dkt. No. 323 at 14).
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`Kolko Decl., ¶ 8. Because these undisputed costs, totaling $114,221.08, are authorized by 28
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`U.S.C. § 1920 (Dkt. No. 323 at 2-14) and agreed to by the parties (Kolko Decl., ¶ 8), AlmondNet
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`respectfully asks the Court award these costs.
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`III. Contested Costs under Section 1920(4)
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`As detailed below, AlmondNet seeks to recover $64,009.10 in costs for trial
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`animations/graphics and its trial technician as exemplification costs. 28 U.S.C. § 1920(4). This
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`Court has previously awarded these exact same types of exemplification costs. See, e.g., NCS
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`Multistage Inc. et al. v. TCO AS, No. 6:20-cv-00622, Dkt. No. 358 at 2 (W.D. Tex. Aug. 26, 2024)
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`(Ex. 1, “TCO Order”).
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`A.
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`Trial Animations/Graphics
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`“[C]ourts have considered that in highly technical cases, [such as patent cases], trial
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`technology is not only reasonable but necessary.” Two-Way Media, LLC v. AT&T Servs., Inc.,
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`No. SA-09-CA-00476-OLG, 2013 WL 12090356, at *6 (W.D. Tex. Nov. 22, 2013) (awarding
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`$60,659.56 in costs for “graphic and visual consultation and equipment used in trial”).
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`“[E]xpenses for the production of various types of non-testimonial evidence – such as
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`photographs, maps, charts, graphs and other demonstrative aids – are taxable as costs provided
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`that the prevailing party obtained court approval before incurring the expense.” MV3 Partners,
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`2022 WL 1913619, at *4 (quoting Two-Way Media, 2013 WL 12090356, at *5 (internal quotation
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`marks omitted)) (awarding $133,998.89 for “graphic and trial equipment costs”). Notably, these
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`costs do not need to be explicitly authorized by the court; an invitation or request to submit
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`tutorials or demonstratives, such as those used during trial, “is tantamount to pretrial approval.”
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`Id. (quoting Two-Way Media, 2013 WL 12090356, at *5 (internal quotation marks omitted)).
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`Further, this Court has recognized that costs of graphics may be taxed, even when express
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`authorization was not given, when those costs were “anticipated, useful, and a necessary tool to
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`assist in the efficient presentation of cases.” Two-Way Media, 2013 WL 12090356, at *5-6; see
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`also Versata Software, Inc. v. SAP Am., Inc., No 2:07-CV-153 CE, 2011 WL 4436283, at *2 (E.D.
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`Tex. Sept. 23, 2011) (awarding $90,090.00 in costs for professional audio and visual (graphics)
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`services, including graphics creation and a trial technician, without identifying specific pre-trial
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`authorization because it aids “the parties to present their evidence in a streamlined, orderly, and
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`efficient manner”).
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`Here, for nearly three years, the parties litigated a complex and highly contested patent
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`infringement suit that was tried before a jury in June 2024. AlmondNet originally requested all of
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`the costs that it incurred to have trial graphics prepared⎯$112,454.00. Dkt. No. 322 at 3; Dkt.
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`No. 323 at 10-12. But in an effort to avoid a dispute and streamline issues for the Court,
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`AlmondNet is now only requesting costs related to the preparation of AlmondNet’s animations
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`and graphics that it used at trial to illustrate the operation of the technically complex accused
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`products and the prior art systems⎯$44,981.60. AlmondNet calculated this number by taking all
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`of the graphics costs it incurred, and multiplying by two-fifths because it presented five
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`demonstrative exhibits (presentations) at trial, and one was focused on infringement (and thus
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`technical operation of the accused products) and one was focused on validity (and thus technical
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`operation of the prior art systems).6 To limit disputes by focusing on the most critical graphics,
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` AlmondNet made these estimates because the invoices it received from its vendor were not
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`granular enough to separate out costs associated with the five different presentations. If anything,
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`AlmondNet is not seeking to recover costs for its three other demonstrative presentations
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`(opening, closing, and damages), even though both opening and closing also focused on these
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`highly technical issues.
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`AlmondNet’s infringement technical expert, Dr. Eric Koskinen, included numerous
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`animations and graphics that explained in detail the technology at issue in this case, the patented
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`systems and methods, and the operation of Amazon’s infringing Demand Side Platform and
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`Sponsored Display advertising products. See generally Ex. 2. For example, he included in his
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`presentation an animation illustrating what “offsite targeting advertising” is (id. at 12-14),
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`graphical illustrations of the patented methods and systems (id. at 17-22, 25-28), and numerous
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`graphics that allowed the jury to have a high-level overview of the accused products (id. at 37-
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`42) as well as a more in-depth understanding of the various components of them (id. at 43-45, 47-
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`54, 57-67, 70, 72, 74-77), and further how they map to the asserted claims (id. at 84-86, 93-98,
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`102-104, 108, 111-112, 115-116, 131-133, 136-140, 143-145, 148). He also used a posterboard
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`based on these graphics throughout his presentation illustrating the accused products’ operation.
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`Graphics were especially important here because without them the jury could not visualize the
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`complex functionality and operation of the infringing products and exactly how the products
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`infringe the asserted patent claims.
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`Likewise, AlmondNet’s validity technical expert, Mr. Jason Frankovitz, included
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`numerous graphics in his presentation, including to efficiently describe the reasons why
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`this is an underestimate of costs incurred to devise graphics that illustrates the accused products
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`and prior art systems, as those issues were part of AlmondNet’s opening and closing presentations
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`as well.
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`Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 10 of 13
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`Amazon’s invalidity expert Dr. Hanson’s theories were without merit and to accurately explain
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`how two complex prior art systems operated. See generally Ex. 3, especially at 15-18, 20-23, 29-
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`31. As with the accused products, graphics were critical to do so here so that the jury could readily
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`grasp how those systems operated and the differences between them and the asserted claims.
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`AlmondNet’s costs for these animations and graphics were “anticipated, useful, and a
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`necessary tool to assist in the efficient presentation of [its] case[].” Two-Way Media, 2013 WL
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`12090356, at *6. The use of these animations and graphics assisted the jury in considering the
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`complex infringement and validity issues and allowed AlmondNet to present its case in a
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`streamlined, orderly, and efficient manner. AlmondNet should therefore be awarded these costs
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`under Section 1920(4). See, e.g., MV3 Partners, 2022 WL 1913619, at *4 (allowing the prevailing
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`party to recover costs of its graphics used at trial); NCS Multistage Inc. v. TCO AS, No. 6:20-cv-
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`00622-ADA, Dkt. No. 328 at 5 (W.D. Tex. Mar. 16, 2023) (Ex. 4, “TCO Motion”) (request for
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`$12,389.50 for creation of graphics used at trial); TCO Order (Ex. 1) at 2 (awarding plaintiff all
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`costs requested).
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`B.
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`Trial Technician
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`This Court and other courts in the Fifth Circuit have awarded trial technician costs as
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`exemplification under § 1920(4). See, e.g., TCO Motion (Ex. 4) at 7 (request for $17,539.39 in
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`trial technician costs); TCO Order (Ex. 1) at 2 (awarding plaintiff all costs requested); NCS
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`Multistage Inc. v. Nine Energy Serv., Inc., No. 6:20-cv-00277-ADA, Dkt. No. 267 at 10 (W.D.
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`Tex. June. 17, 2022) (Ex. 5) (request for $19,166.26 in trial technician costs); NCS Multistage
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`Inc. v. Nine Energy Serv., Inc., No. 6:20-cv-00277-ADA, Dkt. No. 300 at 1 (W.D. Tex. Dec. 12,
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`2022) (Ex. 6) (awarding plaintiff all costs requested); MV3 Partners, 2022 WL 1913619, at *4
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`(awarding trial equipment/technician costs); Favata v. Nat’l Oilwell Varco, LP, No. 2:12-CV-82,
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`2014 WL 5822781, at *4-5 (S.D. Tex. Nov. 10, 2014) (collecting cases that awarded costs for a
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`Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 11 of 13
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`technician at trial); Versata, 2011 WL 4436283, at *2 (awarding $90,090.00 in costs for
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`professional audio and visual (graphics) services, including graphics creation and a trial
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`technician). “The use of technology support during trial, particularly in complicated cases such
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`as this, is an anticipated, useful, and necessary tool to assist in the efficient presentation of cases.”
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`Versata, 2011 WL 4436283, at *2.
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`Here, AlmondNet originally requested all of the trial technician costs that it
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`incurred⎯$51,256.25. Dkt. No. 322 at 3; Dkt. No. 323 at 12-13. But in an effort to avoid a dispute
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`and streamline issues for the Court, AlmondNet now only seeks to recover the trial technician
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`costs incurred specifically on the five days of trial⎯$19,027.50. Dkt. No. 322-11 (lines dated
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`June 10-14, 2024, the five days of trial in this case). These costs were anticipated, useful,
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`necessary, and reasonable. Indeed, AlmondNet presented its case in an efficient and effective
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`manner to the jury in part because of its trial technician. AlmondNet’s trial technician ran
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`AlmondNet’s audio-visual courtroom equipment throughout the entire trial. The Court should
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`award AlmondNet reimbursement of its trial technician costs.
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`*
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`*
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`*
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`In sum, as for the contested costs, AlmondNet should be awarded a total of $64,009.10 in
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`costs for its trial graphics/animations and trial technician because these costs are exemplifications,
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`reasonable, and were necessarily obtained for use in this case.
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`IV. Conclusion
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`For the foregoing reasons, AlmondNet as the prevailing party, requests an award of costs
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`totaling $178,230.18.
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`Dated: October 29, 2024
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`Respectfully submitted,
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`/s/ Reza Mirzaie
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`Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 12 of 13
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`Reza Mirzaie
`rmirzaie@raklaw.com
`Adam Hoffman
`ahoffman@raklaw.com
`Marc A. Fenster
`mafenster@raklaw.com
`Benjamin T. Wang
`bwang@raklaw.com
`James A. Milkey
`jmilkey@raklaw.com
`Amy E. Hayden
`ahayden@raklaw.com
`James S. Tsuei
`jtsuei@raklaw.com
`Jonathan Ma
`jma@raklaw.com
`Daniel B. Kolko
`dkolko@raklaw.com
`Jason M. Wietholter
`jwietholter@raklaw.com
`RUSS AUGUST & KABAT
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`Facsimile: (310) 826-9226
`
`Andrea L. Fair
`andrea@wsfirm.com
`WARD, SMITH & HILL, PLLC
`1507 Bill Owens Parkway
`Longview, Texas 75604
`Telephone: (903) 757-6400
`Facsimile: (903) 757-2323
`
`
`
`Attorneys for Plaintiff AlmondNet, Inc.
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`Case 6:21-cv-00898-ADA Document 327 Filed 10/29/24 Page 13 of 13
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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 certify
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`that, on October 29, 2024 counsel of record who have appeared in this case are being served with
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`a true and correct copy of the foregoing via email.
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`/s/ Reza Mirzaie
`Reza Mirzaie
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`CERTIFICATE OF CONFERENCE
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`Counsel for AlmondNet certifies that counsel has complied with the meet and confer
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`requirement in Local Rule CV-54(a). Following the parties’ October 17, 2024 telephonic
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`conference, the parties exchanged agreements and disagreements regarding AlmondNet’s
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`proposed bill of costs (Dkt. No. 322). The parties ultimately reached agreement on all but two
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`issues. The remaining disagreements concern AlmondNet’s requests for trial animations/graphics
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`costs and trial technician costs.
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`/s/ Reza Mirzaie
`Reza Mirzaie
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