Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 1 of 8
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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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`REPLY IN SUPPORT OF PLAINTIFF’S BILL OF COSTS MOTION
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`AlmondNet should be awarded costs on the remaining areas of disagreement—costs
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`incurred for a trial technician for the five court days of trial, and creation of trial graphics
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`explaining for the jury how the accused products and prior art systems operated, totaling
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`$64,009.10. As explained below, these costs aided the jury in better understanding the case and
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`have been recognized by this Court as qualifying exemplification costs recoverable under 28
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`U.S.C. § 1920(4).
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`I.
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`AlmondNet Should Be Awarded Its Costs for Trial Animations/Graphics and Trial
`Technician
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`Amazon does not dispute that this Court awarded the prevailing party its costs for trial
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`animations/graphics and its trial technician in NCS Multistage Inc. v. Nine Energy Service, Inc.,
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`No. 6:20-cv-00277-ADA (W.D. Tex.) (NCS v. Nine case) and NCS Multistage Inc. v. TCO AS,
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`No. 6:20-cv-00622-ADA (W.D. Tex) (NCS v. TCO case) (collectively, the “NCS cases”). See
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`Opp. at 3. Instead, Amazon suggests the Court’s precedent in the NCS cases should be ignored in
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`favor of the earlier Profectus Technology v. Google LLC, No. 6:20-cv-00101-ADA, 2022 WL
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`Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 2 of 8
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`3362282 (W.D. Tex. Aug. 15, 2022) as well as Innovation Sciences, LLC v. Amazon.com, Inc.,
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`No. 2021-2111, 2022 WL 2824675, at *4 (Fed. Cir. Jul. 20, 2022). As explained below, these
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`arguments fail because AlmondNet’s requested costs are within the Court’s definition of
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`exemplification, including that from Profectus, and Amazon’s application of Innovation Sciences
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`mischaracterizes Fifth Circuit law.
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`A.
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`Trial Animations/Graphics
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`AlmondNet should be awarded its costs for trial animations/graphics, totaling $44,981.60,
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`because these costs meet the Court’s definition of exemplification from Profectus. The trial
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`animations/graphics in the demonstrative exhibit of AlmondNet’s infringement technical expert,
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`Dr. Eric Koskinen, are exemplifications because they were representative of the technology and
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`the patented systems and methods at issue in the case and illustrated the operation of Amazon’s
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`infringing Demand Side Platform and Sponsored Display advertising products. See Dkt. No. 327
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`at 6 (providing pin cite references to the illustrations in Dr. Koskinen’s demonstrative exhibit).
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`Likewise, AlmondNet’s technical expert on validity, Jason Frankovitz, included numerous
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`illustrations in his demonstrative exhibit to efficiently describe the reasons why Amazon’s
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`invalidity expert Dr. Hanson’s theories were without merit and to accurately explain how two
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`complex prior art systems operated. See id. at 6-7 (providing pin cite references to the illustrations
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`in Mr. Frankovitz’s demonstrative exhibit). Amazon’s reliance on this Court’s decision in
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`Profectus is inapposite, because the trial graphics at issue there were “not examples, illustrations,
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`prototypes, samples, or the like” that would fall within the definition of “exemplification.” 2022
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`WL 3362282, at *7. In contrast, here, AlmondNet is only seeking costs related to its technical
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`experts’ graphics that provided “examples” and “illustrations” of the accused technology and
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`prior art systems, which fall squarely within the definition of “exemplification” endorsed by
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`Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 3 of 8
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`Profectus. Id. (defining “exemplification” as “something that exemplifies; an illustration or
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`example”).
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`The fact that Profectus cannot be read as a bar for costs for any and all trial graphics
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`(including graphics which, like the ones at issue here, provide technical illustrations and
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`examples) is shown by this Court’s decision in the NCS cases, which were decided after
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`Profectus. Specifically, according to the briefing in the NCS v. TCO case, during the post-trial
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`motions hearing in the NCS v. Nine case this Court specifically said it was awarding NCS costs
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`for graphics used at trial. See NCS v. TCO case, Dkt. No. 328 (Ex. 4) at 5 (TCO Motion); see also
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`NCS v. TCO case, Dkt. No. 358 (Ex. 1) at 2 (TCO Order awarding plaintiff all costs requested);
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`NCS v. Nine case, Dkt. No. 300 (Ex. 6) at 1 (Nine entered Bill of Costs awarding the same).
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`Notably, although the Court did not issue orders explaining its reasoning for awarding
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`costs in the NCS cases, NCS made many of the same arguments in support of this costs awards
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`that AlmondNet now makes. See, e.g., NCS v. TCO case, Dkt. No. 328 (Ex. 4) at 4 (NCS’s motion
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`arguing that expert’s “demonstrative exhibits that explained in detail the technology at issue in
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`this case” and “the operation of the prior art … are exemplifications because they were
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`representatives of or illustrations of these products”); id. at 4-5 (“The use of these animations …
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`assisted the jury in considering the infringement invalidity issues and allowed NCS to present
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`their case in a streamlined, orderly, and efficient manner.”); id. at 7 (“NCS presented its case in
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`an efficient and effective manner to the jury because of its trial technician.”); NCS v. Nine case,
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`Dkt. No. 277 (Ex. 7) at 4 (arguing that costs are appropriate for graphics because they show how
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`the accused devices infringe). Notably, just like AlmondNet, NCS argued that its graphics fit
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`within the definition of exemplifications set forth in Profectus. NCS v. TCO case, Dkt. No. 328
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`(Ex. 4) at 4-5. Thus, Profectus cannot have created a per se bar on their recovery
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`Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 4 of 8
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`Amazon relies on Innovation Sciences for the proposition that costs for trial graphics (and
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`technicians) cannot be recovered under §1920(4) under Fifth Circuit law. As explained below,
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`this is a mischaracterization of both Innovation Sciences and Fifth Circuit law.
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`Innovation Sciences relied on a Federal Circuit decision that excluded graphics as
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`recoverable exemplification costs under First Circuit law because they were not within the scope
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`of the Black’s Law Dictionary definition of exemplification, i.e., an official transcript of a public
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`record, authenticated as a true copy for use as evidence. See 2022 WL 2824675, at *4 (citing
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`Summit Tech., Inc. v. Nidek Co., Ltd., 435 F.3d 1371, 1375 (Fed. Cir. 2006)). But in Summit
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`Technology, the Federal Circuit merely sought to “determine how the First Circuit would likely
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`decide the question.” 435 F.3d at 1376. Because no First Circuit case law directly addressed the
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`question, Summit Technology reached its conclusion by “look[ing] to the law of the other
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`circuits,” “[l]ocal rules in a few district courts,” and “the First Circuit’s recognition of the stunted
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`reach of Rule 54(d).” Id. (quotation marks omitted) While the three-judge panel ultimately
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`determined that the First Circuit would adopt the narrow, legal definition of the term
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`“exemplification,” the only Fifth Circuit case included in its reasoning was Coats v. Penrod
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`Drilling Corp., which did not apply the Black’s Law Dictionary definition of “exemplification.”
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`5 F.3d 877, 891 (5th Cir. 1993) (merely providing that the unspecified “blow-ups” used at trial
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`were “not included in § 1920 and therefore are not recoverable”).
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`Moreover, other Fifth Circuit authority explicitly applies “exemplification” more broadly
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`than the Black’s Law Dictionary definition discussed by Innovation Sciences and Summit
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`Technology. Specifically, the Fifth Circuit in Gaddis v. United States cited with approval a case
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`in which “photographic materials” and “graphic aids” were encompassed within
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`“exemplifications.” See 381 F.3d 444, 456 (5th Cir. 2004)) (citing Maxwell v. Hapag-Lloyd
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`Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 5 of 8
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`Aktiengesellschaft, 862 F.2d 767, 770 (9th Cir. 1988)); Maxwell, 862 F.2d at 770 (explaining that
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`“[i]n the context of § 1920, ‘exemplification and copies of papers’ has been interpreted to include
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`all types of demonstrative evidence, including photographs and graphic aids”).
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`Therefore, although photographic materials and graphic aids may not meet the restrictive
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`Black’s Law Dictionary definition discussed in Innovation Sciences and Summit Technology, that
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`definition is simply not applicable in the Fifth Circuit. Indeed, this Court in Profectus explicitly
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`rejected the Black Law Dictionary definition of “exemplification.” See 2022 WL 3362282, at *7
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`(addressing “the restrictive definition provided in Black’s Law Dictionary,” and explaining “that
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`a less restrictive definition, as provided by lay dictionaries,” is appropriate and extends to
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`“something that exemplifies; an illustration or example”).
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`Accordingly, AlmondNet’s trial animations/graphics are qualifying exemplification costs
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`recoverable under 28 U.S.C. § 1920(4).
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`B.
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`Trial Technician
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`AlmondNet should also be awarded its trial technician costs because its trial technician
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`ran AlmondNet’s audio-visual courtroom equipment—to exemplify materials to the jury—
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`throughout the entire trial. Specifically, the $19,027.50 in trial technician costs that AlmondNet
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`incurred on the five days of trial were necessary costs for exemplification under Section 1920(4)
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`and are therefore recoverable.
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`This Court has awarded such trial technician costs as exemplification under § 1920(4) in
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`the NCS cases after Profectus. See NCS v. TCO case, Dkt. No. 328 (Ex. 4) at 7 (NCS’s motion
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`requesting for $17,539.39 in trial technician costs); id. at 4-5 (“NCS presented its case in an
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`efficient and effective manner to the jury because of its trial technician.”); NCS v. TCO case, Dkt.
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`No. 358 (Ex. 1) at 2 (order awarding NCS all costs requested); NCS v. Nine case, Dkt. No. 267
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`(Ex. 5) at 10 (NCS’s motion requesting $19,166.26 in trial technician costs); NCS v. Nine case,
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`Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 6 of 8
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`Dkt. No. 300 (Ex. 6) at 1 (Bill of Costs awarding NCS all costs requested). Like the prevailing
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`party in the NCS cases, here, AlmondNet is only seeking to recover a modest amount for its
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`Section 1920(4) expenses. This in contrast to the “staggering amount” of $114,380.00 that the
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`prevailing party in Profectus sought to recover for producing trial graphics, obtaining
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`demonstratives, and retaining a trial technician. See 2022 WL 3362282, at *5, *9. AlmondNet’s
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`$64,009.10 request for trial animations/graphics and its trial technician is roughly $50,000 less
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`than what the prevailing party in Profectus sought and is consistent with the statute’s purpose of
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`taxing minor, incidental expenses.
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`Therefore, the Court should award AlmondNet the trial technician costs incurred
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`specifically on the five days of trial, totaling $19,027.50, under Section 1920(4).
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`II.
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`Conclusion
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`For the foregoing reasons, as well as those in AlmondNet’s opening brief (Dkt. No. 327),
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`AlmondNet, as the prevailing party, requests an award of costs totaling $178,230.18. This total
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`includes the uncontested costs, totaling $114,221.08,1 and contested costs, totaling $64,009.10.
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`Dated: November 12, 2024
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`Respectfully submitted,
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`/s/ Reza Mirzaie
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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
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` See Dkt. No. 327 at 2-5 (AlmondNet identifying the uncontested costs).
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`Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 7 of 8
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`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
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`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
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`Attorneys for Plaintiff AlmondNet, Inc.
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`Case 6:21-cv-00898-ADA Document 330 Filed 11/12/24 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`I certify that all counsel of record are being served with a copy of the foregoing document
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`via the Court’s CM/ECF system on November 12, 2024.
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`/s/ Reza Mirzaie
`Reza Mirzaie
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