Case 6:21-cv-00898-ADA Document 333 Filed 11/26/24 Page 1 of 25
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`UNITED STATES DISTRICT COURT
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`FOR THE WESTERN DISTRICT OF TEXAS
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`WACO DIVISION
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`Plaintiff,
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`v.
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`Case No. 6:21-cv-00898-ADA
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`JURY TRIAL DEMANDED
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`ALMONDNET, INC.,
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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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`PLAINTIFF ALMONDNET, INC.’S OPPOSITION TO DEFENDANTS’
`RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
`PURSUANT TO FED. R. CIV. P. 50(b)
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ................................................................................................................. 1
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`II. STANDARD OF REVIEW ................................................................................................... 1
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`III. SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S INFRINGEMENT VERDICT
`FOR BOTH ASSERTED PATENT CLAIMS ...................................................................... 2
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`A. There is substantial evidence that Amazon infringes claim 24 of the ’639 patent. ........ 2
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`1. Limitation 24(b): “computer-facilitating delivery to visitor computers visiting a
`second, different Internet set of advertisements sold, for a first price, for
`placement on visitor computers that have visited the first Internet site” ................ 2
`2. Limitation 24(c): “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
`3. Limitation 24(e): “wherein the revenue received by the second Internet site is
`in an amount less than the first price for the advertisements” ................................ 8
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`Limitation 24(f): “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” .................................................................... 8
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`B. There is substantial evidence that Amazon infringes claim 37 of the ’139 patent. ...... 10
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`1. Limitation 37(a): “automatically directing to a third-party server computer …
`[an] indicia of a condition for display of an advertisement” ................................ 10
`2. Limitation 37(b): “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” .............................................................................. 11
`3. Limitation 37(c): “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” .............................................. 12
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`4.
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`“for each of a multitude of different electronic visitors to a first media
`property” ............................................................................................................... 14
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`IV. SUBSTANTIAL EVIDENCE SUPPORT’S THE JURY’S FINDING THAT AMAZON
`FAILED TO CARRY ITS BURDEN OF PROVING INVALIDITY................................. 16
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`A. Amazon failed to show that the individual limitations were not inventive. ................. 17
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`B. Amazon further failed to show that the ordered combination is not inventive. ........... 19
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`TABLE OF AUTHORITIES
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`Cases
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`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) .................................................................................................................. 2
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`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018) ............................................................................................... 16
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`Chiron Corp. v. Genentech, Inc.,
`363 F.3d 1247 (Fed. Cir. 2004) ................................................................................................. 1
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`Continental Circuits LLC v. Intel Corp.,
`915 F.3d 788 (Fed. Cir. 2019) ................................................................................................. 12
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`Holmes v. Reddoch,
`117 F.4th 309 (5th Cir. 2024) .................................................................................................. 16
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`Jiaxing Super Lighting Elec. Appliance Co. v. CH Lighting Tech. Co.,
`No. 6:20-cv-00018-ADA, 2023 WL 2415281 (W.D. Tex. Mar. 8, 2023) ................................ 2
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`Microsoft Corp. v. i4i Ltd. P'ship,
`564 U.S. 91 (2011) .................................................................................................................. 16
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`Taylor-Travis v. Jackson State Univ.,
`984 F.3d 1107 (5th 2021) .......................................................................................................... 2
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`Wellogix, Inc. v. Accenture, LLP,
`716 F.3d 867 (5th Cir. 2013) ..................................................................................................... 2
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`Statutes
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`35 U.S.C. §101 .............................................................................................................................. 1
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`I.
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`INTRODUCTION
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`After AlmondNet’s decisive victory at trial before a jury, Amazon moves for judgment as
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`a matter of law on two issues: infringement and patent eligibility. The Court should deny JMOL
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`on both issues.
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`First, Amazon moves for JMOL of non-infringement on both claims that were asserted at
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`trial, and which the jury found that Amazon infringed: claim 24 of U.S. Patent No. 7,822,639
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`(“the ’639 patent,” Dkt. No. 1-15) and claim 37 of U.S. Patent No. 8,671,139 (“the ’139 patent,”
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`Dkt. No. 1-13). Amazon’s scattershot non-infringement theories mischaracterize the requirements
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`of the asserted claims, mischaracterize AlmondNet’s infringement theory, and mischaracterize
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`the evidence. AlmondNet presented extensive evidence of infringement of each claim at trial, and
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`far more than the substantial evidence required to reject Amazon’s motion.
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`Second, Amazon moves for JMOL of invalidity of the ’139 patent under 35 U.S.C. §101.
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`Amazon does not even allege that it presented sufficient evidence such that a reasonable jury
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`could have found Amazon met its clear-and-convincing evidence burden. And even if Amazon
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`had provided such evidence, AlmondNet presented more than sufficient evidence for the jury to
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`conclude that the claim limitations were inventive either (1) individually or (2) as an ordered
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`combination, such that JMOL must be denied on this issue as well.
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`II.
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`STANDARD OF REVIEW
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`“A trial court should grant a motion for JMOL if substantial evidence does not support the
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`jury’s factual findings, presumed or express, or if those factual findings cannot support the legal
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`conclusions implied from the jury’s verdict.” Chiron Corp. v. Genentech, Inc., 363 F.3d 1247,
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`1252-53, 1256 (Fed. Cir. 2004) (affirming denial of JMOL because substantial evidence
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`supporting the jury verdict). “In deciding a renewed JMOL motion [under Rule 50(b)], a ‘court
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`must draw all reasonable inferences in favor of the nonmoving party, and it may not make
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`credibility determinations or weigh the evidence.’” Jiaxing Super Lighting Elec. Appliance Co.
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`v. CH Lighting Tech. Co., No. 6:20-cv-00018-ADA, 2023 WL 2415281, at *2 (W.D. Tex. Mar.
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`8, 2023) (Albright, J.) (quoting Taylor-Travis v. Jackson State Univ., 984 F.3d 1107, 1112 (5th
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`2021)). “The court must disregard all evidence favorable to the moving party that the jury is not
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`required to believe. This is because ‘[c]redibility determinations, the weighing of the evidence,
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`and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’”
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`Id. (internal citation omitted, quoting Wellogix, Inc. v. Accenture, LLP, 716 F.3d 867, 874 (5th
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`Cir. 2013)); cf. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). At bottom, “JMOL is
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`inappropriate if the record evidence is such that reasonable and fair-minded men in the exercise
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`of impartial judgment might reach different conclusions.” Jiaxing, 2023 WL 2415281, at *2.
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`III.
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`SUBSTANTIAL EVIDENCE SUPPORTS THE JURY’S INFRINGEMENT
`VERDICT FOR BOTH ASSERTED PATENT CLAIMS
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`A jury found that Amazon infringes both claim 24 of the ’639 patent and claim 37 of the
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`’139 patent. Dkt. No. 279 at 3; see also Dkt. No. 320 ¶¶2-3. There is, at a minimum, substantial
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`evidence that supports both of these jury findings. In its JMOL, Amazon mounts challenges to
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`only certain claim limitations. AlmondNet thus only addresses these limitations in this brief.
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`A.
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`There is substantial evidence that Amazon infringes claim 24 of the ’639
`patent.
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`1.
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`Limitation 24(b): “computer-facilitating delivery to visitor
`computers visiting a second, different Internet set of
`advertisements sold, for a first price, for placement on visitor
`computers that have visited the first Internet site”
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`Amazon alleges that AlmondNet failed to prove infringement of this limitation for three
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`reasons: (1) because “Amazon does not deliver the same advertisements1 to multiple visitor
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`computers that visit a particular second site after having visited a particular first site”; (2)
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`1 All emphases added unless otherwise noted.
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`because Amazon does not “deliver advertisements that were sold for an established price”; and
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`(3) “[b]ecause there are no advertisements ‘sold’ for a ‘first price’ when Amazon submits bids in
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`the accused process.” Mot. (Dkt. No. 325) at 2, 5. Each of these arguments fails because, as the
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`record evidence shows, when viewed from the perspective of a person having ordinary skill in
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`the art (“POSITA”), claim 24 simply does not contain the requirements that Amazon alleges it
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`does.
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`On Amazon’s first argument, it is undisputed that the claimed method must be performed
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`for multiple “visitor computers.” See, e.g., Trial Tx.2 at 330:25-331:9, 341:7-12 (AlmondNet’s
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`infringement expert Dr. Eric Koskinen agreeing with this interpretation). And there was evidence
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`presented at trial that Amazon, unsurprisingly, causes the delivery of advertisements to multiple
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`visitor computers. See, e.g., id. at 768:18-769:18; see also id. at 341:7-12. What is disputed is
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`whether the claim requires delivery of the same advertisement and that the multiple “visitor
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`computers” must visit the same “first Internet site” and the same “second Internet site.” As an
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`initial matter, Amazon waived this claim construction-based argument by not raising it at any
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`point before the case went to the jury.3 Moreover, it is clear from the claim language of claim 24
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`itself that it does not impose any of these “sameness” limitations that Amazon claims are present.
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`And AlmondNet presented evidence at trial that a POSITA would not understand claim 24 to
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`contain these “sameness” requirements, which the jury was entitled to credit. Id. at 330:25-332:12
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`(Dr. Koskinen disagreeing that claim 24 requires that the visitor computers (plural) “have to visit
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`2 The five volumes of trial transcripts are Docket Nos. 291-295. Because the five volumes are
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`numbered consecutively, for simplicity AlmondNet refers to them as “Trial Tx.” here.
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`3 Many of the other arguments that Amazon raises under the guise of non-infringement are also
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`waived claim construction arguments, including those address in Sections of this brief.
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`the same first Internet site”); id. at 332:13-334:14 (Dr. Koskinen explaining that claim 24 does
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`not require that the visitor computers have to visit “the same second Internet site” because the
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`claim is “referring to the second Internet site for the particular visitor”).
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`Amazon’s second argument also fails. As an initial matter, Amazon’s purported
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`requirement that claim 24 requires a sale of advertisements that occurred prior to the method
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`being performed is in direct contradiction with this Court’s Markman order. In its Markman order,
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`in part because an Applicant statement to which Amazon pointed did not amount to disclaimer,
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`the Court rejected Amazon’s contention that “the advertisement must have been previously sold,”
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`and further concluded that payment need not “occur prior to the placement of the advertisement
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`at the second Internet site. By contrast, payment could be made, for example, at the end of the
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`month.” Dkt. No. 113 at 14-15 (emphasis in original).4 Indeed, this Court excluded Amazon’s
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`trial demonstratives indicating that the ads must be “previously sold” for this very reason. Trial
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`Tx. at 642:12-18 (“I have a slide, Slide 32, in which the defendant would like to have the expert
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`discuss … about no multiple computers visiting the same second site seeing the same previously
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`sold advertisements, and the emphasis being on ‘previously sold.’”); id. at 642:24-9 (“And the
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`other issues on Slide 34 has to do with … whether or not the defendant, through their expert, can
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`discuss having been sold, which related to the previously sold advertisements, because ‘sold’ is
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`in the past tense.”); id. at 656:2-5 (“With respect to Slide 32 and Slide 34, I’m not going to allow
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`4 Amazon cites a number of cases for the proposition “that a claim term written in the past tense
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`must carry that meaning in the context of the claim.” Mot. at 3-4 n.4. But here, by properly
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`examining the claim in view of the intrinsic record, the Court has already rejected Amazon’s
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`contention that “sold” means “previously sold” or “sold in the past” in the context of claim 24 of
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`the ’639 patent.
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`the defendant to use either one of these. I think they possibly could be inconsistent with the
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`Court’s Markman order.”).
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`And in any event, AlmondNet presented evidence at trial that the plain meaning of the
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`claim to a POSITA does not require sale of advertisements to occur before the claimed method is
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`performed, which the jury was entitled to credit. Id. at 243:6-14 (“Q. And this claim, does it have
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`a specific time requirement for when the advertisement must be sold? A. [Dr. Koskinen:] No.
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`Simply that the advertisements are sold at some point.”).
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`Amazon’s third argument fares no better. In essence, Amazon claims that Amazon
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`Demand Side Platform (“Amazon DSP”) and Sponsored Display, the accused Amazon Ads
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`products, do not sell ads because the publisher’s ad server (the ad server of the “second Internet
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`site”) has the “final say” about what ad is displayed. Mot. at 5. What the publisher’s ad server
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`does is irrelevant. What matters is that the accused products “facilitat[e] delivery” of
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`advertisements to certain visitor computers visiting a “second Internet site.” And of course
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`Amazon Ads sells ads—the evidence of record of course shows that is how the accused products
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`generate revenue. See infra § III.A.3. To the extent Amazon is alleging that the claim requires
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`sale contemporaneously with its performance of claim element 24[b] (see Mot. at 5 (“[T]here are
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`no advertisements “sold” for a “first price” when Amazon submits bids in the accused process.”)
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`(emphasis added)), as discussed above, claim 24 has no such temporal requirement. See, e.g.,
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`Trial Tx. at 243:6-14.
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`2.
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`Limitation 24(c): “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”
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`Amazon alleges that AlmondNet failed to prove infringement of this limitation for four
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`reasons. AlmondNet addresses each one in turn; all of them fail.
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`First, Amazon claims that the accused products do not meet this limitation because
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`“Amazon does not ‘direct’ any advertisements” because the publisher’s ad server has the “final
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`say” about what ad is displayed. Mot. at 6. But this is just a repetition of the flawed, irrelevant
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`argument discussed immediately above. Indeed, AlmondNet presented extensive evidence of how
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`Amazon “directs” advertisements to visitor computers, what is actually required by the claim, by
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`sending ads to the publisher for display as part of bid responses. Id. at 246:9-247:10 (Dr.
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`Koskinen: “Amazon directs advertisements to the publisher and it does that through bid responses
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`that include not only the ad but also the bid amount with it.”); id. at 563:17-22 (Mr. Knapp
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`testifying that the bid response contains “an ad and a bid amount”); see id. at 199:14-25, 231:11-
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`20; see also id. at 761:7-10.
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`Second, Amazon is incorrect that the accused products “do[] not submit bids ‘as a
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`consequence of’ a computer determining that visitor computers visiting a second website
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`previously visited Amazon’s website, let alone do so using tags and electronic records.” Mot. at
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`6. Amazon claims that because in certain scenarios, such as if a user is using a brand new
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`computer, “ads corresponding to Amazon bids are shown to visitor computers irrespective of
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`whether they have ever visited an Amazon site previously establishes that Amazon makes no
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`computer-determination that the same visitor computers previously visited an Amazon site as part
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`of delivering an ad.” Id. at 7 (emphases in original). As Amazon admits, AlmondNet is not
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`claiming that such a scenario infringes this method claim. Id. at 7-8 n.6. AlmondNet is, of course,
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`in accordance with what the claim requires, only accusing instances where the accused products
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`are in fact able to determine that the visitor computer has previously visited an Amazon site. See,
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`e.g., Trial Tx. at 370:25-371:16, 778:2-8.
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`And in those accused scenarios the record evidence establishes that the accused products
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`determine if that visitor has previously visited an Amazon site using the “tags and said electronic
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`records” by seeing if they can identify the visitor computer, and then submits a bid response taking
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`the identification and associated targeting segment information into account. See, e.g., id. at
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`237:23-240:12 (Dr. Koskinen mapping “tags” to various identifiers and “records” to identity and
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`targeting segment records that are part of Amazon’s identity and targeting services); id. at 244:22-
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`246:17 (Dr. Koskinen explaining that those same tags and records are used in formulating bid
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`responses); see also id. at 197:10-199:25, 205:14-232:14.
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`Third, Amazon also claims that it does not infringe because it “does not cause receiving
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`revenue for displaying ads to visitor computers at a non-Amazon site as a consequence of
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`determining that the same computers previously visited an Amazon site.” Mot. at 8 (emphasis in
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`original). But as described immediately above, when the accused products are used in an
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`infringing manner, the evidence of record shows that they “determin[e], using the tags and said
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`electronic records, that such visitor computers have visited the first Internet site.” To the extent
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`Amazon is alleging that claim 24 requires the payment process itself to use the “tags,” not only is
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`such an interpretation contrary to claim language on its face,5 but AlmondNet also presented
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`evidence at trial that a POSITA would not understand this limitation to contain such a
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`requirement. See Trial Tx. at 370:9-24 (“Q. What are the tags and records in this claim element
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`used for? A. [Dr. Koskinen:] They’re used to track that the visitor computers have visited the first
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`Internet site. Q. So they’re not used in the payment process? A. Nope.”); see also id. at 351:2-18.
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`Finally, Amazon confusingly alleges that AlmondNet’s expert did not point to any
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`“computer” functionality of the accused products that makes the claimed “computer-
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`5 Amazon also waived this claim construction-based argument by failing to raise it at any point
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`before the case went to the jury.
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`determin[ation], using the tags and electronic records, that such visitor computers have visited the
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`first Internet site.” Mot. at 8-9. But the accused products are of course implemented with
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`computers, as the trial evidence shows. See, e.g., Trial Tx. at 205:14-232:14 (Dr. Koskinen
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`describing in detail the computer functionality that makes this determination using the “tags” and
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`“electronic record,” including discussing source code used in this process). And to the extent
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`Amazon is claiming that AlmondNet did not map the “tags” and “electronic records” of limitation
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`24(c) to the same “tags” and “electronic records” that it pointed to for other claim limitations (see
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`Mot. at 8-9), the evidence of record demonstrates that is simply not so. Trial Tx. at 237:23-240:12
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`(for limitation 24(a), Dr. Koskinen mapping “tags” to various identifiers and “records” to identity
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`and targeting segment information that are part of Amazon’s identity and targeting services); id.
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`at 244:8-245:6 (Dr. Koskinen explaining that those same tags and records are used for limitation
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`24[c]).
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`3.
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`Limitation 24(e): “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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`Limitation 24(f): “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”
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`Amazon’s argument that these claim limitations are not met appears to be based on an
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`erroneous understanding of the claim term “first price.” Amazon alleges the claimed “first price”
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`must correspond to the “bid amount” or the amount paid to the publisher (the proprietor of the
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`“second internet site”). See Mot. at 9-10. But Amazon’s interpretation does not make sense in the
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`context of the claim language itself.6 For example, claim element 24(f) of the ’639 patent requires
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`6 This is another claim construction-based argument that Amazon waived by failing to raise it
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`before the case went to the jury.
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`that “the proprietor of the first Internet site retains at least part of the difference between the first
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`price and the revenue received by the proprietor of the second Internet site.” If the “first price”
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`is equal to what the “proprietor of the second Internet site” charges, logic dictates that claim
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`element 24(f) could never be met, as there would be nothing left for “the proprietor of the first
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`Internet site” to “retain[].”
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`Rather, in line with the plain meaning of the term, Dr. Koskinen testified that the “first
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`price” corresponds to the total amount that the advertiser pays to Amazon for an ad to be
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`displayed, which includes the bid amount as well as various fees that Amazon charges its
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`advertiser customers. Trial Tx. at 241:23-242:12 (Dr. Koskinen: “In the case of Amazon DSP,
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`the first price consists of what’s called the media costs, which is basically the bid amount, as well
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`as a couple other fees. So there are data fees for using Amazon’s first party segments. There are
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`platform or the fees, and managed service fees, in some cases.”); id. at 242:17-243:5 (“With
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`Sponsored Display, there’s also the media cost or the bid amount, but then there’s also a
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`Sponsored Display fee. And those are the first price.”).
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`Moreover, it is undisputed that the publisher receives part of what the advertiser pays to
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`Amazon, and that Amazon retains the rest. First, it is undisputed that the publisher receives the
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`entire “bid amount” or “media cost.” Mot. at 9-10; see also Trial Tx. at 156:25-4, 168:12-20,
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`169:14-170:8, 248:5-14. Second, it is also undisputed that Amazon retains the balance of the
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`monies received from its advertising customers. Mot. at 9; see also Trial Tx. at 157:5-9, 168:21-
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`169:13, 169:14-170:8. There was therefore ample evidence from which the jury could conclude
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`that limitations 24(e) and 24(f) were infringed by the accused products because the publisher
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`receives part of the “first price” and Amazon retains the remainder of it. See Trial Tx. at 233:9-
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`14 (Dr. Koskinen: “So advertisers pay fees to Amazon, and those fees will cover not only the
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`publisher aspect of it, to compensate the publisher for using that ad slot, but also for the value that
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`Amazon is providing about [that] user. So Amazon will retain another portion of that profit.”); id.
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`at 552:20-553:3 (“Q. And [in] this process, does Amazon take any cut from the advertiser bid?
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`A. [Amazon’s corporate representative Ron Knapp:] No. We … bid on their behalf, we pay the
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`publisher what we bid, and then we charge them for what we bid on their behalf. Q. Then how
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`does Amazon make money with the Amazon DSP? A. We charge … service fees for our
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`technology.”); id. at 565:3-566:4 (Mr. Knapp confirming Amazon retains these fees and makes a
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`profit by doing so); id. at 765:19-24 (Amazon’s infringement expert Henry Houh agreeing that
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`“Amazon has made money off fees”); see also id. at 247:11-247:4, 249:5-250:12; PTX-027 at 2.
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`B.
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`There is substantial evidence that Amazon infringes claim 37 of the ’139
`patent.
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`1.
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`Limitation 37(a): “automatically directing to a third-party server
`computer … [an] indicia of a condition for display of an
`advertisement”
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`Amazon’s argument concerning this limitation is based on a false premise: that “Dr.
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`Koskinen opined that the ‘condition’ for purposes of infringement was … a ‘bid amount.’” Mot.
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`at 13. But the evidence of record shows this is not the case. Rather, at trial, AlmondNet and Dr.
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`Koskinen mapped the amount the advertiser is willing to pay (the “bid amount”) to the “indicia
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`of the condition,” with the “condition for display of [an] advertisement” being “that [the publisher
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`is] agreeing that [it]’ll accept the amount that the advertiser’s willing to pay” Trial Tx. at 261:23-
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`262:5; see also id. at 199:14-200:8, 265:20-25, 276:20-25. Indeed, Dr. Houh agreed that Dr.
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`Koskinen mapped the “bid amount” not to the “condition,” but to the “automatically directed
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`indicia of a condition.” Id. at 716:23-717:3; see also id. at 801:17-802:4. This distinction is
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`important because the “indicia of a condition for display” is a separate claim element from the
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`“condition” itself. Thus, contrary to Amazon’s claim to the contrary, both Dr. Koskinen and
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`AlmondNet’s validity expert Jason Frankovitz consistently interpreted a “condition” to be “a rule
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`that is evaluated as true or not” (see Mot. at 13)—on the infringement side of things, either the
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`publisher agrees to accept the bid amount for its ad space (and the ad is displayed), or it does not
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`(and the ad is not displayed).7
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`2.
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`Limitation 37(b): “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”
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`Amazon is correct that Dr. Koskinen opined “that the automatic authorization to cause
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`display of an advertisement need only occur contemporaneously with a visit to the second media
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`property and after a visit to the first media property.” Id. at 14. Indeed, that is what the plain
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`language of the claim’s temporal limitation (“when the electronic visitor visits the second media
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`7 To the extent Amazon is arguing that the condition itself cannot be that the publisher accepts
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`the bid because “an advertiser would never condition the publisher’s display of the ad on
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`accepting the bid” since “an advertiser would be happy to have the publisher display the
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`advertiser’s ad for free,” this makes no sense. See Mot. at 13. Of course an advertiser would like
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`free ads. But that is irrelevant. What matters here is that Amazon (not the advertiser) submits a
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`bid response containing a bid amount or price, and the publisher agrees to charge that price (and
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`no more) before the advertisement can be displayed. Trial Tx. 261:23-262:8 (“[The publisher is]
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`agreeing that [they’ll] accept the amount that the advertiser’s willing to pay.”); id. 22:1-7 (noting
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`that the bid amount is an indicia of what Amazon is “willing to pay… to serve that ad”; of course,
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`only if a publisher determines that it’s willing to provide ad space for no more than Amazon is
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`willing to pay will it display the advertisement). Even if some hypothetical publisher system
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`nonsensically gave away ads without charging any price, it would thus still satisfy the pricing
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`condition.
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`property at a time after the electronic visitor visits the first media property”) requires. See Trial
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`Tx. at 267:23-270:5 (“So here, I’m just emphasizing the claim term ‘at a time after’ and showing
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`that Amazon meets this claim because [the exemplary user]’s visit to the second media property
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`is at sometime [sic] after Bob previously visiting an Amazon website of mobile application.”).
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`But Amazon argues that this “when” clause instead requires that “the authorization must
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`precede the visit” to the second media property. Mot. at 14-15. In addition to Amazon’s
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`interpretation being contrary to the plain language of the claim,8 AlmondNet presented evidence
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`at trial that such a reading of this limitation is contrary to how a POSITA would understand it.
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`Trial Tx. at 323:6-22 (“Q. So the authorizing has to happen before the visitor comes to the website
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`where they’re going to see the ad, right? A. [Dr. Koskinen] I disagree.”). And to the extent that
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`Amazon is attempting to read this “preauthorization” limitation into the claim based on exemplary
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`embodiments in the specification (see Mot. at 15-16), it is of course improper to do so under long-
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`standing Federal Circuit precedent. See, e.g., Continental Circuits LLC v. Intel Corp., 915 F.3d
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`788, 797-800 (Fed. Cir. 2019).
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`3.
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`Limitation 37(c): “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”
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`Amazon alleges that “the claimed profile attributes must originate from outside the
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`claimed system because that is the only way they can be ‘received by the system’” of claim 37.
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`Mot. at 16. It correctly notes that “Dr. Koskinen equates ‘segments’ with ‘profile attributes’ in
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`8 This is yet another claim construction-based argument that Amazon waived by failing to raise it
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`before the case went to the jury.
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`the claim,” but then contends that the accused products do not meet this limitation “[b]ec