Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`ALMONDNET, INC.,
`
`
`Plaintiff,
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`AMAZON.COM, INC., AMAZON.COM
`SERVICES LLC, and AMAZON WEB
`SERVICES, INC.,
`
`
`
`
`v.
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`
`
`
`
`
`
`
`Civil Action No. 6:21-cv-00898-ADA-DTG
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`JURY TRIAL DEMANDED
`
`
`
`
`Defendants.
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`REPLY BRIEF IN SUPPORT OF AMAZON’S
`RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW
`PURSUANT TO FED. R. CIV. P. 50(b)
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`
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`

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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 2 of 16
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`TABLE OF CONTENTS
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`Page
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`I.
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`THE COURT SHOULD GRANT JMOL OF NON-INFRINGEMENT .............................1
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`A.
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`Substantial evidence does not support an infringement finding as to claim 24 of
`the ’639 patent. .........................................................................................................2
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`1.
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`2.
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`3.
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`“visitor computers” and “advertisements sold, for a first price” ...............2
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`“… as a consequence of computer-determining, using the tags and said
`… records, that such visitor computers have visited the first Internet
`site” ..............................................................................................................4
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`“the revenue received by the second … site is in an amount less than
`the first price …”/ “the proprietor of the first … site retains at least
`part of the difference between the first price and the revenue ….” .............5
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`B.
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`Substantial evidence does not support an infringement finding as to claim 37 of
`the ’139 patent. .........................................................................................................6
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`1.
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`2.
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`3.
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`“for each of a multitude of different … visitors to a first media
`property:” ....................................................................................................6
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`“automatically directing to a third-party server computer … [an]
`indicia of a condition for display of an advertisement” ..............................7
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`“… authorizing … 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.” .........................8
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`4.
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`“profile attribute[s] … was received by the system …” ..............................8
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`II.
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`THE COURT SHOULD GRANT JMOL OF INVALIDITY .............................................9
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`i
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 3 of 16
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`CASES
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`TABLE OF AUTHORITIES
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`Page(s)
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`Broadcom Corp. v. Qualcomm Inc.,
`543 F.3d 683 (Fed. Cir. 2008)....................................................................................................1
`
`CommScope Techs. LLC v. Dali Wireless Inc.,
`10 F.4th 1289 (Fed. Cir. 2021) ..................................................................................................6
`
`Finjan LLC v. SonicWall, Inc.,
`84 F.4th 963 (Fed. Cir. 2023) ....................................................................................................6
`
`Hewlett-Packard Co. v. Mustek Sys., Inc.,
`340 F.3d 1314 (Fed. Cir. 2003)..................................................................................................1
`
`Intell. Ventures I LLC v. Motorola Mobility LLC,
`870 F.3d 1320 (Fed. Cir. 2017)..................................................................................................9
`
`Mirror Worlds Techs., LLC v. Meta Platforms, Inc.,
`Nos. 2022-1600, 2022-1709, 2024 WL 4960324 (Fed. Cir. Dec. 4, 2024) ...............................2
`
`MobileMedia Ideas LLC v. Apple Inc.,
`780 F.3d 1159 (Fed. Cir. 2015)................................................................................................10
`
`Southwall Techs., Inc. v. Cardinal IG Co.,
`54 F.3d 1570 (Fed. Cir. 1995)....................................................................................................2
`
`Synopsys, Inc. v. Mentor Graphics Corp.,
`839 F.3d 1138 (Fed. Cir. 2016)................................................................................................10
`
`Voxathon LLC v. Alpine Elecs. of Am., Inc.,
`No. 2:15-cv-562-JRG, 2016 WL 260350, at *4 (E.D. Tex. Jan. 21, 2016),
`aff’d, 671 F. App’x 793 (Fed. Cir. 2016) .................................................................................10
`
`Wis. Alumni Rsch. Found. v. Apple Inc.,
`905 F.3d 1341 (Fed. Cir. 2018)..................................................................................................1
`
`YETI Coolers, LLC v. RTIC Coolers, LLC,
`No. A–15–CV–597–RP, 2017 WL 404519 (W.D. Tex. Jan. 27, 2017) ................................1, 7
`
`
`
`ii
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 4 of 16
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`I.
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`THE COURT SHOULD GRANT JMOL OF NON-INFRINGEMENT
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`AlmondNet concedes that the Court did not construe any of the limitations relevant to
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`Amazon’s non-infringement arguments, and thus that those terms take their plain and ordinary
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`meaning. It argues in a series of footnotes, however, that Amazon waived its non-infringement
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`arguments concerning these unconstrued terms. (Dkt. No. 331 (“RB”) at 3 n.3, 7 n.5, 8 n.6, 12
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`n.8, 15 n.9.) No authority supports these assertions. Instead, the Federal Circuit has held
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`repeatedly that testing the verdict against the ordinary meaning of the claim does not raise a post-
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`trial claim construction issue, Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 696-97 (Fed. Cir.
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`2008), and that a jury verdict that conflicts with the plain meaning of a limitation cannot stand,
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`Wis. Alumni Rsch. Found. v. Apple Inc., 905 F.3d 1341, 1347-50 (Fed. Cir. 2018); Hewlett-Packard
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`Co. v. Mustek Sys., Inc., 340 F.3d 1314, 1320-21 (Fed. Cir. 2003). Though Amazon cited and
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`explained these authorities in its opening brief, AlmondNet’s opposition ignored them.
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`That law makes sense. Experts are free to explain the plain meaning of an unconstrued
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`term at trial, but their theories must remain consistent with the claim—i.e., they cannot “explain”
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`away entire claim limitations. As a court in this District put it, “[i]t is simply not enough to merely
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`state that ‘one skilled in the art’ would understand a phrase to mean something other than the plain
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`and ordinary meaning of those words. There must be some explanation to support such a claim …
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`otherwise ... experts would be completely unconstrained by the words of a patent.” YETI Coolers,
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`LLC v. RTIC Coolers, LLC, No. A–15–CV–597–RP, 2017 WL 404519, at *3 (W.D. Tex. Jan. 27,
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`2017).
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`For this reason, AlmondNet cannot prevail here simply by arguing that “the jury was
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`entitled to credit” its expert’s testimony. (See RB at 3, 5, 15, 16, 17.) That argument fails precisely
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`because Dr. Koskinen’s testimony did not apply the plain meaning of the relevant claim terms, and
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`1
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 5 of 16
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`instead in numerous instances contradicted it and read out literal requirements of the claim.1 As
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`discussed below, this testimony cannot support a verdict.
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`A.
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`Substantial evidence does not support an infringement finding as to claim 24
`of the ’639 patent.
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`1.
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`“visitor computers” and “advertisements sold, for a first price”
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`The parties agree that “the claimed method must be performed for multiple ‘visitor
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`computers.’” (RB at 3.)2 But the only testimony at trial from AlmondNet’s expert focused on a
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`single device, which cannot support the jury verdict for a claim that requires multiple computers.
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`(See Dkt. No. 325 (“OB”) at 2-3.) Rather than point to trial testimony for this limitation that would
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`support a verdict, AlmondNet instead relies on expert testimony concerning a different claim from
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`a different patent. (Compare RB at 3 (citing Trial Tr. at 768:18-769:18), with id. at 766:2-9
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`(confirming cited testimony relates to claim 37 of the ’139 patent).) That testimony does not save
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`AlmondNet because it relates to that other claim’s recitation of “a multitude of” different visitors
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`(i.e., users or people), which is insufficient to establish infringement of claim 24 of the ’639 patent.
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`Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1575 (Fed. Cir. 1995) (“To establish
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`literal infringement, every limitation set forth in a claim must be found in an accused product,
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`exactly.”).3
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`Claim 24 also requires the delivery of ads that have been “sold” for a “first price.” Since
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`1 The Federal Circuit recently faulted Dr. Koskinen for just such an error, ruling that his
`testimony did “not supply a reasonable basis for finding that the accused systems” satisfied what
`“the claim requires.” Mirror Worlds Techs., LLC v. Meta Platforms, Inc., Nos. 2022-1600, 2022-
`1709, 2024 WL 4960324, at *7 (Fed. Cir. Dec. 4, 2024). There, the claim required a “glance view”
`displaying “content” of an underlying document. The Court rejected Dr. Koskinen’s testimony
`that the accused system infringed by displaying author or source information rather than content,
`id., irrespective of any purported explanation the plaintiff might offer about the plain meaning of
`“content.”
`2 All emphasis is added and citations omitted unless otherwise noted.
`3 While AlmondNet also points to Trial Tr. at 341:7-12 (see RB at 3), that testimony merely
`acknowledges what is undisputed here—that the claim requires multiple visitor computers.
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`2
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 6 of 16
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`the Court gave no specific instruction about the term “sold” (see Trial Tr. at 1181:21-1182:13),
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`that term takes its plain meaning. (Id.) And AlmondNet does not dispute that its expert testified
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`that the plain meaning of “sold” is a past-tense verb referring to a prior sale, yet it offered no
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`evidence of any prior sale of ads at an established “first price.” (Compare RB at 4-5, with OB at
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`3-5.) That is determinative: no evidence supports an infringement verdict under the plain meaning
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`of the claim.
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`Instead, AlmondNet argues that the claim does not mean what it says—i.e., that despite
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`claiming delivery of “advertisements, sold for a first price,” the claim does not require the sale of
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`advertisements before the performance of the method. (RB at 4-5.) AlmondNet’s sole justification
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`is that the Court purportedly so construed the claim in its Markman order, and its expert just
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`testified consistently with that order. (Id.) But that is incorrect: the Markman order provided only
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`that the broader claim phrase in which “sold” appears be given its plain and ordinary meaning.
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`(Dkt. No. 113 at 9, 15.)4 Moreover, in so holding, the Court merely concluded that a prosecution
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`statement did not meet “the ‘exacting’ standard required for a prosecution disclaimer,” i.e.,
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`nowhere did the Court nullify the plain meaning of “sold.” (Id. at 14.) Because AlmondNet
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`offered no trial evidence of any prior sale of ads at an established “first price,” the Court should
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`grant JMOL of non-infringement.5
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`4 AlmondNet also relies on portions of the Court’s Markman opinion addressing the timing of
`payment. (RB at 4.) But those portions do not relate to this “sold” limitation; instead, they relate
`to the “has paid” limitation of claim 1 of the ’586 patent, which is no longer asserted in this case.
`(See Dkt. 113 at 9.) Separately, AlmondNet’s brief relies on the Court’s exclusion of trial
`demonstratives. (RB at 4-5.) But excluded material has no bearing on whether substantial
`evidence presented at trial supports the infringement verdict under the plain meaning of “sold.”
`5AlmondNet also misconstrues Amazon’s brief as suggesting that ad sales never occur. (RB
`at 5.) To the contrary, Amazon explained that AlmondNet points to Amazon’s submission of a
`bid to a third-party publisher as allegedly infringing this limitation. (OB at 5.) But when Amazon
`submits such a bid, there are no “advertisements sold, for a first price” as the claim requires
`because a bid—just like any bid into an ordinary auction—is merely an offer to pay, not a
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`3
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 7 of 16
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`2.
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`“… as a consequence of computer-determining, using the tags and said …
`records, that such visitor computers have visited the first Internet site”
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`Each of AlmondNet’s arguments regarding this limitation fail. First, it is undisputed that
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`the Amazon system sends auction bid responses to a publisher. (RB at 6.) But claim 24 does not
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`require sending bids to publishers; it requires directing ads “to the visitor computers visiting the
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`second Internet site.” (Dkt. No. 272-64 (“’639 patent”) at 31:38-43 (cl. 24(c)).) Yet the testimony
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`AlmondNet relies on concerns bid transmission to the publisher. (RB at 6.) In other words,
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`AlmondNet is arguing infringement by proxy—by pointing to potential downstream results of
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`auctions that occur (if at all) only after intervening choices and actions by third parties and their
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`systems. It has not provided evidence from which the jury could find literal infringement of the
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`claim by Amazon’s system.
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`Second, AlmondNet argues that it did not contend at trial that sending ads to brand-new
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`computers infringes. (RB at 6-7.) But that is a non sequitur—an attempt to dodge Amazon’s
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`argument. (See OB at 7.) AlmondNet’s expert conceded that brand-new computers could receive
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`an ad through the Amazon system, and that those new computers could not have visited any
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`Internet sites before. (Trial Tr. at 352:22-353:20.) Those admissions show that the accused system
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`does not, as required, direct ads “as a consequence of” any “computer-determin[ation] … that such
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`visitor computers have visited the first Internet site.” If the accused system tested for the required
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`condition—a previous visit to the first Internet site—then by definition a brand-new computer
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`could not receive an ad because that condition would not be satisfied. Indeed, AlmondNet admits
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`that Amazon submits a bid response by “taking the identification and associated targeting segment
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`information into account” (RB at 7), rather than based on any computer-determination that
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`consummated sale of any kind. (Id.) It is not until sometime later when the publisher decides to
`execute its auction and exercise its “final say” that any ads ever become “sold.” (Id.)
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`4
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 8 of 16
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`computers previously visited an Amazon site.6
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`Third, AlmondNet argues without support that the claim does not require the payment
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`process to use tags. (Id.) But the relevant claim language requires exactly that: “computer-causing
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`the proprietor of the second Internet site to receive revenue … as a consequence of computer-
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`determining, using the tags and said electronic records, that such visitor computers have visited
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`the first Internet site.” (’639 patent at 31:38-43 (cl. 24(c)).) And it is undisputed that the publisher
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`payment process does not use tags. (See OB at 8.) AlmondNet’s choice to argue that the claim
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`does not mean what it says rather than point to record evidence is a clear admission here.7
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`3.
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`“the revenue received by the second … site is in an amount less than the
`first price …”/ “the proprietor of the first … site retains at least part of the
`difference between the first price and the revenue ….”
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`AlmondNet does not dispute that Dr. Koskinen testified incorrectly that the Court
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`construed “first price” (OB at 9), and thus that instead the parties at trial should have applied plain
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`meaning. Nor does AlmondNet dispute that Dr. Koskinen failed to analyze the plain meaning of
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`“first price” in the context of the specification. (Id. at 9-10.) Instead, AlmondNet argues only that
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`Dr. Koskinen’s mapping of the “first price” to total fees paid by an advertiser to Amazon is “in
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`line with”—i.e., consistent with—that plain meaning—a meaning that AlmondNet does not even
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`identify. (RB at 9.) That places the cart before the horse: as the Court instructed the jury, the first
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`step in the infringement analysis is understanding the meaning of “first price” in light of the
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`6 And while AlmondNet points to testimony regarding how identifiers and segments are created
`(id.), it adduced no evidence that either are used to make the required determination that the visitor
`computers have previously visited an Amazon site.
`7 Finally, AlmondNet incorrectly argues that its expert described computer functionality of the
`claimed “computer-determination.” (RB at 8.) Nothing in the wide swath of testimony that
`AlmondNet cites (see id.) constitutes evidence of a “computer-determination” of the specifically
`claimed condition: “that such visitor computers have visited the first Internet site.” Instead, that
`testimony focuses solely on the creation and use of alleged “tags” and “electronic records,” which
`is not evidence of any “computer-determination” of the claimed condition.
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`5
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 9 of 16
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`intrinsic evidence. (Trial Tr. at 1180:8-13 (“You need to first understand what each claim covers
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`in order to [then] decide whether or not there’s infringement of the claim …. The first step is to
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`understand the meaning of the words used in the patent claim.”).) Because Dr. Koskinen’s opinion
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`on “first price” is a fictional accounting construct divorced from the intrinsic evidence, Amazon is
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`entitled to a JMOL of no infringement. Indeed, the meaning ascribed to the claims based on the
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`intrinsic evidence is significant because to establish literal infringement, the patentee must show
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`that the claim with that ascribed meaning reads on the accused device exactly. See CommScope
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`Techs. LLC v. Dali Wireless Inc., 10 F.4th 1289, 1298 (Fed. Cir. 2021).
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`B.
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`Substantial evidence does not support an infringement finding as to claim 37
`of the ’139 patent.
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`1.
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`“for each of a multitude of different … visitors to a first media property:”
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`The parties agree that this limitation precedes the four steps set out in claim 37(a)-(d), and
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`that it thus applies to each of those steps. (RB at 14-15.) But Dr. Koskinen never addressed this
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`limitation in his testimony on those steps. In fact, he ignored it entirely until after he had completed
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`his presentation on steps (a)-(d), when he offered the conclusory opinion that “any of these visitors
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`… will have the same steps applied to them.” (See OB at 10-11.) This contradicts the words of
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`the claim. The claim does not recite the independent performance of the method for “each visitor”
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`to any site, as Dr. Koskinen asserted. Instead, it recites the steps occur “for each of a multitude of
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`different electronic visitors to a first media property.” In other words, the claim requires that for
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`each of a “multitude” of electronic visitors who have visited the same “first media property,” the
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`system performs the four steps based on both that visit and their future visit to the same second
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`media property recited later in the claim. (See OB at 11-12.)8 AlmondNet does not dispute that it
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`8 Finjan LLC v. SonicWall, Inc., 84 F.4th 963, 974-75 (Fed. Cir. 2023) (“SonicWall argues that
`even if the reference to ‘a computer’ may mean ‘one or more computers,’ the subsequent references
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`6
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 10 of 16
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`offered no evidence of this—instead, it argues against the meaning of the claim. (RB at 14-15.)
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`This is wrong, and again shows that the record lacks substantial evidence of infringement.
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`2.
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`“automatically directing to a third-party server computer … [an] indicia of
`a condition for display of an advertisement”
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`The parties agree that a “condition” is “a rule that is evaluated as true or not.” (RB at 10-
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`11.) AlmondNet argues instead that in the accused system the “condition” is the publisher deciding
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`to accept a particular bid, and that the “indicia of the condition” is the bid amount previously
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`submitted to the auction that is ultimately accepted. (Id.) There was no evidence presented at trial
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`showing any publisher evaluating any rule; indeed, no publisher source code was ever produced
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`in this case. But that aside, an auction bid—an offer to pay a certain amount for ad space—
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`precedes the auction and the publisher’s decision and does not in any sense “indicate” a decision
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`to accept (occurring outside of Amazon’s system) that has not yet been made and may never occur.
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`Put another way, in the accused process, the third party publisher does not evaluate a bid amount
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`to determine if it is “true or not”; nor does it look to the bid amount as an indicator of whether it
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`previously accepted the bid or determined some other condition is met; the publisher merely
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`accepts the bid (or not) as the winner of the auction. Thus, in forwarding an auction bid Amazon
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`is not providing a third-party server an “indicia” of any “condition.” Again, AlmondNet’s theory
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`violates the claim, and there is no explanation of record from which a jury could find otherwise.
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`Cf. YETI Coolers, 2017 WL 404519, at *3.9
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`to ‘the computer’ can only be satisfied by the same ‘one or more computers’ that satisfied the first
`limitation…. We agree with SonicWall.”).
`9 AlmondNet appears to agree that an advertiser would never condition the publisher’s display
`of an ad on accepting the bid price because “[o]f course an advertiser would like free ads.” (RB
`at 11 n.7.) AlmondNet argues this is irrelevant because Amazon submits the bid as opposed to the
`advertiser. (Id.) But that distinction makes no difference because Amazon submits those bids on
`behalf of advertisers. Instead, what does matter is that there is nothing precluding the publisher
`from taking less than the bid amount—or nothing at all—to display an ad, which confirms that the
`bid amount does not indicate any condition that restricts the publisher’s actions. (See OB at 13.)
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`7
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 11 of 16
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`3.
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`“… authorizing … 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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`AlmondNet argues
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`the claimed “authorization”
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`in
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`this
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`limitation can occur
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`contemporaneously with the visit to the second media property. (RB at 11-12.) But it identifies
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`no support from the ’139 patent for that interpretation. (Id.) And none exists. (See OB at 13-16.)
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`Indeed, AlmondNet’s interpretation is incorrect at least because (1) it would render the
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`surrounding claim language, “at a time after the electronic visitor visits the first media property,”
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`superfluous; and (2) it conflicts with the specification. (See id.) Neither AlmondNet nor its expert
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`reconciled its interpretation with the ’139 patent. Accordingly, no substantial evidence supports
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`AlmondNet’s theory as to this limitation, and the Court should grant JMOL.10
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`4.
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`“profile attribute[s] … was received by the system …”
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`It is undisputed that the accused targeting “segments,” which AlmondNet maps to the
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`claimed “profile attributes,” must be generated outside the claimed system for it to be “received
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`by the system.” (RB at 12-13.) But the accused targeting segments cannot meet this requirement
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`because they are generated internally—i.e., within the Amazon system. (OB at 16.) AlmondNet
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`identifies no contrary evidence. Instead, it offers a new infringement theory that its expert never
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`presented at trial. (RB at 13.) AlmondNet now argues that “the portion of Amazon Ads that
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`generates the segments numbers (Quanta) is simply outside the claimed system,” and points to
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`technical documents, but it cites no trial evidence showing that it disclosed such a theory in this
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`case or articulated it to the jury at trial. (Id.)11 Such attorney argument after the fact does not
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`10 AlmondNet also argues that “to the extent that” Amazon is “attempting” to do so, it is
`improper to read a limitation from exemplary embodiments into the claim. (RB at 12.) But it
`makes no showing that is the case. (See id.) Nor would it change the outcome because
`AlmondNet’s interpretation still renders surrounding claim language superfluous. (OB at 14-16.)
`11 Likewise, AlmondNet argues—without citation to the trial record—that “the computers that
`Quanta uses to do so are not part of the claimed ‘one or more computers programmed to implement
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`8
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 12 of 16
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`amount to substantial evidence supporting a jury verdict. See Intell. Ventures I LLC v. Motorola
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`Mobility LLC, 870 F.3d 1320, 1330-31 (Fed. Cir. 2017). Indeed, the only testimony AlmondNet
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`cites relates to a different claim of a different patent. (Compare RB at 14 (citing Trial Tr. at 239:14-
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`240:7), with id. at 236:22-237:4 (confirming this testimony relates to claim 24[a] of ’639 patent).)
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`And, contrary to AlmondNet’s theory, that testimony confirms that the accused Amazon system
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`creates segment-based records by tying user IDs to segment numbers, rather than receiving them
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`as the limitation requires. (See Trial Tr. at 238:15-21, 239:14-21.)
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`II.
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`THE COURT SHOULD GRANT JMOL OF INVALIDITY
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`The undisputed record confirms that all individual claim elements were conventional. (OB
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`at 17-18.) Retargeting ads based on a user’s prior website visits was an idea already in widespread
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`use, and here the claim simply described the logical steps of such a process (i.e., collecting
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`information, determining an ad placement, and displaying the ad) using conventional computer
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`technologies. (Id. at 18 n.14; Trial Tr. at 969:3-10 (Hanson), 1135:10-1136:5 (Frankovitz).)
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`AlmondNet’s arguments do not alter this conclusion. It relies on the single, conclusory
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`statement by Mr. Frankovitz that limitations (a) and (b) of claim 37 are unconventional. (RB at
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`17.) But those are just the conventional steps of sending an indication to cause an ad to be
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`displayed to a computer server, and then authorizing that server to display an ad when a specified
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`condition is met. (Dkt. No. 272-62 (’139 patent) at 16:40-50 (cl. 37(a)-(b)).) And Mr. Frankovitz
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`confirmed that his testimony addressed only novelty over the prior art, not patent eligibility. (OB
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`a method of directing electronic advertisements.’” (Id.) And contrary to AlmondNet’s new theory,
`the trial record confirms that Dr. Koskinen accused the entire Amazon Ads system, including
`Quanta. (Trial Tr. at 291:24-292:3 (Koskinen) (“Q. Well, we know that those 1P audience
`segments that you talked about as being the identity and targeting info, those are calculated within
`the Amazon ad system by something called Quanta, right? A. Yes.”).); id. at 274:24-275:5
`(Koskinen) (concluding that the “Amazon’s ad systems” infringe claim 37). Amazon’s expert
`shared the same view. (Id. at 789:18-20 (Houh) (“Q. Is Quanta part of the accused system in this
`case? A. Yes. It is.”); id. at 790:11-17 (similar).)
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`9
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 13 of 16
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`at 19 (block quoting Trial Tr. at 1145:22-1146:3).) This is dispositive because asserting novelty,
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`rather than unconventionality, is irrelevant as a matter of law. Synopsys, Inc. v. Mentor Graphics
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`Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is still an abstract
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`idea.”) (emphasis in original). Regardless, because Mr. Frankovitz provided no support for his
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`testimony beyond conclusory disagreement (Trial Tr. at 1146:4-9), and such “[c]onclusory
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`statements … are insufficient to sustain a jury’s verdict.” MobileMedia Ideas LLC v. Apple Inc.,
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`780 F.3d 1159, 1172 (Fed. Cir. 2015).
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`On ordered combination, AlmondNet does not dispute Mr. Frankovitz’s theory that the
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`’139 patent allowed ads to be sent between different ad networks, which he analogized to
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`connecting isolated castles, has no basis in claim 37 and is itself an abstract idea. (See OB at 19-
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`20 & n.15.) Nor does it dispute that the claimed steps are in their logical order. (See RB at 19.)
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`And while it is Amazon’s burden to prove invalidity, AlmondNet must show the presence of
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`allegedly inventive claim elements. (See OB at 17); Voxathon LLC v. Alpine Elecs. of Am., Inc.,
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`No. 2:15-cv-562-JRG, 2016 WL 260350, at *4 (E.D. Tex. Jan. 21, 2016), aff’d, 671 F. App’x 793
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`(Fed. Cir. 2016) (“Since the proving of a negative is historically disfavored … it falls upon [the
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`patentee] to show that there is, in fact, an inventive concept actually present.”). But rather than do
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`so, AlmondNet asserts that Dr. Hanson’s analysis omitted claim steps (b) and (c). (RB at 19.)12
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`Regardless, Dr. Hanson addressed them: “collecting user information at a first site” (steps (c) and
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`(d)), “[d]etermining whether to show an ad to a visitor at a second site” (step (a)), and “[d]isplaying
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`ad to the visitor at a second site based on the collected profile information” (step (b)). (Trial Tr.
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`at 968:24-969:25.)
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`12 AlmondNet also argues that Amazon did not address the “third-party server computer”
`limitations. (RB at 17.) That is false. (See Trial Tr. at 968:11-18 (Hanson).)
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`10
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 14 of 16
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`Dated: December 17, 2024
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`
`
`
`Of Counsel:
`
`Deron R. Dacus (TX Bar #00790553)
`ddacus@dacusfirm.com
`THE DACUS FIRM, P.C.
`821 ESE Loop 323, Suite 430
`Tyler, TX 75701
`Tel: (903) 705-1117
`Fax: (903) 581-2543
`
`
`
`
`Respectfully submitted,
`By: /s/ J. David Hadden
`J. David Hadden (CA Bar No. 176148)
`Email: dhadden@fenwick.com
`Saina S. Shamilov (CA Bar No. 215636)
`Email: sshamilov@fenwick.com
`Ravi R. Ranganath (CA Bar No. 272981)
`Email: rranganath@fenwick.com
`Johnson K. Kuncheria (TX Bar No. 24070092)
`Email: jkuncheria@fenwick.com
`Johnathan L. Chai (CA Bar No. 339315)
`Email: jchai@fenwick.com
`FENWICK & WEST LLP
`801 California Street
`Mountain View, CA 94041
`Tel: (650) 988-8500
`Fax: (650) 938-5200
`
`Todd R. Gregorian (CA Bar No. 236096)
`Email: tgregorian@fenwick.com
`Eric B. Young, (CA Bar No. 318754)
`Email: eyoung@fenwick.com
`Dargaye Churnet (Admitted Pro Hac Vice)
`Email: dchurnet@fenwick.com
`Christopher L. Larson (CA Bar No. 308247)
`Email: clarson@fenwick.com
`Brian M. Hoffman (Admitted Pro Hac Vice)
`Email: bhoffman@fenwick.com
`FENWICK & WEST LLP
`555 California Street, 12th Floor
`San Francisco, CA 94104
`Tel: (415) 875-2300
`
`Jeffrey A. Ware (WA Bar No. 43779)
`Email: jware@fenwick.com
`FENWICK & WEST LLP
`401 Union Street, 5th Floor
`Seattle, WA 98101
`Tel: (206) 389-4510
`
`James S. Trainor (Admitted Pro Hac Vice)
`Kevin X. McGann (Admitted Pro Hac Vice)
`Email: jtrainor@fenwick.com
`Jessica Lin (NY Bar No. 5035860)
`Email: jessica.lin@fenwick.com
`FENWICK & WEST LLP
`
`11
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 15 of 16
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`
`
`
`902 Broadway, 18th Floor
`New York, NY 10010
`Tel: (212) 921-2001
`
`Counsel for Defendants
`AMAZON.COM, INC., AMAZON.COM SERVICES
`LLC, and AMAZON WEB SERVICES, INC.
`
`
`
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`12
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`Case 6:21-cv-00898-ADA Document 334 Filed 12/17/24 Page 16 of 16
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`CERTIFICATE OF SERVICE
`
`I hereby certify that all counsel of record who are deemed to have consented to electronic
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`service are being served with a true and correct copy of this document on December 17, 2024, via
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`the Court’s CM/ECF system per Local Rule CV 5(a).
`
`
`
`/s/ J. David Hadden
`J. David Hadden
`
`
`
`13
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`