FRESHUB, INC., FRESHUB, LTD.,
` Plaintiffs
`
`-vs-
`
`AMAZON.COM INC., AMAZON DIGITAL
`SERVICES, LLC, PRIME NOW, LLC, WHOLE
`FOODS MARKET INC., WHOLE FOODS
`MARKET SERVICES, INC., AMAZON.COM
`SERVICES LLC,
` Defendants
`
`
`
`
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`6:21-CV-00511-ADA
`
`
`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 1 of 12
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
`
`
`
`
`
`MEMORANDUM OPINION AND ORDER
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`Before the Court are Plaintiffs Freshub, Inc. and Freshub, Ltd’s (collectively “Freshub”)
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`Motion for Judgement as A Matter of Law under Fed. R. Civ. P. 50(b) and Motion for New Trial
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`on Infringement and Damages under Fed. R. Civ. P. 59(a). Dkt. 277. The Court heard the parties’
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`arguments on October 19, 2021. After careful considerations of the relevant facts, applicable law,
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`and the parties’ oral arguments, the Court DENIES both of Freshub’s Motions.
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`I.
`
`BACKGROUND
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`Plaintiff Freshub initiated this patent infringement action on June 24, 2019, against
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`Defendants Amazon.com Inc., Amazon.com Services, LLC, Prime Now LLC, (collectively,
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`“Amazon”) and Whole Foods Market Services, Inc. (“Whole Foods”) (together, “Defendants”).
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`Freshub accuses Defendants of infringing claims 1 and 6 of U.S. Patent No. 9,908,153 (“the ’153
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`Patent”), claim 1 of U.S. Patent No. 10,213,810 (“the ’810 Patent”), and claims 20 and 30 of U.S.
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`Patent No. 10,232,408 (“the ’408 Patent”) (collectively, the “asserted patents”).
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`Jury trial commenced on May 17, 2021. Dkt. 48. At the conclusion of a five-day trial, the
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`jury returned a verdict finding that all asserted claims are valid, but none of the asserted claims
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`1
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 2 of 12
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`were infringed by Defendants. Dkt. 254 (Jury Verdict Form). On August 11, 2021, Freshub filed
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`the instant motions (Dkt. 277), which were subsequently fully briefed (Dkt. 284, Opposition; Dkt.
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`291, Reply). The Court heard arguments regarding the motions on October 19, 2021 (Dkts. 295,
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`296).
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`II. MOTION FOR JUDGEMENT AS A MATTER OF LAW
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`A.
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`Legal Standard
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`“Under Rule 50, a court should render judgment as a matter of law [(JMOL)] when . . .
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`there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that
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`issue.” Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 149 (2000) (quoting Fed. R. Civ.
`
`P. 50(a)(1)). “In the Fifth Circuit, JMOL is appropriate if the facts and inferences point so strongly
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`and overwhelmingly in favor of one party that a reasonable jury could not have concluded
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`otherwise.” Mettler-Toledo, Inc. v. B-Tek Scales, LLC, 671 F.3d 1291, 1294 (Fed. Cir. 2012)
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`(citing Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 148 (5th Cir.1995)). “There must be a
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`conflict in substantial evidence to create a jury question,” which means that “a jury’s determination
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`must be supported by substantial evidence.” Id. (citations omitted). If “reasonable persons could
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`differ in their interpretations of the evidence, then the motion should be denied.” EEOC v. EmCare,
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`Inc., 857 F.3d 678, 682 (5th Cir. 2017) (quoting Bryant v. Compass Grp. USA Inc., 413 F.3d 471,
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`475 (5th Cir. 2005)). A court must be “‘especially deferential’ to jury verdicts . . . unless the facts
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`and inferences point so strongly and overwhelmingly in the movant’s favor that reasonable jurors
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`could not reach a contrary conclusion.’” Id. at 683 (quoting EEOC v. Boh Bros. Constr. Co., 731
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`F.3d 444, 451 (5th Cir. 2013)).
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`Similar to a motion for summary judgment, when considering a motion for a judgment as
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`a matter of law a “court must draw all reasonable inferences in favor of the nonmoving party, and
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`2
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 3 of 12
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`it may not make credibility determinations or weigh the evidence.” Reeves, 530 U.S. at 150.
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`“[A]lthough the court should review the record as a whole, it must disregard all evidence favorable
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`to the moving party that the jury is not required to believe.” Id. at 151. “That is, the court should
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`give credence to the evidence favoring the nonmovant as well as that evidence supporting the
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`moving party that is uncontradicted and unimpeached.” Id. (quotation and citation omitted).
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`B.
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`Discussion
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`Freshub moves for judgment as a matter of law under Fed. R. Civ. P. 50(b) that Defendants
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`have infringed the asserted patents. As an initial matter, Freshub as the plaintiff bears the burden
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`at trial to show that the accused devices practice every element of the asserted claims. 35 U.S.C. §
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`271(a); see also Centillion Data Sys., LLC v. Qwest Commc’ns Int’l, Inc., 631 F.3d 1279, 1284
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`(Fed. Cir. 2011). The absence of even a single limitation defeats a charge of infringement. Gen.
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`Am. Transp. Corp. v. Cryo-Trans, Inc., 93 F.3d 766, 771 (Fed. Cir. 1996). “A determination of
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`infringement is a question of fact that is reviewed for substantial evidence when tried to a jury.”
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`ACCO Brands, Inc. v. ABA Locks Mfrs. Co., 501 F.3d 1307, 1311 (Fed. Cir. 2007).
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`Freshub argues in its motion that the jury had substantial evidence of Defendants’
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`infringement of the asserted patents. Dkt. 277 at 2–9. However, the correct standard is whether
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`there is substantial evidence to support the jury’s verdict of non-infringement. Mettler-Toledo, 671
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`F.3d at 1294 (“[A] jury’s determination must be supported by substantial evidence.”). The Court
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`finds that Defendants presented substantial evidence during trial that at least some of the claim
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`elements were not met by the accused products and therefore the jury’s determination of non-
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`infringement is supported by substantial evidence. Accordingly, the Court finds that Freshub’s
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`motion for judgment as a matter of law should be denied.
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`3
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 4 of 12
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`1. The “non-transitory memory” claim limitation (’153 cl. 1 and 6; ’810 cl. 1; ’408
`cl.30)
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`Freshub asserts that Amazon’s Echo, Fire TV, and Fire Tablet devices have infringed the
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`asserted patents. Freshub’s expert Dr. Medvidovic agreed that the claimed “non-transitory
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`memory” is a physical structure, like a hard drive, and under his theory the server-side “non-
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`transitory memory” is in those remote cloud servers that power the Alexa functionality. Dkt. 284
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`at 4. Defendants’ expert Dr. Johnson testified at trial that the accused devices “do not include any
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`parts of the server” and therefore do not infringe, but Freshub contends that it has always accused
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`the consumer Alexa devices with the backend Alexa system of infringement. Id. at 4; Dkt. 291 at
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`3. The jury heard competing testimonies from experts from both sides, weighed their credibility,
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`and eventually found for the Defendants. Drawing all reasonable inferences in favor of the
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`Defendants, the nonmoving party, the Court finds that there is substantial evidence to support the
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`jury’s determination. See Reeves, 530 U.S. at 150 (When considering a motion for JMOL 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.”).
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`Freshub contends that Defendants’ first fact witness, Dr. Strom, admitted infringement of
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`claim 1 of the ’153 patent and produced a table comparing each element of that claim with Dr.
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`Strom’s testimony. Dkt. 277 at 5–6; Dkt. 291 at 1. However, when asked about the claim element
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`“a first computer; non-transitory memory that stores instructions . . .,” the evidence produced by
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`Freshub only shows that Dr. Strom admitted that the Echo product “has memory” — he did not
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`admit that the Echo product has “non-transitory memory.” Id. at 5. Similarly, regarding the claim
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`element “a second computer; non-transitory memory that stores instructions . . .,” the produced
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`testimony only shows that Dr. Strom admitted that “they [the accused products] contain
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`4
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 5 of 12
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`memory”— not “non-transitory memory” as required by the claims. Id. at 6. Thus, the Court does
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`not find that the evidence overwhelmingly favors Freshub.
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`2. The “identify an item corresponding to the text” claim limitation (’153 cl. 1, 6)
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`Claims 1 and 6 of the ’153 patent require computer instructions to “identify an item
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`corresponding to the text” translated from the “digitized order” and adding the item to a list.
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`Defendants contend that the accused Alexa feature “does not infringe because users can only add
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`words to their Alexa shopping list, not ‘item[s] corresponding to’ those words.” Dkt. 284 at 7.
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`Defendants point out that Dr. Medvidovic testified at trial that “if a user says: Alexa, add ‘sad’ to
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`my shopping list, the word ‘sad’ will appear on the list,” and John Love, Director of Alexa
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`Shopping, testified that his six-year-old added the word “poopy poop” to their Alexa shopping list,
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`but words “sad” and “poopy poop” are not an “item corresponding to the text” as the claims
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`require. Id. Dr. Johnson also testified that the claims require the translated “text” and the “item
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`corresponding to the text” to be separate. Id. at 7–8.
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`Freshub contends that Dr. Strom referred to the word “milk” on Alexa shopping list as an
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`“item” on cross examination, and therefore admitted that the element was met. Dkt. 277 at 11.
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`Defendants counter that Dr. Johnson testified that while it may be normal to say “milk is an item
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`on my shopping list,” the asserted patents use the word “item” to refer to what is identified from
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`the translated text. Dkt. 284 at 8. Freshub asserts that Dr. Johnson applies a special meaning to the
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`claim term “item” and his opinion was therefore “critically flawed because it was based on a legally
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`improper construction.” Dkt. 277 at 10. However, the Court did not provide any construction for
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`the claim term “item” and Dr. Johnson applied the ordinary meaning of “item” based on his
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`understanding of the term in view of its use in the patent. Thus, the Court does not see any critical
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`5
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 6 of 12
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`flaw in his opinion and the jury is free to judge the credibility of the witnesses and weigh their
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`testimonies.
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`3. The “match[] . . . text . . . to a text description” (’408 cl. 20, 30) and “use the text
`. . . to identify an item corresponding to the text description” (’810 cl. 1) claim
`limitations
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`Freshub argues that these claims are infringed when users use Alexa to add products to a
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`shopping cart. Dr. Medvidovic testified that Alexa’s Intelligence Choice Engine (“ICE”) uses the
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`text translated from the automatic speech recognition (“ASR”) to match or identify a text
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`description associated with a unique product identifier. Dkt. 277 at 8; Dkt. 291 at 4. On the other
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`hand, Dr. Johnson testified that these claims are not infringed because by the time Alexa uses ICE
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`to search for potentially relevant products, the ASR text output is “long gone.” Dkt. 284 at 9.
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`Instead, ICE uses intents created by the natural language understanding (“NLU”) component—not
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`text from ASR—to search for an item. Id.
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`Further, Dr. Johnson testified that that if Alexa were to work in the same way as the claims,
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`it would use the words in an utterance like “Alexa, I want to buy a PS4 game,” to find a matching
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`text description, but Alexa instead determines the meaning of the request, e.g., that the user wants
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`a video game and that a PS4 is a type of game system, and then uses additional contextual
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`information like popularity, purchase history, and delivery preferences to recommend a game. Id.
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`at 10. Therefore, Alexa’s recommendation may or may not include one or more words spoken by
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`the user. Id. Similarly, Mr. Love, Director of Alexa Shopping, testified that “what you’ll often find
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`is the No. 1 ranked product has no relationship textually to the request.” Id. As an example, he
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`testified that a request for “best book” will result in a specific title—e.g. “Where Do the Crawdads
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`Sing paperback,” which is a “zero percent match” to the text. Id. And, “kid’s aspirin” may result
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`in “Motrin with acetaminophen” or “Tylenol,” neither of which matches the text. Id. Mr. Love
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`6
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 7 of 12
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`further explained why matching text would not work for Alexa—it would result in an
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`unmanageable list of far too many products based on the large number of items in Amazon’s
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`catalog, and it would also return less relevant products, such as a book literally called “best book”
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`instead of a book awarded best book of the year. Id.
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`Again, the jury heard competing testimonies from witnesses from both sides, weighed the
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`witnesses’ credibility, and eventually found for Defendants. And there was substantial evidence to
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`support the jury’s determination. See Versata Software, Inc. v. SAP Am., Inc., 717 F.3d 1255, 1263
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`(Fed. Cir. 2013) (affirming jury verdict as supported by substantial evidence despite competing
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`testimony).
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`4. Doctrine of equivalence
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`To assert infringement under the doctrine of equivalents (“DOE”), a plaintiff must prove
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`either that the differences between the accused devices and claims are “insubstantial” or address
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`“on a limitation-by-limitation basis” the function/way/result test for “each claim limitation.”
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`Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1360 (Fed. Cir. 2009); UCB, Inc. v.
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`Watson Labs. Inc., 927 F.3d 1272, 1284 (Fed. Cir. 2019); Gemalto S.A. v. HTC Corp., 754 F.3d
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`1364, 1374 (Fed. Cir. 2014). Both approaches require “particularized testimony and linking
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`argument.” Gemalto, 754 F.3d at 1374.
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`Freshub contends that Defendants failed to address infringement under DOE for the ’153
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`Patent. Dkt. 277 at 7. For its proof of infringement under DOE, Freshub states that Dr. Medvidovic
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`explained how the “identify” element is met under DOE because the Accused Alexa Products
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`“basically [] figure out which part of the user’s utterance corresponds to the specific thing that
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`needs to be included in the shopping list,” “rel[y] on the textual characterization . . . to figure out
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`what element is actually important . . . like apples,” and “the output of that process would be
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`7
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 8 of 12
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`substantially the same result which would be the addition of that element to a shopping list.” Id.
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`However, these conclusory statements from Dr. Medvidovic are not sufficient to create a jury issue
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`on DOE infringement. See Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d 1334, 1343
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`(Fed. Cir. 2016) (“Broad conclusory statements offered by [an] expert are not evidence that
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`satisfies this standard”) (quotation and citation omitted).
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`In response, Defendants offered evidence from three witnesses explaining how the accused
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`devices are different from the claimed invention and therefore do not infringe under DOE. Dkt.
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`284 at 12. Dr. Johnson testified that how Alexa discerns a user’s intent solves a “massively
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`different” problem of processing utterances without knowing “what comes next,” i.e., Alexa does
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`not merely ask the user to state what they want to buy and expect to receive an item name to
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`identify from text. Id. Dr. Strom also discussed Alexa’s use of far-field speech recognition and
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`neural networks to understand user utterances— problems essential for Alexa to determine a user’s
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`intent but which are not solved by the asserted claims or part of their process of identifying an item
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`from text. Id. And Mr. Love explained that the purpose of the Alexa shopping list—the sole
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`accused feature for the ’153 patent—is to “capture needs” at “different levels” depending on user
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`preferences, not to find a product. Id. Even if Dr. Medvidovic’s testimony for infringement under
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`DOE is sufficient to create a jury issue, there are competing testimonies from witnesses from both
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`sides, and therefore there is substantial evidence to support the jury’s determination of non-
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`infringement.
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`In view of the foregoing, the Court finds that there is substantial evidence and sufficient
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`evidentiary basis for a reasonable jury to find that Defendants did infringe the asserted patents. See
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`Reeves, 530 U.S. at 149. Regarding Defendants’ non-infringement theories discussed above, the
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`parties presented to the jury competing testimonies, which the jury weighed and eventually found
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`8
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 9 of 12
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`for Defendants. And the Court does not find that “the facts and inferences point so strongly and
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`overwhelmingly in favor” of Freshub to warrant a JMOL. See Mettler-Toledo, 671 F.3d at 1294.
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`Accordingly, the Court DENIES Freshub’s Motion for Judgment as a Matter of Law.
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`III. MOTION FOR NEW TRIAL
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`A.
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`Legal Standard
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`The Court has discretion to grant a new trial “based on its appraisal of the fairness of the
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`trial and the reliability of the jury’s verdict.” Smith v. Transworld Drilling Co., 773 F.2d 610, 612–
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`13 (5th Cir. 1985). “A new trial will not be granted based on trial error unless, after considering
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`the record as a whole, the court concludes that manifest injustice will result from letting the verdict
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`stand.” Foradori v. Harris, 523 F.3d 477, 506 (5th Cir. 2008). “To justify a reversal based on
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`improper comments of counsel, the conduct must be such as to gravely impair the calm and
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`dispassionate consideration of the case by the jury.” Dixon v. Int’l Harvester Co., 754 F.2d 573,
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`585 (5th Cir. 1985). The moving party must timely object and show that the conduct went “far
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`beyond the bounds of accepted advocacy before [the] court must grant a new trial.” Geoffrion v.
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`Nationstar Mortg. LLC, 182 F. Supp. 3d 648, 673 (E.D. Tex. 2016) (citing Edwards v. Sears,
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`Roebuck & Co., 512 F.2d 276, 284 (5th Cir. 1975)); see also Baisden v. I’m Ready Prods., Inc.,
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`693 F.3d 491, 509 (5th Cir. 2012). The burden is on the moving party to show a new trial is
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`warranted. Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999).
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`B.
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`Discussion
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`Freshub’s main basis for its Motion for New Trial under Fed. R. Civ. P. 59(a) is that
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`Defendants “played on the stereotype of greedy Jewish executives of an Israeli company allegedly
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`taking advantage of U.S. companies, to trigger religious biases and deepen the ‘us vs. them’
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`nationalistic divide in the minds of the jurors.” Dkt. 277 at 15. To support its allegation, Freshub
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`9
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 10 of 12
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`asserts that it is unfairly prejudicial for Defendants to refer to Freshub as an Israeli company and
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`to emphasize “irrelevant facts about Freshub’s lack of profitability (and doing so in terms of Israeli
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`shekels).” Id. at 14. However, as Defendants correctly point out, Freshub is in fact an Israeli
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`company and Defendants only mentioned Israel when relevant or necessary to rebut Freshub’s
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`own statements at trial, including, e.g., discussing the fact that Freshub applied for funding from
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`the Israeli government in response to Freshub’s statement about its application for funding, and
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`cross-examining a witness regarding meetings between Amazon and Freshub in Israel after
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`Freshub asked about the same meetings on direct examination. Dkt. 284 at 16. Further,
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`Defendants’ counsel, herself a Jewish woman, asked about Freshub’s financial records reflecting
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`significant losses in Israeli shekels only because Freshub’s financial records were reported in
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`Israeli shekels. Id.
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`Significantly, while Freshub makes these bold allegations in its Motion for New Trial that
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`“[t]hroughout trial, Defendants advanced ‘us versus them’ arguments along national and religious
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`lines that biased the jury” and that “Defendants blew this Jewish stereotype ‘dog whistle’ at every
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`opportunity to unfairly bias the jury” (Dkt. 277 at 12 and 14 (emphasis added)), Freshub never
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`objected to Defendants’ alleged play of the Jewish stereotype or pitting the community against a
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`foreign company during the whole trial. Indeed, during the October 19, 2021, hearing, Freshub’s
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`counsel Paul J. Andre admitted that Freshub did not make a single objection on the basis that
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`Defendants were pitting a community against a foreign company during either the trial or the
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`closing argument. Dkt. 296 (Hearing Transcript) at 9–11.
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`It is an “elementary principle of federal law” that a party cannot raise misconduct
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`objections for the first time on a motion for new trial. See Curtis Publ’g Co. v. Butts, 351 F.2d 702,
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`714 (5th Cir. 1965). Therefore, because Freshub did not object, its Motion for New Trial can be
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`10
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 11 of 12
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`granted only if it establishes that this is an “exceptional case where the error has seriously affected
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`the fairness, integrity, or public reputation of judicial proceedings.” Reese v. Mercury Marine Div.
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`of Brunswick Corp., 793 F.2d 1416, 1429 (5th Cir. 1986). Freshub thus asserts, at least implicitly,
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`that the Court must grant a new trial to preserve its own integrity and public reputation. In making
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`such an assertion, Freshub essentially accuses the Court of turning a blind eye to Defendants’
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`highly prejudicial “arguments along the national and religious lines” “[t]hroughout the trial” made
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`“at every opportunity.” See Dkt. 277 at 12. The Court did not turn a blind eye to any racist or anti-
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`Semitic conduct, because indeed there was none. Throughout the October 19, 2021 hearing,
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`Freshub’s counsel could not point to any concrete evidence—or indeed, any evidence at all—that
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`Defendants made arguments that intentionally played into Freshub’s Israeli ties or any Freshub
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`witnesses’ race, heritage, or religion. Dkt. 296 (Hearing Transcript) at 19–21. Freshub’s counsel
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`failed to articulate any coherent argument as to how Defendants’ counsel engaged in any racist or
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`anti-Semitic conduct at trial. Without any evidentiary support, these serious allegations are
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`particularly disturbing.
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`The Court finds that Freshub’s inflammatory allegations are nothing but baseless attacks
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`on the integrity of this Court and the reputation of Defendants’ counsel. Freshub’s motion is
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`apparently the result of its dissatisfaction with the verdict and counsel’s difficulty in making sense
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`of the unfavorable outcome, which is apparent from Mr. Andre’s statements during the October
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`19 hearing: “I cannot explain the . . . jury verdict. I just simply can’t explain it because the evidence
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`was so overwhelming.” Dkt. 296 (Hearing Transcript) at 29. However, a bitter losing party’s
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`difficulty in explaining its loss is never a proper basis for counsel to invoke baseless allegations of
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`racism and anti-Semitism to request a new trial. Such vitriolic and unsubstantiated allegations are
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`Case 6:21-cv-00511-ADA Document 297 Filed 12/17/21 Page 12 of 12
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`not only shocking, but also offensive to this Court. And accusing Defendants’ counsel of engaging
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`in this conduct, without any evidentiary support, is similarly unacceptable.
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`By making such baseless allegations, Freshub’s counsel has breached their duty to the
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`Court. In fact, this is not the first time that Freshub’s national counsel improperly conducted
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`themselves before a federal district court. See Finjan Inc. v. Juniper Networks, Inc., No. C 17-
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`05659 WHA, Dkt. 669 at *7–8 (N.D. Cal. July 26, 2021) (“In no way does this order vindicate
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`attorneys James R. Hannah, Lisa Kobialka, and Paul J. Andre. Their conduct was improper and
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`frustrated the fairness of the proceedings. Judges in the future should take this into account when
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`dealing with them in future cases.”). Therefore, to preserve the integrity of the judicial process and
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`to deter future improper conducts, the Court feels compelled to impose sanctions on all attorneys
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`who signed Freshub’s Motion for New Trial.
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`IV. CONCLUSION
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`For the foregoing reasons, the Court DENIES Freshub’s Motion for Judgment as a Matter
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`of Law and Motion for New Trial (Dkt. 277). It is ORDERED that every attorney who signed
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`Freshub’s Motion for New Trial (i.e., Paul J. Andre, Lisa Kobialka, and James Hannah of Kramer
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`Levin Naftalis & Frankel LLP, and John Palmer of Naman Howell Smith & Lee PLLC) shall
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`complete thirty (30) hours of Continuing Legal Education (CLE) of legal ethics and shall certify
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`his/her completion of the CLE hours to the Court within six months from the date of this Order.
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`SIGNED this 17th day of December, 2021.
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`ALAN D ALBRIGHT
`UNITED STATES DISTRICT JUDGE
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`12
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