PersonalWeb Technologies LLC et al v. LITHIUM TECHNOLOGIES, INC., a Delaware corporation

This past week the Federal Circuit invited Amazon and several of its customers to file a combined response to a petition for rehearing of a June ruling in their favor. A panel of the appeals court held that the Kessler doctrine precludes PersonalWeb Technologies, L.L.C. from charging customers with infringement through the use of Amazon Simple Storage Service (S3), given a June 2014 stipulated dismissal with prejudice in a Texas suit against Amazon—a dismissal that followed an unfavorable claim construction decision but, critically according to PersonalWeb, before a noninfringement ruling. The NPE characterizes the June decision as a “radical reconfiguration” of preclusion law that requires rehearing. Lawyers for Amazon and its customers have since requested an extension to early October of the deadline to respond to the request for rehearing because they are tied up both with a trial in the Eastern District of Texas and with a separate appeal (concerning noninfringement by Amazon’s CloudFront) from the same underlying litigation against PersonalWeb.

PersonalWeb Technologies, L.L.C. revived its sprawling litigation campaign in January 2018, suing a large number and wide variety of companies over their use of certain web hosting and caching technologies. That wave of new filings prompted Amazon to file a declaratory judgment action against the NPE that February, seeking judgments of noninfringement for Amazon Web Services customers utilizing Amazon Simple Storage System (S3)—further asserting that those suits were barred due to claim preclusion and preclusion under the Kessler doctrine in light of a previously dismissed case between Amazon and PersonalWeb. Amazon has now largely prevailed with respect to its preclusion claims, as District Judge Beth Labson Freeman has just ruled that PersonalWeb is collectively barred under the asserted preclusion theories from litigating any infringement claims based on S3 against Amazon or its customers. Judge Freeman has also declined to weigh in on a dispute over standing stemming from an unusual contractual arrangement affecting PersonalWeb’s ownership of the asserted patents.