United States Court of Appeals for the Federal Circuit ______________________

FRESHUB, INC., FRESHUB, LTD., Plaintiffs-Appellants

v.

AMAZON.COM, INC., PRIME NOW, LLC, WHOLE FOODS MARKET SERVICES, INC., AMAZON.COM SERVICES LLC, Defendants-Cross-Appellants ______________________

2022-1391, 2022-1425 ______________________

Appeals from the United States District Court for the Western District of Texas in No. 6:21-cv-00511-ADA, Judge Alan D. Albright. ______________________

Decided: February 26, 2024 ______________________

PAUL J. ANDRE, Kramer Levin Naftalis & Frankel LLP, Redwood Shores, CA, argued for plaintiffs-appellants. Also represented by JAMES R. HANNAH, LISA KOBIALKA; CRISTINA MARTINEZ, New York, NY.

J. DAVID HADDEN, Fenwick & West LLP, Mountain View, CA, argued for defendants-cross-appellants. Also represented by RAVI RAGAVENDRA RANGANATH, SAINA S. SHAMILOV; TODD RICHARD GREGORIAN, ERIC YOUNG, San Francisco, CA. Case: 22-1391 Document: 70 Page: 2 Filed: 02/26/2024

2 FRESHUB, INC. v. AMAZON.COM, INC.

______________________

Before REYNA, TARANTO, and CHEN, Circuit Judges. TARANTO, Circuit Judge. Freshub, Ltd. and United States subsidiary Freshub, Inc. (together, Freshub) sued Amazon.com, Inc. and several of its subsidiaries (together, Amazon) in the Western Dis- trict of Texas, asserting infringement of Freshub’s patents on voice-processing technology, including U.S. Patent No. 9,908,153. As relevant here, Amazon denied infringement and also asserted, as a defense, that the patent should be declared unenforceable based on inequitable conduct as- sertedly committed by Freshub’s parent company, Ikan Holdings LLC, in the Patent and Trademark Office—spe- cifically, in its successful petition to revive the earlier- abandoned U.S. Patent Application No. 11/301,291, from which all of Freshub’s asserted patents descend. A jury found that Amazon did not infringe the asserted claims of Freshub’s three asserted patents, while rejecting Amazon’s invalidity challenge—specifically, invalidity for lack of ad- equate written description. J.A. 6–14. The district court later denied Freshub’s post-trial motions challenging the verdict. Freshub, Inc. v. Amazon.com Inc., 576 F. Supp. 3d 458, 461 (W.D. Tex. 2021) (Post-Trial Opinion). Between the jury trial and the ruling on those post-trial motions, the court conducted a bench trial, in which no live testimony was presented, and found that Amazon had failed to prove the asserted inequitable conduct by clear and convincing evidence. Freshub, Inc. v. Amazon.com, Inc., No. 21-cv-511 (W.D. Tex. Aug. 3, 2021), ECF No. 272 (Inequitable Con- duct Opinion). Freshub timely appealed. It argues that it is entitled to judgment as a matter of law that Amazon infringed the ’153 patent, and it seeks a new trial overall because of as- sertedly prejudicial statements by Amazon at trial. Ama- zon timely cross-appealed. It seeks reversal of the district Case: 22-1391 Document: 70 Page: 3 Filed: 02/26/2024

FRESHUB, INC. v. AMAZON.COM, INC. 3

court’s finding that it failed to prove inequitable conduct. We have jurisdiction under 28 U.S.C. § 1295(a)(1). We af- firm. I A The ’153 patent claims a voice-processing system that receives “user spoken words” and adds items to lists based on those words. ’153 patent, col. 14, line 46, through col. 15, line 12. The specification discloses a variety of systems for shopping-list management, some of which use voice- processing technology. Id., col. 8, lines 17–55. For exam- ple, in one embodiment, the system, in respons