An Israeli company won’t get a new trial after
Freshub Inc. said Amazon, lacking good infringement defenses, influenced jurors with cultural stereotypes and anti-Semitic dog whistles. Judge Alan Albright of the U.S. District Court for the Western District of Texas flatly rejected the argument, which he called an attack on Amazon’s lawyers. He took personal offense as well.
“It intimates that I would have, as a trial judge, allowed that kind of evidence to come in and not do anything about it,” Albright said before denying Freshub’s motion for a new trial. “You’re alleging I’m complicit in it.”
An attorney for Amazon, Saina Shamilov of Fenwick & West LLP, said in a court filing she was born into a Jewish family in the former Soviet Union and came to the U.S. as a religious refugee. During the hearing Shamilov said Freshub’s allegations “hit right at my heart.”
“The consequence of this brief is not just asking for a new trial,” Shamilov said. “The consequence of this brief is attacking the reputation personally of our team.”
Federal jurors in Waco, Texas, cleared Amazon in June of infringing three patents on inventions related to shopping using voice commands. Freshub argued Amazon incorporated the technology into its Alexa assistant and Echo smart speakers.
Freshub after trial claimed Amazon’s lawyers used “us versus them” arguments along national and religious lines that biased the jury. It also said Amazon blew a “Jewish stereotype ‘dog whistle’” by, among other things, mentioning how much money Freshub’s founders stood to make if there was an infringement verdict.
Albright said he paid close attention during trial and nothing that took place was “in any way anti-Semitic, anti-Israel.”
“How Would You Have Taken It?”
Paul Andre of Kramer Levin Naftalis & Frankel LLP, a lawyer for Freshub, said there was no intention of personally attacking Amazon’s lawyers in the brief.
“How would you have taken it?” Albright responded. “Would you have taken offense?”
Albright also brushed aside complaints that Amazon asked jurors to make a “policy decision” about patent enforcement. Amazon argued Freshub filed for the patents years after voice shopping technology was widely used, and made sure the patents covered Alexa and Echo.
“I have no problem with that argument,” Albright told Andre. “It was completely consistent with exactly what your company did. Those are the facts.”
Freshub is represented by Kramer Levin Naftalis & Frankel LLP and Naman Howell Smith & Lee PLLC. Amazon is represented by Fenwick & West LLP, Shelton Coburn LLP, and The Dacus Firm PC.
The case is Freshub Inc. v. Amazon.com Inc., W.D. Tex., No. 21-cv-511, hearing held 10/19/21.