Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 1 of 9
`Case 5:l5—cv—O2008—EJD Document 87-4 Filed 04/19/16 Page 1 of 9
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`EXHIBIT 18
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`EXHIBIT 18
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`

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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 2 of 9
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`Robert F. McCauley (SBN 162056)
`robert.mccauley@finnegan.com
`Jacob A. Schroeder (SBN 264717)
`jacob.schroeder@finnegan.com
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`3300 Hillview Avenue
`Palo Alto, CA 94304-1203
`Telephone:
`(650) 849-6600
`Facsimile:
`(650) 849-6666
`
`Gerald F. Ivey (pro hac vice)
`Smith R. Brittingham IV (pro hac vice)
`Elizabeth A. Niemeyer (pro hac vice)
`John M. Williamson (pro hac vice)
`Rajeev Gupta (pro hac vice)
`Aidan C. Skoyles (pro hac vice)
`Cecilia Sanabria (pro hac vice)
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`901 New York Avenue, NW
`Washington, DC 20001-4413
`Telephone:
`(202) 408-4000
`Facsimile:
`(202) 408-4400
`
`Stephen E. Kabakoff (pro hac vice)
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`3500 SunTrust Plaza
`303 Peachtree Street, N.E.
`Atlanta, GA 30308-3263
`Telephone:
`(404) 653- 6400
`Facsimile:
`(404) 653-6444
`
`Attorneys for Plaintiffs
`OpenTV, Inc., Nagravision S.A., and Nagra France S.A.S.
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`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`
`OPENTV, INC., NAGRAVISION S.A., and
`NAGRA FRANCE S.A.S.
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`
`Plaintiffs,
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`Defendants.
`
`v.
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`
`APPLE INC.
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`CASE NO. 5:15-cv-02008-EJD (NMC)
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`SUPPLEMENTAL DECLARATION
`OF DR. KEVIN ALMEROTH
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`Date: May 12, 2016
`Time: 1:30 p.m.
`Judge: Honorable Edward J. Davila
`Courtroom: 4, 5th Floor
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`SUPPLEMENTAL DECLARATION
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 3 of 9
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`I, Kevin Almeroth, declare as follows:
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`1.
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`I have been retained by Plaintiffs OpenTV, Inc., Nagravision S.A., and Nagra France
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`S.A.S. (“OpenTV”) to serve as a technical expert in the above-captioned case. On March 29, 2016, I
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`submitted a declaration in this matter on behalf of OpenTV regarding the meanings of the following
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`terms: “automatic and direct access” / “automatically and directly electronically accessing” as
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`recited in claims 1, 8, and 9 of U.S. Patent No. 6,233,736; “means for extracting an address
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`associated with an online information source from an information signal embedded in said electronic
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`signal, and for automatically establishing, in response to a user initiated command, a direct link with
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`the online information source” as recited in claim 9 of the ’736 patent; “directive” / “directives,
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`wherein said directives are indicative of an audio, video and/or graphic presentation which requires a
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`set of resources” / “directives which are indicative of an audio, video and/or graphic presentation
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`requiring a set of resources” / “directives which are indicative of an audio, video and/or graphic
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`presentation which requires a set of resources” as recited in claims 1, 2, 22, and 23 of U.S. Patent
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`No. 7,055,169; “prerequisite directive” as recited in claims 1, 2, 22, and 23 of the ’169 patent;
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`“subset of said set of resources” as recited in claims 1, 22, and 23 of the ’169 patent; “wherein said
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`prohibiting is in further response to detecting a corresponding time for expiration has not yet
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`expired, and wherein said method further comprises allowing the presenting of said presentation in
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`response to detecting said time for expiration has expired” as recited in claim 12 of the ’169 patent;
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`and “a processing unit coupled to said receiver, wherein said processing unit is configured to:
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`determine whether said one or more directives includes a prerequisite directive which indicates that
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`acquisition of a subset of said set of resources is a prerequisite for initiating the presentation; initiate
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`said presentation, in response to determining the one or more directives do not include said
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`prerequisite directive; and prohibit initiation of said presentation until said subset of resources are
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`acquired, in response to determining the one or more directives include said prerequisite directive”
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`as recited in claim 22 of the ’169 patent.
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`2.
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`3.
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`My qualifications and experience are set forth in my March 29, 2016, declaration.
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`I have reviewed declarations, dated April 12, 2016, submitted in this matter by
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`Apple’s experts Mr. Scott Bradner and Dr. Stephen Melvin regarding the meanings of the same
`SUPPLEMENTAL DECLARATION
`1
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 4 of 9
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`claim terms in the ’736 patent and ’169 patents, respectively. Counsel for OpenTV has asked me to
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`respond to certain opinions and statements presented in the declarations of Mr. Bradner and Dr.
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`Melvin.
`I.
`4.
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`disagree.
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`The ’736 Patent
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`Apple and its expert Mr. Bradner opine that automatic and direct is indefinite. I
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`5.
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`Apple argues that “automatic and direct” “did not add limitations beyond what one of
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`ordinary skill already understood to exist in claim 8” and that a person of ordinary skill in the art
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`“would have understood that when a user clicked on a link, the user’s computer would have
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`‘automatically’ made a ‘direct’ connection . . .” Dkt. No. 82 at 3. However, this is incorrect. In 1996,
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`much earlier in the history of the Internet, when a user selected a link the system may have prompted
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`a user if they wanted to continue, or the user may have been provided an address to enter into a
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`different system. Each of these would be examples of connections that would not be automatic and
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`direct, and would be similar to the prior art situation where television programs announced website
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`addresses for users to put into their computers, or Throckmorton where the user had to dig in to a
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`menu of links to find access to online information. The “automatic and direct” nature of the links to
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`further information would have distinguished this invention from those prior art systems to one of
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`skill in the art.
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`6.
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`Apple and Mr. Bradner state that the “automatic” nature of the connection must be
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`after the user initiated command. This is not true. One of ordinary skill in the art would have
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`understood the establishing of the direct communication link to both be automatic in its presentation,
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`and in response to a final user command to assent to the link. This automatic presentation of the
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`links would be different to one of skill in the art from having to navigate a series of separate menus
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`not provided with the video itself.
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`7.
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`Mr. Bradner states that “direct from the user’s perspective” would not be reasonably
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`certain to one of skill in the art. Dkt No. 83, Ex. 5 at 14. This is incorrect. One of skill in the art
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`would have understood this term to be sufficiently clear. The connection will be direct from the
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`user’s perspective. The user’s perspective was a clear concept to one of skill in the art, it is the
`SUPPLEMENTAL DECLARATION
`2
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 5 of 9
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`information that is presented to a user. If, for example, a connection is first directed to an ISP before
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`being rerouted to a content server, this may be arguably not direct. However, the user is not
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`presented with this information. From the user’s perspective, the information is directly provided.
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`Thus this use of direct is in the context of the user’s interface experience. One of skill in the art
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`would have clearly understood this term.
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`8.
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`Apple further argues that there is a distinction between providing a link “in” a video,
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`and a link “with” a video. Dkt. No. 82 at 4. However, one of ordinary skill in the art would have
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`understood that whether the link is provided in the vertical blanking interval of an analog signal or in
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`a digital stream of data in a digital signal, the link to content is presented “in” or “with” a video.
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`9.
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`I have been informed that Apple argues that the structure for the “means for
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`extracting” and “automatically extracting” is not disclosed by the specification. I disagree.
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`10.
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`Apple points out that the specification does not contain a description of a web
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`browser as an explicit example of an address extractor. Dkt. No. 82 at 8. A person of ordinary skill
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`in the art would have understood that a web browser is just one example of a kind of well-known
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`address extractor which could be implemented to store addresses from incoming web
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`communications. The notion of writing code to extract addresses from a string or parsing a file is a
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`basic computer science concept. The specification makes clear that an address extractor is disclosed.
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`Although it does not contain a detailed description of a well-known process, that does not mean the
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`specification disclosure is unclear to those of skill in the art.
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`11.
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`Apple argues that a modem cannot be sufficient structure for “automatically
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`establishing.” First, Apple misconstrues the patent with regards to this element. Apple is correct that
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`a modem may be used to “modulate and demodulate signals.” Dkt. No. 82 at 9. However, a modem
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`does not alone perform the connection described by the patent. The modem works together with
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`hardware and software to establish a connection with an internet site. A person of ordinary skill in
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`the art would have clearly understood how to use a modem to accomplish the function listed by the
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`claim.
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`12.
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`Apple also states that an “access controller” is not sufficiently disclosed. However, a
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`person of ordinary skill in the art would have understood by reference to the specification what is
`SUPPLEMENTAL DECLARATION
`3
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 6 of 9
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`meant by an access controller. For example, Figure 2 of the ’736 patent clearly shows how an access
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`controller would be composed of components, including the address extractor, modem, and
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`processor.
`II.
`13.
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`The ’169 Patent
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`I have further been informed that Apple contends a person of ordinary skill in the art
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`would not have understood directives to be limited to a computer language. I disagree.
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`14.
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`Apple lists example embodiments where directives may be used, which include
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`“television, video cassette recorder (VCR), video game console, mobile/cell phone, banking, e-mail,
`video-on-demand, and electronic program guide (EPG).” 3:5-16, 6:58-7:12.1 Apple contends that
`these embodiments are inconsistent with declarations formed using a computer language. However,
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`this is untrue.
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`15.
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`Computer languages were not at the time of the ’169 patent and are not now restricted
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`to just what a consumer would call a “personal computer.” Computers are present in most electronic
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`devices in some form. Computer languages are the languages by which we communicate commands
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`to these devices. Although, for example, a mobile phone is not a traditional computer, it still uses a
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`computer architecture, and commands are communicated to it by computer languages such as Java
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`or HTML. A person of ordinary skill in the art would understand that a computer language is used to
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`communicate the instructions of a directive to each of the devices identified by Apple.
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`16.
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`Apple also contends that a person of ordinary skill in the art “would not understand
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`directives utilized with live broadcasts to be limited to ‘computer languages.’” Dkt. No. 82 at 11.
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`However, Apple does not offer any support for this proposition beyond the statement itself. In fact, a
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`person of ordinary skill in the art would have understood that a live broadcast would use computer
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`languages. A live broadcast of a video stream would have been implemented using computer
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`language instructions just like any other video stream presentation. Directives for a live broadcast
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`might indicate that certain streaming resources would be needed to be acquired by a client device,
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`1 I note that all citations to column and line numbers in this section are to the ’169 patent.
`SUPPLEMENTAL DECLARATION
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 7 of 9
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`and that those resources would be rendered in real time due to the presentation being live. But, there
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`is no difference between a live broadcast and a “recorded” broadcast in the sense that the directives
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`specifying the resources would be specified in computer languages in either circumstance.
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`17.
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`Apple’s expert Dr. Melvin argues that the specification refers to not only languages
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`but also “constructs.” In the context of computer science and this patent, a construct is a data
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`structure that would still be differently specified according to the computer language in which it is
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`presented. I note that even Apple’s proposed construction does not appear to import the notion of
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`“constructs” into the definition of directive. The parties agree that a directive in this context is a
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`declaration or other instrument (or, for Apple, “instruction”), but Apple is not arguing that the
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`construction should include a directive that is a “construct.”
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`18.
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`Apple also contends that “prerequisite directive” is unclear as the specification does
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`designate a “particular format” to distinguish them from more general directives. I disagree.
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`19.
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`Prerequisite directives, like directives, can be written in many different computer
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`languages. Apple and its expert Dr. Melvin argue that the prerequisite directive is indefinite, in part,
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`because the patent does not specify a particular format for the prerequisite directive. But, it is not
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`necessary to identify a particular format for a person of ordinary skill in the art to distinguish a
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`prerequisite directive from a directive generally. Prerequisite directives are directives used for a
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`specific purpose and can be specified in any of myriad ways. For example a prerequisite directive
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`could be in the same “format” as a directive but include an extra meta-data tag indicating that it is a
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`prerequisite. Or it may simply precede a directive to be a “prerequisite directive” or it may be stored
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`in a different location or be transmitted with a different header. A person of ordinary skill in the art
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`would have understood how to distinguish prerequisite directives from other directives based on
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`these or any other means, and would have understood to use those directives for the claimed
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`purpose.
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`20.
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`Apple’s contends that the “subset of said set of resources” may include all of the
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`larger set of resources, relying primarily upon the loadComplete description from the specification.
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`However, Apple misconstrues this statement, which actually supports the idea that subset cannot
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`include all of the larger set of resources.
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`5
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`SUPPLEMENTAL DECLARATION
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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`

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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 8 of 9
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`21.
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`The specification describes a “loadComplete” page-rendering policy which, when
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`enabled, requires all the resources that are needed to load a web page to be fully downloaded before
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`the webpage is presented. 21:45-52. When enabled, the page must be “loaded completely.” This is
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`compared to a hypothetical situation where every resource is marked as a prerequisite. The
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`loadComplete functionality is intended to replace the contingency where all resources are marked as
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`prerequisites. A person of ordinary skill in the art would understand that the specification
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`contemplates and rejects this possibility.
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`22.
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`Apple and its expert Dr. Melvin also argue that the “prerequisite directive” is also
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`indefinite because of a phrase in the specification’s use of the word “generally” in discussing
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`prerequisites. The specification states, “all resources which are labeled as a pre-requisite must
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`generally be available prior to rendering the corresponding page for presentation.” 26:47-51. Simply
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`because the specification used the word “generally” does not change my opinion of the meaning of
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`the phrase in the context of this patent. Further, this circumstance may directly account for the
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`“timeout” embodiment where a presentation is allowed to begin based on the expiration of a pre-set
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`time.
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`23.
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`Specifically, Apple further misconstrues the patent’s discussion of the “time for
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`expiration” term of dependent claim 12. Apple claims that this term expands the scope of the
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`invention because the time for expiration may end the prohibition of the initiation of a presentation
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`before the prerequisites are acquired. However, a system which will monitor a time for expiration
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`alone is not what is described by this term. The system must prohibit in response to waiting for
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`prerequisite resources to be acquired AND the expiration of time. Although the system will
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`ultimately allow the presentation based on one or the other, the prohibition must be in response to
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`both. This does not expand the scope of the invention, but rather further limits it.
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`24.
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`I understand that Apple contends that a “processing unit” does not connote sufficient
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`structure. To the contrary, a processing unit, i.e., a CPU, was a well-known structure to one of skill
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`in the art. It was a common component of computer systems. Further, here, it would be understood
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`that it would easily be programed to perform the functions identified using very few lines of code.
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`“Determining,” “initiating,” and “prohibiting” are all functions a processor is designed to be
`SUPPLEMENTAL DECLARATION
`6
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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`Case 5:15-cv-02008-EJD Document 87-4 Filed 04/19/16 Page 9 of 9
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`programmed to do. These are not abstract functions which require a complex algorithm to
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`implement. One or two lines of code to simply enable that function would be sufficient, and they are
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`the sort of functionality that even a first year computer science student should be able to do.
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`25.
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`Further, I understand that Apple draws a distinction between the algorithmic support
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`present for the proxy service embodiment and that for the client embodiment. However, the client
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`embodiment makes clear that it will use the same algorithm as the proxy server embodiment. A
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`person of ordinary skill in the art would have understood that it would be easier to enable the
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`algorithm on a client device. The same steps would be used, there would just not need to be
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`communication between the proxy server and a client device.
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`I declare under penalty of perjury under the laws of the United States that the foregoing is
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`true and correct and that this declaration was executed on April 19, 2016, at Santa Barbara,
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`Dr. Kevin Almeroth
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`7
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`SUPPLEMENTAL DECLARATION
`OF DR. KEVIN ALMEROTH
`Case No. 5:15-cv-02008-EJD (NMC)
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