Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 1 of 11
`Case 5:18—md-02834-BLF Document 507-5 Filed 08/26/19 Page 1 of 11
`
`
`
`
`EXHIBIT 4
`
`EXHIBIT 4
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 2 of 11
`
`Michael A. Sherman (SBN 94783)
`masherman@stubbsalderton.com
`Jeffrey F. Gersh (SBN 87124)
`jgersh@stubbsalderton.com
`Sandeep Seth (SBN 195914)
`sseth@stubbsalderton.com
`Wesley W. Monroe (SBN 149211)
`wmonroe@stubbsalderton.com
`Stanley H. Thompson, Jr. (SBN 198825)
`sthompson@stubbsalderton.com
`Viviana Boero Hedrick (SBN 239359)
`vhedrick@stubbsalderton.com
`STUBBS, ALDERTON & MARKILES, LLP
`15260 Ventura Blvd., 20th Floor
`Sherman Oaks, CA 91403
`Telephone:
`(818) 444-4500
`Facsimile:
`(818) 444-4520
`
`Attorneys for PersonalWeb Technologies, LLC
`and Level 3 Communications, LLC
`[Additional Attorneys listed below]
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`CASE NO.: 5:18-md-02834-BLF
`IN RE PERSONALWEB TECHNOLOGIES,
`
`LLC, ET AL., PATENT LITIGATION
`
`
`
`PERSONALWEB TECHNOLOGIES, LLC, a
`Texas limited liability company, and
`LEVEL 3 COMMUNICATIONS, LLC, a
`Delaware limited liability company
`
`Plaintiffs,
`v.
`TWITCH INTERACTIVE, INC., a Delaware
`corporation,
`
`Defendants.
`
`
`PERSONALWEB’S DISCLOSURES
`PURSUANT TO PATENT LOCAL RULES
`3-1 AND 3-2
`
`
`Case No.: 5:18-cv-05619-BLF
`
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 3 of 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`Pursuant to Patent Local Rules 3-1 and 3-2, Plaintiff PersonalWeb Technologies, LLC
`(“Plaintiff” or “PersonalWeb”) hereby makes the following Disclosure of Asserted Claims and
`Infringement Contentions to Defendant Twitch Interactive, Inc. (“Twitch” or “Defendant”). These
`discloses are preliminary and subject to change based upon discovery and the Court’s claim
`construction rulings:
`I.
`PRELIMINARY STATEMENT
`In making these contentions, Plaintiff has not yet received any discovery from Defendant
`regarding their infringing methods and systems and has not had access to the source code of the
`accused methods and systems. Plaintiff has, however researched available information, including (1)
`Defendant website(s), (2) publicly available information published by Defendants’ about their accused
`products and services, and (3) publicly available statements and information describing Defendants’
`accused products and services. PersonalWeb therefore reserves the right to amend its Infringement
`Contentions under Patent L.R. 3-6(c).
`Defendants engage in the allegedly infringing conduct through computer systems operating
`proprietary software. Defendants do not publicly disclose the precise operation of their computer
`systems and do not publicly disclose their source code. Because Defendants have not publicly
`disclosed the specific operation of their accused products and services and do not publicly disclose
`their source code for those products and services, PersonalWeb is inherently limited in the degree of
`specificity it can provide in the preliminary infringement contentions. Under these circumstances, the
`Northern District of California recognizes that the plaintiff will not be able to provide highly specified
`infringement contentions and should be permitted further discovery to supplement initial contentions
`with additional information. SpeedTrack, Inc. v. Amazon.com, Inc., No. 4:09-cv-04479-JSW (KAW),
`2018 U.S. Dist. LEXIS 112885, at *16 (N.D. Cal. July 6, 2018). Similarly, Patent Local Rule 3-1
`“does not require [the patent owner] to produce evidence of infringement”, but rather requires that the
`patent owner merely provide the accused infringer “with notice of infringement beyond that which is
`provided by the mere language of the patents themselves.” Network Caching Technology, LLC v.
`Novell, Inc., 2003 U.S. Dist. LEXIS 9881, 2003 WL 21699799, *4 (N.D. Cal. 2003).
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`1
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 4 of 11
`
`Accordingly, PersonalWeb reserves the right to amend its disclosures, including the identity
`of the claims being asserted, upon receiving discovery from Defendant.
`II.
`DISCLOSURES UNDER PATENT LOCAL 3-1
`3-1(a): Asserted Claims
`The following claims of each patent in suit are allegedly infringed by the Amazon Parties, the
`applicable statutory subsections of 35 U.S.C. §271 asserted.
`
`(a)
`
`Asserted Patent
`
`Asserted Claims
`
`Statutory Provision
`
`‘310
`
`‘420
`
`‘442
`
`‘544
`
`
`
`20, 69
`
`25, 26, 27, 29, 30, 32, 34, 35,
`36, 166
`
`35 U.S.C. § 271(a)
`
`35 U.S.C. § 271(a)
`
`10, 11
`
`35 U.S.C. § 271(a)
`
`46, 48, 52, 55
`
`35 U.S.C. § 271(a)
`
`(b)
`
`3-1(b): Accused Instrumentality
`The accused method operates in a system that includes Twitch’s website file host servers
`operating with Twitch’s website development system (“Twitch’s web server system”) when used by
`Twitch to control the distribution of Twitch’s webpage file content to other computers connected
`thereto via the Internet, such as intermediate cache servers and computers running web browsers.
`The accused method operates in a system that includes content delivery networks used by
`Twitch to control the distribution of its webpage file content to other computers connected thereto and
`each other via the Internet, such as intermediate cache servers and computers running web browsers.
`The accused systems and methods include certain accused functionalities when combined in
`the manner specified by the asserted claims. Inclusion in the list below does not imply that the
`functionality is an element of any particular patent claim. These functionalities include, but are not
`necessarily limited to:
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`2
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 5 of 11
`
`(a) Cache busting Twitch’s webpage base files1 with content-based ETag values generated and
`
`served from Twitch’s web server system used in conjunction with conditional HTTP GET
`
`requests with IF-NONE-MATCH headers (Category 1);
`
`(b) Cache busting Twitch’s webpage asset files with content-based ETag values generated and
`
`served with the asset file content from Twitch’s web server system, including to CDNs for
`
`re-service, used in conjunction with conditional HTTP GET requests with IF-NONE-
`
`MATCH headers (Category 2);
`
`(c) Cache busting Twitch’s webpage asset files with content-based ETag values generated and
`
`served with the asset file content from Amazon
`
`(d) Web Services (“AWS”) Simple Storage Service (“S3”) (“S3 website file host servers”),
`
`used in conjunction with conditional HTTP GET requests with IF-NONE-MATCH headers
`
`(Category 3).
`
`(e) Cache busting Twitch’s webpage asset files using content-based fingerprints generated and
`
`inserted into the filenames and URI’s of Twitch’s asset files by Twitch’s web server
`
`system, and serving such asset files with fingerprinted URIs from CDNs for re-service,
`
`(Category 4);
`
`(f) Cache busting Twitch’s webpage asset files using fingerprinted URIs in conjunction with
`
`conditional HTTP GET requests, including conditional HTTP GET requests with IF-
`
`NONE-MATCH headers and content-based ETags for Twitch’s webpage base files (‘544
`
`infringement).
`
`
`1 “Webpage base file” refers to the initial file served by a web server in response to a request
`for a webpage. Usually, but not always, this is an HTML file. A webpage base file is sometimes
`referred to as an “index file,” but this term is underinclusive of what is typically contained in a
`webpage base file.
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`3
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 6 of 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`The accused instrumentality for categories 1-2 includes software instructions executing in
`Twitch’s web server system, which cannot at this stage be identified by name. Upon information and
`belief, content-based ETag for a webpage base file/webpage asset file values are calculated by such
`software instructions controlling processors to apply the MD5 message digest algorithm to the content
`of the file/object, wherein any two versions of a file/object having identical content will have identical
`associated E-Tag values.
`Before being received in conditional HTTP GET requests, such content-based ETag values
`were previously sent to the other computer in an ETag header field of an HTTP 200 message in
`response to an HTTP GET request for that object.
`The HTTP 304 response message indicates to the other computer that the computer that sent
`the conditional GET request that it is permitted to access the cached copy of the content of the
`file/object referenced in the request for the purposes of that request, such as to re-serve it or use it in
`rendering the Twitch webpage. The HTTP 200 response message, in contrast, indicates to the
`requesting computer that it is not authorized to access the cached copy of the content of the file/object
`referenced in the request, for the purposes of the request, and should instead access the new content
`contained in the HTTP 200 response message for the purposes of the request, such as to re-serve it or
`use it in rendering the webpage of the website operator.
`The accused instrumentality for category 4 includes software instructions executing in
`Twitch’s web server system, which cannot at this stage be identified by name. Upon information and
`belief, content-based fingerprint values are calculated by such software instructions controlling
`processors to apply the MD5 message digest algorithm to the content of the webpage asset file
`file/object plus a seed value, wherein any two versions of a file/object having identical content will
`have identical associated E-Tag values when the same seed value is used. The fingerprint is inserted
`into the filename/URI for the webpage asset file and used for cache-busting in a couple of different
`ways. In one way (‘544 infringement), the browser rendering a Twitch webpage initially receives a
`Twitch webpage base file which references one or more URIs with fingerprints for Twitch asset files
`needed to render the webpage. The browser obtains the referenced webpage asset files and caches the
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`4
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 7 of 11
`
`content of those files indexed to their URI that include their fingerprints. When called to again render
`the webpage, the browser sends up a conditional GET request for the webpage base file, which will
`return an HTTP 304 message if the content of any webpage base file (and hence its fingerprint) has
`not changed and therefore the content-based ETag value of. The HTTP 304 message indicates to the
`browser that it is re-permitted to use the cached webpage base file. Because all the webpage asset files
`referenced in the cached file have the same fingerprint value as they did when they were cached, the
`browser will be able to render the webpage using the cached webpage asset files and will not have to
`retrieve them again. If, however, the content of an asset file has changed since the time it was cached,
`its fingerprint would have changed, thereby changing the content of the webpage base file (that will
`now reference the new fingerprint value), thereby changing its ETag value. Therefore, the conditional
`HTTP GET request for the webpage base file will return an HTTP 200 message with, inter alia, the
`new ETag value for the webpage base file and the new content. The Browser will read the new
`webpage base file, and for any webpage base file whose fingerprint has changed, will retrieve that file
`because its URI is not contained in its cache index. In this manner, Twitch can precisely control which
`asset file the browser reuses because it still has the latest authorized content and which asset file
`containing the current authorized content it must obtain to use in rendering the webpage. This method
`may also be practiced with no conditional GET request, in which the browser is always instructed to
`get a new webpage base file which will prevent the cache from using any cached webpage asset file
`that no longer comprises the latest authorized content as just described.
`(c)
`3-1(c): Claim Charts
`Attached as Exhibits A to D hereto are claim charts for each patent-in-suit identifying
`specifically where and how each limitation of each asserted claim is found within each Accused
`Instrumentality. PersonalWeb does not contend that any claim limitation should be interpreted under
`35 U.S.C. § 112(6). Exhibits A to D, in turn, refer to Annexure A, which includes more specifics
`about alleged infringing acts.
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`5
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 8 of 11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`(d)
`
`(g)
`
`3-1(d): Indirect Infringement
`Subject to change with discovery, on the present record, PersonalWeb asserts that Twitch
`directly infringes and that the direct infringement is met by their actions or actions for which they have
`vicarious directly liability. Discovery may show that Twitch is also contributing to or inducing other’s
`infringement.
`(e)
`3-1(e): Doctrine of Equivalents
`Subject to change with discovery and the Court’s claim construction order, PersonalWeb
`alleges that each limitation of each asserted claim is literally present. PersonalWeb also believes that
`any claim element not found to be literally present in the Accused Instrumentality would be present
`under the doctrine of equivalents.
`(f)
`3-1(f): Priority Date
`The priority date of the ‘310, ‘420, ‘442 and ‘544 patents is April 11, 1995.
`3-1(g): Self-Practice
`PersonalWeb does not rely upon its manufacture and use of any product that practices the
`asserted claims.
`(h)
`3-1(h): Damages Period
`The time of the first infringement is presently unknown. The start of claimed damages is
`September 13, 2012, six years prior to PersonalWeb’s filing of the Twitch action. The end of claimed
`damages period is December 26, 2016, the expiration date of the last asserted patent to expire.
`(i)
`3-1(i) Willful Infringement
`Twitch has insufficient information to decide whether it will allege willful infringement but
`reserves the right to make such allegation if facts obtained during discovery so warrant.
`III.
`3-2. Document Production Accompanying Disclosure
`With the “Disclosure of Asserted Claims and Infringement Contentions,” the party claiming
`patent infringement shall produce to each opposing party or make available for inspection and
`copying:
`
`(a) PersonalWeb has no such documents in its possession, custody or control.
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`6
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 9 of 11
`
`(b) Any such documents in PersonalWeb’s possession, custody or control have been
`
`previously provided as bates numbers PERSONALWEB000001 to
`
`PERSONALWEB003133, subject to all applicable provisions of the Court’s
`
`protective order.
`
`(c) Any such documents in PersonalWeb’s possession, custody or control have been
`
`previously provided as bates numbers PERSONALWEB003134 to
`
`PERSONALWEB006628, subject to all applicable provisions of the Court’s
`
`protective order.
`
`(d) Any such documents in PersonalWeb’s possession, custody or control have been
`
`provided herewith as bates numbers PERSONALWEB006629 to
`
`PERSONALWEB006634, subject to all applicable provisions of the Court’s
`
`protective order.
`
`(e) N/A
`
`(f) Any such documents in PersonalWeb’s possession, custody or control have been
`
`provided as bates numbers PERSONALWEB006635 to PERSONALWEB006999,
`
`subject to all applicable provisions of the Court’s protective order.
`
`(g) See PERSONALWEB006629 to PERSONALWEB007034.
`
`(h) See PERSONALWEB006629 to PERSONALWEB007034.
`
`(i) N/A
`
`(j) N/A
`
`PersonalWeb has used its best efforts to identify responsive P.R. 3-2 documents and only those
`documents. However, given the volume of documents, some documents may have been inadvertently
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`7
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 10 of 11
`
`listed or inadvertently omitted. To the extent such deficiencies are identified, PersonalWeb will
`supplement its production accordingly.
`
`Dated: December 22, 2018
`
`Respectfully submitted,
`STUBBS, ALDERTON & MARKILES, LLP
`
`Dated: December 22, 2018
`
`Dated: December 22, 2018
`
`
`
`By: /s/ Michael A. Sherman
`Michael A. Sherman
`Jeffrey F. Gersh
`Sandeep Seth
`Wesley W. Monroe
`Stanley H. Thompson, Jr.
`Viviana Boero Hedrick
`Attorneys for PersonalWeb Technologies, LLC,
`and Level 3 Communications, LLC
`
`MACEIKO IP
`
`
`
`By: /s/ Theodore S. Maceiko
`Theodore S. Maceiko (SBN 150211)
`ted@maceikoip.com
`MACEIKO IP
`420 2nd Street
`Manhattan Beach, California 90266
`Telephone:
`(310) 545-3311
`Facsimile:
`(310) 545-3344
`Attorneys for Defendant/Counterclaimant
`PERSONALWEB TECHNOLOGIES, LLC,
`
`DAVID D. WIER
`
`
`
`By: /s/ David D. Wier
`David D. Wier
`david.wier@level3.com
`Vice President and Assistant General Counsel
`Level 3 Communications, LLC
`1025 Eldorado Boulevard
`Broomfield, CO 80021
`Telephone: (720) 888-3539
`Attorneys for Defendant/Counterclaimant
`LEVEL 3 COMMUNICATIONS, LLC
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`8
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`

`

`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`
`
`
`Case 5:18-md-02834-BLF Document 507-5 Filed 08/26/19 Page 11 of 11
`
`PROOF OF SERVICE
`
`NDCA Case No. 5:18-cv-05619-BLF
`Attorney for Twitch Interactive, Inc.
`
`I declare as follows:
`I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
`not a party to the within action. My business address is 15260 Ventura Blvd., 20th Floor, Sherman
`Oaks, California 91403. On December 22, 2018, I served the documents described as:
`PERSONALWEB’S DISCLOSURES PURSUANT TO PATENT LOCAL RULES 3-1 AND 3-2
`on the interested parties in this action as follows:
`Todd R. Gregorian
`tgregorian@fenwick.com
`FENWICK & WEST LLP
`Silicon Valley Center
`801 California Street
`Mountain View, CA 94041
`BY U.S. MAIL: By depositing for collection and mailing in the ordinary course of
`business. I am “readily familiar” with the firm’s practice of collection and processing
`correspondence for mailing. Under that practice it would be deposited with U.S. Postal
`Service on the same day with postage thereon fully prepaid at Sherman Oaks, California
`in the ordinary course of business. I am aware that on motion of the party served,
`service is presumed invalid if postal cancellation date or postage meter date is more than
`one day after date of deposit for mailing on affidavit.
`TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING
`(“NEF”) pursuant to FRCP, Rule 5(b)(2)(E) and JPML Rule 4.1 (Pursuant to
`controlling General Order(s) and Local Rule(s) (“LR”), the foregoing document will be
`served by the court via NEF and hyperlink to the document to counsel at the email
`address(s) listed below).
`
`PURSUANT TO STIPULATION for email service reached with counsel of record, I
`served the above documents to the emails listed in the service caption above. A true
`and correct copy of the transmittal will be produced if requested by any party or the
`court.
`(BY OVERNIGHT DELIVERY) I am personally and readily familiar with the
`business practice of Stubbs Alderton & Markiles, LLP for collection and processing of
`correspondence for overnight delivery, and I caused such document(s) described herein
`to be deposited for delivery to a facility regularly maintained by Federal Express for
`overnight delivery.
`
`I declare that I am employed in the office of a member of the bar of this court at whose
`direction the service was made. I declare under penalty of perjury under the laws of the United
`States of America that the above is true and correct. Executed on December 22, 2018, at Sherman
`Oaks, California.
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Wesley W. Monroe
` Wesley W. Monroe
`
`
`
`
`PATENT L.R. 3-1/3-2 DISCLOSURES
`
`4833-3791-3476, V. 1
`
`9
`
`
`
`
`CASE NO: 5:18-md-02834-BLF
`CASE NO: 5:18-cv-05619-BLF
`
`