Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 1 of 21 PageID #: 468
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
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`)
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`)
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`)
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` Plaintiff,
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`Defendants.
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`
`
`C.A. No. 17-1693 (JFB) (SRF)
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`REALTIME ADAPTIVE STREAMING
`LLC,
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`
`
`
`
`SONY ELECTRONICS INC. and
`SONY CORPORATION,
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`
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`
`
`
`
`
`
`v.
`
`
`
`SONY’S OPENING BRIEF IN SUPPORT OF ITS
`MOTION FOR A MORE DEFINITE STATEMENT
`
`
`
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`rsmith@mnat.com
`
`Attorneys for Defendant Sony Electronics Inc.
`
`
`
`
`
`
`
`
`
`
`OF COUNSEL:
`
`Gregory S. Gewirtz
`Jonathan A. David
`Alexander Solo
`LERNER DAVID LITTENBERG KRUMHOLZ
`& MENTLIK LLP
`600 South Avenue West
`Westfield, NJ 07090
`(908) 654-5000
`
`February 5, 2018
`
`
`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 2 of 21 PageID #: 469
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`Page
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`TABLE OF AUTHORITIES .......................................................................................................... ii
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`
`
`TABLE OF CONTENTS
`
`I.
`
`II.
`
` INTRODUCTION ..............................................................................................................1
`
`NATURE AND STAGE OF THE PROCEEDINGS ..........................................................1
`
`III.
`
`SUMMARY OF THE ARGUMENT ..................................................................................1
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`IV.
`
`STATEMENT OF FACTS ..................................................................................................3
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`V.
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`ARGUMENT .......................................................................................................................6
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`Sony Cannot Determine Realtime’s Grounds Of
`Infringement As To The Accused Instrumentalities ................................................7
`
`Realtime’s Allegations As To Compatibility With
`Standards ................................................................................................................11
`
`Realtime’s Allegations As To The H.265 Standard...............................................12
`
`Realtime’s Broad Categories Of Accused Products ..............................................14
`
`Alleged “Decoding” By Accused Encoding Devices, And
`Alleged “Encoding” By Accused Decoding Devices ............................................14
`
`F.
`
`Counts II, V ____ Ownership Of The ’462 And ’298 Patents .................................16
`
`VI.
`
`CONCLUSION ..................................................................................................................17
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`
`
`
`
`
`i
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`

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`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 3 of 21 PageID #: 470
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Alston v. Parker,
`363 F.3d 229 (3d Cir. 2004).......................................................................................................6
`
`Baxter v. Rose,
`305 F.3d 486 (6th Cir. 2002) .....................................................................................................7
`
`Clark v. McDonald’s Corp.,
`213 F.R.D. 198 (D.N.J. 2003) ....................................................................................................6
`
`Hewlett-Packard Co. v. Intergraph Corp.,
`No. C 03-2517, 2003 U.S. Dist. LEXIS 26092 (N.D. Cal. Sept. 6, 2003) ........................10, 13
`
`St. Clair Intellectual Prop. Consultants v. Apple Inc.,
`No. 10-00982, 2011 U.S. Dist. LEXIS 112280 (D. Del. Sept. 30, 2011) ..................................6
`
`Taurus IP, LLC v. Ford Motor Co.,
`539 F. Supp. 2d 1122 (W.D. Wis. 2008) .......................................................................9, 10, 13
`
`Rules and Statutes
`
`Fed. R. Civ. P. 12(e) ....................................................................................................................1, 6
`
`
`
`
`
`
`
`
`
`
`
`
`ii
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`

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`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 4 of 21 PageID #: 471
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`I.
`
`INTRODUCTION
`
`Defendant Sony Electronics Inc. (“Sony”) moves, pursuant to Fed. R. Civ.
`
`P. 12(e), for a more definite statement of the claims in the Complaint filed by Plaintiff Realtime
`
`Adaptive Streaming LLC (“Realtime”), as the Complaint is so vague and ambiguous that Sony
`
`cannot reasonably prepare a response.
`
`II.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`On November 21, 2017, Realtime filed its Complaint against Defendants Sony
`
`Electronics Inc. and Sony Corporation. (D.I. 1.) On December 20, 2017, the parties filed a
`
`Stipulation to extend the time to January 19, 2018, for Sony Electronics Inc. to move, answer, or
`
`otherwise respond to the Complaint (D.I. 6), which was granted on December 21, 2017 (D.I. 7).
`
`On December 26, 2017, the parties filed a Stipulation of Dismissal of Defendant Sony
`
`Corporation (D.I. 9) such that only Defendant Sony Electronics Inc. now remains in the case.
`
`Finally, on January 16, 2018, the parties filed a Stipulation (D.I. 11) to extend the time to move,
`
`answer, or otherwise respond to the Complaint until February 5, 2018.
`
`III.
`
`SUMMARY OF THE ARGUMENT
`
`1.
`
`Realtime’s Complaint lists hundreds of different models from different
`
`product classes as the Accused Instrumentalities, but only specifically mentions a few products
`
`as supporting or using particular standards without clearly alleging how the Accused
`
`Instrumentalities infringe the asserted claims. Realtime ambiguously alleges some facts about
`
`how some Sony products are compatible with a given standard, recites some of the features of
`
`the standard, and then concludes that all accused products infringe by parroting back the
`
`language of asserted claims. Realtime’s allegations do not include sufficient detail to enable
`
`Sony to reasonably prepare a response, and as they now stand are unintelligible, vague, and
`
`
`
`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 5 of 21 PageID #: 472
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`ambiguous such that Sony cannot reasonably understand how each of the Accused
`
`Instrumentalities are alleged to infringe. Accordingly, a more definite statement should be
`
`ordered.
`
`2.
`
`Realtime only pleads facts regarding how a few exemplary products are
`
`allegedly compatible with certain standards, such that it is vague and ambiguous as to which of
`
`the Accused Instrumentalities use which standards, when such standards are used, and how use
`
`of such standards meets the elements of each asserted claim. Thus, Realtime should be ordered
`
`to provide a more definite statement in this regard as to all Counts.
`
`3.
`
`In Counts II and V, Realtime also fails to intelligibly allege how
`
`compatibility with a particular standard (H.265) even meets the steps of the asserted claims.
`
`Realtime merely lists out each step of the claim, and then provides citations to the H.265
`
`specification and/or an article about the specification, without indicating how use of the standard
`
`performs the listed step. Realtime’s citations to cryptic passages in or about the standard are so
`
`vague and ambiguous that they fail to provide notice to Sony of how a given step is practiced by
`
`use of the standard. Thus, Realtime should be ordered to provide a more definite statement as to
`
`these Counts.
`
`4.
`
`In addition to specific models, Realtime’s repeated list of Accused
`
`Instrumentalities also includes certain broad classes of products such as “camcorders,” “motion
`
`cameras,” “film cameras,” “music video recorders,” “in-car receivers and players,” and “next
`
`generation 4K media players.” Such nonspecific allegations to these broad product categories
`
`are completely vague and ambiguous as to which products are actually at issue such that Sony
`
`cannot reasonably prepare a response. In fact, some allegations, such as alleged infringement
`
`against Sony’s “film cameras,” are vague and confusing as those products do not in any way
`
`2
`
`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 6 of 21 PageID #: 473
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`implicate the asserted standards. Thus, a more definite statement should be provided as to the
`
`accused products in these broad categories.
`
`5.
`
`The asserted claims in Counts I, II, IV, VI, and VII all relate to apparatus
`
`or methods of compression encoding, but Realtime confusingly accuses Sony products of
`
`infringement by virtue of their decoders and decoding abilities. Likewise, the asserted claims of
`
`Counts III and V relate to apparatus or methods for decoding or decompressing, but Realtime
`
`confusingly accuses Sony products of infringement by virtue of their encoding abilities. Such
`
`allegations are unintelligible, vague, and ambiguous as to how there is infringement of such
`
`encoding claims, and therefore Realtime should be ordered to provide a more definite statement.
`
`6.
`
`Finally, in Counts II and V, it is vague and ambiguous as to the issue of
`
`ownership of the ’462 and ’298 Patents in order to confer proper standing. The ’462 Patent
`
`indicates no assignee on its face, while the ’298 Patent lists a different assignee than Realtime.
`
`Thus, a more definite statement alleging facts as to how Realtime became the owner of these
`
`patents should be provided.
`
`IV.
`
`STATEMENT OF FACTS
`
`In its Complaint, Realtime asserts seven counts of infringement by Sony of U.S.
`
`Patent Nos. 7,386,046 (“the ’046 Patent”) (Count I); 8,634,462 (“the ’462 Patent”) (Count II);
`
`8,929,442 (“the ’442 Patent”) (Count III); 8,934,535 (“the ’535 Patent”) (Count IV); 9,578,298
`
`(“the ’298 Patent”) (Count V); 9,762,907 (“the ’907 Patent”) (Count VI); and 9,769,477 (“the
`
`’477 Patent”) (Count VII) (collectively the “Asserted Patents”). (¶¶ 8-178.)1 The Asserted
`
`Patents all relate to video data compression or encoding.
`
`
`1
`References to ¶ herein are to the numbered paragraphs of Realtime’s Complaint, D.I. 1.
`The Asserted Patents were attached as Exhibits A-G to the Complaint, D.I. 1-1 to 1-7.
`
`3
`
`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 7 of 21 PageID #: 474
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`Realtime alleges infringement by numerous different lines of Sony products,
`
`including security cameras, broadcast and production cameras, interchangeable lens cameras,
`
`camcorders, action cameras, motion cameras, film cameras, digital film cameras, music video
`
`recorders, professional camcorders, surveillance video encoders, satellite TV and receiver
`
`combos, gaming consoles, televisions, Blu-ray and DVD players, MP3 players, in-car receivers
`
`and players, video streaming services, media players, home theater projectors, and products
`
`using a certain chipset, all which Realtime re-lists in each Count as the “Accused
`
`Instrumentalities” for each Asserted Patent, as follows:
`
`Sony’s video security camera series, including Minidomes series cameras SNC-
`VM772R, SNC-VM641, SNC-EM641, SNC-VM642R, SNC-EM642R, SNC-
`VM632R, SNC-VM602R, SNC-VM631, SNC-VM601, SNC-VM630, SNC-
`VM600, SNC-EM632RC, SNC-EM602RC, SNC-EM631, SNC-EM601, SNC-
`EM630, SNC-EM600, SNC-XM631, SNC-XM632, SNC-XM636, SNC-XM637,
`SNC-HM662, SNC-DH280, SNC-DH240T, SNC-DH140T, SNC-DH240, SNC-
`DH140, SNC-DH260, SNC-DH160, SNC-DH220T, SNC-DH120T, SNC-
`DH220, SNC-DH120, SNC-DH210T, SNC-DH110T, SNC-DH210, SNC-
`DH110, SNC-ZM551, SNC-ZM550;
`
`Fixed series cameras SNC-VB770, SNC-VB640, SNC-EB640, SNC-VB642D,
`SNC-EB642R, SNC-VB635, SNC-VB630, SNC-VB600, SNC-VB632D, SNC-
`EB632R, SNC-EB602R, SNC-EB630, SNC-EB600, SNC-EB630B, SNC-
`EB600B, SNC-CX600W, SNC-CX600, SNC-CH280, SNC-CH180, SNC-CH240,
`SNC-CH140, SNC-CH260, SNC-CH160, SNC-CH220, SNC-CH120, SNC-
`CH110, SNC-ZB550; and
`
`Pan Tilt Zoom series cameras SNC-WR632C, SNC-WR602C, SNC-WR602,
`SNC-WR630, SNC-WR600, SNC-ER585, SNC-ER580, SNC-EP580, SNC-
`ER550, SNC-EP550, SNC-ER520, SNC-EP520, SNC-RS86N, SNC-RS46N;
`
`other Pan/Tilt/Zoom cameras (for Broadcast & Production) SRG360SHE,
`BRCH900/PAC2, and BRCH900;
`
`the cameras ILCE-7RM3, ILCE-7RM2;
`
`Sony’s interchangeable-lens cameras, compact cameras;
`
`Sony camcorders, action cameras, motion cameras, film cameras, digital film
`cameras, music video recorders, professional camcorders;
`
`4
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`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 8 of 21 PageID #: 475
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`Sony Surveillance Video Encoders SNT-EX101, SNT-EX101E, SNT-EX104,
`SNT-EX154, SNT-EP104 and SNT-EP154;
`
`and the Sony SAS-HD1SET H.264 satellite and receiver combo,
`
`Sony PlayStation models including PS4 models, PS3 models, PS2 models, PS1
`models,
`
`Sony Televisions such as the Z9D series, A1E series, XBR-X930E-X940E series,
`XBR-X900E series, XBR-X850E series, XBR-X800E series, X700E series,
`X690E series, XBR-X940D-X930D series, XBR-X750D-X700D series, XBR-
`X800D series, XBR-X850D series, W630B series, W650D series, W600D series;
`
`Sony Blu-Ray & DVD Players with playback capability of MPEG-4/AVC (.mov,
`.3gp, .3g2, .3gpp, .3gpp2, .flv) or MPEG-4 AVC (.mkv, .mp4, .m4v, .m2ts, .mts
`such as the UBP-X800 and UBP-X1000ES series;
`
`Sony MP3 players;
`
`Sony in-car receivers and players,
`
`Sony 4K products including
`
`the Sony 4K BRAVIA TVs,
`
`Sony Video Unlimited 4K,
`
`Next generation 4K Media Player,
`
`Sony 4K Home Theater Projectors such as the VPL-VW500ES and VPL-
`VW1100ES,
`
`Sony consumer 4K Handycams including the FDR-AX1, FDR-AX100,
`
`4K products using the Sony IMX274 Chipset including the Urban Security Group
`(USG) Sony Chip Ultra 4K IP PoE Network Bullet Security Camera, the USG
`Sony Chip Ultra 4K IP PoE Network Dome Security Camera, the USG Sony DSP
`Ultra 4K IP PoE Network Bullet Security Camera,
`
`and all versions and variations thereof since the issuance of the [asserted] Patent
`(“Accused Instrumentalities”).
`
`(¶¶ 17, 41, 65, 89, 113, 132, 156.)
`
`As summarized in chart below, the Complaint identifies only one specific claim
`
`from each Asserted Patent as allegedly infringed by all Accused Instrumentalities, and makes
`
`5
`
`

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`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 9 of 21 PageID #: 476
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`allegations of compliance with certain video compression standards (H.264 or H.265) for only
`
`some of the accused products:
`
`Patent (Count) Asserted Claim
`
`Alleged Standard & Mentioned Products
`
`’046 (I)
`
`claim 40 (¶ 30)
`
`Alleged Standard: H.264 video compression/encoding
`
`’442 (III)
`
`claim 8 (¶ 78)
`
`’535 (IV)
`
`claim 15 (¶ 102)
`
`Mentioned Products:
`SNC-ZM550, SNC-ER550, SRG360SHE cameras
`(¶¶ 20-24, 68-71, 92-95, 135-38, 159-62)
`
`’907 (VI)
`
`claim 1 (¶ 145)
`
`’477 (VII)
`
`claim 1 (¶ 169)
`
`SNT-EX101, EX101E, EX104, EX154, SNT-EP104,
`EP154 surveillance video encoders
`(¶¶ 24, 72, 96, 139, 163)
`
`SAS-HD1SET H.264 satellite and receiver combo
`(¶¶ 25, 73, 97, 140, 164)
`
`’462 (II)
`
`claim 1 (¶ 55)
`
`Alleged Standard: H.265 video compression/encoding
`
`’298 (V)
`
`claim 1 (¶ 122)
`
`Mentioned Products:
`4K BRAVIA TVs
`(¶¶ 42, 114)
`
`USG Sony Chip Ultra 4K IP PoE Network Bullet and
`Dome Security Cameras
`(¶¶ 43, 115)
`
`The Complaint also alleges that Sony infringes “other claims” of each of the
`
`Asserted Patents. (¶¶ 32, 56, 80, 104, 123, 147, 171.) For example, it states: “On information
`
`and belief, Sony also directly infringes and continues to infringe other claims of the ’046 Patent,
`
`for similar reasons as explained above with respect to Claim 40 of the ’046 Patent.” (¶ 32.)
`
`V.
`
`ARGUMENT
`
`A party may move for a more definite statement of a pleading where the pleading
`
`is “so vague or ambiguous that the party cannot reasonably prepare a response.” Fed. R. Civ.
`
`P. 12(e). Rule 12(e) has been interpreted to make relief available where a pleading is
`
`unintelligible, or the issues cannot be determined. St. Clair Intellectual Prop. Consultants v.
`
`6
`
`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 10 of 21 PageID #: 477
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`Apple Inc., C.A. No. 10-982, 2011 U.S. Dist. LEXIS 112280, at *5-6 (D. Del. Sept. 30, 2011)
`
`(internal citations omitted).
`
`Rule 12(e)’s purpose “is to require greater specificity than what is ordinarily
`
`required under Rule 8(a)(2) in that narrow class of cases where the want of specificity precludes
`
`the defendant from properly framing an answer to a legally sufficient complaint.” Clark v.
`
`McDonald's Corp., 213 F.R.D. 198, 233 (D.N.J. 2003); see also Alston v. Parker, 363 F.3d 229,
`
`237 n.7 (3d Cir. 2004) (noting that a more definite statement is a tool resolve ambiguity or
`
`vagueness); Baxter v. Rose, 305 F.3d 486, 490 (6th Cir. 2002) (stating that a Rule 12(e)
`
`statement is appropriate for a “truly unclear complaint”).
`
`A.
`
`Sony Cannot Determine Realtime’s Grounds
`Of Infringement As To The Accused Instrumentalities
`
`Realtime’s Complaint lists hundreds of different models from different product
`
`classes in its repeated list of “Accused Instrumentalities,” and only mentions a few exemplary
`
`products as supporting a particular standard (i.e., H.264 or H.265). Further, Realtime does not
`
`clearly allege how each Accused Instrumentality, or even each exemplary product, infringes the
`
`asserted claims, such as how each element is met by each product. Rather, it simply
`
`ambiguously alleges some facts about how some products are compatible with a given standard,
`
`recites some of the features of the standard, and then, in a conclusory paragraph, asserts that all
`
`accused products infringe by simply parroting back the claim language of the asserted claims.
`
`Such allegations are so vague and ambiguous that Sony cannot reasonably prepare a response.
`
`7
`
`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 11 of 21 PageID #: 478
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`Realtime follows a certain pattern of pleading for each Count. By way of
`
`example, for claim 40 of the ’046 Patent (Count I), Realtime first alleges that some of Sony’s
`
`products include or support H.264 capabilities. (¶¶ 18-19.)2
`
`Second, Realtime lists a few exemplary products that it alleges supports or uses
`
`the H.264 standard. (¶¶ 20-25.) Realtime does not allege, however, how all other Accused
`
`Instrumentalities support or use the H.264 standard.
`
`Third, Realtime alleges that “the Accused Instrumentalities” perform two
`
`functions as recited in the first sentences of ¶ 26 and ¶ 293 ____ which are unintelligible as they not
`
`even claimed in claim 40 ____ and then goes on to cite certain features of the H.264 standard from
`
`various specs, white papers, and articles, again without reference to the claim elements of
`
`claim 40. (¶¶ 26-29.)
`
`Finally, Realtime summarily alleges that, “therefore,” Sony’s use and testing of
`
`all of the “Accused Instrumentalities” meets the claim language its parrots from claim 40:
`
`Therefore, from at least the above, Sony has directly infringed and
`30.
`continues to infringe the ’046 Patent, for example, through its own use and testing
`of the Accused Instrumentalities, which when used, practices the system claimed
`by Claim 40 of the ’046 Patent, namely, a system, comprising: a data
`compression system for compressing and decompressing data input; a plurality
`of compression routines selectively utilized by the data compression system,
`wherein a first one of the plurality of compression routines includes a first
`compression algorithm and a second one of the plurality of compression
`
`
`2
`For example, Realtime alleges that “several of the Accused Instrumentalities possess
`H.264 capabilities,” “Sony supports H.264,” “most or many of Sony’s cameras utilize H.264
`technology,” “Sony network cameras natively support H.264,” and a “Committee of which Sony is
`a long-standing member recently received an Emmy Engineering Award for its work on
`H.264/MPEG-4’s High Profile compression standard.” (¶¶ 18, 19 (emphasis added).)
`
`3
`The two functions listed by Realtime are: “[t]he Accused Instrumentalities determine a
`parameter of at least a portion of a video data block” (¶ 26), and “[t]he Accused Instrumentalities
`compress the at least the portion of the data block . . . to provide one or more compressed data
`blocks . . . (see above)” (¶ 29).
`
`8
`
`

`

`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 12 of 21 PageID #: 479
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`routines includes a second compression algorithm; and a controller for
`tracking throughput and generating a control signal to select a compression
`routine based on the throughput, wherein said tracking throughput comprises
`tracking a number of pending access requests to a storage device; and wherein
`when the controller determines that the throughput falls below a predetermined
`throughput threshold, the controller commands the data compression engine to
`use one of the plurality of compression routines to provide a faster rate of
`compression so as to increase the throughput. Upon information and belief,
`Sony uses the Accused Instrumentalities to practice infringing methods for its
`own
`internal non-testing business purposes, while
`testing
`the Accused
`Instrumentalities, and while providing technical support and repair services for
`the Accused Instrumentalities to their customers.
`
`(¶ 30 (emphasis showing claim language).)
`
`It is completely unclear as to which Accused Instrumentalities are alleged to
`
`infringe, let alone how each product meets each claim element. It is also unclear and
`
`unintelligible how compliance with the H.264 standard meets each element of the claim.
`
`Realtime repeats this same type of generalized pleading format for the other
`
`Asserted Patents on the other Counts, and is not only unclear as to which Accused
`
`Instrumentalities are alleged to infringe, but it is unintelligible as to how use of the standards
`
`even meets the claim elements.
`
`As another example, the asserted claims of Counts III, IV, VI and VII all require
`
`“asymmetric” compressors or algorithms, yet there is no indication how the encoding by the
`
`exemplary products or the Accused Instrumentalities is “asymmetric,” only that H.264-complaint
`
`systems select between a “CAVLC” or “CABAC” encoder, without explaining how such
`
`encoders are “asymmetric” encoders. (See ¶¶ 28-29, 76-77, 100-01, 143-44, 167-68.) Still
`
`further, the asserted claims of Counts III, VI, and VII all claim use of throughput of a
`
`“communication channel,” yet the Complaint does not allege anything about any use of a
`
`“communication channel” by the exemplary products, the Accused Instrumentalities, or by use of
`
`the standards.
`
`9
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`

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`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 13 of 21 PageID #: 480
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`Finally, in addition to the above, Realtime also fails to list the “other claims” that
`
`it alleges Sony infringes in ¶¶ 32, 56, 80, 104, 123, 147, and 171.
`
`In sum, the Complaint is so ambiguous that Sony cannot intelligibly determine
`
`which products infringe, and how so. Realtime’s complaint is tantamount to a general statement
`
`alleging that thousands of different types of Sony products may infringe. In Taurus IP, LLC v.
`
`Ford Motor Co., 539 F. Supp. 2d 1122 (W.D. Wis. 2008), a case decided prior to abrogation of
`
`Form 18’s sample complaint for patent infringement, the court granted a Rule 12(e) motion for a
`
`more definite statement where the complaint gave a few exemplary products and then accused all
`
`products at a list of websites showcasing the defendants’ products. Id. at 1124-25. The court
`
`explained:
`
`Although plaintiff lists a few examples of allegedly infringing products in its
`complaint, it fails to specify which claims it believes are infringed and seeks to
`assert infringement of many unspecified products. Because defendants cannot
`respond to plaintiff’s allegations without undue burden and prejudice, defendants’
`motion for a more definite statement will be granted. Plaintiff must provide a
`more definite statement identifying the claims it believes defendants’ products
`infringe and listing all products it believes are infringing or providing a criteria by
`which defendants can identify the infringing products.
`
`Id. at 1127. As to unspecified claims, the court also explained that “failure to specify which
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`claims [a plaintiff] believes are infringed by a defendant’s products places an undue burden on
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`the defendant, who must wade through all the claims in a patent and determine which claims
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`might apply to its products to give a complete response.” Id.
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`Likewise, in Hewlett-Packard Co. v. Intergraph Corp., No.C 03-2517, 2003 U.S.
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`Dist. LEXIS 26092 (N.D. Cal. Sept. 6, 2003), another case decided prior to abolishment of
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`Form 18 (then Form 16), the complaint had effectively pled infringement of over 4000 products.
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`The court explained:
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`Plaintiff’s claim must be read as follows: one or more of Defendant’s 4000-plus
`products directly infringes, contributorily infringes, or induces infringement of at
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`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 14 of 21 PageID #: 481
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`least one claim in each of the patents-in-suit. Form 16 simply does not address a
`factual scenario of this sort. Not only is the example in Form 16 limited to a
`single “type” of product (i.e., electric motors) there is no indication as to the
`number of different electric motors the hypothetical defendant made, sold, or
`used. In this case, there are at least 150 different “types” of products (i.e. core
`technology platforms) with more than 4000 end-user applications. Based on these
`facts, the Court finds that Plaintiff's allegations do not provide Defendant with
`“fair notice” of what Plaintiff's claim or claims are and, therefore, fail to satisfy
`Rule 8(a)(2).
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`Id. at *6-7. Here, Sony was not provided with fair notice as to which exact products Realtime’s
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`infringement claims are against, just a list of hundreds of potential products and/or product
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`categories.
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`Accordingly, the Counts of the Complaint are so vague and ambiguous that Sony
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`cannot reasonably prepare a response, and therefore a more definite statement should be ordered.
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`B.
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`Realtime’s Allegations As To Compatibility With Standards
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`Realtime’s Complaint is also vague and ambiguous as to the H.264 or H.265
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`standards. Although Realtime may be trying to allege infringement based on compatibility with
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`standards, it lists only a few exemplary products that it says are “compatible” with such
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`standards, and the Complaint is completely unintelligible as to how each product uses which
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`standard, and how use of such standard(s) meets the claim elements of each asserted claim.
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`Realtime does not even allege whether the parts of the standards it mentions are optional or
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`required, or whether the standards specify use of particular processes for encoding or
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`compression.
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`The Complaint only provides some details of compatibility with certain standards
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`by some products on the huge list of Accused Instrumentalities.4 It does not allege how
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`
`4
`The only products (of the thousands accused) discussed in any detail in the Complaint
`are: SNC-ZM550, SNC-ER550, and SRG360SHE cameras; SNT-EX101, SNT-EX101E, SNT-
`EX104, SNT-EX154, SNT-EP104 and SNT-EP154 surveillance video encoders; SAS-HD1SET
`(continued)
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`Case 1:17-cv-01693-JFB-SRF Document 14 Filed 02/05/18 Page 15 of 21 PageID #: 482
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`nonexemplary Accused Instrumentalities are even compatible with, comply with, or actually
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`perform, the video compression of the standards. Accordingly, the Complaint is so vague and
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`ambiguous as to which accused products perform which standards that Sony cannot reasonably
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`prepare a response.
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`C.
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`Realtime’s Allegations As To The H.265 Standard
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`In Counts II and V, not only does Realtime fail to explain how the elements of the
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`asserted claims are met, but it also fails to show how compatibility with the asserted
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`H.265/HEVC standard relates to the claim steps. Yet this standard is publically available and
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`obviously in Realtime’s possession based on its citations to the “HEVC Spec” throughout the
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`Complaint.
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`Namely, in Count II, in ¶¶ 44-48, Realtime separately lists out each step of
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`method claim 1 of the ’462 Patent and then provides citations to the H.265/HEVC specification
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`and/or an IEEE article about the specification. But these citations do not reveal how use of the
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`standard even performs each step.
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`For example, for the first step of claim 1 of the ’462 Patent of “reducing temporal
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`redundancy by block based motion compensated prediction in order to establish a prediction
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`error signal,” Realtime alleges:
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`The Accused Instrumentalities reduce temporal redundancy by block
`45.
`based motion compensated prediction in order to establish a prediction error
`signal. [1] For example, clause 8.5.3 Decoding process for prediction units in inter
`prediction mode and the subclauses thereof of the HEVC Spec describe the block
`based motion compensation techniques used in the decoding process. [2] See also,
`e.g., IEEE HEVC at 1651-1652 6) [(“]Motion compensation: Quarter-sample
`precision is used for the MVs, and 7-tap or 8-tap filters are used for interpolation
`of fractional-sample positions (compared to six-tap filtering of half-sample
`
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`H.264 satellite and receiver; 4K BRAVIA TVs; and USG Sony Chip Ultra 4K IP PoE security
`cameras.
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`positions followed by linear interpolation for quarter-sample positions in
`H.264/MPEG-4 AVC). Similar to H.264/MPEG-4 AVC, multiple reference
`pictures are used. For each PB, either one or two motion vectors can be
`transmitted, resulting either in unipredictive or bipredictive coding, respectively.
`As in H.264/MPEG-4 AVC, a scaling and offset operation may be applied to the
`prediction signal(s) in a manner known as weighted prediction.”).
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`But allegation [1] does not state how such decoding meets the required claim language of
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`“reducing temporal redundancy” or “establish[ing] a prediction error signal.” Likewise,
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`allegation [2] above is a quote from an IEEE article, and does not explain how the quoted
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`language about motion compensation will “reduce temporal redundancy . . . in order to establish
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`a prediction error signal” as specifically claimed. Merely citing to cryptic passages about the
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`standard is vague and ambiguous and provides no notice to Sony of how a given claim element is
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`met even by practice of the standard.
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`The other allegations and citations for the other steps of claim 1 in ¶¶ 46-48
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`likewise fail to show how the cited material leads to the practice of each element of the claimed
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`step. Again, the same type of cryptic citations to parts of the specification and an IEEE article
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`are likewise made as to the steps of claim 1 of the ’298 Patent in ¶¶ 116-20 without any
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`allegations as to how such cited portions perform the particular claim step.5
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`Thus, Realtime’s citations to papers and specs are so vague and ambiguous as to
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`how use of the standards would actually infringe that Sony cannot reasonably prepare a response
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`and a more definite statement should be provided.
`
`
`5
`For example, the citations to frame packing formats of various sections of the HEVC
`Spec in ¶ 116 do not explain how the claim step of “receiving the video stream which comprises
`at least one composite frame (FC), each composite frame containing a pair of stereoscopic
`digital images (L,R) . . .” is accomplished. Nor does the HEVC Spec citation in ¶ 118 explain
`what is the “metadata” and how it determines an occupied area, in the claim step of “receiving
`metadata which determine an area occupied by one of the two images within said composite
`frame . . . .”
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`D. Realtime’s Broad Categories Of Accused Products
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`Still further, in its list of Accused Instrumentalities, Realtime alleges infringement
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`by reference to certain overly broad classes of products (with no models alleged), including:
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`interchangeable-lens cameras; compact cameras; camcorders; action cameras; motion cameras;
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`film cameras; digital film cameras; other pan/tilt/zoom cameras (for broadcast & production);
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`music video recorders; professional camcorders; MP3 players; in-car receivers and players; and
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`next generation 4K media players. (¶ 17.) In fact, some allegations such as alleged infringement
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`against