Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 1 of 9
`
`
`
`
`
`
`
`
`Exhibit 88
`
`
`
`
`
`
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 2 of 9
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
` Case No. 14-cv-2396
`
`Case No. 14-cv-9558
`
`
`
`
`
`NETWORK-1 TECHNOLOGIES, INC.,
`
`
`Plaintiff,
`
`
`
`vs.
`
`
`GOOGLE LLC and YOUTUBE, LLC,
`
`
`Defendants.
`
`
`
`
`
`
`SUPPLEMENTAL EXPERT REPORT OF MICHAEL MITZENMACHER, PH.D.
`
`
`
`
`
`
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 3 of 9
`
`CONFIDENTIAL OUTSIDE COUNSEL ONLY –
`PROSECUTION/ACQUISITION BAR MATERIALS
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Page
`
`1. INTRODUCTION .....................................................................................................................1
`
`1.1. Retention ......................................................................................................................1
`
`1.2. Qualifications ...............................................................................................................1
`
`1.3. The Asserted Patents ....................................................................................................2
`
`1.4. Materials Considered ....................................................................................................3
`
`1.5. Legal Principles ............................................................................................................3
`
`1.6. Level of Ordinary Skill .................................................................................................3
`
`2. SUPPLEMENTAL OPINIONS CONCERNING DEFENDANTS’ INFRINGEMENT BY
`THE SIBERIA VERSION OF THE CONTENT ID ACCUSED INSTRUMENTALITIES..........3
`
`3. SUPPLEMENTAL OPINIONS ON THE ALLEGED NON-INFRINGING
`“OFFSHORING” ALTERNATIVE ................................................................................................6
`
`3.1. Defendants Have Not Shown that “Offshoring” Was a Viable Non-Infringing
`Alternative in the Relevant Timeframes.......................................................................6
`
`3.2. Defendants “Offshoring” Alternative Is Not Acceptable, Is Not Available, and Is
`Not Non-Infringing Because It Infringes Other Network-1 Patents ..........................11
`
`3.2.1. ’216 patent claim 1....................................................................................... 13
`
`3.2.1.1. ’216 patent claim 1 preamble ...................................................... 13
`
`3.2.1.2. ’216 patent claim 1(a) .................................................................. 13
`
`3.2.1.3. ’216 patent claim 1(b) ................................................................. 14
`
`3.2.1.4. ’216 patent claim 1(c)(1)(i) ......................................................... 14
`
`3.2.1.5. ’216 patent claim 1(c)(1)(ii) ........................................................ 28
`
`3.2.1.6. ’216 patent claim 1(c)(2) ............................................................. 29
`
`3.2.1.7. ’216 patent claim 1(c)(3) ............................................................. 31
`
`3.2.1.8. ’216 patent claim 1(c)(4) ............................................................. 67
`
`3.2.1.9. ’216 patent claim 1(c)(5) ............................................................. 78
`
`4. CONCLUSION ........................................................................................................................79
`
`
`
`i
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 4 of 9
`
`CONFIDENTIAL OUTSIDE COUNSEL ONLY –
`PROSECUTION/ACQUISITION BAR MATERIALS
`
`1.
`
`INTRODUCTION
`
`1.1. Retention
`
`1.
`I have been retained as an independent expert witness by the law firm of Russ August &
`Kabat on behalf of Network-1 Technologies, Inc. to testify as a technical expert in the
`following lawsuits concerning U.S. Patent Nos. 8,010,988 (“the ’988 patent”); 8,205,237 (“the
`’237 patent”); and 8,904,464 (“the ’464 patent”) (collectively, the “Asserted Patents”):
`
`Network-1 Technologies, Inc. v. Google LLC and YouTube, LLC, 14-cv-2396 (S.D.N.Y)
`Network-1 Technologies, Inc. v. Google LLC and YouTube, LLC, 14-cv-9558 (S.D.N.Y)
`
` I
`
` refer to Google LLC and YouTube, LLC as “Defendants” or “Google” in this report.
`
`
`2.
`In this expert report, I provide opinions regarding the Asserted Patents, and opinions
`relating to Defendants’ infringement of the currently asserted claims of the Asserted Patents. I
`expect to testify at trial on these issues, as set forth in this report, my prior December 20, 2019
`and February 14, 2020 reports in these cases, and in any other supplemental reports or
`declarations that I may prepare for this litigation in the future. I also expect to testify at trial
`with respect to the matters addressed by any expert testifying on behalf of Defendants, if asked
`about these matters by the Court or by the parties’ counsel. I may also testify on other matters
`relevant to this case, if asked by the Court or by the parties’ counsel.
`
`3.
`To ensure that my opinions are complete and accurate, I reserve the right to supplement
`or amend this report if additional facts and information that affect my opinions become
`available. Such information may include, for example, materials produced in this litigation, and
`information and documents relevant to this case that Defendants has not yet disclosed. I may
`also supplement or amend my report or opinions in response to additional discovery or other
`events, and may rebut expert reports submitted by Defendants.
`
`4. My work in this case is being billed at my standard rate of $850 per hour, with
`reimbursement for actual expenses. My payment is not contingent upon my testimony or the
`outcome of the case. I have no personal interest in the outcome of the case.
`
`1.2. Qualifications
`
`5. My Curriculum Vitae, attached as Exhibit B, is a true and accurate listing of my
`qualifications. I summarize some of these qualifications below.
`
`6.
`I am currently employed as a Professor of Computer Science at Harvard University.
`Specifically, I am the Thomas J. Watson, Sr. Professor of Computer Science in the School of
`Engineering and Applied Sciences. I joined the faculty of Harvard as an Assistant Professor in
`January 1999. I was promoted to Associate Professor in 2002 and to Professor in 2005. In
`2010, I began a three-year term as Area Dean, which is essentially equivalent to what other
`schools call Department Chair, of Computer Science, and held that position through June 2013.
`I served as Area Co-Chair of Computer Science for the 2018-2019 academic year. My work
`address is 150 Western Avenue, Sci&Eng 3.310, Boston, MA 02134. My primary research
`
`
`
`1
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 5 of 9
`
`CONFIDENTIAL OUTSIDE COUNSEL ONLY –
`PROSECUTION/ACQUISITION BAR MATERIALS
`
`interests include design and analysis of algorithms, networks and data transmission, and
`information theory.
`
`7.
`I received my undergraduate degree in Mathematics and Computer Science from Harvard
`College in 1991. I received a Certificate of Advanced Study in Mathematics from Cambridge
`University in 1992. I received a Ph.D. in Computer Science from the University of California
`at Berkeley in 1996. From August 1996 to January 1999, I was employed as a Research
`Scientist at Digital Systems Research Center, where my work included projects on algorithms
`for the Internet.
`
`8.
`I am listed as an inventor or co-inventor on 19 issued patents, and am the co-author of a
`textbook entitled “Probability and Computing” published by Cambridge University Press. I am
`a Fellow of the Association for Computing Machinery (ACM).
`
`9.
`I regularly serve on program committees for conferences in networking, algorithms, and
`communication. For example, I have served on the program committee multiple times for the
`SIGCOMM conference, which is the flagship annual conference of the ACM Special Interest
`Group on Data Communication (SIGCOMM). I have also served on numerous program
`committees related to algorithms, including the ACM Symposium on the Theory of
`Computing, the International Colloquium on Automata, Languages, and Programming, and the
`International Conference on Web Search and Data Mining.
`
`10. The field of endeavor at issue in this case is identification of electronic content (such as
`video or audio content) using algorithmic search techniques. I have published over 200
`research papers1 in computer science and engineering conferences and journals, many of which
`have explored algorithms and data structures for algorithmic search techniques, including both
`mathematical analysis and applications.
`
`1.3. The Asserted Patents
`
`11.
`I described the Asserted Patents in detail in Section 1.3 of my December 20, 2019 expert
`report (“Infringement Report”). That description is equally relevant here, and is incorporated
`by reference.
`
`12.
`
`I understand that the following are the Asserted Claims:
`
`• U.S. Pat. No. 8,010,988 (“the ’988 patent”), claim 17;
`
`• U.S. Pat. No. 8,205,237 (“the ’237 patent”), claims 33-35; and
`
`• U.S. Patent No. 8,904,464 (“the ’464 patent), claims 1, 8, 10, 16, 18, 25, 27, and 33.
`
`
`1 I note that in several comments in the source code Google produced in this case related to the
` I describe in detail below, there is reference to one of my publication on this
`topic. See, e.g., GOOG-NETWORK-SC-00000564; GOOG-NETWORK-SC-00000607.
`
`
`
`2
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 6 of 9
`
`CONFIDENTIAL OUTSIDE COUNSEL ONLY –
`PROSECUTION/ACQUISITION BAR MATERIALS
`
`1.4. Materials Considered
`
`13.
`In preparation for this report and for expert testimony that I may be called upon to
`provide, I have considered and may rely on documents identified in this report or those
`referenced in the exhibits attached to this report. This includes among other materials the
`Asserted Patents and their prosecution histories, Network-1’s infringement contentions, the
`Court’s claim construction, discovery and publicly available information regarding the
`patented subject matter and the accused systems, third-party information, deposition testimony
`and deposition exhibits, other discovery responses, my interaction with the accused
`instrumentalities, and all materials cited in my Infringement Report. In addition to the materials
`explicitly reference in my report, I have also considered the materials listed in Exhibit A to
`this report. My opinions are based on these sources of information, together with my education,
`training, and experience.
`
`14.
`In testifying, I may use some or all of the information referenced above, additional
`information identified in discovery, as well as any materials relied upon by Defendants’
`experts, to support or summarize my opinions. In addition, I may prepare summaries and
`demonstrative exhibits to assist my presentation of testimony to the Court.
`
`1.5. Legal Principles
`
`15.
`I addressed the legal principles relating to patent infringement and claim construction in
`detail in Section 1.5 of my Infringement Report. That description is incorporated here by
`reference.
`
`1.6. Level of Ordinary Skill
`
`16. As stated in my prior December 20, 2019 and February 14, 2020 expert reports, it is my
`understanding that the infringement analysis is to be undertaken from the perspective of a
`person of ordinary skill in the art to which the patents are directed at the time of the invention,
`here in 2000. The Asserted Patents are directed to the field of identification of electronic
`content (such as video or audio content) using algorithmic search techniques. In my opinion, a
`person of ordinary skill in this art would have a Bachelor’s degree in computer science,
`mathematics, or a similar discipline and two to three years of relevant experience, or a graduate
`degree in the same area.
`
`2.
`SUPPLEMENTAL OPINIONS CONCERNING DEFENDANTS’
`INFRINGEMENT BY THE SIBERIA VERSION OF THE CONTENT ID ACCUSED
`INSTRUMENTALITIES
`
`17.
`In my Infringement Report, I explained at length how and why the Content ID Siberia
`Version met the “sublinear” limitations of claim 17 of the ’988 patent and claim element b of
`claim 33 of the ’237 patent. See, e.g., Infringement Report ¶¶148-162, 229-240.
`
`18. For example, in my Infringement Report, I cited to a Google document listing numerous
`“tunable knobs” in the Siberia search algorithm. GOOG-NETWORK-00702308. One of the
` Id. I explained in detail in my Infringement
`“tunable knobs listed is
`
`
`
`3
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 7 of 9
`
`CONFIDENTIAL OUTSIDE COUNSEL ONLY –
`PROSECUTION/ACQUISITION BAR MATERIALS
`
` as the size of the data set size
`Report that increasing the
`increases results in sublinear scaling. See, e.g., Infringement Report ¶¶157-158.
`
`19. Another of the “tunable knobs” listed in the Google document I reference above is
` GOOG-NETWORK-00702308.
`
`
`
`20. As of the date of my Infringement Report, Content ID Siberia Version’s ScaM index
`lookup utilized a data structure with
` with each of
` See, e.g., Infringement Report ¶158. As I
`the
`previously explained, the ScaM index lookup first compares the unknown work to
`
`
`and then compares the unknown work to
`
`my Infringement Report, this given number
`
` See Infringement Report ¶158.
`
` As of the date of
`
`
`
`
`21.
`
`I understand that since the Infringement Report, Defendants have reduced the
`
` GOOGLE-NETWORK-00812409
`Konrad 2021 Depo. at 30:12-31:23 (“And the next bullet refers to searching --
`it looks like it originally said
`
`
`Do you see that? A. I can see that. . . . That talks about only
` when doing a search. Q. . . . Am I assuming correctly that these are changes that
`were implemented sometime, I think you said, in the first part of 2020? . . . I believe that these
`changes were implemented sometime in 2020, probably before August. Yes. . . . Q. Okay. And
`-- and I think you indicated -- and if we go back to the summary table – these are all changes
`that were intended to reduce the -- the resource usage of these different functionalities? A. Yes.
`These were changes making the resource costs lower.”).
`
`
`
`22. Reducing the
` to subject to further
`consideration) as the size of the data set increases results in sublinear scaling. As I explained in
`my Infringement Report, there are two main steps in ScaM’s index lookup, in terms of the
`computational work required: (1) comparing the unknown work to
` and (2)
`comparing the unknown work to
`
` Defendants have reduced the
`amount of work required for the second part by reducing the
`
`
`
`
` Reducing the
` as the size of the data set increases also results in a
`search that scales sublinearly with the size of the data set.
`
`23. As explained in my Infringement Report, the amount of work (W) can be represented by
`the following equation, where a and b are fixed constants, S is the
`, T is the
` and Q is the
`
` W = aP + bSTQ. As I also explained in my Infringement
`Report, Q can be represented as the total number of
` (R) divided by the
`product of the
` or Q = R/SP. And
`substitution for Q in the prior equation yields W = aP + bRT/P. Thus, the amount of work W
`done depends on the term RT, the product of R and T. In my Infringement Report, I explained
`
`
`
`4
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 8 of 9
`
`CONFIDENTIAL OUTSIDE COUNSEL ONLY –
`PROSECUTION/ACQUISITION BAR MATERIALS
`
`that this equation would lead one of skill in the art to understand that the work would be
`sublinear in R, since if T was held fixed one would choose P to be proportional to the square
`root of R in optimizing the work.
`
`24. Similar analysis applies if one allows T to vary instead. If the
` does not
`change, we can represent T by the equation T = S/(f(R)), where f(R) is some function of R. If T
`is reduced, but S and P remain constant (as is the case in the changes described by Mr. Konrad)
`as R increases, then f(R) is an increasing function of R. Substituting T in the equation above
`yields W = aP + bRS/(P*f(R)). The search scales sublinearly because the work grows
`proportionally to R/f(R), which means it is sublinear in R. As an example, if f(R) was equal to
`the function log R, then R/f(R) would be R/(log R), which is sublinear in R. As another
`example, if f(R) was equal to the function √𝑅, then R/f(R) would be √𝑅, which is sublinear in
`R. On the other hand, if the search were linear in R, the amount of work or computing power
`required would grow proportionally to R itself.
`
`25.
`I understand that in their summary judgment briefing Defendants argued that the Content
`ID Siberia Version does not meet the sublinear limitations because “the Siberia version
`searches a fixed percentage of the index” because “
`
`
`” Dkt. No. 224
`at 17. I also understand that Dr. Bhattacharjee made similar arguments in his rebuttal expert
`report dated February 14, 2020. See, e.g., Bhattacharjee Rebuttal Report ¶302. But this is not
`true. The
` is not fixed as Defendants and Dr. Bhattacharjee
`previously claimed, but rather it can be (and has been) altered. In other words, Defendants’
`own changes to Content ID Siberia Version reveal that the
` but rather a changeable parameter that they have in fact changed for
`performance reasons. See, e.g., Konrad 2021 Depo. at 30:12-31:23.
`
`
`
`26. Finally, I understand that Defendants argued in their summary judgment briefing that
`tuning Content ID Siberia Version as the size of the data set increased to avoid linear scaling
`was merely “a hypothetical change that Google might make to its system.” Dkt. No. 227 at 4.
`But the changes described by Mr. Konrad at his deposition make clear that such changes are
`not hypothetical, as Google did in fact take advantage of the Content ID system design to avoid
`linear scaling (by
`). This is
`further evidence that Google designed its search algorithm to be sublinear by allowing for
`precisely the types of adjustments described in its “tunable knobs” document (GOOG-
`NETWORK-00702308), described in my Infringement Report, and described by Mr. Konrad at
`his deposition. Indeed, Google’s own use of the Content ID Siberia Version demonstrates that
`Defendants’ argument in their summary judgment brief fails, as their statement that the
`
`
`
` As
`evidenced by Defendants’ documents, this is exactly the type of tuning contemplated by them.
`See, e.g., GOOG-NETWORK-00701295
`
`; see also GOOG-NETWORK-00704303.
`
`
`
`
`
`
`
`5
`
`

`

`Case 1:14-cv-02396-PGG-SN Document 276-3 Filed 09/26/22 Page 9 of 9
`
`CONFIDENTIAL OUTSIDE COUNSEL ONLY -
`PROSECUTION/ACQUISITION BAR MATERIALS
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`Executed August~ 2022 in Lexington, Massachusetts.
`
`By:~ ~
`
`Dr. Michael Mitzenmacher, Ph.D.
`
`80
`
`