Paper No.
`Filed: November 6, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`NETFLIX, INC.
`Petitioner
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`v.
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`OPENTV, INC.
`Patent Owner
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`Case IPR2014-00269
`Patent 6,233,736
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`Patent Owner’s Response
`to Petition for Inter Partes Review
`of U.S. Patent No. 6,233,736
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`
`I.
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`II.
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`Case IPR2014-00269
`Patent 6,233,736
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`Table of Contents
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`PRELIMINARY STATEMENT ............................................................................. 1
`
`THE ’736 PATENT ................................................................................................... 1
`
`A.
`
`B.
`
`Patented Technology ...................................................................................... 1
`
`Prosecution of the ’736 Patent ...................................................................... 2
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`III. CLAIM CONSTRUCTION ..................................................................................... 8
`
`A.
`
`B.
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`“Indicating” Means “Providing an Automatic Visual, Auditory, or
`Tactile Indication” ........................................................................................... 8
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`“So That the User has Direct Access to the Information” Means
`“Access to the Online Information is Direct from the User’s
`Perspective” ................................................................................................... 10
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`1.
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`2.
`
`3.
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`The construction proposed by Netflix is wrong ............................ 10
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`The preliminary construction adopted by the Board is
`wrong ................................................................................................... 11
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`“So that the user has direct access to the information”
`means “access to the online information is direct from the
`user’s perspective” ............................................................................. 13
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`IV. THE PETITION FAILS TO ESTABLISH THAT ANY CLAIM OF
`THE ’736 PATENT IS OBVIOUS ....................................................................... 17
`
`A.
`
`Applying the Correct Claim Constructions, Throckmorton Lacks
`Several Elements of the Claims ................................................................... 17
`
`1.
`
`2.
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`Throckmorton fails to disclose or suggest the claimed
`“indicating” ......................................................................................... 17
`
`Throckmorton fails to disclose or suggest the combination
`of the “automatically establishing” limitation and the
`“direct access” limitation .................................................................. 20
`
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`ii
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`V. MR. KRAMER’S TESTIMONY SHOULD NOT BE GIVEN ANY
`WEIGHT BECAUSE HE WAS NOT ONE OF ORDINARY SKILL
`IN 1996 ...................................................................................................................... 28
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`VI. CONCLUSION ........................................................................................................ 31
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`iii
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`TABLE OF AUTHORITIES
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`Case IPR2014-00269
`Patent 6,233,736
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`
`Federal Cases
`Cablestrand Corp. v. Wallshein,
`29 F.3d 644 (Fed. Cir. 1994) .......................................................................................... 12
`
` Page(s)
`
`In re De Blauwe,
`736 F.2d 699 (Fed. Cir. 1984) ........................................................................................ 28
`
`In re Gordon,
`733 F.2d 900 (Fed. Cir. 1984) .................................................................................. 25, 26
`
`In re Huang,
`100 F.3d 135 (Fed. Cir. 1996) ........................................................................................ 28
`
`KSR Int’l Co. v. Teleflex, Inc.,
`550 U.S. 398 (2007) ........................................................................................................ 21
`
`Perkin-Elmer Corp. v. Westinghouse Elec. Corp.,
`822 F.2d 1528 (Fed. Cir. 1987) ..................................................................................... 11
`Sundance, Inc. v. DeMonte Fabricating Ltd.,
`550 F.3d 1356 (Fed. Cir. 2008) ............................................................................... 31, 32
`
`Texas Instruments Inc. v. United States Int'l Trade Comm'n,
`988 F.2d 1165 (Fed. Cir. 1993) ..................................................................................... 12
`
`Unique Concepts, Inc. v. Brown,
`939 F.2d 1558 (Fed. Cir. 1991) ............................................................................... 11, 12
`Federal Statutes
`35 U.S.C. § 103 ................................................................................................................. 3, 21
`Regulations
`37 C.F.R. 42.65 ..................................................................................................................... 27
`Other Authorities
`Fontaine Eng’red Prod. v. Raildecks, Inc.,
`IPR2013-00361, Paper 8 ................................................................................................ 28
`iv
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`

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`Heart Failure Tech. v. Cardiokinetix, Inc.,
`IPR2013-00183, Paper 12 .............................................................................................. 21
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`PRELIMINARY STATEMENT
`The grounds proposed in the petition rehash arguments that were previously
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`I.
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`considered and overcome during prosecution of the ’736 patent. Despite the petition’s
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`failure to address all of the elements of the claims, the Board instituted this inter partes
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`review based on a preliminary claim construction that would improperly render a
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`limitation of every independent claim meaningless. Applying a proper construction to
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`the claims of the ’736 patent distinguishes them from the prior art for the same
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`reasons that were identified by the Patent Office during prosecution. The petition fails
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`to provide any persuasive reason why the Office should now change its position and
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`reject the Examiner’s prior work by cancelling the claims using nothing more than the
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`prior art that was overcome during prosecution.
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`II. THE ’736 PATENT
`A.
`Patented Technology
`The ’736 patent relates to an electronic information access system and, more
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`specifically, to a media online services access system, which provides direct,
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`automated access to an online information provider through an address provided with
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`a video program. Ex. 1001 at 1:11, 9:48-12:10. At the time of invention, media
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`receiving and display systems were linked to interactive information providers in only
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`limited ways. Id. at 1:16-18. Specifically, two types of systems were known. In the first
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`type of system, the user did not have direct access to the information. For example,
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`“some television and radio broadcasters have begun announcing an Internet address
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`for viewer inquiries during the course of program transmission. Access to this
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`Internet address requires the user to utilize his or her computer.” Id. at 1:26-29. In the
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`second type of system, the user was limited to “information sources directly available
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`through the unitary cable or broadcast provider.” Id. at 2:59-63.
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`The patented technology improved upon the prior art by providing direct
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`access to online information from the user’s perspective using an address provided
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`with a video program to automatically establish a direct communication link. For
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`example, independent claim 1 recites:
`
`1. A method of providing to a user of online information
`services automatic and direct access to online information
`through an address associated with an online information
`source provided with a video program comprising:
`
`indicating to the user that an address has been provided
`with said video program; and
`
`electronically extracting said address and automatically
`establishing, in response to a user initiated command, a
`direct communication link with the online information
`source associated with said address so that the user has
`direct access to the online information.
`
`B.
`Prosecution of the ’736 Patent
`The ’736 patent began as U.S. patent application no. 09/054,740, filed on
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`April 3, 1998, as a continuation of U.S. patent application no. 09/054,740, filed on
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`February 8, 1996, now U.S. patent no. 5,761,606. Before examination, the applicant of
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`the ’736 patent filed a preliminary amendment with five independent claims and seven
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`dependent claims that matured into patent claims 1-12, after one amendment.
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`The Examiner alleged the preliminary amendment’s claims were unpatentable
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`under 35 U.S.C. § 103(a) over Throckmorton et al. (5,818,441), Ex. 1002 at 110,
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`despite noting that Throckmorton “differs from that claimed in that it is silent as to
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`whether or not the user is provided with an explicit indication of the presence of an
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`address,” Ex. 1002 at 111. In response to that rejection, an interview was conducted
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`with the Examiner. Ex. 1002 at 117. The Examiner summarized the interview as
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`follows:
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`Applicant proposed adding language to the claims to
`indicate the ‘automatic’ electronic extraction of address
`data, and the establishment of a ‘direct link,’ initiated by the
`user, to an online information source. These features, if
`added to the claims, would likely render them allowable
`over Throckmorton et al alone. That is, the prior art
`discloses the selection of a source of information from a
`menu of sources, each associated with pointers to the
`sources, rather than a user-initiated, automatic and direct
`link to the sources. (Id.)
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`After the interview, the applicant amended the independent claims as follows1:
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`1. A method of providing to a user of online information
`services automatic and direct access to online information
`through an address associated with an online information
`source provided with a video program comprising:
`
`indicating to the user that an address has been provided
`with said video program; and
`
`electronically extracting said address [to establish] and
`automatically establishing, in response to a user-initiated
`command, a direct communication link with the online
`information source associated with said address so that the
`user has direct access to the online information. (Ex. 1002
`at 119-120).
`
`6. A method providing to a user of online information
`services [to a user of such online services] automatic and
`direct access to online information, comprising the steps
`of:
`
`signal having an
`television broadcast
`receiving a
`information signal representing the address of an online
`information source;
`
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`1 The claims have been numbered here using the numbers from the issued patent
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`claims rather than the application claim numbers used during prosecution.
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`extracting the address of said online information source
`from said received television broadcast signal;
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`automatically using said address, in response to a user
`initiated command, to transmit a signal to connect said user
`directly with the online information source associated with
`said address so that the user has direct access to the online
`information; and
`
`receiving online information signals from said online
`information provider. (Ex. 1002 at 120).
`
`7. A method of providing to a user of online information
`services, at the time of viewing a video program
`represented by an electronic signal, automatic and direct
`access to online information through a link provided in said
`video program, comprising:
`
`indicating to the user that an address is available for
`establishing communication with an online information
`source; and
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`electronically extracting, in response to a user initiated
`command, an address associated with an online
`information source from an information signal embedded
`in said electronic signal, and automatically using said
`extracted address to establish a direct communication link
`with the online information source associated with the
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`extracted address so that the user has direct access to the
`online information. (Ex. 1002 at 120-121).
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`8. A method of providing to a user of online information
`services automatic and direct access to online information
`through a link provided in a video program, comprising:
`
`indicating to the user that a link to online information
`services is available for receiving the online information;
`and
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`automatically and directly electronically accessing said
`online information associated with said link in response to
`a user initiated command so that the user has direct access
`to the online information. (Ex. 1002 at 52).
`
`9. A media online services access system for providing to a
`user of online information services while viewing or
`listening to a video or audio program represented by an
`electronic signal, automatic and direct access to online
`information by establishing a direct digital communication
`link with an online information source through a link
`provided in said electronic signal, comprising:
`
`means for indicating to the user that an address is available
`for extraction from said electronic signal which permits
`communication with an online information source; and
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`means for extracting an address associated with an online
`information source from an information signal embedded
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`in said electronic signal, and for automatically establishing,
`in response to a user initiated command, a direct link with
`the online
`information source associated with said
`extracted address so that the user has direct access to the
`online information. (Ex. 1002 at 121).
`
`In conjunction with the amendments, the applicant stated that:
`
`As explained to the Examiner, it is important that the user
`not have to access links which are stored in a directory or
`access one of a series of links in a menu. In Applicant’s
`amended claims, the choice for the user is from the video
`or audio program directly to the additional content, without
`the need of intermediate steps. In Applicant’s invention,
`the user need not have to select amongst several different
`links. Therefore, in Applicant’s invention, the user never
`has to leave the screen to access additional content because
`access is “direct” from the user to the content. Based on
`the
`above,
`the difference
`is
`substantial because
`Throckmorton does not teach “direct” and “automatic”
`access to the online information from the primary video or
`audio program. (Ex. 1002 at 123).
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`In response to the amendments, the Examiner allowed the claims. Ex. 1002 at 126.
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`Accordingly, the Examiner identified at least two reasons the claims distinguish
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`Throckmorton: (1) Throckmorton “differs from that claimed in that it is silent as to
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`whether or not the user is provided with an explicit indication of the presence of an
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`address,” Ex. 1002 at 111, and (2) Throckmorton “discloses the selection of a source
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`of information from a menu of sources, each associated with pointers to the sources,
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`rather than a user-initiated, automatic and direct link to the sources,” Ex. 1002 at 117.
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`Throckmorton is the only reference relied upon to challenge the independent claims.
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`Pet. 9, 39, 42.
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`III. CLAIM CONSTRUCTION
`A.
`“Indicating” Means “Providing an Automatic Visual, Auditory, or
`Tactile Indication”
`Claims 1 and 7-9 of the ’736 patent recite the term “indicating.” Neither Netflix
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`nor the Board construed this term. The broadest reasonable construction in light of
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`the specification is “providing an automatic visual, auditory, or tactile indication.” Ex.
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`2007, ¶¶ 19-22. As explained by Netflix, “automatic” means something that occurs
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`“without the user performing additional steps.” Pet. 7. Its declarant agreed, Ex. 1003,
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`pp. 9-11, and so did the Board, Paper 13, pp. 7-8.
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`This construction is consistent with the specification’s usage of the term
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`“indicating.” Ex. 2007, ¶ 20. For example, the Specification states:
`
`Upon successfully extracting an electronic address, the access system
`provides a[n] indicator signal to the user that more information is
`available. The indicator signal may take the form of a message
`displayed on a video screen, or other indicators such as a light, a sound
`or a wireless tactile indicator, e.g., vibrating wristband or clip-on
`unit. Alternatively, the video or audio program may contain
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`a logo or message to be displayed for the user at points in the program
`which coincide with the presence of an embedded online information
`provider address . . . . (Ex. 1001 at 3:58-4:4)(emphasis added).
`
`Indicator signal generator 46 causes, for example, a video image 20
`(e.g., picture within picture, logo, or icon) to be displayed with the
`video program signal on reproducing system 22 to signal the user that
`an address of an online provider has been stored and that additional
`information is available. Instead, or in addition to such visual
`display, indicator signal generator 46 may signal the user by
`activating a light 24 or other visual indicator located on an
`exterior panel of access controller 10 or of reproducing
`system 22. Alternatively, indicator signal generator may
`cause a sound to be produced on a speaker 26 of
`reproducing system 22, or by a speaker 28 provided in
`access controller 10. (Id. at 6:13-15)(emphasis added).
`
`In yet another embodiment of the invention, automated
`direct user access to online information providers is
`achieved without
`incorporating an
`indicator
`signal
`generator 46, 146 (FIG. 3) into the access controller 10. In
`this embodiment, the video or audio program as produced incorporates
`a visual or auditory indicator, such as a logo or message, which is
`automatically displayed or sounded by conventional reproducing system
`22 and/or high resolution reproducing system 40 during portions of
`the program when an online information provider address is present in
`the underlying electronic program signal. Through the visual or
`auditory indicator, the user is made aware of the availability
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`of the online information provider address. (Id. at 9:15-
`29)(emphasis added).
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`This construction is also consistent with the plain meaning of the term. Ex. 2004
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`(defining “indicator” as “a sign that shows the condition or existence of something”);
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`see also Ex. 2005 at pp. 546-547, Ex. 2007, ¶ 21.
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`B.
`
` “So That the User has Direct Access to the Information” Means
`“Access to the Online Information is Direct from the User’s
`Perspective”
`Each independent claim (claims 1 and 7-9) recites “so that the user has direct
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`access to the information.” Both Netflix and the Board construed this term, but
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`neither construction is consistent with the claims and specification. Instead, the
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`broadest reasonable construction in light of the specification is “access to the online
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`information is direct from the user’s perspective.” Ex. 2007 at ¶ 23.
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`1.
`The construction proposed by Netflix is wrong
`Netflix proposes construing “so that the user has direct access to the
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`information” to mean “displaying online information without the user leaving the
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`screen to access the online information.” Pet. 7. As explained by the Board, this
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`construction is wrong because Netflix did not identify “anything in the specification
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`of the ’736 patent that indicates ‘direct access to the online information’ requires the
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`system to display the online information to the user without the user leaving the
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`screen to access the information.” Paper 13, p. 9. Indeed, the specification does not
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`support this overly narrow construction. Ex. 2007 at ¶ 24.
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`2.
`The preliminary construction adopted by the Board is wrong
`The Institution Decision proposes a different construction than Netflix for “so
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`that the user has direct access to the information”—i.e., “the system establishes a
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`communication link directly between the user and the online information source,
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`without any intervening intermediary that is not inherent to Internet traffic routing.”
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`Paper 13, pp. 9-10 (emphasis in original). The Institution Decision also proposes the
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`same construction for a different claim term, “direct communication link,” which is
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`part of the “automatically establishing” limitation recited in each of the independent
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`claims. See Paper 13, pp. 7-9; see also ex. 2007 at ¶¶ 25-26. These constructions
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`proposed in the Institution Decision would be unreasonable, if maintained, because
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`they would read the limitation “so that the user has direct access to the information”
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`out of the claims and are not consistent with the specification.
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`Under the broadest reasonable construction, “[a]ll the limitations of a claim
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`must be considered meaningful,” Unique Concepts, Inc. v. Brown, 939 F.2d 1558, 1562
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`(Fed. Cir. 1991)(citing Perkin-Elmer Corp. v. Westinghouse Elec. Corp., 822 F.2d 1528,
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`1532-33 (Fed. Cir. 1987)), and any construction that “would render meaningless [an]
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`express claim limitation[ ]” must be rejected, Unique Concepts, 939 F.2d at 1563. See also
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`Cablestrand Corp. v. Wallshein, 29 F.3d 644 (Fed. Cir. 1994)(applying Unique Concepts;
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`Texas Instruments Inc. v. United States Int'l Trade Comm'n, 988 F.2d 1165, 1171 (Fed. Cir.
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`1993) (rejecting a patentee's proffered claim construction because it “would render the
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`disputed claim language mere surplusage.”). Because the Board’s initial proposed
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`construction of the “direct access” limitation would render this limitation meaningless
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`given the Board’s construction of the “automatically establishing” limitation, the
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`construction in the Institution Decision should not be maintained in the final
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`decision.
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`The Institution Decision construction is also not supported by the
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`specification. Instead, in the ’736 patent, being “direct” is from the user’s perspective.
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`The ’736 patent explains that prior systems were indirect from the user’s perspective
`
`because the user had to access information on a separate computer. An example of
`
`one such system is described in the ’736 patent:
`
`[S]ome television and radio broadcasters have begun
`announcing an Internet address for viewer inquiries during
`the course of program transmission. Access to this Internet
`address requires the user to utilize his or her computer. No
`system yet exists which provides automated and direct user
`access to online information providers through an address
`embedded in a video or audio program signal. (Ex. 1001 at
`1:26-33).
`
`In this example, “the user d[id] not need to go through the program provider in
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`order to access the online information” because they would access the information
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`using their computer instead of the system of the program provider. Ex. 2007 at ¶ 28.
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`Nevertheless, the ’736 patent identified this system as not providing direct access. Ex.
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`1001 at 1:26-33. Accordingly, it is incorrect that “the ’736 patent indicates that direct
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`access means that the user does not need to go through the program provider in order
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`to access the online information.” See Paper 13, p. 9.
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`3.
`
`“So that the user has direct access to the information”
`means “access to the online information is direct from the
`user’s perspective”
`This construction should be adopted for three reasons. First, the proposed
`
`construction provides meaning to the limitation. Second, the proposed construction is
`
`consistent with the specification. Third, the proposed construction is consistent with
`
`how Netflix’s declarant, Mr. Kramer; OpenTV’s expert, David Wacob; and the
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`Examiner understand the limitation.
`
`In the ’736 patent, being “direct” is from the user’s perspective. The ’736
`
`patent explains that prior systems were indirect from the user’s perspective because
`
`the user had to access information on a separate computer:
`
`[S]ome television and radio broadcasters have begun
`announcing an Internet address for viewer inquiries during
`the course of program transmission. Access to this Internet
`address requires the user to utilize his or her computer. No
`system yet exists which provides automated and direct user
`access to online information providers through an address
`embedded in a video or audio program signal. (Ex. 1001 at
`1:26-33).
`
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`In prior art systems that provided “direct” access, the user access was limited to
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`content sources that were “directly available through the unitary cable or broadcast
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`provider” that provided the program content, such as in the following example from
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`the patent:
`
`U.S. Pat. No. 4,905,094 (“the '094 Patent”) describes an
`interactive cable television system in which a subscriber
`tunes to a channel and requests connection to a remote
`location by either dialing a predetermined telephone
`number or accessing a cable television channel. . . . Thus,
`systems exist which are capable of providing interactive
`user access through a broadcast or cable television signal.
`However, such systems are limited in the access they
`provide to information sources directly available through
`the unitary cable or broadcast provider. By contrast, the
`present invention facilitates direct automated user access to
`an unlimited number of online information providers
`through provider addresses which are embedded in the
`electronic signal which carries a[] video or audio program.
`(Ex. 1001 at 2:46-67).
`
`The ’736 patent explains that it improves upon prior systems by providing access to
`
`Internet resources that is direct from the user’s perspective because the user can go
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`directly from an indicator to the additional information by issuing a command that
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`automatically establishes a communication link:
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`As the media program is received for reproduction on a
`video display or audio sound system, the access system
`extracts the embedded electronic address for use in directly
`accessing the online information provider at the selection
`of the user.
`
`. . .
`
`Upon successfully extracting an electronic address, the
`access system provides a[n] indicator signal to the user that
`more information is available. . . . Alternatively, the video
`or audio program may contain a logo or message to be
`displayed for the user at points in the program which
`coincide with the presence of an embedded online
`information provider address, which, in such case, would
`eliminate the need for the access system to incorporate
`specific structure to provide indication to the user, in
`response to successful extraction of an online provider
`address.
`
`After receiving the indicator signal, if the user desires more
`information, the user may request access to the online information
`provider through a command to the access system, e.g., through
`pushbutton, user control keypad, voice command, mouse, touchpad,
`touchscreen, or other such input. Upon receiving such command, the
`access system automatically establishes a digital communication link
`with the online information provider through transmission of a signal
`
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`(Ex. 1001 at 3:45-
`
`extracted address.
`the
`containing
`4:13)(emphasis added).
`
`Both Netflix’s declarant, Mr. Kramer, and the original Examiner read the
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`“direct access” limitation as being direct from the user’s perspective. For example, Mr.
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`Kramer proposed construing the “direct access” limitation as “displaying online
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`information without the user leaving the screen to access the online information,”
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`which would provide direct access from the user’s perspective. Ex. 1003, Kramer
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`Decl., ¶¶ 30-31; see also Ex. 2007 at ¶ 33. The Examiner similarly explained that
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`Throckmorton’s selecting a source by browsing a menu of sources did not meet the
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`“direct access” limitation. Ex. 1002 (file history) at 117 (interview summary), 119-23
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`(amendments), and 126 (allowance). This is because using the menu system of
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`Throckmorton would not have been direct from the user’s perspective. Ex. 2007 at
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`¶ 33. Throckmorton’s menu-system access was not direct because the user had to go
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`to the separate menu system to access the information. Id.
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`The Board should therefore construe the term “indicating” as “providing an
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`automatic visual, auditory, or tactile indication” and the term “so that the user has
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`direct access to the information” as “access to the online information is direct from
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`the user’s perspective.” Applying these constructions, the cited art fails to render any
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`of the claims obvious.
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`IV. THE PETITION FAILS TO ESTABLISH THAT ANY CLAIM OF
`THE ’736 PATENT IS OBVIOUS
`Netflix has the “burden of proving a proposition of unpatentability by a
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`preponderance of the evidence.” 35 U.S.C. § 316(e). The statutes further require that
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`“the petition identif[y], in writing and with particularity, each claim challenged, the
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`grounds on which the challenge to each claim is based, and the evidence that supports
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`the grounds for the challenge to each claim.” 35 U.S.C. § 312. Netflix’s petition fails
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`to carry this burden or provide the required analysis, so the proposed obviousness
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`grounds cannot be maintained, and the patentability of the claims should be
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`confirmed.
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`A.
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`Applying the Correct Claim Constructions, Throckmorton Lacks
`Several Elements of the Claims
`1.
`Throckmorton fails to disclose or suggest the claimed
`“indicating”
`During prosecution, the Examiner found that Throckmorton failed to disclose
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`the claimed indicating. Supra at § II.B. “Indicating” is recited in independent claims 1
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`and 7-9:
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`Claim 1: “indicating to the user that an address has been provided with said
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`video program.” Ex. 1001 at 9:52-53.
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`Claim 7: “indicating to the user that an address is available for establishing
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`communication with an online information source.” Id. at 10:31-33.
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`Claim 8: “indicating to the user that a link to online information services is
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`available for receiving the online information.” Id. at 10:46-49.
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`Claim 9: “means for indicating to the user that an address is available for
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`extraction from said electronic signal which permits communication
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`with an online information source.” Id. at 61-64.
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`Under the broadest reasonable construction consistent with the specification,
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`“indicating” means “providing an automatic visual, auditory, or tactile indication.”
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`Supra at § III.A. The petition maps the claimed “indicating” to the “clickable list of
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`URLs” disclosed in Throckmorton. Pet. 15, 16, 25, 29, 33.Throckmorton’s “clickable
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`list of URLs,” however, does not “provid[e] an automatic visual, auditory, or tactile
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`indication.” Instead, Throckmorton’s “clickable list of URLs” is presented as a
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`“menu.” Ex. 1004 at 9:1-15. With the Throckmorton menu, “[a]t any time, the
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`consumer may browse the data stored in local storage.” Id. at 8:1-2; see also Ex. 2007 at
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`¶ 39. The “clickable list of URLs” simply expands the menu browsing experience to
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`include content that is stored remotely. Ex. 1004 at 8:63-68; see also Ex. 2007 at ¶ 39.
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`A person of ordinary skill in the art would have understood the concepts of
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`“indicating” and “browsing a menu” to be mutually exclusive. Ex. 2007 at ¶ 40.
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`“Indicating” is an active process in which the system actively points the way to
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`information (i.e., by providing an automatic visual, auditory, or tactile indication). Id.;
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`see also supra at § III.A. As the ’736 patent explains, “[u]pon successfully extracting an
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`electronic address, the access system provides a[n] indicator signal to the user that
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`more information is available. . . . Alternatively, the video or audio program may
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`contain a logo or message to be displayed for the user at points in the program which
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`coincide with the presence of an embedded online information provider address.” Ex.
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`1001 at 3:58-67. In menu browsing, however, the system is passive and it is the user
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`that actively looks for the information. Ex. 2007 at ¶ 40; see