IPR 2014-01181
`U.S. Patent No. 8,532,641
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`_____________________
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`SAMSUNG ELECTRONICS CO., LTD; SAMSUNG ELECTRONICS
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`AMERICA, INC.; SAMSUNG TELECOMMUNICATIONS
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`AMERICA, LLC
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`PETITIONERS
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`V.
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`AFFINITY LABS OF TEXAS, LLC
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`PATENT OWNER
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`_____________________
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`CASE IPR2014-01181
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`PATENT 8,532,641
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`PATENT OWNER’S PRELIMINARY RESPONSE TO
`PETITIONERS’ CORRECTED PETITION FOR INTER PARTES
`REVIEW OF UNITED STATES PATENT NO. 8,532,641
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`IPR 2014-01181
`U.S. Patent No. 8,532,641
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`TABLE OF CONTENTS
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`B.
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`C.
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`D.
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`INTRODUCTION ....................................................................................................... 1
`I.
`II. THE ‘641 PATENT WAS WELL-VETTED DURING
`PROSECUTION .......................................................................................................... 2
`III. CLAIM CONSTRUCTION ....................................................................................... 6
`A.
`“wireless telephone device” .............................................................................. 6
`B.
`“stream a signal”/”streaming audio signal” ................................................... 7
`C.
`“a signal representing at least a portion of a song”/ “signal
`that represents a playing of the song” ............................................................ 8
`“portable electronic device” ............................................................................. 9
`D.
`IV. OVERVIEW OF CITED ART .................................................................................. 9
`A.
`U.S. Patent No. 6,990,334 (“Ito”) ................................................................... 9
`B.
`U.S. Patent No. 6,728,531 (“Lee”) ................................................................ 10
`C.
`U.S. Patent No. 6,772,212 (“Lau”) ................................................................ 12
`D.
`The Nokia 9000/9000i (“Nokia”) ................................................................. 12
`E.
`U.S. Patent No. 6,973,067 (“Haartsen”) ...................................................... 13
`F.
`U.S. Patent No. 7,123,936 (”Rydbeck”) ....................................................... 14
`G. U.S. Patent No. 6,845,398 (“Galensky”) ...................................................... 14
`THE COMBINATION OF PRIOR ART REFERENCES
`CITED BY ................................................................................................................... 15
`A.
`The Supreme Court and Federal Circuit Precedent Preclude
`the Use ............................................................................................................... 15
`Petitioners Fail to Identify A Proper Motivation for Making
`the ....................................................................................................................... 17
`Petitioners’ Combinations of Ito, Nokia, Haartsen,
`Rydbeck, and Galensky are the Result of Improper
`Hindsight ........................................................................................................... 19
`Petitioners’ Combinations of Lee, Haartsen, Lau, Nokia,
`Rydbeck, and Galensky are the Result of Improper
`Hindsight ........................................................................................................... 22
`ITO FAILS TO DISCLOSE A WIRELESS TELEPHONE
`DEVICE, OR A PORTABLE ELECTRONIC DEVICE, WITH
`EACH OF THE CLAIMED FEATURES ............................................................ 27
`i
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`V.
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`VI.
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`IPR 2014-01181
`U.S. Patent No. 8,532,641
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`A.
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`B.
`C.
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`Ito does not disclose a “physical interface operable to
`communicate data” via a first and second conductive path ...................... 27
`Ito does not disclose a “rechargeable power supply .................................. 28
`Ito does not disclose a “collection of instructions” that are
`“operable when executed to communicate a collection of
`information about media content available from the
`wireless telephone device to a recipient device such that the
`recipient device can use the collection of information to
`generate a graphical menu comprising a selectable menu
`item associated with the available media content.” .................................... 30
`Ito does not disclose a wireless telephone/portable
`electronic device with email, voicemail, or web browsing ......................... 32
`VII. LEE FAILS TO DISCLOSE A WIRELESS TELEPHONE
`DEVICE, OR .............................................................................................................. 33
`A.
`Lee fails to disclose a wireless telephone device having the
`claimed display, housing, and enclosure required by the
`‘641 patent claims ............................................................................................. 33
`Lee does not disclose a “portable device.” .................................................. 34
`Lee does not disclose does not disclose a “collection of
`instructions” that are “operable when executed to
`communicate a collection of information about media
`content available from the wireless telephone device to a
`recipient device such that the recipient device can use the
`collection of information to generate a graphical menu
`comprising a selectable menu item associated with the
`available media content.” ................................................................................ 36
`Lee does not disclose a “rechargeable power supply.” .............................. 37
`Lee does not disclose a “physical interface operable to
`communicate data” via a first and second conductive path ...................... 39
`Lee does not disclose a wireless telephone/portable
`electronic device with email, voicemail, or web browsing ......................... 40
`VIII. THE CITED REFERENCES FAIL TO DISCLOSE A
`“STREAMING” .......................................................................................................... 41
`IX. THE CITED REFERENCES FAIL TO DISCLOSE A
`PROCESSOR .............................................................................................................. 42
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`D.
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`B.
`C.
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`D.
`E.
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`F.
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`IPR 2014-01181
`U.S. Patent No. 8,532,641
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`X.
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`THE INTER PARTES REVIEW INITIATED IN RELATION
`TO U.S. PATENT NO. 8,532,641 DEPRIVES PATENT
`OWNER OF ITS RIGHT TO A JURY TRIAL PURSUANT TO
`THE SEVENTH AMENDMENT OF THE UNITED STATES
`CONSTITUTION ...................................................................................................... 43
`XI. THE CITED REFERENCES ARE MERELY CUMULATIVE
`AND ANY TRIAL SHOULD ONLY BE INSTITUTED ON
`ONE GROUND, IF ANY ........................................................................................ 48
`XII. CONCLUSION........................................................................................................... 49
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`TABLE OF AUTHORITIES
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`IPR 2014-01181
`U.S. Patent No. 8,532,641
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`Page
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`Cases
`Abbott Labs v. Cordis Corp.,
`710 F.3d 1318 (Fed. Cir. 2013) ......................................................................................... 47
`Canon Inc. v. Intellectual Ventures I LLC,
`IPR2014-00536, Paper 9, September 24, 2014 ............................................................... 49
`Commodity Futures Trading Commission v. Schor,
`478 U.S. 833 (1986) ............................................................................................................ 45
`In re Suitco Surface, Inc.,
`603 F.3d 1255 (Fed. Cir. 2010) ........................................................................................... 6
`Innogenetics, N.V. v. Abbott Labs.,
`512 F.3d 1363 (Fed. Cir. 2008) ............................................................................ 15, 16, 17
`Kinetic Concepts, Inc. v. Smith & Nephew, Inc.,
`688 F. 3d 1342 (Fed. Cir. 2012) ........................................................................................ 19
`KSR Int’l Co. v. Teleflex Inc.,
`127 S. Ct. 1727 (2007) ........................................................................................................ 16
`Liberty Mutual Insurance Co. v. Progressive Casualty Insurance Co.,
`CBM2012-00003, Paper No. 8, Oct. 25, 2012 ............................................................... 49
`McCormick Harvesting Machine Co. v. Aultman,
`169 U.S. 606 (1898) ............................................................................................................ 45
`Ortho-McNeil Pharm., Inc. v. Mylan Labs., Inc.,
`520 F.3d 1358 (Fed. Cir. 2008) .................................................................................. 16, 17
`Patlex Corp. v. Mossinghoff,
`758 F.2d 594 (Fed. Cir. 1985) ........................................................................................... 46
`Philips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ........................................................................................... 6
`ScentAir Tech., Inc. v. Prolitec, Inc.,
`IPR 2013-00179, Paper 9 (Apr. 16, 2013) ....................................................................... 46
`Takeda Chemical Industries, Ltd. v. Alphapharm Pty., Ltd.,
`492 F.3d 1350 (Fed. Cir. 2007) .................................................................................. 16, 23
`Zimmer Holdings, Inc. v. Bonutti Skeletal Innovations LLC,
`IPR2014-01080, Paper No. 17, October 31, 2014 ......................................................... 49
`Statutes
`112 Cong. Rec. S1375 ............................................................................................................... 1
`35 U.S.C. § 103 ......................................................................................................................... 33
`35 U.S.C. § 103 (a) ................................................................................................................... 16
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`U.S. Patent No. 8,532,641
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`35 U.S.C. § 314 .............................................................................................................. 1, 18, 51
`37 C.F.R. § 42.100(b) ................................................................................................................ 6
`37 C.F.R. § 42.107 ..................................................................................................................... 1
`37 C.F.R. § 42.121 ................................................................................................................... 49
`37 C.F.R. § 42.51(b)(l) ............................................................................................................. 48
`37 C.F.R. § 42.72 ..................................................................................................................... 48
`37 C.F.R. § 42.73 ..................................................................................................................... 48
`37 C.F.R. § 42.73(d)(1) ............................................................................................................ 48
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`Pursuant to 37 C.F.R. § 42.107, Patent Owner Affinity Labs of Texas, LLC
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`IPR 2014-01181
`U.S. Patent No. 8,532,641
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`submits this Preliminary Response to the above-captioned Corrected Petition for Inter
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`Partes Review of U.S. Patent No. 8,532,641 (“Pet.,” Paper 4).
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`I.
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`INTRODUCTION
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`The Board should not institute inter partes review because the Petition fails to
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`meet the requirements of 35 U.S.C. § 314. Inter partes review may only be instituted
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`when a petition demonstrates a reasonable likelihood that the petitioner would prevail
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`on at least one challenged claim. The legislative history indicates that the new
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`“reasonable likelihood of success” standard is akin to the high burden imposed on a
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`party seeking to obtain a preliminary injunction. 112 Cong. Rec. S1375 (Mar. 8, 2011)
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`(statement by Sen. Jon. Kyl). Accordingly, a petitioner must present a prima facie case
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`warranting a rejection of a challenged claim.
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`The Petition fails to present a prima facie case of obviousness for any of the
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`challenged claims. The Petition presents bare assertions of obviousness that do not
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`give rise to a prima facie case of invalidity. Instead, the Petition presents redundant
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`combinations of references, including six references which were before the Patent
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`Office during prosecution and cited in the patent. A prima facie case of obviousness
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`cannot be built upon the application of hindsight analysis to references. Therefore,
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`the Board should deny the Petition.
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`IPR 2014-01181
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`II. THE ‘641 PATENT WAS WELL-VETTED DURING PROSECUTION
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`The patent at issue, U.S. Patent No. 8,532,641 (“the ‘641 patent”) is entitled
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`“System and Method for Managing Media” and was granted on September 10, 2013.
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`The ‘641 patent issued from a continuation application claiming priority back to the
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`filing of U.S. Application No. 09/537,812 (the “’812 application”) which had an
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`effective filing date of March 28, 2000. The ‘812 application broadly addressed the
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`problem of accessing, managing, and communicating digital audio and video content.
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`In doing so, the ‘812 application disclosed a number of inventions relating to the
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`creation of a new media ecosystem which included a portable electronic device, such
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`as a cellular phone, at its heart.
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`In 1999, inventors Russell White and Kevin Imes invented a new media
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`ecosystem that utilized a portable media device as a media hub. They filed a
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`comprehensive patent application in early 2000 that disclosed, among other things,
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`the ability to download media, playlists, and applications from an online store, the
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`ability to stream Internet radio, the ability to communicatively couple a portable
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`electronic device to secondary devices (such as automobiles), and much, much more.
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`Numerous patents have resulted from this innovative disclosure, including the ’641
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`patent.
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`The ‘641 patent is entitled, “System and Method for Managing Media.” The
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`invention claimed in the ‘641 patent generally relates to a portable wireless and/or
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`cellular device capable of playing media content such as music. See Ex. 1001 at 5:19-
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`24. Specifically, the claimed invention of the ‘641 patent identified novel methods for
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`how a portable music device such as a cellphone not only can receive audio content
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`from network resources, but in how it could itself be configured to deliver that
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`content so that a user may enjoy the content using other, separate devices such as
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`automobile or home stereo systems.
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`One element of the claimed ‘641 patent invention is the novel approach for
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`communicating media content from a network resource to a portable music device
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`such as a cellular phone. For example, the ‘641 patent disclosed novel techniques for
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`how selected content could be formatted and transmitted to a portable device. See Ex.
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`1001 at 6:25-27. Specifically, the claimed invention of the ‘641 patent identifies
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`several ways in which content can be segmented, formatted, and delivered to facilitate
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`transmissions to a portable media device, including by segmenting, compressing,
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`modifying, and/or storing content data in various different compressed and
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`uncompressed multimedia formats. See id. at 4:24-30, 4:53-63. The various portions of
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`a selected media can be stored at respective network locations with network addresses
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`for the locations included in a playlist. And, the portable device can make requests for
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`the sequential portions. See id. at 4:46-64. The claimed invention also offered a novel
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`approach to facilitate a portable media device’s ability to choose various portions of
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`selected content by requesting individual segmented portions of that content that are
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`formatted for different data rates. See Id. at 6:54-7:18.
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`The claimed portable music device, however, can do more than simply
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`download music in a novel way and then play that music. The ‘641 patent also
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`discloses and claims functionality for the portable music device to wirelessly stream
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`media content to a separate, second device (such as a car or home stereo) over an
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`asynchronous communications channel. See id. at 2:22-32, 4:7:53, 9:31-56. In addition
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`to wirelessly communicating audio information to the separate device, the novel
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`claimed portable music device is capable of sending data related to the media (such as
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`song titles) so that the separate device can generate a graphical menu and operate to
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`select specific media from the portable music device to play. See id. at 4:4-63, 10:66-
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`11:14. As a result, music stored or downloaded by the portable music device can be
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`played and controlled by the separate device. See id. at 9:31-43.
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`Finally, the portable media device is not limited to playing and streaming media.
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`As the ‘641 patent discloses and claims, the device is also capable of making and
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`receiving calls, connecting to the Internet, managing voice mails, and receiving email
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`communications. See Ex. 1001 at 10:36-65.
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`As Petitioners have set forth in their submission, the family of patents that have
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`issued from the ‘812 application has been heavily litigated and even more heavily
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`licensed to competitors of Petitioners. See Pet. at 4-5. Given this history, the
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`“References Cited” section of the ‘641 patent spans over twelve pages of references
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`and prior art references, encompassing several hundreds of references. All of these
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`were before by the Examiner during the prosecution of the ‘641 patent. See Ex. 1001
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`at 1-13. To be clear, the ‘641 patent was properly issued and is clearly valid.
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`Petitioners are merely engaging in a pattern of conduct that can best be described as a
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`systematic attempt to harass the Patent Owner through numerous attempts at
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`combining cumulative prior art references in an ill-fated attempt to establish
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`obviousness.
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`Here, Petitioners set forth bare assertions that do not present a prima facie case
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`of obviousness for any of the challenged claims. Instead, the Petition presents
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`redundant combinations of references, including six references that were before the
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`Patent Office during prosecution, and cited on the face of the patent. The cited art
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`includes Petitioners’ “primary” references, U.S. Patent No. 6,990,334 (“Ito”) and U.S.
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`Patent No. 6,728,531 (“Lee”). Petitioners offer no reasonable explanation as to why
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`any of the references cited on the face of the patent should now render the challenged
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`claims invalid even though the Patent Office previously rejected the same arguments
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`during the original prosecution. As to the single secondary references not considered
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`during prosecution, Petitioners offer no explanation as to how it differs in any
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`meaningful way from the numerous references that were before the Examiner during
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`prosecution. See Pet. at 13-14.
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`While Petitioners seek to portray the references cited in their Petition as novel
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`combinations, the simple truth is this: Petitioners’ grounds for invalidity have already
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`been considered and rejected by the Patent Office. They represent little more than a
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`hindsight-based attempt to reconstruct the claims using disparate references and
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`unrelated teachings. All of the presented arguments have already been vetted and
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`rejected by the Patent Office. The Board should deny the Petition.
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`III. CLAIM CONSTRUCTION
`For purposes of inter partes review, “[a] claim in an unexpired patent shall be
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`given its broadest reasonable construction in light of the specification of the patent in
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`which it appears.” (37 C.F.R. § 42.100(b)). While claim terms “are generally given their
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`ordinary and customary meaning,” which is “the meaning that the term would have to
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`a person of ordinary skill in the art in question at the time of the invention,” see, e.g.,
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`Philips v. AWH Corp., 415 F.3d 1303, 1312-1313 (Fed. Cir. 2005), the construction
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`must also be consistent with the specification, and the claim language should be read
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`in the light of the specification as it would be interpreted by one of ordinary skill in
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`the art. See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255, 1260 (Fed. Cir. 2010).
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`Moreover, the “ordinary and customary meaning of a term may be evidenced” by
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`other sources too, including the prosecution history. Phillips, 415 F.3d at 1314.
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`A. “wireless telephone device”
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`This term appears in independent claim 1 and claims that depend therefrom.
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`The ’641 patent does not explicitly define a “wireless telephone device,” but indicates
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`that the device should communicate wirelessly over a cellular communications
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`network. See Ex. 1001 at 7:35-39, 8:3-6. This is consistent with a construction that the
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`Board has adopted in proceedings on a related patent for a similar term, “cellular
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`phone,” which was construed to be a “telephone with access to a cellular radio system
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`so it can be used over a wide area, without a physical connection to a network.” Case
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`IPR2014-00408, Institution of Inter Partes Review (July 21, 2014) at 7. The same
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`construction is appropriate for the similar term, “wireless telephone device,” in this
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`related patent.
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`B. “stream a signal”/”streaming audio signal”
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`These terms appear in independent claims 1 and 8 and claims that depend
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`therefrom. The broadest reasonable construction of these terms, “stream a signal”
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`and “streaming audio signal” is a “signal/audio signal that is played as it arrives at a
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`recipient device, not requiring that an entire file be transferred to and stored at a
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`recipient device prior to initiating playback.” This is consistent with their plain and
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`ordinary meaning, as understood by one of ordinary skill in the art, who understands
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`that there is a difference between “download and play files” and streaming files. This
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`understanding is evident from the teachings of the ‘641 patent specification, see e.g. Ex.
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`1001, 7:4-7; and compare 3:67-4:1 and 10:20 (referring to “streaming audio”) with 8:25-
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`26 and 13:8-9 (describing downloading selective information), as well as in statements
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`the applicants made during prosecution of the priority ‘812 application:
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`[S]treaming audio includes playing audio or video immediately as it is
`downloaded from the Internet, rather than storing it in a file on the
`receiving computer first.” A second reference defines streaming audio as
`“. . . streaming sound is played as it arrives. The alternative is a sound
`recording that doesn’t start playing until the entire file has arrived.” In
`other words, by downloading and storing the file, an electronic device
`incorporating teachings of the present invention will be able to play
`music without break-ups, pauses, and music stoppages attendant to
`streaming systems.
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`Ex. 2001 at 2 (Excerpt of File History for the ‘812 application, Amendment and
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`Argument dated Feb. 18, 2003).
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`C. “a signal representing at least a portion of a song”/ “signal that
`represents a playing of the song”
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`These terms appear in independent claims 1 and 8 and claims that depend
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`therefrom. Petitioners equate the claim limitations of streaming “a signal representing
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`at least a portion of a song” and streaming a “signal that represents a playing of the
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`song” with the wireless communication of data. See Pet. at 11, 21-22, 31, 34, 44-45, 54,
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`57. These are not the same thing. First, the words themselves—“streaming” versus
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`“communicating”—are different. While streaming information may be one way of
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`communicating information, streaming is not the only way to communicate, and
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`reference to “communicating data” is not synonymous with “streaming a song.”
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`In addition, the claims separately refer to “data” and to “a signal representing at
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`least a portion of a song.” Ex. 1001, compare 19:51-52 and 20:36-37 with 19:39 and
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`20:54-55. Thus, in the context of these claims, “data” and “a signal representing at
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`least a portion of a song” are separate and distinct limitations. Ex. 1001, compare, for
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`e.g., Abstract, 3: 64-4:1, 6:57-60, 12:4-5, 15:53-55 (referring to a “song”) with 2:46-51,
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`3:8-9, 4:2-3, 4:64-65, 7:56-59 (referring to “data”).
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`To the extent that any construction becomes necessary of “a signal representing
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`at least a portion of a song”/”signal that represents a playing of the song,” these
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`terms should not be construed as synonymous with the communication of “data.”
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`D. “portable electronic device”
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`This term appears in claim 8 and claims that depend therefrom. This term was
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`previously construed in litigation involving patents within the same family as the ‘641
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`to mean “an electronic device that can be easily moved by a user from one location to
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`another and that can be operated in a mobile environment independent of, or
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`untethered to, another system.” Ex. 2002 at 31. This construction is consistent with
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`the specification direction that the device should be “removable” and the plain
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`language of the claims. See Ex. 1001, 10:28-35. As such, this construction is
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`appropriate for the ‘641 patent.
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`IV. OVERVIEW OF CITED ART
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`A. U.S. Patent No. 6,990,334 (“Ito”)
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`U.S. Patent No. 6,990,334 entitled “Wireless Information Communication
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`Method and Its Device” was filed on August 19, 1998 and issued to Seigo Ito on
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`January 24, 2006.
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`The specification of Ito lays out the basic function of the invention: “This
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`invention relates to a wireless information communication method and its device, and
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`more particularly, is applicable to such as an acoustic receiving device for receiving
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`music data via a wireless circuit.” Ex. 1003 at 1:8-12. “The acoustic receiving device is
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`a device in which the construction for receiving the music offering service is added to
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`the PHS telephone terminal device.” Id. at 6:59-63.
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`The acoustic receiver device of Ito is battery powered with no disclosure for
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`recharging or otherwise receiving power from an external source. See id. at 2:46-46,
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`3:5-6, 7:67-8:2. The acoustic receiver device is operable to further transmit music data
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`to a radio receiver of a vehicle or a communication unit of wireless type earphones.
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`See id. at 22:1-13, 23:63-67. Neither the vehicle radio receiver nor the communication
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`unit of the wireless type earphones (as recipient devices) generate a graphical menu,
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`let alone a selectable menu item associated with content on the acoustic receiver
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`device. See id. at 22:14-42, 24:21-29. A user controls the music received (and
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`rebroadcasted) from the acoustic receiver device via the device itself, a remote
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`controller, or a remote operator. See id. at 6:47-67, 22:24-28, 24:21-29.
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`B. U.S. Patent No. 6,728,531 (“Lee”)
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`U.S. Patent No. 6,728,531 entitled “Method and Apparatus for Remotely
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`Configuring a Wireless Communication Device” was filed on September 20, 2000 and
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`issued to seven inventors, including Jeffrey S. Lee, on April 27, 2004.
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`Lee discloses an Internet radio system that can be incorporated into a car. See
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`Ex. 1010 at Abstract. The object of the invention disclosed in Lee is to “allow any
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`AM, FM, TV audio or digital audio broadcast or any Internet audio broadcast to be
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`easily selected by format (i.e., country, classical, news, rock, talk, etc.) in a vehicle”
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`such that a user does not need to know the band or frequency of any station to select
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`a broadcast. See id. at 6:42-51. A user controls this system via the multimedia device,
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`which “makes the appropriate band and frequency selection when a listener selects a
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`station hierarchically organized under a format category.” Id.
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`Lee contemplates that a cellular telephone may function as a “remote
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`programmable device,” Ex. 1010 at 12:40-44. “From a remote programmable device
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`40, a user can customize the way audio broadcasts and personal information service
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`channels are organized in the vehicle’s multimedia device,” though “[c]onfiguration
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`data is preferably sent to the multimedia device through a computer with an Internet
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`connection[.]” Id. at 6:27-30, 12:23-25.
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`While Lee instructs that it is an object of the invention to allow cellular phones
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`to “wirelessly download personal information (i.e., phone numbers, addresses, to-do
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`lists, etc.) into the multimedia device,” Id. at 7:57-61, Lee does not disclose a transfer
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`of audio content, and specifically does not disclose streaming a signal representing at
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`least a portion of a song. The “remote programmable device” disclosed by Lee is used
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`instead “to download information from the Internet gateway network to the
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`multimedia device in the vehicle.” Id. at 6:23-26. Beyond describing the above
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`function of the “remote programmable device,” Lee is entirely devoid of any physical
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`description of the device.
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`C. U.S. Patent No. 6,772,212 (“Lau”)
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`U.S. Patent No. 6,772,212 entitled “Audio/Visual Server” was filed on March 8,
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`2000 and issued to Dannie C. Lau, Daniel Benyamin, and Brandan T. Dowling on
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`August 3, 2004.
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`Lau describes a server that is part of an in-vehicle audio system, which is
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`mounted in the trunk of a car. Ex. 1012 at Abstract, 5:11-16. Lau does not disclose a
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`wireless telephone device, or a portable media device, compliant with a Bluetooth
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`standard. Nor does it disclose the use of an asynchronous channel to wirelessly
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`“stream a signal representing at least a portion of a song.” While Lau discloses a “head
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`unit” that is separate from the server, Id. at Fig. 1, it does not disclose a “graphical
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`user interface” on the head unit that can display a selectable menu item associated
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`with media content available from a separate wireless telephone device, or from a
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`separate, portable media device, compliant with a Bluetooth standard.
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`D. The Nokia 9000/9000i (“Nokia”)
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`Nokia refers to the Nokia 9000/9000i communicator. The user manual for the
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`Nokia 9000i was among the publications considered by the Patent Office during
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`prosecution and is listed on the face of the ‘641 patent. Ex. 1001 at 10.
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`The Nokia communicator “may be connected to a computer, laptop or printer
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`via an infrared connection.” Ex. 1005B at 120. The communicator can display and
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`save downloaded e-mail attachments, including audio files. Id. at 60. The
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`communicator cannot, however, play such audio files. See id. Rather, the phone is
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`limited to the ability to play rudimentary, user-composed ringtones. See id. at 11-5. As
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`such, the Nokia communicator cannot stream a portion of a song to a recipient
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`device.
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`E. U.S. Patent No. 6,973,067 (“Haartsen”)
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`U.S. Patent No. 6,973,067 entitled “Multi-Media Protocol for Slot-Based
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`Communication Systems” was filed on July 7, 1999 and issued to Jacobus Cornelis
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`Haartsen on December 6, 2005.
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`Haartsen discloses a method of multimedia communications on a shared
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`channel. Haartsen teaches that, “[i]n the case of an asynchronous data transfer, a
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`stored data record, for example a record from an Internet server may be transferred in
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`bursts, depending on traffic, block size, etc. until the record is completely
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`transmitted.” Ex. 1006 at 5:37-40. The communications method disclosed by
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`Haartsen does not, however, allow a user to play a file while it is being transferred
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`(i.e., does not allow streaming). Indeed, Haartsen discloses data transfer via
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`“asynchronous link” only where the “data associated with a non real time data stream
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`is transferred asynchronously to be played back in a real time mode off line.” Id. at
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`5:52-55.
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`F. U.S. Patent No. 7,123,936 (”Rydbeck”)
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`U.S. Patent No. 7,132,936 entitled “Cellular Phone with Expansion Memory For
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`Audio and Video Storage” was filed on February 18, 1998 and issued to Nils R. C.
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`Rydbeck and John Fussell on October 17, 2006.
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`Rydbeck discloses a cellular telephone with an internally integrated digital
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`entertainment module. Rydbeck discloses only altering the output of audio. Ex. 1008
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`at 4