IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`PATENT TRIAL & APPEAL BOARD
`
`
`
`
`
`In re Patent of: Smith et al.
`U.S. Patent No.: 6,128,649
`Issue Date:
` October 3, 2000
`Appl. No.:
`
`08/867,624
`Filing Date:
`
`June 2, 1997
`Title:
`Dynamic Selection of Media Streams for Display
`
`
`DECLARATION OF PROFESSOR BRUCE McNAIR
`
`
`I, Prof. Bruce McNair, declare as follows:
`
`I.
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`
`Background and Qualifications
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`(1.) My name is Bruce McNair. I am a Distinguished Service Professor of
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`Electrical and Computer Engineering at Stevens Institute of Technology in
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`Hoboken, NJ. I have studied and practiced in the fields of electrical engineering,
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`computer engineering, and computer science for over 40 years, and have been a
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`professor of electrical and computer engineering since 2002.
`
`(2.)
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`I received my Masters of Engineering (M.E.) degree in the field of
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`Electrical Engineering from Stevens Institute of Technology in 1974 and my
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`Bachelor of Engineering (B.E.) degree in Electrical Engineering in 1971 from
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`Stevens as well.
`
`(3.)
`
`I am the Founder and Chief Technology Officer of Novidesic
`
`Communications, LLC, a technology consulting company. Prior to starting
`
`Novidesic and joining the faculty at Stevens in 2002, I spent 24 years at AT&T
`1
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`
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`CISCO Exhibit 1008, pg. 1
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`
`PATENT TRIAL & APPEAL BOARD
`
`
`
`
`
`In re Patent of: Smith et al.
`U.S. Patent No.: 6,128,649
`Issue Date:
` October 3, 2000
`Appl. No.:
`
`08/867,624
`Filing Date:
`
`June 2, 1997
`Title:
`Dynamic Selection of Media Streams for Display
`
`
`DECLARATION OF PROFESSOR BRUCE McNAIR
`
`
`I, Prof. Bruce McNair, declare as follows:
`
`I.
`
`
`Background and Qualifications
`
`(1.) My name is Bruce McNair. I am a Distinguished Service Professor of
`
`Electrical and Computer Engineering at Stevens Institute of Technology in
`
`Hoboken, NJ. I have studied and practiced in the fields of electrical engineering,
`
`computer engineering, and computer science for over 40 years, and have been a
`
`professor of electrical and computer engineering since 2002.
`
`(2.)
`
`I received my Masters of Engineering (M.E.) degree in the field of
`
`Electrical Engineering from Stevens Institute of Technology in 1974 and my
`
`Bachelor of Engineering (B.E.) degree in Electrical Engineering in 1971 from
`
`Stevens as well.
`
`(3.)
`
`I am the Founder and Chief Technology Officer of Novidesic
`
`Communications, LLC, a technology consulting company. Prior to starting
`
`Novidesic and joining the faculty at Stevens in 2002, I spent 24 years at AT&T
`1
`
`
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`CISCO Exhibit 1008, pg. 1
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`
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`Bell Laboratories. My most recent work there included research into next
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`generation (4G and beyond) wireless data communications systems, including
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`high-speed, high mobility wide area networks as well as range and speed
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`extensions to 802.11(a & b) wireless LANs. Before that, my activities included
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`development of encryption hardware, secure voice architecture studies, high-speed
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`voice-band modems, and public data network protocols.
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`(4.) Before joining Bell Labs, I spent seven years developing military
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`communications systems for the US Army Electronics Command and ITT Defense
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`Communications Division. My responsibilities included cryptographic and ECCM
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`techniques for portable radio systems, TEMPEST technology, and state-of-the-art
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`speech compression techniques.
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`(5.) Since becoming a faculty member in 2002 (and even before) I have
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`published over 20 technical publications in scientific journals or conferences in the
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`fields of digital communications and security. I have 25 U.S. patents in related
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`fields, as well as 19 associated international patents. As part of my research as a
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`professor and previously at Bell Labs, I have developed and implemented many
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`different communications networks with network controls and user-specified
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`policies, similar to the goal of U.S. Patent No. 6,128,649 (“the ‘649 patent”) and
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`which I explain in more detail below. My graduate teaching at Stevens Institute of
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`Technology has included courses in Wireless Systems Security and Information
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`
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`2
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`CISCO Exhibit 1008, pg. 2
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`Systems Security, which include treatment of network quality of service policies
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`and mechanisms to allow network and user control of operation.
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`(6.)
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`I am a Senior Member of the IEEE and belong to the Communications
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`and Signal Processing Societies. I have served as the Secretary of the IEEE
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`Communications Society Communications Security Committee.
`
`(7.) A copy of my latest curriculum vitae (C.V.) is attached to this
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`declaration as Appendix A.
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`II. Description of the Relevant Field and the Relevant Timeframe
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`(8.)
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`I have carefully reviewed the ‘649 patent as well as the ‘649 patents
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`prosecution history.
`
`(9.) For convenience, all of the information that I considered in arriving at
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`my opinions is listed in Appendix B. Based on my review of these materials, I
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`believe that the relevant field for purposes of the ‘649 patent is management of
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`delivery over a multimedia network. I have been informed that the relevant
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`timeframe is on or before June 2, 1997.
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`(10.) As described in Section I above and as shown in my CV, I have
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`extensive experience in electrical engineering and computer science. Based on my
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`experience, I have a good understanding of the relevant field in the relevant
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`timeframe.
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`
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`3
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`CISCO Exhibit 1008, pg. 3
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`
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`III. The Person of Ordinary Skill in the Relevant Field in the Relevant
`Timeframe
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`
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`(11.) I have been informed that “a person of ordinary skill in the relevant
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`field” is a hypothetical person to whom an expert in the relevant field could assign
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`a routine task with reasonable confidence that the task would be successfully
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`carried out. I have been informed that the level of skill in the art is evidenced by
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`prior art references. The prior art discussed herein demonstrates that a person of
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`ordinary skill in the field, at the time the ‘649 patent was effectively filed, was
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`aware of standard multimedia network communication infrastructures,
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`provisioning network services and resources (including network conditions that
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`might influence network operation, such as congestion), and user policies that
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`might allow a user to specify the format or type of content they wished to access.
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`(12.) Based on my experience, I have an understanding of the capabilities
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`of a person of ordinary skill in the relevant field. I have supervised and directed
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`many such persons over the course of my career. Further, I had those capabilities
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`myself at the time the patent was effectively filed.
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`IV. Scientific Principles Underlying the ‘649 Patent
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`(13.) The ‘649 patent represents a simple combination of several well-
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`known networking principles: distributing multimedia content to a number of
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`users, providing a mechanism for a user to express preferences about what they are
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`shown or how it is displayed, and control of the system based on conditions of the
`4
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`CISCO Exhibit 1008, pg. 4
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`servers, clients or network resources including capacity, bandwidth, or other
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`facilities. A brief description of these concepts is provided below, as well as
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`general network architecture design considerations.
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`A. Distribution of Multimedia Content
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`(14.) Simple video distribution has been studied since television was first
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`presented in 1939, but until the arrival of high-speed data networks and the interest
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`in merging multiple media streams (multimedia) little advancement occurred. For
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`this reason, I will direct this discussion to the distribution of multimedia
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`information. A search of the IEEE database (Iexplore) shows over three thousand
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`journal and conference papers on multimedia by 1995. Basically, in this time
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`period, multimedia systems, such as multiparty conference systems as described
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`and claimed in the ‘649 patent, were a “hot topic” for research with many
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`conference papers and technical journal articles published.
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`(15.) For example, by 1993, researchers at the University of California, San
`
`Diego, published on the Multimedia Multicast Channel, which provided a service
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`analogous to cable television, but using multimedia information. Specifically, a
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`source transmitted multiple video and audio streams on a given channel and the
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`receivers tuned in to a channel using filters such that the appropriate video and
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`audio streams, matching the requirements of the end-user’s terminal, were
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`5
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`CISCO Exhibit 1008, pg. 5
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`satisfied.1 Similarly, U.S. Patent No. 5,928,330 to Goetz et al. describes a system,
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`device, and method for streaming a multimedia file wherein multiple streams of
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`“duplicate” content were transmitted, such that the receiver could choose the
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`language of the presentation, for example, or choose an audio stream that is
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`encoded for a transmission rate that matches the network’s characteristics.2
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`B. User Choice or Selection of Media Streams
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`(16.) The next concept is one of user choice or selection, referred to as a
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`user policy in the ‘649 patent. Simply changing the channel of a TV set or radio is
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`one form of implementation of a user policy, but what the ‘649 patent tries to
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`address is a dynamic selection without real-time user intervention. Applying this
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`concept to multimedia systems is also not new. In the mid-1970s, Ceefax was a
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`multimedia information distribution system that used unviewable sections of a TV
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`signal to distribute text information. By 1987, software on a user’s computer was
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`able to perform keyword searches in the Ceefax data stream according to a user’s
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`policy to display the desired information. By 1995, VCRs were able to read the
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`channel guides transmitted using Ceefax and, according to a user’s prior
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`instructions (policy), dynamically select programs for viewing and recording.
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`(17.) Similarly, U.S. Patent No. 5,410,344 to Graves et al. discloses a
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`method for developing a preferred viewing file for broadcast TV or video-on-
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`1 Ex. 1009 at Abstract, pp. 9-11.
`2 Ex. 1010 at 4:34-54.
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`6
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`CISCO Exhibit 1008, pg. 6
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`demand based upon user-specified instructions/preferences. The preferred viewing
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`file is created “by comparing the viewer’s own preferences for various program
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`attributes with a coded field having ratings for corresponding attributes.”3
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`(18.) Further still, as disclosed by the references applied in the concurrently
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`filed petition for inter partes review, and discussed in greater detail below, known
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`viewing policies included language preference, user security or access rights,
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`quality of service (“QoS”) preferences, cost preferences, and video stream or user-
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`view preferences.
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`C. Monitoring and Adapting to Network Conditions
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`(19.) The third concept is that of basing the display of information on
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`network or terminal conditions. This is one of the oldest concepts of operating a
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`data network and is part of any communications protocol. In the late 1970s, IBM’s
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`SDLC protocol as well as X.25’s HDLC protocol had incorporated the idea of link
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`level flow control. Whenever a terminal is unable to process incoming data,
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`perhaps because of a full receive buffer, it can express this terminal condition to
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`the network by imposing a flow control condition,4 basically telling the network to
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`stop sending. Networks, internally, use the same process to prevent overload, so
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`one of ordinary skill in the art of network design and operation would be quite
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`familiar with this concept. Further, this feature is part of any significant network
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`3 Ex. 1011 at 9:35-54.
`4 Ex. 1012 at p. 8.
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`7
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`CISCO Exhibit 1008, pg. 7
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`
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`that was designed before the filing date of the ‘649 patent, such as X.25 networks,
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`TCP/IP networks, etc., which would serve as the underlying connectivity for the
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`network in the patent.
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`(20.) X.25 and TCP/IP networks are packet switched networks where
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`information is placed in information bundles, called packets, and each packet is
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`sent from source to destination, independently of previous packets. Because each
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`packet is routed and transmitted separately, if any path from source to destination
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`exists, the network will discover the path and send the packets along the path.
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`Unfortunately, the independent routing and transmission characteristics that give
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`packet switched networks their robustness and survivability in the face of the
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`possibility of multiple node failures have a cost associated with them –
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`unpredictable and often significant end-to-end delay.
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`(21.) The alternative is to use circuit switched networks, like Asynchronous
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`Transfer Mode (ATM) networks. In circuit switched networks, a path from source
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`to destination is found once at the start of a communication session (a call) and all
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`bundles of information (for ATM, called cells, rather than packets) are sent along
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`the same path to guarantee better control of delay. In addition, rather than the long
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`and variable length packets of X.25 and TCP/IP, ATM uses fixed length and very
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`short cells to further control delay variability.
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`8
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`CISCO Exhibit 1008, pg. 8
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`(22.) ATM networks, because they are designed to minimize end-to-end
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`delay and cannot delay transmission during overload, cannot use the low-level
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`flow control mechanisms that packet switched networks do. Instead, ATM
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`networks manage congestion through dropping cells and incorporate flow control
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`mechanisms through higher-level processes. For instance, ATM may rely on long-
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`term congestion control by call admission control, preventing an origination station
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`from beginning a call to avoid the traffic that would be generated. Alternatively,
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`an ATM network may make an application level request to a sending terminal to
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`reduce the average rate at which information is being sent.
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`(23.) As an example, it is well known that a high-quality image requires
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`more information to represent the image than would be required with a lower
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`quality image, where quality might refer to image resolution, speed of update,
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`image size, etc., individually or in combination. If the bandwidth available
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`between the network and the terminal is limited because of other users’
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`transmissions, it may not be practical to send the higher quality image fast enough
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`to keep up with a rapidly changing source. Thus, to endure timely delivery of the
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`image, it might be necessary to send a lower quality image.
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`(24.) Thus, it can be seen that the inevitable network congestion condition
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`is routinely signaled to the communicating devices in whatever means is
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`appropriate to the network type.
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`
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`9
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`CISCO Exhibit 1008, pg. 9
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`
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`D. Network Architecture Design Considerations
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`(25.) The system architecture that one may use to implement a multimedia
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`display system, such as the multiparty presentation system described and claimed
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`in the ‘649 patent, can take on many forms, which will generally be based on
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`design decisions related to the specific problem being addressed. For instance,
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`there can be design decisions about where the processing is done to implement
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`enforcement of user policies and where processing is done to enforce controls
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`based on network or terminal conditions. One of ordinary skill in the art would
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`take several constraints into account, including:
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` How much bandwidth is required and available to communicate the controls
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`between the network and the terminal?
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` What processing capacity is available in the network nodes to enforce
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`policies and controls?
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` What processing capacity is available in the terminal to enforce policies and
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`controls?
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`(26.) Generally, one would select the place to perform each operation in
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`order to minimize overall system cost. As an example, consider the
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`implementation of user policy controls. In a large network with many user
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`terminals, it may be a significant burden on network nodes to store profiles for all
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`the users and filter real-time media streams based on the user policy. In this case,
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`
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`10
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`CISCO Exhibit 1008, pg. 10
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`
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`it might be preferable to place the user profile and the software to enforce the
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`associated user policy at the user terminal. This choice has a downside, however:
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`if the user policy is enforced by the terminal, this may mean that a significant
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`amount of data will be sent from the network to the user terminal that will
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`ultimately be rejected because of the user policy in force.
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`(27.) Conversely, there may be instances where one of ordinary skill would
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`realize that it makes the most sense to place user policy controls in the network,
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`rather than at the user terminal. As an example, consider the case where a large
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`number of information streams are available for transmission to the user terminal
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`but, because of the user policy in force, most of the information will not be
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`selected by the user policy for display. To pass the information to the user
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`terminal, only to have it discarded, might put a significant burden on the
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`distribution network. In this case, it might be more efficient to make the user
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`policy-based selection in the network, avoiding the need to transmit information
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`that would never be used.
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`(28.) While user policies may specify the discretionary choices of a user,
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`terminal and network conditions will generally reflect the mandatory decisions that
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`must be made because of physical limitations of a terminal or network. In a
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`similar manner to the discussion above, there are design choices about where
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`controls based on network or terminal conditions should be applied. While it is
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`
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`11
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`CISCO Exhibit 1008, pg. 11
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`
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`possible to enforce a control based on a network condition at the terminal, and it is
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`possible to enforce a control based on a terminal condition at the network, in
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`general one would expect that the network and terminal have the best information
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`about their current condition, suggesting that network conditions should be acted
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`on in the network and terminal conditions should be acted on at the terminal. A
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`person of ordinary skill in the art would recognize that there are considerations
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`such as:
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` the amount of memory space available in a terminal to store incoming media
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` the available bandwidth between the network and the terminal
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` the processing power of the terminal
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` the traffic load on the network node used to service other users.
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`(29.) All of these conditions and others will influence the ability of the
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`system to meet the desires of the user in displaying the media available to the user.
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`For the most part, one of ordinary skill would want to minimize coordination
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`messages needed to operate the system, and would tend to apply the network or
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`terminal controls as close to where the underlying condition was detected.
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`E. Multicasting
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`(30.) Multicasting is a network communications technique where
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`information is sent to a number of receiving devices simultaneously, rather then
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`sending a number of individual communications to each of the receiving devices.
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`
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`12
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`CISCO Exhibit 1008, pg. 12
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`
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`Instead of sending information with a specific receiving device’s address, the
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`sending device transmits a broadcast to a group address which may be thought of
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`as a channel. The receiving devices listen to the group address, effectively being
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`capable of accessing all information sent to the group address. Within the address
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`space used by the Internet there is a range of addresses reserved for multicast
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`traffic. Network devices do not monitor these multicast addresses, but only
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`process traffic that they have been told that a downstream device needs.5
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`Multicast, while sending information to potentially a large number of devices,
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`allows selectivity in which devices receive the information because they must be
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`monitoring a specific multicast address. This is contrasted with a broadcast
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`transmission, where messages are sent to all devices on the network.
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`(31.) With conventional one-to-one communications associations, the
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`transmitter and receiver are tightly coupled: the transmitter sends a group of
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`packets and the receiver receives them, acknowledging each set before another is
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`sent. While this is a perfectly usable communications model, it does not scale well
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`for a one-to-many communications association, particularly when there are a large
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`number of receivers, each having a different communications bandwidth or
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`receiving a different subset of intact vs. damaged packets. Instead, the loose
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`coupling of a multicast communications channel is preferable in this case – for
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`5 See generally Ex. 1013.
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`13
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`CISCO Exhibit 1008, pg. 13
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`
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`instance for a multiuser video conferencing application.6 The approach to
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`multicasting depends on the specifics of the application. As LeMair (Ex. 1004)
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`describes, densely populated networks with a large number of participants would
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`benefit from receiver initiated approaches.7
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`E. Audio/video streaming
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`(32.) Some information sources are discontinuous by their nature. Text
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`messaging, for instance, is a series of short bursts of information from a first
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`station to the second and vice versa. Streaming, on the other hand, is generally
`
`regarded as the continuous delivery of information without significant gaps or
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`pauses, as discussed in greater detail below in section VI.A.
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`V.
`
`The ‘649 Patent
`
`(33.) In view of the foregoing, the ‘649 patent describes the basic concept
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`of dynamically selecting one of many real-time media streams for display on a user
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`terminal in a videoconferencing environment based on policies established by that
`
`user. Additionally, the ‘649 patent describes the concept of controlling the user
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`display of the videoconferencing environment based on conditions of the terminal
`
`or network.
`
`
`6 Ex. 1009 at p. 3.
`7 Ex. 1004 at pp. 4-5.
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`
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`14
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`CISCO Exhibit 1008, pg. 14
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`(34.) The user-based policies described by the ‘649 patent are straight
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`forward—MUTE, LOCKED, and TRIGGERED.8 MUTE mode prevents a given
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`video stream from being displayed.9 LOCKED mode indicates that the user wants
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`to always view a given conferee, even if the network is congested.10 TRIGGERED
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`policies take into account user preferences. The ‘649 patent generally discloses
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`such preferences in terms of the number of speakers to be displayed; however, user
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`policy-based preferences may also include language preferences and
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`QoS/degradation preferences. For example, the user may want to see the video of
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`the “j” most recent speakers, or a set of “k” speakers, and then additionally the “j”
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`most recent speakers.11
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`(35.) When in TRIGGERED mode, the system described by the ‘649 patent
`
`may also monitor system resources, including networking resources, computing
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`resources, tariff limitations, and end-user terminal resources to determine the
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`specific streams to display.12 The identification of resource congestion may then
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`trigger a dropping of certain streams or a degradation of stream quality, for
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`example.13
`
`
`8 Ex. 1001 at 18:29-39.
`9 Id.
`10 Id.
`11 Id. at 19:21 – 20:3.
`12 Id. at 18:42-49.
`13 See, e.g., id. at 25:53 – 26:59.
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`
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`15
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`CISCO Exhibit 1008, pg. 15
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`(36.) In short, the ‘649 patent describes nothing that was not already a well-
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`known and widely used distributed computing concept at the time the patent was
`
`filed. The ‘649 patent simply takes common design elements of distributed
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`multimedia systems (e.g., user selectivity and monitoring/adapting to network
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`conditions) and applies them to a multiparty videoconferencing environment,
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`which were well-known by the time the ‘649 patent was filed.
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`VI. Claim Interpretation
`
`A.
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`“real-time media stream”
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`(37.) The ‘649 patent claims the transmission of “real-time media streams,”
`
`but does not define this term. However, the patent describes real-time media
`
`streams in the context of a live video conference. Further, the phrase real-time
`
`modifies media streams, which itself connote a “real-time” aspect and, therefore,
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`one of ordinary skill in the art would have understood the phrase “real-time media
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`stream” to be more narrow than media streaming (as discussed below) and defined
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`as “live media stream.”
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`(38.) In common usage to one of ordinary skill in the art, “media stream” or
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`“streaming media” refers to a continuous delivery of information without
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`significant gaps between output by the sender and receipt by the recipient.
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`Television, broadcast radio, continuous CD or MP3 music playback, and video
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`over IP are examples of streaming media or media streams. The only real delay in
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`
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`16
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`CISCO Exhibit 1008, pg. 16
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`
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`a media stream system which, ideally, does not manifest itself to the user/recipient,
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`is that associated with the system’s cache/buffer that processes stream segments
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`before presenting the segments on the recipients output device. The cache/buffer is
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`necessary so that, to the user, there is a continuous presentation of media without
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`gaps or pauses. A video downloaded over the internet, where the entirety of the
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`video is downloaded before being presented to the user, is not a streaming
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`information source.
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`(39.) In view of how streaming media works, there is an aspect of “real-
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`time” that is built into the mechanism because there is a continuous delivery of
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`information without gaps, where data segments are only temporarily buffered or
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`cached before being presented for display. Thus, the term “real-time media
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`stream” cannot simply refer to any streaming video, voice, or data distribution in
`
`which data segments are temporarily buffered or cached before being presented for
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`display, as this concept is captured by the phrase “media stream” standing alone.
`
`(40.) Instead, to give the term “real-time” independent significance in view
`
`of foregoing, and in view of the specification of the ‘649 patent and its prosecution
`
`history,14 one of ordinary skill in the art would understand the Broadest Reasonable
`
`Interpretation of the claim term to be “live media stream.”
`
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`14 During prosecution of the ‘649 patent, I understand that the Applicant
`distinguished its alleged invention on the basis that prior art describing general
`streaming media, such as broadband cable television, was less relevant to the
`17
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`
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`CISCO Exhibit 1008, pg. 17
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`
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`(41.) Video (as well as audio) conferences have one salient feature that
`
`relates to the concept of real-time, the communication is a live interaction between
`
`at least two human users and is expected to be timely. Users cannot tolerate long,
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`unpredictable response times in their virtual face-to-face network conversations.
`
`Not only must the maximum delay be constrained but the variation in delay must
`
`also be controlled to prevent any disruption to the user experience. This is also
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`explicitly recognized by the ‘649 patent, which notes that media stream
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`synchronization is “the single most important element of any real-time multimedia
`
`communication system … to guarantee timely and sensory-appealing playback of
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`multimedia streams to a user” and that “since we are dealing with live media
`
`streams, a minimum end-to-end delay is also desirable to enable conferees to
`
`converse in a natural fashion.”15 Thus, for this additional reason, one of ordinary
`
`skill in the art would understand the Broadest Reasonable Interpretation of the term
`
`“real-time media stream” to be “live media stream.”
`
`(42.) However, I understand that the Patent Owner has submitted
`
`infringement contentions16 in which it accuses switched-digital video services,
`
`video-on-demand services, and IP cable television services as accused systems.
`
`Therefore, it appears that the Patent Owner incorrectly reads the term “real-time”
`
`claimed invention because it was not directed, nor did it mention, conferencing.
`See Ex. 1002 at p. 16.
`15 Ex. 1001 at 21:55 – 22:28.
`16 See Ex. 1016 at p. 3.
`
`
`
`18
`
`CISCO Exhibit 1008, pg. 18
`
`
`
`out of “real-time media stream” and simply construes the term as synonymous with
`
`streaming media—in other words, “any streaming video, voice, or data distribution
`
`in which data segments are temporarily buffered or cached before being called for
`
`present display.” As a matter of practical implementation, and as recognized by
`
`the ‘649 patent,17 the streaming transmission would require a maximum allowable
`
`delay that does not adversely impact the user experience, but this is not a
`
`requirement of the claim language.
`
`(43.) Thus, for purposes of this proceeding and for consistency between the
`
`two actions, I have applied the following definition for the term “real-time media
`
`stream” when analyzing the claims and the prior art: any streaming video, voice,
`
`or data distribution in which data segments are temporarily buffered or cached
`
`before being called for present display.
`
`B.
`
`“independently of selections made for passing to the other users”
`
`(44.) In view of the foregoing discussion of the term “real-time media
`
`streams” meaning a live media stream, and as discussed below, the Broadest
`
`Reasonable Interpretation of the phrase “independently of selections made for
`
`passing to the other users,” as used in claims 1, 13, 14, and 19, is an “independent
`
`display of media streams to viewers of the same live (real time) event.”
`
`
`17 Ex. 1001 at 21:55 – 22:39.
`
`
`
`19
`
`CISCO Exhibit 1008, pg. 19
`
`
`
`(45.) Both the specification of the ‘649 patent and its prosecution history
`
`make clear that the phrase “independently of selections made for passing to the
`
`other users” is tied to a conferees ability to display selected media streams of the
`
`same live (real time) event independently of selections made by other conferees.
`
`For example, the patent states that “[d]ynamic selection from multiple streams
`
`enables the user to concentrate on the content not the form of presentation.
`
`Individual control of what is displayed, independent of what other users see,
`
`enables tailoring to video conferences to be handled more easily.”18 The claimed
`
`invention was also distinguished during prosecution on the basis of an alleged
`
`failure in the applied prior art to independently display streams of the same
`
`conference to different users based upon a user’s policy.19 Thus, the proper
`
`construction of the term is “independent display of media streams to viewers of the
`
`same live (real time) event.”
`
`(46.) However, in view of the Patent Owner’s infringement contentions
`
`discussed above, and for the purposes of this proceeding, I have applied the
`
`following definition of the term when analyzing the claims and the prior art:
`
`“independent of other user selections.”
`
`
`18 Ex. 1001 at Abstract; see also Ex. 1001 at 3:35-41.
`19 See, e.g., Ex. 1002 at pp. 35-36 and 39-40.
`20
`
`
`
`CISCO Exhibit 1008, pg. 20
`
`
`
`VII. Discussion of Relevant Patents and Articles
`
`(47.) I have been asked to consider the teachings of the prior art cited in the
`
`concurrently filed petition for inter partes review in view of the knowledge held by
`
`one of ordinary skill, and whether the skilled practitioner would have combined the
`
`references as applied in the petition.
`
`A. Understanding of Legal Standards
`
`1.
`
`Anticipation
`
`(48.) A patent claim is “anticipated” if each and every limitation of the
`
`claim is disclosed in a single prior art reference. Section 102 of the Patent Statute
`
`was amended on March 16, 2013. The earlier version of Section 102 applies to the
`
`patent at issue given its filing date.
`
`(49.) Each element of a patent claim may be disclosed by a prior art
`
`reference either expressly or inherently. Further, my understanding is that even an
`
`“express” disclosure does not necessarily need to use the same words as the claim.
`
`An element of a patent claim is inherent in a prior art reference if the element must
`
`necessarily be present and such would be recognized by a person of ordinary skill
`
`in the art. However, I understand that inherency cannot be established by mere
`
`probabilities or possibilities.
`
`
`
`21
`
`CISCO Exhibit 1008, pg. 21
`
`
`
`2.
`
`Obviousness
`
`(50.) A patent claim is invalid if the differences between the patented
`
`subject matter and the prior art are such that the subject matter as a whole would
`
`have been obvious at the time the invention was made to a person of ordinary skill
`
`in the art. I am informed that this standard is set forth in 35 U.S.C. § 103(a).
`
`(51.) When considering the issues of obviousness, I am to do the following:
`
`(i) determine the scope and content of the prior art; (ii) ascertain the differences
`
`between the prior art and the claims at issue; (iii) resolve the level of ordinary skill
`
`in the pertinent art; and (iv) consider objective evidence of non-obviousness. I
`
`appreciate that secondary considerations must be assessed as part of the overall
`
`obviousness analysis (i.e. as opposed to analyzing the prior art, reaching a tentative
`
`conclusion, and then assessing whether objective indicia alter that conclusion).
`
`(52.) Put another way, my understanding is that not all innovations are
`
`patentable. Even if a claimed product or method is no
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