Case 3:16-cv-00385-H-WVG Document 157-1 Filed 08/05/16 Page 1 of 25
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`RUSS, AUGUST & KABAT
`Marc A. Fenster (CA SBN 181067)
`Reza Mirzaie (CA SBN 246953)
`Jeffrey Z.Y. Liao (CA SBN 288994)
`Christian Conkle (CA SBN 306374)
`12424 Wilshire Boulevard, 12th Floor
`Los Angeles, California 90025
`Telephone: (310) 826-7474
`Facsimile: (310) 826-6991
`Attorneys for Plaintiff
`FastVDO LLC
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`FASTVDO LLC,
`Plaintiff,
`v.
`
`AT&T MOBILITY LLC,
`AT&T SERVICES, INC., and
`APPLE, INC.,
`Defendants
`
`
`
`
`Case No. 3:16-cv-00385-H-WVG
`LEAD CASE
`
`Member Cases:
`16-cv-386-H (WVG)
`16-cv-389-H (WVG)
`16-cv-390-H (WVG)
`16-cv-394-H (WVG)
`16-cv-395-H (WVG)
`16-cv-396-H (WVG)
`
`EXPERT DECLARATION OF DR. KENNETH ZEGER
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`16cv0385
`Expert Declaration of Dr. Kenneth Zeger
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`Table of Contents
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`Page
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`INTRODUCTION ................................................................................ 1
`QUALIFICATIONS ............................................................................. 1
`
`TECHNOLOGY BACKGROUND OF THE ‘482 PATENT .............. 3
`
`“code word” ................................................................................ 4
`“first portion of each code word” ............................................... 5
`“second portion of each code word” .......................................... 5
`“generating a plurality of code words ... second portion”/ “a
`plurality of code words ... second portions” ............................... 6
`
`I.(cid:1)
`II.(cid:1)
`III.(cid:1) MATERIALS CONSIDERED FOR THIS DECLARATION ............. 3
`IV.(cid:1) LEVEL OF ORDINARY SKILL IN THE ART .................................. 3
`V.(cid:1)
`VI.(cid:1) DISPUTED TERMS ............................................................................. 4
`A.(cid:1)
`B.(cid:1)
`C.(cid:1)
`D.(cid:1) Whether “generating the first portion” must occur separately
`
`from “generating the second portion” (cl. 1) .............................. 6
`Whether “including information within the first portion” must
`occur separately from “including information within the second
`portion” (cl. 12) .......................................................................... 7
`Whether “means for including information within the first
`portion” and “means for including information within the
`second portion” must be configured to perform their function
`separately (cl. 22) ....................................................................... 7
`Whether “wherein the first portion of each code word includes
`information ...” must occur separately from “wherein the
`associated second portion of each code words includes
`information ...” (cl. 28) ............................................................... 7
`
`E.(cid:1) Whether “generating a plurality of code words” must occur
`F.(cid:1) Whether “quantizing the transformed data” must occur
`G.(cid:1) Whether “a computer readable memory for storing . . . encoded
`H.(cid:1)
`
`before “providing error protection” (cl. 1, 12) ........................... 9
`Whether the “error protection means” must perform its function
`on the output of the “code word generating means” (cl. 22) ...... 9
`
`separately from “encoding the quantized data” (cl. 12) ........... 10
`Whether the “data encoder” must be configured to perform on
`the output of the “data quantizer” (cl. 22) ................................ 10
`
`data according to claim 21” is indefinite (cl. 29) ..................... 11
`code word generating means (cl. 22) ........................................ 12
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`Table of Contents
`means for including information within the first portion (cl. 22);
`first generating means (cl. 24) .................................................. 14
`means for including information within the second portion (cl.
`22); second generating means (cl. 24) ...................................... 17
`error protection means (cl. 22) ................................................. 19
`first/second data link transmitting means (cl. 26) .................... 20
`
`I.(cid:1)
`J.(cid:1)
`K.(cid:1)
`L.(cid:1)
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`I.(cid:1)
`
`
`
`INTRODUCTION
`1.(cid:1)
`I have been retained through Zunda LLC as an expert in the above
`captioned cases by counsel for FastVDO, LLC (“FastVDO”). I understand that
`FastVDO has asserted one patent in the above captioned cases: U.S. Patent No.
`5,850,482 (the “asserted patent”).
`II.(cid:1) QUALIFICATIONS
`2.(cid:1) My qualifications for forming the opinions given in this expert report
`are summarized here and are addressed more fully in my curriculum vitae, which is
`attached as a part of Exhibit A to this declaration. That exhibit also includes a list
`of my publications.
`3.(cid:1)
`I have studied, taught, and practiced electrical and computer
`engineering for more than thirty years. I attended the Massachusetts Institute of
`Technology (“MIT”) and earned a Bachelors (SB) and Masters (SM) of Science
`Degrees in Electrical Engineering and Computer Science in 1984. I earned a Masters
`of Arts (MA) Degree in Mathematics in 1989 from the University of California,
`Santa Barbara. I also earned my Ph.D. in Electrical and Computer Engineering from
`the University of California, Santa Barbara in 1990.
`4.(cid:1)
`I am a Full Professor of Electrical and Computer Engineering at the
`University of California, San Diego (UCSD). I have held this position since 1998,
`having been promoted from Associated Professor after two years at UCSD. I teach
`courses full-time at UCSD in the fields of Electrical and Computer Engineering, and
`specifically in subfields including information theory and data compression, at the
`undergraduate and graduate levels. Prior to my employment at UCSD, I taught and
`conducted research as a faculty member at the University of Illinois, Urbana-
`Champaign for four years, and at the University of Hawaii for two years.
`5.(cid:1) My twenty-plus years of industry experience include consulting work
`for the United States Department of Defense as well as for private companies such
`as Xerox, Nokia, MITRE, ADP, and Hewlett-Packard. The topics upon which I
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`provide consulting expertise include image, video, and speech coding; data
`compression; networks; digital communications; pattern recognition; computer
`software; and mathematical analyses.
`6.(cid:1)
`I have authored 73 peer-reviewed journal articles, the majority of which
`are on the topic of compression or signal processing. I have also authored over 100
`papers at various conferences and symposia over the past thirty years, such as the
`IEEE International Symposium on Information Theory, the International Conference
`on Image Processing, and the Data Compression Conference.
`7.(cid:1)
`I was elected a Fellow of the IEEE in 2000, an honor bestowed upon
`only a small percentage of IEEE members. I was awarded the National Science
`Foundation Presidential Young Investigator Award in 1991, which included
`$500,000 in research funding. I received this award one year after receiving my
`Ph.D.
`
`8.(cid:1)
`I have served as an Associate Editor for the IEEE Transactions on
`Information Theory and have been an elected member of the IEEE Information
`Theory Society Board of Governors for three, three-year terms. I organized and have
`been on the technical advisory committees of numerous workshops and symposia in
`the areas of image coding, information theory, and data compression. I regularly
`review submitted journal manuscripts, government funding requests, conference
`proposals, student theses, and textbook proposals. I also have given many lectures
`at conferences, universities, and companies on topics in image coding, data
`compression, and information theory.
`9.(cid:1)
`I have extensive experience in electronics hardware and computer
`software, from academic studies, work experience, and supervising students. I
`personally program computers on an almost daily basis and have fluency in many
`different computer languages.
`10.(cid:1) No part of my compensation is contingent upon the outcome of this
`litigation. I have no other interests in this litigation or with any of the parties.
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`III.(cid:1) MATERIALS CONSIDERED FOR THIS DECLARATION
`11.(cid:1)
`In forming my opinion, I have reviewed, considered, and/or had access
`to the patent specification and claims, its prosecution history, the parties’
`preliminary claim construction disclosures and extrinsic evidence, and the materials
`cited in those disclosures. I have also relied on my professional and academic
`experience in the fields of error protection and communications. I reserve the right
`to consider additional documents as I become aware of them and to revise my
`opinions accordingly.
`IV.(cid:1) LEVEL OF ORDINARY SKILL IN THE ART
`12.(cid:1) The person of ordinary skill in the art of the patented technology at the
`time of the invention of the asserted patents would have a bachelor’s degree in
`electrical engineering, computer engineering, computer science, or the equivalent
`and 2-3 years of work experience with error protection and error-resilient data
`transmission, or the equivalent.
`V.(cid:1) TECHNOLOGY BACKGROUND OF THE ‘482 PATENT
`13.(cid:1) The ‘482 patent is directed to system and methods of error resilient
`digital-data communication utilizing a combination of unequal error protection and
`code words with first portions containing information representative of a
`predetermined characteristic of the associated second portions. It solves a problem
`that existed in the realm of digital-data communication over channels such as radio
`links that are subject to corruption and noise, namely that providing sufficient
`protection against corruption requires inclusion of redundant data that can occupy a
`significant portion of the overall channel bandwidth.
`14.(cid:1) The ‘482 patent addresses this problem by combining the prior art of
`unequal error protection with the step of generating a plurality of code words
`representative of respective portions of the data, such code words having first and
`associated second portions, and including within the first portions information
`representative of a predetermined characteristic of the associated second portion,
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`Different “one or more”
`Defendants’ Construction
`
`A sequence of
`bits assigned to
`represent a
`symbol
`
`
`such as the number of bits of the associated second portion. This combination
`extends some of the benefit of the greater first-portion error protection to the
`associated second portion, and accordingly provides an overall robust data
`transmission system with minimal overhead. The invention thereby improves on the
`prior unequal error protection art.
`VI.(cid:1) DISPUTED TERMS
`A.(cid:1)
`“code word”
`FastVDO’s
`“One or more”
`Defendants’
`Construction
`Construction
`a sequence of bits assigned to
`Code in a codebook
`represent a symbol (e.g., a
`representing a
`coefficient) /
`symbol/codes in a
`sequences of bits each sequence
`codebook, each
`assigned to represent a symbol
`representing a symbol
`
`(e.g., a coefficient)
`15.(cid:1) The term “code word” is used in an ordinary sense in the ‘482 patent.
`For example, the patent states, “coding assigns shorter code words to those symbols
`which occur frequently, while longer code words are assigned to those symbols
`which occur less frequently.” ’482 patent at 4:36-44. One of ordinary skill in the
`art would understand “code word” to mean a sequence of bits, associated with input
`data, which is assigned to represent a symbol, typically to reduce the number of
`overall bits necessary to represent data. See Telecommunications: Glossary of
`Telecommunication Terms at C-18 (“a word that consists of a sequence of symbols
`assembled in accordance with the specific rules of the code and assigned a unique
`meaning”). Thus, I agree with FastVDO’s construction.
`16.(cid:1)
`I disagree with Defendants proposals. For example, with respect to one
`of the two constructions proposed by different defendants, the parenthetical “e.g., a
`coefficient” is confusing, as it does not clarify the meaning of the term and may
`suggest that the term is narrower than the plain and ordinary meaning. A coefficient
`is typically a continuous-valued number, whereas symbols are typically discrete-
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`valued in the patent. With respect to the other construction proposed by a different
`set of defendants, the proposal requires a “codebook,” which is technologically
`inaccurate. For instance, the ‘482 patent states that the use of codebook is “typical,”
`as opposed to required. ‘482 patent at 4:51-53.
`B.(cid:1)
`“first portion of each code word”
`FastVDO’s Construction
`Defendants’ Construction
`No construction necessary
`Prefix field of a code word generated such that
`
`a bit error in the field could result in a potential
`loss of code word synchronization
`“second portion of each code word”
`FastVDO’s
`“One or more” Defendants’
`Construction
`Construction
`
`Different “one or more”
`Defendants’
`Construction
`Suffix field of a code
`word generated such that
`a bit error in the field only
`affects that particular code
`word
`
`No
`construction
`necessary
`
`Suffix field of a code word
`generated in a manner such that a
`bit error in the field results in a
`miscoded value that falls in a
`predetermined range about the
`correct value
`17.(cid:1) A person of ordinary skill in the art would readily understand what is
`meant by “first portion of each code word” and “second portion of each code word”
`in the context and in view of the ‘482 patent, as well as the parties’ proposal for
`“code word” above. As such, I agree with FastVDO that no further construction is
`necessary.
`18.(cid:1)
`I disagree with Defendants’ proposals. For example, Defendants’
`proposal complicates simple words—“first portion” and “second portion”—by
`adding twenty-plus words chosen by Defendants. For instance, Defendants’
`proposal for “first portion” introduces the phrase “code word synchronization” that
`is nowhere found in the claims themselves. There is nothing in the claims or the
`specification that suggests that such a limitation must be required in the simple
`phrase “first portion of each code word.” Similarly, there is nothing in the claims or
`the specification that suggests that the twenty-plus words chosen by Defendants for
`“second portion” must be required in “second portion of each code word.”
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`C.(cid:1)
`
`“generating a plurality of code words ... second portion”/ “a
`plurality of code words ... second portions”
`FastVDO’s
`Defendants’ Construction
`Construction
`No
`construction
`necessary
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`Generating a plurality of code words, representative of respective
`portions of the data, wherein each code word comprises a first
`portion and an associated second portion, which do not represent
`first and second subdivisions of a data stream into different
`classes that merit different levels of error protection.
`AND
`A plurality of code words, representative of respective portions of
`the original data, which have respective first and second portions,
`which do not represent first and second subdivisions of a data
`stream into different classes that merit different levels of
`protection
`19.(cid:1) The phrases “generating a plurality of code words representative of
`respective portions of the data, wherein each code word comprises a first portion and
`an associated second portion” and “a plurality of code words, representative of
`respective portions of the original data, which have respective first and second
`portions” are used in accordance with plain and ordinary meaning. For instance, the
`phrase plainly states that code words are “representative of respective portions of the
`original data, which have respective first and second portions.” As such, I agree
`with FastVDO that the phrases do not need further construction.
`20.(cid:1)
`I disagree with Defendants’ proposals. For example, Defendants’
`proposals use the same language as the claims themselves, but add twenty additional
`words at the end of the phrases. My review of the intrinsic evidence did not reveal
`a clear and unambiguous disclaimer limiting the phrases in the manner proposed by
`Defendants. Furthermore, Defendants’ proposal would exclude embodiments
`disclosed in the ‘482 patent, e.g., those in which the first and second portions can
`represent first and second portions of a data stream. ‘482 patent at 7:5-51. The
`limitation added by the extra words seemingly contradicts using different levels of
`error protection for different portions of the data stream as disclosed in the patent.
`D.(cid:1) Whether “generating
`the
`first portion” must occur
`separately from “generating the second portion” (cl. 1)
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`FastVDO’s
`Construction
`No construction
`necessary
`
`Defendants’ Construction
`
`“Generating the first portion” must occur
`separately from “generating the second portion”
`Whether “including information within the first portion”
`must occur separately from “including information within
`the second portion” (cl. 12)
`FastVDO’s
`Defendants’ Construction
`Construction
`No construction
`necessary
`
`“Including information within the first portion”
`must occur separately from “including
`information within the second portion.
`Whether “means for including information within the first
`portion” and “means for including information within the
`second portion” must be configured to perform their
`function separately (cl. 22)
`FastVDO’s
`Defendants’ Construction
`Construction
`No construction
`necessary
`
`
`The “means for including information within the first
`portion” and the “means for including information
`within the second portion” must be configured to
`perform their function separately.
`Whether “wherein the first portion of each code word
`includes
`information
`...” must occur separately from
`“wherein the associated second portion of each code words
`includes information ...” (cl. 28)
`FastVDO’s
`Defendants’ Construction
`Construction
`No construction
`necessary
`
`
`“wherein the first portion of each code word includes
`information” must occur separately from “wherein the
`associated second portion of each code words includes
`information representative of a respective portion of
`the original data”
`21.(cid:1) Claim 1 of the ‘482 patent recites:
`generating the first portion of each code word, wherein said first
`portion generating step comprises the step of including information within
`the first portion that is representative of a predetermined characteristic of the
`associated second portion; and
`generating the second portion of each code word, wherein said second
`portion generating step comprises the step of including information within
`the second portion that is representative of the respective portion of the data.
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`‘482 patent claim 1. Claim 12 recites:
`code word generating step comprises the steps of including information
`within the first portion that is representative of a predetermined characteristic
`of the associated second portion, and including information within the second
`portion that is representative of a respective portion of the data
`‘482 patent claim 12. Claim 22 recites:
`including
`code word generating means comprises means for
`information within the first portion that is representative of a predetermined
`characteristic of the associated second portion, and means for including
`information within the second portion that is representative of a respective
`portion of the data
`‘482 patent claim 22. Claim 28 recites:
`a plurality of code words, representative of respective portions of the
`original data, which have respective first and second portions, wherein the
`first portion of each code word includes information representative of a
`predetermined characteristic of the associated second portion, and wherein the
`associated second portion of each code word
`includes
`information
`representative of a respective portion of the original data
`‘482 patent claim 28.
`22.(cid:1) There is nothing in the claims themselves that indicate that generation
`of “the first portion” and “the second portion” must occur “separately,” as
`Defendants contend. Further, the specification does not indicate such a temporal
`requirement either. Rather, the specification suggests that the two portions can be
`generated together. For example, the ‘482 patent states “encoder 16 and, more
`preferably, code word generating means 26 generates a plurality of code words,” and
`that “[e]ach code word includes at least a first portion (hereinafter termed a ‘prefix
`field’) and an associated second portion (hereinafter termed a ‘suffix field’).” ‘482
`patent at 13:36-43. Moreover, as a matter of logic, a first portion and second portion
`can be generated together rather than separately. For instance, one single process
`can generate multiple outputs, including multiple portions of data simultaneously.
`As suggested in the patent, a first portion might consist of run lengths and a second
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`portion might consist of coefficient values, and these can certainly be encoded at the
`same time.
`E.(cid:1) Whether “generating a plurality of code words” must occur
`before “providing error protection” (cl. 1, 12)
`FastVDO’s
`Defendants’ Construction
`Construction
`No construction
`necessary
`
`“Generating a plurality of code words” must
`occur before “providing error protection”
`Whether the “error protection means” must perform its
`function on the output of the “code word generating means”
`(cl. 22)
`FastVDO’s
`Construction
`“error protection means” must be configured to perform
`No construction
`its function on the output of the “code generating means”
`necessary
`23.(cid:1) Claim 1 of the ‘482 patent recites:
`generating a plurality of code words representative of respective
`portions of the data, wherein each code word comprises a first portion and
`an associated second portion
`
`Defendants’ Construction
`
`… p
`
`roviding error protection to at least one of the first portions of the
`plurality of code words while maintaining any error protection provided to
`the respective second portion associated with the at least one first portion at
`a lower level than the error protection provided to the respective first
`portion.
`‘482 patent claim 1. Claim 12 recites:
`generating a plurality of code words, representative of respective
`portions of the data, which have respective first and second portions,
`wherein said code word generating step comprises the steps of including
`information within the first portion that is representative of a predetermined
`characteristic of the associated second portion, and including information
`within the second portion that is representative of a respective portion of the
`data; and
`providing error protection to at least one of the first portions of the
`plurality of code words while maintaining any error protection provided to
`the respective second portion associated with the at least one first portion at
`a lower level than the error protection provided to the respective first
`portion.
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`16cv0385
`Expert Declaration of Dr. Kenneth Zeger
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`RUSS, AUGUST & KABAT
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`Page 12 of 25
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`Case 3:16-cv-00385-H-WVG Document 157-1 Filed 08/05/16 Page 13 of 25
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`‘482 patent claim 12. Claim 22 recites:
`code word generating means for generating a plurality of code words,
`representative of respective portions of the data, which have respective first
`and second portions, wherein said code word generating means comprises
`means for including information within the first portion that is representative
`of a predetermined characteristic of the associated second portion, and
`means for including information within the second portion that is
`representative of a respective portion of the data; and
`error protection means for providing error protection to at least one of
`the first portions of the plurality of code words while maintaining any error
`protection provided to the respective second portion associated with the at
`least one first portion at a lower level than the error protection provided to
`the respective first portion.
`‘482 patent claim 22.
`24.(cid:1) The claims themselves do not indicate that generating code words must
`occur before providing error protection, as Defendants contend. Similarly, there is
`nothing in the claims themselves that indicate that “error protection means” must be
`configured to perform its function on the output of the “code generating means.”
`Further, the specification does not indicate such a temporal or spatial requirement.
`As a matter of logic, generating of a code word and error protection of a portion of
`the code word can occur at the same time, simultaneously. For example, providing
`error protection to a portion of a code word can occur during the generation of the
`code word, just as providing coating of paint to a leg of a chair occurs during the
`making/generation of the chair.
`F.(cid:1) Whether “quantizing the transformed data” must occur
`separately from “encoding the quantized data” (cl. 12)
`FastVDO’s
`Defendants’ Construction
`Construction
`No construction
`necessary
`
`“quantizing the transformed data” must occur separately
`from “encoding the quantized data”
`Whether the “data encoder” must be configured to perform
`on the output of the “data quantizer” (cl. 22)
`FastVDO’s
`Defendants’ Construction
`Construction
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`Expert Declaration of Dr. Kenneth Zeger
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`RUSS, AUGUST & KABAT
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`Page 13 of 25
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`Case 3:16-cv-00385-H-WVG Document 157-1 Filed 08/05/16 Page 14 of 25
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`No construction
`“data encoder” must be configured to perform on the
`necessary
`output of the “data quantizer”
`25.(cid:1) Claim 12 of the ‘482 patent recites:
`quantizing the transformed data such that the quantized data has fewer
`unique coefficients than the transformed data; and
`encoding the quantized data
`‘482 patent claim 12. Claim 22 recites:
`a data quantizer for quantizing the transformed data such that the
`quantized data has fewer unique coefficients than the transformed data; and
`a data encoder for encoding the quantized data
`‘482 patent claim 22.
`26.(cid:1) The claims themselves do not require that “quantizing” must occur
`separately from “encoding,” nor do they require that the “data encoder” must
`perform on the output of the “data quantizer.” The specification does not reveal a
`clear and unambiguous disclaimer limiting the “quantizing” and “encoding” in such
`sequential manner. Rather, quantizing can occur as a part of the encoding process,
`or vice versa. The “chair” analogy I explained above is similarly applicable here.
`G.(cid:1) Whether “a computer readable memory for storing . . .
`encoded data according to claim 21” is indefinite (cl. 29)
`FastVDO’s Construction
`Defendants’ Construction
`Indefinite
`A computer readable memory for
`storing error resilient encoded data
`according to claim 28
`27.(cid:1) Claim 28 recites “A computer readable memory for storing error
`resilient encoded data” and claim 29 recites “A computer readable memory for
`storing error resilient encoded data according to claim 21 wherein…” In contrast,
`claim 21 recites “An error resilient method of compressing data according to claim
`20 further comprising…” A person of ordinary skill in the art would readily
`understand that “claim 21” recited in claim 29 is merely a typographical error. For
`example, the text of claim 29 clearly recites “a computer readable memory,” just as
`the text of claim 28 recites “a computer readable memory.” In contrast, claim 21
`
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`16cv0385
`Expert Declaration of Dr. Kenneth Zeger
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`RUSS, AUGUST & KABAT
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`Page 14 of 25
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`recites an “error resilient method.” Moreover, there are no independent claims in
`the ‘482 patent that are ordered between a dependent claim and the independent
`claim from which that dependent claim depends. My understanding is that this is
`the typical practice in patent claim numbering. See MPEP §608.01(n) (“A claim
`[e.g., claim 29 of the ‘492 patent] which depends from a dependent claim [e.g., claim
`21] should not be separated by any claim [e.g., claims 22-28] which does not also
`depend from said dependent claim [e.g.., claim 21].”). It is obvious to see that a
`clerical error was made in reciting claim 21 as opposed to claim 28. A person of
`ordinary skill in the art would understand that an obvious typographical error
`occurred, and that claim 29 meant to recite claim 28 instead of claim 21.
`H.(cid:1)
`code word generating means (cl. 22)
`FASTVDO’S
`DEFENDANTS’ PROPOSED CONSTRUCTION
`PROPOSED
`CLAIM
`CONSTRUCTI
`ON
`Function:
`
`generating a
`plurality of code
`words
`representative of
`respective
`portions of the
`data, which have
`respective first
`and second
`portions.
`
`Structure:
`
`data encoder 16
`and/or code word
`generator 26 and
`equivalents
`thereof.
`
`
`
`Function:
`
`Generating a plurality of code words, representative of
`respective portions of the data, which have respective first
`and second portions
`
`Structure/Algorithm:
`
`Indefinite
`
`and
`
`Figs. 1 (prefix generator 27 and suffix generator 28), 5B —
`
`Prefix generator 27: A processor or general purpose
`computer programmed to perform including within the first
`portion an unsigned integer J usin