UNITED STATES PATENT AND TRADEMARK OFFICE
`
`________________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`
`
`WEBPOWER, INC.
`
`Petitioner
`
`v.
`
`WAG ACQUISITION, LLC
`
`Patent Owner
`
`
`
`Patent No. 8,122,141
`
`Issue Date: February 21, 2012
`
`Title: STREAMING MEDIA BUFFERING SYSTEM
`
`
`
`
`____________________________________________________________
`
`DECLARATION OF NATHANIEL POLISH, PH.D.
`
`PAGE 1 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`________________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`
`
`WEBPOWER, INC.
`
`Petitioner
`
`v.
`
`WAG ACQUISITION, LLC
`
`Patent Owner
`
`
`
`Patent No. 8,122,141
`
`Issue Date: February 21, 2012
`
`Title: STREAMING MEDIA BUFFERING SYSTEM
`
`
`
`
`____________________________________________________________
`
`DECLARATION OF NATHANIEL POLISH, PH.D.
`
`PAGE 1 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`TABLE OF CONTENTS
`
`
`
`I.
`
`Introduction and Qualifications .......................................................................... 1
`
`II. Understanding of the Governing Law ................................................................ 3
`
`A. Types of Claims – Independent and Dependent .............................................. 3
`
`B. Invalidity by Anticipation or Obviousness ....................................................... 3
`
`C. Secondary or Objective Evidence of Nonobviousness .................................... 5
`
`D. Relevant Time Period for the Anticipation and Obviousness Analyses .......... 6
`
`E. Basis For My Opinion....................................................................................... 6
`
`F. Level of Ordinary Skill in the Art in the Relevant Timeframe ........................ 6
`
`III. State of the Art at the Claimed Priority Date ..................................................... 7
`
`IV. Discussion of the ’011 Patent ........................................................................ 11
`
`A. Overview ........................................................................................................ 11
`
`B. Claim Terms of the ’141 Patent...................................................................... 12
`
`VI. The Prior Art References ............................................................................... 12
`
`VII. Conclusion ...................................................................................................... 23
`
`
`
`
`
`ii
`
`
`
`
`
`
`
`
`PAGE 2 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`I, Nathaniel Polish, hereby declare the following:
`
`1.
`
`I have been retained by Petitioner to provide my opinions concerning
`
`the validity of claims 1-28 of U.S. Patent No. 8,122,141 (the “’141 patent”). I am
`
`being compensated for my time in preparing this declaration, but my compensation
`
`is not tied to the outcome of this matter and my compensation is not based on the
`
`substance of the opinions rendered here.
`
`I.
`
`Introduction and Qualifications
`
`2.
`
`I have a Ph.D. in Computer Science from Columbia University. I hold
`
`the following four degrees from Columbia University, spanning the years 1980 to
`
`1993:
`
` Ph.D. in Computer Science, May 1993, Thesis: Mixed Distance
`
`Measures for the Optimization of Concatenative Vocabularies in
`
`Speech Synthesis;
`
` M.Phil. in Computer Science, December 1989;
`
` M.S. in Computer Science, December 1987; and
`
` B.A. in Physics, Columbia College, May 1984.
`
`3.
`
`I am president of Daedalus Technology Group, Inc., a computer
`
`technology development firm that I co-founded over twenty-five years ago. My
`
`primary business activity is the development of computer-related products, including
`
`small handheld electronic devices and testers, video and messaging systems, as well
`
`
`
`1
`
`PAGE 3 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`as large-scale distributed systems.
`
`4.
`
`I have experience in the technical areas of the ’141 patent. For
`
`example, in the early 1980’s, I developed an interactive system using computer
`
`controlled video disks and touch screens. From 1983-1987, I developed high-speed
`
`drivers for several graphical devices and evaluated their applicability for interactive
`
`uses. By 1994, I had developed a proof-of-concept system to compress images of
`
`checks to very small file size.
`
`5.
`
`I have further written an article regarding the technical areas of the
`
`’141 patent, entitled “The Burstware Family of Protocols.”
`
`6.
`
`I am a named inventor on seven United States patents, including U.S
`
`Patent Number 5,963,202 issued on October 5, 1999 and entitled, “System and
`
`Method for Distributing and Managing Digital Video Information in a Video
`
`Distribution Network.”
`
`7.
`
`I am further a member of several professional societies, including the
`
`Institute of Electrical and Electronics Engineers (IEEE), and the Association for
`
`Computing Machinery (ACM).
`
`8.
`
`I have also performed services in patent disputes as an independent
`
`technical expert and consultant and as an expert witness on computer, video, and
`
`software-related cases.
`
`9.
`
`A copy of my curriculum vitae is attached as Exhibit 1011.
`
`
`
`2
`
`PAGE 4 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`II. Understanding of the Governing Law
`
`A. Types of Claims – Independent and Dependent
`
`10.
`
`I understand that there are two types of U.S. patent claims: 1)
`
`independent claims and 2) dependent claims. I understand that independent claims
`
`only include the aspects stated in the independent claim. I further understand that
`
`dependent claims include the aspects stated in that dependent claim, plus all the
`
`aspects stated in the other claim(s) from which that dependent claim depends.
`
`B. Invalidity by Anticipation or Obviousness
`
`11.
`
`I understand that a claim is invalid if it is anticipated or obvious. I
`
`understand that anticipation of a claim requires that every element of a claim is
`
`disclosed expressly or inherently in a single prior art reference, arranged as in the
`
`claim. With regard to inherency, I understand that anticipation by inherency
`
`requires that one of ordinary skill in the relevant art would have recognized that the
`
`missing descriptive matter is necessarily present in the subject matter described in
`
`the reference.
`
`12.
`
`I further understand that obviousness of a claim requires that the claim
`
`be obvious from the perspective of a person of ordinary skill in the relevant art, at
`
`the time the invention was made. In analyzing obviousness, I understand that it is
`
`important to understand the scope of the claims, the level of skill in the relevant art,
`
`the scope and content of the prior art, the differences between the prior art and the
`
`claims, and any secondary considerations.
`
`
`
`3
`
`PAGE 5 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`13.
`
`I also understand that if a technique has been used to improve one
`
`device, and a person of ordinary skill in the art would recognize that it would
`
`improve similar devices in the same way, using the technique is obvious unless its
`
`actual application is beyond his or her skill. For instance, I understand that the
`
`simple substitution of one known element for another or the mere application of a
`
`known technique to a piece of prior art ready for the improvement is obvious.
`
`14.
`
`In addition, I understand that the United States Supreme Court has said
`
`that “[t]he use of one material instead of another in constructing a known machine is,
`
`in most cases, so obviously a matter of mere mechanical judgment, and not of
`
`invention, unless some new and useful result, an increase of efficiency, or a decided
`
`saving in the operation, is clearly attained.” Hicks v. Kelsey, 85 U.S. 670, 673 (1873).
`
`Moreover, to avoid obviousness, I understand that such a new and useful result,
`
`increase of efficiency, or decided saving in the operation must be unpredictable. KSR
`
`Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (U.S. 2007) (“when a patent claims a
`
`structure already known in the prior art that is altered by the mere substitution of one
`
`element for another known in the field, the combination must do more than yield a
`
`predictable result.”).
`
`15.
`
`There may also be a specific “teaching, suggestion or motivation” to
`
`combine any first prior art reference with a second prior art reference. Such a
`
`“teaching, suggestion, or motivation” to combine the first prior art reference with the
`
`
`
`4
`
`PAGE 6 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`second prior art reference can be explicit or implicit.
`
`16.
`
`I understand that there are several sources for a “teaching, suggestion
`
`or motivation” to combine references: the nature of the problem to be solved, the
`
`teachings of the prior art, and the knowledge of the persons of ordinary skill in the
`
`art. In addition, market forces or other design incentives may be what produced a
`
`change, rather than true inventiveness. I also know that the application of common
`
`sense and ordinary skill to solve a problem is not patentable.
`
`17.
`
`I understand that when considering invalidity, each claim must be
`
`considered individually.
`
`C. Secondary or Objective Evidence of Nonobviousness
`
`18.
`
`I understand that secondary (or objective) considerations are relevant
`
`to the determination of whether a claim is obvious. Such secondary (or objective)
`
`considerations can include evidence of commercial success caused by an invention,
`
`evidence of a long-felt need that was solved by an invention, evidence that others
`
`copied an invention, or evidence that an invention achieved a surprising result. I
`
`understand that such evidence must have a nexus, or causal relationship to the
`
`elements of a claim, in order to be relevant to the obviousness or non-obviousness of
`
`the claim. I am unaware of any such secondary considerations in relation to the
`
`claims of the ’141 patent.
`
`
`
`5
`
`PAGE 7 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`D. Relevant Time Period for the Anticipation and Obviousness Analyses
`
` 19.
`
`I also understand that the earliest U.S. application that eventually led to
`
`the ’141 patent was filed on September 12, 2000. Therefore, for the purposes of this
`
`declaration, I have analyzed anticipation and obviousness as of September 2000.
`
`E. Basis For My Opinion
`
` 20.
`
`In forming my opinion, I have relied on the ’141 patent claims and
`
`disclosure, the prior art exhibits to the Petition for the IPR of the ’141 patent, and my
`
`belief as to the knowledge of the person of ordinary skill in the relevant art in the
`
`2000 timeframe.
`
`F. Level of Ordinary Skill in the Art in the Relevant Timeframe
`
` 21.
`
`In 2000, I believe that a relevant person of ordinary skill in the art at the
`
`time of the ’141 patent (“POSITA”) would have had a B.S. degree in computer
`
`science or electrical engineering (or comparable degree) and two years of experience
`
`in networking or streaming media, or a M.S. in computer science or electrical
`
`engineering (or comparable degree).
`
`22. These descriptions are approximate, and a higher level of education or
`
`specific skill might make up for less experience, and vice-versa.
`
`23.
`
`I believe I have a sufficient level of knowledge, experience and
`
`education to provide an expert opinion in the field of the ’141 patent, including
`
`what one of ordinary skill in the art would have understood from the prior art in this
`
`field at that time.
`
`
`
`6
`
`PAGE 8 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`III. State of the Art at the Claimed Priority Date
`
`24.
`
`Since at least the beginning of the 1990s, digital transmission
`
`technologies had been introduced for digital audio broadcasting and digital video
`
`broadcasting. Ex. 1006, Kozamernik at pp. 1-2. The Internet was recognized as a de
`
`facto worldwide network important for broadcasting activities, having achieved
`
`more than 50% penetration in five major American cities and 50 million users in
`
`four years. Id. at pp. 3, 5. It also was recognized that in contrast to conventional
`
`broadcasting, the Internet allowed the audience to interact with the originator and
`
`shape the content that was delivered. Id. at p. 5. Several protocols, including Real
`
`Time Streaming Protocol (“RTSP”) – a popular application-level protocol known to
`
`enable controlled on-demand delivery of real-time audio and video stream – were in
`
`use for providing real-time services via the Internet. Id. at p. 13.
`
`25. While “download-first-and-then-play” technology was considered
`
`acceptable for short program clips, “streaming” technology, which allowed for
`
`immediate playback, was preferred for on-line radio listening and watching video
`
`clips. Id. at p. 6. During media streaming, a media player, such as RealPlayerTM,
`
`read the media file stream as it was arriving from the network and began playing it
`
`before the rest of the file arrived. Id. In order to make the playback smooth, the
`
`player used a process of buffering. Id. As the player played out the file, it continued
`
`to collect packets in reserve so that if there were minor delays in receiving the
`
`packets, playback was still continuous. Id.
`
`
`
`7
`
`PAGE 9 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`26. Buffering was commonly known in the context of streaming media
`
`over the Internet. Transmission over the Internet may not be fully reliable and may
`
`suffer from delay jitter. Id. at pp. 12-13. Delay jitter is the variance in delay of
`
`consecutive packets, which can vary in a non-predictable manner. Id. Buffering
`
`was known to smooth out jitter to enhance playback quality. Id. at p. 12.
`
`27. A potential side effect of buffering is a short delay while the buffer
`
`fills. The ’141 patent contends that the user must wait for the length of the buffer.
`
`The ’141 patent specifically states that if the user waits ten seconds before playback
`
`starts, then there is enough buffer for ten seconds of interruptions and the buffer
`
`cannot increase during playback. ’141 patent, Ex. 1001 at 3:8-32.
`
`28. But this was not the state of the art. As explained by Kozamernik,
`
`streaming technology allowed for immediate playback. Kozamernik, Ex. 1006 at p.
`
`6. It was well known to increase the transmission rate above the playback rate to
`
`fill the buffer in the first instance and to refill the buffer if there was a low amount
`
`of data in the buffer.
`
`29.
`
`Similar buffers in existence at the time of invention had already dealt
`
`with this very issue. It was well-known to increase the transmission rate above the
`
`playback rate to fill the buffer in the first instance, and to refill the buffer if there
`
`was a low amount of data in the buffer.
`
`30.
`
`For example, Hollfelder, published in 1997, describes a system where
`
`
`
`8
`
`PAGE 10 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`the server sends streaming media data at a rate faster than playback to the user,
`
`which is received by a client-side buffer. Hollfelder, Ex. 1010 at 2.1 ¶ 2, 2.3 ¶ 3.
`
`The client maintains a record of the data retrieved and placed into the buffer, and
`
`periodically requests additional data in order to maintain a continuous streaming
`
`presentation to the user. Id. at 3.4 ¶ 17. This is functionally identical to the method
`
`and system described in the ’141 patent and summarized above.
`
`31.
`
`The prior art contains numerous other patents and publications which
`
`comprehensively disclose the various features of the ’141 patent. For example, U.S.
`
`Patent No. 5,822,524 to Chen (Ex. 1002), filed in 1995, along with its published file
`
`history, discloses a server-client architecture in which multimedia files are delivered
`
`from a server buffer to a client-side buffer in the form of digital data packets. Chen
`
`describes a simple transmission concept using a “Water Mark” model. Ex. 1002 at
`
`6:16-54. A bucket may be considered to have high and low “water marks.” Id.
`
`Water exits the bucket through a spout similar to data exiting a packet buffer as its
`
`content is delivered to a user. See id. When the amount of data (water in the bucket)
`
`falls between the water marks, transmission occurs in the Normal mode. Id. The
`
`Normal mode executes frame level pacing (Id. at 10:3-4) – i.e., transmission at the
`
`playback rate. When the amount of data falls below the low mark, transmission
`
`changes to the Rush mode. Id. at 6:42-47. In the Rush mode, the frame level pacing
`
`is ignored and data is transmitted as fast as possible to maintain enough data in the
`
`
`
`9
`
`PAGE 11 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`buffer for playback. Id. at Claims 18, 29, Fig. 6. Chen also describes assigning
`
`packet sequence numbers (serial identifiers) to the data packets making up the
`
`streaming media. Id. at 6:55-7:2. The media player described in Chen uses a
`
`register to maintain a variable last packet sequence number, which is the “packet
`
`sequence number of the last received packet.” Id. at 7:24-32. The user system can
`
`thus request lost packets using the last packet sequence number in the register. Id. at
`
`10:40-50.
`
`32. U.S. Patent 6,625,656 to Goldhor (Ex. 1007), issued on September 23,
`
`2003, with a priority date of May 4, 1999, also describes a system for continuous
`
`playback of streaming multimedia data through intelligent buffering. The system
`
`controls data output from the buffer based on the playback rate, and controls the
`
`amount of data passing through the buffer in response to changing conditions in the
`
`transmission of data from the server. The server sends data to the buffer at a rate
`
`faster than the playback rate.
`
`33.
`
`“Intelligent Prefetching and Buffering for Interactive Streaming of
`
`MPEG Videos,” published by Susanne Boll et al. in April 2000 (Ex. 1008),
`
`describes a method for pre-buffering streaming MPEG video data for continuous
`
`playback to the user. In Boll, the data is divided into discrete data elements, which
`
`the client buffer requests according to specific identifiers. Boll describes a client
`
`system that maintains a full buffer through repeated requests to the server, to ensure
`
`
`
`10
`
`PAGE 12 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`continuous presentation.
`
`34.
`
`“The Burstware Family of Protocols” (Ex. 1009), an article that I
`
`authored in January 1996, also discloses a system for transmitting multimedia data
`
`over a network. In the Burstware system, the server sends specified data elements to
`
`the client buffer through faster-than-real-time (i.e. faster than the playback rate)
`
`transmission channels.
`
`IV. Discussion of the ’141 Patent
`
`A. Overview
`
`35.
`
`The ’141 patent is directed to methods and systems for buffering
`
`streaming media data over the Internet. Ex. 1001 at 1:30-33.
`
`36.
`
`The ’141 patent admits that sending audio and video files via a network
`
`was known in the art. Id. at 4:1-2. The ’141 patent also admits that it was known
`
`for media data stored in a server to be sent over networks to a client buffer to assure
`
`a continuous stream of video. Id. at 2:31-63. The ’141 patent further admits that it
`
`was known to use a pre-buffering technique so that the video can be played with a
`
`minimum of dropouts, and that it was known to transmit video at the rate it is to be
`
`played back on the associated media player. Id. Indeed, the “invention presumes the
`
`existence of a data communications transport mechanism, such as the TCP protocol,
`
`for the reliable delivery of data in an ordered sequence from the source of the media
`
`data to the server, or from the server to the media player software of the user
`
`
`
`11
`
`PAGE 13 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`computer. Thus, the delivery of data in the proper sequence is outside the scope of
`
`this invention.” Id. at 5:5-11. Finally, the patent notes the existence of “two types
`
`of encoding schemes …‘Variable Bit Rate’—VBR, and ‘Constant Bit Rate’—CBR
`
`… [where] [t]he standard encoding scheme used for streaming media is CBR ….”
`
`Id. at 5:22-35.
`
`B. Claim Terms of the ’141 Patent
`
`37.
`
`I understand in an Inter Partes Review (“IPR”), a claim receives the
`
`“broadest reasonable construction in light of the specification of the patent in which
`
`it appears.” 37 C.F.R. § 42.100(b). For purposes of the present IPR only, the claim
`
`terms of the ’141 patent are presumed to take on their ordinary and customary
`
`meaning that the term would have to one of ordinary skill in the art. As part of my
`
`analysis of prior art, I was asked to consider the PTAB’s prior constructions
`
`presented in section VII of the petition. My opinions below do not change
`
`depending on whether these constructions, or the ordinary and customary meaning,
`
`are applied.
`
`VI.
`
`The Prior Art References
`
`38.
`
`I have reviewed the prior art references in the Petition, including U.S.
`
`Patent No. 5,822,524 to Chen et al. (“Chen”), U.S. Patent No. 6,389,473 to Carmel
`
`et al. (“Carmel”), Willebeek-LeMair, et al., “Bamba – Audio and Video Streaming
`
`Over the Internet,” March 1998 (“Willebeek) and International Standard ISO/IEC
`
`
`
`12
`
`PAGE 14 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`11172 (Exs. 1020-1022) (“ISO-11172”). I have been asked to assume that these
`
`references qualify as prior art to the Challenged Claims.
`
`39. Based on my review of the Chen reference, it is my opinion that each of
`
`the limitations recited in claims 1-2, 4-7, 9-11, 13-16, 18-20, 23-24, and 26-28 are
`
`disclosed by Chen. For example, I have reviewed the description of Chen in the
`
`accompanying Petition and I agree with it.
`
`40. One of skill in the art understands that TCP is – and was in September
`
`2000 – a known internet protocol, and would understand that Chen’s disclosure of a
`
`network that implements TCP protocol would include the internet.
`
`41. One of skill in the art would have understood that Chen’s disclosure of
`
`monitoring packet buffer (31, 33) to control requests for sequential data packets that
`
`make up a multimedia file would continue until all packets for a given multimedia
`
`file had been provided to the client.
`
`42. Chen discloses two processes for keeping track of the last packet
`
`transmitted. In a first process, interruptions in transmission are detected by
`
`assessing whether any packets have been lost. Ex. 1002 at 7:24-32. In a second
`
`process, the server paces transmission in the Normal mode such that the client agent
`
`is not required to send periodic feedback to the server control. Id. at 6:32-39. In this
`
`mode, Chen’s server necessarily tracks the last element sent so as to be able to send
`
`the next sequential element without client feedback.
`
`
`
`13
`
`PAGE 15 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`43. One of skill in the art at the time the application for the ’141 patent was
`
`filed would have understood the disclosure of a server (as in Chen or Carmel) to
`
`include a data storage device, memory for storing executable routines and a working
`
`memory area for routines executing on the server, a central processing unit for
`
`executing the instructions, an operating system, and at least one connection to a
`
`communications medium (a network) via a set of communication protocols. In
`
`2000, these were known and necessary components of a server. For example,
`
`Dawna Dwire, Client/Server Computing (McGraw-Hill, Inc. 1993), Ex. 1015, at 31-
`
`32 shows that a POSITA would have understood such a server to include these
`
`components. It describes that a server was known to have storage, memory, one or
`
`more processors, an operating system, and networking software. It also discloses the
`
`use of applications that would be known by one of skill in the art to be stored in
`
`executable routines and executed in working memory. Id.
`
`44.
`
`Similarly, a POSITA would have understood the disclosure of a server
`
`in Chen or Carmel that executes instructions to include a non-transitory machine-
`
`readable medium with a recorded computer program thereon. A POSITA would
`
`have understood that the various instructions executed on these server would be
`
`recorded as a computer program on some non-transitory machine-readable medium.
`
`Id. A POSITA would also understand that multiple servers can act together to
`
`function as a single server.
`
`
`
`14
`
`PAGE 16 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`45. A POSITA would have understood Chen’s disclosure of a multimedia
`
`application on client machine 20 that executes instructions to include a non-
`
`transitory machine-readable medium with a recorded computer program thereon. A
`
`POSITA also would have understood that Carmel’s disclosure of clients 30 that
`
`execute instructions to include a non-transitory machine-readable medium with a
`
`recorded computer program thereon. A POSITA would have understood that the
`
`various instructions executed by the client machines would be recorded as a
`
`computer program on some non-transitory machine-readable medium.
`
`46. Chen discloses a client-side buffer which operates without reference to
`
`pointers in a server-side buffer. Rather, Chen maintains a record of the multimedia
`
`data packets on the client-side, and the server responds to user requests for media
`
`data elements identified by a serial identifier.
`
`47. Based on my review of the Chen and Willebeek references, it is my
`
`opinion that each of the limitations recited in claims 8, 17 and 21 are disclosed by a
`
`combination of these references. For example, I have reviewed the description of
`
`this combination in the accompanying Petition and I agree with it.
`
`48.
`
`It would have been obvious to combine Willebeek’s teachings of a live
`
`capture station and circular buffer queue with Chen so that Chen could provide live
`
`video as well as pre-stored video. Doing so would be nothing more than combining
`
`the teachings in a known way to achieve predictable results—it is the use of a known
`
`
`
`15
`
`PAGE 17 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`technique (Willebeek’s capture station, and circular buffer queue) to improve similar
`
`known devices (Chen’s system for serving streaming video).
`
`49.
`
`It would have been obvious to configure the combined system so that, if
`
`one of Chen’s user’s requested live video, a new copy of a circular buffer queue
`
`such as the one produced by Willebeek’s capture station and server would become
`
`Chen’s server buffer. Since the circular buffer queue contains a few seconds of
`
`video, Chen would then be able to rush the first packets to the user. After that, the
`
`packets would be sent at the normal (playback rate), as they are received—packets
`
`would be received at the server as they are generated by the capture station from the
`
`live feed and, barring interruptions, would be passed to the client packet buffer 31 at
`
`the playback rate. Chen, Ex. 1002 at 6:33-39. The teachings of the two systems are
`
`compatible because they both utilize packetized data.
`
`50. The figure below shows how the modified system conceptually would
`
`be arranged, where a copy of the Willebeek circular buffer is made the server buffer
`
`in the Chen system upon each new user request:
`
`
`
`16
`
`PAGE 18 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`
`
`51. The teachings taken from Willebeek include the use of a capture station
`
`and circular buffer to generate a new instance of the server buffer for each new
`
`user—other aspects of Chen could remain the same (e.g., the data would still be
`
`encoded according to Chen’s teachings).
`
`52. Chen’s use of timing information to modify delivery for “frame-level
`
`pacing” (i.e., accounting for differences in frame size) is merely a preferred
`
`embodiment. In this embodiment, in addition to the other features, the system also
`
`paces video based on frame timing—it is not a requisite or essential part of Chen’s
`
`system. See Ex. 1002 at 8:16-32 (referencing “preferred frame-level pacing”). In
`
`Chen’s claims, the use of frame level pacing appears in dependent claims 6, and 8,
`
`indicating the feature is not present in all embodiments.
`
`53. Chen explicitly discloses that extracting frame timing can be done “on
`
`the fly (during multimedia file transmission).” It notes that the frame time can be
`
`“changed at runtime (during transmission) if monitoring by the client agent (30)
`
`
`
`17
`
`PAGE 19 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`detects a different playback frame rate.” Nothing about the frame-level pacing
`
`requires prior access to the media file—extraction of the timing information can be
`
`performed on the packets during transmission. If it can be done during transmission
`
`(i.e., after the user has requested a file and while they are viewing it), it could in the
`
`same way be done during transmission of the live packets. A POSITA would have
`
`had no issue with incorporating packetized data from a live feed into the Chen
`
`system.
`
`54. Thus, it would have been obvious to take Willibeek’s teachings to
`
`utilize a capture station to receive video, encode it into Chen-compliant packets, and
`
`place them in a reflector with a circular buffer queue. Upon connection, a copy of
`
`the queue would be made for the user, and that queue would be used as Chen’s
`
`server buffer in all other respects—data would initially be rushed to the user, and
`
`then subsequently provided according to Chen’s protocol. A POSITA would have
`
`been motivated to combine the teachings in this manner because, as Willebeek
`
`describes “Most recently, streamed audio and video have become available from
`
`both stored and live sources on the Web.” Modifying Chen in this manner would
`
`allow the system to provide access to this recently available data source.
`
`55. Based on my review of the Carmel reference, it is my opinion that each
`
`of the limitations recited in claims 10-11, 13-21 and 23 are disclosed by Carmel.
`
`
`
`18
`
`PAGE 20 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`For example, I have reviewed the description of Carmel in the accompanying
`
`Petition and I agree with it.
`
`56. Based on my review of the Carmel and Willebeek references, it is my
`
`opinion that each of the limitations recited in claims 1-2, 4-9, 15, 24, and 26-27 are
`
`disclosed by a combination of these references. For example, I have reviewed the
`
`description of this combination in the accompanying Petition and I agree with it.
`
`57.
`
`It would have been obvious to use Willebeek’s teaching of preloading
`
`and storing data at the client with the system disclosed in Carmel to provide the
`
`benefit of ensuring continuous playback even when network congestion delayed
`
`packet transmission. The systems disclosed in Carmel and Willebeek were known
`
`within the same field (streaming media) and both were directed toward streaming
`
`media from live sources. Ex. 1004 at 277; Ex. 1003 at 6:57-60. To combine the
`
`teachings of Willebeek with Carmel would have involved nothing more than use of a
`
`known technique (Willebeek’s client storage) to improve a similar known device
`
`(the Carmel server-client streaming architecture) in the same way. The application
`
`of Willebeek’s teaching of client storage would have predictable results—ensuring
`
`continuous playback while still allowing for high quality content to be provided,
`
`even when insufficient bandwidth exists due to network congestion. Ex. 1004 at
`
`270.
`
`
`
`58. Carmel discloses a system that operates without reference to pointers in
`
`19
`
`PAGE 21 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`a server-side buffer. Ex. 1003 at 7:50-58. Rather, the client in Carmel uses the
`
`indices associated with the media frames to maintain a record of the slices on the
`
`client-side, and the server responds to requests for slices identified by index.
`
`59. The use of TCP protocol for data communication on a network requires
`
`that requests for data specify the sequence number of the desired data packet. This
`
`is accomplished by having the client receiver return a “window” of acceptable
`
`packet sequence numbers to the server in order to specify which data packets are to
`
`be sent by the server. Thus, under normal conditions the specification of the
`
`window serves as a request to transmit packets up to a particular sequence number.
`
`60.
`
`I understand that the meaning of a term in a reference can be explained
`
`using a secondary reference. As shown in “Transmission Control Protocol
`
`[(“TCP”)] – DARPA Internet Program Protocol Specification,” dated September
`
`1981, (Ex. 1014), when using TCP, the receiver governs data flow by returning a
`
`window of acceptable packet sequence numbers that indicates the packets (“octets”)
`
`the server should transmit. See, Ex. 1014 at p. 24 (“A fundamental notion in the
`
`design is that every octet of data sent over a TCP connection has a sequence number.
`
`Since every octet is sequenced, each of them can be acknowledged.”); p. 4 (“TCP
`
`provides a means for the receiver to govern the amount of data sent by the sender.
`
`This is achieved by returning a ‘window’ with every ACK indicating a range of
`
`acceptable sequence numbers beyond the last segment successfully received. The
`
`
`
`20
`
`PAGE 22 of 26
`
`WEBPOWER, INC.'S EXHIBIT 1005
`
`
`
`window indicates an allowed number of
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
