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
`
`PETITION FOR INTER PARTES REVIEW
`
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. § 42.100 ET SEQ.
`
`CASE IPR 2016-01238
`Patent 8,122,141
`
`

`
`EXHIBIT LIST
`Exhibit Number Description
`1001
`U.S. Patent No. 8,122,141 to Price (“the ’141 patent”)
`U.S. Patent No. 5,822,524 to Chen et al. (“Chen”)
`1002
`
`1003
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1013
`
`1014
`
`U.S. Patent No. 6,389,473 to Carmel et al. (Carmel”)
`
`Willebeek-LeMair, et al., “Bamba – Audio and Video
`Streaming Over the Internet,” IBM Journal of Research and
`Development¸ Vol. 42, No. 2, March 1998 (“Willebeek”)
`
`Declaration of Dr. Nathaniel Polish in Support of Inter
`Partes Review of U.S. Patent 8,122,141 (“Polish Decl.”)
`
`F. Kozamernik, “Webcasting - The Broadcasters’
`Perspective.” EBU Technical Review, March 2000
`(“Kozamernik”)
`
`U.S. Patent No. 6,625,656 to Goldhor (“Goldhor”)
`
`S. Boll et al., “Intelligent Prefetching and Buffering for
`Interactive Streaming of MPEG Videos” (“Boll”)
`
`N. Polish, “The Burstware Family of Protocols”
`
`Hollfelder et al., “Transparent Integration of Continuous
`Media Support into a Multimedia DBMS” (“Hollfelder”)
`
`Prosecution history for U.S. Patent No. 8,122,141
`
`Curriculum Vitae of Dr. Nathaniel Polish
`
`Petitioner’s Waiver of Service
`
`Transmission Control Protocol – DARPA Internet Program
`Protocol Specification
`
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`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`1020
`
`1021
`
`Dawna Dwire, Client/Server Computing (McGraw-Hill, Inc.
`1993)
`
`Declaration of Jonathan Falkler
`
`Z. Shae, X. Wang, and S.P. Wood, “Large Scale
`Experiments on Low Bit Rate Multimedia Broadcast,
`IS&T/SPIE Conference on Visual Communications and
`Image Processing ’99, SPIE Vol. 3653, Jan. 1999 (“Shae”).
`International Standard ISO/IEC 11172-1, “Information
`Technology – Coding of moving pictures and associated
`audio for digital storage media at up to about 1,5 Mbit/s –
`Part 1: Systems,” August 1993 (“ISO-11172-1”)
`International Standard ISO/IEC 11172-2, “Information
`Technology – Coding of moving pictures and associated
`audio for digital storage media at up to about 1,5 Mbit/s –
`Part 2: Video,” August 1993 (“ISO-11172-2”)
`International Standard ISO/IEC 11172-3, “Information
`Technology – Coding of moving pictures and associated
`audio for digital storage media at up to about 1,5 Mbit/s –
`Part 3: Audio,” August 1993 (“ISO-11172-3”)
`April 6, 2016 Deposition of Dr. Patel, IPR2015-01036
`
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`TABLE OF CONTENTS
`INTRODUCTION..............................................................................................1
`I.
`II. MANDATORY NOTICES................................................................................1
`A. Counsel and Service Information...............................................................1
`B. Real Parties-in-Interest ...............................................................................2
`C. Related Matters...........................................................................................2
`III. CERTIFICATION OF GROUNDS FOR STANDING.....................................3
`IV. THRESHOLD REQUIREMENT FOR INTER PARTES REVIEW..................4
`V. STATEMENT OF PRECISE RELIEF REQUESTED......................................4
`VI. OVERVIEW OF THE ’141 PATENT AND PRIOR ART ...............................5
`A. Background of the Art................................................................................5
`B. The ’141 Patent...........................................................................................6
`C. The Prior Art...............................................................................................7
`1. Chen.......................................................................................................7
`2. Carmel ...................................................................................................8
`3. Willebeek...............................................................................................9
`4. ISO-11172 .............................................................................................9
`VII. CLAIM CONSTRUCTION.............................................................................10
`A. Claims 1, 10, 19 and 24 – Preambles .......................................................10
`B. Prior Constructions...................................................................................11
`VIII. LEVEL OF ORDINARY SKILL IN THE ART ...........................................11
`A. Ground 1: Claims 1-2, 4-7, 9-11, 13-16, 18-20, 23-24, and 26-28
`are Anticipated by Chen...........................................................................11
`1. Claims 1, 10 and 24.............................................................................12
`2. Claim 19 ..............................................................................................41
`3. Claims 2 and 11...................................................................................42
`4. Claims 4, 13, 23 and 26.......................................................................43
`5. Claims 5 and 14...................................................................................43
`6. Claims 6 and 15...................................................................................43
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`7. Claims 7, 16 and 27.............................................................................44
`8. Claims 9, 18 and 20.............................................................................44
`9. Claim 28 ..............................................................................................45
`B. Ground 2: Claims 8, 17 and 21 are Obvious over Chen in view of
`Willebeek..................................................................................................45
`C. Ground 3: Claims 1-2, 4-9, 15, 24, and 26-27 are Obvious over
`Carmel in view of Willebeek ...................................................................50
`1. Claims 1 and 24...................................................................................50
`2. Claim 2 ................................................................................................62
`3. Claims 4 and 26...................................................................................62
`4. Claim 5 ................................................................................................62
`1. Claim 6 ................................................................................................62
`2. Claims 7 and 27...................................................................................63
`3. Claim 8 ................................................................................................63
`4. Claim 9 ................................................................................................64
`5. Claim 28 ..............................................................................................64
`D. Ground 4: Claims 10-11, 13-21 and 23 are Anticipated by Carmel ........65
`1. Claims 10 and 19.................................................................................65
`2. Claims 11, 13-18, 20-21 and 23 ..........................................................66
`E. Ground 5: Claims 3, 12, 22 and 25 are obvious over Chen in view
`ISO-11172 ................................................................................................67
`F. Ground 6: Claims 3 and 25 are obvious over Carmel in view of
`Willebeek and ISO-11172........................................................................68
`G. Ground 7: Claims 12 and 22 obvious over Carmel in view of ISO-
`11172........................................................................................................68
`
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`I.
`
`INTRODUCTION
`
`WebPower, Inc. (“Petitioner”) petitions for Inter Partes Review (“IPR”)
`
`under 35 U.S.C. §§ 311-319 and 37 C.F.R. § 42 claims 1-28 (“the Challenged
`
`Claims”) of the ’141 patent, which is believed to be assigned to WAG Acquisition,
`
`LLC (“Patent Owner”).
`
`II. MANDATORY NOTICES
`
`A.
`
`Counsel and Service Information
`
`Counsel:
`
`Frank M. Gasparo (Reg. No. 44,700) (Lead)
`
`Jonathan L. Falkler (Reg. No. 62,115) (Backup)
`
`Address:
`
`Venable LLP
`
`1270 Avenue of the Americas, 24th Floor
`
`New York, NY 10020
`
`Phone and Fax:
`
`P: (212) 370-6273, F: (212) 307-5598
`
`Please send all correspondence to the lead counsel at the address shown above.
`
`Petitioners consent to service by email at: FMGasparo@Venable.com and
`
`JLFalker@Venable.com. A Power of Attorney is filed concurrently herewith
`
`under 37 C.F.R. § 42.10(b). The Office is authorized to charge the fee set forth in
`
`37 C.F.R. § 42.15(a) to Deposit Account No. 22-0261, and any other fees that
`
`might be due in connection with this Petition.
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`B.
`
`Real Parties-in-Interest
`
`The real party-in-interest for this Petition is WebPower, Inc.
`
`C.
`
`Related Matters
`
`U.S. Patent No. 8,122,141 (the “’141 patent”) is asserted in nine pending
`
`litigations: WAG Acquisition, LLC v. Sobonito Investments, Ltd. et al., Case No.
`
`2:14-cv-1661-ES-MAH (D.N.J.), WAG Acquisition, LLC v. Multi Media, LLC et
`
`al., Case No. 2:14-cv-2340-ES-MAH (D.N.J.), WAG Acquisition, LLC v. Data
`
`Conversions, Inc. et al., Case No. 2:14-cv-2345-ES-MAH (D.N.J.), WAG
`
`Acquisition, LLC v. Flying Crocodile, Inc. et al., Case No. 2:14-cv-2674-ES-MAH
`
`(D.N.J.), WAG Acquisition, LLC v. Gattyàn Group S.à r.l. et al., Case No. 2:14-cv-
`
`2832-ES-MAH (D.N.J.), WAG Acquisition, LLC v. FriendFinder Networks Inc. et
`
`al., Case No. 2:14-cv-3456-ES-MAH (D.N.J.), WAG Acquisition, LLC v.
`
`Vubeology, Inc. et al., Case No. 2:14-cv-4531-ES-MAH (D.N.J.), WAG
`
`Acquisition, LLC v. Gamelink Int’l Ltd. et al., Case No. 2:15-cv-3416-ES-MAH
`
`(D.N.J); WAG Acquisition LLC v. WebPower, Inc. et al., Case No. 2:15-cv-03581-
`
`ES-MAH (D.N.J). One other litigation, WAG Acquisition, LLC v. MFCXY, Inc. et
`
`al., Case No. 2:14-cv-3196-ES-MAH (D.N.J.), has been dismissed.
`
`The ’141 patent has a pending IPR proceeding, IPR2015-01037, which was
`
`filed by another party and was not instituted, and which has a pending request for
`
`reconsideration. U.S. Patent No. 8,327,011 (the “’011 patent”) a continuation of
`
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`the ’141 patent, also has a pending IPR proceeding, IPR2015-01033, which was
`
`not instituted and has a pending request for reconsideration.
`
`Two other related patents (also involved in the above-referenced litigations)
`
`have pending IPR proceedings filed by other parties: U.S Patent No. 8,185,611 (the
`
`“’611 patent”) has a pending IPR proceeding, IPR2015-01035, which was filed by
`
`another party and was not instituted, and has a pending request for reconsideration;
`
`and U.S. Patent No. 8,364,839 (the “’839 patent”), a continuation of the ’611
`
`patent, has a pending IPR proceeding, IPR2015-01036, which was filed by another
`
`party and was instituted on claims 1, 3-4, 6-8, 10-11, 13-15, 17-28, 20-21.
`
`Petitioner filed petitions for IPR of the related ’011 and ‘611 patents on June
`
`6, 2016 (IPR2016-01161 and IPR2016-01162, respectively). Contemporaneously
`
`with this filing, Petitioner is also filing a petition for IPR of the ’839 patent.
`
`III. CERTIFICATION OF GROUNDS FOR STANDING
`
`Petitioners hereby certify that the patent for which review is sought is
`
`available for IPR and that petitioners are not barred or estopped from requesting an
`
`IPR challenging the patent claims on the Grounds identified in the petition. In the
`
`co-pending litigation, Petitioner’s waiver of service was filed on June 22, 2015.
`
`Ex. 1013. “[I]n the situation where the petitioner waives service of a summons, the
`
`one year time period [under 35 U.S.C. § 315(b)] begins on the date on which such
`
`a waiver is filed.” Motorola Mobility LLC v. Arnouse, IPR2013-00010, Paper 20
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`at 6 (PTAB Jan. 30, 2013) (informative decision); see also Brinkmann Corp. v.
`
`A&J Mfg., LLC, Case No. IPR2015-00056, Paper 10 at 6-7 (PTAB Mar. 23, 2015)
`
`(citing additional cases).
`
`IV. THRESHOLD REQUIREMENT FOR INTER PARTES REVIEW
`
`As further detailed below, claims 1-28 are invalid under 35 U.S.C. §§ 102
`
`and 103. Thus, “there is a reasonable likelihood that the petitioner would prevail
`
`with respect to at least 1 of the claims challenged in the petition.” 35 U.S.C. §
`
`314(a).
`
`V.
`
`STATEMENT OF PRECISE RELIEF REQUESTED
`
`Petitioner respectfully requests cancellation of claims 1-28 of the ’141 patent
`
`(Ex. 1001) based on the following Grounds of Unpatentability, set forth in detail in
`
`the following sections:
`
`Ground 1: Claims 1-2, 4-7, 9-11, 13-16, 18-20, 23-24, and 26-28 are
`
`unpatentable under 35 U.S.C. § 102(b) as anticipated by U.S. Patent No. 5,822,524
`
`to Chen et al. (“Chen”) (Ex. 1002).
`
`Ground 2: Claims 8, 17, 21 are unpatentable under 35 U.S.C. § 103(a) as
`
`obvious over Chen in view of “Bamba – Audio and Video Streaming Over the
`
`Internet,” published by Willebeek-LeMair, et al. (“Willebeek”) (Ex. 1004)
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`Ground 3: Claims 1-2, 4-9, 24 and 26-28 are unpatentable under 35 U.S.C. §
`
`103(a) as obvious over U.S. Patent No. 6,389,473 to Carmel et al. (“Carmel”) (Ex.
`
`1003) in view of Willebeek.
`
`Ground 4: Claims 10-11, 13-21 and 23 are unpatentable under 35 U.S.C. §
`
`102(b) as anticipated by Carmel.
`
`Ground 5: Claims 3, 12, 22 and 25 are unpatentable under 35 U.S.C. §
`
`103(a) as obvious over Chen in view of the International Standard ISO/IEC 11172
`
`(Exs. 1018-20) (“ISO-11172”).
`
`Ground 6: Claims 3 and 25 are unpatentable under 35 U.S.C. § 103(a) as
`
`obvious over Carmel in view of Willebeek and ISO-11172.
`
`Ground 7: Claims 12 and 22 are unpatentable under 35 U.S.C. § 103(a) as
`
`obvious over Carmel in view of ISO-11172.
`
`VI. OVERVIEW OF THE ’141 PATENT AND PRIOR ART
`
`A.
`
`Background of the Art
`
`The ’141 patent, which describes a streaming media delivery system, claims
`
`priority to a provisional application filed September 12, 2000. By 2000, digital
`
`streaming media was a mature field—systems for transmission of digital audio and
`
`video had been developed as far back as the early 1990s. Polish Decl., Ex. 1005 ¶¶
`
`24-34; see also Kozamernik, Ex. 1006 at 1-2. As the Internet developed, its
`
`interactive nature meant that streaming technology became a preferred method for
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`delivering audio and video. Polish Decl., Ex. 1005 ¶¶ 24-26. One challenge,
`
`however, was that available bandwidth for streaming was variable and
`
`unpredictable. Id. By 2000, it was commonly recognized that buffering—a
`
`process of collecting streaming packets before playing them out—was a useful way
`
`to smooth playback for streaming media, and to compensate for periodic delays in
`
`delivery. Id. at ¶¶ 26-34.
`
`B.
`
`The ’141 Patent
`
`The ’141 patent is directed to systems and methods for buffering streaming
`
`media data over the Internet. ’141 patent, Ex. 1001 at 1:30-33. The ’141 patent
`
`admits that sending audio and video files via a network was known in the art (Ex.
`
`1001 at 4:1-2), as was using a client buffer to assure a continuous stream of audio
`
`and video. Id. at 2:31-63. It further admits that it was known to use a pre-
`
`buffering technique to minimize dropouts in audio and video, and that it was
`
`known to transmit content at the rate it is to be played back on the associated
`
`media player. Id.
`
`This 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
`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 describes “two types of encoding schemes ...
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`‘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.
`
`Against this backdrop of well-known techniques, the ’141 patent asserts that
`
`there was a need for improved systems and methods to “afford immediate and
`
`uninterrupted listening/viewing of streaming media by the user.” Id. at 4:33-35.
`
`According to the ’141 patent, these objectives are addressed by transmitting data
`
`from the server “more rapidly than it is played out by the user system under
`
`conditions wherein the user’s computer buffer is not full,” at “a rate faster than the
`
`playback rate.” Id. at 9:51-62. In this way, the ’141 patent claims that the client’s
`
`buffer will always be full and ready for uninterrupted playback to the user. Id.
`
`This, however, was well known in the art, as described below.
`
`C.
`
`The Prior Art
`
`1.
`
`Chen
`
`Chen issued on October 13, 1998, and is prior art under at least 35 U.S.C. §
`
`102(b). It was not cited during original prosecution.
`
`Chen discloses streaming multimedia using a client/server buffer system
`
`wherein a “Water Mark” model is used for requesting and maintaining data packets
`
`in packet buffer (33). Ex. 1002 at 6:16-54. When the amount of data falls below
`
`the low mark, Chen discloses transmitting data in “Rush” mode. Id. at 6:42-47. In
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`“Rush” mode, data is transmitted as fast as possible to maintain enough data in the
`
`buffer for playback. Id. at 4:33-44; Claims 18, 29, Fig. 6.
`
`Chen also describes the server assigning packet sequence numbers (serial
`
`identifiers) to the data packets making up the streaming media. Ex. 1002 at 6:55-
`
`7:2; 9:7-30. The client controller in Chen sends requests for data using command
`
`packets (5:59-67), and 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. Just like the ’141 patent, Chen
`
`uses TCP for control messages. Id. at 5:39-44.
`
`2.
`
`Carmel
`
`Carmel was filed on March 24, 1999 and issued on May 14, 2002. It is prior
`
`art under at least 35 U.S.C. § 102(a) and (e). It was not cited during original
`
`prosecution.
`
`Carmel discloses a method for real-time media streaming from a server to a
`
`plurality of client computers over the Internet. Ex. 1003 at 2:1-21. Carmel
`
`discloses dividing the media data into slices, each having a unique index (id. at Fig.
`
`3A, 7:18-35) and allowing the user to select the starting point of the media using a
`
`slider, which sends requests to the server to provide the associated media slices.
`
`Id. at 8:17-31; 10:42-54; Fig 3C.
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`3. Willebeek
`
`Willebeek, published in 1998, discloses a method of displaying streamed
`
`digital video data, including live video, on a client computer using buffers as the
`
`client and server. Ex. 1004 at 269, 277-78, FIG. 6. Willebeek was published in
`
`the IBM Journal of Research and Development, Volume 42 No. 2 in March 1998.
`
`Ex. 1004 at 269. The IBM Journal of Research and Development is a well-known
`
`journal that has been publicly available since at least 1998. Polish Decl, Ex. 1005
`
`at ¶ 61. This paper was cited in at least one other journal, see Ex. 1017 at 805,
`
`evidencing its public availability. Further, its availability online as of August 1999
`
`is evidenced in the “Internet Archive” printouts provided in Ex. 1016, which show
`
`that the IBM journal articles were available online, and subscriptions were
`
`available (a request for an affidavit from an Internet Archive employee confirming
`
`the dates on these websites has been submitted by Petitioner via
`
`http://archive.org/legal/, and can be provided should Patent Owner challenge
`
`publication status of this journal article). Having published in March 1998, it is
`
`prior art under at least 35 U.S.C. § 102(b). Willebeek was not cited during original
`
`prosecution, or in prior IPR proceedings.
`
`4.
`
`ISO-11172
`
`ISO-11172 was published on August 1, 1993 and is therefore prior art under
`
`at least 35 U.S.C. § 102(b). Ex. 1018 at 1. ISO-11172 is the specification of the
`
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`well-known international standard for the encoding and decoding of audio and
`
`video streams, commonly known as MPEG-1. Polish Decl., Ex. 1005 at ¶ 65.
`
`ISO-11172 is, and was in 2000, a well-known document that a person of ordinary
`
`skill in the art at the time of the ’141 patent (“POSITA”) would have been aware
`
`of. Id. It is published as a three part document. (Exs. 1018-20). It was not cited
`
`during original prosecution.
`
`VII. Claim Construction
`
`In an 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).
`
`Petitioner proposes, for purposes of this IPR only, that all claim terms of the ’141
`
`patent take on their ordinary and customary meaning that the terms would have to
`
`one of ordinary skill in the art—no constructions are necessary. Petitioner’s
`
`proposal in this proceeding—which uses a different claim construction standard
`
`than district court—should not be viewed as a concession as to the proper scope of
`
`any claim term in any litigation nor a waiver of any indefiniteness arguments.
`
`A.
`
`Claims 1, 10, 19 and 24 – Preambles
`
`Whether the preamble is limiting or not, Petitioner has specifically identified
`
`where in the prior art the preamble exists as shown further below.
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`B.
`
`Prior Constructions
`
`The district court in the above-mentioned lawsuits has not issued a claim
`
`construction order. In a prior IPR of the ’141 patent, IPR2015-01037, the Board
`
`denied institution (Paper 8) and determined that the following terms do not require
`
`construction:
`
`- “said server responds to user requests for media data elements”
`
`-
`
`“a routine to store and serially identify sequential data elements
`comprising said media content”
`
`IPR2015-01037, Paper 8.
`
`VIII. LEVEL OF ORDINARY SKILL IN THE ART
`
`Petitioner submits that a 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). Ex. 1005 at ¶ 21. A higher level of
`
`education or specific skill might make up for less experience, and vice-versa. Id.
`
`VIII. CLAIM-BY-CLAIM EXPLANATION OF GROUNDS FOR
`UNPATENTABILITY
`
`Claims 1-28 are unpatentable as shown in the detailed explanation below.
`
`A.
`
`Ground 1: Claims 1-2, 4-7, 9-11, 13-16, 18-20, 23-24, and 26-28
`are Anticipated by Chen
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`1.
`
`Claims 1, 10 and 24
`
`Claim 1 recites a method for distributing streaming media comprising a
`
`plurality of sequential media data elements over a data communications medium
`
`such as the Internet (preamble 1a-b). It recites providing a server to receive
`
`requests for media data elements specified by serial identifiers and sending these
`
`elements to the user at a rate more rapid than the playback rate (elements 1c-d). It
`
`also recites a media player that records the identifier of the last data element it
`
`received (elements 1e-f). Finally, it recites transmitting requests to the server
`
`specifying the identifiers of the data elements to maintain a sufficient number of
`
`media data elements or uninterrupted playback (element 1g).
`
`Chen discloses each of these elements. Chen discloses a client machine (20)
`
`within a server-client architecture where media data is delivered from a server to a
`
`client over a network, e.g. Ethernet, or network employing Transmission Control
`
`Protocol (“TCP”) or User Datagram Protocol (“UDP”) (preamble 1a). Ex. 1002 at
`
`3:56-58; 5:3-16; 5:34-44. TCP is a well-known Internet protocol. Polish Decl.,
`
`Ex. 1005 at ¶ 40. Chen also discloses multimedia files that are separated into a
`
`number of sequential digital data packets (preamble 1b). Ex. 1002 at 2:34-42;
`
`3:59-60.
`
`Chen also discloses elements 1c and 1d—a user system requesting elements
`
`corresponding to serial identifiers and sending elements at a rate more rapid than
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`playback. Chen discloses that each data packet contains a packet header (53)
`
`including a unique packet sequence number and frame number that identifies the
`
`packet. Id. at 6:56-7:2. A client controller (36) on client machine (20) sends a
`
`command packet to server (21) to request specific data packets (id. at 5:59-67), and
`
`Chen’s requests are sent using TCP (id. at 5:34-44). When the client buffer is low,
`
`those packets are sent in a “Rush” mode. Id. at 6:40-54. A POSITA would have
`
`known that data packets were requested by individual sequence numbers. Polish
`
`Decl., Ex. 1005 at ¶¶ 59-60. Chen also discloses requests using individual
`
`sequence numbers when requesting retransmission of specific packets determined
`
`to be lost.
`
`Id. at 7:33-45; 10:42-50. In a deposition for IPR2015-01036 of the
`
`related ’839 patent, Patent Owner’s purported expert, Dr. Patel, admitted that lost
`
`packets are requested using individual packet sequence numbers. Ex. 1021 at
`
`86:6-87:7; 91:3-10; 92:3-22.1 Chen discloses such packets being sent “as fast as
`
`possible” which in Chen is the “Rush” mode. Id. at claim 18.
`
`Chen discloses element 1e—a media player on a computer readable medium.
`
`It discloses client machine (20), composed of a computer or terminal, to access and
`
`display multimedia files retrieved from server (21) via multimedia application (4).
`
`Id. at 1:25-31; 4:65-5:8; 5:49-67; 5:17-20; Fig. 1.
`
`1 Dr. Patel also admitted that many elements directly corresponding to ’141 claim
`elements were met by Chen, as indicated in the charts below.
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`Chen discloses element 1f—maintaining a record of the identifier of the last
`
`data element that has been received. Chen discloses a client-side packet buffer (31,
`
`33) that is managed by buffer manager (38) that maintains a record of the data
`
`packets received and stored in the buffer and that client agent (30) maintains a
`
`record of the packet sequence number of the last received packet. Id. at 5:45-59;
`
`7:3-10; 7:24-32; Claim 20. In an additional process, Chen discloses data
`
`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 to be able to send the next sequential
`
`element without client feedback. Polish Decl., Ex. 1005 at ¶ 42.
`
`Chen also discloses element 1g— requesting data elements, specifying the
`
`identifiers of the data elements, as said media player requires in order to maintain a
`
`sufficient number of media data elements in the media player for uninterrupted
`
`playback. Chen sends a command packet to server (21) to request specific data
`
`packets (Ex. 1002 at 5:59-67), where each packet contains a unique identification
`
`provided in a packet header (id. at 6:56-7:2), and also describes identifying and
`
`requesting retransmission of specific packets that were determined to be lost. Id. at
`
`7:33-45; 10:42-50; see also Ex. 1021 at 86:6-87:7; 91:3-10; 92:3-22. Chen
`
`discloses that requests for data packets are made using TCP, which a POSITA
`
`would have understood necessarily identifies the requested packets by a packet
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`identifier. Id. at 5:34-44; Polish Decl., Ex. 1005 at ¶¶ 59-60. Chen further
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`discloses continually requesting sequential data elements to maintain a sufficient
`
`number of data elements in packet buffer (31, 33) to ensure uninterrupted
`
`playback. More specifically, it discloses sending specific requests for data using
`
`command packets (Ex. 1002 at 5:59-67), and three transmission modes for sending
`
`multimedia data to the client: Normal, Rush and Pause. Id. at 6:9-15. Chen
`
`discloses the client agent (30) monitoring the quantity of data packets within
`
`packet buffer (31, 33) using “water marks” that set high and low thresholds for the
`
`buffer. Id. at 6:3-19; 6:25-31. When there is too much data in the packet buffer 33
`
`(i.e., above the “high water mark”), the transmission mode enters the Pause mode.
`
`Id. at 6:40-54. When there is too little data in the packet buffer 33 (i.e., below the
`
`“low water mark”), the transmission mode enters the Rush mode. Id. Otherwise,
`
`the transmission mode is in the Normal mode. Id. at 6:16-39. If a packet is lost,
`
`Chen describes sending retransmission requests as soon as possible to ensure
`
`packets arrive in time for playback. Id. at 7:33-45; 10:42-50.
`
`Chen discloses all elements of claim 1 (all emphases in charts added):
`
`Chen
`“Accordingly, this invention is a method for retrieving
`multimedia files from a server computer to a client computer
`over computer networks.” Chen, 3:56-58.
`
`’141 Patent
`1[a]. A method for
`distributing
`streaming media
`via a data
`communications
`medium such as
`the Internet to at
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`least one user
`system of at least
`one user,
`
`Chen
`
`“FIG. 1 represents schematically the overall system. The
`client machine (20) is the computer upon which a user types
`his commands, for example, a PC (Personal Computer) which
`may have a relatively low end integrated circuit
`microprocessor such as an Intel (TM) 386 processor, although
`any type of PC may be used. The user wishes to retrieve
`multimedia files from the server (21) via data connections
`and over a computer network. The client machine (20) has
`three interacting processes: the client agent (30) which
`interfaces with the network interface (3) and the multimedia
`application (4) in the client machine.... A typical multimedia
`application is the playback of a full-motion video clip. The
`network, for example, may be an Ethernet (bus network
`topology) which may be implemented with coaxial wiring
`and 1000-3000 feet between nodes, or a Token Ring system
`(high speed token that checks in at each node, available from
`IBM).” Chen, 4:65-5:16
`
`“The interactions between the server control (1) and the
`client agent (30) go through the network connecting the two
`machines. The network interface (2) in the server (21) and the
`network interface (3) in the client machine (20) support
`network connectivity…. One possible implementation would
`use a reliable TCP protocol line for the control channel, and a
`fast and mostly reliable UDP protocol for the data channel.”
`Chen, 5:34-44
`
`TCP protocol is a well-known Internet protocol. Polish
`Decl., Ex. 1005 at ¶ 40.
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`Chen
`
`Patel Tr., Ex. 1021 at 56:7-13.
`
`1[b]. the streaming
`media comprising
`a plurality of
`sequential media
`data elements for a
`digitally encoded
`audio or video
`program,
`comprising
`
`“Today’s prevalent computer networks use statistical
`multiplexing for transmission. This process “packetizes,” i.e.,
`divides data into segments so that it can be transmitted within
`and between computers. The data, in packet format, can then
`be transmitted through a series of store-and-forward
`operations, because the packet contains a “header,” which is a
`set of bytes identifying the packet and usually identifying its
`destination, i.e., the identity of the computer to which it
`should be transmitted.” Chen, 2:34-42.
`
`“In the preferred embodiment the server transmits the
`multimedia file in the form of digital data packets.” Chen,
`3:59-60.
`
`“FIG. 3 schematically represents the structure of the packet
`buffer (33). Each data packet contains a packet header (53)
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`Chen
`and the multimedia data (60). The packet header (53) should
`contain at least the following five elements of information
`(54):
`
`Pkt. Seq. No: a unique packet sequence number
`
`Frame No.: the video frame number to which the data in
`the packet belongs
`
`InFrame Seq. No: the sequence number of the packets
`within the same frame, e.g., 1 is for the first packet of a video
`frame, 2 the second, and so on, and 0 is the last packet of the
`frame
`
`Offset: file offset of the first data byte in the packet
`
`Size: the number of data bytes in this packet.” Chen, 6:55-
`7:2.
`
`“The transmission uses digital data packets. In the case of
`video files, the packet headers identify the video frame and
`the sequence number of each packet derived from the frame.”
`Chen, Abstract.
`Patel Tr., Ex. 1021 at 56:14-19.