UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`WEBPOWER, INC.,
`Petitioner,
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`V.
`WAG ACQUISITION, LLC
`Patent Owner.
`_____________
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`Case IPR2016-01238
`Patent 8,122,141 B2
`_____________
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`Record of Oral Hearing
`Held: September 25, 2017
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`Before TREVOR M. JEFFERSON, BRIAN J. McNAMARA, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
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`_____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`WEBPOWER, INC.,
`Petitioner,
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`V.
`WAG ACQUISITION, LLC
`Patent Owner.
`_____________
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`Case IPR2016-01238
`Patent 8,122,141 B2
`_____________
`
`Record of Oral Hearing
`Held: September 25, 2017
`_____________
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`Before TREVOR M. JEFFERSON, BRIAN J. McNAMARA, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
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`Case IPR2016-01238
`Patent 8,122,141 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONERS:
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`FRANK M. GASPARO, ESQ.
`JONATHAN L. FALKLER, ESQ.
`VENABLE, LLP
`Rockefeller Center
`1270 Avenue of the Americas
`New York, New York 10020
`(212) 370-6273
`E-mail: fgasparo@venable.com
`jlfalkler@venable.com
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`ON BEHALF OF THE PATENT OWNER:
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`RONALD ABRAMSON, ESQ.
`ARI J. JAFFESS, ESQ.
`LEWIS, BAACH, KAUFMANN, MIDDLEMISS, PLLC
`The Chrysler Building
`405 Lexington Avenue
`62nd Floor
`New York, New York 10174
`(212) 822-0163
`E-mail: ronald.abramson@lbkmlaw.com
`ari.jaffess@lbkmlaw.com
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`The above-entitled matter came on for hearing on Monday, September
`25, 2017, commencing at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria, Virginia.
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`P R O C E E D I N G S
`JUDGE JEFFERSON: Good afternoon. We're here for WebPower
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`and other Petitioners v. WAG Acquisitions, for Case Nos. IPR2016-01238
`and IPR2016-01239.
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`We maintain, as the Order said, separate transcripts for these cases, so
`we'll have to take a brief intermission at the end of the first one, and I'll ask
`the counsel to make appearances in both. So we'll start now with
`appearances for Petitioner.
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`MR. GASPARO: Good afternoon, Your Honor. Frank Gasparo with
`Venable, counsel for Petitioner WebPower, Inc. and also various joint
`parties.
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`JUDGE JEFFERSON: And for Patent Owner?
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`MR. ABRAMSON: Yes. Ronald Abramson from the firm of Lewis,
`Baach, Kaufmann, Middlemiss, PLLC, for the Patent Owner, WAG
`Acquisition, Inc. And with me is Ari Jaffess from my firm.
`
`JUDGE JEFFERSON: Thank you. With the first case, which is
`IPR2016-01238, each party will have 40 minutes to make and present its
`argument. Petitioner may reserve rebuttal time for its case and let me know
`at the outset. We'll do our best to keep time up here. Make sure that Judge
`Boucher can hear us remotely. Can --
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`JUDGE BOUCHER: Yes, I can hear you fine.
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`JUDGE JEFFERSON: Very good. And obviously with the remote
`Judge, any demonstratives you use or any documents you refer to, you
`should refer to by exhibit number or page number, as appropriate.
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`Counsel for Petitioner can begin when ready for Case 01238.
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`MR. GASPARO: Thank you, Your Honor. And I should also
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`mention I'm joined by my colleague, John Falkler, who may or may not say
`something on behalf of Petitioner.
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`JUDGE JEFFERSON: Understood. Would you like to reserve any
`rebuttal time?
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`MR. GASPARO: I would. I would, Your Honor.
`JUDGE JEFFERSON: Okay. How much?
`MR. GASPARO: It could be as much as 20 minutes, but at least 10
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`minutes.
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`JUDGE JEFFERSON: Okay. I’ll set a warning for you at 20.
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`MR. GASPARO: Great. Thank you.
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`JUDGE JEFFERSON: You may begin when ready.
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` OPENING ARGUMENT
`
`BY MR. GASPARO: So, Your Honors, we're here today on --
`regarding Claims 10 to 23 of what I'll refer to as the 141 Patent. Those are
`the claims that the proceeding was instituted on. We thought it would be
`helpful to sort of summarize what we believe to be uncontested as well as
`contested.
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`First, what we believe to be uncontested is the invalidity of Claims 19
`to 23, as well as the teachings of Carmel, with the exception of two claim
`elements. We believe those claims and the claim elements of the other
`claims are -- those arguments were waived. They were not addressed by the
`Patent Owner in its response.
`
`So the two claim limitations that we will be talking about today are
`found in Claim 10 and Claim 15. Specifically, the limitation in Claim 10 is
`whether Carmel teaches "send media data elements to the user system
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`responsive to said requests at a rate more rapid than the rate at which said
`streaming media is played back by a user."
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`And then in Claim 15, whether Carmel teaches the limitation "said
`server does not maintain a pointer into a buffer established within said server
`for each said user."
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`On Slide No. 3 we have reproduced Claim 10. As can be seen, it's a
`server claim, and the limitation that we will be talking about today is found
`at the end of the claim, and we emphasize the language that I recently just
`read into the record.
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`The next slide, Slide No. 4, we set forth two figures from Carmel.
`The one on the left-hand side is the client server architecture of Carmel, and
`the illustration on the right is what's referred to as the structure of a data
`stream. And as can be seen, it's broken into slices, and each slice has a time
`interval associated with it.
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`So on Slide No. 5, just to jump into things, we set forth one instance
`where Carmel teaches the limitation "send media data elements to the user
`system responsive to said request at a rate more rapid than the rate at which
`said streaming media is played back by a user."
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`And you'll see there, there is a -- that is some text from Carmel, and
`we've emphasized what we believe to be some important language, and I'd
`like to read that text.
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`"In some preferred embodiments of the invention -- of the present
`invention," I'm sorry, "the transmitting computer and the clients monitor the
`uploading and downloading of data to and from the server, respectfully, in
`order to determine the amount of time required to convey each slice and to
`verify that the slices are conveyed at a sufficient rate. When the data stream
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`comprises multimedia data, the data rates should be generally equal to or
`faster than the rate at which the data are generated at the transmitting
`computer."
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`Following up on that slide, on Slide No. 6, we --
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`JUDGE BOUCHER: Actually, could we just stop at Slide No. 5 for
`just a moment?
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`MR. GASPARO: Yes, sir.
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`JUDGE BOUCHER: My understanding is -- so am I correct that
`there's no dispute between the parties as to what "rate" means when used in
`the claim; is that right?
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`MR. GASPARO: That's my understanding, yes. We are both
`proposing the plain and ordinary meaning under the broadest reasonable
`construction, correct.
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`JUDGE BOUCHER: Okay. But the parties seem to disagree as to
`what "data rate" means in this passage that you've reproduced on Claim 5
`from -- on Slide No. 5 from Carmel. Could you address that disagreement
`and how that's being understood?
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`MR. GASPARO: Yes. I'd like to start with how we believe this
`passage should be interpreted.
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`So the first -- there's two sentences. The first sentence refers to
`determining "the amount of time required to convey each slice and to verify
`that the slices are conveyed at a sufficient rate." And the next sentence
`continues "when the data stream comprises multimedia data, the data rate
`should be generally equal to or faster than the rate at which the data are
`generated at the transmitting computer."
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`So we read that, that we -- our belief is that "the data rate" in the
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`second sentence is referring back to the amount of time it takes to convey a
`slice and to confirm that it's a sufficient rate.
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`Our understanding of the Patent Owner's position is that "the data
`rate" refers to the bandwidth of the respective channel that the data is
`traveling on.
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`Did that answer your question, Your Honor?
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`JUDGE BOUCHER: I guess. It doesn't really clarify things for me.
`Maybe my questions are better posed to the Patent Owner. Why don't you
`continue for now, please?
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`MR. GASPARO: Okay. So following up on that slide, Carmel
`teaches when its system will send multimedia data faster than the playback
`rate, and specifically it will send data faster than the playback rate to account
`for lag. And here is a teaching from Carmel that sort of sets up what we'll
`explain next are the two ways that Carmel teaches to catch up from lag.
`
`And here Carmel reads, "Computer monitors the time codes as file is
`transmitted and clients similarly monitor the time codes as the file is
`received, in order to ensure that the transmission or reception is keeping up
`with the input of the data to the computer. In the event that a lag is detected,
`steps are taken to increase the data transmission or reception rate as
`described further herein below." And you'll see on the next two slides we set
`forth what those two ways are for -- once lag is detected.
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`On Slide No. 7, the first way taught by Carmel to address lag and
`increase the data rate is to increase the overall download rate by opening
`additional download links. And Carmel teaches us that, "Further preferably,
`the client compares the times stamped in the data stream to a local real-time
`clock and, if it determines that there is a significant lag in the time codes
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`relative to the real-time clock, opens additional links with server in order to
`increase the overall data rate."
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`On the next slide we put together a demonstrative to help explain what
`Carmel teaches. What we're illustrating here on the left of Slide No. 8 is that
`you have one second of video that's taking two seconds to get to the client,
`so there's a lag. It's getting there too slow.
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`So what Carmel teaches us is that you open up additional links, and by
`doing so -- for instance, here we opened up three additional links. By doing
`so, the client now will get three seconds of video in two seconds and
`therefore the result is that the overall data rate has been increased.
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`JUDGE BOUCHER: But the data rate for each of those links would
`still be below the playback rate; is that right?
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`MR. GASPARO: That's correct, Your Honor. And the second
`embodiment in Carmel addresses increasing the rate on each channel, on
`each link.
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`JUDGE BOUCHER: Okay. Is it true that Carmel -- I mean, this
`diagram you have on the left-hand side of it, that's an accurate depiction of
`what Carmel has? Carmel does not limit its embodiments to instances where
`there are multiple links? Carmel includes embodiments where there's only a
`single link?
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`MR. GASPARO: That's correct, Your Honor.
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`JUDGE BOUCHER: Okay. Thank you.
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`MR. GASPARO: And I just -- before I get off this slide, we believe
`that, under the broadest reasonable construction, the claim limitation that's
`shown at the top of the slide is broad enough to cover increasing the
`playback rate -- sorry, increasing the data rate beyond the playback rate by
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`having multiple links. The claim doesn't recite sending each media data
`element along the link to the user system. It's much broader than that. So
`we believe this embodiment of Carmel reads on the limitation of the 141
`patent.
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`But to address Your Honor's specific question about what's happening
`on each link, Carmel teaches us there is a second way to increase the
`download rate, by decreasing the quality of each of the slices. And Carmel
`states, "Periodically client makes an assessment of the rate of data transfer
`over the link from the server and, if necessary, changes the quality level
`accordingly. For example, if the rate is low such that timestamps indicate
`that the slices need to be played as fast as or faster than they are being
`received, the client will preferably select a lower quality level if one is
`available."
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`So what that tells us, what that teaches, is that sending data at the
`playback rate is not good enough. It's considered -- Carmel considers that a
`low rate. And we created a demonstrative on the next slide, on Slide No. 10,
`to illustrate that embodiment of Carmel.
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`And like the first embodiment, we've got one second of video. It's
`taking two seconds to get there. It's too slow. So what Carmel teaches us is
`let's decrease the size of that one second of video.
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`And here we've created a hypothetical where -- let's say that one
`second of video is two megs. So we are -- Carmel tells us let's decrease the
`size. So we're decreasing it 75 percent, to about -- so to 0.5 megabytes. And
`because we've done that, that same one second of video, because it's smaller,
`takes 75 percent -- it gets to the client 75 percent faster, so in 0.5 seconds.
`So that one second of video which takes one second to play back was sent
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`faster than that. It was sent in 0.5 seconds.
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`I'd like to next jump to some of Patent Owner's arguments and address
`those at this point, although I may get back to some of these during my
`rebuttal.
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`The Patent Owner argues in its response --
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`JUDGE BOUCHER: Actually, before you do that --
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`MR. GASPARO: Yes?
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`JUDGE BOUCHER: -- there's a question I wanted to get to, and
`maybe this is a good point to do it. But the Patent Owner submitted a
`declaration from Dr. Polish in the Apple litigation. And I know you
`objected to that at Dr. Polish's deposition, but you never filed a motion to
`exclude. Do you have a position on what we should be doing with that
`declaration?
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`MR. GASPARO: I mean, we did not file a motion to exclude. We --
`our position is that it should carry very little, if any, weight. It was an
`unsigned declaration. Dr. Polish, during his cross examination, was unable
`to verify that it was a final version.
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`Even assuming it's a final version, which we're not sure if it is, it's -- it
`was a non-infringement opinion looking at very specific claim language in
`the Carmel patent, and Dr. Polish was opining on whether his client, Apple,
`infringed that language. His testimony or his opinions in that declaration
`cannot be -- should not be viewed as limiting what else Carmel teaches that's
`relevant to this case.
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`JUDGE BOUCHER: Okay. And I don't know what we would
`necessarily conclude from it at this point, but given that you haven't filed a
`motion to exclude and that the Patent Owner represented that it was
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`downloaded from PACER, so it would seem to be a self-authenticating
`document, doesn't that put us in a position where we should consider it?
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`MR. GASPARO: I think, since we haven't filed a motion to exclude,
`yes, I think you should consider it. I would just hope that you assign very
`little weight, if any, to it based on what else Carmel teaches and the context
`of the declaration which dealt with Dr. Polish interpreting the scope of a
`claim in relation to non-infringement.
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`JUDGE BOUCHER: Okay. Thank you.
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`MR. GASPARO: You're welcome.
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`JUDGE McNAMARA: Counsel, let me ask you a question about the
`claim itself. We're talking about Claim 10, right?
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`MR. GASPARO: Correct.
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`JUDGE McNAMARA: And the limitation we're talking about in
`Claim 10 is the last limitation, right? "Instructions to cause the server to send
`media data elements to the user system at a rate more rapid than the rate at
`which the streamed media is played back," right?
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`MR. GASPARO: Yes.
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`JUDGE McNAMARA: Okay. And you were just talking about
`Carmel disclosing, for example, sending a degraded video, for example. I
`presume that would happen by perhaps eliminating certain media data
`elements; is that right?
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`MR. GASPARO: Not necessarily. Just different -- more compression.
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`JUDGE McNAMARA: How does Carmel tell us to do that?
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`MR. GASPARO: Different compression, more compression.
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`JUDGE McNAMARA: More compression.
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`MR. GASPARO: Yes.
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`JUDGE McNAMARA: Okay. So if it compresses it in some way,
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`shape, or form, that -- and so the last part of this claim that refers to "send
`media data elements," my question then becomes what media data elements?
`The first part of the claim says "a server for distributing streaming media via
`a data communications medium such as the internet to at least one user
`system of at least one user, the streaming media comprising a plurality of
`sequential media data elements."
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`So now I recognize the last element of the claim here does not say
`"said media data elements," but my question that I pose to you is what other
`media data elements would they be?
`MR. GASPARO: I mean, I see the same -- I'm not seeing the same
`thing you're not seeing, which is the word "said" before "media data
`elements." So, I mean, it's broad enough to include the media data elements
`that were requested in the prior limitation. But I would say it's broad enough
`to even go beyond that. And I can't really come up with a hypothetical the
`top of my head as to what that would be, but it doesn't say "said."
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`JUDGE McNAMARA: Well, and this is -- this may actually turn out
`to be important because I can't conceive of there being any media data
`elements other than like what happened -- it would make no sense if there
`weren't media data elements other than the sequential media data elements.
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`But the example that you just gave me in Carmel where they use
`compression, the last limitation are media data elements, and they're not the
`same media data elements then in Carmel that they were -- that would be at
`the beginning of the claim because now they've been compressed and
`modified.
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`MR. GASPARO: So what Carmel teaches us is that there's requests
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`on the client side for media data elements and media data elements are sent.
`And Carmel teaches us that there could be a lag at some point in the
`communication when an end user wants to -- is watching a video.
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`Because of that lag, when subsequent media data elements are
`requested, Carmel teaches us we can do one of two things. We can open up
`additional links or we can further compress to make the media data elements
`smaller because we've got to catch up. If data is getting there too slow, it's a
`lot -- we're watching something. We don't want to have any jitter.
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`And so, I mean, you've got -- the client first has to know that there's a
`problem, but for the data that comes after that, that's what's being sent there
`faster, the playback.
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`JUDGE McNAMARA: Right. I'm just looking at the claim language
`about the media data elements and the sequential media data elements and
`I'm wondering if the portion of Carmel that you talked about that does some
`kind of compression isn't sending the same media data elements, sending
`them revised, compressed, that sort of thing.
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`Now, I agree; maybe I'm implying the word "said" into the claim
`which isn't there. On the other hand, if you don't imply that, then there could
`be media data elements that don't even relate to the media that you're
`watching.
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`So I'm just trying to get a sense as to what the claim -- what your
`version of what the claim means and whether or not that -- the media data
`elements referred to in the limitation and the sequential media data elements
`referred to and I guess a preamble at the beginning of the claim are the same
`media data elements and whether or not that would not be true in Carmel.
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`MR. GASPARO: Yeah. I mean, Carmel is -- we think is quite
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`similar to the 141. And you've got a client that is requesting media data
`elements by serial identifiers, and Carmel teaches us that -- I mean, the first
`teaching we put up on Slide No. 5, which is Carmel's sort of general
`statement that they can send -- a server can send faster than the playback
`rate. And then Carmel goes on to talk about situations when some of those
`media data elements aren't getting there quite fast enough and so something
`has to happen to catch up.
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`So it's all part of the same communication, if we're going to stick with
`sort of one example of watching a video. But, unfortunately, for -- I guess
`this claim doesn't say "send media data elements," but even if it did, we
`think that Carmel teaches it.
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`JUDGE McNAMARA: Okay. It may be important too in the context
`of my understanding of -- which I'll hear more about in a few minutes -- the
`Patent Owner's position relative to the slices and what pieces of data we're
`talking about as to what the media data elements are at the end of the claim
`and the sequential media data elements are at the end. Okay. Thank you.
`
`MR. GASPARO: So one of the Patent Owner's arguments is that
`Carmel increases file sizes to use the available bandwidth and it has a sort of
`no gaps argument, which is not entirely clear to us. And because Carmel,
`according to Patent Owner, teaches trying to use up the entire bandwidth, it
`will never transmit faster than the playback.
`
`And this, Your Honor, goes to the earlier question you were asking
`about how Patent Owner interprets the data rate versus how Petitioner
`interprets the data rate. They're looking at the data rate as the bandwidth.
`
`So our response to this is twofold. I mean, first and foremost, we've
`been talking about the Carmel teaching of lag recovery, and we believe this
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`position by the Patent Owner ignores that. For instance, as I've been saying,
`it's -- Carmel teaches speeding up transmission by reducing file sizes.
`
`The second problem with this argument by the Patent Owner is you'll
`see -- I'm sure you saw in their response they talk about this adjustment of
`increasing file sizes to use up the available bandwidth. But that's only
`performed after a period where transmission was faster than playback. In
`other words, the Patent Owner is implicitly acknowledging that for a period
`of time the data was being sent too fast so it has to throttle it back.
`
`And that period of time is captured in the text that we've put inside a
`box in Carmel, and that reads, "If TSL," which is the slice transmission time,
`"is substantially less than Tmin," which is the slice duration, "then the slice
`duration may optionally be increased as noted herein above."
`
`So to carry through with our example in the demonstratives, if TSL is
`0.5 seconds and Tmin is one second of video, so 0.5 is substantially less than
`one second. In other words, it got there way too fast. You've got to throttle
`that. And based on the language of the claim, the broadest reasonable
`construction of the claim, we believe that this teaching in Carmel would read
`on that limitation.
`
`Notably, the Patent Owner's expert --
`
`JUDGE BOUCHER: That language, though, wasn't cited in your
`petition, right? That's just a response to the Patent Owner's argument. The
`aspects of Carmel that you relied on in your petition are different.
`
`MR. GASPARO: That is correct, Your Honor. That argument is in
`reply to an argument that they made, that Patent Owner made, in its
`response, yes.
`
`Notably, the Patent Owner's expert, during his cross examination,
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`admitted that Carmel discloses sometimes transmitting slightly faster than
`the playback rate, and we've set forth on Slide No. 12 some of that
`testimony.
`
`And I'm not going to read it all, but you can see we emphasize some
`language where Professor Chang testifies that sometimes it's slightly faster
`than playback rate, sometimes it's slightly slower than playback rate, slightly
`higher, slightly lower. So we feel this is further evidence of Carmel's
`teaching of sending it faster than the playback rate.
`
`If there's no further questions on Claim 10, I was going to move on to
`Claim 15.
`
`JUDGE JEFFERSON: Please.
`
`MR. GASPARO: Okay. So, Claim 15. The term in dispute in Claim
`15 is "said server does not maintain a pointer into a buffer established within
`said server for each said user."
`
`It's undisputed that Carmel does not describe a pointer. That is there's
`no text or figures in Carmel that either describe or illustrate the use of a
`pointer.
`
`The Patent Owner's argument is that there must be a pointer in the
`server buffer, and that's -- and they're relying solely on their expert's
`testimony. We obviously disagree, and I'm going to explain why.
`
`Carmel uses the same standard HTTP TCP protocol that's taught in
`the 141 patent. On Slide No. 14, on the left side of Slide No. 14, we have
`the relevant language from the 141 patent, and on the right side of the slide
`we have the relevant language from Carmel. And below that we have some
`testimony from Patent Owner's expert.
`
`The 141 patent describes the use of TCP and client-side control as the
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`way of accomplishing not using a pointer. And similarly, in Carmel, the
`reason there's no description or illustration of using a pointer is because
`Carmel teaches client-side control and using HTTP TCP. So it's not
`surprising that Carmel is silent on not using a pointer.
`
`On Slide No. 15 we just have some exemplary teachings of client side
`control in Carmel.
`
`And moving on to the next slide, on Slide No. 16, further support for
`Carmel not teaching the use of a pointer in a server buffer is that Carmel
`states that there's no special purpose software used on the server to serve the
`media. And we have on Slide No. 16 some text from Carmel noting that
`there's no special purpose broadcasting hardware or software.
`
`We just want to highlight on -- this is actually the last slide. I just
`wanted to highlight that the Patent Owner's expert actually testified that
`Carmel would require a pointer into a server buffer, but he did not in
`forming his opinion consider Carmel's use of standard network servers
`without special purpose hardware or software.
`
`And you'll see on Slide No. 17 what we believe to be the relevant
`testimony whereby Dr. -- sorry, Professor Chang acknowledged that he
`didn't consider that section of Carmel where it teaches not using any special
`purpose hardware or software.
`
`So unless Your Honors have any further questions, I'm going to
`reserve my remaining time for rebuttal.
`
`JUDGE JEFFERSON: No further questions.
`
`MR. GASPARO: Thank you, Your Honors.
`
`JUDGE JEFFERSON: You have nine minutes and 30 seconds left for
`rebuttal.
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`Patent Owner, you may begin when ready.
`
` OPENING ARGUMENT
`
`BY MR. ABRAMSON: Thank you, Your Honor.
`
`So two aspects of Claim 10 at issue here. So Claim 10 recites
`
`receiving requests for specified IDs -- specified identifiers of requested data
`elements. And Claim 10 recites sending media data elements to the user
`system responsive to said request at a rate more rapid than the playback rate.
`
`To start off, Petitioners, first of all, rely on the statement that we heard
`earlier when -- which is, quote, "when the data stream comprises multimedia
`data, the data rate should be generally equal to or faster than the rate at
`which the data are generated by the transmitting computer."
`
` Well, the question was raised, and I think it's a very pertinent one, is
`what does Carmel mean by "the data rate"? And the Petitioners go to the
`conclusion that, well, "the data rate" must mean that it's the date -- it's the
`rate at which individual elements are being transmitted to the client.
`
`And we don't see that here. In the context of the entire disclosure of
`Carmel, Carmel is teaching an embodiment in which you could have
`multiple links opened up in which you can recode, you can transcode
`elements, and this is just -- this is simply a statement that "the data rate,"
`whatever it is as a result of the operations that are disclosed in Carmel, that
`that data rate, be it in the aggregate or as the items are modified, that data
`rate is generally equal to or faster than the rate at which data are generated
`by the transmitting computer.
`
`The quote doesn't indicate that the antecedent for "the data rate" is the
`speed at which individual elements -- individual requested elements are
`transmitted. The Petitioner also relies on two more quotes, as we just went
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`through.
`
`JUDGE BOUCHER: Let's stay on this one for a second because the
`way you just described it, it sounds to me like the parties are not that far
`apart, and it may be that I'm not understanding correctly.
`
`But when the -- I can't remember what slide it was. I think it was
`Slide No. 8 of the Petitioner's presentation where they show this example
`where you open up additional links. It seems to me that what the Petitioner
`was saying is that the individual rate on each of those links remains less than
`the playback rate but the overall data rate, because you have multiple links,
`can exceed the playback rate.
`
`It seems to me you just said the same thing, although you
`characterized it in terms of bandwidth. Am I misunderstanding something
`there?
`
`MR. ABRAMSON: No, I think Your Honor --
`
`JUDGE BOUCHER: I mean, it seems to me the disagreement
`between the parties boils down to whether or not "rate" in Claim 10 refers to
`the rate across an individual link or refers to rate in the aggregate across all
`of the links.
`
`MR. ABRAMSON: I think that's correct. And I think they were --
`and that -- if you look at the chronology here, that's an argument that is
`nowhere in the petition. It came up -- it didn't even come up in reply. The
`reply brief does not articulate this. If you look at the reply brief, the reply
`brief does not articulate what's on Slide No. 8.
`
`Slide No. 8 certainly isn't in Carmel. Slide No. 8 is an attorney
`argument. There's no expert support for it. It's simply an attorney argument.
`
`But they were pushed into that, Your Honor, because the first
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`interpretation that they preferred in the petition, that quote meant it was the
`data rate of individual elements, that doesn't stand up. And their expert
`contradicted that in the declaration. The expert's declaration in the Apple
`case is inconsistent with that assertion.
`
`The other side was pushed into what you see on Slide No. 8. And
`Your Honor is quite right that that is -- although Slide No. 8 goes beyond
`what's actually taught in Carmel, but the concept that it's the aggregate data
`rate as opposed to the rate of individual elements, we would agree that's
`what Carmel was talking about.
`
`But we disagree that the claim covers that because the claim talks
`about -- if you look at
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