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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`I.M.L. SLU, and DUODECAD IT SERVICES LUXEMBOURG S.A R.L.,
`ACCRETIVE TECHNOLOGY GROUP, INC., ICF TECHNOLOGY, INC.,
`and RISER APPS LLC1,
`Petitioner,
`
`v.
`
`WAG ACQUISITION, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01656 (Patent 8,122,141 B2)
`Case IPR2016-01658 (Patent 8,364,839 B2)
`____________
`
`Record of Oral Hearing
`Held: November 30, 2017
`____________
`
`
`
`
`Before TREVOR M. JEFFERSON, BRIAN J. McNAMARA, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
`
`
`
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`Case IPR2016-01656 (Patent 8,122,141 B2)
`Case IPR2016-01658 (Patent 8,364,839 B2)
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`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER I.M.L. SLU:
`
`
`BETH D. JACOB, ESQUIRE
`STEVEN YOVITS, ESQUIRE
`Kelley, Drye & Warren, LLP
`101 Park Avenue
`New York, New York 10178
`
`ON BEHALF OF PETITIONER DUODECAD:
`
`
`KEVIN M. O'BRIEN, ESQUIRE
`Baker & McKenzie, LLP
`815 Connecticut Avenue, N.W.
`Washington, D.C. 20006
`
`ON BEHALF OF PATENT OWNER:
`
`
`RONALD ABRAMSON, ESQUIRE
`ARI J. JAFFESS, ESQUIRE
`Lewis, Baach, Kaufmann, Middlemiss, PLLC
`405 Lexington Avenue
`62nd Floor
`New York, New York 10174
`
`
`
`The above-entitled matter came on for hearing on Thursday,
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`November 30, 2017, commencing at 1:00 p.m., 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 McNAMARA: Good afternoon, everyone. Apparently
`there was a little bit of confusion about the time for this hearing. It was set
`for 1:00, and there was some confusion as to whether it was 1:00 or 1:30.
`So I just wanted to let you know that if anyone does arrive up until 1:30, we
`will admit them to the extent that the room can accommodate that number of
`people.
`
`This is the oral hearing in IPR2016-01656 and 01658. The parties
`in 01656 are I.M.L. SLU and is it Wag or W-A-G?
`MR. ABRAMSON: WAG.
`JUDGE McNAMARA: WAG Acquisition. And the parties in
`2016-01658 are I.M.L. SLU, DuoDecad, Accretive Technology Group, ICF
`Technology and Riser Apps as petitioners and WAG, again, as the patent
`owner. This is a consolidated hearing. And we have a lot of issues before
`us today, so let me tell you how I think we ought to do this. I think we'll do
`it but first we are going to have two transcripts. The first transcript will be
`the hearing on the merits as to the petitioner's challenge. And then we'll
`have a transcript on the motions that we are going to address.
`So the first thing we are going to do is to do the hearing on the
`merits. Are there any motions to amend pending before us in either of these
`cases? I didn't think so. I did notice something in the trial order that said
`something about a motion to amend, but there are no motions to amend. So
`we'll hear first from the petitioner and then the patent owner, and then we'll
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`hear from the petitioner in rebuttal. And the total amount of time that each
`side will have is 45 minutes.
`After that we will then move on to the motions that we have in
`front of us. The first motion that we'll hear is WAG's motion for discovery
`from I.M.L. of information concerning real parties in interest. Then we will
`hear I.M.L.'s motion for discovery from WAG concerning its standing as a
`patent owner in this proceeding. And last, which is an issue that came up
`yesterday, we will hear argument concerning I.M.L.'s request for
`authorization to file a motion to withdraw the petition.
`Is everybody clear on how we are going to do this? All right.
`Then we will begin with the hearing on the merits and we'll hear from the
`petitioner first. If you could please, by the way, introduce everybody who is
`here on your behalf today.
`MS. JACOB: Your Honor, I'm Beth Jacob of Kelley, Drye &
`Warren for the petitioner, I.M.L. SLU. And with me is Steve Yovits, also of
`Kelley, Drye & Warren, also for petitioner, I.M.L. SLU.
`There's one clarification. This perhaps goes to the second part
`instead of the first part, but I did want to inform the Court a clarification that
`with respect to IPR2016-01658 we are seeking permission to move to
`terminate I.M.L. SLU's participation in it, but we are not, of course, moving
`on behalf of the other parties. So that was poorly phrased when we said
`withdraw the petition, that was poorly phrased. I apologize for that. It is
`just our own participation. Not the others.
`JUDGE McNAMARA: I understood. Thank you.
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`MS. JACOB: And in light of our request that we be permitted to
`withdraw our participation in both petitions, we do not have any affirmative
`argument on the merits.
`JUDGE McNAMARA: So you're just going to stand on the
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`papers?
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`MS. JACOB: Yes, Your Honor.
`JUDGE McNAMARA: Then there really is no need to have a
`hearing on the opposition to that as well. So we can then move on to the
`discovery motions.
`MR. ABRAMSON: Your Honor, they are opting not to present
`argument. Just to be clear, this is the 1658, which is the '839 patent.
`JUDGE BOUCHER: I'm sorry, I'm not sure your microphone is
`on. I can't hear what you are saying.
`MR. ABRAMSON: The petitioners in 1658, which my notes
`indicate is the '839 patent, are opting not to present oral argument on the
`merits on that petition.
`JUDGE McNAMARA: I believe that's true for the 1656 as well; is
`that right?
`MS. JACOB: That's correct on both petitions.
`MR. ABRAMSON: Okay. And we have a series of briefs. We
`thought we would have an opportunity to address the merits. I would like to
`have the opportunity to do that.
`JUDGE McNAMARA: Is there some particular narrow issue you
`want to address on the merits that is not adequately addressed in your briefs?
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`MR. ABRAMSON: Your Honor, I would like to address in
`particular the issue with regard to claims 2, 9 and 16, which we believe we
`adequately addressed in the brief, but we have a reply brief that raised some
`new arguments, and I would like to be sure the record reflects our response
`to that. And I would like the opportunity to address it.
`JUDGE JEFFERSON: To be clear, the claims in which patent?
`MR. ABRAMSON: The '839 patent.
`MR. O'BRIEN: Your Honor, this is Kevin O'Brien. I'm
`representing the DuoDecad respondent which was joined --
`JUDGE BOUCHER: I think that microphone is not on either.
`JUDGE McNAMARA: At least make sure you are closer to it.
`MR. O'BRIEN: Which was joined in this proceeding.
`JUDGE JEFFERSON: Judge Boucher, can you hear?
`JUDGE McNAMARA: For the record, let me make it clear that
`Judge Boucher is participating remotely. So it's important that everybody
`identify very specifically what document they are referring to -- there are no
`demonstratives -- that they identify what document they are referring to and
`that they speak into the microphone so that he is able to hear the
`proceedings.
`MR. O'BRIEN: Thank you, Your Honor. I'll begin again. I'm
`Kevin O'Brien from Baker & McKenzie. We represent DuoDecad IT
`Services Luxembourg S.A R.L. And with me is my colleague, Matt
`Kluchenek, also of Baker & McKenzie. And I'll note that Brian Bodine
`representing the remaining petitioners that were joined in this case is also
`here today.
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`What I wanted to say was we were joined with respect to three
`claims of the '839 patent in this proceeding, the 01658 proceeding. And if
`the parties are going to rest on the briefs, that's fine. However, if WAG is
`going to make arguments, then we would also ask to be heard in view of the
`fact that the petitioner is not going to make any arguments.
`JUDGE McNAMARA: Okay. Hang on just a second.
`MR. ABRAMSON: Your Honor, if I may, the terms upon which
`these additional parties joined this petition or as backup counsel, counsel for
`I.M.L. SLU is still here. They opted not to present any argument. I think
`that's the end of it for their side.
`JUDGE McNAMARA: Because they opted not to present any
`argument, I could just say we are not going to hear any argument at all from
`either side. So I'm trying to be fair and balanced here and give everybody an
`opportunity. So the Judges are going to confer about this and we'll decide
`what to do.
`(Pause in the proceedings.)
`JUDGE McNAMARA: We have had an opportunity to confer
`about this, and so what we are going to do, I guess, is to hear first from
`DuoDecad since they are kind of left out of the proceeding otherwise and
`would be -- if petitioner's motion were to be filed and granted, you would be
`the only party left anyway. So we'll hear from you. And then we will hear
`in opposition from WAG on the issues that you raise, and then we will give
`you a little bit of time for rebuttal. So again, it's 45 minutes at the max, but
`since you are only on one case, how about we limit that to 25.
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`MR. O'BRIEN: That's fine, Your Honor. And thank you very
`much. I appreciate the accommodation in view of the recent events.
`JUDGE McNAMARA: And is there any time you want me to
`alert you to or anything or just put the 25 up?
`MR. O'BRIEN: I don't think I'll be that long. Please five minutes
`will be fine.
`JUDGE McNAMARA: Sounds great.
`MR. O'BRIEN: To briefly state again, Kevin O'Brien with Baker
`& McKenzie representing the DuoDecad IT Services Luxembourg S.A R.L.
`party that was joined to this case with respect to claims 2, 9 and 16. I simply
`want to flag at the outset that WAG's counsel mentioned something about a
`reply brief, and I'll just note for the record there wasn't any motion to strike.
`So I don't know what, if anything, new that's going to come from WAG, but
`I guess we'll see.
`What I wanted to say, though, was our joinder is with respect to
`claims 2, 9 and 16 of the '839 patent. Points that are not in dispute are from
`the prior DuoDecad case, 15-1036. Multiple claims were found
`unpatentable, specifically 1, 3, 4, 6, 8, 10, 11, 13, 15, 17, 18 and 20 of the
`'839 patent were found unpatentable. Each of the independent claims on
`which the dependent claims at issue rely were found unpatentable. And
`again, my comments go to dependent claims 2, 9 and 16.
`The other point that's not in dispute and was thoroughly discussed
`during the prior IPR proceeding was the effectiveness of Chen and the file
`wrapper as prior art against the '839 patent.
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`Now, each of the claims at issue, 2, 9 and 16, contain the limitation
`which is illustrated in claim 2 saying, quote, the method of claim 1 further
`comprising sending to the user's system unsent streaming media data
`elements in the server buffer at a sending rate more rapid than the playback
`rate.
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`Now, the panel previously applied Chen, as I mentioned, with the
`file wrapper to invalidate the independent claims. In the panel's decision to
`initiate this case, the present case, the panel noted its construction used in the
`prior IPR proceeding 15-1036 with respect to the following term, "sending
`to the user system unsent media data elements in the server buffer at a
`sending rate more rapid than the playback rate." The panel construed that
`term in the decision to initiate as, quote, at least some of the unsent data in
`the server buffer is sent at a sending rate more rapid than the playback rate.
`The panel adopted this construction from the 15-1036 IPR in its decision to
`initiate and it should continue to apply the same construction in this case.
`Again, referring to the panel's decision to initiate, the panel stated
`that based on the present record, the petitioner has presented sufficient
`evidence that Chen and Chen file wrapper teach the limitation of claim 2.
`Petitioner has provided sufficient evidence that Chen, upon interruption that
`causes the user buffer to fall below the watermark, sends some data in rush
`mode, and then cited the petition at pages 55 to 60. Contrary to patent
`owner's response, we are not persuaded that Chen sending some unspecified
`amount of unsent data in the server buffer in the rush mode or leaving
`accumulated unsent data in the server buffer to be sent at the playback rate
`does not meet the stated limitation.
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`So that was the panel's statement in the decision to initiate. WAG
`has made a series of arguments in its response, in the patent owner's
`response dated May 31st. On page 4, WAG says that the '839 patent always
`sends data from the server to the user as fast as the connection will allow.
`That's a WAG statement. At page 13 WAG says that the specification only
`describes one embodiment, and that is one sending rate expressed as being
`as fast as the connection with the user computer will support and references
`column 8, lines 31 to 35. At page 14 WAG says that there is no other
`sending rate provided for in the specification. And finally, WAG says that
`claim 2 has to be different than claim 1, and if you read it the way the panel
`has construed claim 2, that that doesn't happen.
`Now, none of those points are correct. The panel was correct in its
`decision and the same construction should be applied at this point. Taking
`them one at a time, again, we have the panel's construction from the 15-1036
`case that construed unsent streaming media as some but not necessarily all
`of the unsent streaming media. The patent owner's argument that the
`Board's construction requires that claim 1 and claim 2 have the same scope
`does not withstand scrutiny. The patent owner -- claim 1 of the '839 patent
`talks about the initial loading and the initial sending of packets from the
`server to the user player. Claim 2 simply requires that at least some of the
`data elements that are unsent after the steps of claim 1 are completed, in
`other words, additional data during the playback, is being sent. It is not
`duplicative of claim 1 to say that claim 2 has to operate in rush mode or as
`fast as possible all the time. These are two different claims, claim 1 dealing
`with loading the buffer initially and then switching to a transmission rate as
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`fast as the playback rate. Claim 2 refers to after that has happened data can
`be sent as fast as possible. That's the difference between claim 1 and
`claim 2.
`JUDGE McNAMARA: I don't happen to have the claims up in
`front of me. Is claim 2 dependent from claim 1?
`MR. O'BRIEN: Yes.
`JUDGE McNAMARA: So it has all the limitations of claim 1. So
`what's whatever is implied in the limitations of claim 1 is a limitation of
`claim 2.
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`MR. O'BRIEN: Yes, Your Honor.
`JUDGE McNAMARA: So I'm a little confused by the argument
`you just advanced about -- I recognize that they are separate claims, but are
`there limitations that you are taking out of claim 1?
`MR. O'BRIEN: No, Your Honor. Claim 1 expressly states there
`are two different rates at issue. One is an initial loading rate which is as fast
`as possible and then thereafter transmission at the playback rate of the user
`device. And claim 2 is merely saying that if there is unsent data in the
`server, it can be sent as fast as possible. That's all it's saying. It's not --
`JUDGE McNAMARA: Okay.
`MR. O'BRIEN: Now, the patent owner says in its response that
`claim 1 only discloses one sending rate. But that simply is not true. If you
`look at the limitations of claim 1, you will see it says in one element as fast
`as possible and in another element further down claim 1 sending at the
`playback rate. These are two different rates.
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`In order to try and reconcile what's obvious from the face of the
`claim, the patent owner refers to column 8 and it points to an embodiment
`which says that media data delivered to the user computer may be sent at a
`higher than playback rate. But the column 8 at lines 31, 32, use the term
`"may." It is one option. It's not -- by no means is it required and it certainly
`doesn't say shall or must. So one option would be to operate in accordance
`with column 8, lines 31 and 32, but that's permissive. It's not required.
`JUDGE BOUCHER: Now, is there any dispute between the
`parties on what is meant in claim 2 by unsent streaming media data
`elements?
`MR. O'BRIEN: Not that I am aware of, Your Honor.
`JUDGE BOUCHER: So I guess my question, then, because
`claim 1 refers to sending an initial amount of streaming media data elements
`at a rate more rapid than the playback rate, so why isn't that coextensive with
`what is recited in claim 2?
`MR. O'BRIEN: Because -- one second. Let me just get claim 1
`up. Claim 1 at column 16, lines 3 to 5 states exactly as Your Honor just
`mentioned, sending an initial amount of streaming data elements to the user
`system at an initial sending rate more rapid than playback rate. But then the
`next cause says, Thereafter, sending further streaming media data elements
`to the user at about the playback rate. So these are two different rates that
`are being discussed here. They are not the same except for the argument that
`WAG makes relying on column 8, which is simply one optional
`embodiment. So there are two rates. And then all claim 2 is saying is that
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`you can send unsent data in the server at a rate faster than the playback rate.
`There's nothing inconsistent about it. It's just adding an additional feature.
`JUDGE BOUCHER: But isn't the initial amount of streaming
`media data elements sent in that limitation at line 3 of column 16, aren't
`those unsent streaming media data elements?
`MR. O'BRIEN: They could be, yes. Claim 1, I believe, fairly
`read, talks about the initial startup of the user device, of engaging the user
`device to display whatever video or audio is being considered. So when it
`speaks of -- sorry, just one second. Because it speaks initially of loading the
`server buffer with streaming media data elements and thereafter sending
`initial streaming data elements to the user system. So it's sending the initial
`data. Claim 2 is not talking about the initial data. Claim 2 is talking about --
`is not so limited. It can be initial data or it could be midway through the
`performance or at any other time. It's not the same data. That's the
`additional feature that's being claimed in claim 2.
`JUDGE BOUCHER: Let me just ask whether you agree that a
`construction would be inappropriate if it resulted in claim 2 having precisely
`the same scope as claim 1.
`MR. O'BRIEN: It's certainly not favored, Your Honor. Claim
`differentiation is certainly a strongly held preference in interpreting patent
`claims.
`
`JUDGE BOUCHER: Thank you.
`MR. O'BRIEN: So in summary, there is nothing inconsistent
`about reading claim 2 in the way that is in the petitioner's papers. It is fully
`consistent with the scope of claim 1. And for that reason, Your Honor, we
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`respectfully request that claim 2 be held unpatentable. And it's the same
`limitation in claims 9 and 16, so the same arguments would apply.
`JUDGE McNAMARA: Thank you very much.
`I'll give you 25 minutes.
`MR. ABRAMSON: Thank you, Your Honor. I don't know that I
`introduced myself.
`JUDGE McNAMARA: Please do. I'm sorry, I forgot to do that
`
`before.
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`MR. ABRAMSON: My name is Ronald Abramson from the firm
`of Lewis, Baach, Kaufmann, Middlemiss, PLLC, on behalf of the patent
`owner, WAG Acquisition, LLC. And with me is Ari Jaffess from my firm.
`So we have on claim 2 -- fundamentally the issue is claim
`construction. Petitioner has not even attempted to demonstrate that Chen,
`the Chen file history are invalidating under patent owner's claim
`construction. I think that's clear.
`The petitioners had an expert, Gareth Loy. We took his deposition.
`Gareth Loy was asked about same question that Judge Boucher was just
`asking, what is the difference -- under your interpretation, what is the
`difference between claim 1 and claim 2? And he was asked about this in
`depth at his deposition. And Dr. Loy couldn't come -- could not point to any
`difference between the scope of those terms given the petitioner's
`interpretation. As he said, unsent data is data that hasn't been sent yet. So
`when you initially load the server buffer, that is unsent data. And claim 1
`tells you to send that at a sending rate. And note the word sending rate,
`because I'm going to get back to sending rate -- at a sending rate more rapid
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`than the playback rate. And claim 2 talks about sending unsent data at a
`sending rate more rapid than the playback rate.
`So how do you put this all together? Certainly if you take the
`testimony of Gareth Loy, which is not rebutted and it's consistent with what
`our expert had to say, then there would be a claim differentiation issue if we
`adopted petitioner's construction.
`Now, in favor of patent owner's construction, let me address why
`patent owner's construction makes sense. And by the way, on patent owner's
`construction, patent owner wins. There isn't even an argument in the briefs
`or in the record that would set forth any rationale for how the petitioner
`would win under patent owner's construction. It really comes down to claim
`construction.
`First of all, Mr. O'Brien did not make this argument just now, but
`if you look at the briefs, there's certainly an argument on the record that
`there's collateral estoppel here, that in the institution decision in
`IPR2015-1036 there was a construction of claim 2, but no institution on
`claim 2. Claim 2 was not instituted in that IPR. But in the final written
`decision, there is a recitation, there's language to the effect that the Board
`was adopting its preliminary constructions as final. Mr. O'Brien didn't argue
`it here and I don't know whether they maintain this argument or not, but
`certainly in the briefs, there's several pages devoted to trying to make the
`argument that that's collateral estoppel.
`Patent owner's position is that can't be the case. Trial was not
`instituted on claim 2 in the prior IPR. The order for trial, the order
`instituting trial in that IPR was very specific that trial was limited and set to
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`the following grounds and no other grounds set forth in the petition are
`authorized. And it listed, I'll quote verbatim, 1) claims 1, 4, 6 to 8, 11, 13 to
`15, 8, 20 and 21 as being obvious over Chen and the Chen file history. That
`list did not include claim 2. And then the second one was claims 3, 10 and
`17 as being obvious over Chen, Chen file history and ISO 11172 also not
`addressing claim 3.
`So claim 2 was not in the trial in the prior IPR. And review is
`expressly limited to neither claims 2, 9 or 16, to be correct. None of those
`claims were included in the trial. Review was expressly limited to the
`matters stated in the order which did not include the claims that we are
`talking about now. The Board's statement in its final written decision
`insofar as it concerned claim 2 was therefore outside the scope of the trial.
`The issue concerning construction of claim 2 was not actually litigated to a
`final determination and therefore, cannot be collateral estoppel. I don't
`know whether petitioner is now relying on that or not, but I wanted to
`address it. I think we are free to -- we are certainly not bound by collateral
`estoppel as far as raising this question is concerned.
`Beyond relying on collateral estoppel, what do we have? So one
`argument which we've heard is that claim 2 unsent data excludes the already
`sent claim 1 initial data. But this does not follow. As Dr. Loy himself said,
`when the initial data is loaded into the server buffer per claim 1 is unsent.
`We also heard, and I don't know whether petitioner really adheres to this or
`not, but we heard him say several times that claim 2 somehow concerns the
`situation after the steps of claim 1 take place. And it doesn't say that. Claim
`2 does not say that it follows temporally after claim 1. Claim 2 just says
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`what it says. The word "after" is something that they are reading into claim
`2. It's not there.
`JUDGE McNAMARA: Is there some reason, though, for us to
`construe the claims as meaning something different? I mean, they are
`different claims. One would assume, and I understand that the risks of the
`word "assume," but one would assume that the drafter of the claims was
`attempting to draft something that was differentiated from what was in claim
`1.
`
`MR. ABRAMSON: Yes, indeed, and I'll explain that. So if you
`look at claim 1, and again, you have to look at what does this -- what is
`claim 1 actually telling us? Claim 1 has in column 16, line 3, sending an
`initial amount of streaming media data elements to the user system at an
`initial sending rate more rapid than the playback rate. And that is, the words
`"sending rate" there, we understand that to mean the rate at which the
`individual elements in that buffer load are sent, that they are sent -- each one
`is sent faster than the playback rate. That's what claim 1 recites, an initial
`burst where you send the individual elements faster than the playback rate.
`Then it says, starting at line 15 -- sorry, line 6, thereafter, this is
`after the initial burst, sending further streaming media data elements to the
`user system at about the playback rate. But that does not say anything about
`the sending rate. That just says the stream is -- after you send the initial
`burst, the stream is now being sent at about the playback rate. But that does
`not address -- that leaves -- claim 1 leaves open and indeed the whole
`argument on column 8, you may send the individual elements at the
`playback rate. You can send a stream at the playback rate by sending each
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`individual element at the playback rate, but you can also send a stream at the
`playback rate by sending individual elements faster than the playback rate,
`just that you have a delay time between when you send the individual
`elements or a delay time between groups of individual elements. Your
`stream will be sent at the playback rate. If you send them spaced apart or if
`you send five pieces and then wait and then send five more pieces, you are
`sending it at the playback rate. So claim 1 allows you to send the individual
`elements at whatever speed you want just so long that it's transmitting at the
`playback rate.
`Claim 2 now says -- now addresses sending rate. Claim 2 says,
`okay, that was claim 1. Now claim 2, the further limitation is that, in fact,
`we are going to send the individual elements faster than the playback rate.
`So that's the difference between claim 1 and claim 2.
`JUDGE JEFFERSON: Counsel, quickly, sorry to interrupt, Judge
`McNamara. So am I understanding your argument that unsent streaming
`media is not important because we are talking about the sending rate as
`opposed to the playback rate and therefore, claim 2 basically covers a
`broader scope because the sending rate relates to the rate of the server
`buffer? I'm trying to understand how a sending rate modifies or changes
`introduction of unsent streaming media.
`MR. ABRAMSON: Unsent is important. It's saying that whatever
`you have that is unsent, that when you send it, we're talking about claim 2
`now --
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`JUDGE JEFFERSON: Can I interrupt. Whatever you have that is
`unsent, when in claim 1 do we evaluate what is unsent? Is it from the very
`beginning? Could it be at the very end? Does it not matter?
`MR. ABRAMSON: It's anything that hasn't been sent. All data is
`unsent until it goes out the pipe. So you have a buffer. You are loading a
`buffer. Whatever is in that buffer on the server is unsent. It's still on the
`server. And then later on, if you were to do as claim 1 says and you send
`that faster than the sending rate, assuming data is arriving in realtime, your
`sending buffer is going to be empty. The data arrives in realtime and gets
`sent in realtime, what will happen is that the sending buffer will always be
`empty. You'll have an initial load where you'll wait to send it. You send the
`whole thing fast. A piece comes in, a piece goes out, a piece comes in, a
`piece comes out. But as explained in the specification, there are situations
`where an interruption might be sensed where data will back up again in the
`server buffer. Now again we have unsent data in the server buffer.
`Now, per claim 2 tells us that whenever you have unsent data,
`whether it's at the very beginning or whether it's at some point later,
`whenever you have unsent data when you send that data to send it faster than
`the playback rate, which is an additional substantive limitation. Claim 1
`doesn't tell us that. Claim 2 does.
`JUDGE McNAMARA: I read claim 2 to say at any time I can
`send it faster. I don't have to.
`MR. ABRAMSON: Yeah. Claim 2 says -- claim 2 is satisfied if
`you send -- claim 2 is satisfied by sending unsent data faster than the
`playback rate. So claim 2, as we are interpreting claim 2, it says the method
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`of claim 1 further comprising sending to the user system unsent streaming
`media data elements in the server buffer at a sending rate more rapid than
`the playback rate. When you send it, you send faster than the playback rate,
`sending rate.
`JUDGE McNAMARA: Let me articulate what I understand these
`claims to mean. So as you talked ab
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