UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`FRIENDFINDER NETWORKS INC., STREAMRAY INC., WMM, LLC,
`WMM HOLDINGS, LLC, AND MULTI MEDIA, LLC
`
`Petitioners
`
`v.
`
`WAG ACQUISITION, LLC
`
`Patent Owner
`
`Patent No. 8,364,839
`
`Issue Date: Jan. 29, 2013
`
`Title: STREAMING MEDIA DELIVERY SYSTEM
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`DECLARATION OF NATHANIEL POLISH, PH.D.
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`PAGE 1 of 30
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`PETITIONERS' EXHIBIT 1003
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`
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`FRIENDFINDER NETWORKS INC., STREAMRAY INC., WMM, LLC,
`WMM HOLDINGS, LLC, AND MULTI MEDIA, LLC
`
`Petitioners
`
`v.
`
`WAG ACQUISITION, LLC
`
`Patent Owner
`
`Patent No. 8,364,839
`
`Issue Date: Jan. 29, 2013
`
`Title: STREAMING MEDIA DELIVERY SYSTEM
`
`DECLARATION OF NATHANIEL POLISH, PH.D.
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`PAGE 1 of 30
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`PETITIONERS' EXHIBIT 1003
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`TABLE OF CONTENTS
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`I.
`II.
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`Introduction and Qualifications.......................................................................1
`Understanding of the Governing Law.............................................................3
`A.
`Types of Claims – Independent and Dependent ...................................3
`B.
`Invalidity by Anticipation or Obviousness ...........................................3
`C.
`Secondary or Objective Evidence of Nonobviousness .........................5
`D.
`Relevant Time Period For The Anticipation and Obviousness
`
`Analysis.................................................................................................6
`Basis for My Opinion............................................................................6
`E.
`Level of Ordinary Skill in the Art in the Relevant Timeframe.............6
`F.
`State of the Art at the Claimed Priority Date ..................................................7
`III.
`IV. Discussion of the ‘839 patent ..........................................................................9
`V.
`Claim Terms of the ‘839 patent.....................................................................11
`VI.
`The Prior Art References...............................................................................12
`A.
`Chen.....................................................................................................12
`B.
`Chen and ISO-11172...........................................................................15
`C.
`Chen and Willebeek ............................................................................18
`D.
`Chen and Cannon ................................................................................23
`E.
`Chen File History ................................................................................25
`VII. Conclusion.....................................................................................................28
`
`i
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`I, Nathaniel Polish, hereby declare the following:
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`1.
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`I have been retained by Petitioners to provide my opinions concerning
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`the validity of claims 1-21 of U.S. Pat. No. 8,364,839 (“the ‘839 patent”). I am
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`being compensated for my time in preparing this declaration, but my compensation
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`is not tied to the outcome of this matter and my compensation is not based on the
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`substance of the opinions rendered here.
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`I.
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`Introduction and Qualifications
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`2.
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`I have a Ph.D. in Computer Science from Columbia University. I
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`hold the following four degrees from Columbia University, spanning the years
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`1980 to 1993:
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`• Ph.D. in Computer Science, May 1993, Thesis: Mixed Distance
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`Measures for the Optimization of Concatenative Vocabularies in
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`Speech Synthesis;
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`• M.Phil. in Computer Science, December 1989;
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`• M.S. in Computer Science, December 1987; and
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`• B.A. in Physics, Columbia College, May 1984.
`I am president of Daedalus Technology Group, Inc., a computer
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`3.
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`technology development firm that I co-founded over twenty-five years ago. My
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`primary business activity is the development of computer-related products,
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`1
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`including small handheld electronic devices and testers, video and messaging
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`systems, as well as large-scale distributed systems.
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`4.
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`I have experience in the technical areas of the ‘839 patent. For
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`example, in the early 1980’s, I developed an interactive system using computer
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`controlled video disks and touch screens. From 1983-1987, I developed highspeed
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`drivers for several graphical devices and evaluated their applicability for
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`interactive uses. By 1994, I had developed a proof-of-concept system to compress
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`images of checks to very small file size.
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`5.
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`I have further written an article regarding the technical areas of the
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`‘839 patent, entitled “The Burstware Family of Protocols.”
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`6.
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`I am a named inventor on seven United States patents, including U.S
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`Patent Number 5,963,202 issued on October 5, 1999 and entitled, “System and
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`Method for Distributing and Managing Digital Video Information in a Video
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`Distribution Network.”
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`7.
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`I am further a member of several professional societies, including the
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`Institute of Electrical and Electronics Engineers (IEEE), and the Association for
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`Computing Machinery (ACM). Attached hereto as Appendix A, is a true and
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`correct copy of my Curriculum Vitae describing my background and experience.
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`8.
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`I have also performed services in patent disputes as an independent
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`2
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`technical expert and consultant and as an expert witness on computer, video, and
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`software-related cases.
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`9.
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`A copy of my curriculum vitae is attached as Exhibit 1012.
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`II. Understanding of the Governing Law
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`A. Types of Claims – Independent and Dependent
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`10.
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`I understand that there are two types of U.S. patent claims: 1)
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`independent claims and 2) dependent claims. I understand that independent claims
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`only include the aspects stated in the independent claim. I further understand that
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`dependent claims include the aspects stated in that dependent claim, plus all the
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`aspects stated in the other claim(s) from which that dependent claim depends.
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`B.
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`11.
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`Invalidity by Anticipation or Obviousness
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`I understand that a claim is invalid if it is anticipated or obvious. I
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`understand that anticipation of a claim requires that every element of a claim is
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`disclosed expressly or inherently in a single prior art reference, arranged as in the
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`claim. With regard to inherency, I understand that anticipation by inherency
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`requires that one of ordinary skill in the relevant art would have recognized that the
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`missing descriptive matter is necessarily present in the subject matter described in
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`the reference.
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`12.
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`I further understand that obviousness of a claim requires that the claim
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`
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`3
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`be obvious from the perspective of a person of ordinary skill in the relevant art, at
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`the time the invention was made. In analyzing obviousness, I understand that it is
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`important to understand the scope of the claims, the level of skill in the relevant
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`art, the scope and content of the prior art, the differences between the prior art and
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`the claims, and any secondary considerations.
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`13.
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`I also understand that if a technique has been used to improve one
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`device, and a person of ordinary skill in the art would recognize that it would
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`improve similar devices in the same way, using the technique is obvious unless its
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`actual application is beyond his or her skill. For instance, I understand that the
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`simple substitution of one known element for another or the mere application of a
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`known technique to a piece of prior art ready for the improvement is obvious.
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`14.
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`In addition, I understand that the United States Supreme Court has said
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`that “[t]he use of one material instead of another in constructing a known machine
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`is, in most cases, so obviously a matter of mere mechanical judgment, and not of
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`invention, unless some new and useful result, an increase of efficiency, or a decided
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`saving in the operation, is clearly attained.” Hicks v. Kelsey, 85 U.S. 670, 673
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`(1873). Moreover, to avoid obviousness, I understand that such a new and useful
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`result, increase of efficiency, or decided saving in the operation must be
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`unpredictable. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (U.S. 2007) (“when
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`4
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`a patent claims a structure already known in the prior art that is altered by the mere
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`substitution of one element for another known in the field, the combination must
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`do more than yield a predictable result.”).
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`15. There may also be a specific “teaching, suggestion or motivation” to
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`combine any first prior art reference with a second prior art reference. Such a
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`“teaching, suggestion, or motivation” to combine the first prior art reference with
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`the second prior art reference can be explicit or implicit.
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`16.
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`I understand that there are several sources for a “teaching, suggestion
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`or motivation” to combine references: the nature of the problem to be solved, the
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`teachings of the prior art, and the knowledge of the persons of ordinary skill in the
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`art. In addition, market forces or other design incentives may be what produced a
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`change, rather than true inventiveness. I also know that the application of common
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`sense and ordinary skill to solve a problem is not patentable.
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`17.
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`I understand that when considering invalidity, each claim must be
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`considered individually.
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`C.
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`18.
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`Secondary or Objective Evidence of Nonobviousness
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`I understand that secondary (or objective) considerations are relevant
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`to the determination of whether a claim is obvious. Such secondary (or objective)
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`considerations can include evidence of commercial success caused by an invention,
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`5
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`evidence of a long-felt need that was solved by an invention, evidence that others
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`copied an invention, or evidence that an invention achieved a surprising result. I
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`understand that such evidence must have a nexus, or causal relationship to the
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`elements of a claim, in order to be relevant to the obviousness or non-obviousness
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`of the claim. I am unaware of any such secondary considerations in relation to the
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`claims of the ‘839 patent.
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`D. Relevant Time Period For The Anticipation and Obviousness
`Analysis
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`19.
`
`I also understand that the earliest U.S. application that eventually led
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`to the ‘839 patent was filed on September 12, 2000. Therefore, for the purposes of
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`this declaration, I have analyzed anticipation and obviousness as of September
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`2000.
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`E.
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`Basis for My Opinion
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`20.
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`In forming my opinion, I have relied on the ‘839 patent claims and
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`disclosure, the prior art exhibits to the Petition for the IPR of the ‘839 patent, and
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`my belief as to the knowledge of the person of ordinary skill in the relevant art in
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`the 2000 timeframe.
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`F.
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`Level of Ordinary Skill in the Art in the Relevant Timeframe
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`21.
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`In 2000, I believe that a relevant person of ordinary skill in the art at
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`the time of the ‘839 patent (“POSITA”) would have had a B.S. degree in computer
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`
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`6
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`science or electrical engineering (or comparable degree) and two years of
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`experience in networking or streaming media, or a M.S. in computer science or
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`electrical engineering (or comparable degree).
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`22. These descriptions are approximate, and a higher level of education or
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`specific skill might make up for less experience, and vice-versa.
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`23.
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`I believe I have a sufficient level of knowledge, experience and
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`education to provide an expert opinion in the field of the ‘839 patent, including
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`what one of ordinary skill in the art would have understood from the prior art in
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`this field at that time.
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`III. State of the Art at the Claimed Priority Date
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`24. Since at least the beginning of the 1990s, digital transmission
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`technologies had been introduced for digital audio broadcasting and digital video
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`broadcasting. Ex. 1011, Kozamernik at pp. 1-2. The Internet was recognized as a
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`de facto worldwide network important for broadcasting activities, having achieved
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`more than 50% penetration in five major American cities and 50 million users in
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`four years. Id. at pp. 3, 5. It was also recognized that in contrast to conventional
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`broadcasting, the Internet allowed the audience to interact with the originator and
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`shape the content that was delivered. Id. at p. 5. Several protocols, including Real
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`Time Streaming Protocol (“RTSP”) – a popular application-level protocol known
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`to enable controlled on-demand delivery of real-time audio and video stream –
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`were in use for providing real-time services via the Internet. Id. at p. 13.
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`25. While “download-first-and-then-play” technology was considered
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`acceptable for short program clips, “streaming” technology, which allowed for
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`immediate playback, was preferred for on-line radio listening and watching video
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`clips. Id. at p. 6. During media streaming, a media player, such as RealPlayerTM,
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`read the media file stream as it was arriving from the network and began playing it
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`before the rest of the file arrived. Id. In order to make the playback smooth, the
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`player used a process of buffering. Id. As the player played out the file, it
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`continued to collect packets in reserve so that if there were minor delays in
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`receiving the packets, playback was still continuous. Id.
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`26. Buffering was commonly known in the context of streaming media
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`over the Internet. Transmission over the Internet may not be fully reliable and may
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`suffer from delay jitter. Id. at pp. 12-13. Delay jitter is the variance in delay of
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`consecutive packets, which can vary in a non-predictable manner. Id. Buffering
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`was known to smooth out jitter to enhance playback quality. Id. at p. 12.
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`27. A potential side effect of buffering is a short delay while the buffer
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`fills. The ‘839 patent contends that the user must wait for the length of the buffer
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`stating that if the user waits ten seconds before playback starts then there is enough
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`buffer for ten seconds of interruptions and the buffer cannot increase during
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`playback. ‘839 patent, Ex. 1001 at 2:35-3:4.
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`28. But this was not the state of the art. As explained by Kozamernik,
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`streaming technology allowed for immediate playback. Kozamernik, Ex. 1010 at p.
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`6. It was well known to increase the transmission rate above the playback rate to
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`fill the buffer in the first instance and to refill the buffer if there was a low amount
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`of data in the buffer.
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`IV. Discussion of the ‘839 patent
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`29. The ‘839 patent is directed to systems and methods for delivering
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`streaming media on the Internet. ‘839 patent, Ex. 1001 at 1:34-46.
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`30. The Background section concedes that sending audio and video files
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`via a network was known in the art, as was the use of buffers both at the server (id.
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`at 1:51-59) and on a user computer (id. at 2:24-27). In these known systems,
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`video can be sent at the rate it is to be played back, and the buffers allow content to
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`play with minimal dropouts. Id. at 2:24-27, 2:45-48. The ‘839 patent asserts that
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`there was a need for improved systems and methods to facilitate “continuous
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`transmission of streaming content, respond on demand without objectionable
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`buffering delay, and perform without disruption or dropouts.” Id. at 3:24-29.
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`According to the ‘839 patent, these objectives are addressed by “(a) sending initial
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`streaming media elements to the user system at a sending rate more rapid than the
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`playback rate, to fill the playback buffer; and (b) after the user buffer has been
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`filled, sending further streaming media data elements to the user system at about
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`the playback rate.” Id. at 3:38-43.
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`31. The ‘839 patent uses the server’s built-in transport mechanism, e.g.,
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`the server’s Transmission Control Protocol (“TCP”) stack, as a control mechanism.
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`Id. at 8:9-13; see also IPR2015-01036, Paper 8 at 5-6. A server buffer transfers
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`data, via the transport mechanism, to the client buffer and can send as much data as
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`the transport mechanism will accept. Id. at 10:23-33. On a new connection, the
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`server sends content to rapidly fill a user buffer. Id. at 8:31-44. After the initial
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`fast transfer, the system enters a steady state in which it continues to fill at the
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`playback frame rate. Id. at 7:65-8:4. If an interruption occurs, the TCP can
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`respond in two ways. First, for moderate interruptions, the user buffer will become
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`depleted and the server will attempt to send data at a faster rate to rebuild the user
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`buffer while the video plays. Id. at 9:56-10:10. For more severe interruptions, the
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`transport mechanism will stop accepting data for transmission, and will resend at a
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`higher rate after the connection is restored. Id. at 10:11-37.
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`32. The ‘839 patent includes three independent claims (1, 8 and 15),
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`which are of substantially similar scope. Each includes an initial step of sending
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`multimedia data from a server to a client at a rate more rapid than a playback rate,
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`and thereafter sending such data at a playback rate. Each also includes a step of
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`detecting whether there are any interruptions in the transmission of multimedia
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`data from the server to the client. This latter limitation was added into each of the
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`independent claims before allowance. ‘839 patent File History, Ex. 1002,
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`Examiner’s Amendment at 839FH058-59. Independent claims 8 and 15 include
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`two additional limitations not found in independent claim 1: (i) reloading the
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`server buffer with a specified amount of streaming media elements in the event an
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`interruption is detected, and (ii) after reloading, continuing to supply media data
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`elements to the server buffer at about the playback rate until there are no further
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`streaming media data elements to be sent.
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`V. Claim Terms of the ‘839 patent
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`33.
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`I understand in an Inter Partes Review (“IPR”), a claim receives the
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`“broadest reasonable construction in light of the specification of the patent in
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`which it appears.” 37 C.F.R. § 42.100(b). I understand the claim terms of the ‘839
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`patent are presumed to take on their ordinary and customary meaning that the term
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`would have to one of ordinary skill in the art. As part of my analysis of prior art, I
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`was asked to consider the PTAB’s prior constructions presented in section VII of
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`the petition.
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`VI. The Prior Art References
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`34.
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`I have reviewed the prior art references in the Petition including
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`U.S. Patent No. 5,822,524 to Chen (Ex. 1004) (“Chen”), International Standard
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`ISO/IEC 11172 (Exs. 1005-1008) (“ISO-11172”), Willebeek-LeMair, M. H., K.
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`G. Kumar, and E. C. Snible. “Bamba--Audio and video streaming over the
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`Internet.” 42 IBM Journal of Research and Development¸ Vol. 42, No. 2 at 269,
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`Nov. 1998 (“Willebeek”); U.S. Patent No. 6,014,706 to Cannon et al.
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`(“Cannon”); File History of U.S. Patent No. 5,822,524 to Chen et al. (“Chen File
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`History”)
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`A. Chen
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`35. Chen discloses a server-client architecture in which multimedia files
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`are delivered from a server buffer (stream buffer 11, 18) to a client-side buffer
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`(packet buffer 31, 33) in the form of digital data packets, shown in FIG. 1 below.
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`Chen, Ex. 1004 at 5:17-34.
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`Chen describes three transmission modes for sending multimedia data to the client:
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`NORMAL, RUSH, and PAUSE. Id. at 6:1-15. When there is too little data in the
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`packet buffer 33, the transmission mode uses the RUSH mode. Id. When the
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`amount of data in the packet buffer 33 is between high and low “watermarks,” the
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`transmission mode is in the NORMAL mode. Id. When there is too much data in
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`the packet buffer 33, the transmission mode enters the PAUSE mode. Id. at 6:40-
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`54.
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`36. Chen teaches that the mode that is used at the start of transmission is
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`the RUSH mode. In Chen, the client agent 3 sends a request to the command
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`processor 15 of the server to initiate a file open request. Id. at 9:31-48. A
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`response command is sent to the client agent, and if it is accepted, the server sets
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`up the necessary structure including the stream buffer and signals the
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`transmission scheduler 13 at the server to begin transmitting frames. Id. at 9:41-
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`48. At this point, the client buffer is necessarily empty—no files have been
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`transmitted. Accordingly, a POSITA would understand that Chen will operate in
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`RUSH mode, which is the mode used when “a low amount of data exists in the
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`client agent’s packet buffer.” Id. at 10:14-15.
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`37. Chen switches to NORMAL mode when the client agent’s packet
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`buffer crosses above the low water mark. Id. at 6:52-54. In NORMAL mode, the
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`scheduler 13 at the server spaces transmission so that the data for a single video
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`frame is transmitted in the time of a single video frame (i.e., at playback rate). Id.
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`at 6:31-39.
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`38. Chen also discloses filling a server buffer or moving a data window
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`through a server buffer at about the playback rate. Chen’s server includes a
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`stream buffer, and in a claimed embodiment, the stream buffer is small having
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`only 1-5 frames. Chen, Ex. 1004 at 5:17-34; Claims 16, 27 and 42. Thus, in the
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`NORMAL mode where transmission is paced at the playback rate, the stream
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`buffer fills and moves a data window through the 1-5 frame buffer at “about” the
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`playback rate. For example, when there is a single frame stream buffer, and the
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`system is in NORMAL mode transmitting packets from the stream buffer at the
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`playback rate, the data window is necessarily moving through the stream buffer at
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`“about” the playback rate. Id.
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`39. Chen discloses detecting interruptions in two ways. First, Chen
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`describes detecting a lost packet and transmitting a “lost packet request” so that
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`the lost packets are retransmitted “as soon as possible.” Id. at 10:40-50. Second,
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`when an interruption is sufficiently severe to cause the user buffer to fall below
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`the low water mark, Chen will detect this interruption in the data stream and
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`respond by entering Rush mode to refill the buffer. Id. at 6:42-46. This second
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`interruption detection and response is the same interruption detection and
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`response described in the ‘839 patent at, for example, 9:60-67. See also 15:44-
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`48.
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`40. A POSITA at the time the application for the ‘839 patent was filed
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`would have understood Chen’s disclosure of a server (an IBM PC Server, for
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`example) to include a data storage device, memory for storing executable routines
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`and a working memory area for routines executing on the server, a central
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`processing unit for executing the instructions, an operating system, and at least one
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`connection to a communications medium (a network) via a set of communication
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`protocols. In 2000, these were known components of a server. For example,
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`Dawna Dwire, Client/Server Computing (McGraw-Hill, Inc. 1993), Ex. 1017, at
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`31-32 shows that one of ordinary skill in the art would have understood that
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`servers to include these components. It describes that a server is known to have
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`storage, memory, one or more processors, an operating system, and networking
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`software. It also discloses the use of applications that would be known by one of
`
`skill in the art to be stored in executable routines and executed in working memory.
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`Chen also discloses the use of the TCP protocol, which in September 2000 was a
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`known protocol used for Internet communications.
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`B. Chen and ISO-11172
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`41. Based on my review of Chen (Ex. 1004), the ISO-11172 references
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`(Exs. 1005-1007), it is my opinion that each of the limitations recited in claims 3,
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`10, and 17 are disclosed by a combination of these references. For example, I have
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`reviewed the description of this combination in the accompanying Petition and I
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`agree with it.
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`42.
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`ISO-11172 was published on August 1, 1993. Ex. 1006 at 1. ISO-
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`11172 is the specification the well-known international standard for the encoding
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`and decoding of audio and video streams, commonly known as MPEG-1. ISO-
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`11172 is, and was in 2000, a well-known document that a POSITA would have
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`been aware of.
`
`43.
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`It was well known at the time of the invention that multimedia data
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`could be encoded at either a constant bit rate or a variable bit rate. Claims 3, 10 and
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`17 therefore only offer an obvious variation over the limitations of the respective
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`independent claims. Chen discloses the MPEG-1 standard in the Summary of the
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`Invention as one standard for providing the building blocks of the multimedia data
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`stream. ISO-11172 is the MPEG-1 standard and discloses both a constant bit rate
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`and a variable bit rate. See ISO-11172-1, Ex. 1005 at p. 22; ISO-11172-2, Ex. 1006
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`at p. 27 (discussing flags having differently defined values for fixed/constant bit
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`rate operation and variable/non-constant bit rate operation). The flags that indicate
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`different defined values for constant versus variable bit rate operation are
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`indicative that the standard encompasses both encoding schemes.
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`44. Accordingly, although constant bit rate encoding is not explicitly
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`referenced, one of ordinary skill in the art would understand that Chen’s reference
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`to MPEG-1 implies that the scope of the disclosure encompasses both constant and
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`variable bit rate embodiments.
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`45. Further, if not inherent to Chen, a POSITA would be motivated to
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`look to ISO-11172 to modify the teachings of Chen to support constant bit rate
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`encoded media data - one of the well-known known options of MPEG-1 – for the
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`purposes of supporting a wider variety of media data. Such a modification would
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`be a mere design choice and within the ordinary skill in the art.
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`46.
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`In addition, Chen discloses two processes for keeping track of the last
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`packet transmitted. In a first process, interruptions in transmission are detected by
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`assessing whether any packets have been lost. Chen, Ex. 1004 at 7:24-32. In
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`particular, Chen describes the use of a register for maintaining the last packet 28
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`sequence number that has arrived in order to assess whether the next packet
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`received is sequential. Id. If not, then the system of Chen detects a packet loss.
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`Id. In a second process, the server paces transmission in the Normal mode such
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`that the client agent is not required to send periodic feedback to the server control.
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`Id. at 6:32-39. Thus, in this mode, Chen’s server necessarily tracks the last
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`element sent so as to be able to send the next sequential element without client
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`feedback.
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`C. Chen and Willebeek
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`47. Based on my review of Chen (Ex. 1004) and Willebeek (Ex. 1008), it
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`is my opinion that each of the limitations recited in claims 5, 12, and 19 are
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`disclosed by a combination of these references. For example, I have reviewed the
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`description of this combination in the accompanying Petition and I agree with it.
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`48. Willebeek was published in the IBM Journal of Research and
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`Development, Volume 42 No. 2 in March 1998. Ex. 1008 at 269. The IBM
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`Journal of Research and Development is, and was in 1998, a well-known journal in
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`the field—it would have been known to a POSITA, and would have been available
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`such that a person interested and ordinarily skilled in the subject matter exercising
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`reasonable diligence could have located it in 1998.
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`49. Chen describes opening files from a storage subsystem 12. See FIG.
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`1. In a preferred embodiment, shown in FIG. 4, a parser 62 extracts frame-by-
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`frame timing information from a multimedia file, placing the timing in an index
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`file 63, which is used by the server control 64 to pace transmission. Chen, Ex.
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`1004 at 8:43-55. Chen states that the parser can extract the frame information
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`beforehand or on the fly (during multimedia file transmission). Id. at 8:50-52.
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`50. Willebeek describes a system for streaming audio and video over the
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`Internet, similarly using buffers at a server and client and packetized data.
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`Willebeek further discloses a way to provide the system, which can use stored
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`video like Chen, with a live feed. Specifically, Willebeek describes the use of a
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`capture station that receives audio and video inputs, converts the data from analog
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`to digital, compresses and packetizes it. Willebeek, Ex. 1008 at 277-278; Figure 6.
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`The packets are then transferred to a server with a buffer (the “reflector”).
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`Willebeek maintains a circular buffer queue containing the most recent several
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`seconds of a live transmission. Id. at 278; Figure 6. When a new user requests live
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`video, the server produces a new copy of the circular buffer and that copy is used
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`as that user’s server buffer. Id.; see also Figures 6-7.
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`51.
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`It would have been obvious to a POSITA to combine Willebeek’s
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`teachings of a live capture station and circular buffer queue with Chen so that Chen
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`could provide live video as well as pre-stored video. Doing so would be nothing
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`more than combining the teachings in a known way to achieve predictable
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`results—it is the use of a known technique (Willebeek’s capture station, and
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`circular buffer queue) to improve similar known devices (Chen’s system for
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`serving streaming video and server buffer).
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`52. More specifically, it would have been obvious to a POSITA to
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`configure the combined system so that, if one of Chen’s user’s requested live
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`video, a new copy of a circular buffer queue such as the one produced by
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`Willebeek’s capture station and server would become Chen’s server buffer. Since
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`the circular buffer queue contains a few seconds of video, Chen would then be able
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`to rush the first packets to the user. After that, the packets would be sent at the
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`normal (playback rate), as they are received—packets would be received at the
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`server as they are generated by the capture station from the live feed and, barring
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`interruptions, would be passed to the client packet buffer 31 at the playback rate.
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`Chen, Ex. 1004 at 6:33-39. The teachings of the two systems are especially
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`compatible because they both utilize packetized data. The figure below shows how
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`the modified system would conceptually be arranged, where a copy of a circular
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`buffer is made the server buffer in the Chen system upon each new user request:
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`53. The teachings taken from Willebeek include be the use of a capture
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`20
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`station and circular buffer to generate a new server buffer for each new user—other
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`aspects of Chen could remain the same (e.g., the data would still be encoded in
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`packets according to Chen’s teachings).
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`54.
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`I understand that Patent Owner has argued that Chen could not be
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`compatible with packets from a live feed because Chen needs time to analyze the
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`multimedia files to determine their timing specifications to work, and so Chen
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`could not work with live video. This is incorrect for two reasons. First, Chen’s
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`use of timing information to modify delivery for “frame-level pacing” (i.e.,
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`accounting for differences in frame size) is described as a preferred embodiment.
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`In this embodiment, in addition to the other features, the system also paces video
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`based on frame timing—it is not a requisite or essential part of Chen’s system. See
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`Chen, Ex. 1004 at 8:16-32 (referencing “preferred frame-level pacing”).
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`55. Second, even if frame timing were required, Chen explicitly discloses
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`that extracting frame timing can be done “on the fly (during multimedia file
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`transmission).” Id. at 8:50-52. It notes that the frame time can be “changed at
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`runtime (during transmission) if monitoring by the client agent (30) detects a
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`different playback frame rate.” Id. at 8:50-55. Thus, nothing about the frame-level
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`pacing requires prior access to the media file—extraction of the timing information
`
`can be performed on the packets during transmission. If extraction can be done
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`during transmission (i.e., after the user has requested a file and while they are
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`viewing it), then a POSITA would understand it could in the same way be done
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`during transmission of the live packets. In either case, it involves examining the
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`packet-level information that is being placed in the server buffer. Thus, a POSITA
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`would have no issue with incorporat
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