YOUTOO TECHNOLOGIES, INC.,
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`TWITTER, INC.
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`
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`v.
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`
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`Plaintiff,
`
`Defendant.
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
`
`Case No. 3:16-CV-00764-N
`
`Honorable David C. Godbey
`
`
`JURY TRIAL DEMANDED
`
`
`PLAINTIFF YOUTOO TECHNOLOGIES INC.’S MO62
`PRELIMINARY INFRINGEMENT CONTENTIONS
`
`Pursuant to Miscellaneous Order No. 62 (“MO62”) ¶3-1(a), Plaintiff Youtoo
`
`Technologies, Inc. (“Youtoo”) sets forth the following preliminary contentions with
`
`respect to infringement of the patents in suit, U.S. Patent No. 8,464,304 (“the ‘304
`
`patent”), entitled “Content Creation and Distribution System,” U.S. Patent No. 8,601,506
`
`(“the ‘506 patent”), entitled “Content Creation and Distribution System,” and U.S.
`
`Patent No. 9,083,997 (“the ‘997 patent”), entitled “Recording and Publishing Content on
`
`Social Media Websites,” (collectively "Patents-in-Suit"), by Defendant Twitter, Inc.
`
`(“Twitter”).
`
`These disclosures are based upon information publicly available to Youtoo.
`
`Thus, Youtoo’s investigation of the nature and extent of Twitter’s infringement is
`
`necessarily ongoing, and Youtoo reserves the right to supplement or modify these
`
`disclosures as new information becomes available through discovery or other
`
`Page 1 of 89
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`

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`investigation as provided in the Federal Rules of Civil Procedure and the Local Rules of
`
`this Court.
`
`1.
`
`Twitter has infringed at least claims 1, 4, 5, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19,
`
`20, 21, 22, 23, 24, 25, 26, 28, 29 and 30 of the ‘304 patent under 35 U.S.C. § 271(a) and (b).
`
`Twitter has infringed at least claims 1, 4, 5, 6, 7, 8, 11, 13, 14, 15, 23, 24, 25, 26, 29 and 30
`
`of the ‘506 patent under 35 U.S.C. § 271(a) and (b). Twitter has infringed at least claims
`
`20, 21, 22, 24, 31, and 32 of the ‘997 patent under 35 U.S.C. § 271(a) and (b).
`
`2.
`
`As presently advised, based upon publicly available information and
`
`Youtoo’s own investigation, the Twitter Accused Instrumentalities include Vine and
`
`Periscope. Additionally, based on publicly available information, Youtoo asserts that
`
`the Twitter app may also infringe one or more of the Patents-in-Suit. See, for example,
`
`https://support.twitter.com/articles/20172128#. At the present time, however, Youtoo
`
`does not have sufficient information to determine whether the Twitter app's video
`
`recording and sharing functionality uses Vine technology or Periscope technology and,
`
`as such, Youtoo has not formally accused the Twitter app at this time. Nonetheless,
`
`Youtoo intends to seek information regarding the Twitter app during discovery and
`
`may seek to amend its preliminary contentions to formally accuse the Twitter app, if
`
`appropriate.
`
`Twitter has infringed and is infringing, literally and under the doctrine of
`
`equivalents, at least claims 1, 4, 5, 8, 9, 11, 12, 13, 14, 15, 16, 22, 24, 25, 26, 28, 29 and 30 of
`
`Page 2 of 89
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`

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`the ‘304 patent under 35 U.S.C. § 271(a) through its operation of its video creation and
`
`distribution application Vine and under 35 U.S.C. § 271(b) through its inducement of
`
`others to operate and use Vine. Twitter has also infringed and is infringing, literally
`
`and under the doctrine of equivalents, claims 1, 4, 5, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 20,
`
`21, 22, 23, 24, 25, 26, 28, 29 and 30 of the ‘304 patent under 35 U.S.C. § 271(a) through its
`
`operation of its video creation and distribution application Periscope and under 35
`
`U.S.C. § 271(b) through its inducement of others to operate and use Periscope.
`
`Twitter has infringed and is infringing, literally and under the doctrine of
`
`equivalents, at least claims 1, 4, 5, 6, 7, 8, 11, 13, 14, 15, 23, 24, 25, 26, 29 and 30 of the
`
`‘506 patent under 35 U.S.C. § 271(a) through its operation of its video creation and
`
`distribution application Vine and under 35 U.S.C. § 271(b) through its inducement of
`
`others to operate and use Vine.
`
`Twitter has infringed and is infringing, literally and under the doctrine of
`
`equivalents, at least claims 20, 21, 22, 24, 31, and 32 of the ‘997 patent under 35 U.S.C. §
`
`271(a) through its operation of its video creation and distribution application Periscope
`
`and under 35 U.S.C. § 271(b) through its inducement of others to operate and use
`
`Periscope.
`
`3.
`
`Exhibits A – D are claim charts identifying where each element of each
`
`asserted claim is found in the Accused Instrumentalities. A representative claim chart
`
`comparing the asserted claims of the ‘304 patent to Vine is attached as Exhibit A. A
`
`Page 3 of 89
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`representative claim chart comparing the asserted claims of the ‘506 patent to Vine is
`
`attached as Exhibit B. A representative claim chart comparing the asserted claims of
`
`the ‘304 patent to Periscope is attached as Exhibit C. A representative claim chart
`
`comparing the asserted claims of the ‘997 patent to Periscope is attached as Exhibit D.
`
`These claim charts are based on a reasonable investigation of publicly-available
`
`information, and Youtoo reserves the right to supplement these charts based upon
`
`further discovery and investigation.
`
`4.
`
`As presently advised, Youtoo contends that each element of the asserted
`
`claims of the Patents-in-Suit is literally present in or practiced by the Twitter Accused
`
`Instrumentalities. Youtoo reserves the right to assert the doctrine of equivalents based
`
`on Twitter's non-infringement positions, information and materials produced during
`
`discovery, additional analysis of the Accused Instrumentalities, and/or the Court's
`
`construction of any disputed claim term or phrase.
`
`5.
`
`The
`
`‘304 is a continuation-in-part of U.S. patent application No.
`
`13/013,775, filed on January 25, 2011. The ‘304 patent was issued by the United States
`
`Patent and Trademark Office (“USPTO”) on June 11, 2013. As presently advised,
`
`Youtoo contends that the asserted claims of the ‘304 patent are entitled to a priority date
`
`at least as early as July 18, 2011.
`
`The ‘506 patent is a continuation of application No. 13/185,471, filed July 18, 2011,
`
`which is a continuation-in-part of application No. 13/013,775, filed January 25, 2011.
`
`Page 4 of 89
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`The ‘506 patent was issued by the USPTO on December 3, 2013. As presently advised,
`
`the asserted claims of the ‘506 patent are entitled to a priority date at least as early as
`
`July 18, 2011.
`
`The ‘997 patent is a continuation of application No. 13/475,765, filed on May 18,
`
`2012, now Patent No. 8,311,382, which claims priority to provisional application No.
`
`61/644,409 filed May 9, 2012. The ‘997 patent was issued by the USPTO on July 14, 2015.
`
`As presently advised, Youtoo contends that the asserted claims of the '997 patent are
`
`entitled to a priority date as least as early as May 9, 2012.
`
`6.
`
`As presently advised, the Youtoo products which practice the asserted
`
`claims of the Patents-in-Suit are indicated in Exhibit E.
`
`
`
`Respectfully submitted,
`
`
`
`
`/s/ Olivia Luk Bedi
`Jonathan T. Suder (Texas State Bar No. 19463350)
`Todd I. Blumenfeld (Texas State Bar No. 24067518)
`FRIEDMAN, SUDER & COOKE
`Tindall Square Warehouse No. 1
`604 East Fourth Street, Suite 200
`Fort Worth, Texas 76102
`jts@fsclaw.com, blumenfeld@fsclaw.com
`Main: (817) 334-0400
`Fax: (817) 334-0401
`
`Paul K. Vickrey (N.D. Texas Bar No. 90393IL)
`Olivia Luk Bedi (pro hac vice)
`Laura A. Kenneally (pro hac vice)
`Gretchen L. Schmidt (pro hac vice)
`NIRO LAW, LTD.
`181 W. Madison, Suite 4600
`Chicago, Illinois 60602
`
`Page 5 of 89
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`

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`Main: (312) 236-0733
`Fax: (312) 236-3137
`Vickrey@niro.law, obedi@niro.law,
`lkenneally@niro.law, gschmidt@niro.law
`
`Attorneys for YoutooTechnologies, LLC
`
`
`
`Page 6 of 89
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on August 26, 2016 the foregoing
`
`PLAINTIFF YOUTOO TECHNOLOGIES, INC.'S MO62
`PRELIMINARY INFRINGEMENT CONTENTIONS
`
`was served upon the following counsel of record via electronic transmission.
`
`
`
`Sonal N. Mehta (pro hac vice)
`Laura E. Miller (pro hac vice)
`James S. Tsuei (pro hac vice)
`DURIE TANGRI LLP
`217 Leidesdorff Street
`San Francisco, California 94111
`Email: smehta@durietangri.com
`Email: lmiller@durietangri.com
`Email: jtsuei@durietangri.com
`Tel.:
`(415) 362-6666
`Fax:
`(415) 236-6300
`
`David L. McCombs
`Charles M. Jones II
`HAYNES AND BOONE, LLP
`2323 Victory Avenue, Suite 700
`Dallas, Texas 75219
`Email: david.mccombs@haynesboone.com
`Email: charlie.jones@haynesboone.com
`Tel.:
`(214) 651-5000
`Fax:
`(214) 651-5940
`
`Counsel for Twitter, Inc.
`
`
`
`
`
`
`/s/ Olivia Luk Bedi
`Attorneys for Plaintiff
`NIRO LAW
`
`
`
`
`
`Page 7 of 89
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`

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`Exhibit A
`
`Youtoo's Preliminary Infringement Contentions
`Infringement of U.S. Patent No. 8,464,304 by Twitter's Vine
`
`Page 8 of 89
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`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumen tali ties.
`Claim 1
`A method performed by data
`processing apparatus, the method
`comprising:
`
`Vine
`Twitter has infringed claim 1 of Ll.S. Patent No. 8,464,304 (the '304 patent) under
`35 U.S.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`sharing service Vine, and its inducement of others to practice the invention. Vine
`consists of services that run on host servers and an app that runs on an Android,
`Windows or iOS client device.
`
`"
`
`receiving video data from a client
`Vine receives video data at a server system from a client computing device such as
`computing device at a server system, an Android, Windows or iOS smartphone.
`
`To determine which server receives the video data, the Charles Web Debugging
`Proxy Application' was used to monitor transmissions from a client device
`running Vine. From the trace results, it was determined that the Vine client app
`uploads data to http://media.vineapp.com.
`
`Executing the standard Internet "tracert" inquiry shows this to be a server at IP
`address 54.225.188.150
`
`C: \ Users \ Owner>tracert www.vineapp.com
`Tracing route to www.vineapp.com [54.225.166.150]
`
`wherein the video data is captured Vine includes an app that runs on the smartphone: Android, Windows or iOS.
`using a camera connected to the
`As shown in the screenshots below (taken during the installation of the Vine app
`client computing device in
`on, respectively, an Android and an lOS smartphone), the Vine app requires
`
`t httpsv/www.charlesproxy.com/
`
`1
`
`Page 9 of 89
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`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. Youtoo reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim, 1
`accordance with instructions
`executed on the client computing
`device,
`
`Vine
`access to the camera on the device:
`Cl n n n
`~ rJ ~ l'
`737 PM
`f) Vine - video entertainment
`
`needs access to
`
`Identity
`
`.g.
`~ Contacts
`9 Location
`J3 SMS
`,~ Camera
`'-" Photos/Media/Files
`"- Microphone
`[!J
`
`Device ID & call
`information
`IJ.l Other
`
`GooglePlay
`
`MWME
`
`Figure 1 Android Installation
`Vine requires the user to grant
`access to the camera on the
`Android
`
`Vine requires the user to grant
`access to the camera on the iOS
`device
`
`The computer instructions in the Vine app use the camera to capture video data.
`
`wherein the instructions are
`
`Vine is an app that consists of instructions written in a computer language
`riate to the client device. A
`2
`
`stem
`
`Page 10 of 89
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`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 1
`device by the server system and
`cause the video data to be captured
`in accordance with predetermined
`constraints and the predetermined
`constraints include a frame rate
`defined by the instructions;
`
`Vine
`such as the Android Operating System, Windows or iOS and distributed through a
`process whereby they are uploaded to an OS-specific distribution server system
`such as the iTunes Store, Windows Store or Coogle Play host and then requested
`by the users of client devices that run that particular operating system. The
`instructions, thus, are provided to the client computing device by a server system.
`
`As shown above, the computer instructions in the app access the camera to
`capture the data.
`
`Vine co-founder Colin Kroll has stated publicly- that "Videos on Vine" are
`recorded according to a pre-determined constraint of 480x480 pixels and that
`frame rates are recorded at a rate that is constrained between 22 and 30 Frames Per
`Second (FPS):
`M'i,ljdeo5 OJ;! VillI<! ~re recorded at 4S{l:4:4S0 ,1:11iIlS the fi::!64 codee, The !i"-ame
`rate ill variable, depend±ng on your device amllightillg colldilirollS, bill
`g~fI!'!ralDy docks ill around 22·30FPS.·
`
`Vine co-founder Colin Kroll has also publicly acknowledged" that Vine
`automatically transcodes the video data, first into H.264 format and then,
`subsequently into at least one different format for use at different bit rates.
`
`automatically transcoding the video
`data, using a server included in the
`server system, into at least one
`different format based on at least
`one of user credentials associated
`with a user of the client computing
`
`2 h ttps:llwww.technologyreview.com/s/51 0511/how- vine-sa tisfies- its-need - for-speed/
`3 h ttps:! Iwww.technologyreview.com/s/51 0511/how- vine-sa tisfies- its-need -for-specd/
`3
`
`Page 11 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. Youtoo reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`.; Vine
`Claim 1
`device or attributes associated with
`the video data,
`
`"\"I'e begin the [v{!:1et)3 rut<i'.ooing process in VIlle as soen as J'i)u start
`~~-Q.dillg r~ clip]. Since We'F(;! e!1<wdillS to h.264, we a15Q belJefit fr011l
`hardware acceteranon in the iPha.lle and Woo Toucll ehipsets. Vidoos 111ar
`HI'!! UplCladl'!d to, Vin!!! are transccded to. dlfferent bh rates em our servers fur
`dLffereLll connecth1l:y scenarios,"
`Vine is able to distinguish video sources from each other (for example, Android v.
`iOS) based on information transmitted from the app as well as from attributes
`such as the bit rates of the data. The encoding to different bit rates must be based
`on the bit rate of the initial video and this, thus, is based on at least one of
`credentials associated with a user of the client computing device or attributes
`associated with the video data.
`wherein at least one format of the
`As disclosed by Vine co-founder Colin Kroll", Vine encodes the video file to H.264
`transcoded video data defines a
`format (MPEG-4 part 10, a block-oriented motion-compensation-based video
`video file in a format appropriate for compression standard that is currently one of the most commonly used formats for
`inclusion in a linear television
`the recording, compression and distribution of video content.) H.264 is one of the
`programming broadcast; and
`formats appropriate for inclusion in a linear television programming broadcast.
`
`The practical use of Vine to create content that can be included in a linear
`television programming broadcast was demonstrated at least on March 13, 2015,
`when The Tonight Show Starring Jimmy Fallon promoted a contest by giving fans
`a chance to win a new car by entering a rap video on Vine showing why they
`needed a new Lexus.
`
`"Sponsor may choose to broadcast on-air and/or display on the Website a
`
`4 https://www.tec!mo]ogyreview.com/s/510511/how-vine-satisfies-its-need-for-speed
`4
`
`Page 12 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 1
`
`Vine
`
`selection of Entries and/or Videos, as determined by Sponsor in their sale
`discretion." 5
`
`uploading the transcoded video data As described above, the Vine client app initially uploads data to
`to a distribution server for
`http://media.vineapp.com (IP address 54.225.188.150, a server located in the
`distribution.
`Amazon facility in Ashburn Virginia; Amazon Technologies is listed in Whois as
`the ISP), where, per Vine co-founder Colin Kroll, the video is transcoded at least
`for differing bit rates. 6
`"'We b@gln the [vtdoo] en.codlng process In Vine: as soon as you start
`r{;"4XIroillg [~cllp]. Sil1loowe·~e:!!fI.CQdiJ1g to 11-264, we ali:iQ benefit t'mm
`hardware acce!eratIDll in the i"Pholle and iFod Towell chipset!>. videos ti'Ult
`.a:ro u~ol!ded to Vinll an! ttllru<;OO«l to, dlfff!:;mnt bIt rates Orl om ser;'CiT'S fOT
`different connectivity sceaarios,"
`The videos, after all transcoding is complete, are then made accessible through a
`distribution server, for example, https://vine.co.
`
`A standard Internet TraceRt inquiry shows this to be IP address 23.21.231.154
`
`C: \ Users \ Owner>tracert www.vine.co
`Tracing route to www.vine.co [23.21.231.154]
`
`This is a server that appears to be located in the Amazon facility in Ashburn,
`
`5 http://www.nbc.com/the-tonight -show /blog/the-tonigh t -show -lexus- vine-challenge-offi cial- m usic/115196
`6 http s:/ /www.technologyreview.com/s/51
`0511/how- vine-sa tisfies- its-need - fo r-speed/
`5
`
`Page 13 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 1
`
`Vip'
`Virginia (Amazon. com, Inc. is listed as the ISP.) The data, thus, has been uploaded
`after transcoding to a distribution server(s) at the Internet address 23.31.231.154 for
`distribution.
`
`Claim 4
`Vine
`The method of claim 1 wherein the Twitter has infringed claim 4 of u.s. Patent No. 8,464,304 (the '304 patent) under 35
`instructions executed on the client U.s.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`computing device are included in
`sharing service Vine, and its inducement of others to practice the invention.
`an application installed on the client
`computing device.
`
`The instructions executed by the client are included in the Vine App that is
`downloaded to the user's smartphone.
`
`6
`
`Page 14 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`
`Claim 5
`The method of claim 1 wherein at
`least a portion of the video data is
`buffered on the client computing
`device using scripts included in the
`instructions executed on the client
`computing device based on
`bandwidth constraints for
`transmitting the video data from
`the client computing device.
`
`Reduce cellular data usage
`t ewers Ihn clavback quall!',' .. '.'h~~I\ IV)! (In \V;F
`
`Reduce storage usage
`Increases the data usage to reci\Jt;c storaqe
`US2.g€-
`
`buffering.)
`
`7
`
`Twitter has infringed claim 5 of U.S. Patent
`No. 8,464,304 (the '304 patent) under 35 u.s.c.
`§ 271(a) and (b) through its operation, use,
`sale, and offering of its video sharing service
`Vine, and its inducement of others to practice
`the invention.
`
`For example, in at least the iPhone version of
`the app, the user can configure the app to
`balance bandwidth and storage usage, as
`shown in the screen capture to the left. The
`use of the storage is almost certainly for
`buffers.
`
`There may, additionally, be other buffering
`that is performed during upload. It is a very
`common implementation to use buffering
`while transmitting data between a client and
`host. Typically, apps use the resources
`offered by the device's 10 subsystem to
`execute the transmission of data (including
`
`Page 15 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. Youtoo reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 8
`Vine
`The method of claim 1 wherein the Twitter has infringed claim 8 of U.S. Patent No. 8,464,304 (the '304 patent) under 35
`predetermined constraints include a U.S.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`bit rate and an image resolution
`sharing service Vine, and its inducement of others to practice the invention.
`sufficient to enable transcoding of
`the video data into the format
`appropriate for inclusion in the
`linear television programming
`broadcast.
`
`As disclosed by Vine co-founder Colin KroIF, Vine encodes the video file to H.264
`format (MPEG-4 part 10, a block-oriented motion-compensation-based video
`compression standard that is currently one of the most commonly used formats for
`the recording, compression and distribution of video content.) H.264 is one of the
`formats appropriate for inclusion in a linear television programming broadcast.
`
`The practical use of Vine to create content that can be included in a linear television
`programming broadcast was demonstrated at least on March 13, 2015, when The
`Tonight Show Starring Jimmy Fallon promoted a contest by giving fans a chance to
`win a new car by entering a rap video on Vine showing why they needed a new
`Lexus.
`
`"Sponsor may choose to broadcast on-air and/or display on the Website a selection
`of Entries and/or Videos, as determined by Sponsor in their sole discretion." 8
`
`0511!how-vine-satisfies-i ts-need-for-speed
`7 https:/ /www.technologyreview.com/s/51
`8 httpy/www.nbc.com/the-tonight
`-show /blog/the-tonight -show-lexus- vine-challenge-offi cia! - m usi c/115196
`
`8
`
`Page 16 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 9
`Vine
`Twitter has infringed claim 9 of u.s. Patent No. 8,464,304 (the '304 patent) under 35
`The method of claim 1 wherein
`transcoding the video data includes U.S.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`using a predetermined automated
`sharing service Vine, and its inducement of others to practice the invention.
`transcoding workflow
`corresponding to the
`predetermined constraints to
`transcode the video data into the
`transcoded video data.
`
`Vine co-founder Colin Kroll has also publicly acknowledged that a predetermined
`automated workflow is executed both to transcode to H.264 as well as to transcode
`the videos to different bit rates for different connectivity scenarios, and that this
`happened automatically:"
`
`"l'l'e beg;l.ll the [vfdoo] ctlltooillg, process III Vine as seen as you start
`reeol"(jiog [;3 clip)', Since we're ~Joodi!1g to h.::t'(i.q, we ;l)1;(J benefit from
`11Md\.<ro.re aceeleratioa ill the WhO,ll!.! alld iPod Touch chipset3. vtiLeos that
`Jjt'rt uttlop.d~;:1 to Vin~ are lnm~~lCl.'L>d to diffm:-!!:llt bit rates on our servers fur
`different cOElllecth~t)' sreJ'),arios:'
`
`9 https:/ /www.technologyreview.com/s/51
`
`0511/how-vine-satisfies-its-need
`
`-for-speed/
`9
`
`Page 17 of 89
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`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`
`Vine
`Claim 11
`Twitter has infringed claim 11 of U.S. Patent No. 8,464,304 (the '304 patent) under
`The method of claim 1 further
`35 U.s.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`comprising performing an
`automated review of at least one of sharing service Vine, and its inducement of others to practice the invention.
`the video data or the trans coded
`video data to identify potentially
`inappropriate content.
`
`Vine has stated that the service may not be used to distribute certain types of
`inappropriate content. While the enforcement mechanisms are not specified in the
`terms of service, Vine states that users who violate the policy could face suspension
`until they remove the content, while severe or repeated violations may result in
`permanent suspension. It is clear, thus, that tools must exist for the Vine
`administrator to identify and perform review of questionable content.'?
`
`As appropriate, Youtoo will supplement these contentions based on discovery
`obtained during discovery regarding the review tools.
`
`10 https://vine.co/terms
`
`10
`
`Page 18 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. Youtoo reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`
`Vine
`Twitter has infringed claim 12 of U.S. Patent No. 8,464,304 (the '304 patent) under
`35 U.s.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`sharing service Vine, and its inducement of others to practice the invention.
`
`Vine, as a matter of course, displays a single frame as indicative of the content of a
`video:
`
`Claim 12
`The method of claim 11 further
`comprising:
`retrieving the transcoded video
`data for manual review; and
`presenting a review interface
`adapted to:
`provide an indication of at least one
`frame within the transcoded video
`file including content identified as
`potentially inappropriate content;
`and
`allow an administrator to select the
`transcoded video file for manual
`review.
`
`o
`I
`
`1"-,t(I%$l~·.,,,~F~"
`.fQoIloq:~I""""tc)""CM:e';
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`o '#
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`f
`
`11
`
`Page 19 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 12
`
`Vine
`
`-
`
`The administrator may examine such images (or other images) using tools that
`allow them to select and review the video. As noted above, while the enforcement
`mechanisms are not specified in the terms of service, Vine states that users who
`violate the policy could face suspension until they remove the content, while severe
`or repeated violations may result in permanent suspension.
`It is clear, thus, that
`tools must exist for the Vine administrator to identify and perform review of
`questionable content.
`
`As appropriate, Youtoo will supplement these contentions based on discovery
`obtained during discovery regarding the administrator's review tools.
`
`12
`
`Page 20 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`
`Clam, 13
`The method of claim 1 further
`comprising:
`
`Vine
`Twitter has infringed claim 13 of U.S. Patent No. 8,464,304 (the '304 patent) under
`35 U.s.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`sharing service Vine, and its inducement of others to practice the invention.
`
`retrieving the transcoded video
`data for manual review;
`
`presenting a review interface
`adapted to allow an administrator
`to select among a plurality of
`trans coded video files for manual
`review;
`receiving a selection of a particular
`transcoded video file for review
`through the review interface;
`
`Vine has stated that the service may not be used to distribute certain types of
`inappropriate content. While the enforcement mechanisms are not specified in the
`terms of service, Vine states that users who violate the policy could face suspension
`until they remove the content, while severe or repeated violations may result in
`permanent suspension.
`It is clear, thus, that tools must exist for the Vine
`administrator to identify and perform review of questionable content."
`
`As appropriate, Youtoo will supplement these contentions based on discovery
`obtained during discovery regarding the review tools.
`Vine provides standard search tools that an administrator of a television show can
`used to review and select among a plurality of transcoded video files for manual
`review. For instance, the search for "tonightshowlexuscontest" will cause a page
`showing some of the entries to the Lexus give-away contest to be displayed" as
`shown below:
`
`11 https://vine.co/terms
`12 https://vine.co/search/tonightshowlexuscontest
`
`13
`
`Page 21 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 13
`
`Vine
`
`! .~~ \~,~ l"'U~)''1III'I) P~a
`.tbn9'llSn<",~,c.'mCOlT!esl
`
`o " 1
`
`I
`
`presenting video defined by the
`particular trans coded video file
`through the review interface in
`res onse to the selection;
`And receiving a selection of the
`particular trans coded video file for
`publication through the review
`interface, wherein uploading the
`transcoded video data to a
`
`When the still image for the video is moused over, the video is played.
`
`It does not appear that a copy of the transcoded video file for publication can be
`obtained through the review interface offered to conventional user.
`It is unknown
`at this time exactly what tools are available to the administrators or precisely how
`the Tonight Show obtained the copies of the videos that were displayed on
`broadcast television.
`
`14
`
`Page 22 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. Youtoo reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 13
`distribution server is performed in
`response to the selection of the
`particular transcoded video file for
`publication.
`
`It is, however, apparent that the content was shown on broadcast television;"
`
`13 https:/lspaces.hightail.com/receive/ZOITK
`
`15
`
`Page 23 of 89
`
`

`

`Ex. A to Youtoo's M062 3-1 Preliminary Infringement Contentions. You too reserves the right to supplement these contentions as
`discovery progresses, including, upon receipt of documents and testimony concerning the structure, function, and operation of the
`Accused Instrumentalities.
`Claim 14
`The method of claim 1 wherein the
`video data is received in response
`to a request to submit content for
`potential inclusion in a linear
`television programming broadcast.
`
`Vine
`Twitter has infringed claim 14 of U.s. Patent No. 8,464,304 (the '304 patent) under 35
`U.S.c. § 271(a) and (b) through its operation, use, sale, and offering of its video
`sharing service Vine, and its inducement of others to practice the invention.
`
`The practical use of Vine to create content that can be included in a linear television
`programming broadcast was demonstrated at least on March 13, 2015, when The
`Tonight Show Starring Jimmy Fallon promoted a contest by giving fans a chance to
`win a new car by entering a rap video on Vine showing why they needed a new
`Lexus.
`
`"Sponsor may choose to broadcast on(cid:173)
`air and/or display on the Website a
`selection of Entries and/or Videos, as
`determined by Sponsor in their sole
`discretion." 14
`
`For example, as shown in the image on
`the left, each of the users submitted a
`Vine video (user submission content
`file) to The Tonight Show Lexus Vine
`Challenge #tonightshowlexuscontest,
`
`14 http://www.nbc.com/the-tonigh t -show /b