UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SONOS, INC.
`Petitioner
`
`v.
`
`IMPLICIT, LLC
`Patent Owner
`
`Case: To be assigned
`Patent No. 8,942,252
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`
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`
`
`PRELIMINARY RESPONSE TO PETITION FOR INTER PARTES
`REVIEW OF U.S. PATENT NO. 8,942,252
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SONOS, INC.
`Petitioner
`
`v.
`
`IMPLICIT, LLC
`Patent Owner
`
`Case: To be assigned
`Patent No. 8,942,252
`
`
`
`
`
`
`
`
`
`PRELIMINARY RESPONSE TO PETITION FOR INTER PARTES
`REVIEW OF U.S. PATENT NO. 8,942,252
`
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
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`INTRODUCTION ............................................................................................... 1
`I.
`II. THE ’252 PATENT .......................................................................................... 3
`III. THE PRIOR ART ............................................................................................. 6
`IV. CLAIM CONSTRUCTION ...........................................................................11
`V. THE APPLICABLE LAW .............................................................................11
`VI. PETITIONER’S GROUNDS .........................................................................13
`A. Janevski coupled with the knowledge of a person of ordinary skill does not
`yield the claimed inventions .................................................................................14
`B. Janevski coupled with the alleged prior art does not yield the claimed
`inventions ..............................................................................................................16
`1. The prior art does not teach “smoothing a rendering time differential” .....16
`2. Petitioner fails to demonstrate a reason to combine any prior art
`“smoothing” with Janevski, or explain how such a combination would work .17
`3. Baumgartner and Janevski are incompatible ...............................................19
`4. Combining “smoothing” with Janevski would not result in an operable
`method, much less the claimed methods ...........................................................20
`VII. CONCLUSION ...........................................................................................23
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`
`
`
`
`i
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`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`Beckson Marine, Inc. v. NFM, Inc.,
`292 F.3d 718 (Fed. Cir. 2002) ..............................................................................13
`Dynamic Drinkware, LLC v. National Graphics, Inc.,
`800 F.3d 1375 (Fed. Cir. 2015) ............................................................................11
`Graham v. John Deere Co.,
`383 U.S. 1 (1966) ..................................................................................................12
`Harmonic Inc. v. Avid Tech., Inc.,
`815 F.3d 1356 (Fed. Cir. 2016) ............................................................................11
`In re Wilson,
`424 F.2d 1382 (C.C.P.A. 1970) ............................................................................12
`In re: Hodges,
`882 F.3d 1107, 1111 (Fed. Cir. 2018) ..................................................................22
`In re: Stepan Company,
`868 F.3d 1342 (Fed. Cir. 2017) ............................................................................22
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ..............................................................................................12
`Personal Web Technologies, Inc. v. Apple Inc.,
`848 F.3d 987 (Fed. Cir. 2017) ....................................................................... 13, 16
`Statutes
`
`35 U.S.C. § 103 ......................................................................................... 1, 2, 12, 13
`35 U.S.C. § 103(a) ...................................................................................................12
`35 U.S.C. § 314 ........................................................................................................11
`
`
`
`
`
`ii
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`
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`I.
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`INTRODUCTION
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`Patent Owner Implicit, LLC (“Implicit”) opposes institution of Inter Partes
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`Review on all grounds because Petitioner Sonos, Inc. (“Petitioner”) cannot show a
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`reasonable likelihood of demonstrating invalidity of any challenged claim.
`
`Petitioner alleges invalidity under 35 U.S.C. § 103, relying primarily on a
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`single prior art reference, U.S. Patent No. 7,269,338 (“Janevski”) (Ex. 1007).
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`Petitioner fails to demonstrate, however, that Janevski, either alone or in
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`combination with other alleged prior art cited in the Petition, discloses every
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`element of any challenged claim.
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`The patent at issue, U.S. Patent No. 8,942,252 (“the ’252 Patent”) (Ex.
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`1001), discloses and claims methods of synchronizing the rendering of a single
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`content stream on multiple devices. In order to do that, the ’252 Patent teaches the
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`use of “master and slave” devices that track and use two separate and distinct
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`elements: 1) “device” time, and 2) “rendering” time. The ’252 Patent further
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`teaches “smoothing” a “rendering time differential that exists between the master
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`rendering device” and “slave device.” All of the claims at issue in this Petition
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`require smoothing of rendering times.
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`Petitioner does not identify anywhere in the prior art the smoothing of a
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`rendering time differential. Petitioner concedes Janevski does not teach smoothing
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`of a rendering time differential. Pet., at 42. Petitioner argues instead that it would
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`1
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`
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`have been obvious to modify Janevski, based on a statement by its expert that
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`smoothing functions were known in the prior art.
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`Petitioner’s expert testimony does not satisfy the requirements to prove
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`obviousness under 35 U.S.C. § 103. Petitioner’s expert argues that smoothing
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`functions were known in the prior art, citing technical articles and textbooks dating
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`to as early as 1971. But Petitioner does not rely on these sources as prior art, much
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`less demonstrate a reason, suggestion, or motivation to adapt prior art smoothing
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`functions and combine them with prior art synchronization methods. In the end,
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`Petitioner and its expert are left with nothing more than conclusory testimony that
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`Janevski “could be modified” to achieve the claimed invention.
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`In a series of alternative arguments, Petitioner argues that Janevski could
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`have been combined with various prior art references that may teach the use of a
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`smoothing function. But again, Petitioner does not identify the claimed
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`requirement of “smoothing a rendering time differential” in any of those
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`references. Petitioner merely demonstrates, at most, that smoothing algorithms
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`have been used in the prior art for various other purposes. Petitioner’s claimed
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`combination thus does not meet all of the requirements of the claims for which the
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`Petition seeks review.
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`
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`2
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`
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`II. THE ’252 PATENT
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`The ’252 Patent is directed to a method and system for synchronizing the
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`rendering of content on multiple networked devices. It allows, for example,
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`simultaneous playback of audio and/or video across multiple devices. Over the
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`past several years, the patented technology has achieved remarkable commercial
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`success. Because the patented technology allows a single content stream to be
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`rendered with extraordinarily tight synchronization at multiple networked devices,
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`it has been widely adopted in the wireless, multi-room audio space. Examples
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`include Sonos’s popular speaker systems, marketed and sold by the Petitioner.
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`The problem of synchronizing the rendering of content is an old one.
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`Multimedia presentations, for example, confronted the problems of synchronizing
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`video, audio, and text. Ex. 1001, at col. 1:23-28). In the case where the rendering
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`device is a single device, operating on a single clock (such as a television,
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`computer, or smartphone), various solutions are possible.
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`The problem becomes more complicated, however, where multiple devices
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`are used to render content simultaneously. This is because each rendering device
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`has its own system clock, which means that each rendering device typically
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`operates in its own “time domain.” Ex. 1001, at col. 1:40-44. The clocks on each
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`of the system’s devices typically operate on slightly different frequencies, such that
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`the “time domains” of each rendering device can, over time, drift out of alignment.
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`3
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`
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`A viewer would perceive content to be out of synchronization. Ex. 1001, at col.
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`1:44-46.
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`The ’252 Patent’s solution
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`to
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`the problem of rendering content
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`simultaneously on multiple devices (the “rendering devices”) includes methods and
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`systems for exchanging information or “messages” between the various devices.
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`The messages may, depending on the embodiment, include “device times,”
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`“rendering times,” and/or other information that indicates one or both of these
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`elements. Ex. 1001, at col. 2:15-17. A device time is a time indicated by that
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`device’s system clock. Ex. 1001, at col. 2:20-21. A “rendering time” identifies a
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`specific position in the content stream. It can be the time represented by the
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`amount of a specific item of content that a rendering device has rendered. Ex.
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`1001, at col. 2:18-19. Or, it can be an idealized “rendering time” that identifies a
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`content position that “may not correspond to the actual rendering time of any of the
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`rendering devices.” Ex. 1001, at col. 5:65-6:1.
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`In order to exchange information to synchronize rendering of content, one
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`device is identified as the “master” device, while the remaining devices are
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`identified as “slave” devices. Ex. 1001, at col. 2:32-36. Messages are exchanged
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`between the devices to clearly identify the master device and the slave devices. Id.
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`In order to synchronize the devices, in one embodiment, the master device
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`sends a message to each slave device, including: 1) the master’s rendering time,
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`4
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`
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`and 2) the master’s device time. Ex. 1001, at col. 2:34-36. Each slave device then
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`determines whether it is synchronized with the master’s rendering time. If not, the
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`slave adjusts its rendering time to adjust for the difference between the master
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`rendering time and its own rendering time. Ex. 1001, at col. 2:39-42.
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`To make an adjustment, in one embodiment, the slave device exchanges
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`device time and rendering time information for the master and slave devices, along
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`with time stamps on the messages exchanging the information, allowing the slave
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`device to determine by how much its rendering time is out of alignment with the
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`master device’s rendering time. The slave device can, for example, compare the
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`slave rendering time to the master rendering time at a given slave device time. Or,
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`the slave device can compare the slave device time at a given rendering time to the
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`master device time at the same rendering time. Ex. 1001, at col. 2:42-48.
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`The ’252 Patent teaches, in addition to calculating latency using rendering
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`times and device times, using information from multiple time points to further
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`assist synchronization. A component can use the stored information to “smooth”
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`the time domain differentials using various techniques. Ex. 1001, at col. 7:16-17.
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`Time domain differentials can be smoothed, for example, by averaging the last
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`several differentials. Ex. 1001, at col. 7:17-19. In one embodiment, the last eight
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`pairs of time domain differentials are stored, and the system calculates the average
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`of the minimum value of the set of eight larger differentials and the maximum
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`5
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`
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`value of eight smaller differentials. Ex. 1001, at col. 7:21-26, Fig. 7. A decaying
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`function can be used to limit the impact of the oldest time differentials. Ex. 1001,
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`at col. 7:18-21. The smoothed time domain differentials are then used to
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`synchronize the master and slave rendering times.
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`All claims of the ’252 Patent require smoothing a time differential and, in
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`particular, the rendering time differential.
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`III. THE PRIOR ART
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`Petitioner primarily relies on Janevski. Patent Owner does not dispute, for
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`purposes of this Preliminary Response only, that Janevski is prior art to the ’252
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`Patent.1
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`Janevski is directed to the problem of simultaneous playback of digital
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`content at remote locations that have each recorded and stored their own copy of
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`the content to be played back. Ex. 1007, at col. 5:3-10. The digital content
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`streams are pre-recorded on and played back from Personal Video Recorders
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`(“PVRs”). Janevski purports to allow multiple viewers to simultaneously view
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`content, that they have each previously recorded, in their respective homes
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`1 Patent Owner does not believe that Janevski is prior art, and reserves its right to
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`challenge the prior art status of Janevski should review be instituted or in any other
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`proceeding.
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`6
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`
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`simultaneously with one another, and to rewind or fast-forward content at remote
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`locations while maintaining simultaneous viewing for all viewers. Ex. 1007, at
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`col. 5:16-19; col. 15:22-26.
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`The primary manner in which Janevski addresses the problem of
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`simultaneous playback is content-based synchronization. “To achieve precise
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`synchronization, the present invention compares corresponding content or
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`‘landmarks’ of pairs of video playbacks to be synchronized, determines video
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`replay ‘distance’ between the landmark pairs, and slows downs or speeds up
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`selected playbacks in accordance with these distances.” Ex. 1007, at col. 3:52-57.
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`Janevski allows remote devices to exchange information about rendering time to
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`facilitate its content matching. All calculations are based solely on rendering
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`times.
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`Two or more users may participate in a viewing session. The first user to
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`play given content is the “initiator” device, while the remaining devices are
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`“participant devices.” Ex. 1007, at col. 6:16-21. An initiator device can be a
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`participant device, and a participant device can be an initiator device. Ex. 1007, at
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`col. 6:22-23. If, for example, a user of a participant device performs an operation
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`on the streamed content, such as fast-forward, the participant device becomes the
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`“initiator” device for that operation. Ex. 1007, at col. 6:23-25. Accordingly,
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`
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`7
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`
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`“initiator/participant” is not a persistent designated status, but rather a status that is
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`conditional on a given operation.
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`To synchronize playback, an initiator device sends a message to participant
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`devices. The message includes a time stamp from the “video timer,” which is the
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`rendering time of the video or digital stream. Ex. 1007, at col. 7:41-47, col. 9:15-
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`29. The participant notes the time the message was received on its own video
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`timer, and sends a reply including the time of the reply message according to that
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`video timer. Ex. 1007, at col. 9:21-17, col. 10:10-17. The initiator notes the time
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`of receipt as measured by its own video timer. Ex. 1007, at col. 10:17-18. Using
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`this set of rendering times, the initiator device can calculate time delays in the
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`rendering of content between initiator and participant devices. Ex. 1007, at col.
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`12:18-29.
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`The initiator device, having calculated the time delay between the rendering
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`times of the initiator and participant devices, also selects a “query frame,” which is
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`a “frame that the initiator device has just played or has recently played, so that the
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`content of the query frame and its respective time stamp represent where the
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`playback is in the content at a particular time which is current.” Ex. 1007, at col.
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`12:5-11.
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`The initiator then sends messages to the participant devices including the
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`time misregistration, query frame time stamp, and other information. Ex. 1007, at
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`
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`8
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`
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`col. 12:30-36. Upon receiving the message including time misregistration, the
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`participant PVR may advance or rollback the playing of video to compensate for
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`the time misregistration. Ex. 1007, at col. 12:50-56.
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`To accomplish synchronization, the participant device uses the information
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`sent by the initiator device to calculate “frame misregistration,” which is the
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`difference in the number of frames between the initiator’s query frame and the
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`participant device’s frame at or near the rendering time of the initiator device’s
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`selected query frame. Ex. 1007, at col. 13:24-28. To synchronize the content, the
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`participating device, based on the frame misregistration, searches for an
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`appropriate frame to fast-forward or rewind toward. See generally Ex. 1007, at
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`col. 13:29-15:2.
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`Janevski does not teach, anywhere, smoothing a rendering time differential.
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`Nor does any of the other prior art cited in the Petition. The Azevedo
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`publication (Ex. 1010) is directed to convergence algorithms used in clock
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`synchronization. Ex. 1010, at 1. Azevedo teaches smoothing of “correction
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`terms” used in one algorithm. Ex. 1010, at 4. Azevedo does not teach, and
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`Petitioner notably does not allege that Azevedo teaches, smoothing a rendering
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`time domain differential.
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`Like Azevedo, none of the other alleged prior art references (Mills, Ex.
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`1011, challenge #2; Berthaud, Ex. 1012, challenge #3; and Eidson, Ex. 1013,
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`
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`9
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`
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`challenge #4) teaches smoothing of a rendering time domain differential. Rather,
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`like Azevedo, they teach other uses of smoothing functions.
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`Mills (Ex. 1011) teaches smoothing clock offset values to “select the peer
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`clock(s) used for synchronization [of computer clocks] and to maximize the
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`accuracy and stability of the indications.” Ex. 1011, at 36.
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`Berthaud (Ex. 1012) also addresses computer clock synchronization,
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`specifically, correcting errors in the measurement of the offsets of computer
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`clocks. Ex. 1012, at Abstract. Synchronization of the rendering of content is not
`
`addressed.
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`Eidson, U.S. Patent No. 6,278,710 (Ex. 1013), is yet another disclosure
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`related to synchronization of computer clocks. Ex. 1013. It teaches averaging the
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`differences in time measurements for messages sent and received in computer
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`networks, but does not address the synchronization of the rendering of content.
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`While Baumgartner, U.S. Patent No. 5,642,171, does address
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`the
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`synchronization of audio and video content, it still cannot support even a prima
`
`facie case of invalidity. Ex. 1014. Baumgartner compares video frame and audio
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`frame “positions” to determine a “synchronization error value,” which is the
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`number of frames by which a video frame is ahead or behind an audio frame. Ex.
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`1014, at col. 6:50-55. The synchronization error value is used to assign a “tempo
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`value” which is used to adjust the video “tempo” (frame speed). Ex. 1014, at col.
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`10
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`
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`6:56-58. A smoothing is then applied to the tempo value, which is a weighted
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`average of prior tempo values. Tempo values (frame speeds) are not, however,
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`time differentials.
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`IV. CLAIM CONSTRUCTION
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`While Patent Owner does not agree with the Petition’s proposed claim
`
`constructions, for the purposes of this Preliminary Response only, Patent Owner
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`does not contest those claim constructions.2
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`V. THE APPLICABLE LAW
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`The PTAB may institute Inter Partes Review only if the information
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`presented in the Petition “shows that there is a reasonable likelihood that the
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`petitioner would prevail with respect to at least 1 of the claims challenged in the
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`petition.” 35 U.S.C. § 314.
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`In an Inter Partes Review, “the petitioner has the burden from the onset to
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`show with particularity why the patent it challenges is unpatentable.” Harmonic
`
`Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016). This burden “never
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`shifts” to the Patent Owner. Dynamic Drinkware, LLC v. National Graphics, Inc.,
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`800 F.3d 1375, 1378 (Fed. Cir. 2015).
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`2 Patent Owner reserves the right to contest any of Petitioner’s proposed claim
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`constructions and propose its own constructions in this proceeding, should review
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`be instituted, or in any other proceeding.
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`
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`11
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`
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`The only alleged statutory basis for challenging patentability in an Inter
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`Partes Review petition in this matter is obviousness under 35 U.S.C. § 103. An
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`obviousness analysis requires comparison of the patent’s claims to the prior art.
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`“All words in a claim must be considered in judging the patentability of that claim
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`against the prior art.” In re Wilson, 424 F.2d 1382, 1385 (C.C.P.A. 1970).
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`A claims is unpatentable under 35 U.S.C. § 103(a) only if “the differences
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`between the subject matter sought to be patented and the prior art are such that the
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`subject matter as a whole would have been obvious at the time the invention was
`
`made to a person having ordinary skill in the art to which said subject matter
`
`pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 405 (2007). The question
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`of obviousness is resolved on the basis of underlying factual determinations,
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`including (1) the scope and content of the prior art; (2) any differences between the
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`claimed subject matter and the prior art; (3) the level of ordinary skill in the art;
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`and (4) objective evidence of non-obviousness. Graham v. John Deere Co., 383
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`U.S. 1, 17-18 (1966). A claim is not proved obvious merely by demonstrating all
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`of the claim limitations are present in the prior art; rather, obviousness requires
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`Petitioner to demonstrate that a person of ordinary skill in the art would have some
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`reason to combine the references. KSR, 550 U.S. at 401-402.
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`As a threshold matter, obviousness cannot be found unless Petitioner
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`demonstrates that each and every claim limitation is taught in one or more prior art
`
`
`
`12
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`
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`references. See Personal Web Technologies, Inc. v. Apple Inc., 848 F.3d 987, 993
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`(Fed. Cir. 2017) (ob
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`viousness analysis first requires determination that prior art teaches all
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`elements of the claim); Beckson Marine, Inc. v. NFM, Inc., 292 F.3d 718, 727
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`(Fed. Cir. 2002) (for claimed subject matter to be obvious, prior art must expressly
`
`teach each claim limitation exactly, or else the record must disclose a reason,
`
`suggestion, or motivation for a person of ordinary skill in the art modify the prior
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`art teachings to obtain the claimed invention).
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`VI. PETITIONER’S GROUNDS
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`Petitioner asserts five challenges, all based on 35 U.S.C. § 103. All five
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`challenges allege obviousness based on combinations including Janevski and
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`either: 1) the knowledge of a person of ordinary skill in the art, or 2) other alleged
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`prior art.
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`The challenged claims are the same for each challenge and include claims 1-
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`3, 8, 11, and 17. Claims 1 and 11 are independent claims. All claims are method
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`claims.
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`Each challenged claim requires “smoothing” a rendering time differential.
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`Claim 1 requires, for example, a “first slave device” which is “configured to
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`smooth a rendering time differential that exists between the master rendering
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`device and the first slave device.” Claim 11 requires a slave device that determines
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`
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`13
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`
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`“a smoothed rendering time differential that exists between the master rendering
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`device and the slave device.”
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`Each of Petitioner’s challenges relies on Janevski as its principal reference.
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`In each case, Petitioner concedes that Janevski does not teach “smoothing” of
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`rendering time differentials, as required by each of the challenged claims. To
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`supply the missing element, Petitioner combines Janevski with 1) the knowledge of
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`a person of ordinary skill in the art (challenge #1), or 2) various alleged prior art
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`references which purport to apply smoothing functions in various synchronization
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`contexts (all challenges).
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`A.
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`Janevski coupled with the knowledge of a person of ordinary skill
`does not yield the claimed inventions
`
`In challenge #1, Petition argues that a person of ordinary skill in the art
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`would have known that Janevski could be modified to include smoothing.
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`Petitioner contends that a person of ordinary skill would have been motivated to
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`improve Janevski because the goal of Janevski was improve the accuracy of
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`synchronization, and smoothing any of the “periodic” calculations of Janevski
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`would have accomplished that goal. Pet., at 45-46.
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`Petitioner’s argument is illogical on its face. If the objective of Janevski was
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`to minimize synchronization error, and if a person or ordinary skill in the art would
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`have known that smoothing any of the periodic calculations would reduce that
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`
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`14
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`
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`error, then Janevski should have disclosed, or at least pointed to, use of techniques
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`such as smoothing in its synchronization method. But it did not.
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`To support the argument that a person of ordinary skill in the art would have
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`known to use a smoothing function, Petition cites several references, dating as
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`early as 1971, which purport to discuss smoothing functions. Pet., at 43; Exs.
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`1015-18. But Petitioner does not contend or show that any of these references
`
`actually discloses smoothing a rendering time differential. Nor does Petition
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`contend that there would have been any reason, suggestion, or motivation to
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`combine these references with Janevski, much less that the combination
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`necessarily would have yielded the claimed invention.
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`Petitioner’s argument that a person of ordinary skill in the art would have
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`known to modify Janevski based solely on a person of ordinary skill’s knowledge
`
`is, therefore, an improper attempt to avoid its burden of demonstrating a reason,
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`suggestion, or motivation to combine prior art references to achieve the claimed
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`invention.
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`Given Petitioner’s implicit concession that none of the alleged prior art
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`teaches smoothing a rendering time differential, the general “knowledge of a
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`person of ordinary skill in the art” is not a substitute for a missing claim limitation.
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`Unless all of the limitations of a claim are taught somewhere in the prior art,
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`
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`15
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`
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`obviousness cannot be shown. Personal Web, 848 F.3d at 993; Beckson Marine,
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`292 F.3d at 727.
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`B.
`
`Janevski coupled with the alleged prior art does not yield the
`claimed inventions
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`Petitioner’s alternative obviousness theories rely on combinations of
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`Janevski with various prior art references that Petitioner contends teach smoothing
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`some variable in the context of synchronization.
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`1.
`
`The prior art does not teach “smoothing a rendering time
`differential”
`Nowhere does Petitioner contend that any of these prior art references
`
`discloses smoothing a rendering time differential, as required by the claims. The
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`fact that smoothing may have been applied in other synchronization methods does
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`not imply that it would have been obvious to combine these references with
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`Janevski or, more importantly, to combine them with Janevski so as to achieve the
`
`claimed requirement of smoothing a rendering time differential.
`
`Of the five references relied on in the Petition, four of them—Azevedo,
`
`Mills, Berthaud, and Eidson—do not discuss synchronization of the rendering of
`
`content at all, much less rendering time differentials. Rather, each of these
`
`references broadly relates to synchronization of clocks in computers and computer
`
`networks, and the various functions that are used to determine the error, or offset,
`
`in the various clocks used in them. See Section III, supra.
`
`
`
`16
`
`
`
`To the extent smoothing functions are used in these references, they are to
`
`smooth variables other than rendering time differentials. Neither Petitioner its
`
`expert contends that any of the alleged reference teaches smoothing a rendering
`
`time differential.
`
`At most, Azevedo (challenge #1) teaches smoothing of correction terms. As
`
`noted above, Mills (challenge #2) teaches smoothing clock offset values to “select
`
`the peer clock(s) used for synchronization [of computer clocks] and to maximize
`
`the accuracy and stability of the indications.” Ex. 1011, at 36. Berthaud
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`(challenge #3) also teaches (at most) smoothing of measured computer network
`
`clock offsets. Ex. 1012, at 265-66. U.S. Patent 6,278,710 “Eidson” (challenge
`
`#4) also addresses smoothing measurements of the differences between sent and
`
`received messages for purposes of synchronizing computer network clocks. Ex.
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`1013, at col. 1:42-col.2:6.
`
`2.
`
`Petitioner fails to demonstrate a reason to combine any
`prior art “smoothing” with Janevski, or explain how such a
`combination would work
`In addition to failing to show how any given reference actually supplies the
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`claim limitation that Petitioner concedes is missing from Janevski, Petitioner does
`
`not attempt to address how combining any of the above prior art references
`
`actually would result in the inventions of the challenged claims. There is no
`
`
`
`17
`
`
`
`explanation as to how (or why) a person of ordinary skill would adapt any of these
`
`references so that they would teach smoothing a rendering time.
`
`This
`
`is particularly problematic because
`
`Janevski addresses
`
`the
`
`synchronization of rendering pre-recorded content, not the synchronization of
`
`clocks of participating devices. Petitioner does not explain how any of the various
`
`references for teaching clock synchronization would relate or be applied to pre-
`
`recorded content synchronization. Petitioner offers the conclusory statement that
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`“Janevski’s synchronization techniques are not ‘limited to any particular time
`
`synchronization’” (Pet., at 59, quoting Ex. 1007), but that is not a reason,
`
`suggestion, or motivation to combine as alleged by Petitioner. At best, it is an
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`open-ended statement that additional synchronizations methods beyond those
`
`taught by Janevski could be developed.
`
`Similarly, Petitioner argues that Janevski teaches that any available “time
`
`synchronization” mechanism could be used to determine the “time count”
`
`difference. Pet., at 63-64. But how Janevski measures time differences differs
`
`markedly from how the ’252 Patent uses time domain differentials to accomplish
`
`the synchronization of the rendering of content.
`
`Without addressing how a person of ordinary skill in the art actually would
`
`combine Janevski with “smoothing” prior art, Petitioner argues that a person of
`
`ordinary skill in the art nonetheless would have combined smoothing with Janevski
`
`
`
`18
`
`
`
`because smoothing had known benefits and because increased clock accuracy was
`
`desired. E.g. Pet., at 43-45. These generalized “reasons” to combine do not
`
`address why or how Janevski would be combined with such art. Janevski
`
`synchronizes content only after calculating “frame misregistration” to search for an
`
`appropriate frame to fast-forward or rewind toward. It does not teach actually
`
`synchronizing any clocks of any devices, so it remains unclear how “smoothing”
`
`would apply to a reference like Janevski, or why anyone with ordinary knowledge
`
`of Janevski would be motivated to add a “smoothing” function.
`
`3.
`
`Baumgartner and Janevski are incompatible
`
`Unlike the other alleged prior art, the final reference relied on by Petitioner,
`
`Baumgartner, does
`
`relate
`
`to content synchronization,
`
`in
`
`this case
`
`the
`
`synchronization of audio and video content. However, Baumgartner teaches
`
`synchronization using frame position differences, not time or time domain
`
`differences. Baumgartner calculates the number of frames by which the video
`
`presentation is ahead or behind the audio presentation, and uses that difference in
`
`frame position to determine a “tempo value,” or frame speed, to synchronize the
`
`content. These “tempo values” may be averaged or smoothed.
`
`
`
`Petitioner does not contend that a “tempo value” is a “time domain
`
`differential,” much less a “rendering time domain differential.” Petitioner argues
`
`only that Baumgartner “amounts to a ‘smoothing’ a ‘frame’ differential between
`
`
`
`19
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`
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`the rendering of two media streams.” Pet., at 67. But the claim language requires
`
`calculation and use of a “rendering time differential.” If anything, Baumgartner
`
`teaches away from smoothing a rendering time differential by teaching that frames,
`
`rather than time differentials, are required to synchronize content.
`
`4.
`
`Combining “smoothing” with Janevski would not result in
`an operable method, much less the claimed methods
`There is another flaw in all of Petitioner’s obviousness arguments, separate
`
`
`
`from the fact that none of the prior art discloses the smoothing a rendering time
`
`differential element. What the Petition identifies as the rendering time differentials
`
`are not in fact time differentials, and it is unclear how these data points could be
`
`“smoothed.” Accordingly, even assuming that the prior art teaches the smoothing
`
`that is cl
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