UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`SLING TV, L.L.C., et al.,
`Petitioner
`
`v.
`
`REALTIME ADAPTIVE STREAMING LLC,
`Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2018-01342
`Patent 8,934,535
`
`
`
`
`
`
`
`
`
`
`
`Before KEVIN W. CHERRY, GARTH D. BAER, and NABEEL U. KHAN,
`Administrative Patent Judges.
`
`
`
`
`PETITIONER’S MOTION TO FILE SUPPLEMENTAL INFORMATION
`PURSUANT TO 37 C.F.R. § 42.123
`
`
`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`SLING TV, L.L.C., et al.,
`Petitioner
`
`v.
`
`REALTIME ADAPTIVE STREAMING LLC,
`Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR2018-01342
`Patent 8,934,535
`
`
`
`
`
`
`
`
`
`
`
`Before KEVIN W. CHERRY, GARTH D. BAER, and NABEEL U. KHAN,
`Administrative Patent Judges.
`
`
`
`
`PETITIONER’S MOTION TO FILE SUPPLEMENTAL INFORMATION
`PURSUANT TO 37 C.F.R. § 42.123
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`EXHIBITS
`
`DISH1029
`
`Supplemental Declaration of Dr. Scott Acton
`
`i
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`I. BOARD AUTHORIZATION AND LEGAL STANDARD
`
`Pursuant to Petitioner’s request under 37 C.F.R § 42.123(a), made on
`
`February 27, 2019 within a month of institution, and further pursuant to the
`
`Board’s authorization granted on March 11, 2019, Petitioner moves to submit
`
`DISH1029 (“Supplemental Declaration of Dr. Scott Acton”) as supplemental
`
`information. The Board recognizes that “supplemental information may prove
`
`beneficial to the Board in reaching a decision with respect to the trial.” Pacific
`
`Market Int’l v. Ignite USA, LLC, IPR2014-00561, Paper 23 at 3 (PTAB Dec. 2,
`
`2014). The Board may grant a motion to submit supplemental information where,
`
`as here, limited expert testimony is provided to further support an instituted ground
`
`of unpatentability. See id.; see also, e.g., The Boeing Co. v. Seymour Levine,
`
`IPR2015-01341, Paper 30 at 4 (PTAB Apr. 15, 2016) (granting motion to submit
`
`supplemental information where the supplemental information was limited in
`
`scope and did not alter the ground in the petition but merely provided additional
`
`evidence of obviousness).
`
`The supplemental information meets all legal requirements for such material
`
`because it is timely and relevant to a claim in this trial. The supplemental
`
`information relates to instituted Ground 3 and its applicability under the Board’s
`
`preliminary claim construction of “access profile” in the Netflix proceeding,
`
`IPR2018-01169, institution decision. See 37 C.F.R. 42.123(a). The material
`
`provides additional evidence, presented in the alternative, regarding the narrower,
`
`1
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`preliminary claim construction from the Netflix IPR, and confirms the invalidity of
`
`the challenged claims under Ground 3 in this matter, even under that narrower,
`
`preliminary construction from the Netflix IPR. The supplemental information will
`
`cause no prejudice to Patent Owner or delay in the proceedings. Petitioner
`
`respectfully requests the Board grant Petitioner’s request.
`II. STATEMENT OF FACTS
`
`On July 3, 2018, Petitioner sought review of claims 1–6, 8–12, and 14 (the
`
`“challenged claims”) of U.S. Pat. No. 8,934,535 B2 (DISH1001, “the ’535
`
`Patent”). IPR2018-01342, Paper No. 9 at 1. Petitioner submitted the declaration
`
`of Dr. Scott Acton (DISH1003) in support of its Petition.
`
`Petitioner challenges claims 1–6, 8–12, and 14 on the following grounds:
`Ground
`Claims
`Basis for Rejection
`Ground 1 1, 2, 9, 10, 14 Anticipated by Dvir1, 35 U.S.C. § 102
`Ground 2 1, 2, 9, 10, 14 Obvious over Dvir, 35 U.S.C. § 103
`Ground 3 3-6, 8, 11, 12 Obvious over Dvir in view of Ishii2, 35 U.S.C. § 103
`
`IPR2018-01342, Paper No. 9 at 8. Petitioner argued that the specification-
`
`supported, broadest reasonable interpretation (“BRI”) of the claim term “access
`
`profile” is “information that enables a controller to determine a compression
`
`routine that is associated with a data type of the data to be compressed.” Id. at 19-
`
`21 (citing certain portions of the ’535 Patent specification).
`
`
`
`1 DISH1004 – Dvir, U.S. Pat. No. 6,557,001
`
` 2
`
` DISH1005 – Ishii, U.S. Pat. No. 5,675,789
`
`2
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`On January 17, 2019, six months after Petitioner filed its petition, the Board
`
`granted a separate request for inter partes review of claims 1-14 of the ’535 Patent
`
`submitted by Netflix, Inc. et. al. (“Netflix”). IPR2018-01169, Paper No. 20 at 2.
`
`Netflix challenged claims 1-14 on the following grounds:
`Ground
`Claims
`Basis for Rejection
`Ground 1
`1-14
`Obvious over Imai3 and Ishii
`
`Id. at 8. Netflix’s Ground 1 and Petitioner’s Ground 3 rely on the Ishii reference.
`
`On January 31, 2019, the Board instituted a trial in this proceeding,
`
`IPR2018-01342, on all challenged claims, determining that it is more likely than
`
`not that Petitioner will prevail in showing unpatentability of the challenged claims.
`
`Id. at 2, 20-21. The Board did not construe the term “access profile” because it
`
`determined that no claim construction was necessary to institute. Id. at 10 (noting
`
`that the parties are still “expected to assert all their claim construction arguments
`
`and evidence . . . as permitted by our rules.” (emphasis added)).
`
`However, in the earlier institution of the Netflix petition, the Board
`
`preliminarily construed the claim term “access profile” to mean “information
`
`regarding the number or frequency of reads or writes.” IPR2018-01169, Paper No.
`
`20 at 12. It noted that a “final determination as to claim construction will be made
`
`at the close of the proceeding, after any hearing, based on all the evidence of
`
`record.” Id. at 10.
`
`On a review of that record, the Board found that Netflix had demonstrated a
`
`
`
`3 Imai, Japanese Patent App. Pub. No. H11331305, published Nov. 30, 1999.
`
`3
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`reasonable likelihood that Imai and Ishii teach or suggest the limitations of claims
`
`1-14 of the ’535 Patent. Id. at 21-22. In particular, it found that Ishii taught an
`
`“access profile,” as required by claims 1-14, under the construction “information
`
`regarding the number or frequency of reads or writes.” Id. at 20.
`
`Petitioner’s Supplemental Declaration of Dr. Scott Acton, DISH1029,
`
`provides further support for Petitioner’s alternative position here that Ground 3
`
`invalidates the challenged claims under the narrower construction preliminarily
`
`adopted in the Netflix IPR. For example, Patent Owner argued in the Netflix
`
`proceeding that the Ishii reference did not meet the “access profile” limitation.
`
`The Board, however, found that it did under at least one preliminary construction
`
`of that term. Dr. Acton’s supplemental declaration provides additional evidence
`
`that the combination of Dvir with Ishii would likewise meet the “access profile”
`
`limitation, even under a narrower claim construction.
`III. ARGUMENT
`
`The Board declined to construe “access profile,” and instituted Ground 3 of
`
`the Petitioner’s July 3, 2018 inter partes review petition, determining “that the
`
`Petition shows a reasonable likelihood that Petitioner would prevail with respect to
`
`the contention that . . . claims 3-6, 8, 11, and 12 would have been obvious over
`
`Dvir and Ishii.” IPR2018-01342, Paper No. 9 at 20-21. In the Netflix IPR,
`
`however, the Board preliminarily construed “access profile” to mean “information
`
`regarding the number or frequency of reads or writes.” IPR2018-01169, Paper No.
`
`4
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`20 at 11-12. Petitioner here could not have addressed the Board’s January 17,
`
`2019 preliminary construction of “access profile” before now.
`
`In the present trial, the Board has determined that no preliminary
`
`construction is necessary for the term “access profile.” IPR2018-01342, Paper
`
`No. 9 at 10. Petitioner does not dispute the Board’s determination. Petitioner
`
`asserts, however, that in the event the Board eventually determines to construe the
`
`“access profile” term under its BRI, the proper construction is “information that
`
`enables a controller to determine a compression routine that is associated with a
`
`data type of the data to be compressed,” as asserted in the petition. Id., Paper No.
`
`2 at 19-20. Petitioner’s proposed construction is consistent with the Board’s
`
`findings on institution that the ’535 patent teaches that “[a] bandwidth sensitive
`
`data compression routine may be selected based on access profiles that enable the
`
`controller to determine a compression routine associated with a data type of the
`
`data to be compressed.” Id., Paper No. 9 at 6 (citing the ’535 Patent at 8:4-8). The
`
`BRI of “access profile,” therefore, encompasses at least this teaching from the ’535
`
`patent, consistent with the construction of “access profile” proffered by Petitioner
`
`here. See Corning v. Fast Felt Corp., 873 F.3d 896, 900-01 (Fed. Cir. 2017)
`
`(reversing Board without remand and holding that Board erroneously construed the
`
`“roofing or building cover material” term too narrowly under the BRI to exclude
`
`teachings from the patent’s specification).
`
`While the scope of Petitioner’s proposed construction of “access profile” is
`
`5
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`supported by the ’535 patent teachings, Petitioner nevertheless seeks to offer
`
`supplemental evidence in the form of a supplemental declaration from Dr. Scott
`
`Acton. DISH1029.4 Petitioner offers Dr. Acton’s supplemental declaration in the
`
`alternative only, as the declaration makes clear. See DISH1029, ¶ 223. That is,
`
`Petitioner continues to assert that its previously proposed construction of the
`
`“access profile” term offered with its petition is the proper BRI construction of
`
`“access profile.” Nevertheless, if the Board ultimately construes “access profile”
`
`more narrowly, as the Board preliminarily did in the Netflix IPR, then Petitioner
`
`asserts as an alternative argument under this narrower construction that Ground 3
`
`renders the claims of the ’535 patent unpatentable. See DISH1029.
`
`Dr. Acton’s supplemental declaration addresses Ground 3’s combination of
`
`Dvir in view of Ishii under the construction of “access profile” as “information
`
`regarding the number or frequency of reads or writes,” from the Netflix IPR
`
`proceeding. The combination renders the ’535 patent claims unpatentable and
`
`teaches claim element 1.1 because Ishii’s file compression portion 105 and file
`
`compression method selection portion 104 select an “access profile” from a
`
`plurality of access profiles corresponding to high-, medium-, and low-access
`
`
`
`4 Dr. Acton previously submitted a declaration in support of Petitioner’s petition in
`the instant matter. See DISH1003. There, Dr. Acton provided evidence of the
`unpatentability of the ’535 patent claims under Petitioner’s proposed construction
`of the term “access profile.”
`
`6
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`frequency. DISH1029, ¶¶ 226-233. Ishii teaches that its file compression portion
`
`105 actually compresses data of the searched file to be compressed by selecting an
`
`appropriate data compression method for compression of the file. Ishii selects an
`
`appropriate data compression method according to the attributes of the file to be
`
`compressed, including access frequency and file type. Id., ¶ 228. For both of
`
`Ishii’s elements 104 and 105, the “access frequency” corresponds to a data
`
`attribute of a file, namely the number of times the file has been accessed. Id.,
`
`¶ 231.
`
`Moreover, claim element 1.2 is taught by the same combination because in
`
`Ishii, selecting a compression method with suitable compression ratio and
`
`compression speed or decompression speed depends on the file access frequency
`
`and data attribute. Using this information, the file compression method with a
`
`shorter decompression time is selected for files with higher access frequency and
`
`the file compression method with a higher compression ratio is selected for files
`
`with lower access frequency. Id., ¶¶ 234-240.
`IV. CONCLUSION
`
`In view of the foregoing, Petitioner respectfully requests that supplemental
`
`information in DISH1029 be admitted into the record.
`
`
`
`
`
`
`
`7
`
`
`
`
`
`
`
`
`
`
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`
`/Adam R. Shartzer/
`Adam R. Shartzer, Reg. No. 57,264
`
`Fish & Richardson P.C.
`3200 RBC Plaza
`60 South Sixth Street
`Minneapolis, MN 55402
`T: 202-783-5070
`F: 877-769-7945
`
`Attorney for Petitioners
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: March 21, 2019
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`8
`
`
`
`Attorney Docket: 45035-0002IP4
`Case IPR2018-01342
`
`CERTIFICATE OF SERVICE
`
`Pursuant to 37 CFR §§ 42.6(e), the undersigned certifies that on March 21,
`
`2019, a complete and entire copy of this Motion to File Supplemental Information
`
`Pursuant to 37 C.F.R. § 42.123 and its supporting exhibit were provided via email,
`
`to the Patent Owner by serving the email correspondence addresses of record as
`
`follows:
`
`
`
`
`
`
`
`
`
`Neil A. Rubin
`Kent Shum
`Russ August & Kabat
`12424 Wilshire Blvd., 12th Floor
`Los Angeles, CA 90025
`
`Email: nrubin@raklaw.com
`Email: kshum@raklaw.com
`Email: rak_realtimedata@raklaw.com
`
`
`
`
`
`
`
`/Edward G. Faeth /
`Edward G. Faeth
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(202) 626-6420
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`
`
`PROPOSED
`
`PROPOSED
`EXHIBIT 1029
`
`EXHIBIT 1029
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`James J. Fallon et al.
`In re Patent of:
`8,934,535 Attorney Docket No.: 45035-0002IP4
`U.S. Patent No.:
`January 13, 2015
`
`Issue Date:
`Appl. Serial No.: 4/033,245
`
`Filing Date:
`September 20, 2013
`
`Title:
`SYSTEMS AND METHODS FOR VIDEO AND AUDIO
`DATA STORAGE AND DISTRIBUTION
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`SUPPLEMENTAL DECLARATION OF
`PROFESSOR SCOTT T. ACTON, Ph.D.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Dated: ______March 21, 2018______
`
`
`
`
`
`
`
`
`By: _________________________
`
`
`Scott T. Acton
`
`Exhibit 1029
`
`
`
`X.
`
`UNPATENTABILITY OF THE ’535 PATENT (SUPPLEMENTAL)
`
`221. I, Scott T. Acton, of Charlottesville, VA, being over the age of 18 and
`
`competent to make the statements herein, hereby declare the following:
`
`222. I previously submitted a declaration in support of the Inter Partes
`
`Review petition Sling TV L.L.C., Sling Media L.L.C., DISH Network L.L.C., and
`
`DISH Technologies L.L.C. (collectively “DISH”) submitted before the Patent Trial
`
`and Appeal Board regarding U.S. Patent No. 8,934,535 (“the ’535 patent”). See
`
`generally DISH1003 (Acton Decl.)
`
`223. I incorporate my original declaration fully herein. I continue to hold
`
`the opinions I expressed in my original declaration, and I do not intend for this
`
`declaration to alter them. The opinions expressed in this supplemental declaration
`
`are relevant to this proceeding only in the situation where the Board adopts a
`
`construction for the term “access profile” that is “information regarding the
`
`number or frequency of reads or writes.”
`
`224. Similarly, for this supplemental declaration, DISH’s counsel asked me
`
`to consider the claim term “access profile” if construed as “information regarding
`
`the number or frequency of reads or writes.” Particularly, I was asked whether,
`
`under this construction, the prior art grounds I described in my original declaration
`
`Exhibit 1029 – pg. 1
`
`
`
`would still render the ’535 patent claims unpatentable. In my opinion, they would
`
`still render the ’535 patent claims unpatentable.
`
`221. I first reiterate my understanding that DISH proposes, for the purposes
`
`of this proceeding, that the BRI of the term “access profiles” is “information that
`
`enables a controller to determine a compression routine that is associated with a
`
`data type of the data to be compressed.” DISH1003-¶44. As I stated in my
`
`original declaration, the prior art grounds on which I opined satisfy the “access
`
`profiles” limitation under this construction. See DISH1003-¶¶96-117, 141-146,
`
`153, 173-174.
`
`222. I am further informed by DISH’s counsel that in the institution
`
`decision for this inter partes review, the Board held that claim construction of the
`
`term “access profile” was not necessary at that time to determine that institution
`
`was proper. I am further informed by DISH’s counsel that the Board determined
`
`that the ’535 patent teaches that “[a] bandwidth sensitive data compression routine
`
`may be selected based on access profiles that enable the controller to determine a
`
`compression routine associated with a data type of the data to be compressed.”
`
`The Board’s findings regarding the teachings of the ’535 patent are consistent with
`
`the claim construction for “access profiles” under the broadest reasonable
`
`interpretation that I applied in my original declaration: “information that enables a
`
`Exhibit 1029 – pg. 2
`
`
`
`controller to determine a compression routine that is associated with a data type of
`
`the data to be compressed.”
`
`223. Under the alternative interpretation of “access profiles” I have been
`
`asked to consider—“information regarding the number or frequency of reads or
`
`writes”—it is my opinion that claims of the ’535 patent are also rendered obvious.
`
`Particularly, and for the reasons I will describe below, it is my opinion that U.S.
`
`Patent No. 6,557,001 to Dvir et al. (“Dvir”) read in view of U.S. Patent No.
`
`5,675,789 to Ishii et al. (“Ishii”), which I identified as Ground 3 in my original
`
`declaration, renders obvious at least claims 3-6, 8, 11, and 12 of the ’535 patent.
`
`224. I understand that the “access profile” term occurs in limitations 1.1
`
`and 1.2 of the ’535 patent’s claim 1, from which claims 3-6, 8, 11, and 12 depend.
`
`Below I will describe how Dvir in view of Ishii (Ground 3) satisfies these
`
`limitations if “access profile” is construed as “information regarding the number or
`
`frequency of reads or writes.” I refer to and incorporate my original declaration for
`
`satisfaction of the remaining claim limitations.
`
`225. Claim Element 1.1: selecting an access profile from among a plurality
`
`of access profiles based upon the determined parameter or attribute.
`
`226. Ishii’s file compression portion 105 and file compression method
`
`selection portion 104 select an “access profile” from a plurality if access profile is
`
`construed as “information regarding the number or frequency of reads or writes.”
`
`Exhibit 1029 – pg. 3
`
`
`
`As I will describe, Ishii contains a high-access, a medium-access, and a low-access
`
`access profile. Based on a file’s access frequency, or the number of reads to the
`
`file, Ishii selects one of these access profiles.
`
`227. As I explained in my original declaration, “Ishii operates on data
`
`blocks consisting of files using, among other things, ‘a file compression portion
`
`which compresses a file on said file unit’ and ‘a compression method selector’ that
`
`selects compression methods based on ‘the data type and the access frequency of
`
`the file for compression.’” DISH1003-¶83 (Acton Decl.) (emphasis added)
`
`(quoting DISH1005 (Ishii) at Abstract; 5:51-6:17).
`
`228. Ishii also describes that its “file compression portion 105 actually
`
`compresses data of the searched file to be compressed” by “select[ing] an
`
`appropriate data compression method for compression of the file.” DISH1005-
`
`5:60-65. Ishii selects an appropriate data compression method “[a]ccording to the
`
`attributes of the file to be compressed including access frequency and file type.”
`
`Id. (emphasis added); see also, e.g., id. at 1:54-55.
`
`229. Ishii also describes how its file compression method selection portion
`
`104 selects an “access profile” if access profile is construed as “information
`
`regarding the number or frequency of reads or writes.” As I explained in my
`
`original declaration, Ishii “discloses a file compression method selection portion
`
`that ‘selects the [suitable] method . . . depending on the file access frequency and
`
`Exhibit 1029 – pg. 4
`
`
`
`data attribute’” and “Ishii’s compression method is performed by a system that
`
`uses a compression processor to determine a ‘data attribute’ of the received data to
`
`be compressed and determine ‘the access frequency . . . from the last access date
`
`and the number of accesses.’” DISH1003-¶199 (Acton Decl.) (quoting DISH1005
`
`(Ishii), 7:15-21 (emphasis added)).
`
`230. I also remarked in my original declaration on the different
`
`compression methods that the file compression method selection portion 104
`
`selects based on access frequency. Specifically, I noted that Ishii describes how its
`
`“file compression method selection portion 104 here selects the method with
`
`suitable compression ratio and compression/decompression speed depending on
`
`the file access frequency and data attribute.” DISH1003-¶165 (quoting
`
`DISH1005, 7:16-21). This selection is between different compression methods
`
`such that “[t]he file compression method with a shorter decompression time is
`
`selected for files with higher access frequency” and “the file compression method
`
`with a higher compression ratio is selected for files with lower access frequency.”
`
`DISH1003-¶165 (quoting DISH1005, 7:16-34 (emphasis added)); see also id.
`
`(quoting DISH1005, 1:32-45, 2:16-30).
`
`231. The “access frequency” considered by Ishii’s file compression portion
`
`105 and file compression method selection portion 104 corresponds to a data
`
`attribute of a file, namely the number of times the file has been accessed. Ishii
`
`Exhibit 1029 – pg. 5
`
`
`
`teaches that the “access frequency of a file is determined based on the last access
`
`date and the number of accesses for that file.” DISH1005-5:54-56 (emphasis
`
`added). I clarified in my original declaration that “number of accesses,” as cited in
`
`Ishii, is “synonymous” with “number of reads.” DISH1003-¶199. That is, when
`
`Ishii measures access frequency based on “number of access,” a POSITA would
`
`understand that to mean the number of times the system has read the file. Thus,
`
`the disclosure I have recited above corresponds to the selection of an “access
`
`profile” under the interpretation “information regarding the number or frequency
`
`of reads or writes.”
`
`232. Ishii explains that upon determining a file’s access frequency, it is
`
`classified among options of “high, medium, and low” access. Id. at 5:55-56
`
`(emphasis added). In other words, one access profile is selected from the plurality
`
`of high, medium, or low. Therefore, it is my opinion that Ishii teaches the
`
`limitation “selecting an access profile from among a plurality of access profiles
`
`based upon the determined parameter or attribute” even if “access profile” is
`
`construed as “information regarding the number or frequency of reads or writes.”
`
`233. As I described in my original declaration, a POSITA would have had
`
`reason to use these teachings of Ishii in conjunction with Dvir’s device. See
`
`DISH1003-¶¶161-172. One of the motivating reasons for combining Ishii’s
`
`teachings with Dvir’s device, I remarked, is to take advantage of Ishii’s insight of
`
`Exhibit 1029 – pg. 6
`
`
`
`selecting based upon access frequency. Specifically, “a POSITA would have
`
`understood the advantages that Ishii provides by reducing computing load . . . and
`
`would have been motivated to modify Dvir to incorporate Ishii’s access frequency-
`
`based compression selection to receive these benefits.” DISH1003-¶168 (emphasis
`
`added).
`
`234. Claim Element 1.2: compressing the at least the portion of the data
`
`block with one or more compressors using asymmetric data compression and
`
`information from the selected access profile to create one or more compressed data
`
`blocks, the information being indicative of the one or more compressors to apply to
`
`the at least the portion of the data block.
`
`235. Ishii teaches compressing at least a portion of the data block using
`
`information from the selected “access profile” if access profile is construed as
`
`“information regarding the number or frequency of reads or writes.” As I
`
`explained in my original declaration, “Ishii’s compression method is performed by
`
`a system that uses a compression processor to determine a ‘data attribute’ of the
`
`received data to be compressed and determine ‘the access frequency . . . from the
`
`last access date and the number of accesses.’” DISH1003-¶199 (Acton Decl.)
`
`(quoting DISH1005 (Ishii), 7:15-34 (emphasis added)). I also explained that
`
`“Ishii’s file compression method selection portion ‘selects the file compression
`
`method suitable for the data type and the access frequency and instructs the
`
`Exhibit 1029 – pg. 7
`
`
`
`compression means to execute processing by the selected compression method.’”
`
`DISH1003-¶200 (quoting DISH1005, 2:26-29); see also id. ¶165 (quoting
`
`DISH1005, 7:17-34, 6:7-17).
`
`236. Additional disclosure in Ishii reinforces its teaching of compressing
`
`based upon access frequency. For example, Ishii explains that “[i]t selects the data
`
`compression method suitable for the file considering . . . access frequency” and
`
`“[t]he file compression method selection portion 104 selects the method used by
`
`the data compression portion 105 to compress data of the file to be compressed.”
`
`DISH1005, 5:66-6:3; see also id. at 2:40-47).
`
`237. Ishii determines a compression method based on the access profile it
`
`has selected. As I explained in the previous section, Ishii uses the number of times
`
`a file has been read to classify it among either “high, medium and low” access-
`
`frequency selections. DISH1005, 5:55-56 (emphasis added). This classification is
`
`significant because in Ishii “select[ing] the method with suitable compression ratio
`
`and compression/decompression speed depend[s] on the file access frequency and
`
`data attribute.” Id. at 7:17-20. Using this information, “[t]he file compression
`
`method with a shorter decompression time is selected for files with higher access
`
`frequency and the file compression method with a higher compression ratio is
`
`selected for files with lower access frequency.” Id. at 7:28-31.
`
`Exhibit 1029 – pg. 8
`
`
`
`238. Ishii describes how its determination of a compression method would
`
`apply to specific compression methods that would be known to a POSITA. For
`
`example, it explains that “Lempel–Ziv coding has a lower compression ratio than
`
`Huffman and arithmetic coding but has a higher compression/decompression
`
`speed” and thus, “[t]he file compression method selection portion 104 selects
`
`Lempel–Ziv coding for files with high access frequency and Huffman or arithmetic
`
`coding for files with low access frequency.” DISH1005, 7:46-52. In other words,
`
`Ishii discloses selecting a compressor from several options based on access
`
`frequency.
`
`239. Considering this disclosure, it is my opinion that a POSITA would
`
`understand Ishii as teaching data compression according to an “access profile” if
`
`interpreted to mean “information regarding the number or frequency of reads or
`
`writes.”
`
`240. I further note that a POSITA would know how to take this insight
`
`from Ishii and apply it to other known compression methods with varying
`
`compression ratio and speed. This would include, for example, Dvir’s use of
`
`MPEG compression. See DISH1004 (Dvir), 5:13-19. To this point, MPEG is an
`
`asymmetric compression algorithm, as I explained in my original declaration. See
`
`DISH1003-¶¶111-114. The Lempel-Ziv compression algorithm disclosed in Ishii
`
`is also asymmetric, which the ’535 patent itself acknowledges. See DISH1001,
`
`Exhibit 1029 – pg. 9
`
`
`
`10:2-4. Substitution of one of these compression algorithms for another
`
`compression algorithm is well within the skill of a POSITA, who “would have
`
`been motivated to modify Dvir to incorporate Ishii’s access frequency-based
`
`compression selection to receive these benefits.” DISH1003-¶168 (Acton Decl.).
`
`Exhibit 1029 – pg. 10
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
