Case 1:17-cv-02097-RBJ Document 151 Filed 01/11/19 USDC Colorado Page 1 of 27
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`Judge R. Brooke Jackson
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`Civil Action No 17-cv-02097-RBJ
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`REALTIME ADAPTIVE STREAMING LLC,
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`Plaintiff,
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`v.
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`SLING TV L.L.C.,
`SLING MEDIA, L.L.C.,
`ECHOSTAR TECHNOLOGIES L.L.C.,
`DISH NETWORK L.L.C., and
`ARRIS GROUP, INC.,
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`Defendant.
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`MARKMAN ORDER
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`This patent infringement lawsuit involves data compression. See generally Second
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`Amended Complaint, ECF No. 32. At the parties’ request, the Court conducted a “Markman”
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`hearing on December 19, 2018. The Court’s interpretation of the key terms is set forth in this
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`order.
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`BACKGROUND
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`There are two asserted patents in this case: U.S. Patent Nos. 8,867,610 (“the ‘610
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`patent”) and 8,934,535 (“the ‘535 patent”) (collectively, “Asserted Patents”). Plaintiff Realtime
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`is the owner of both patents. The ‘610 patent is titled “System and Methods for Video and
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`Audio Data Distribution,” whereas the ‘535 patent is titled “stem and Methods for Video and
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`Audio Data Storage and Distribution.” The specifications for both patents are virtually identical.
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`The Asserted Patents concern data compression and decompression algorithms. The
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`patents are directed to selecting a compression scheme based on characteristics of the digital data
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`being compressed. The Asserted Patents attempt to optimize compression time for digital files to
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`prevent problems such as download delay, data buffering, and reduced system speeds. As
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`depicted in Figure 1, the controller selects a compression algorithm from a database of
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`algorithms based on the data type and throughput requirements.
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`To select the optimal compression algorithm, the Asserted Patents first assign a data or
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`access profile to the user based on the frequency that the data is accessed or written. Then, the
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`Asserted Patents assign a compression algorithm to each profile. A symmetrical compression
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`algorithm would be optimal when the profile has a similar read to write ratio (meaning the
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`number of reads and writes is balanced). In contrast, an asymmetrical compression algorithm is
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`preferred when the profile writes often but reads seldom, or vice versa. In the former scenario,
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`the preferred algorithm would compress quickly and decompress slowly. The opposite is true for
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`the latter scenario.
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`Plaintiff asserts that defendants have infringed and continue to infringe on the Asserted
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`Patents. The dispute has been set for a five-day jury trial commencing on December 16, 2019.
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`However, the sole focus for this order is claim construction. The parties have narrowed their
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`claim construction disputes to eight terms or groups of related terms. They have expressed their
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`respective positions in a joint claim construction chart [ECF No. 121], claim construction briefs
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`[ECF Nos. 127, 134, and 135], and in their presentations at the Markman hearing [ECF Nos. 144,
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`146]. On December 19, 2018 this Court conducted the hearing. At the parties’ request, each
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`side asked for 1.75 hours per side to make their arguments. In that time, we covered four of the
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`eight terms: access profile, throughput of a communication channel, asymmetric compressor, and
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`compressor. The parties agreed to rest on their written presentations for the remaining terms.
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`LEGAL PRINCIPLES
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`Claim construction is a matter of law for the Court. Markman v. Westview Instruments,
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`Inc., 517 U.S. 370, 384–91 (1996). The objective is to give disputed terms in a patent claim the
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`meaning that a person of ordinary skill in the relevant art would have given them at the time of
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`the invention unless the patent applicant has clearly and unambiguously defined the terms
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`differently. See, e.g., Honeywell Int’l Inc. v. Universal Avionics Sys. Corp., 493 F.3d 1358, 1361
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`(Fed. Cir. 2007).
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`The Court principally considers “intrinsic evidence,” i.e., the words of the claim itself in
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`the context of the entire patent including as relevant the specification and the prosecution history.
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`Phillips v. AWH Corp., 415 F.3d 1303, 1313–17 (Fed. Cir. 2005), cert. denied, 546 U.S. 1170
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`(2006). The specification is “the single best guide to the meaning of a disputed term.” Vitrionics
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`Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The court may not, however,
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`read limitations from the specification, particularly the disclosed embodiments, into the claim.
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`Phillips, 415 F. 3d at 1323–24. The district court may consult extrinsic evidence if it is
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`necessary “to understand, for example, the background science or the meaning of a term in the
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`relevant art during the relevant time period.” Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct.
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`831, 841 (2015).
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`DISPUTED CLAIM TERMS
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`I. ACCESS PROFILE [Claims ‘535 pat., Cl. 1 and 14].
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`A. Plaintiff’s Proposed Interpretation.
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`No construction is required beyond the plain and ordinary meaning of the term as
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`determined by one of ordinary skill in the art based upon the claim being considered in context.
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`B. Defendants’ Interpretation.
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`The term “access profile” is a “profile containing information about the number or
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`frequency of reads and writes.”1
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`1 Originally the DISH and Sling defendants did not seek construction for this term; only defendant Arris
`did. ECF No. 127 at 2. But in the reply brief and at the Markman hearing, the remaining defendants
`agreed with Arris’s proposed construction. As such, I refer to the proposed construction as “defendants’
`interpretation.”
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`C. Discussion.
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`Claim 1 of the ‘535 patent claims
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`A method, comprising:
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`determining a parameter or attribute of at least a portion of a data block having
`audio or video data;
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`selecting an access profile from among a plurality of access profiles based upon
`the determined parameter or attribute; and
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`compressing 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.
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`‘535 pat. at col. 20:29–41 (emphasis added).
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`Defendants argue that the ‘535 patent consistently describes different “access profiles”
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`for data based on information about the frequency a user reads (meaning opening a document)
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`and writes (meaning saving a document) the data. ECF No. 127 at 2. To illustrate, defendants
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`cite the chart at the bottom of column 12 of the ‘535 patent.
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`‘535 pat. at col. 12. This chart, defendants argue, constitutes intrinsic evidence to support their
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`proposed interpretation. Id. at 3.
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`In response, plaintiff argues that claim construction for “access profile” is unwarranted
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`because the term is readily understandable to a person of ordinary skill in the art, and the term is
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`used in the specification according to its plain meaning. ECF No. 134 at 1. Moreover, there is
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`no clear lexicography or disavowal of the plain meaning of the term to warrant claim
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`construction. Id. In response to defendants’ proposed construction, plaintiff asserts that
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`defendants improperly import limitations from the specifications into the claims. Id. at 2. And,
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`plaintiff argues that defendants’ proposed construction excludes disclosed embodiments. Id.
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`I disagree with plaintiff that the plain and ordinary meaning of “access profile” is a term
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`that a person of ordinary skill in the art would readily understand. This is an obscure term that
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`should be construed. However, I cannot accept defendants’ proposed construction, as that
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`proposal attempts to define an obscure term with an obscure definition. Instead, I choose to
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`adopt a construction that tracks the language of the ‘535 patent itself. The ‘535 patent’s
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`specification provides a sufficient construction for the disputed term: “[t]he access profiles
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`comprise information that enables the controller to select a suitable compression algorithm that
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`provides a desired balance between execution speed (rate of compression) and efficiency
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`(compression ratio).” ‘535 pat. at col. 8:8–12.
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`At the Markman hearing, I proposed this very construction to the parties. Plaintiff
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`generally agreed with my proposal should I feel compelled to construe the term. Defendants’
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`primary issue with my construction was that it was too broad, and that the use of the word
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`information would be confusing to the jury. Defendants suggested “saves and opens” instead.
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`Defendants’ position is a little odd considering defendants’ proposal also contained the
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`word information. Nonetheless, I agree with defendants that the word information could be
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`further clarified to assist the jury. Based on intrinsic evidence—as depicted in the “access
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`profile” chart above—I choose to use the words reads and writes as opposed to saves and opens.
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`I also take comfort in the fact that defendants stated at the Markman hearing “reads” is
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`synonymous with “opens,” and “writes” is synonymous with “saves.”
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`D. Court’s Construction.
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`Therefore, the Court construes the term “access profile” to mean “comprising the read
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`and write data that enables the controller to select a suitable compression algorithm that provides
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`a desired balance between execution speed (rate of compression) and efficiency (compression
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`ratio).”
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`II. THROUGHPUT OF A COMMUNICATION CHANNEL [Claims ‘610 pat., Cl. 1, 9,
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`12–14].
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`A. Plaintiff’s Proposed Interpretation.
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`No construction is required beyond the plain and ordinary meaning of the term as
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`determined by one of ordinary skill in the art based upon the claim being considered in context.
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`B. Defendants’ Proposed Interpretation.
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`“Throughput of a communication channel” means the “number of pending transmission
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`requests over a communication channel.”
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`C. Discussion.
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`Claim 1 of the ‘610 patent claims
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`A method, comprising:
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`determining, a parameter or an attribute of at least a portion of a data block having
`video or audio data;
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`selecting one or more compression algorithms from among a plurality of
`compression algorithms to apply to the at least the portion of the data block based
`upon the determined parameter or attribute and a throughput of a communication
`channel, at least one of the plurality of compression algorithms being asymmetric;
`and
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`compressing at least the portion of the data block with the selected compression
`algorithm after selecting the one or more, compression algorithms.
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`‘610 pat. at col. 20: 2–13 (emphasis added).
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`Neither party contends that “a communication channel” requires construction. Instead,
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`the issue revolves around the meaning of “throughput.” Defendants concede that “throughput” is
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`used in the specification in various contexts, but the term only appears once in the context of a
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`“communication channel.” ECF No. 127 at 4. Defendants are concerned that not defining
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`“throughput” will allow plaintiff to define the term as “bandwidth”—a definition the patent
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`examiner purportedly rejected. Id. at 4–5.
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`In response, plaintiff alleges that the claims and specification use the term “throughput”
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`in its ordinary sense, which means “data rate or usage.” ECF No. 134 at 2. Because plaintiff did
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`not clearly redefine “throughput” in the specification, there is no clear and unmistakable
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`disclaimer which would limit the term to defendants’ narrow construction. Id. at 3. Moreover,
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`plaintiff argues that defining “throughput” as the “number of pending transmission requests over
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`a communication channel” is just one example of a method to track data rate or usage; there are
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`numerous other methods to track data rate or usage. Id.
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`I agree that the Asserted Patents use “throughput” inconsistently. For example, the
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`abstract of both patents reads:
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`Data compression and decompression methods for compressing and
`decompressing data based on an actual or expected throughput (bandwidth) of a
`system. In one embodiment, a controller tracks and monitors the throughput (data
`storage and retrieval) of a data compression system and generates control signals
`to enable/disable different compression algorithms when, e.g., a bottleneck occurs
`so as to increase the throughput and eliminate the bottleneck.
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`When I see the term “throughput” followed by a parenthetical “bandwidth,” I would normally
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`conclude that throughput and bandwidth are synonyms of each other. However, in this case, the
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`next sentence seemingly defines throughput in a different manner.
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`Although the Asserted Patents use “throughput” inconsistently, it is true that the patents
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`use the term only once in the context of a “communication channel.” Defendants refer to this
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`singular passage in the summary of the invention as an express definition of “throughput of a
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`communication channel.” It reads: “In another aspect, the system comprises a data transmission
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`controller for controlling the compression and transmission of compressed data, as well as the
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`decompression of compressed data received over a communication channel. The system
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`throughput tracked by the controller comprises a number of pending transmission requests over
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`the communication channel.” ‘535 pat. at col. 8:21–27 (emphasis added).
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`I find that “throughput of a communication channel” does not have a plain and ordinary
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`meaning. Plaintiff wants me to leave this term undefined or use “bandwidth” to define
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`throughput. But as defendants pointed out in the Markman hearing, bandwidth itself carries
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`multiple meanings, such as a range of frequencies, memory reads and writes per unit time,
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`processor command execution rate, the number of traces on a bus, or the capacity to perform a
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`task. Having concluded that this term lacks a plain and ordinary meaning, plaintiff’s argument
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`that the ‘535 patent did not include a disclaimer is unavailing because there is nothing to
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`disclaim. As such, the intrinsic evidence must control. I also note that I don’t find
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`“communication channel” particularly useful, but at the hearing, both sides agreed that its use
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`should be included in the definition. Therefore, the Court adopts defendants’ construction of the
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`term “throughput of a communication channel” because it is supported by the intrinsic evidence.
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`D. Court’s Construction.
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`“Throughput of a communication channel” means the “number of pending transmission
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`requests over a communication channel.”
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`III. ASYMMETRIC COMPRESSOR(S) [Claims ‘535 pat., Cl. 12, 15–16, 24] /
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`ASYMMETRIC DATA COMPRESSION [Claims ‘535 pat., Cl. 1, 10] / ASYMMETRIC
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`COMPRESSION ALGORITHM/COMPRESSION ALGORITHMS BEING
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`ASYMMETRIC [Claims ‘610 pat., Cl. 1, 9] / ASYMMETRIC [Claims ‘610 pat., Cl. 6, 16].
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`A. Plaintiff’s Proposed Interpretation.
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`No construction is required beyond the plain and ordinary meaning of the term as
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`determined by one of ordinary skill in the art based upon the claim being considered in context.
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`In the alternative, if this Court determines that claim construction is necessary, the term should
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`be construed as “a compression algorithm in which the execution times for compression and
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`decompression differ significantly.” Moreover, plaintiff makes clear that it believes the term is
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`not indefinite.
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`B. Defendants’ Proposed Interpretation.
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`Defendants allege that the term means “a compression algorithm in which the execution
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`time for compression and decompression differ significantly,” which renders the claims
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`indefinite under Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244 (Fed. Cir. 2008).
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`C. Discussion.
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`This is the sole claim term that the parties agree on the construction. But they disagree
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`on whether this construction renders the claims indefinite. In Halliburton Energy Servs., Inc. v.
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`M-I LLC, 514 F.3d 1244, 1256 (Fed. Cir. 2008), the Federal Circuit held that the defendant
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`provided clear and convincing evidence that the term “fragile gel” was indefinite. The patent at
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`issue in Halliburton “relate[d] to oil field drilling fluids that [were] fragile gels.” Id. at 1246.
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`The court determined that the term was indefinite because “an artisan would not know from one
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`well to the next whether a certain drilling fluid was within the scope of the claims because a wide
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`variety of factors could affect adequacy (formation geology, wellbore size, depth, angle, etc.).”
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`Id. at 1254–55.
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`Here, defendants argue that decompression execution times depend on the client device’s
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`computing power. ECF No. 127 at 6–7. Thus, whether defendants infringe on the Asserted
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`Patents depends on the speed of the device decompressing the data. Defendants’ expert, Dr.
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`Alan Bovik, opined that compression run-time may vary depending on the end-user’s hardware,
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`memory, or peripherals. Bovik Decl., ECF No. 135-1 at ¶¶33–35. He opined that such factors
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`would lead to impossible infringement determinations because an artisan would be forced to
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`make a separate infringement determination each time. Id. at ¶¶35–37.
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`Plaintiff responds by arguing that a person of skill in the art would understand that the
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`algorithms in question are either always asymmetrical or always symmetrical, regardless of the
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`specific hardware or software used. ECF No. 134 at 5; see also Kenneth Zeger Decl., ECF No.
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`134-1 at ¶20. Plaintiff further defends the definitiveness of its claims by arguing that the
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`specification provides “examples sufficient” for a person of ordinary skill in the art to determine
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`whether the claim limitation is present. ECF No. 134 at 7 (citing Halliburton, 514 F.3d at 1256
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`(internal citations omitted)). To illustrate, the specification states that “asymmetrical
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`compression algorithms include dictionary-based compression schemes such as Lempel-Ziv.”
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`‘535 pat. at col. 10:3–4. Similarly, the specification states that “[e]xamples of symmetrical
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`algorithms include table-based compression schemes such as Huffman.” ‘535 pat. at col. 10:8–9.
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`Despite the brief arguments that both sides presented at the Markman hearing, I reserve
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`judgment on my ruling regarding the indefiniteness of this claim. Defendants indicated that the
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`issue was not fully briefed and asked that I reserve judgment. Instead, they stated that they
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`would move for summary judgment on this issue. Because plaintiff did not object to defendants’
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`request, I will reserve judgment on the indefiniteness argument until defendants file for summary
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`judgment.
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`D. Court’s Construction.
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`An “asymmetric” compression algorithm is “a compression algorithm in which the
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`execution time for compression and decompression differ significantly.” Whether this
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`construction renders the claim indefinite will be decided on summary judgment should
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`defendants file such motion.
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`IV. COMPRESSOR [Claims ‘535 pat., Cl. 1, 8, 10, 12, 14–16].
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`A. Plaintiff’s Proposed Interpretation.
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`No construction is required beyond the plain and ordinary meaning of the term as
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`determined by one of ordinary skill in the art based upon the claim being considered in context.
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`In the alternative, if this Court determines that claim construction is necessary, the term should
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`be construed as “data compression encoder.”
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`B. Defendants’ Proposed Interpretation.
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`Defendants propose the following construction: “Means-plus-function element to be
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`construed in accordance with pre-AIA 35 U.S.C. § 112, ¶ 6. Function: compressing the at least
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`the portion of the data block. Structure: Controller 11 in Fig. 1 or [Digital Signal Processor
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`(“DSP”)] or Processor 121 in Fig. 3 running any one of the following compression algorithms:
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`arithmetic coding, dictionary compression, table-based compression, Huffman coding, and run-
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`length coding.”
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`C. Discussion.
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`The core dispute regarding the construction of the term “compressor” is whether means-
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`plus-function claiming applies. 35 U.S.C. § 112, ¶ 6 reads:
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`An element in a claim for a combination may be expressed as a means or step for
`performing a specified function without the recital of structure, material, or acts in
`support thereof, and such claim shall be construed to cover the corresponding
`structure, material, or acts described in the specification and equivalents thereof.
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`This provision allows “patentees to express a claim limitation by reciting a function to be
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`performed rather than by reciting structure for performing that function, while placing specific
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`constraints on how such a limitation is to be construed . . . .” Williamson v. Citrix Online, LLC,
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`792 F.3d 1339, 1347 (Fed. Cir. 2015). Under prior Federal Circuit law, the court all but required
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`a patentee to use the term “means” to invoke § 112, ¶ 6. Id. at 1349 (collecting caselaw). The
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`absence of “means” created a “strong” presumption that mean-plus-function claiming did not
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`apply. Id. However, the Williamson court declared a modified, relaxed rule:
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`The standard is whether the words of the claim are understood by persons of
`ordinary skill in the art to have a sufficiently definite meaning as the name for
`structure. When a claim term lacks the word “means,” the presumption can be
`overcome and § 112, para. 6 will apply if the challenger demonstrates that the
`claim term fails to “recite sufficiently definite structure” or else recites “function
`without reciting sufficient structure for performing that function.”
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`Id. (internal citations omitted).
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`In this case, defendants admit that the claim term “compressor” does not include the word
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`“means.” ECF No. 127 at 8. Nonetheless, under the new Williamson standard, defendants argue
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`that § 112, ¶ 6 applies because the specification fails to explain what structure performs the
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`function of compressing data. Id. at 8–9. Rather, defendants assert that the patent speaks in
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`generic terms and solely focuses on the function—compressing data—without defining the
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`structure that completes the function. Id.
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`Plaintiff predictably argues that § 112, ¶ 6 doesn’t apply to the Asserted Patents because
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`the claim term did not recite “means.” ECF No. 134 at 8. And then plaintiff argues that
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`defendants failed to meet its burden under the Williamson standard because defendants failed to
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`refute plaintiff’s expert, who concluded that a compressor is a “data compression encoder, which
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`is a class of known structure.” Zeger Decl., ECF No. 134-1 at ¶¶21–24.
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`For this claim term only, I find it useful to first turn to the expert opinions. As I
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`mentioned in the previous paragraph, plaintiff’s expert opined that a person of ordinary skill in
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`the art would understand the term compressor to mean a data compression encoder structure.
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`Zeger Decl., ECF No. 134-1 at ¶21. According to Dr. Zeger, a compressor is a subset of the
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`class within the broader class of encoder structures, which include hardware, firmware, or
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`software structures that encode digital data. Id. Dr. Zeger also cited the specification, the
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`claims, and other incorporated patents to support his assertion that the claim term recites
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`sufficiently definite structure. Id. ¶22; see also ‘535 claim 14.
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`Defendants provide no testimony from a person of ordinary skill in the art to refute Dr.
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`Zeger’s interpretation of the term. Despite the opportunity to do so, Dr. Bovik did not respond to
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`Dr. Zeger’s proposed construction of the term “compressor,” nor did Dr. Bovik provide an
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`opinion that the term compressor fails to connote sufficient structure to a person of ordinary skill
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`in the art. Instead of refuting Dr. Zeger’s opinion with its own person of ordinary skill in the art,
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`defendants argue that Dr. Zeger’s report is unsupported and conclusory.
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`I agree that Dr. Zeger doesn’t cite to manuals or articles in this portion of his opinion, but
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`he did thoroughly explain his reasoning to include specific examples of encoder structures. See
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`Zeger Decl., ECF No. 134-1 at ¶21. What I am left to decide is whether a person of ordinary
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`skill in the art would find the term “compressor” to be a definite structure. And here, I have the
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`opinion of exactly one person of ordinary skill in the art.
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`As such, I accept Dr. Zeger’s assertion that the specification recites a sufficiently definite
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`structure. My decision also is supported by intrinsic evidence. Claim 14 of the ‘535 patent,
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`which states that “compressors utilize at least one slow compress encoder and at least one fast
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`decompress decoder,” suggest that “compressors” are data compression encoders. Further,
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`defendants want me to rule that plaintiff’s definition of an encoder—which it construes as
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`"hardware, firmware, or software structures that encode digital data”—is broad and fails to
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`identify any particular structure. But Federal Circuit precedent does not demand so much from a
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`patentee. See Skky, Inc. v. MindGeek, s.a.r.l., 859 F.3d 1014, 1019 (Fed. Cir. 2017) (holding that
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`a claim recites sufficient structure “if the claim term is used in common parlance or by persons
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`of skill in the pertinent art to designate structure, even if the term covers a broad class of
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`structures and even if the term identifies the structures by their function”). Again, plaintiff’s
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`expert stated that the term is a subset of a class of known structure, and he cited intrinsic
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`evidence to support his opinion. Without a rebuttal from a person of skill in the pertinent art, I
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`will follow the opinion of the lone expert.
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`C. Court’s Construction.
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`Accordingly, the Court construes the term “compressor” to be a “data compression
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`encoder.”
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`V. COMPRESSING/COMPRESSED/COMPRESSION [Claims ‘610 pat., Cl. 1, 2, 6, 8-
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`14, 16, 18; ‘535 pat., Cl. 1–2, 4-6, 8, 10–12, 14–17, 19, 21–22].
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`A. Plaintiff’s Proposed Interpretation.
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`
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`The term “compressing / compressed /compression” means “[representing / represented /
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`representation] of data with fewer bits.”
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`B. Defendants’ Proposed Interpretation.
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`No construction is required beyond the plain and ordinary meaning of the term as
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`determined by one of ordinary skill in the art based upon the claim being considered in context.
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`In the alternative, if this Court determines that claim construction is necessary, the term
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`17
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`

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`Case 1:17-cv-02097-RBJ Document 151 Filed 01/11/19 USDC Colorado Page 18 of 27
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`“compressing / compressed /compression” means “[reduction of / reducing / reduce] the amount
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`of data required to process, transmit, or store a given quantity of information.”
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`C. Discussion.
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`Claim 1 of the ‘610 patent claims
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`A method, comprising:
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`determining, a parameter or an attribute of at least a portion of a data block having
`video or audio data;
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`selecting one or more compression algorithms from among a plurality of
`compression algorithms to apply to the at least the portion of the data block based
`upon the determined parameter or attribute and a throughput of a communication
`channel, at least one of the plurality of compression algorithms being asymmetric;
`and
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`compressing at least the portion of the data block with the selected compression
`algorithm after selecting the one or more, compression algorithms.
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`‘610 pat. at col. 20:2–13 (emphasis added).
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`
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`Defendants argue that their proposed construction closely tracks the specification, which
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`states that “[d]ata compression is widely used to reduce the amount of data required to process,
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`transmit, or store a given quantity of information.” ‘535 pat. at col. 2:44–46. Defendants then
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`argue that plaintiff’s proposal is unsupported by the intrinsic record, and that the words “bits”
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`simply adds ambiguity to the term. ECF No. 127 at 10.
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`
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`In response, plaintiff asserts that its proposed construction simply uses the term in its
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`ordinary sense. ECF No. 134 at 12. As evidence, plaintiff also cites to the ‘535 patent
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`specification. Id. The relevant parts of the specification reads: “[D]ata compression economizes
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`on data storage . . . by representing information more efficiently. . . . Lossy data compression
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`techniques provide for an inexact representation of the original uncompressed data such that the
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`18
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`Case 1:17-cv-02097-RBJ Document 151 Filed 01/11/19 USDC Colorado Page 19 of 27
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`decoded (or reconstructed) data differs from the original unencoded/uncompressed data. . . .
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`[L]ossless data compression techniques provide an exact representation of the original
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`uncompressed data.” ‘535 pat. at col. 4:23–53 (emphasis added).
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`
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`To start, I find that the term “compressing / compressed / compression” requires
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`construction. It seems plain to me from the briefs and presentations that the term lacks a plain
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`and ordinary meaning. As such, I must decide on a construction that is supported by intrinsic
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`evidence. Here, I find plaintiff’s construction persuasive. The specification uses the term in its
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`ordinary sense, which is to represent data with fewer bits. See ‘535 pat. at col. 4:23–53.
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`Moreover, plaintiff cited seven Realtime cases in which the respective parties disputed the
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`meaning of the term “compressing / compressed / compression.” The defendants in those cases
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`either stipulated to Realtime’s proposed construction, or the court construed the term in
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`Realtime’s favor.2 While I am not bound by the construction of “compressing / compressed /
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`compression” previously agreed upon in different lawsuits involving different defendants, I find
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`it persuasive. This is especially true since plaintiff represented that the patents at issue in those
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`cases are incorporated by reference in the Asserted Patents. ECF No. 144-1 at 37. Further,
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`defendants fail to present a merit-based argument for why this Court shouldn’t construe the term
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`similarly. Instead, defendants simply argue that I am not bound by those decisions. See ECF
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`No. 146-1 at 57. Accordingly, I elect to adopt plaintiff’s construction.
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`
`2 See Realtime Data LLC v. Actian Corp., No. 6:15-cv-00463-RWS-JDL, D.I. 362 at 39 (E.D. Tex. July
`28, 2016); Realtime Data LLC v. Packeteer, Inc., No. 6:08-cv-00144-LED-JDL, Dkt. No. 371-2 at 64
`(E.D. Tex. June 22, 2009); Realtime Data LLC v. Morgan Stanley, No. 1:11-cv-06703-KBF, Dkt. No. 89
`at 4 (S.D.N.Y. July 9, 2012); Realtime Data LLC v. Teradata Op., Inc., No. 2:16-CV-02743-AG-FFM,
`Dkt. No. 42 (C.D. Cal. Jan. 24, 2017); Realtime Data LLC v. Synacor, Inc., No. 6:17-CV-00126-RWS-
`JDL, Dkt. (E.D. Tex. Apr. 25, 2018); Realtime Data LLC v. EchoStar Corp. & Hughes Network Sys.,
`LLC, No. 6:17-cv-00084-JDL, Dkt. No. 104 (E.D. Tex. Apr. 25, 2018); Realtime Data LLC v. Rackspace
`US, Inc., No. 6:16-cv-00961-RWS-JDL, Dkt. No. 183 (E.D. Tex. June