IPR2018-01331 (’610 patent)
`IPR2018-01334 (’535 patent)
`
`Sling, Dish, et al., Petitioner
`v.
`Realtime Adaptive Streaming LLC,
`Patent Owner
`Patent Owner’s Demonstratives
`
`Served November 29, 2019
`Presented December 4, 2019
`
`Realtime Adaptive Streaming, LLC
`Exibit 2018
`IPR2018-01342
`
`
`IPR2018-01334 (’535 patent)
`
`Sling, Dish, et al., Petitioner
`v.
`Realtime Adaptive Streaming LLC,
`Patent Owner
`Patent Owner’s Demonstratives
`
`Served November 29, 2019
`Presented December 4, 2019
`
`Realtime Adaptive Streaming, LLC
`Exibit 2018
`IPR2018-01342
`
`
`
` —
`
`Claim Construction
`
`Claim Construction
`
`2
`
`
`
`“access profile”
`
`Realtime’s Proposal
`“information that enables the
`controller to select a suitable
`compression algorithm that
`provides a desired balance
`between execution speed (rate
`of compression) and efficiency
`(compression ratio)”
`
`Sling’s Proposal
`“information that enables a
`controller to determine a
`compression routine that is
`associated with a data type of
`the data to be compressed”
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`33
`
`
`
`Realtime’s Proposal Comes Verbatim from Specification
`
`• Realtime’s proposal comes directly from the
`patent’s description of what “access profiles” are
`
`’535 sur-reply at 2,
`POR at 13-16
`
`-’535 patent at 8:4-12
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`44
`
`
`
`Realtime’s Proposal Is Consistent With Intrinsic Evidence
`
`• Realtime’s proposal is consistent with every
`example and embodiment in the patent
`• Access profiles enable selection of suitable
`compression algorithms to provide balance
`between speed and efficiency
`
`Compression Algorithms
`Algorithm 1
`asymmetrical with slow compress
`and fast decompress
`asymmetrical with fast compress
`and slow decompress
`symmetrical
`
`Algorithm 2
`
`Algorithm 3
`
`’535 sur-reply at 2-3
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`55
`
`
`
`Sling’s Proposal Is Incorrect
`
`•
`
`Sling’s proposal is unsupported by the intrinsic
`or extrinsic evidence, which never defines an
`“access profile” in terms of data type
`
`’535 sur-reply at 3
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`66
`
`-’535 patent at col. 11
`
`
`
`Sling’s Proposal Is Incorrect
`
`•
`
`Sling’s proposal imports limitations from an
`embodiment discussing “data profiles”
`
`’535 sur-reply at 3-5
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`77
`
`-’535 patent at 11:31-38
`
`
`
`Sling’s Proposal Is Incorrect
`
`• Patent gives an example of “three data access
`profiles” that adds a column for data types
`
`’535 sur-reply at 4-5
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`88
`
`’535 patent
`at col. 12
`
`
`
`“asymmetrical” compression
`
`• Patent provides express definition of
`“asymmetrical” data compression algorithm:
`
`-’535 patent at 9:63-67
`
`’535 sur-reply at 5,
`POR at 11-12
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`99
`
`
`
`“asymmetrical” compression
`
`•
`
`Sling’s expert agreed patent provides “express
`definition” of asymmetrical compression
`
`Sling’s Expert Dr. Bovik
`
`-Ex. 2012 (Bovik Decl.) ¶ 32
`
`’535 sur-reply at 16
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`1010
`
`
`
`New Arguments & Theories
`Forbidden in Reply
`
`11
`
`
`
`New Theories Forbidden in Reply
`Thus, although “the introduction of new evidence
`in the course of the trial is to be expected in inter
`partes review trial proceedings,” the shifting of
`arguments is not, Petitioner’s inherency
`argument . . . is an impermissible shift of its
`anticipation theory because “[r]ather than
`explaining how its original petition was correct,”
`. . . Petitioner’s “subsequent arguments amount
`Despite the Petition arguing Claim 1[e] is disclosed by Lei,
`to an entirely new theory of anticipation absent
`Petitioner’s Reply now argues it is “obvious” or inherent
`from the petition.
`
`-Pfizer v. Chugai Pharm., IPR2017-01357, Paper 56 at 19
`(PTAB Nov. 28, 2018) (FWD) (internal citations omitted)
`
`’535 sur-reply at 5-6
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`12
`
`
`
`Petitioners Must Make Their Case in Petition
`
`Unlike district court litigation . . . the
`expedited nature of IPRs bring with it an
`obligation for petitioners to make their case
`in their petition to institute. While the Board's
`requirements are strict ones, they are
`requirements of which petitioners are aware
`Despite the Petition arguing Claim 1[e] is disclosed by Lei,
`when they seek to institute an IPR.
`Petitioner’s Reply now argues it is “obvious” or inherent
`-Intelligent Bio-Sys. v. Illumina Cambridge, 821
`F.3d 1359, 1369 (Fed. Cir. 2016).
`
`’535 sur-reply at 6
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`13
`
`
`
`Petitioner Cannot “Gap-Fill” in Reply
`
`The explanations in the Reply, therefore, are
`not responsive to Patent Owner’s arguments
`that the limitation is not disclosed. Rather
`they are a new mapping of the claims to the
`prior art in light of the gaps that Patent
`Owner pointed out in its Response.
`
`- Arista Networks, Inc. v. Cisco Sys. Inc., IPR2016-00308,
`Paper 42, at 14 (May 24, 2017)
`
`’535 sur-reply at 6
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`14
`
`
`
`Arguments That “Could Have Been Made” in Petition
`
`The declaration raises a new obviousness
`argument for this limitation that could have
`been made in the petition . . . which
`proposed that [reference] rendered obvious a
`number of other claim limitations. [Petitioner]
`had an opportunity to present this argument
`in its petition, but chose not to.
`
`- Acceleration Bay, LLC v. Activision Blizzard Inc., 908 F.3d
`765, 775 (Fed. Cir. 2018)
`
`’535 sur-reply at 7
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`15
`
`
`
`Sling Waived Argument for “Asymmetrical” Compression
`
`Sling waived any argument under Realtime’s correct
`construction for “asymmetrical” compression
`• Realtime’s construction comes from express
`definition the patent itself
`Sling’s Petition cites three earlier IPRs where
`petitioners proposed same construction (IPR2018-
`01169, IPR2018-01170, and IPR2018-00833)
`Sling’s own expert said it was express definition
`months before Realtime’s proposal in this IPR
`
`•
`
`•
`
`’535 sur-reply at 15-17
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`1616
`
`
`
`Sling Waived Argument for “Access Profile”
`
`Sling waived argument under Realtime’s or Board’s
`construction in Netflix IPR for “access profile”
`• Realtime’s construction comes from patent itself
`•
`Sling’s Petition cites Netflix’s earlier-filed petition
`that proposed the construction
`• The Board denied Sling’s request to supplement
`Petition for “access profile” under Netflix
`construction
`
`’535 sur-reply at 14,
`POR at 18, 34-36
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`1717
`
`
`
`Sling Cannot Re-write Obviousness Theories
`
`• The Petition Ground 2 obviousness theory is limited
`to “asymmetric” compression; but in reply, it
`expands Ground 2 beyond all recognition.
`
`’535 sur-reply at 17-19
`
`-Sing’s Reply Table of Contents
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`
`
`1818
`
`
`
` —
`
`Anticipation
`Anticipation
`
`19
`
`19
`
`
`
`Law of Anticipation
`
`The jury instruction states: “Rather, for anticipation,
`it is sufficient if the single reference would have
`informed those skilled in the art that all of the
`claimed elements could have been arranged as in
`the claimed invention.” We agree with Abbott,
`therefore, that when read in its entirety, the
`instruction is incorrect because it makes sufficient,
`for purposes of anticipation, a prior art disclosure of
`individual claim elements that “could have been
`arranged” in a way that is not itself described or
`depicted in the anticipatory reference.
`
`-Therasense, Inc. v. Becton, Dickinson and Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010)
`’535 sur-reply at 7-8,
`POR at 24-25
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`20
`
`
`
`Law of Anticipation
`
`The way in which the elements are arranged or
`combined in the claim must itself be disclosed, either
`expressly or inherently, in an anticipatory reference
`. . . . The requirement that the prior art elements
`themselves be “arranged as in the claim” means that
`claims cannot be “treated . . . as mere catalogs of
`separate parts, in disregard of the part-to-part
`relationships set forth in the claims and that give the
`claims their meaning.”
`
`-Therasense, Inc. v. Becton, Dickinson and Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010)
`
`’535 sur-reply at 7-8,
`POR at 24-25
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`21
`
`
`
`Law of Anticipation
`
`Unless a reference discloses within the four
`corners of the document not only all of the
`limitations claimed but also all of the limitations
`arranged or combined in the same way as
`recited in the claim, it cannot be said to prove
`prior invention of the thing claimed and, thus,
`cannot anticipate under 35 U.S.C. § 102.
`
`-Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008)
`
`-Therasense, Inc. v. Becton, Dickinson and Co., 593 F.3d 1325, 1332 (Fed. Cir. 2010)
`
`’535 sur-reply at 7-8,
`POR at 24-25
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`22
`
`
`
`The Petition Ignores Embodiments
`
`•
`
`Sling and its expert, Dr. Acton, fail to analyze or even
`discuss a reference’s embodiments in the Petition.
`• The word “embodiment” does not appear in the
`Petition’s claim analysis
`
`• Dr. Acton declined to answer questions about
`embodiments, including how many embodiments are
`disclosed or whether he analyzed that question
`
`’535 sur-reply at 7-8,
`POR at 24-28
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`23
`
`
`
`The Petition Fails to Prove Anticipation
`
`• The Petition fails to show reference discloses “all of
`the limitations arranged or combined in the same way
`as recited in the claim . . . to prove prior invention of
`the thing claimed ” (NetMoney, Therasense)
`
`• Petition also fails to show that a POSITA, reading
`reference would “at once envisage” the claimed
`arrangement or combination.
`
`• The Petition fails to make a prima facie showing of
`anticipation and cannot cure this inreply.
`
`’535 sur-reply at 7-8,
`POR at 24-28
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`24
`
`
`
` —
`
`“data block”
`
`“data block”
`
`25
`
`25
`
`
`
`“Data Block” Must Be A Single Unit of Data
`
`• Parties agreed to this construction:
`
`-POR at 9
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`26
`
`
`
`Dvir’s “Sample” Comprises “Groups of Rasters”
`
`-Dvir at 5:31-36, Fig. 1b
`
`’535 sur-reply at 9-10,
`POR at 29-31
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`27
`
`
`
`“Groups of Rasters” Is Not a Data Block
`
`Realtime’s Expert Dr. Zeger
`
`-Zeger Decl. ¶ 107
`
`’535 sur-reply at 9-10,
`POR at 29-31
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`28
`
`
`
`“Groups of Rasters” Is Not a Data Block
`
`Realtime’s Expert Dr. Zeger
`
`’535 sur-reply at 9-10,
`POR at 29-31
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`29
`
`-Zeger Decl. ¶ 106
`
`
`
`Dvir Does Not Anticipate “Data Block”
`
`Sling’s argument is a non-sequitur.:
`
`•
`
`Sling argues that other things, a “DVD movie,”
`“frame,” or “adjacent frames” could be a data block
`
`• But other things are meaningfully different from
`“groups of rasters” and might be considered a single
`unit in ways that groups of rasters cannot.
`
`• But “groups of rasters” is not itself a data block
`
`’535 sur-reply at 10-12,
`POR at 29-31
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`30
`
`
`
`Sling’s Dvir Anticipation Theory Fails
`
`•
`
`•
`
`“determining a parameter or attribute of at least a
`portion of the data block”
`•
`Sling’s argument is inconsistent with argument for
`“data block”
`• Any identified “parameter or attribute” is not that
`of a single 8x8 block.
`
`Sling’s new theory that Dvir renders “data block”
`obvious is entirely absent from the Petition
`
`’535 sur-reply at 11-13
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`31
`
`
`
` —
`
`“access profile”
`“access profile”
`
`32
`
`32
`
`
`
`“Access Profile” Under Realtime’s Construction
`
`• Dvir does not disclose “access profiles” under
`Realtime’s construction, which requires selecting a
`compression algorithm based on balancing
`compression speed and efficiency
`
`• Dvir’s disclosures are about selecting algorithm based
`on “data type” under Sling’s construction
`
`• Dvir’s selection is based on data type compatibility
`and does not satisfy Realtime’s construction
`
`Sur-reply at 14-15
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`33
`
`
`
`“Access Profile” Under Netflix’s Construction
`
`In IPR2018-01169, Board preliminarily construed
`“access profile” as “information regarding the number
`or frequency of reads or writes”
`
`Sling concedes that Dvir does not disclose “access
`profile” under this construction.
`
`•
`
`•
`
`• Any theory that “access profiles” would be obvious is
`not within the scope of any grounds of this IPR
`
`Sur-reply at 14-15
`
`DEMONSTRATIVE EXHIBIT – NOT EVIDENCE
`
`34
`
`
`
`“asymmetric” compression
`
`35
`
`
`
`Sling Waived Argument on “Asymmetric” Compression
`
`• The Petition was based on a knowingly incorrect
`construction of “asymmetric” compression that omits
`“significantly” or “execution time”
`
`•
`
`•
`
`Sling should not be rewarded for that strategic and
`unreasonable position.
`
`Sling should not be allowed to make new arguments it
`could and should have included in the Petition.
`
`• Dvir does not render asymmetric compression obvious
`
`Sur-reply at 15-17
`
`36
`
`
`
`IPR2018-01331 (’610 patent)
`
`claims 6 & 16: ‘‘wherein each compression
`algorithm from among the plurality of
`compression algorithms is asymmetric ’’
`
`37
`
`
`
`Vishwanath Discloses Many Symmetrical Algorithms
`
`•
`
`Sling’s expert, Dr. Acton testified that the majority of
`the disclosed algorithms (five) are symmetrical
`
`-Vishwanath at 6:62-67
`
`‘610 POR at 32-34, 38-40
`
`38
`
`
`
`Vishwanath Teaches Against Claims 6 & 16
`
`• Vishwanath teaches the use of symmetrical algorithms
`for audio and video data
`
`-Vishwanath at Fig. 7
`
`‘610 POR at 32-34, 38-40
`
`39
`
`
`
`Claims 6 & 16 Are Not Obvious
`
`•
`
`Sling fails to show why a POSITA would modify
`Vishwanath to exclude symmetrical algorithms
`
`• Vishwanath teaches that symmetrical algorithms are
`beneficial for compressing various data types,
`including video data.
`
`•
`
`Sling’s expert agreed that a symmetrical algorithm
`would be beneficial to use for video data.
`
`‘610 POR at 32-34, 38-40
`
`40
`
`
`
`IPR2018-01331 (’610 patent)
`IPR2018-01334 (’535 patent)
`
`Sling, Dish, et al., Petitioner
`v.
`Realtime Adaptive Streaming LLC,
`Patent Owner
`Patent Owner’s Demonstratives
`
`Served November 29, 2019
`Presented December 4, 2019
`
`
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