IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________
`
`Inter Partes Review No.: Unassigned
`________________
`
`DECLARATION OF ANTHONY J. WECHSELBERGER IN SUPPORT OF
`PETITIONER DISH NETWORK L.L.C.’S …
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NOs. 8,799,468 and 9,465,925
`
`DISH, Exh. 1006, p. 0001
`
`

`

`TABLE OF CONTENTS
`Introduction ...................................................................................................... 1
`I.
`Summary of Opinions ...................................................................................... 1
`II.
`III. Background and Qualifications ....................................................................... 2
`IV. Legal Standards for Patentability ..................................................................11
`V. Ordinary Skill in the Art ................................................................................17
`VI. Technological Background ............................................................................18
`A.
`Cable Television and Set-Top Box Overview ....................................18
`B. Digital Cable Television Technologies and Services .........................22
`1.
`Cable Head-End Architectures .................................................23
`2.
`Cable Distribution Plant ............................................................24
`3.
`Addressable Set Top Boxes and Conditional Access ...............27
`4.
`Interactive Television Services .................................................32
`VII. The Challenged ’468 and ’925 Patents ..........................................................41
`A.
`Effective Priority Date ........................................................................41
`B. Overview of the Challenged Patents Specification .............................41
`VIII. Claim Construction ........................................................................................41
`A.
`“to generate[ing …] controller instructions” (claim 1, [claim 23]) ....42
`B.
`“a controller node” ..............................................................................42
`C.
`“a service provider network” ...............................................................43
`D.
`“selectively transmit[ting, by the plurality of gateway units,] the
`content requests to the service provider network in accordance with the
`controller instructions” (claim 1, [claim 23]) ................................................43
`E.
`“gateway units” ...................................................................................44
`F.
`“network elements” .............................................................................44
`G.
`“pay-per-view advertising” .................................................................44
`IX. Description of the Prior Art ...........................................................................44
`A. Hoang ‘980 ..........................................................................................44
`B. Hoang ’267 ..........................................................................................44
`
`DISH, Exh. 1006, p. 0002
`
`

`

`X.
`
`XI.
`
`C. Hoang ’561 ..........................................................................................45
`D. Venkatesh ............................................................................................45
`E.
`Open Cable ..........................................................................................45
`F.
`Cameron ..............................................................................................46
`G.
`Shteyn ..................................................................................................46
`H.
`Coffin ...................................................................................................46
`’468 Patent Invalidity ....................................................................................46
`A.
`Claim 1 ................................................................................................46
`B.
`Claim 6 ................................................................................................90
`C.
`Claim 13 ..............................................................................................97
`D.
`Claim 15 ............................................................................................102
`E.
`Claim 19 ............................................................................................106
`F.
`Claim 23 ............................................................................................112
`G.
`Claim 24 ............................................................................................113
`H.
`Claim 25 ............................................................................................116
`I.
`Claim 27 ............................................................................................119
`J.
`Claim 28 ............................................................................................124
`K.
`Claim 29 ............................................................................................124
`L.
`Claim 30 ............................................................................................126
`M. Claim 32 ............................................................................................127
`N.
`Claim 33 ............................................................................................130
`O.
`Claim 41 ............................................................................................133
`’925 Patent Invalidity ..................................................................................137
`A.
`Claim 1 ..............................................................................................137
`B.
`Claim 25 ............................................................................................170
`C.
`Claim 29 ............................................................................................172
`D.
`Claim 36 ............................................................................................172
`E.
`Claim 38 ............................................................................................174
`F.
`Claim 40 ............................................................................................176
`
`DISH, Exh. 1006, p. 0003
`
`

`

`Claim 41 ............................................................................................180
`G.
`XII. Materials Considered ...................................................................................186
`
`DISH, Exh. 1006, p. 0004
`
`

`

`I.
`
`Introduction
`
`I, Anthony Wechselberger, declare as follows:
`
`1.
`
`I make this declaration based upon my own personal knowledge and, if
`
`called upon to testify, would testify competently to the matters stated herein.
`
`2.
`
`I have been asked by DISH Network L.L.C. to provide technical
`
`assistance in connection with the inter partes review of U.S. Patents No. 8,799,468
`
`and 9,465,925 (which I refer to as the “’468 Patent” and “’925 Patent,” respectively).
`
`This declaration is a statement of my opinions on issues related to the patentability
`
`of claims 1, 6, 13, 15, 19, 23, 24, 25, 27, 28, 29, 30, 32, 33, and 41 of the ’468 Patent
`
`and claims 1, 25, 29, 36, 38, 40, and 41 of the ’925 Patent (collectively, the
`
`“challenged claims”)
`
`3.
`
`My compensation is not based on the content of my opinions or the
`
`resolution of this matter.
`
`II.
`
`Summary of Opinions
`
`4. With respect to the ’468 Patent, it is my opinion that:
`
`a.
`
`b.
`
`Claims 1, 23, 24, 25, and 30 are obvious over Hoang ’980.
`
`Claims 6 and 28 are obvious over Hoang ’980 in view of
`
`Venkatesh.
`
`c.
`
`Claims 13 and 27 are obvious over Hoang ’980 in view of
`
`Hoang ’267.
`
`1
`
`DISH, Exh. 1006, p. 0005
`
`

`

`d.
`
`Claims 19 and 29 are obvious over Hoang ’980 in view of
`
`Hoang ’561.
`
`e.
`
`Claims 15 and 32 are obvious over Hoang ’980 in view of
`
`OpenCable.
`
`f.
`
`g.
`
`Claim 33 is obvious over Hoang ’980 in view of Cameron.
`
`Claim 41 is obvious over Hoang ’980 in view of Shteyn.
`
`5. With respect to the ’925 Patent, it is my opinion that:
`
`a.
`
`b.
`
`c.
`
`d.
`
`Claims 1, 25, 29, and 36 are obvious over Hoang ’980.
`
`Claim 38 is obvious over Hoang ’980 in view of OpenCable.
`
`Claim 40 is obvious over Hoang ’980 in view of Hoang ’267.
`
`Claim 41 is obvious over Hoang ’980 in view of Coffin.
`
`III. Background and Qualifications
`
`6.
`
`In formulating my opinions, I have relied on my knowledge, training,
`
`and experience in the relevant field, which I will summarize briefly. Further detail
`
`can be found in my Curriculum Vitae, which is attached as Attachment A to this
`
`declaration.
`
`7.
`
`My areas of expertise include broadband content distribution networks
`
`and communication infrastructures (Internet, broadcast, cable, satellite, and wireless
`
`mediums) including one-way and two-way interactive architectures, computer
`
`networks, communications-systems technologies and equipment, various content
`
`2
`
`DISH, Exh. 1006, p. 0006
`
`

`

`and information distribution and merchandising channels, digital television, digital
`
`cinema, interactive media/multimedia systems, Internet technologies (including but
`
`not limited to delivering content via the Internet, communications standards and
`
`protocols), digital-rights management (“DRM”), physical media and file-based and
`
`streaming content delivery, and other areas of expertise relevant to the technologies
`
`of this matter.
`
`8.
`
`I have a bachelor’s degree and a master’s degree in electrical
`
`engineering from the University of Arizona in 1974 and San Diego State University
`
`in 1979, respectively. I also completed the Executive Program for Scientists and
`
`Engineers at the University of California at San Diego in 1984. I am a named
`
`inventor on two patents: U.S. Patent No. 4,531,020 entitled “Multi-layer Encryption
`
`System for the Broadcast of Encrypted Information” and U.S. Patent No. 5,113,440
`
`entitled “Universal Decoder.”
`
`9.
`
`I am currently the President of Entropy Management Solutions, a
`
`position I have held since I founded the company in 1999. In this capacity, I perform
`
`consulting services related to technology and business development, content
`
`management, distribution and merchandizing, systems engineering, and product
`
`design in the areas of industrial and consumer broadband and multimedia
`
`technologies and associated commercial systems.
`
`3
`
`DISH, Exh. 1006, p. 0007
`
`

`

`10.
`
`I have over forty years of experience working with high-technology
`
`systems related to military, commercial, and consumer communication systems and
`
`networks. I have held various design, leadership, and executive positions in, for
`
`example, engineering, operations, sales and marketing, and product management at
`
`leading companies in those fields, such as TV/COM International, Inc. and Oak
`
`Communications, Inc. Over a period of many years, I have published and presented
`
`articles and papers related to content/information creation, transmission/distribution,
`
`and reception/consumption in various media sectors including cable, satellite,
`
`broadcast/wireless, Internet, and digital cinema.
`
`11.
`
`I specialize in the areas of analog and digital communications and
`
`signal processing as applied in content delivery systems including the associated
`
`network command and control. In this context, “command and control” (C&C)
`
`refers to the technical oversight and management of communication systems and
`
`equipment within a distribution network to direct the equipment as to its set-up and
`
`operation in order to perform required functions. In the types of networks discussed
`
`in the challenged patents, command and control typically operates in the background
`
`(i.e., invisible to consumers) to enable the system or network operator to manage
`
`access to the network and provide delivery of content to an appliance (referred to as
`
`a gateway unit or network element in the ‘468 and ‘925 Patent claims respectively)
`
`if authorized, according to C&C instructions generated by a controller node. With
`
`4
`
`DISH, Exh. 1006, p. 0008
`
`

`

`respect to being authorized, “rights management” refers to control over the delivery
`
`and consumption of content (programming, movies, data files, etc.) according to
`
`defined rules on behalf of the network operator and/or content-rights owner. As
`
`today’s electronic delivery processes have become more digitally enabled, the term
`
`“Digital Rights Management” (or DRM) has been adopted to refer to these processes.
`
`12.
`
`In most instances the implementation of content distribution channels
`
`over, for example, satellite, cable or Internet networks, and the associated command
`
`and control and DRM solutions, involve the use of what are referred to as “in-band”
`
`and “out-of-band” communications channels for content and C&C messaging. This
`
`terminology typically refers to a main content distribution path or channel (referred
`
`to as an in-band channel) and one or more external or non-main paths (referred to as
`
`out-of-band channel(s)) used for a variety of other communications functions
`
`depending upon the application. These concepts are particularly relevant here
`
`because the patents at issue relate to networks that include two-way C&C
`
`functionality between consumer appliances and a centralized control location
`
`(referred to as a controller node in the challenged claims) such as a satellite uplink
`
`or cable head-end. My personal experience with such information distribution
`
`architectures for television and data communication systems and networks dates
`
`back to 1980, and my familiarity with the types of equipment and applications
`
`implementing such technologies dates back to the early 1970s.
`
`5
`
`DISH, Exh. 1006, p. 0009
`
`

`

`13.
`
`Further, my background includes much experience with interactive
`
`television systems as well as client-server technologies such as those used in
`
`computer systems and Internet-focused networks. This includes having technical
`
`oversight and management of the systems engineering and the development of
`
`equipment for distribution systems having transmission equipment (e.g., network
`
`infrastructures, servers, hubs, nodes, cable head-ends, and satellite uplinks) and
`
`receiving equipment (e.g., personal computers,
`
`televisions, set-top boxes,
`
`handset/mobile devices, or other consumer appliances). In addition to the research
`
`and development aspects, I have also been involved in the installation, customer
`
`training, maintenance, and operations of such systems and components. This is
`
`important because the technologies and particular claims I have been asked to
`
`address are directed to interactive networks and applications in the form of consumer
`
`interaction with an appliance to obtain access to the network in order to receive
`
`requested content from the network.
`
`14. As Vice President at Oak Communications (1980s) and Chief
`
`Technology Officer at TV/COM (1990s), I was involved in the development of
`
`terrestrial broadcast, satellite uplink, and cable head-end industrial equipment for
`
`television transmissions, as well as consumer appliance equipment such as STBs and
`
`other home-based or home-networked devices. All of these architectures included
`
`computer control systems for network and associated network-device command and
`
`6
`
`DISH, Exh. 1006, p. 0010
`
`

`

`control and for management of content distribution and consumer appliance
`
`functions. For example, these systems were all addressable. “Addressability”
`
`enables the system or network operator to regulate device access to the network, and
`
`control the delivery of content and network services. This includes network sourcing
`
`and receiving devices (e.g., servers and transmission equipment and PCs or STB
`
`receivers), and the user experience via, for example, electronic/interactive program
`
`guides (EPG/IPG). Example applications include delivery of software or data files,
`
`control of available subscription services and content delivery, and providing “a la
`
`carte” functions such as pay-per-view (PPV) and video-on-demand (VOD).
`
`15. While at Oak Communications I led development projects that
`
`supported interactive television. Our “Cable Sigma” cable STB was two-way
`
`capable and could provide either store-and-forward or real-time interaction with the
`
`cable head-end via a telephone return channel or radio frequency (RF) upstream
`
`channel over the cable. Example services we supported include subscription
`
`changes (upgrade/downgrade), advanced purchase or real-time/impulse pay-per-
`
`view, home shopping, and polling. The system could also technically support video-
`
`on-demand though cable head-end servers were not yet cost effectively available.
`
`16.
`
`I have been involved with the development and evolution of modern
`
`consumer digital audio and video communications systems and technologies. In
`
`1980, Oak Communications was developing and demonstrating high fidelity digital
`
`7
`
`DISH, Exh. 1006, p. 0011
`
`

`

`audio transmission systems for broadcast applications. This research was applied to
`
`broadcast, cable, and satellite transmission systems, and Oak became the first
`
`company to implement digital audio for consumer television delivery applications.
`
`In 1991, my employer, TV/COM, and I began to participate in the newly formed
`
`International Organization for Standardization (ISO) MPEG-2 digital television
`
`standards initiatives, and in the following year, both the European Digital Video
`
`Broadcast (DVB) and U.S. Advanced Television Systems Committee (ATSC)
`
`forums (which were based upon MPEG-2). I was an active participant and
`
`contributor to the first two standard-setting bodies, and was a voting member of the
`
`ATSC. As Chief Technology Officer of TV/COM, I developed a business strategy
`
`based on supporting open international standards for digital television (DTV).
`
`17.
`
`In the mid-1990s, as the technologies and standards in support of DTV
`
`moved towards implementation, the dawn of the Internet age arrived. This had a
`
`dramatic impact on the way broadband systems engineers like me began to plan for
`
`the future. This was because the concept of convergence—the melding of traditional
`
`broadband communications systems and equipment, computers and computer
`
`networks, and the telecommunications worlds—was changing the communications
`
`infrastructure and technology landscape. When television distribution went all-
`
`digital, the information of television became simply “data.” It became possible for
`
`the technologies of digital television, computers, computer networks, and the
`
`8
`
`DISH, Exh. 1006, p. 0012
`
`

`

`telephony industry (which was in the midst of its transition to digital infrastructure
`
`that began in the 1970s) to coalesce. Support for on-line and Internet services
`
`demanded a high performance two-way data transmission capability, and so
`
`broadband network providers began to upgrade their distribution infrastructures
`
`accordingly.
`
`18.
`
`In conjunction with this convergence, as TV/COM’s Chief Technology
`
`Officer, I directed the expansion of our network products into broadband data
`
`communications generally from its initial focus on digital television. Networks
`
`became more advanced in order to support real-time interaction between consumers
`
`and information sources within the network. Interactive and on-line applications led
`
`to rapid adoption of client-server information-access approaches (typical of the
`
`computer industry) in the products and technologies I worked with for content
`
`delivery and network command and control functions. By the mid-1990s, the
`
`ubiquitous set-top box began to evolve from a minimalist appliance toward its
`
`current status as a communications hub of the consumer’s media room. In this same
`
`time period, the PC also became a ubiquitous consumer appliance and with the
`
`Internet age came much innovation in electronic-information distribution and
`
`electronic merchandising (i.e., art related to complementing physical information
`
`media and brick-and-mortar institutions with all-electronic digital alternatives). This
`
`9
`
`DISH, Exh. 1006, p. 0013
`
`

`

`was an explosive period of DRM art, among other things. TV/COM and I were part
`
`of this evolution until TV/COM was purchased in 1999.
`
`19.
`
`In my consulting I have continued to work with technologies and
`
`network infrastructures for content distribution and management. My current work
`
`involves both traditional and newly developing architectures and distribution
`
`channels. As an example of the latter, I am the chief security systems architect on
`
`behalf of the six major Hollywood studios for their Digital Cinema Initiatives (DCI)
`
`consortium. DCI develops and evolves the requirements and specifications for
`
`transitioning first-run theatrical movie releases from film to digital files for
`
`distribution and exhibition display. I am responsible for all elements of command
`
`and control and information security for the digital cinema system design and
`
`implementation. I also represent DCI at the Society of Motion Picture and
`
`Television Engineers (SMPTE), which is developing the set of internationally
`
`recognized standards for global adoption of digital cinema. In this capacity, I am a
`
`contributing member to SMPTE and have chaired several digital cinema technology
`
`groups and authored or co-authored more than half a dozen SMPTE standards. In
`
`addition to theatrical release, the migration to all-digital distribution impacts other
`
`content distribution channels and release windows for hospitality, airplane, and
`
`cable/satellite pay-per-view and video-on-demand, as well as newer so called “over-
`
`the-top” (OTT) distribution channels based on Internet distribution.
`
`10
`
`DISH, Exh. 1006, p. 0014
`
`

`

`20. My consulting practice today includes a balance of technology and
`
`systems-engineering services and assistance to the legal community as a technology
`
`consultant and expert witness. I have been accepted to provide, and have provided,
`
`expert testimony in the areas of content distribution and access control involving
`
`many different kinds of multimedia technologies and the associated networks as
`
`used for content management and delivery on many occasions.
`
`IV. Legal Standards for Patentability
`
`21. My opinions are also formed by my understanding of the relevant law.
`
`I am not an attorney. For purposes of this declaration, I have been informed about
`
`certain aspects of the law as it relates to my opinions.
`
`22.
`
`I understand that for an invention claimed in a patent to be found
`
`patentable, it must be (among other things) new and not obvious based on what was
`
`known before the invention was made.
`
`23.
`
`I understand that the information that is used to evaluate whether an
`
`invention was new and not obvious when made is generally referred to as “prior art.”
`
`I understand that the prior art includes all patents and printed publications that
`
`existed before the earliest filing date of the patent (i.e., the “effective filing date”).
`
`This includes foreign language material. I also understand that a patent is prior art
`
`if it was filed before the effective filing date of the claimed invention and that a
`
`11
`
`DISH, Exh. 1006, p. 0015
`
`

`

`printed publication is prior art if it was publicly available before the effective filing
`
`date.
`
`24.
`
`I understand that in this inter partes review proceeding, DISH has the
`
`burden of proving that the claims of the ’468 and ’925 Patents are unpatentable in
`
`light of the prior art by a preponderance of the evidence. I understand that a
`
`preponderance of the evidence is evidence sufficient to show that a fact is more
`
`likely true than not true.
`
`25.
`
`I understand that unexpired patent claims in an inter partes review are
`
`generally construed under the Phillips claim construction standard. After the claims
`
`are construed, they are then compared to the prior art.
`
`26.
`
`I understand that in this inter partes review proceeding, the information
`
`that may be evaluated is limited to patents and printed publications. My analysis,
`
`which is set out in detail below, compares the claims of the ’468 Patent and ’925
`
`Patent to patents and printed publications that are prior art to the claims.
`
`27.
`
`I understand that prior art can render the claim “obvious” to a person of
`
`ordinary skill in the art. My understanding of this legal standard is set out below.
`
`28.
`
`I understand that prior art can render a patent claim unpatentable where
`
`subject matter that falls within the claim would have been obvious to a person of
`
`ordinary skill in the art. I understand that the following standards govern the
`
`determination of whether a patent claim is rendered “obvious” in light of the prior
`
`12
`
`DISH, Exh. 1006, p. 0016
`
`

`

`art. I have applied these standards in my evaluation of whether the challenged claims
`
`of the ’468 and ’925 Patents were obvious in light of the prior art.
`
`29.
`
`I understand that a claimed invention is not patentable if it would have
`
`been obvious to a person of ordinary skill in the field of the invention at the time the
`
`invention was made. The person of ordinary skill in the art is a hypothetical person
`
`who is presumed to have known the relevant art at the time of the invention. Even
`
`if all the requirements of a claim were not found in a single prior art reference, the
`
`claim is not patentable if the differences between the subject matter in the prior art
`
`and the subject matter in the claim would have been obvious to a person of ordinary
`
`skill in the art at the time the application was filed. Prior art disclosing a method or
`
`device that falls within the scope of a claim can render that claim obvious even if
`
`other, different methods or devices might also fall within the scope of the claim.
`
`30.
`
`I understand that a determination as to whether a claim would have been
`
`obvious should be based on four factors (though not necessarily in the following
`
`order): (i) the level of ordinary skill in the art at the time the application was filed;
`
`(ii) the scope and content of the prior art; (iii) the differences between the claimed
`
`invention and the prior art; and (iv) any “objective factors” indicating obviousness
`
`or non-obviousness that may exist in a particular case.
`
`13
`
`DISH, Exh. 1006, p. 0017
`
`

`

`31.
`
`I understand that an obviousness analysis should not be based on
`
`hindsight, but must be done using the perspective of a person of ordinary skill in the
`
`relevant art as of the effective filing date of the patent claim.
`
`32.
`
`I understand the objective factors indicating obviousness or non-
`
`obviousness may include: commercial success of products covered by the patent
`
`claims; a long-felt but unaddressed need for the invention; failed attempts by others
`
`to make the invention; copying of the invention by others in the field; expressions
`
`of surprise by experts and those skilled in the art at the making of the invention; and
`
`the patentee having proceeded contrary to the accepted wisdom of the prior art. I
`
`also understand that any of this evidence must be specifically connected to the
`
`invention rather than associated with the prior art or with marketing or other efforts
`
`to promote an invention. I am not presently aware of any evidence of such objective
`
`factors suggesting the claims of the ’468 and ’925 Patents are non-obvious. Should
`
`the Patent Owner submit evidence purportedly showing such objective factors, I
`
`reserve the right to consider the evidence and respond to it.
`
`33.
`
`I understand that the teachings of two or more prior art references may
`
`be combined in the manner disclosed in the claim if such a combination would have
`
`been obvious to one having ordinary skill in the art. In determining whether a
`
`combination would have been obvious, the following exemplary rationales may
`
`support a conclusion of obviousness:
`
`14
`
`DISH, Exh. 1006, p. 0018
`
`

`

` combining prior art elements according to known methods to yield
`
`predictable results;
`
` simple substitution of one known element for another to obtain
`
`predictable results;
`
` use of a known technique to improve similar devices (methods, or
`
`products) in the same way;
`
` applying a known technique to a known device (method, or product)
`
`ready for improvement to yield predictable results;
`
` “obvious to try” – choosing from a finite number of identified,
`
`predictable solutions, with a reasonable expectation of success;
`
` known work in one field of endeavor may prompt variations of it for use
`
`in either the same field or a different one based on design incentives or
`
`other market forces if the variations are predictable to one of ordinary
`
`skill in the art;
`
` some teaching, suggestion, or motivation in the prior art that would have
`
`led one of ordinary skill to modify the prior art reference or to combine
`
`prior art reference teachings to arrive at the claimed invention; and
`
` common sense.
`
`34.
`
`I understand that the obviousness analysis need not seek out precise
`
`teachings directed to the specific subject matter of the challenged claim, but instead
`
`15
`
`DISH, Exh. 1006, p. 0019
`
`

`

`can take account of the ordinary innovation and experimentation in the relevant field
`
`that does no more than yield predictable results.
`
`35.
`
`I understand that, in assessing whether there was an apparent reason to
`
`modify or combine known elements as claimed, it may be necessary to look to
`
`interrelated teachings of multiple patents and printed publications, the effects of
`
`commercial demands, and the background knowledge of a person of ordinary skill
`
`in the art. I further understand that any motivation that would have applied to a
`
`person of ordinary skill in the art, including motivation from common sense or
`
`derived from the problem to be solved, is sufficient to explain why references would
`
`have been combined.
`
`36.
`
`I understand that modifications and combinations suggested by
`
`common sense are important and should be considered. Common sense suggests
`
`that familiar items can have obvious uses beyond the particular application being
`
`described in a prior art reference, that if something can be done once it would be
`
`obvious to do it multiple times, and that in many cases a person of ordinary skill in
`
`the art can fit the teachings of multiple patents together in an obvious manner to
`
`address a particular problem. Further, the prior art does not need to be directed to
`
`solving the same problem that is addressed in the patent.
`
`37.
`
`I understand that a person of ordinary skill in the art is also a person of
`
`ordinary creativity. In many fields, it may be that there is little discussion of obvious
`
`16
`
`DISH, Exh. 1006, p. 0020
`
`

`

`techniques, modifications, and combinations, and it may be the case that market
`
`demand, rather than scientific research or literature, will drive a new design. When
`
`there is market pressure or design need to solve a particular problem and there are a
`
`finite number of identified, predictable solutions, a person of ordinary skill has a
`
`good reason to employ the known options. If this leads to the expected success, then
`
`it is likely the product of ordinary skill and common sense as opposed to patentable
`
`innovation. I understand that if a combination was obvious to try, that may show
`
`that it was obvious and therefore unpatentable. That a particular combination of
`
`prior art elements was obvious to try suggests that the combination was obvious even
`
`if no one made the combination.
`
`V.
`
`Ordinary Skill in the Art
`
`38.
`
`I understand that the factors considered in determining the ordinary
`
`level of skill in the art include the level of education and experience of persons
`
`working in the field, the types of problems encountered in the field, and the
`
`sophistication of the technology. Based on my analysis of the challenged patents and
`
`the prior art references, a person of ordinary skill in the art as of the November 2003
`
`priority date would have a Bachelor’s Degree in Electrical Engineering, Computer
`
`Engineering, Computer Science or a similar technology degree and at least two years
`
`of relevant industry experience, including Internet networking architectures, digital
`
`17
`
`DISH, Exh. 1006, p. 0021
`
`

`

`programming delivery in broadcast, cable or satellite television networks, and
`
`associated set top boxes.
`
`39.
`
`I note that I was a person of ordinary skill in the art at the time of the
`
`alleged invention.