`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`HULU, LLC and
`NETFLIX, INC.,
`Petitioners,
`v.
`UNILOC 2017, LLC,
`Patent Owner.
`__________________
`
`Case No. IPR2020-00041
`Patent No. 8,407,609
`__________________
`
`DECLARATION OF MICHAEL FRANZ IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 8,407,609
`
`
`
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`NETFLIX, INC. EXHIBIT 1002
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`

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`TABLE OF CONTENTS
`
`
`
`
`I. 
`
`INTRODUCTION .......................................................................................... 1 
`A.  Qualifications ....................................................................................... 2 
`1. 
`Education ................................................................................... 2 
`2.  Work Experience ........................................................................ 2 
`3. 
`Publications ................................................................................ 5 
`4. 
`Curriculum Vitae ........................................................................ 6 
`B.  Materials Reviewed .............................................................................. 6 
`C. 
`Level of Ordinary Skill in the Art ........................................................ 7 
`D. 
`Summary of Opinions .......................................................................... 8 
`II.  OVERVIEW OF THE TECHNOLOGY ........................................................ 9 
`A. 
`Priority Date of the Claims ................................................................... 9 
`B.  Overview of Relevant Technology When the ’609 Patent Was
`Filed .................................................................................................... 10 
`1. 
`Usage Tracking ........................................................................ 10 
`2. 
`Streaming Media ...................................................................... 18 
`The ’609 Patent .................................................................................. 22 
`The Challenged Claims ...................................................................... 26 
`Claim Construction ............................................................................ 27 
`1. 
`“Computer System” ................................................................. 28 
`2. 
`“Streamed” ............................................................................... 29 
`III.  UNPATENTABILITY OF THE ’609 PATENT CLAIMS ......................... 30 
`A. 
`Standards for Invalidity ...................................................................... 30 
`1. 
`Obviousness ............................................................................. 30 
`B.  Ground I: Claims 1-3 were obvious in view of Davis and Choi ....... 32 
`1. 
`The Davis-Choi Combination .................................................. 32 
`2. 
`Claim 1 ..................................................................................... 47 
`
`C. 
`D. 
`E. 
`
`
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`3.
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`4.
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`C.
`
`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`Claim 2: “The method of claim 1, wherein the storing
`comprises incrementing a stored value dependently upon
`the receiving.” .......................................................................... 74 
`Claim 3: “The method of claim 2, wherein the received
`data is indicative of a temporal cycle passing.” ....................... 78 
`Ground II: Claims 1-3 were obvious in view of Siler and Davis ...... 79 
`1.
`The Siler-Davis Combination .................................................. 79 
`2.
`Claim 1 ..................................................................................... 92 
`Claim 2: “The method of claim 1, wherein the storing
`3.
`comprises incrementing a stored value dependently upon
`the receiving.” ........................................................................ 103 
`Claim 3: “The method of claim 2, wherein the received
`data is indicative of a temporal cycle passing.” ..................... 107 
`IV. CONCLUSION ........................................................................................... 107 
`
`4.
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`LIST OF APPENDICES
`
`
`Appendix A
`
`Curriculum Vitae of Michael Franz, Ph.D.
`
`Appendix B
`
`Documents Cited
`
`
`
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`INTRODUCTION
`I, Michael Franz, have been retained by Petitioners Netflix, Inc.
`
`1.
`
`
`
`I.
`
`(“Netflix”) and Roku, Inc. (“Roku”) (collectively, “Petitioners”) to investigate and
`
`opine on certain issues relating to United States Patent No. 8,407,609 (“the ’609
`
`patent”) in their Petition for Inter Partes Review of that patent. The Petition
`
`requests that the Patent Trial and Appeal Board (“PTAB” or “Board”) review and
`
`cancel claims 1-3 of the ’609 patent.
`
`2.
`
`The opinions set forth in this declaration are based on my personal
`
`knowledge, my professional judgment, and my analysis of the materials and
`
`information referenced in this declaration and its exhibits.
`
`3.
`
`I am being compensated for consulting services including time spent
`
`testifying at any hearing that may be held. I am also reimbursed for reasonable and
`
`customary expenses associated with my work in this case. I receive no other forms
`
`of compensation related to this case. My compensation does not depend on the
`
`outcome of this inter partes review or the co-pending district court litigation, and I
`
`have no other financial interest in this inter partes review.
`
`4.
`
`I understand that the ’609 patent has been assigned to Uniloc 2017
`
`LLC.
`
`5.
`
`This declaration is based on the information currently available to me.
`
`To the extent that additional information becomes available, I reserve the right to
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`continue my investigation and study, which may include a review of documents
`
`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`and information that may be produced, as well as testimony from depositions that
`
`have not yet been taken.
`
`A. Qualifications
`1.
`Education
`I completed my undergraduate studies with a Diplomingenieur from
`
`6.
`
`the Swiss Federal Institute of Technology in Zurich (“ETH Zurich”) in 1989. In
`
`1994, I obtained my Doctorate of Technical Sciences from ETH Zurich. My
`
`dissertation was entitled “Code-Generation On-the-Fly: A Key to Portable
`
`Software.”
`
`2. Work Experience
`I am a tenured Chancellor’s Professor of Computer Science in the
`
`7.
`
`Donald Bren School of Information and Computer Sciences at the University of
`
`California, Irvine (“UCI”). I am also, by courtesy, a Full Professor of Electrical
`
`Engineering and Computer Science in the Henry Samueli School of Engineering at
`
`UCI. In 2016, the University awarded me the title of distinction of “Chancellor’s
`
`Professor.”
`
`8.
`
`I have served as a visiting professor at ETH Zurich, the University of
`
`California at Berkeley, the University of Klagenfurt in Austria, and the Technical
`
`
`
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`University of Berlin, the Technical University of Brunswick, and the University of
`
`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`Ulm in Germany.
`
`9.
`
`I have been elevated to Fellow of the Institute of Electrical and
`
`Electronics Engineers (IEEE), the global engineering society. Fellow is the highest
`
`of three grades of membership that are awarded based on merit. In every year,
`
`IEEE limits the number of new Fellows to one tenth of one percent of the
`
`membership, which currently stands at about 430,000 members.
`
`10.
`
`I have also been elevated to Fellow of the Association for Computing
`
`Machinery (ACM), the global professional society for computer scientists. Fellow
`
`is the highest of ACM’s four grades of membership. ACM’s rules for Fellows are
`
`even more restrictive than IEEE’s, limiting the total number of Fellows in absolute
`
`terms to 1% of the membership, which currently stands at about 100,000 members.
`
`In recent years, ACM has typically elevated no more than 50 individuals to Fellow
`
`status in a single year; in 2015, the year I was advanced, there were 42 new
`
`Fellows.
`
`11. Furthermore, I am a recipient of the IEEE Computer Society’s
`
`Technical Achievement Award, “for pioneering contributions to just-in-time
`
`compilation and optimization and significantly advancing Web application
`
`technology.” At most 5 of these awards are given annually by the IEEE Computer
`
`
`
`
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`Society, the largest of the IEEE’s technical societies with a current membership of
`
`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`more than 60,000 members. I am also a recipient of the 2019 Humboldt Research
`
`Award, also known as the “Humboldt Prize.” The award, given by the Alexander
`
`von Humboldt Foundation of Germany and funded by the German federal
`
`government, recognizes renowned researchers outside of Germany whose
`
`“fundamental discoveries, new theories or insights have had a significant impact
`
`on their own discipline and who are expected to continue producing cutting-edge
`
`achievements in the future.” It is the highest award given by the Foundation to
`
`researchers based outside of Germany.
`
`12.
`
`I have led pioneering research on downloadable code in client-server
`
`settings such as what we today call “Web 2.0.” This research has had a real and
`
`lasting impact on a great many people. I am the co-inventor (with one of my
`
`former Ph.D. students) of the “Trace Tree” compilation technique, for which the
`
`United States Patent and Trademark Office has awarded U.S. Patent No. 8,769,511.
`
`I collaborated with the non-profit Mozilla Foundation to incorporate this technique
`
`into the Firefox web browser, where it became the basis of the “TraceMonkey”
`
`JavaScript engine, eventually used by several hundred million people every day.
`
`13. Over the course of my career so far, I have been the Principal
`
`Investigator on several high-profile research projects with a total budget of almost
`
`
`
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`$20M. My expertise in software systems with distinct emphases on performance
`
`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`and security of client-server and mobile computing has been sought out repeatedly
`
`by the Federal Government, and I have been participating in many high-level
`
`invitation-only meetings on Critical Infrastructure Protection and Cyber Security
`
`organized by the National Intelligence Community, the Department of Defense, the
`
`Department of Homeland Security, and the Department of Energy.
`
`14.
`
`I am an Associate Editor of one the flagship journals of the IEEE, the
`
`IEEE Transactions on Dependable and Secure Computing (TDSC), and on the
`
`editorial board of two further peer-reviewed scholarly journals focusing on
`
`software engineering, Software  Practice and Experience (SPE) and Computer
`
`Science  Research and Development (CSRD). I have served on the program
`
`committees of most major academic conferences that are related to the various
`
`themes of my research. I have served as the primary advisor to 28 completed
`
`Ph.Ds. and currently serve as the primary advisor on 11 further dissertations in
`
`progress.
`
`3.
`Publications
`In addition to my dissertation, I co-authored “Automated Software
`
`15.
`
`Diversity,” released in 2015.
`
`
`
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`16.
`
`I have published 35 reviewed journal and magazine articles since
`
`
`
`1993, and over 100 conference and workshop papers.
`
`17.
`
`I am an inventor on five issued U.S. patents, as well as an additional
`
`patent that has been given a “notice of allowance” but that has not issued yet. I
`
`have one additional U.S. patent application pending.
`
`4.
`Curriculum Vitae
`18. A copy of my curriculum vitae is attached as Appendix A to this
`
`declaration.
`
`B. Materials Reviewed
`19. My opinions expressed in this declaration are based on documents and
`
`materials identified in this declaration, including the ’609 patent, the prior art
`
`references and background materials discussed in this declaration, and the other
`
`references specifically identified in this declaration. I have considered these
`
`materials in their entirety, even if only portions are discussed here.
`
`20.
`
`I have also relied on my own experience and expertise in Web
`
`technologies.
`
`
`
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`C. Level of Ordinary Skill in the Art
`21.
`I am not an attorney and offer no legal opinions. I have been
`
`informed about certain aspects of the law for purposes of my analyses and
`
`opinions.1
`
`22.
`
`I understand that in analyzing questions of invalidity and infringement,
`
`the perspective of a person having ordinary skill in the art (“POSA”) is often
`
`implicated, and the Court may need assistance in determining that level of skill.
`
`23.
`
`I understand that the claims and written description of a patent must
`
`be understood from the perspective of a POSA. I have been informed that the
`
`following factors may affect the level of skill of a POSA: (1) the educational level
`
`of the inventor; (2) the type of problems encountered in the art; (3) the prior-art
`
`solutions to those problems; (4) the rapidity with which innovations are made; (5)
`
`the sophistication of the technology; and (6) the educational level of active workers
`
`in the field. A person of ordinary skill in the art is also a person of ordinary
`
`creativity in the art.
`
`
`
`
`1 I understand that the patent laws were amended by the America Invents
`Act (AIA), but that the earlier statutory requirements still apply to pre-AIA patents.
`I have been informed that the ’609 Patent is a pre-AIA patent, so the pre-AIA
`requirements control. Unless otherwise stated, my understanding of the law about
`patent invalidity as set forth in this declaration relates to the pre-AIA requirements.
`7
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`24. Based on my experience in client-server system design, as well as my
`
`
`
`reading of the ’609 Patent, it is my opinion that a person of ordinary skill with
`
`respect to the subject matter of the ’609 Patent at the time of the alleged priority
`
`date of the ’609 Patent in 2008 would have had at least a B.S. degree in computer
`
`science, computer engineering, or electrical engineering (or equivalent experience)
`
`and would have had at least one year of experience with web development,
`
`including the then-current web technologies such as HTML, XML, Java, and
`
`JavaScript. This definition is flexible, and additional educational experience in
`
`computer science could make up for less work experience and vice versa.
`
`25.
`
`I am at least a person of ordinary skill in the art and was so on the date
`
`to which the ’609 Patent claims priority (August 21, 2008). As shown by my
`
`qualifications and my curriculum vitae attached as Appendix A, I am aware of the
`
`knowledge and skill possessed by a person of ordinary skill in the art at the time of
`
`the priority date of the ’609 Patent. In performing my analysis, I have applied the
`
`standard set forth above.
`
`D.
`26.
`
`Summary of Opinions
`I have reviewed and analyzed the ’609 Patent (Ex. B-1, same as Ex.
`
`1001 in the Petition) as well as prior art references Davis (Ex. B-2, same as Ex.
`
`1003 in the Petition), Choi (Ex. B-3, same as Ex. 1004 in Petition), and Siler (Ex.
`
`B-4, same as Ex. 1005 in Petition).
`
`
`
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`27. Based on my review and analysis, it is my opinion that claims 1-3 of
`
`
`
`the ’609 Patent are invalid as obvious based on Davis in view of Choi. Based on
`
`my review and analysis, it is also my opinion that claims 1-3 of the ’609 Patent are
`
`invalid as obvious based on Siler in view of Davis.
`
`II. OVERVIEW OF THE TECHNOLOGY
`A.
`Priority Date of the Claims
`28.
`I have been informed that a U.S. patent application may claim the
`
`benefit of the filing date of an earlier patent application if the earlier patent
`
`application disclosed each limitation of the invention claimed in the later-filed U.S.
`
`patent application. I have also been informed that priority is determined on a
`
`claim-by-claim basis so that certain claims of a patent may be entitled to the
`
`priority date of an earlier-filed patent application even if other claims of the same
`
`patent are not entitled to that priority date.
`
`29.
`
`I have also been informed that for patent applications filed before
`
`March 16, 2013, a patented claim is invalid if the claimed invention was patented
`
`or described in a printed publication in any country more than one year before the
`
`effective filing date of the claim, regardless of when the applicant conceived of the
`
`claimed invention.
`
`30.
`
`I understand that the ’609 Patent claims a priority date of August 21,
`
`2008.
`
`
`
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`
`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`B. Overview of Relevant Technology When the ’609 Patent Was
`Filed
`1.
`Usage Tracking
`In the realm of the Internet and World Wide Web, “usage tracking” is
`
`31.
`
`a term that is generally used to describe various techniques for tracking how users
`
`interact with content accessed over the internet. I will refer to this content as “Web
`
`resources” below, although it includes internet content well beyond simple HTML-
`
`based web pages, including multimedia content, downloadable “Applets” and
`
`scripts, etc. Usage tracking could include counting the number of visits to a
`
`webpage, tracking what parts of the webpage a user clicks on, and many other
`
`possible methods. While there are many different activities that might be tracked,
`
`and many different approaches to performing the tracking, what is thematic of all
`
`types of usage tracking is that the owner, operator, administrator, etc. of some Web
`
`resource wants to see how users interact with the Web resource. But because the
`
`user is located remotely and is only accessible through the Internet and World
`
`Wide Web, the owner, operator, administrator, etc. may have to channel the
`
`tracking through the Web resource itself.
`
`32. My reference to owners, operators, administrators, etc. above reflects
`
`the fact that usage tracking has historically been employed by many different types
`
`of actors. Amateur website publishers often track the number of visits to their
`
`
`
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`webpages, which can be implemented entirely server-side. Website administrators
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
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`might track not just the number of visits, but how the volume of those visits vary
`
`throughout the day. Other actors have used more sophisticated usage tracking
`
`methods, some of which cannot be implemented solely on the server but require
`
`client-side support.
`
`33. While many different types of actors have employed usage tracking,
`
`the advancement in usage tracking technologies has typically been driven by actors
`
`with some direct monetary interest. It is perhaps not surprising that actors that are
`
`paying or being paid based on user interaction with Web resources have had
`
`significant interest in increasing the accuracy of usage tracking and/or the types of
`
`usage tracking over time.
`
`34. On the Web, the largest class of actors with a direct monetary interest
`
`consists of advertisers. Advertising money in fact has been driving many facets of
`
`the Web and its development over time, and is driving some of the largest
`
`corporations in the Internet economy, such as Google and Facebook. Relating
`
`back to my point above about the motivations to increase usage tracking breadth
`
`and accuracy, advertisers have been very keen to make advancements in usage
`
`tracking since the very beginning of the Web. At one point, it was common for
`
`advertisers to pay a fee based on the number of clicks of their ads (e.g., pay a fee to
`
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`a webpage owner when a user clicks on a banner ad on that webpage). But this is
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`something of a rudimentary measure of advertising value, so advertisers have
`
`sought better usage tracking metrics to value how much they should pay.
`
`35.
`
`I now give an explanation of some of the developments in usage
`
`tracking over time.
`
`36. The World Wide Web became publicly available in 1991. Webpages
`
`were fairly simple at that time, and usage tracking was also pretty rudimentary. In
`
`the early and mid-1990s, usage tracking included things like tracking the number
`
`of times a webpage was visited, and tracking the number of times a link was
`
`clicked. These metrics were fairly easy to implement, even in very simple
`
`webpages.
`
`37. By the late-1990s to the early-2000s, webpages had advanced in
`
`functionality and complexity, and usage tracking advanced along with them. One
`
`significant part of these advancements was the proliferation of downloadable
`
`executable “Applets,” written in languages such as Java, and downloadable
`
`“Scripts,” written in languages such as JavaScript. Both of these allowed more
`
`dynamic functionality on the client side. Java and JavaScript first appeared in
`
`1995 and would ultimately become very popular. With these solutions to
`
`providing “executable content” to a user’s browser it was also possible to perform
`
`
`
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`more advanced usage tracking by actually following users’ actions on the users’
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
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`computers themselves. So for example, it became possible to determine (by an
`
`Applet or a script running in the background) whether an advertisement was
`
`currently visible on the screen, or whether it might be temporarily scrolled off-
`
`screen or obscured by another window.
`
`38. By 2008 (the ’609 Patent’s claimed priority date), Web technology
`
`had advanced even further. Webpages were highly functional with dynamic
`
`content, streaming media, and other features that are quite similar to Web
`
`technology today. Usage tracking advanced in correspondence, including some
`
`very fine-grained techniques, such as tracking a user’s passive interest in various
`
`parts of a webpage by tracking where the user’s cursor hovers, how long it hovers,
`
`etc.
`
`39. U.S. Patent Application Publication 2002/0165849, Ex. B-10 (“’849
`
`Publication”), which was published in 2002 provided some background on the
`
`state of the art in usage tracking and its motivations from the advertising
`
`community in the early 2000s. The ’849 Publication explained that the Internet
`
`had transformed into a “global marketplace” driven by the use webpages through
`
`the World Wide Web. ’849 Publication, ¶0005. The webpages were formatted
`
`using HTML and included multimedia such as “graphics, audio, and moving
`
`
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`pictures.” ’849 Publication, ¶0006. The Web was an “increasing attractive
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
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`medium for advertising and other business purposes.” ’849 Publication, ¶0006.
`
`“The Internet has emerged as an attractive new medium for advertisers of
`
`information, products and services to reach consumers.” ’849 Publication, ¶0008.
`
`40.
`
`In the early 2000s, advertisers typically had to track various metrics to
`
`determine whether the money paid for an advertising listing had been financially
`
`worthwhile. ’849 Publication, ¶0016-0026. Advertisers would “keep track of the
`
`number of clicks that a listing is getting.” ’849 Publication, ¶0021. Advertisers
`
`would track the “click through rate” for a listing. ’849 Publication, ¶0022.
`
`41. But needs remained in the state of the art advertising technology.
`
`These existing approaches were difficult for advertisers to manage. ’849
`
`Publication, ¶0016-0026. And then-common pricing schemes for advertising were
`
`not ideal. ’849 Publication, ¶0012-0015. Advertisers often paid for each
`
`impression for an advertisement (e.g., for each visit to the webpage displaying a
`
`banner advertisement). ’849 Publication, ¶0012. But click through rates were low,
`
`and many of the impressions were for users not interested in the advertised product
`
`or service. ’849 Publication, ¶0013.
`
`42. U.S. Patent 6,108,637, Ex. B-11 (“’637 Patent”), which issued in 2000,
`
`is an example of how practitioners in the field were trying to improve usage
`
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`tracking techniques as a way to address these shortcomings in the field. The ’637
`
`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
`
`Patent stated that “advertisers have particular interest in knowing how and to what
`
`extent their advertisements are displayed and/or observed, since such knowledge
`
`can be a key element in evaluating the effectiveness of their advertising and can
`
`also be the basis for payment for advertising.” ’637 Patent, 1:35-51. The ’637
`
`Patent also noted
`
`the deficiencies of
`
`the
`
`then-standard usage
`
`tracking
`
`(“monitoring” in that reference) approaches. ’637 Patent, 1:52-65. The ’637
`
`Patent sought to address the problems by improving usage tracking on the client
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`itself, by using a client-side tracking program provided by a server and
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`downloaded to the client. At the time of the invention, there were generally two
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`well-known technologies for such “executable content,” programs downloaded
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`from a server to a client and then executed on the client. The first of these are so-
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`called “Applets” that are typically represented as programs for the Java Virtual
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`Machine (JVM) and that are executed by a JVM that is part of the user’s browser.
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`The other is so called “scripts,” with the JavaScript language being the most
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`popular browser scripting language. The most important difference between
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`Applets and Scripts is that Applets are shipped as compiled code (in the case of the
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`JVM, typically compiled from the Java source language) and are therefore
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`somewhat harder to reverse engineer, while scripts are shipped in human-readable
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`source code form (but today they often are also heavily obfuscated). Hence, an
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
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`Applet downloaded to the client could track “whether (and for how long) the
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`content display is hidden” and “whether the content display is fully hidden or
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`partially hidden (and for how long the content display is fully and partially hidden,
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`respectively).” ’637 Patent, 7:4-30, 11:57-12:43.
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`43. U.S. Patent 7,310,609, Ex. B-14 (“’0609 Patent”), which was filed in
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`2002, demonstrated other ways in which usage tracking was being improved for
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`the purposes of advertising. The ’0609 Patent explained that metrics like “the
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`number of times that the Web page containing the advertisement is displayed”
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`were used “by the providers of such services and advertisers, typically in order to
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`calculate advertising rates.” ’0609 Patent, 1:61-65. The ’0609 Patent also
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`mentioned advertisement click-throughs as a metric used by advertisers. ’0609
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`Patent, 1:66-2:13. “Advertisers, however, would like not only to count a number
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`of ‘impressions,’ or how many times their advertisement is seen, but also to find a
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`way to track how effective their ads are in attracting consumers’ interest in their
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`products.” ’0609 Patent, 2:9-13.
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`44. The ’0609 Patent provided a solution to address these needs of
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`advertisers. The ’0609 Patent disclosed providing a web browser Applet to the
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`client computer. ’0609 Patent, 2:24-3:5. The Applet would track “how long an
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`object is displayed, which objects are selected by a user, which items are
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
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`considered by a user according to the amount of time the cursor hovers over the
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`items, measuring the time of presentation of an element in various ways, and/or
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`activating hyperlinks.” ’0609 Patent, 2:24-3:5.
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`45. U.S. Patent 7,089,304, Ex. B-12 (“’304 Patent”), which was filed in
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`2001, demonstrates that advancements in usage tracking were also being made by
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`groups other than advertisers. The ’304 Patent disclosed that, according to the
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`ways that clients were charged for Internet access at the time, Internet service
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`providers were “traditionally responsible for tracking a client’s usage, if
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`necessary.” ’304 Patent, 1:38-47. The Internet service provider might track how
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`long a client accessed the Internet, as well as what services the client
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`accessed. ’304 Patent, 1:48-2:22. The ’304 Patent disclosed use of a type of
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`“metering packet” to make this tracking more effective. ’304 Patent, 2:26-3:56.
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`46. U.S. Patent 6,877,007, B-13 (“’007 Patent”), filed
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`in 2001,
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`demonstrates that highly detailed usage tracking information was of considerable
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`interest as a general matter for any business operating on the Web. “It is a truth
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`universally acknowledge that, in order to succeed, a business must study the habits,
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`desires, and behavior of its customers. For companies conducting business over
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`the Internet and the World Wide Web … this necessarily extends to examining and
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`measuring their customers’ interaction with their Web sites.” ’007 Patent, 1:14-19.
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
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`The ’007 Patent disclosed that this goal could be achieved by providing a tracking
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`program with a webpage and having the tracking program track the user’s
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`interaction with the webpage on the client. ’007 Patent, 1:50-2:28. The user’s
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`interactions are transmitted to a server and can then be later replayed. ’007 Patent,
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`1:50-2:28.
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`47. While much more could be said about the multitude of usage tracking
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`techniques that had been developed by 2008, the techniques highlighted above give
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`a good overview of how the technology has advanced over time. These examples
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`also demonstrate that by 2008, tracking how long users interacted in various ways
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`with various types of content in their web browser were very well-known and
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`easily implementable by any person of ordinary skill in the field.
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`48.
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`I use the term “usage tracking” in this declaration, but I note that other
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`terminology may be used to refer to this domain. I have seen terms like “user
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`tracking,” “interaction tracking,” “user analytics,” and many others. These other
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`terms also refer to this general field of tracking the usage of Web resources.
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`2.
`Streaming Media
`49. The use of streaming media in the World Wide Web was also very
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`well-developed by 2008. While early webpages tended to be static and simple and
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`contain primarily static images or multimedia, this was already changing by the
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`Declaration of Michael Franz
`In Support of Petition for Inter Partes Review of
`U.S. Pat. No. 8,407,609
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`late-1990s.
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`50. One way in which streaming media was advancing by the late-1990s
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`was through standardization processes, with the Internet Engineering Task Force
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`(IETF) leading some of these efforts. In 1996, the IETF released RFC 1889, which
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`described Real-time Transport Protocol (RTP), a protocol for perfo