UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`CIVIL MINUTES - GENERAL
`SACV 18-2055-GW-DFMx
`Uniloc 2017 LLC v. Netflix, Inc.
`
`Case No.
`Title
`
`Date March 9, 2020
`
`Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE
`Javier Gonzalez
`None Present
`Tape No.
`Deputy Clerk
`Court Reporter / Recorder
`Attorneys Present for Plaintiffs:
`Attorneys Present for Defendants:
`None Present
`None Present
`PROCEEDINGS:
`IN CHAMBERS - RULING MARKMAN CLAIMS CONSTRUCTION
`
`Attached hereto is the Court’s final ruling on Markman Claims Construction.
`
`Netflix v. Uniloc, IPR2020-00041
`Uniloc's Exhibit 2003 (page 1)
`
`Initials of Preparer
`
`JG
`
`:
`
`CV-90 (06/04)
`
`CIVIL MINUTES - GENERAL
`
`Page 1 of 1
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`

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`Uniloc 2017 LLC v. Netflix, Inc., 8:18-cv-02055 GW (DFMx)
`Uniloc 2017 LLC v. Netflix, Inc., 8:18-cv-02150 GW (DFMx)
`Final Rulings on Markman Claims Construction
`
`I.
`
`II.
`
`Introduction
`Uniloc 2017 LLC (“Uniloc”) has filed two cases for patent infringement against Netflix,
`Inc. (“Netflix”), alleging infringement of four U.S. Patents. Case No. 18-cv-2055, Docket No.
`22 (First Amended Complaint as to Netflix regarding two of four asserted patents); Case No. 18-
`cv-2150, Docket No. 23 (First Amended Complaint as to Netflix regarding two of four asserted
`patents).
`The parties have submitted a Joint Claim Construction and Prehearing Statement. Docket
`No. 82. They have also filed Opening Claim Construction Briefs (Docket Nos. 92, 93) and
`Responsive Claim Construction Briefs (Docket Nos. 100, 101).
`A technology tutorial was held on January 16, 2020 and a claim construction hearing was
`held on February 13, 2020.1 Docket Nos. 119, 136.
`The Court would construe the presented disputed terms as stated herein.
`Background
`The following patents are currently asserted in this case:
` U.S. Patent No. 6,584,229 (“the ’229 Patent”);
` U.S. Patent No. 6,895,118 (“the ’118 Patent”);
` U.S. Patent No. 9,721,273 (“the ’273 Patent”); and
` U.S. Patent No. 8,407,609 (“the ’609 Patent”).
`See Docket No. 82 at 1.
`A. The ’229 Patent
`The ’229 Patent issued June 24, 2003 and is titled “Macroblock-Based Object-Oriented
`Coding Method of Image Sequence Having a Stationary Background.”
`Claim 1 is the only independent claim of the ’229 Patent. It recites:
`1. A method, for use in an macroblock-based object oriented coding of a
`image signal, wherein the image signal has a stationary background region
`and an object region and contains a current frame and a previous frame,
`each frame including a plurality of macroblocks, comprising the steps of:
`
`1 At the hearing, the Court provided the parties with a tentative ruling stating its views regarding
`the construction of the disputed claim terms. Docket No. 136.
`1 
`
`Uniloc's Exhibit 2003, page 2
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`

`

`a) dividing the stationary background region and the object region from
`an inputted video in a macroblock-by-macroblock basis by using a
`difference between the previous frame and the current frame;
`b) coding shape information of the object region by using a known
`coding technique to generate coded shape information;
`c) coding pixel information of each macroblock contained in the object
`region by using a selected known coding technique to generate
`coded object pixel information;
`d) generating coded pixel information of a previous frame macroblock
`corresponding to each current frame macroblock contained in the
`stationary background region as coded stationary pixel information;
`and
`e) storing or transmitting coded data coded shape information, coded
`object pixel information and coded stationary pixel information as
`coded image signal, and
`wherein the step d) includes the step of reusing corresponding coded
`pixel information macroblock contained in the previous frame
`without coding the pixel information of each macroblock contained
`in the current frame when a difference between a pixel value of the
`macroblock of the current frame and that of the macroblock of the
`previous frame in the same position is identical to or smaller than a
`predetermined threshold value.
`B. The ’118 Patent
`The ’118 Patent is titled “Method of Coding Digital Image Based on Error Concealment.”
`It issued on May 17, 2005.
`Claim 1 recites:
`1. A method of coding a digital image comprising macroblocks in a binary
`data stream, the method comprising:
`an estimation step, for macroblocks, of a capacity to be reconstructed
`via an error concealment method,
`a decision step for macroblocks to be excluded from the coding, a
`decision to exclude a macroblock from coding being made on
`the basis of the capacity of such macroblock to be reconstructed,
`characterized
`in
`that
`it also
`includes a step of
`inserting a
`resynchronization marker into the binary data stream after the
`exclusion of one or more macroblocks.
`The ’118 Patent includes four other independent claims besides Claim 1, and five dependent
`claims.
`C. The ’273 Patent
`The ’273 Patent is titled “System and Method for Aggregating and Providing Audio and
`Visual Presentations via a Computer Network.” It issued on August 1, 2017.
`
`2 
`
`Uniloc's Exhibit 2003, page 3
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`

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`Claim 1 recites:
`1. A method for providing content via a computer network and computing
`system, the method comprising:
`storing presentation data that represents content of a first collection of
`one or more presentations using the computer system;
`storing data indicative of the first collection of presentations so as to be
`associated with the presentation data;
`storing feed data that represents a collection of one or more feeds using
`the computer system, wherein each of the feeds identifies a
`corresponding second collection of one or more presentations
`being accessible via the computer network and includes no data
`representing content of the second collection of presentations;
`automatically and periodically accessing each of the feeds to identify
`each of the corresponding second collection of presentations,
`using the computer system;
`storing data associated with a third collection of one or more
`presentations; and
`aggregating each of the first, identified second, and third collections of
`presentations for delivery via the computer network using a
`common web page.
`The ’273 Patent has just three claims. Claim 2 is also an independent claim. It includes
`substantially the same limitations as Claim 1, but the preamble styles the claim as relating to “[a]
`non-transitory computer readable medium” that includes “computer instructions” configured to
`cause the computer to execute the claimed steps. Claim 3 is a dependent claim that depends
`from Claim 2. See ’273 Patent, Claim 3 (“The computer readable medium of claim 2, wherein
`the computer comprises at least one web server, at least one database server and at least one file
`server.”).
`D. The ’609 Patent
`The ’609 Patent issued March 26, 2013 and is titled “System and Method for Providing
`and Tracking the Provision of Audio and Visual Presentations Via a Computer Network.”
`Claim 1 recites:
`1. A method for tracking digital media presentations delivered from a first
`computer system to a user’s computer via a network comprising:
`providing a corresponding web page to the user’s computer for each
`digital media presentation to be delivered using the first
`computer system;
`providing identifier data to the user’s computer using the first computer
`system;
`providing an applet to the user’s computer for each digital media
`presentation to be delivered using the first computer system,
`
`3 
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`Uniloc's Exhibit 2003, page 4
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`

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`wherein the applet is operative by the user’s computer as a
`timer;
`receiving at least a portion of the identifier data from the user’s
`computer responsively to the timer applet each time a
`predetermined temporal period elapses using the first computer
`system; and
`storing data indicative of the received at least portion of the identifier
`data using the first computer system;
`wherein each provided webpage causes corresponding digital media
`presentation data to be streamed from a second computer system
`distinct from the first computer system directly to the user’s
`computer independent of the first computer system;
`wherein the stored data is indicative of an amount of time the digital
`media presentation data is streamed from the second computer
`system to the user’s computer; and
`wherein each stored data is together indicative of a cumulative time the
`corresponding web page was displayed by the user’s computer.
`The ’609 Patent has three claims, with Claim 1 being its only independent claim. Claims 2 and 3
`depend from Claim 1 and add:
`2. The method of claim 1, wherein the storing comprises incrementing a
`stored value dependently upon the receiving.
`3. The method of claim 2, wherein the received data is indicative of a
`temporal cycle passing.
`
`III.
`
`Legal Standard
`Claim construction is an interpretive issue “exclusively within the province of the court.”
`Markman v. Westview Instruments, Inc., 517 U.S. 370, 372 (1996). It is “a question of law in the
`way that we treat document construction as a question of law,” with subsidiary fact-finding that
`is reviewed for clear error. Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 837-40
`(2015). The claim language itself is the best guide to the meaning of a claim term. See Vederi,
`LLC v. Google, Inc., 744 F.3d 1376, 1382 (Fed. Cir. 2014). This is because the claims define the
`scope of the claimed invention. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005).
`But a “person of ordinary skill in the art is deemed to read the claim term not only in the context
`of the particular claim in which the disputed term appears, but in the context of the entire
`patent.” Id. at 1313. Thus, claims “must be read in view of the specification,” which is “always
`highly relevant to the claim construction analysis.” Phillips, 415 F.3d at 1315 (internal
`quotations omitted).
`Although claims are read in light of the specification, limitations from the specification
`
`4 
`
`Uniloc's Exhibit 2003, page 5
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`

`

` 
`
`must not be imported into the claims. Abbott Labs. v. Sandoz, Inc., 566 F.3d 1282, 1288 (Fed.
`Cir. 2009). “[T]he line between construing terms and importing limitations can be discerned
`with reasonable certainty and predictability if the court’s focus remains on understanding how a
`person of ordinary skill in the art would understand the claim terms.” Phillips, 415 F.3d at 1323.
`The prosecution history is “another established source of intrinsic evidence.” Vederi, 744
`F.3d at 1382. “Like the specification, the prosecution history provides evidence of how the PTO
`and the inventor understood the patent.” Phillips, 415 F.3d at 1317 (citations omitted).
`“Furthermore, like the specification, the prosecution history was created by the patentee in
`attempting to explain and obtain the patent.” Id. “Yet because the prosecution history represents
`an ongoing negotiation between the PTO and the applicant, rather than the final product of that
`negotiation, it often lacks the clarity of the specification and thus is less useful for claim
`construction purposes.” Id.
`Claim construction usually involves resolving disputes about the “ordinary and
`customary meaning” that the words of the claim would have had “to a person of ordinary skill in
`the art in question at the time of the invention.” Phillips, 415 F.3d at 1312-13 (internal
`quotations and citations omitted). But in some cases, claim terms will not be given their ordinary
`meaning because the specification defines the term to mean something else. “[A] claim term
`may be clearly redefined without an explicit statement of redefinition,” so long as a person of
`skill in the art can ascertain the definition by a reading of the patent documents. Id. at 1320; see
`also Trustees of Columbia Univ. in City of New York v. Symantec Corp., 811 F.3d 1359, 1364
`(Fed. Cir. 2016).
`Where the patent itself does not make clear the meaning of a claim term, courts may look
`to “those sources available to the public that show what a person of skill in the art would have
`understood disputed claim language to mean,” including the prosecution history and “extrinsic
`evidence concerning relevant scientific principles, the meaning of technical terms, and the state
`of the art.” Phillips, 415 F.3d at 1314 (internal quotations omitted). Sometimes, the use of
`“technical words or phrases not commonly understood” may give rise to a factual dispute, the
`determination of which will precede the ultimate legal question of the significance of the facts to
`the construction “in the context of the specific patent claim under review.” Teva, 135 S. Ct. at
`841, 849. “In some cases, the ordinary meaning of claim language as understood by a person of
`skill in the art may be readily apparent even to lay judges, and claim construction in such cases
`
` 
`
`5 
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`Uniloc's Exhibit 2003, page 6
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`

`

`involves little more than the application of the widely accepted meamng of commonly
`
`lmderstood words ." Phillips, 41 5 F.3d at 13 14.
`
`" In such circumstances, general purpose
`
`dictionaries may be helpful. " ld.
`
`IV.
`
`Discussion
`
`A. Agreed Claim Terms
`
`The parties have agreed to constructions for the following tenns:
`
`Term
`
`Agreed Construction
`
`"coded data coded shape infonllation, coded "coded
`shape
`coded
`including
`data
`objection pixel
`infol111ation
`and
`coded
`infol111ation, coded object pixel infonnation
`stationary pixel infonllation" (' 229 Patent, and coded stationalY pixel infonnation"
`Claim 1)
`
`"quanhlln-fransfol111ation" (' 229 Patent, Claim "quantization"
`5)
`
`or more "a collection of one or more presentations
`"a
`of one
`collection
`fIrst
`identifIed independent of any feed"
`presentations" ('273 Patent, Claim 1)
`
`"feed data that represents a collection of one or "data that identifIes or provides for access to
`one or more feeds"
`more feeds" (' 273 Patent, Claim 1)
`
`"streamed" ('609 Patent, Claim 1)
`
`"transferred via a technique such that the data
`can be processed as a substantially steady or
`continuous sequence"
`
`See Docket No. 82; see also Docket No . 92 at 14 (Uniloc's Opening Claim Construction Brief,
`
`adopting Netflix's amended proposed constmction for the tel111 "streamed").
`
`B. Disputed Claim Terms
`
`Before addressing the parties' individual disputes, a few preliminary comments are
`
`warranted. The Court has often analogized patent litigation to a game of chess. Each pal1y is
`
`planning its moves at least three steps ahead. And in this case, the parties have certainly made it
`
`clear that they have no interest in sharing their fuhrre moves.
`
`It is often this Court 's practice to require the parties to disclose their fuhrre moves at the
`
`claim constmction stage. The Com1 commonly directs parties to disclose the impact, if any, that
`
`selecting a parties' proposed constmction will have on dispositive issues in the case such as
`
`infringement and invalidity. The Court is not prejudging the ultimate infringement analysis, but
`
`simply fInds that often, this infol1nation provides helpful technical context and a deeper practical
`
`6
`
`Uniloc's Exhibit 2003, page 7
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`

`

`lmderstanding of the complex teclmological concepts at issue. Wilsoll Sportillg Goods Co. v.
`
`Hillerich & Bradsby Co., 442 F.3d 1322, 1326--27 (Fed. Cir. 2006) ("While a trial court should
`
`cel1ainly not prejudge the ultimate infringement analysis by constming claims with an aim to
`
`include or exclude an accused product or process, knowledge of that product or process provides
`
`meaningful context for the fIrst step of the infringement analysis, claim construction. ").
`
`Particularly in this case, the highly teclmical disputes raised by the parties have been
`
`presented - from the Com1 's vantage point - in a vacuum. In some instances, it is not even clear
`
`that the parties have a relevant substantive dispute as opposed to a semantic one . The Court has
`
`reviewed the parties' disputes and provides its position herein regarding the scope of the disputed
`
`claim tenns. The Court would prefer that all relevant disputes regarding the scope of the
`
`presented claim tenns be addressed now, but in places in this Order, it has noted the lack of
`
`sufficient context to support limiting the meaning of a tenn at this time. The parties were
`
`expected at the hearing to provide further, particularized context on these issues (simply saying
`
`"the accused product does not infringe if this limitation is construed as Netflix proposes" is not
`
`enough).
`
`1.
`
`' 11 8 Patent Claim Disputes
`
`•
`
`"resynclu onization marker" (' 11 8 Patent, Claims 1, 4, 6, 7, 8)
`
`Uniloc 's Proposed Construction
`
`Netflix 's Proposed Construction
`
`"a lllmlber of bits in a data stream that cause "a sequence of bits that can be detected by a
`reconstmction
`for an excluded
`receiver when an elTor occurs in order to start
`to OCC1U
`reading the data stream again at that location"
`macroblock , not including a fla g useful only
`for regions having a motion vector close to
`zero and for which
`texture has not
`the
`signifIcantly changed"
`
`•
`
`Alleged disclaimer in ' 11 8 Patent specifIcation at cohmm 4, lines
`47-65
`
`Uniloc's Proposed Construction
`
`Netflix's Proposed Construction
`
`claim
`This
`a
`not
`IS
`"resyncluonization marker"
`
`element;
`
`see "the exclusion of macroblocks from coding
`according to the invention does not entail the
`insel1ion of any specifIc fla g and the exclusion
`of macroblocks from coding is thus possible
`for all modes of I, P or B coding"
`
`7
`
`Uniloc's Exhibit 2003, page 8
`
`

`

` 
`
`The parties state that they have two claim construction disputes for the ’118 Patent, but
`
`only one of those disputes involves a claim term (“resynchronization marker”). The other
`dispute relates to whether there is a disclaimer of claim scope in an excerpt of the ’118 Patent
`specification.
`
`In describing steps of a flow chart depicted in Figure 1, the ’118 Patent states:
`. . . In step BC, the bits are counted to trigger the insertion of a
`resynchronization marker in a step MARK when the video packet is of
`sufficient size. After each step EXC, a resynchronization marker is inserted
`into the binary data stream in step MARK. Here, the term “synchronization
`marker” must be interpreted generally to include, for example in the
`MPEG-4 standard, such conventional markers as RESYNC, VOPStart
`(start of a temporal instance (plan) of a video object), GOVStart (start of a
`group of temporal instances of a video object), EOS (end of video session).
`At the end of the method a binary data stream BIN is thus obtained.
`. . . .
`It should be noted that the MPEG-4 standard already proposes not to code
`certain macroblocks in a video object or, more generally, in a video image,
`indicating this absence of coding by the presence of an “uncoded” flag. The
`presence of this flag is interpreted by the decoders which replace the
`uncoded macroblock with the macroblock located in the same position in a
`preceding instance of the video object. In general, the instance immediately
`preceding the instance in question is used. As a consequence, this
`[“uncoded”] flag can only be used for P coded images, for which a
`preceding instance is available and implicitly echoed in B coded images.
`The insertion of a flag of this nature is therefore only useful for regions
`having a motion vector close to zero and for which the texture has not
`changed significantly from one image or instance to the next. The
`exclusion of macroblocks from coding according to the invention does not
`entail the insertion of any specific flag and the exclusion of macroblocks
`from coding is thus possible for all modes of I, P or B coding.
`’118 Patent, 4:29-65 (emphasis added).
`
`Uniloc argues that its proposed construction for “resynchronization marker” aligns with
`this disclosure. Uniloc defines a resynchronization marker in terms of its ability to serve as a
`placeholder for a macroblock that has been removed from a data stream, rather than specifying or
`implying a particular type of previously-known resynchronization marker. Uniloc’s proposed
`construction further includes the phrase “not including a flag useful only for regions having a
`motion vector close to zero and for which the texture has not significantly changed.” This aspect
`of Uniloc’s proposal is based on the second quoted paragraph, which disclaims “uncoded” flags
`that were previously known in the MPEG-4 standard.
`
` 
`
`8 
`
`Uniloc's Exhibit 2003, page 9
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`

`

` 
`
`Netflix argues that its proposed construction of “resynchronization marker” is based on
`
`the known and conventional meaning of the term “resynchronization marker” at the time the
`patent was filed. Netflix bases its proposal on a portion of the “Description” section of the ’118
`Patent describing prior art concepts, which states:
`The MPEG-4 standard defines a coding syntax and proposes a certain
`number of tools for managing transmission errors . . . . Among these tools
`the MPEG-4 standard proposes tools for resynchronizing the binary data
`stream which periodically insert resynchronization markers into the data
`stream. These markers are used by the receiver which is resynchronized
`thanks to them during decoding. When an error occurs in the data stream,
`the receiver cannot read the data any more until it detects a subsequent
`resynchronization marker. The set formed by the marker and data between
`this marker and the following marker, is called a video packet. The
`resynchronization marker is included in a header element of the video
`packet. The header element also contains the number of the first macroblock
`of the video packet, to allow spatial resynchronization, and parameters that
`permit the receiver to continue decoding. The numbers of the subsequent
`macroblocks are not present in the data stream. Resynchronization as
`defined
`in
`the MPEG-4 standard can
`thus be qualified as point
`resynchronization, because it only exists for certain items of data in a
`stream, the rest of the stream being . . . .
`It is an object of the present invention to suggest a coding method that
`includes an exclusion of macroblocks having a certain capacity to be
`reconstructed from the coding compatible with coding standards which
`include point resynchronization means.
`’118 Patent at 1:35-51 (emphasis added). Netflix separately argues that there is a disclaimer of
`claim scope in the patent specification, but does not tie its proposed disclaimer arguments to a
`particular claim limitation in the asserted claims of the ’118 Patent. Netflix focuses on a
`different sentence of the specification compared to the portion that Uniloc acknowledges as a
`disclaimer. Specifically, Netflix refers to the sentence in the specification stating: “The
`exclusion of macroblocks from coding according to the invention does not entail the insertion of
`any specific flag and the exclusion of macroblocks from coding is thus possible for all modes of
`I, P or B coding.” ’118 Patent at 4:61-65.
`a)
`Meaning of “Resynchronization Marker”
`Netflix’s arguments regarding the meaning of the term “resynchronization marker” are
`not persuasive. The ’118 Patent discusses and purports to address shortcomings with the tools
`previously available in the MPEG-4 standard for coding a digital image, including the
`previously-known “resynchronization markers.” In explaining an “object of the invention,” the
`9 
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` 
`
`Uniloc's Exhibit 2003, page 10
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`

`

` 
`
`’118 Patent discusses inserting resynchronization markers after the exclusion of one or more
`macroblocks so that the excluded macroblocks can be “reconstructed.” ’118 Patent at 2:1-10.
`Elsewhere, the ’118 Patent states that “the term ‘synchronization marker’ must be interpreted
`generally to include, for example in the MPEG-4 standard, such conventional markers as
`RESYNC, VOPStart (start of a temporal instance (plan) of a video object), GOVStart (start of a
`group of temporal instances of a video object), EOS (end of video session).”2 Id. at 4:35-42.
`This discussion of the use of resynchronization markers is different from the characterization of
`previous uses of resynchronization markers as solely allowing a receiver to “resynchronize” with
`a data stream after an error occurred in the data stream that prevented the receiver from being
`able to read the data. Id. at 1:41-46. Uniloc presents testimony from its expert that the
`previously-known uses of resynchronization markers in the context of the MPEG-4 standard
`would solely be referred to as “RESYNC” markers, and notes that this is merely one of various
`exemplary types of known markers that the patent specification itself lists as performing the role
`of “synchronization markers” within the scope of the claims. See Deposition of Dan Schonfeld,
`October 16, 2019, Docket No. 100-4 at 21:6-23.
`At the hearing, Netflix reiterated its position that the focus of the ’118 Patent is to take
`something known in the prior art (resynchronization markers) and use it “as the signal that
`macroblocks have been excluded.” Claim Construction Hearing Transcript (“Tr.”), Docket No.
`130 at 5:11-12; see also id. at 7:9-13 (“. . . they are taking this thing that exists in the standard,
`but they are using it for a different purpose than it’s normally used for.”). Netflix argued that in
`the context of the ’118 Patent, the resynchronization marker continues to serve its known, prior
`art purpose of error recovery, but additionally serves a second purpose of being a macroblock
`placeholder. Id. at 8:5-11. Netflix strongly urged that claim terms should not be construed “just
`by describing what they are used for in an invention,” but instead by adopting their ordinary and
`customary meaning, absent other circumstances. Id. at 9:17-20. Netflix further cited to extrinsic
`evidence to argue that its proposed construction did not exclude the other “synchronization
`
` 
`2 There appears to be no dispute from Netflix that even though this excerpt of the patent
`specification refers to a “synchronization marker,” the patent applicant intended that phrase to be
`used interchangeably with the phrase “resynchronization marker.” See also Tr. 12:10-17 (Uniloc
`stating that “synchronization” and “resynchronization” terms are being used synonymously); Tr.
`15:5-6 (Netflix asserting that VOP start code was known as a prior art resynchronization
`marker); Tr. 16:8-13.
`
` 
`
`10 
`
`Uniloc's Exhibit 2003, page 11
`
`

`

` 
`
`markers” cited in the patent specification.
`As Uniloc noted in response, nothing in the claim language itself requires that the
`resynchronization marker be used for “error resilience” (Tr. 12:4-9). Uniloc reiterated the fact
`that the patent specification refers to VOPStart, GOVStart, and EOS as other resynchronization
`markers, even though its expert had testified they are not related to “error resilience.” Uniloc
`noted that even though Netflix disagreed with Uniloc’s arguments and characterizations
`regarding these other marker types, the only expert testimony on the record supported its position
`regarding this characterization of VOPStart, GOVStart, and EOS.
`After the hearing, Netflix filed a notice of supplemental authority, attaching a claim
`construction order from the Eastern District of Texas construing the term “resynchronization
`marker” in the ’118 Patent. See Uniloc 2017 LLC v. Verizon Comm’ns, Inc., Case No. 2:18-cv-
`00536 JRG (E.D. Tex. Feb. 17, 2020) (“E.D. Tex. Order,” available at Docket No. 135-1). The
`E.D. Tex. Order stated, inter alia,
`The issue in dispute is whether the “resynchronization marker” of
`the claims should be defined by its ability to enable resynchronization of the
`system when macroblocks are dropped due to an error condition or by its
`ability to enable reconstruction of the macroblocks that were intentional
`excluded from the data stream . . . .
`The court rejects Defendants’ proposed construction because its
`focus on resynchronization on an error condition fails to clarify the claim
`scope and threatens to inject limitations not supported by the disclosure of
`the ’118 Patent. The Court agrees with Defendants that “resynchronization
`marker” is used in the ’118 Patent to refer to prior-art markers that serve as
`synchronization points for resynchronizing the decoder with the data stream
`on an error condition. [citation to patent omitted]. That said, the patent
`also suggests a broader use of “resynchronization marker” by describing
`the “resynchronization marker” placed in the data stream to denote
`excluded marcoblocks . . . .
`Id. at *12-13 (emphasis added). The E.D. Tex. Order then provides a detailed review of the
`extrinsic evidence that was presented to it with respect to the term “resynchronization marker”
`and concludes that the term “has both a broad and a narrow meaning in the art and Defendants’
`proposed construction raises a number of potential scope issues while clarifying little.” Id. at
`*15. The E.D. Tex. Order goes on to state,
`[i]n context, the Court understands “resynchronization marker” to have a
`broad meaning referring
`to resynchronization capabilities and not
`necessarily to error conditions . . . . [T]he Court understands that
`“resynchronization marker” is used in a broad sense to encompass
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`conventional markers such as RESYNC, VOPStart, GOVStart, and EOS,
`based on
`their resynchronization capabilities regardless of error-
`processing capabilities.
`Id. (emphasis added). The E.D. Tex. Order rejected both parties’ proposed constructions for the
`term and construed it as “sequence of bits in a data stream that can serve as a resynchronization
`point and an error-concealment-reconstruction point of excluded macroblock(s) for all modes of
`coding.” Id. at *17.
`
`The Court finds the detailed analysis conducted in the E.D. Tex. Order helpful and
`persuasive in its review of this term, particularly because it is clear the parties presented the E.D.
`Tex. court with additional extrinsic evidence providing context regarding the known meaning(s)
`of the term “resynchronization marker” at the time of the invention. The Court agrees that as
`claimed, the term “resynchronization marker” at least encompasses conventional prior art
`markers such as RESYNC, VOPStart, GOVStart, and EOS. The Court also agrees that the term
`is not properly defined in the error-processing terms Netflix proposes, i.e. for detecting “by a
`receiver when an error occurs in order to start reading the data stream again at that location.”
`
`The Court, however, does not find a basis to adopt the portion of the E.D. Tex. Order’s
`construction for “an error-concealment-reconstruction point.” See E.D. Tex. Order at *17. The
`sole basis for the insertion of this phrase is Claim 1 of the ’118 Patent and the ’118 Patent
`Abstract. See id. at *16. Thus, this phrase is admittedly redundant of limitations that already
`appear in at least some of the claims and would not add any clarity about the meaning of the term
`to a jury. The Court addresses the final part of the E.D. Tex. Order’s construction, “for all
`modes of coding,” in the next section.
`b)
`Alleged ’118 Patent Specification Disclaimer
`Regarding an alleged disclaimer in the ’118 Patent, the parties appear to at least agree
`that the specification disclaims the use of previously-known, “uncoded” flags that were “only
`useful for regions having a motion vector close to zero and for which the texture has not changed
`significantly from one image or instance to the next.” ’118 Patent at 4:58-61. The parties
`instead dispute the import of the next sentence in the specification, which states: “The exclusion
`of macroblocks from coding according to the invention does not entail the insertion of any
`specific flag and the exclusion of macroblocks from coding is thus possible for all modes of I, P
`or B coding.” Id. at 61-65.
`Although Netflix disputes that this issue should be considered in the context of the claim
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`term “resynchronization marker,” Netflix does not cite legal authority to support construing an
`entire claim set based on an alleged disclaimer in the specification, with the alleged disclaimer
`untethered to any specific claim language. Further, although the relevant paragraph of the
`specification (’118 Patent at 4:47-65) does not mention “resynchronization markers” by name, it
`is not reasonably disputable that the paragraph discusses similar concepts to those discussed
`throughout the specification about inserting placeholders in a data stre