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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`IPR2021-00716
`U.S. Patent No. 8,688,028
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`VOLKSWAGEN GROUP OF AMERICA, INC.,
`Petitioner
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`v.
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`STRATOSAUDIO, INC.,
`Patent Owner
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`IPR2021-00716
`U.S. Patent No. 8,688,028
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`PATENT OWNER RESPONSE
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`TABLE OF CONTENTS
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`IPR2021-00716
`U.S. Patent No. 8,688,028
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`INTRODUCTION ........................................................................................... 1
`THE ’028 PATENT ......................................................................................... 7
`A.
`Specification .......................................................................................... 7
` LEVEL OF ORDINARY SKILL IN THE ART ........................................... 16
` CLAIM CONSTRUCTION .......................................................................... 17
`A.
`“broadcast stream” .............................................................................. 17
`B.
`“broadcast segment” ............................................................................ 17
`C.
`“media content” ................................................................................... 20
`D. Additional terms identified by the Board ............................................ 21
`“receiving a broadcast stream comprising the at least one
`broadcast segment and associated media content” ................... 21
`“associating/associated” ............................................................ 23
`“corollary” ................................................................................. 24
`THE PRIOR ART .......................................................................................... 24
`A.
`Takahisa (EX1004) .............................................................................. 24
`B. Mackintosh (EX1005) ......................................................................... 30
` CLAIMS 11, 14-16 AND 18 ARE NOT ANTICIPATED BY TAKAHISA
`(GROUND 1) ................................................................................................. 34
`A.
`Takahisa does not anticipate Claim 11 ................................................ 34
`Takahisa does not disclose “[a] method for correlating
`media content identifying data with at least one broadcast
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`the communication device”–
`segment received by
`Element 11[Pre] ........................................................................ 34
`Takahisa does not disclose “each
`identifying data
`aggregate associated with . . . the at least one broadcast
`segment” - Element 11[d] ......................................................... 37
`Takahisa does not anticipate claims 14, 15, and 18 ............................ 41
`B.
`Claim 16 is independently patentable over Takahisa .......................... 41
`C.
` CLAIMS 11, 14-16, AND 18 ARE NOT OBVIOUS OVER
`MACKINTOSH (GROUND 2) ..................................................................... 45
`A. Mackintosh fails to render obvious claim 11 ...................................... 45
` Mackintosh does not disclose “[a] method for correlating
`media content identifying data with at least one broadcast
`segment received by the communication device” –
`Element 11[Pre] ........................................................................ 46
` Mackintosh does not teach or suggest “each identifying
`data aggregate associated with . . . the at least one
`broadcast segment” - Element 11[d] ......................................... 47
`a.
`No disclosure of this element in Mackintosh ................. 47
`b.
`No motivation to modify Mackintosh to
`meet this element ............................................................ 51
`B. Mackintosh does not render obvious claims 14, 15, and 18 ............... 56
`C.
`Claim 16 is independently patentable over Mackintosh ..................... 56
` Mackintosh does not disclose “wherein the data stream
`further
`comprises data
`that
`enables
`a unique
`identification of the at least one broadcast segment” ............... 57
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`a. Mackintosh’s “cut code” and “event code”
`do not uniquely
`identify a broadcast
`segment ........................................................................... 57
`b. Mackintosh’s “cut code” and “event code”
`are not sent in the same data stream as
`media content identifying data ....................................... 63
`A POSITA would not be motivated
`to modify
`Mackintosh to derive “wherein the data stream further
`comprises data that enables a unique identification of the
`at least one broadcast segment” of Claim 16 ............................ 67
` CONCLUSION .............................................................................................. 72
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`TABLE OF AUTHORITIES
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`Page(s)
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`CASES
`Boehringer Ingelheim Vetmedica, Inc. v. Schering-Plough Corp.,
`320 F.3d 1339 (Fed. Cir. 2003) .................................................................... 34, 35
`In re Wertheim,
`541 F.2d 257 (CCPA 1976) ................................................................................ 34
`Procter & Gamble Co. v. Teva Pharms. USA, Inc.,
`566 F.3d 989 (Fed. Cir. 2009) ............................................................................ 67
`St. Jude Medical, Inc. v. Access Closure, Inc.,
`729 F.3d 1369 (Fed. Cir. 2013) .......................................................................... 67
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`UPDATED TABLE OF EXHIBITS
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`IPR2021-00716
`U.S. Patent No. 8,688,028
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`Exhibit Description
`2001 E-mail from Court Clerk Setting CMC, Markman Hearing, and Trial
`Date in the Parallel W.D. Tex. Litigations (May 4, 2021)
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`2002
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`Volkswagen’s Petition for Writ of Mandamus to Direct the United
`States District Court for the Western District of Texas to Rule on
`Motion to Dismiss for Improper Venue (Jun. 4, 2021)
`2003 E-mail from W.D. Tex. Court Clerk Denying Request to Stay Pending
`Motion to Dismiss for Improper Venue (May 17, 2021)
`2004 Transcript of Hearing for Motion to Dismiss/Transfer for Improper
`Venue in Parallel W.D. Tex. Litigations (Jun. 23, 2021)
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`2005
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`Interview with Judge Albright on Patent Litigation and Seventh
`Amendment, IAM (Apr. 7, 2020)
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`2006
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`Joint Scheduling Order of Parallel W.D. Tex. Litigations (July 15,
`2021)
`2007 Notice of Serving Preliminary Infringement Contentions in Parallel
`W.D. Tex. Litigations (May 13, 2021)
`2008 Hyundai Notice of and Stipulation for Hyundai U.S. Patent No.
`8,688,028 with reference to IPR2021-01303
`2009 Defendants’ Disclosure of Invalidity Contentions Cover Pleading in
`Parallel W.D. Litigations (July 8, 2021)
`2010 Transcript of hearing in ParkerVision v. Intel Corp., 6:20-cv-00108
`(W.D. Tex. September 2, 2020) (J. Albright)
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`2011
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`[Intentionally Left Blank]
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`2012
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`[Intentionally Left Blank]
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`2013
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`[Intentionally Left Blank]
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`2014
`[Intentionally Left Blank]
`2015 Order Resetting Markman Hearing 6:20-cv-01131 (W.D. Tex.
`September 10, 2021) (J. Albright)
`2016 Third Proposed Amended Joint Scheduling Order of Parallel W.D. Tex.
`Litigations (September 15, 2021)
`2017 Memorandum Opinion and Order Denying Volkswagen Motion to
`Dismiss (W.D. Tex. September 20, 2021) (J. Albright)
`2018 Declaration of Hallie Kiernan in Support of Patent Owner’s Motion for
`Admission Pro Hac Vice
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`2019 Declaration of Dr. John Hart dated January 24, 2022
`2020 Excerpt from Random House Webster’s Unabridged Dictionary (2nd ed.
`1998)
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`IPR2021-00716
`U.S. Patent No. 8,688,028
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`StratosAudio, Inc. (“Patent Owner”), submits this Response to the Petition
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`for inter partes review (the “Petition” or “Pet.”) filed by Volkswagen Group of
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`America, Inc. (“Petitioner”) challenging claims 11 and 14-16, and 18 of U.S.
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`Patent 8,688,028 (“the ’028 patent”).
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`INTRODUCTION
`The ’028 patent provides a method that allows a user to respond to a data
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`broadcast. For example, a user can respond to items in a broadcast such as
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`advertisements, fund raising drives, or interactive listener polls. In one particular
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`embodiment, a user may respond to a broadcast by tagging content of the broadcast
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`for immediate response or later purchase and download. The invention achieves
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`this by correlating certain “media content identifying data” with “at least one
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`broadcast segment.” With the correlation created by the claim, a user can select
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`media content for purchase and download with a simple press of a button or voice
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`command at the time of broadcast or at a later time with no need to write down or
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`remember any information about media content presented in a broadcast. The
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`correlation and elements achieving it, recited in the challenged claims (11, 14-16,
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`and 18), are not anticipated by or obvious over the prior art cited by Petitioner.
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`In addition, dependent claim 16 stands independently patentable over the
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`prior art. Claim 16 includes the additional limitation that “the data stream further
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`comprises data that enables a unique identification of the at least one broadcast
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`segment.” This important feature shows that the data stream includes a unique
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`identifier for each specific broadcast segment, something nowhere shown or
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`suggested in the prior art.
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`Ground 1. Takahisa does not anticipate claims 11, 14-16, and 18 because
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`the Petitioner has misunderstood the term “broadcast segment” as applied in
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`challenged claim 11. In the context of the challenged claims, the proper
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`construction of this term is “a discretely identifiable portion of programming as
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`broadcasted.”
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`Broadcasts are sent from a transmitter to a receiver. Broadcast programming
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`may comprise multiple “broadcast segments,” with each “broadcast segment”
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`discretely identifiable relative to all other “broadcast segments” transmitted. In
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`other words, a “broadcast segment” is an identifiably unique occurrence—it
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`encompasses a portion of broadcast programming contextually unique to all others.
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`Put another way, a broadcast segment can occur once and only once.
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`The use of “discretely identifiable” in Patent Owner’s proposed construction
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`highlights the point that in the context of the challenged claims each broadcast
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`segment can be “discretely identifiable” from other broadcast segments, even other
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`broadcast segments that repeat the same media content. As an example, suppose
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`the situation of an Internet radio station featuring a channel called “The Beatles
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`Channel” that features special shows as well as normal programming. On a
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`weekly show hosted by a well-known Beatles historian, the host plays the popular
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`Beatles song “Let It Be.” After the show ends, the normal programming resumes
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`and sometime later the song “Let It Be” is broadcasted again. The method of the
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`challenged claims permits distinguishing the two broadcast segments of the same
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`media content by recognizing each as a discretely identifiable portion of
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`programming as broadcasted.
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`The method achieves the recited correlation in the present while the
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`broadcast occurs. This fact, coupled with the method’s focus on discretely
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`identifiable portions of programming, provides several advantages including, for
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`example, the ability to present data such as the temporal position of a particular
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`corollary broadcast segment and the ability to data mine user responses to such
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`content.
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`With the proper understanding of the term “broadcast segment,” Takahisa
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`does not anticipate several elements of challenged claim 11, including the limiting
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`preamble (11[pre]), which requires correlating media content identifying data with
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`“at least one broadcast segment,” and the electronic memory element (11[d]),
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`which requires storing identifying data aggregates, where each aggregate is
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`associated with “the at least one broadcast segment.” For both claim elements,
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`Takahisa’s system does not identify information showing a discretely identifiable
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`portion of programming as broadcasted and consequently cannot meet the recited
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`limitations. Rather, Takahisa merely identifies static information associated with
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`the media content, such as composer, title, and performer data. Takahisa provides
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`no information to distinguish between broadcast segments of the same media
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`content.
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`Claim 16 is independently patentable because Takahisa does not show “the
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`data stream further comprises data that enables a unique identification of the at
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`least one broadcast segment.” Takahisa’s packet pyramid address does not provide
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`for a unique identification of a broadcast segment. Takahisa explicitly states that
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`“all data pertaining to [the same] musical selection will have identical pyramid
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`addresses.” Thus, each packet pertaining to a musical selection has the same
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`pyramid address and does not uniquely identify different broadcast segments of the
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`same musical selection.
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`Moreover, Takahisa’s pyramid address provides no contextual information
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`about the broadcast segment in relation to any other broadcast segment. The
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`pyramid address in Takahisa is assigned prior to the broadcast, does not change
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`over time, and identifies static information about the media content (such as song
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`name and artist name). The pyramid address in Takahisa does not provide
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`contextual information about the airing of one broadcast segment in relationship to
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`the airing of another broadcast segment. Without such information, Takahisa fails
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`to show a discretely identifiable portion of programming as broadcasted, which the
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`proper construction of “broadcast segment” requires.
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`In contrast, claim 16 of the ’028 patent does distinguish between broadcast
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`segments with “the data stream further compris[ing] data that enables a unique
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`identification of the at least one broadcast segment”.
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`Ground 2. Mackintosh does not render claims 11, 14-16, and 18 obvious
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`because Petitioner misinterprets the term “broadcast segment” in the same fashion
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`it did in Ground 1. In particular, Petitioner does not show that Mackintosh teaches
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`or suggests a discretely identifiable portion of programming as broadcasted.
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`Instead, Petitioner shows data in Mackintosh identifying the content, such album
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`title and title.
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`Claim 16 is independently patentable because Mackintosh does not show
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`“the data stream further comprises data that enables a unique identification of the
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`at least one broadcast segment.” Mackintosh’s “cut code” and “event code”
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`identify the media content itself, not the broadcast segment. Mackintosh’s system
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`uses cut codes and event codes to identify static information such album title and
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`artist. There is no instance where cut codes or event codes distinguish discretely
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`identifiable portions of programming as broadcasted.
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`Moreover, Mackintosh’s cut codes and event codes provide no contextual
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`information about the broadcast segment in relation to any other broadcast
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`segment. The cut codes and event codes are assigned prior to the broadcast, do not
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`change over time, and identify static information (such as album title and artist).
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`The cut codes and event codes in Mackintosh do not provide contextual
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`information about the airing of one broadcast segment in relationship to the airing
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`of another broadcast segment. Without such information, Mackintosh fails to show
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`a discretely identifiable portion of programming as broadcasted, which the proper
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`construction of “broadcast segment” requires.
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`Furthermore, the Petitioner has not shown how Mackintosh meets claim 16’s
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`requirement that the “data stream further comprises” data that enables unique
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`identification of the broadcast segment. Petitioner says the data stream in
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`Mackintosh is a communication link transmitting “supplemental materials” from a
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`server to the user’s device. Mackintosh nowhere shows cut codes or event codes
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`transmitted over that link. Petitioner shows no basis why a POSITA would be
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`motivated with a reasonable expectation of success to modify Mackintosh to
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`overcome these deficiencies and obtain the subject matter of claim 16.
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`Based on the arguments below and the supporting declaration of Patent
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`Owner’s expert, John C. Hart, Ph.D. (EX2019, ¶¶1-166), the Board should find
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`that the Petitioner has not shown by a preponderance of the evidence that the
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`challenged claims are unpatentable.
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` THE ’028 PATENT
`A.
`Specification
`The ’028 patent is titled “Broadcast Response System,” and discloses a
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`novel system and method for allowing a user to respond to broadcast media by
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`correlating media content identifying data with a broadcast segment. EX1001,
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`2:53-55, Cl. 11. The ’028 Patent lists several applications of the invention,
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`including providing “a radio broadcast listener with the ability to obtain media
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`content such as music or speech while listening to the radio,” and allowing a user
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`to “respond to items in the radio broadcast such as advertisements, fund raising
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`drives or interactive listener polls during the broadcast.” EX1001, Abstract;
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`EX2019, ¶33.
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`The ’028 Patent summarizes the state of the art, explaining that the concept
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`and application of including “ancillary signals” with FM broadcasts was well
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`known, and implemented as standards, including RBDS and RDS, as far back as
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`the “early 1990’s.” EX1001, 1:20-2:49. These ancillary metadata signals
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`accompanying the broadcast media would commonly include a “4-digit Program
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`Identification code (PI) which is derived from the transmitting station’s call
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`letters,” “traffic information,” “a 5-bit Program Type (PTY) code which describes
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`the current program or format being broadcast by the station (Rock, Oldies, Talk,
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`News, etc.),” and “RadioText (RT)” which “appears on RBDS-enabled radios as a
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`scrolling message which some stations use to identify the song or program being
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`broadcasted” or “to identify alternate frequencies where the same programming
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`can be available, in-house station text messages, or Emergency Alert System
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`(EAS) communication messages.” EX1001, 1:65-2:20. See also EX2019, ¶34.
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`The ’028 Patent was motivated to provide users receiving a broadcast of
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`media content with the ability to respond to the data associated with the broadcast.
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`EX1001, 2:53-55. The patent states that the RBDS and RDS systems allow
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`broadcasters to “distribute information to a large number of users” but do not
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`“allow individual users to respond to the broadcast information.” EX1001, 2:24-
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`29. The ’028 Patent enumerates such desired responses, including purchasing a
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`song, pledging to a fund drive, or participating in a listener survey. EX1001, 2:30-
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`49. See also EX2019, ¶35.
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`The ’028 Patent describes a number of embodiments, many of which relate
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`to use of “an Automatic Purchase System (APS) [that] provides a radio broadcast
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`listener with the ability to conveniently purchase media content such as music or
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`speech while listening to the radio.” EX1001, 2:53-3:57; EX2019, ¶36.
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`One embodiment describes each broadcaster as having a RBDS/RDS
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`enabled server onsite to “generate RBDS/RDS or equivalent code for inclusion in
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`the broadcast” and also receive listener responses to “validate and route purchase
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`information to the user’s wireless carrier for billing, monitor online sales
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`transactions for data mining, or route validated purchases to licensed creative
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`content providers.” EX1001, 3:7-13; EX2019, ¶37.
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`In a related embodiment, the ’028 patent refers to a system where “purchases
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`are made by saving requests for selected items for purchase on a flash card or
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`storage technology and transferring that data to a personal computer for purchase
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`through the Internet at a later time.” EX1001, 3:34-37; EX2019, ¶38.
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`The ’028 patent includes a four-page Figure 1. EX2019, ¶39. A single-page
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`version of this figure from the Petition is reproduced below:
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`As shown in FIG. 1, a radio station 140 includes a radio automation system
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`142, an audio database/encoding server 144, an FM transmission system 146, as
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`well as a RBDS encoder 148. EX1001, 5:41-44; EX2019, ¶40. The radio
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`automation 142 extracts information about songs or a radio program (e.g., song
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`title, artist, or cut information) from the station playlist and provides the extracted
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`information to the audio database/encoding server 144. EX1001, 5:44-48;
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`EX2019, ¶40. The audio database/encoding server 144 matches this information
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`with information in the database to determine whether an audio file corresponding
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`to media content (e.g., song or radio program) is available for download. EX1001,
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`5:48-52; EX2019, ¶41. If a match is found, the audio database/encoding server
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`144 encodes download information for that media content and sends the encoded
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`download information to the RBDS encoder 148. EX1001, 5:52-55; EX2019, ¶41.
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`Corresponding information is uploaded to a purchase database server 150.
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`EX1001, 5:55-56. The RBDS encoder 148 transmits the encoded download
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`information using the RBDS subcarrier 170 to the FM transmission system 146.
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`EX1001, 5:57-59; EX2019, ¶42. The RBDS encoder 148 also formats into the
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`subcarrier signal 170 additional information, such as the time and date that a
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`specific broadcast segment is transmitted. EX1001, 10:47-51; EX2019, ¶42.
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`Accordingly, the subcarrier signal 170, in addition to information identifying a
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`media content (e.g., name of a song), also contains a unique identifier that
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`identifies each specific broadcast segment. EX1001, 5:64-6:2; EX2019, ¶42. For
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`example, assuming that a song is broadcast by a radio station at multiple different
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`times on a certain day, each instance of broadcast of that song by that radio station
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`would have a unique identifier identifying that specific broadcast segment.
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`EX2019, ¶42.
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`The FM transmission system 146 modulates (or mixes) the subcarrier 170
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`with the FM baseband program 172 (that contains the audio corresponding to the
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`station playlist) and generates an FM RF signal 162 for transmission to a radio
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`receiver 100. EX1001, 5:56-63; EX2019, ¶43. Although the receiver 100 has not
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`been labeled in FIG. 1, a POSITA would readily understand, from the context of
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`the description of FIG. 1, that the “receiver 100” corresponds to the following
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`boxed-in portion of FIG. 1 (annotated to remove connecting lines and labeled with
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`100). EX2019, ¶44. In fact, this boxed-in portion of FIG. 1 is labeled “RADIO
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`RECEIVER,” which a POSITA would understand indicates it corresponds to the
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`specification’s “receiver 100.” EX2019, ¶44.
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`The embodiments disclosed in the specification of the ’028 patent further
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`support a POSITA’s understanding that the “receiver 100” corresponds to this
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`boxed-in portion of Fig. 1. EX1001, 4:30-35; EX2019, ¶45. For example, the
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`specification of the ’028 patent indicates that “[i]n one embodiment, the radio
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`receiver 100 comprises a Radio Frequency (RF) Demodulator Section 102, a
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`RBDS/RDS Decoder 106, a RBDS/RDS function control interpreter 104, an audio
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`demodulator amplifier section 108, a scrolling display 110, an Internet Download
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`Director 112, a local memory device 114 and the control interface 116.” EX1001,
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`4:30-35 (emphasis added). FIG. 1 depicts such components 102, 104, 106, 108,
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`110, 112, 114 and 116 all within the boxed-in portion. EX2019, ¶45. Receiver
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`100 receives the transmitted FM RF signal 162, splits the signal into an audio
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`signal and a data signal, with the data signal provided to the RBDS/RDS decoder
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`106 and the audio signal provided to the audio demodulator amplifier section 108.
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`EX1001, 4:39-43; EX2019, ¶46.
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`The ’028 patent describes embodiments of the invention on the “technology
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`enabled radio” (TER) shown in FIG. 2, reproduced below. EX2019, ¶47.
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`As shown in FIG. 2, the “technology enabled radio” (TER) 200 includes a
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`display 210 for displaying the extracted media content identifying data (e.g., name
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`of a song) and an interactive button 212 for receiving a response from the user.
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`EX1001, 6:52-7:9; EX2019, ¶48. The interactive button 212 can allow a user to
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`select or “tag” a song for future purchase. EX1001, 6:52-65, 7:10-14; EX2019,
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`¶48. If a song is tagged for purchase, the APS module stores a unique identifier
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`data 204 assigned to the specific broadcast segment containing that song and adds
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`the song to a playlist 208 that is stored in the memory 220 of the receiver.
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`EX1001, 6:62-7:5; EX2019, ¶48. The user can later access this list of tagged items
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`and choose one or more items from this playlist 208 for future download. EX1001,
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`7:5-7; EX2019, ¶48.
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`The ’028 patent further explains that the radio can “use a wireless interface
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`218 to send a purchase request . . . . to an APS server 260 for processing, billing
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`approval, and delivery of the content.” EX1001, 7:27-38; EX2019, ¶49. A second
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`option is available if the “user does not have a wireless phone, or does not have a
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`good connection with a wireless phone connected to the radio.” EX1001, 7:39-46;
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`EX2019, ¶49. For this second option, “[t]he user can select . . . broadcast content
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`for purchase” and these “content selections can be stored on the flash card or
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`storage technology 220 for later use.” EX1001, 7:39-46 (emphasis added). This
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`second option discloses that the user selects content specific to a broadcast, and
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`stores data identifying that content in the memory. EX1001, 7:39-46; EX2019,
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`¶49.
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`The ’028 patent further discloses how this second-option embodiment
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`handles the purchase when a wireless connection to the APS server cannot be
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`obtained by the TER. EX1001, 7:49-61. “In [such] cases . . . , the flash card or
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`storage technology 220 can later be removed by the user and inserted in a personal
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`computer 240.” EX1001, 7:49-53; EX2019, ¶50. In this case, “[t]he routing
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`information for each selection stored on the flash card or storage technology 220 is
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`passed to the APS download software running on the user’s personal computer”
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`which “allows the user to purchase the selected content and download it to a
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`personal computer 240 as long as the content was tagged with the proper security
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`codes obtained from the APS module 202 in the radio 200.” EX1001, 7:53-61.
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`The ’028 patent states that “[t]he data collected through ‘data mining’ of sales
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`transactions can be sold to companies interested in tracking demographic
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`information and music sales such as record companies and trade publications.”
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`EX1004, 8:41-44; see also EX1004, 9:34-37; EX2019, ¶50.
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` LEVEL OF ORDINARY SKILL IN THE ART
`The Board agreed with Petitioner that a person of skill in the art (“POSITA”)
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`in the context of the ’028 patent (as of September 13, 2000) would have had a “a
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`B.S. in computer science or electrical engineering (or a related field), and
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`approximately three years of experience working in the communications- or
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`Internet-related industries, or, alternatively, an advanced degree (such as a master’s
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`degree) in computer science or electrical engineering (or a related field).” See
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`Institution Decision (Paper 16) at 18. For the purpose of these proceedings, Patent
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`Owner does not object to the level of skill described by the Board and Petitioner.
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`EX2019, ¶¶57-58.
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` CLAIM CONSTRUCTION
`A.
`“broadcast stream”
`For the purposes of this proceeding, Patent Owner does not object to
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`Petitioner’s proposed construction for “broadcast stream.” EX2019, ¶59.
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`B.
`“broadcast segment”
`Petitioner proposes that the term “broadcast segment” be construed to mean
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`“a distinguishable piece or portion of a broadcast stream, such as an individual
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`song, speech, or video.” Pet. 11 (citing EX1003, ¶61). Patent Owner disagrees
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`with this construction. EX2019, ¶60.
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`The term “broadcast segment” as applied by Patent Owner means “a
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`discretely identifiable portion of programming as broadcasted.” Broadcasts are
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`sent from a transmitter (e.g., an FM radio transmitter) to a receiver (e.g., a radio
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`receiver). EX2019, ¶61. Broadcast programming may comprise multiple
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`“broadcast segments,” with each “broadcast segment” discretely identifiable
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`relative to all other “broadcast segments” transmitted. EX2019, ¶61. In other
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`words, a “broadcast segment”
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`is an
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`identifiably unique occurrence—it
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`encompasses a portion of broadcast programming contextually unique to all others.
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`EX2019, ¶61. Put another way, a broadcast segment can occur once and only
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`once. EX2019, ¶61.
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`For example, a song might be played three times throughout the broadcast.
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`A POSITA would understand this situation should result in three different
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`broadcast segments, one for each instance the song was broadcasted. EX2019,
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`¶61. The specification supports this interpretation. EX2019, ¶62. In several
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`embodiments, the specification refers to aggregating data for the purpose of data
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`mining for sale to interested parties such as trade publications and record
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`companies. See, e.g., EX1001, 3:10-16, 3:52-55, 9:34-36. This requires
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`understanding not only the content purchased but also the particular portion of
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`programming as broadcasted that triggered the purchase (for example, morning,
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`noon, or evening). EX2019, ¶62. This is particularly important where the same
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`media content is broadcasted multiple times per day. EX2019, ¶62. A POSITA
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`would understand that the “broadcast segment” as applied in the challenged claims
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`captures this objective. See EX2019, ¶¶56, 62.
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`The claim language “a temporal position of the corollary broadcast segment”
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`in element 11[f] also supports a POSITA’s understanding that the broadcast
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`segment must have a temporal component that can distinguish different
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`occurrences of broadcast segment, even when the portion of programming contains
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`the same media content. EX2019, ¶63.
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`Furthermore, there is no requirement that a broadcast segment be
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`distinguished as an individual song, speech or video, as it could correspond to a
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`portion of a song, speech or video. EX2019, ¶64. A POSITA would understand
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`these examples of song, speech or video to be demonstrative but not limiting.
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`EX2019, ¶64. Accordingly, in the specification’s statement that an identifier is
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`assigned “to each specific broadcast segment or song” (EX1001, 6:1-2), a POSITA
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`would understand that a broadcast segment and song are not necessarily the same.
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`EX2019, ¶64. Hence, Patent Owner disagrees with Petitioner’s construction of
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`“broadcast segment” for this additional reason.
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`Petitioner asserts the term “broadcast segment” means “‘a distinguishable
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`piece or portion of a broadcast stream,’ such as an individual song, speech, or
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`video.” See Pet. 10. Petitioner’s assertion that both “an individual song” and a
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`“video” are examples of a “broadcast segment” demonstrates a lack of
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`understanding as to the proper nature of a “broadcast segment” as applied by the
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`’028 patent and the challenged claims. “An individual song” as broadcasted may
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`serve as one example of a “broadcast segme
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