IPR2021-01303
`U.S. Patent No. 8,688,028
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`HYUNDAI MOTOR AMERICA,
`Petitioner
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`
`
`v.
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`
`
`STRATOSAUDIO, INC.,
`Patent Owner
`
`
`IPR2021-01303
`U.S. Patent No. 8,688,028
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`
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`
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`PATENT OWNER RESPONSE
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`TABLE OF CONTENTS
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`1  
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` 
`
`INTRODUCTION ........................................................................................... 1 
`BACKGROUND OF STRATOSAUDIO, INC. ............................................. 6 
`  THE ’028 PATENT ......................................................................................... 7 
`A. 
`Specification .......................................................................................... 7 
`B. 
`Claim 11 .............................................................................................. 16 
`C. 
`Claim 16 .............................................................................................. 18 
`  LEVEL OF ORDINARY SKILL IN THE ART ........................................... 19 
`CLAIM CONSTRUCTION .......................................................................... 19 
`A. 
`“broadcast segment” ............................................................................ 20 
`B. 
`“media content” ................................................................................... 22 
`C. 
`Additional terms identified by the Board ............................................ 22 
`“receiving a broadcast stream comprising the at least one
`broadcast segment and associated media content” ................... 23 
`“associating/associated” ............................................................ 24 
`“corollary” ................................................................................. 25 
`  THE CITED PRIOR ART ............................................................................. 25 
`A. 
`Curtin (EX1010) .................................................................................. 25 
`B. 
`Crosby (EX1006) ................................................................................ 29 
`C. 
`Alwadish (EX1011) ............................................................................. 31 
`D.  Koerber (EX1012) ............................................................................... 35 
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`  CLAIMS 11 AND 13-20 ARE NOT RENDERED OBVIOUS BY CURTIN
`ALONE (GROUND 1) .................................................................................. 36 
`A. 
`Curtin alone does not render Claim 11 obvious .................................. 36 
`Element 11[pre]: A method for correlating media content
`identifying data with at least one broadcast segment
`received by a communication device ........................................ 36 
`Element 11[a]: receiving a broadcast stream comprising
`the at least one broadcast segment and associated media
`content ....................................................................................... 41 
`Element 11[e]: providing for presentation of at least a
`portion of the data elements stored in the electronic
`memory of the communication device, whereby the
`providing provides selective outputting, using an
`interface, of at least one of the following: the media
`content identifying data, the media content, the corollary
`broadcast segment, a temporal position of the corollary
`broadcast segment of the broadcast stream ............................... 42 
`Curtin alone does not render Claims 13-20 obvious ........................... 47 
`B. 
`Curtin alone does not render Claim 16 obvious .................................. 47 
`C. 
`  CLAIMS 11 AND 13-20 ARE NOT RENDERED OBVIOUS BY CURTIN
`IN VIEW OF CROSBY (GROUND 2) ......................................................... 48 
`A.  A POSITA would not have been motivated to combine the teachings of
`Curtin and Crosby, and would not have had a reasonable expectation of
`success in doing so .............................................................................. 48 
`A POSITA would not have been motivated to consider Petitioner’s
`proposed combination of the teachings of Curtin and Crosby, and
`would not have had a reasonable expectation of success in doing so . 51 
`Curtin in view of Crosby does not render Claim 11 obvious ............. 54 
`Curtin in view of Crosby does not render Claims 13-20 obvious ....... 57 
`
`B. 
`
`C. 
`D. 
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`  CLAIMS 11, 14, 15 AND 18 ARE NOT RENDERED OBVIOUS BY
`ALWADISH ALONE (GROUND 3) ........................................................... 58 
`A.  Alwadish alone does not render Claim 11 obvious ............................. 58 
`Element 11[pre]: A method for correlating media content
`identifying data with at least one broadcast segment
`received by a communication device,
`the system
`comprising ................................................................................. 58 
`Element 11[d]: storing in an electronic memory of the
`communication device, at a minimum, media content
`identifying data elements into identifying data aggregates,
`each identifying data aggregate associated with at least
`one of the plurality of media content and the at least one
`broadcast segment, wherein the at least one broadcast
`segment is corollary to the at least one of the plurality of
`media content ............................................................................ 60 
`Alwadish alone does not render Claims 14, 15 and 18
`obvious ...................................................................................... 62 
`CLAIMS 12 AND 16 ARE NOT RENDERED OBVIOUS BY ALWADISH
`ALONE (GROUND 4) .................................................................................. 62 
`A.  Alwadish alone does not render Claim 12 obvious ............................. 62 
`B. 
`Alwadish alone does not render Claim 16 obvious ............................. 63 
`  CLAIMS 12 AND 16 ARE NOT RENDERED OBVIOUS BY ALWADISH
`IN VIEW OF KOERBER (GROUND 5) ...................................................... 65 
`A.  Alwadish in view of Koerber does not render Claim 12 obvious ....... 65 
`B. 
`Alwadish in view of Koerber does not render Claims 16 obvious ..... 67 
`  SECONDARY CONSIDERATIONS SUPPORT PATENTABILITY ........ 67 
`  CONCLUSION .............................................................................................. 68 
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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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) .......................................................................... 36
`In re Wertheim,
`541 F.2d 257 (CCPA 1976) ................................................................................ 36
`KSR Intern. Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ............................................................................................ 48
`Plantronics, Inc. v. Aliph, Inc.,
`724 F.3d 1343 (Fed. Cir. 2013) .......................................................................... 48
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`UPDATED TABLE OF EXHIBITS
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`Exhibit Description
`2001 Defendants’ Disclosure of Invalidity Contentions Cover Pleading in
`Parallel W.D. Tex. Litigations (July 8, 2021)
`
`2002
`
`2003
`
`2004
`
`2005
`
`2006
`
`2007
`
`2008
`
`2009
`
`Proposed Third Amended Joint Scheduling Order of Parallel W.D.
`Tex. Litigations (September 15, 2021)
`
`E-mail from W.D. Tex. Court Clerk Denying Request to Stay Pending
`Motion to Dismiss for Improper Venue (May 17, 2021)
`
`Transcript of hearing in ParverVision v. IntelCorp., 6:20-cv-00108
`(W.D. Tex. September 2, 2020) (J. Albright)
`
`Interview with Judge Albright on Patent Litigation and Seventh
`Amendment, IAM (Apr. 7, 2020)
`
`Minute Entry regarding Markman Hearing, StratosAudio, Inc. v.
`Hyundai Motor America, 6:20-cv-01125 (W.D. Tex. September 28,
`2021)
`
`Order Denying Hyundai’s Motion to Dismiss, StratosAudio, Inc. v.
`Hyundai Motor America, 6:20-cv-01125 (W.D. Tex. September 17,
`2021) (J. Albright)
`
`StratosAudio, Inc.’s Preliminary Infringement Contentions,
`StratosAudio, Inc. v. Hyundai Motor America, 6:20-cv-01125 (W.D.
`Tex. May 13, 2021)
`
`StratosAudio, Inc.’s Supplemental Preliminary Infringement
`Contentions, StratosAudio, Inc. v. Hyundai Motor America, 6:20-cv-
`01125 (W.D. Tex. September 27, 2021)
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`2010
`
`Hyundai Motor America’s Answer and Affirmative Defenses to
`Plaintiff’s Complaint for Patent Infringement, Jury Trial Demanded,
`6:20-cv-01125 (W.D. Tex. October 1, 2021)
`
`2011 Minute Order from Discovery Hearing, StratosAudio, Inc. v. Hyundai
`Motor America, 6:20-cv-01125 (W.D. Tex. October 7, 2021)
`
`2012
`
`Email from Eric Lucas to Patent Trial and Appeal Board, Volkswagen
`Stipulation regarding IPR Grounds (September 3, 2021)
`
`2013 Declaration of Hallie Kiernan in Support of Patent Owner’s Motion
`for Admission Pro Hac Vice
`
`2014 October 8, 2003 Hyundai Autonet Press Release
`
`2015 December 20, 2003 Press Release StratosAudio, Inc.
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`2016
`
`StratosAudio enabled Interactive Symphony Digital Award
`
`2017 Wayback Machine - 2004 CES Innovations Awards Honorees
`Webpage
`
`2018 Deposition Transcript of Dr. Kevin Almeroth
`
`2019
`
`Institution Decision, IPR2021-00712
`
`2020 Declaration Dr. John C Hart
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`StratosAudio, Inc. (“Patent Owner”), submits this Response to the Petition for
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`inter partes review (the “Petition” or “Pet.”) filed by Hyundai Motor America
`
`(“Petitioner”) challenging claims 11-20 of U.S. Patent 8,688,028 (“the ’028 patent”).
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`
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`INTRODUCTION
`The ’028 patent provides a method that allows a user to respond to a broadcast
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`segment. For example, a user can respond to broadcast segments 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 segment by tagging content for
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`immediate response or later purchase and download. The invention achieves this by
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`correlating certain “media content identifying data” with “at least one broadcast
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`segment.” With the correlation created by the claim, a user can select media content
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`for purchase and download or respond to an ad or listener poll with a simple press
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`of a button or voice command at the time of broadcast or at a later time with no need
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`to write down or remember any information about media content presented in a
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`broadcast. The correlation and elements achieving it, recited in the challenged
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`claims (11 and 13-20), are not obvious over the prior art cited by Petitioner.
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`Further, dependent claim 16 stands independently patentable over the prior
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`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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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`segment.” This important feature shows that the data stream includes data that
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`enables a unique identification of each specific broadcast segment, something
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`nowhere shown or suggested in the prior art. Exemplary to this point, the challenged
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`claims herein discretely identify each broadcast segment even when duplicative
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`broadcasts of the same media content occur. As demonstrated below, the prior art
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`cited in the petition cannot uniquely identify broadcast segments, it can only identify
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`media content, which fails to satisfy the requirements of claim 16.
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`Focusing on Ground 1, Curtin does not render claims 11 and 13-20 obvious
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`because Curtin does not teach or suggest several elements of claim 11, including
`
`11[pre], 11[a], and 11[e]. In particular, Petitioner fails to identify in Curtin
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`disclosure of a “broadcast segment,” as set forth in claim 11’s limiting preamble.
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`Specifically, while Curtin teaches identification information intended to identify a
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`song, it does not teach or suggest identification of a broadcast segment – as required
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`by claim 11, which assigns a unique identifier to each broadcast segment so that each
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`broadcast segment can be discretely identified even when repeat occurrences of the
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`same media content occur from the same broadcast source.
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`Curtin also fails to teach or suggest a discretely identifiable portion of
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`programming as broadcasted, and therefore, fails to show either a “broadcast stream”
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`or a “broadcast segment” as required by element 11[a].
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`In addition, Curtin’s music server does not show “providing for presentation
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`of . . . data elements stored in the electronic memory . . . whereby the providing
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`provides for selective outputting using an interface” as required by element 11[e].
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`While Curtin’s music server “may . . . respond with detailed information about the
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`corresponding music selections and instructions to the user regarding how to make
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`the purchase,” that outputting occurs after the system in Curtin sends the identifying
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`data to the music server. Curtin nowhere discloses how the music server presents
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`information and ordering instructions to the user – a fact Petitioner cannot overcome.
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`Because Curtin does not render claim 11 obvious, dependent claims 13-20 are
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`also not obvious. Claim 16, in particular, is non-obvious for the additional reason
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`that Curtin does not teach or suggest that “the data stream further comprises data
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`that enables a unique identification of the at least one broadcast segment.” While
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`Curtin discloses that the extracted music information includes “information that
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`uniquely identifies a particular piece of music or other audio information by artist,
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`title, album, label, sources, date, time, etc.,” Curtin nowhere shows a need to identify
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`broadcast segments associated with a data stream.
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`With respect to Ground 2, Curtin in view of Crosby does not render claims 11
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`and 13-20 obvious. First, a POSITA would not have been motivated to combine the
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`teachings of Curtin and Crosby, and would not have had a reasonable expectation of
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`success in doing so because at the most basic level Curtin and Crosby use entirely
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`different
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`interactive
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`radio systems with entirely different methods
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`for
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`communicating the interaction.
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`In addition, as Petitioner and its expert admit, Crosby does not disclose storage
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`of the information, and instead discloses transmission of the information directly to
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`the network operations center, ignoring the storage requirement in claim 11. Further,
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`Crosby does not provide an interface that presents identifying information in the
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`manner claimed. Petitioner’s argument that “[c]ombining Curtin’s selective
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`outputting of media content identifying data, with Crosby’s interface displaying
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`media content identifying data and allowing for a purchase would have been a
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`straightforward combination of familiar elements that could be combined with
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`predictable results” fails. Curtin does not disclose “selective outputting” of “media
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`content identifying data” as required by element 11[e]. And combining Crosby’s
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`interface for displaying media content identifying data selected as disclosed by
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`Curtin would not have been straightforward or predictable to a POSITA.
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`Because Curtin in view of Crosby does not render claim 11 obvious,
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`dependent claims 13-20 are also not obvious.
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`With respect to Ground 3, Alwadish does not render claims 11, 14, 15 and 18
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`obvious. Alwadish does not teach or suggest a broadcast segment as required by
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`U.S. Patent No. 8,688,028
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`claim 11’s limiting preamble. To this point, nowhere does Petitioner explicitly
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`identify a broadcast segment disclosed by Alwadish, and Petitioner’s arguments
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`concerning “broadcast music programs” fall short of this requirement. Nor would a
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`POSITA have understood Alwadish to disclose “a discretely identifiable portion of
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`programming as broadcasted,” as required by the claim’s preamble.
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`Further, Alwadish’s processes for storage, display and later printing of the
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`local time, date and frequency along with the title, album and catalogue number does
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`not implement any association between an identifying data aggregate and a
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`broadcast segment, as required by element 11[d].
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`Because Alwadish does not render claim 11 obvious, dependent claims 14,
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`15, and 18 are also not obvious.
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`As for Ground 4, because Alwadish does not render claim 11 obvious,
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`dependent claims 12 and 16 are also not obvious. Further, Petitioner’s argument that
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`claim 12’s requirement that the receiver operate “in conjunction with” a database
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`system is satisfied by Alwadish’s receiver fails. A POSITA would have understood
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`“in conjunction with” to have its plain and ordinary meaning, specifically, that the
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`receiver would operate through some connection to a database. Alwadish does not
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`teach any such connection.
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`Claim 16 is not obvious over Alwadish because Alwadish’s data stream
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`contains no data uniquely identifying a broadcast segment.
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`Finally, for Ground 5, because Alwadish does not render claim 11 obvious,
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`dependent claims 12 and 16 are also not obvious over Alwadish in view of Koerber.
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`In addition, Petitioner fails to argue that Alwadish in combination with Koerber
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`satisfies even one of claim 12’s five required elements. For claim 16, Petitioner cites
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`Koerber’s teaching that the identification information is a unique identifier for a
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`music title, but a POSITA would not understand this to satisfy claim 16’s
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`requirement of identification of a broadcast segment.
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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 (EX2020), the Board should find that the
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`Petitioner has not shown by a preponderance of the evidence that the challenged
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`claims are unpatentable.
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` BACKGROUND OF STRATOSAUDIO, INC.
`Patent Owner StratosAudio, Inc. is a start-up company founded in 1999 by
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`lead inventor of the ’028 patent, Kelly Christensen. In the early 2000s, Patent Owner
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`created a better media-infotainment experience through its innovative technology in
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`real-time interactive data services. Patent Owner’s technology allows a user to
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`easily obtain and engage with additional information associated with media content
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`of various broadcast streams. These efforts led to the creation of the StratosAudio
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`Interactive Symphony Digital IF Radio, which was a 2004 Consumer Electronics
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`Show (CES) Innovations Awards Honoree. With this success at CES and the interest
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`of major automotive and electronics companies like Hyundai Autonet and Motorola,
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`Patent Owner continued innovating and refining its technology over the past twenty
`
`years.
`
`Patent Owner has protected its innovative and novel technology through a set
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`of patents, including the ’028 patent subject to the instant proceeding. Over the
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`years, several major car manufacturers have incorporated Patent Owner’s
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`technology into their respective vehicle media console systems. Patent Owner filed
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`suit in December 2020 against five of these auto-manufacturers, including Hyundai
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`(Petitioner), Volvo, Subaru, Mazda, and Volkswagen.
`
` THE ’028 PATENT
`A.
`Specification
`The ’028 patent is titled “Broadcast Response System,” and discloses a novel
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`system and method for allowing a user to respond to broadcast media by correlating
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`media content identifying data with a broadcast segment. EX1001, 2:55-57, Claim
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`11. The ’028 Patent lists several applications of the invention, including providing
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`“a radio broadcast listener with the ability to obtain media content such as music or
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`speech while listening to the radio,” and allowing a user to “respond to items in the
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`radio broadcast such as advertisements, fund raising drives or interactive listener
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`polls during the broadcast.” EX1001, Abstract.
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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 known,
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`and implemented as standards, including RBDS and RDS, as far back as the “early
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`1990’s.” EX1001, 1:20-2:49. These ancillary metadata signals accompanying the
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`broadcast media would commonly include a “4-digit Program Identification code
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`(PI) which is derived from the transmitting station’s call letters,” “traffic
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`information,” “a 5-bit Program Type (PTY) code which describes the current
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`program or format being broadcast by the station (Rock, Oldies, Talk, News, etc.),”
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`and display-only “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 can
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`be available, in-house station text messages, or Emergency Alert System (EAS)
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`communication messages.” EX1001, 1:65-2:20.
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`The ’028 Patent is not about identifying songs; instead it gives users the ability
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`to interact with and respond to data associated with the broadcasts. EX1001, 2:53-
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`55. The patent states that the RBDS and RDS systems allow broadcasters to
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`“distribute information to a large number of users” but do not “allow individual users
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`U.S. Patent No. 8,688,028
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`to respond to the broadcast information.” EX1001, 2:26-29. The ’028 Patent
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`enumerates such desired responses, including purchasing a song, pledging to a fund
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`drive, or participating in a listener survey. EX1001, 2:30-49.
`
`The ’028 Patent describes a number of embodiments, many of which relate to
`
`use of “an Automatic Purchase System (APS) [that] provides a radio broadcast
`
`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. One embodiment
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`describes each broadcaster as having a RBDS/RDS enabled server onsite to
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`“generate RBDS/RDS or equivalent code for inclusion in the broadcast” and also
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`receive listener responses to “validate and route purchase information to the user’s
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`wireless carrier for billing, monitor online sales transactions for data mining, or route
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`validated purchases to licensed creative content providers.” EX1001, 3:7-14. In a
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`related embodiment, the ’028 patent refers to a system where “purchases are made
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`by saving requests for selected items for purchase on a flash card or storage
`
`technology and transferring that data to a personal computer for purchase through
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`the Internet at a later time.” EX1001, 3:34-38.
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`The ’028 patent includes a four-page Figure 1, shown below as a single-page
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`version:
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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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 (denoted “Proprietary”), an FM
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`transmission system 146, as well as a RBDS encoder 148. EX1001, 5:41-44. The
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`radio automation system 142 extracts information about songs or a radio program
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`from the station playlist and provides the extracted information to the audio
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`database/encoding server 144. EX1001, 5:44-48. The information can include song
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`title, artist, cut or other
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`information.
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` EX1001, 5:48-49.
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` The audio
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`database/encoding server 144 matches this information with information in the
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`database to determine whether an audio file corresponding to media content (e.g.,
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`song or radio program) is available for download. EX1001, 5:48-52. If a match is
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`found, the audio database/encoding server (proprietary) 144 encodes download
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`information for that media content and sends the encoded download information to
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`the RBDS encoder 148. EX1001, 5:52-56. The RBDS encoder 148 transmits the
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`encoded download information using the RBDS subcarrier 170 to the FM
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`transmission system 146. EX1001, 5:57-59. The RBDS encoder 148 also formats
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`into the subcarrier signal 170 “non-APS elements of the data stream (such as station
`
`identification (Call Letters), date and time etc.)” for the specific broadcast segment
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`that is transmitted. EX1001, 10:46-51.
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`“As shown in FIG. 1, a radio station 140, using either a standard radio
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`automation system for tracking of music content which is being broadcast, or a data-
`
`enabled audio player, broadcasts audio material and synchronously sends
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`RBDS/RDS or similar data to an APS server 144 that assigns a unique identifier to
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`each specific broadcast segment or song.” EX1001, 5:64-6:2. Accordingly, the
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`subcarrier signal 170, in addition to information identifying a media content (e.g.,
`
`name of a song), also contains data that enables a unique identification of each
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`specific broadcast segment. EX1001, 5:64-6:2. For example, assuming that a
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`particular song is broadcast by a radio station at multiple different times on a certain
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`IPR2021-01303
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`day, each instance of broadcast of that song by that radio station would have
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`associated data that enables a unique identification for identifying that specific
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`broadcast segment. EX2020, ¶32.
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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, 5:57-63.
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`Although the receiver 100 has not been labeled in FIG. 1, a POSITA would
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`readily understand, from the context of the description of Fig. 1, that the “receiver
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`100” corresponds to the following boxed-in portion of Fig. 1 (annotated to remove
`
`connecting lines and labeled with 100). EX1001, 4:30; EX2020, ¶34. In fact, this
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`boxed-in portion of Fig. 1 is labeled “RADIO RECEIVER,” which a POSITA would
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`understand indicates it corresponds to the specification’s “receiver 100.” EX1001,
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`4:30; EX2020, ¶34.
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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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. For example, the specification of the
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`’028 patent indicates that “[i]n one embodiment, the radio receiver 100 comprises a
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`Radio Frequency (RF) Demodulator Section 102, a RBDS/RDS Decoder 106, a
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`RBDS/RDS function control interpreter 104, an audio demodulator amplifier section
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`108, a scrolling display 110, an Internet Download Director 112, a local memory
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`device 114 and the control interface 116.” EX1001, 4:30-35 (emphasis added). FIG.
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`1 depicts such components 102, 104, 106, 108, 110, 112, 114 and 116 all within the
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`boxed-in portion.
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`Receiver 100 receives the transmitted FM RF signal 162, splits the signal into
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`an audio signal and a data signal, with the data signal provided to the RBDS/RDS
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`decoder 106 and the audio signal provided to the audio demodulator amplifier
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`section 108. EX1001, 4:39-43.
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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:
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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. The interactive button 212 can allow a user to select or “tag” a
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`song for future purchase. EX1001, 6:52-65, 7:10-14. If a song is tagged for
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`purchase, the APS module stores a unique identifier data 204 assigned to the specific
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`broadcast segment. EX1001, 6:52-58. The tagged song is added to a playlist 208
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`that is stored in the memory 220 of the receiver. EX1001, 6:62-65. The user can
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`later access this list of tagged items and choose one or more items from this playlist
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`208 for future download. EX1001, 6:65-7:7.
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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. A second option is
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`available if the “user does not have a wireless phone, or does not have a good
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`connection with a wireless phone connected to the radio.” EX1001, 7:39-46. For
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`this second option, “[t]he user can select . . . broadcast content for purchase” and
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`these “content selections can be stored on the flash card or storage technology 220
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`for later use.” EX1001, 7:39-46 (emphasis added). This second option discloses
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`that the user selects content specific to a broadcast, and stores data identifying that
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`content in the memory. EX1001, 7:39-46.
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`The ’028 patent further discloses how this second-option embodiment handles
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`the purchase when a wireless connection to the APS server cannot be obtained by
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`the TER. EX1001, 7:49-61. “In cases where the user cannot obtain a good
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`connection or the user does not have a wireless account, the flash card or storage
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`technology 220 can later be removed by the user and inserted in a personal computer
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`240.” EX1001, 7:49-53. In this case, “[t]he routing information for each selection
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`stored on the flash card or storage technology 220 is passed to the APS download
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`software running on the user’s personal computer” which “allows the user to
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`purchase the selected content and download it to a personal computer 240 as long as
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`the content was tagged with the proper security codes obtained from the APS module
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`202 in the radio 200.” EX1001, 7:53-61. The ’028 patent states that “[t]he data
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`collected through ‘data mining’ of sales transactions can be sold to companies
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`interested in tracking demographic information and music sales such as record
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`companies and trade publications.” EX1001, 8:41-44; see also EX1010, 9:34-37.
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`B. Claim 11
`Claim 11, according to its preamble, discloses “[a] method for correlating
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`media content identifying data with at least one broadcast segment received by a
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`communication device.” EX1001, Claim 11. A POSITA would understand this
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`correlation would be important, for example, for data mining. EX2020, ¶41. “In
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`one embodiment, activity of each sale using the above system is tracked for the
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`purposes of aggregating data or ‘Data Mining’ for sale to interested parties such as
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`trade publications and record companies.” EX1001, 9:34-36. A POSITA would
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`understand that such activity data important for mining would include not only what
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`IPR2021-01303
`U.S. Patent No. 8,688,028
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`song was purchased, but which broadcast of that song triggered the purchase,
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`answering, for example, which repeat broadcasts of any particular song generated
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`the most user responses or which broadcast segments generated interest but no
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`follow-through for purchase or vote generation. EX2020, ¶41. A POSITA would
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`understand that answering such questions would require a system for correlating the
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`media content identifying data with the broadcast segment uniquely resolvable using
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`both proprietary sourced and “non-APS” or non-proprietary data. EX1001, 10:45-
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`51; EX2020, ¶41.
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`This understanding of a POSITA that such a system for correlating media
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`content identifying data with a broadcast segment would be used for data mining is
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`further emphasized by the fact that both Claim 11’s and the ’028 patent
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`specification’s descriptions of data mining rely on the concept of data aggregation.
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`EX2020, ¶42. Claim 11 requires storing in electronic “media content identifying
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`data elements into identifying data aggregates” with each aggregate associated with
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`at least one media content item and its correlated broadcast segment. EX1001,
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`15:45-46 (emphasis added). When the specification states “activity of each sale
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`using the above system is tracked for the purposes of aggregating data or ‘Data
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`Mining’” (EX1001, 9:34-36 (emphasis added)), it becomes clear to a POSITA that
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`the “aggregates” of Claim 11 are referring to the inclus