`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`VOLKSWAGEN GROUP OF AMERICA, INC.,
`Petitioner
`
`v.
`
`STRATOSAUDIO, INC.,
`Patent Owner
`
`
`__________________
`
`Case No. IPR2021-00716
`Patent No. 8,688,028
`
`
`DECLARATION OF VIJAY MADISETTI, PhD
`IN SUPPORT OF PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT NO. 8,688,028
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`Page 1
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`Petitioner - Ex. 1003
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`Table of Contents
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`I.
`
`II.
`
`INTRODUCTION ........................................................................................... 4
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`BACKGROUND AND QUALIFICATIONS ................................................. 4
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`III. MATERIALS CONSIDERED ........................................................................ 9
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`IV. LEGAL PRINCIPLES OF ANTICIPATION AND OBVIOUSNESS ......... 10
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`V. OVERVIEW OF THE ’028 PATENT .......................................................... 13
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`VI. LEVEL OF ORDINARY SKILL IN THE ART ........................................... 18
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`VII. CLAIM CONSTRUCTION .......................................................................... 20
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`A.
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`B.
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`Legal Principles and Methodology Applied ....................................... 20
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`Construction of Specific Terms ........................................................... 21
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`1.
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`2.
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`3.
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`“broadcast stream,” “broadcast segment,” and “associated
`media content” .......................................................................... 21
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`“receiving a data stream associated with the broadcast
`stream” ...................................................................................... 26
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`“operations are accessible by” .................................................. 28
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`VIII. THE PRIOR ART .......................................................................................... 30
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`A.
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`B.
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`C.
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`The State of the Art ............................................................................. 30
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`U.S. Patent No. 5,579,537 (“Takahisa”) ............................................. 30
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`U.S. Patent No. 6,317,784 (“Mackintosh”) ......................................... 32
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`IX. SUMMARY OF THE GROUNDS ............................................................... 38
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`X. ANALYSIS .................................................................................................... 38
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`A.
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`Takahisa Anticipates Claims 11, 14–16, and 18 ................................. 38
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`1.
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`2.
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`3.
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`4.
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`5.
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`Claim 11 .................................................................................... 38
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`Claim 14 .................................................................................... 55
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`Claim 15 .................................................................................... 57
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`Claim 16 .................................................................................... 58
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`Claim 18 .................................................................................... 60
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`B. Mackintosh Renders Obvious Claims 11, 14–16, and 18 ................... 60
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`1.
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`2.
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`3.
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`4.
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`5.
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`Claim 11 .................................................................................... 62
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`Claim 14 .................................................................................... 80
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`Claim 15 .................................................................................... 81
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`Claim 18 .................................................................................... 83
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`Claim 16 .................................................................................... 85
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`XI. CONCLUSION .............................................................................................. 89
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`I, Vijay Madisetti, declare as follows:
`
`I.
`
`INTRODUCTION
`1.
`I have been retained by Volkswagen Group of America, Inc.
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`(“Volkswagen” or “Petitioner”) as an independent expert consultant in this
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`proceeding before the Patent Trial and Appeal Board (“PTAB”) of the United
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`States Patent and Trademark Office.
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`2.
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`Specifically, Volkswagen has asked me to provide technical
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`assistance in this inter partes review (“IPR”) of U.S. Patent No. 8,688,028 (“the
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`’028 Patent”).
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`3.
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`This declaration is a statement of my opinions on issues related to the
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`unpatentability of Claims 11, 14–16, and 18 of the ’028 Patent.
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`4.
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`I am being compensated by Volkswagen at the rate of $600 per hour
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`for my work in this case, including time spent testifying. This rate is my standard
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`hourly rate for engagements of this nature. I am being reimbursed for reasonable
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`fees and expenses, including hotel and travel expenses, incurred as a result of my
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`work on this case. My compensation does not depend on the outcome of the case
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`and the fact that I am being compensated has not altered the opinions that I have or
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`will give in this case.
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`II. BACKGROUND AND QUALIFICATIONS
`5.
`I am an independent consultant. All of my opinions stated in this
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`declaration are based on my own personal knowledge and professional judgment.
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`In formulating my opinions, I have relied upon my knowledge, training, and
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`experience in the relevant art.
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`6.
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`I am over 18 years of age, and, if I am called upon to do so, I would
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`be competent to testify as to the matters set forth herein. While my qualifications
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`are stated more fully in my curriculum vitae, attached hereto as Appendix A, I
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`provide below a brief summary of my qualifications.
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`7.
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`I earned a Bachelor of Technology (Honors) in Electronics &
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`Electrical Communications Engineering from the Indian Institute of Technology
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`(IIT) in Kharagpur, India, in 1984. I earned my Ph.D. in Electrical Engineering
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`and Computer Science (EECS) from the University of California at Berkeley in
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`1989. I have published extensively, with about 100 technical publications and
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`eight books in the areas of computing, signal processing and communications
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`systems.
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`8.
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`I am an Institute of Electrical and Electronics Engineers (“IEEE”)
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`Fellow and, in 2006, I was awarded the 2006 Frederick Emmons Terman Medal by
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`the American Society of Engineering Education (“ASEE”) and HP Corporation for
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`my contributions to electrical engineering.
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`9.
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`I have been a Full Professor of Electrical/Computer Engineering at the
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`Georgia Institute of Technology (“Georgia Tech”) since 1989. I lead several
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`research and educational programs at Georgia Tech in the area of digital signal
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`processing and computer engineering, including chip and circuit design. And, I am
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`knowledgeable and familiar with consumer electronics design, control system
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`design and systems engineering, wireless communications, hardware, embedded
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`systems, and associated software and firmware design for wireless and
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`telecommunications terminals, for example.
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`10.
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`I have designed several specialized computer and communication
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`systems over the past two decades at Georgia Tech, such as cell phones and PDAs.
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`11. For example, around 2000–2001, I designed three GSM multiband
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`mobile phones for a leading telecom equipment manufacturer in Asia. Relatedly,
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`in the 2004–2007 timeframe, I designed several commercial mobile phones for the
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`2.5G/3G market in collaboration with a leading consumer electronics ODM
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`manufacturer for sale in Asia through BPL Telecom.
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`12. As another example, around the 1986–1988 timeframe I worked to
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`improve performance of headphones by developing algorithms for echo
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`cancellation in complex audio and acoustic environments that reduced noise
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`captured by microphones. In the 2000–2006 timeframe, I extended many of these
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`algorithms to implement echo cancellers for VOIP speech and audio codecs, for
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`standards, such as G.168. Relatedly, in the 2004–2007 timeframe, I implemented
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`optimized code for a leading mobile phone manufacturer that identified the type of
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`source audio, e.g., music or noise, in order to facilitate noise reduction in complex
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`environments, such as automobiles, where the performance of microphones and
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`headsets can be impaired.
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`13. Further, I implemented audio and speech capture and coding
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`algorithms for several commercial consumer electronics products, such as mobile
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`phones and VOIP handsets, that are used in millions of commercial consumer
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`products that have been sold since the mid-2005 timeframe.
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`14.
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`I have founded three companies in the areas of embedded software,
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`military chipsets involving imaging technology, and wireless communications. For
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`example, the first of the companies I founded, VP Technologies, offers products in
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`the area of semiconductor integrated circuits. I remain a director of VP
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`Technologies.
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`15. Over the past twenty years, I have authored, co-authored, or edited
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`several books in the area of computer systems and distributed systems, including:
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`1) V. Madisetti, VLSI Digital Signal Processors, IEEE Press (1995).
`2) M. Romdhane, V. Madisetti, J. Hines, Quick-Turnaround ASIC
`Design in VHDL, Springer Verlag (1996).
`3) V. Madisetti, D. Williams (Editors), The Digital Signal Processing
`Handbook (First Edition) (1998).
`4) V. Madisetti (Co-Editor), VHDL: A CD-ROM Interactive Tutorial:
`Electronics Systems Design Methodologies, IEEE Standards Press,
`(1997).
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`5) V. Madisetti, A. Arpnikanondt, Platform-Centric Approach to
`System-on-Chip (SoC) Design (2001).
`6) V. Madisetti, The Digital Signal Processing Handbook – Second
`Edition (2009/2010).
`7) A.Bahga, V. Madisetti, Cloud Computing: A Hands-On Approach
`(2013).
`8) A. Bahga, V. Madisetti, Internet of Things: A Hands-On Approach
`(2014).
`I have been involved in research and technology in the area of digital
`
`16.
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`signal processing since the late 1980s, and I am the Editor-in-Chief the IEEE
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`Press/CRC Press’s 3-volume Digital Signal Processing Handbook (Editions 1 & 2)
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`(1998, 2010). An image of the cover of this book is reproduced below:
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`17.
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`I have submitted approximately 40 invention disclosures and
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`provisional patents over the past ten years, and I am listed as an inventor on fifteen
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`issued U.S. patents.
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`III. MATERIALS CONSIDERED
`18.
`In forming my opinions, I read and considered the ’028 Patent and its
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`prosecution history, the exhibits listed in the Exhibit List filed with the petition for
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`inter partes review of the ’028 Patent, as well as any other material referenced
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`herein.
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`19. For any future testimony I may give in this matter, I may use some or
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`all of the documents and information cited to, referred to, and identified in this
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`declaration, as well as any additional materials that are entered into evidence in
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`this matter.
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`IV. LEGAL PRINCIPLES OF ANTICIPATION AND
`OBVIOUSNESS
`I have been informed and I understand that a patent claim is
`
`20.
`
`anticipated when a single piece of prior art describes every element of the claimed
`
`invention, arranged in the same way as in the claim, either expressly or inherently.
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`I have been told to consider elements to be inherently described only if they are
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`necessarily present in the piece of prior art.
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`21.
`
`I have been informed and I understand that a patent claim is
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`unpatentable and invalid if the claim as a whole would have been obvious to a
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`person of ordinary skill in the art in the field of the patent as of the time of the
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`invention at issue. I have been informed and understand that the following factors
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`must be evaluated to determine whether a claim is obvious: (i) the scope and
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`content of the prior art; (ii) the difference or differences, if any, between the claim
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`and the prior art; (iii) the level of ordinary skill in the art at the time of the
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`invention; and (iv) any objective indicia of non-obviousness.
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`22.
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`I have been informed and I understand that a prior art reference may
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`be considered if it discloses information designed to solve any problem or need
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`addressed by the patent or if it discloses information that has obvious uses beyond
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`its main purpose and if a person of ordinary skill in the art would reasonably
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`examine that reference when trying to solve any problem or need addressed by the
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`patent.
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`23.
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`I have been informed and I understand that the objective indicia of
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`non-obviousness (or “secondary considerations”) that should be considered
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`include, for example, the following: (i) commercial success; (ii) long-felt but
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`unresolved needs; (iii) copying of the invention by others in the field; (iv) initial
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`expressions of disbelief by experts in the field; (v) failure of others to solve the
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`problem that the inventor solved; and (vi) unexpected results. I have been
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`informed and understand that evidence of these objective indicia must be
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`commensurate in scope with the claimed subject matter, i.e., that the materiality of
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`these objective indicia depends on the existence of a nexus between the indicia and
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`the invention, as opposed to other factors. I am not aware of any objective indicia
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`of non-obviousness relevant to the claims of the ’028 Patent.
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`24.
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`I have been informed and I understand that independently made,
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`simultaneous inventions, made within a comparatively short space of time, are
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`evidence that the claimed apparatus was obvious.
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`25.
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`In determining whether the subject matter as a whole would have been
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`obvious at the time that the invention was made to a person having ordinary skill in
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`the art, I have been informed of and understand certain principles regarding the
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`combination of elements of the prior art. A combination of familiar elements
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`according to known methods is likely to be obvious when it yields predictable
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`results. Also, if a person of ordinary skill in the art can implement a predictable
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`variation in a prior art device, and would see the benefit from doing so, such a
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`variation would be obvious. In particular, when there is pressure to solve a
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`problem and there are a finite number of identifiable, predictable solutions, it
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`would be reasonable for a person of ordinary skill to pursue those options that fall
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`within his or her technical grasp. If such a process leads to the claimed invention,
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`then the latter is not a patentable invention, but the result of ordinary skill and
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`common sense.
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`26.
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`I have also been informed and understand that claims are obvious
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`where they result from a simple substitution of one known element for another
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`known element performing the same function, and where that substitution yields
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`predictable results.
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`27.
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`I have also been informed and understand that a teaching, suggestion
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`or motivation is a useful guide in establishing a rationale for combining elements
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`of the prior art so as to render a claim obvious. The test poses the question as to
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`whether there is a teaching, suggestion, or motivation in the prior art to combine
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`prior art elements in a way that realizes the claimed invention.
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`28. Though useful to the obviousness inquiry, I understand that this test
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`should not be treated as a rigid rule. The teaching, suggestion or motivation could
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`come from the prior art, the background knowledge of one of ordinary skill in the
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`art, the nature of any problem or need to be addressed, market demand, or common
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`sense. It is also permissible to consider the inferences and creative steps that a
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`person of ordinary skill in the art (who is considered to have an ordinary level of
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`creativity and who is not an automaton) would employ.
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`V. OVERVIEW OF THE ’028 PATENT
`29.
`I have reviewed the ’028 Patent, which is entitled “Broadcast
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`Response System.” Ex. 1001. I have been asked to assume that the ’028 Patent is
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`entitled to an effective filing date of September 13, 2000. Ex. 1001.
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`30. The ’028 Patent is directed to a system that sends “a data stream in
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`combination with a broadcast signal for identifying music or speech available for
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`purchase.” Ex. 1001 at 3:23–25.
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`31. While in several illustrative embodiments the accompanying data is
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`sent using the “RBDS/RDS” standard—which standard facilitates the broadcast of
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`a variety of program-related information on a subcarrier of a standard FM
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`broadcast channel—and is therefore associated with the broadcast stream, the ’028
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`Patent contemplates other types of accompanying data, and also contemplates that
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`the accompanying data stream may be sent independently from the source of the
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`broadcast stream. Ex. 1001 at 1:35–60, 3:8–25, claim 15.
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`32. The ’028 Patent explains that “[d]ata such as song title and artist,
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`author or publisher and the IP address for the location where the digital version of
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`the content is stored, can be transmitted using the RBDS/RDS data stream.” Ex.
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`1001 at 3:39–42. “A reference number representing song title and artist, author
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`and publisher and the IP address for the location where the digital version of the
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`content is stored can also be employed for ease of implementation.” Ex. 1001 at
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`3:42–45.
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`33. When filing the application that led to the ’028 Patent, the Applicants
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`split figure 1 of the ’028 Patent into four separate pieces (FIGS. 1A–1D). A
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`composite image of figure 1, comprised of the four individual pieces, is reproduced
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`below in order to make it easier to visualize the purported invention:
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`34. The ’028 Patent explains that “radio station 140 includes a radio
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`automation or CD playback system 142, an audio database/encoding server 144, an
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`FM transmission system 146 and a RBDS/RDS encoder 148.” Ex. 1001 at 5:41–
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`44. These elements are shown in the top half of the composite figure (FIGS. 1A
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`and 1B).
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`35. The ’028 Patent further explains that “[t]he radio automation or CD
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`playback system 142 can extract information about songs or a radio program from
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`the station playlist or by extracting information encoded on a CD or a CD-ROM.”
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`Ex. 1001 at 5:41–44. “The playlist information is provided to the audio database
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`and coding server 144.” Ex. 1001 at 5:47–48. (I note that “coding server 144” is
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`likely a typographical error and was likely intended to refer to “encoding server
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`144.”)
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`36. The ’028 Patent explains that the “playlist information” can include
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`various information about the tracks, such as “song title” and “artist.” Ex. 1001 at
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`5:48–49. Additional information can be included, such as the “cut” (e.g., “cut
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`number” or “cut information,” see Fig. 1A) or other identifying information. Ex.
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`1001 at 5:48–49.
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`37. The ’028 Patent further explains that this identifying information and
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`various other information (for example, if a particular song is available for
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`download) is sent to the “RBDS/RDS encoder 148,” which “transmits the
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`RBDS/RDS information using the 57 khz RBDS/RDS subcarrier 170 to the FM
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`transmission system 146.” Ex. 1001 at 5:52–49.
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`38. The ’028 Patent’s “radio automation or CD playback system 142,”
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`“audio database encoding server 144,” and “RBDS/RDS encoder 148” are shown
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`in figure 1A (excerpted below):
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`39. The ’028 Patent further explains that “[t]he RBDS/RDS subcarrier
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`signal 170 is mixed by the FM transmission system 146 with the FM baseband
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`program signal 172 and any other subcarriers,” and then the “FM transmission
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`system 146 … transmits an FM RF signal 162 which is received by the radio
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`receiver 100.” Ex. 1001 at 5:49–63.
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`40. The ’028 Patent’s “FM transmission system 146,” “FM RF signal
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`162,” and the user’s/listener’s “radio receiver 100” are shown in figure 1B
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`(excerpted and annotated below):
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`RADIO RECEIVER
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`VI. LEVEL OF ORDINARY SKILL IN THE ART
`41.
`I have been informed and understand that the disclosure of patents and
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`prior art references are to be viewed from the perspective of a person having
`
`ordinary skill in the art at the time of the alleged invention (“POSITA”), and that a
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`POSITA is a hypothetical person who is presumed to have known all the relevant
`
`art prior to the date of invention to which challenged claims are entitled.
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`42.
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`I have provided my opinions from this perspective. I have been told
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`to assume that this date of invention was September 13, 2000, the filing date of a
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`provisional patent application to which the ’028 Patent claims priority.
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`43.
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`I have been informed and understand that prior art references can
`
`provide evidence of the level of ordinary skill in the art, and that factors that may
`
`be considered in determining this level of skill can include the educational level of
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`the inventors and active workers in the field, the types of problems encountered in
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`the art, the prior art solutions to those problems, the rapidity with which
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`innovations are made, and the sophistication of the technology.
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`44.
`
`It is my opinion that a POSITA during the relevant period would have
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`had at least a B.S. in computer science or electrical engineering (or a related field),
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`and 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). This
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`description is an approximation of the level of skill of a POSITA, as a higher
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`education or skill level might make up for less experience, and vice-versa. At the
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`time of invention, I was familiar with this level of skill because I was teaching
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`students at Georgia Tech with this level of skill. And, of course, at the time, I
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`would have at least qualified (and presently do qualify) as a POSITA for the ’028
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`Patent.
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`VII. CLAIM CONSTRUCTION
`A. Legal Principles and Methodology Applied
`45.
`I have been informed and understand that the United States Patent and
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`Trademark Office interprets claim terms in an inter partes review proceeding
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`under the same claim construction standard that is used in a United States federal
`
`court. I understand that, under this standard, the meaning of claim terms is
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`considered from the viewpoint of a POSITA at the time of the alleged invention.
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`46.
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`I have been informed and understand that claim terms are generally
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`given their plain and ordinary meaning as understood by a POSITA, in light of the
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`specification and the prosecution history pertaining to the patent. I have been
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`further informed and understand that claim terms are generally not to be imported
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`from the embodiments described in the specification unless the patentee has
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`demonstrated a clear intention to limit the claim scope.
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`47.
`
`I have been informed and understand that, in addition to the claims,
`
`specification, and prosecution history, other evidence may be considered to
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`ascertain the meaning of claim terms, including textbooks, encyclopedias, articles,
`
`and dictionaries. I have been informed and understand that this other evidence is
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`often less significant and less reliable than the claims, specification, and
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`prosecution history.
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`48.
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`In order to determine the proper scope of claims 11, 14–16, and 18 of
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`the ’028 Patent, and to compare these claims to the prior art, I have carefully
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`considered the text and figures of the ’028 Patent and its file history based upon
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`my experience and knowledge in the relevant field.
`
`B. Construction of Specific Terms
`1.
`“broadcast stream,” “broadcast segment,” and “associated
`media content”
`a.
`“broadcast stream”
`Independent Claim 11 and dependent Claim 15 recite a “broadcast
`
`49.
`
`stream.”
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`50. As a threshold matter, I note that the phrase “broadcast stream” only
`
`appears in the claims of the ’028 Patent.
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`51. However, the ’028 Patent refers to broadcasts of various kinds,
`
`including radio broadcasts—using AM/FM transmission technology, digital audio
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`broadcasting technology, etc.—and television broadcasts. Ex. 1001 at 1:29–2:49.
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`52. For example, the “Background” section of the ’028 Patent provides an
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`overview of the United States Radio Broadcast Data Systems (“RBDS”) Standard,
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`used with FM transmission systems, and refers to a similar standard used in Europe
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`called the European Radio Data System (“RDS”). Ex. 1001 at 1:26–2:25.
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`53. The ’028 Patent refers to an alleged problem with the currently-
`
`prevalent technology, and explains that the same problem (which it purports to
`
`solve) applies to “television and other forms of broadcast media”:
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`Currently, users listening to the radio or watching
`television may particularly like a song or program that
`they would like to purchase. While stations using
`RBDS/RDS may provide a user with the station call letters
`or the name of the song currently being broadcast, the user
`has no way to purchase the media at that point. Instead, the
`user must write down or remember the identifying
`information and then go to a store or online retailer to
`purchase the media. Not only is this inconvenient, but the
`user may forget the name of the song or not be able to find
`a store that sells the song. Additionally, the information
`provided by the radio station may not be enough to
`sufficiently identify the song. For example, the user may
`have the song title, but not the artist name, album name, or
`other necessary identifying information. Some material,
`such as editorial news broadcasts or live events, may not
`be available for purchase or may be difficult to find. Radio
`stations often have fund raising drives or listener surveys
`that require a listener to call the station or respond within
`a limited time. These same problems also apply to
`television and other forms of broadcast media.
`
`Ex. 1001 at 2:30–49.
`54. The ’028 Patent additionally refers to other types of broadcasting
`
`systems that allegedly can make use of its alleged invention:
`
`
`
`Page 22
`
`Petitioner - Ex. 1003
`
`
`
`RBDS/RDS is an FM-only transmission system but one of
`ordinary skill in the art will recognize that APS data can
`be included with other radio services (e.g. AM, etc.).
`
`Digital Audio Broadcasting (DAB), which includes
`flexible, open-source, data transmission functions along
`with the audio signal. Systems for adapting digital audio
`and data transmission to the current allocation of AM and
`FM stations using a technique known as In Band On
`Channel (IBOC) are known. IBOC includes an ancillary
`data stream in the broadcast signal to be used by the station
`for whatever purposes they see fit. The ancillary data
`stream signal can be used to carry APS information.
`
`Other developing radio systems also include a data path
`that can be used to send the information used by the APS
`system to successfully allow the acquisition of music or
`other material being broadcast. Satellite DAB providers,
`such as XM Satellite and Sirius Satellite Radio, have
`access to the audio and ancillary data signals being sent to
`compatible receivers.
`
`As other audio services develop, the capability to transmit
`complimentary, simultaneous data can be used as a
`component of the APS. The APS can be simply adapted
`to each new transmission form with no significant change
`in the overall system.
`
`
`
`
`
`Page 23
`
`Petitioner - Ex. 1003
`
`
`
`
`
`Wireless technology and the related developments in high-
`speed Internet access using systems such as BlueTooth or
`other wireless network
`technology allows
`faster
`downloads of the desired material by taking advantage of
`the newer, faster technology.
`
`NTSC, PAL and other technologies employed to transmit
`television signals around the world allow for similar
`capabilities in transmitting subcarrier data within the
`carrier signal.
`
`Ex. 1001 at 10:56–11:20.
`
`55.
`
`In my opinion, a POSITA would understand from these disclosures
`
`that the ’028 Patent understood the phrase “broadcast stream” to broadly
`
`encompass various forms of data transmission.
`
`56. According to the ’028 Patent: “One of ordinary skill in the art will
`
`recognize that there are various forms of media that can be broadcast. Where a
`
`specific type of media is used in the following examples, it is for demonstration
`
`purposes only and the examples should not be limited in that regard. Some
`
`examples of the various types of media can include music, songs, speech, text,
`
`video, etc.” Ex. 1001 at 4:16–21.
`
`57. Thus, in my opinion, the term “broadcast stream” should be construed
`
`to mean “any media conveyance methodology that conveys information in the
`
`form of a signal.” It is my opinion that this would broadly include, for example,
`
`
`
`Page 24
`
`Petitioner - Ex. 1003
`
`
`
`
`
`broadcasts or transmissions distributed over AM/FM radio, digital radio, the
`
`Internet, satellite, cable, analog television, digital television, etc.
`
`b.
`“broadcast segment”
`Independent Claim 11 and dependent Claim 16 recite a “broadcast
`
`58.
`
`segment.”
`
`59. Other claims of the ’028 Patent provide relevant context for the phrase
`
`“broadcast segment.” For example, claims 1, 5 and 6 of the ’028 Patent refer to “at
`
`least one identifiable broadcast segment as part of a broadcast stream.” Ex. 1001,
`
`claims 1, 5, and 6.
`
`60. And, outside of the claims, the ’028 Patent uses the phrase “broadcast
`
`segment” synonymously with “song.” Ex. 1001 at 6:1–2 (“…assigns a unique
`
`identifier to each specific broadcast segment or song”). The ’028 Patent uses this
`
`phrase in the context of “tracking of music content which is being broadcast” and
`
`determining whether that “broadcast segment” is “available for purchase.” Ex.
`
`1001 at 5:64–6:4.
`
`61. Thus, in my opinion, the term “broadcast segment” should be
`
`construed to mean “a distinguishable piece or portion of a broadcast stream,” such
`
`as an individual song, speech, or video.
`
`c.
`“media content”
`Independent Claim 11 recites “media content.”
`
`62.
`
`
`
`Page 25
`
`Petitioner - Ex. 1003
`
`
`
`63. The ’028 Patent’s usage of the phrases “media” and “media content”
`
`informs my understanding of this phrase.
`
`64. For example, the ’028 Patent explains that:
`
`
`
`[T]here are various forms of media that can be broadcast.
`Where a specific type of media is used in the following
`examples, it is for demonstration purposes only and the
`examples should not be limited in that regard. Some
`examples of the various types of media can include music,
`songs, speech, text, video, etc.
`
`Ex. 1001 at 4:16–21.
`65. And, the ’028 Patent explains that its purported invention “provides a
`
`radio broadcast listener with the ability to conveniently purchase media content
`
`such as music or speech while listening to the radio.” Ex. 1001 at 2:55–58
`
`(emphasis added).
`
`66. Thus, in my opinion, the phrase “media content” should be construed
`
`to mean “any form of media content that, when translated from the signal-form in
`
`which it is transmitted, is discernible to humans.”
`
`2.
`
`“receiving a data stream associated with the broadcast
`stream”
`Independent Claim 11 recites “receiving a data stream associated with
`
`67.
`
`the broadcast stream.”
`
`68. While I do not believe that an express “construction,” per se, is
`
`
`
`Page 26
`
`Petitioner - Ex. 1003
`
`
`
`
`
`necessary for this phrase, I set forth my opinion below as to the scope of this
`
`limitation based on my review of other claims of the ’028 Patent—specifically
`
`claims 15 and 12—that help inform how a POSITA would understand the
`
`association of the data stream and the broadcast stream.
`
`69. Claim 15 is reproduced below:
`
`15. The method of claim 11, wherein the association of the
`data stream with the broadcast stream is at least one of the
`following: the data stream is frequency multiplexed with
`the broadcast stream, the data stream is time multiplexed
`with the broadcast stream, the data stream is transmitted
`independently from the broadcast stream, the data stream
`is encoded in the broadcast stream.
`
`70. Claim 15 explains that “the association of the data stream with the
`
`broadcast stream” in independent Claim 11 at least encompasses instances in
`
`which the “data stream” is (1) “transmitted independently fro
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