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`Exhibit A
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`Case 6:21-cv-00815-ADA Document 38-1 Filed 04/01/22 Page 2 of 11
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`– against –
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`Plaintiff,
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`WAG ACQUISITION, L.L.C.,
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`AMAZON.COM, INC.,
`AMAZON WEB SERVICES. INC., and
`AMAZON.COM SERVICES LLC,
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`Defendants.
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`– against –
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`Plaintiff,
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`WAG ACQUISITION, L.L.C.,
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`GOOGLE LLC and
`YOUTUBE, INC.,
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`Defendants.
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`No. 6:21-cv-00815-ADA
`Patent Case
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`No. 6:21-cv-000816-ADA
`Patent Case
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`DECLARATON OF KEITH J. TERUYA
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`I, Keith J. Teruya, declare as follows:
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`1.
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`I am submitting this declaration with regard to certain questions of a technical
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`nature that have been referred to me in connection with the above-referenced litigation, which
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`accuses the Defendants of infringing U.S. Patent Nos. 9,742,824 (Compl. Ex. A) (the “’824
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`Patent”); 9,729,594 (Compl. Ex. B) (the “’594 Patent”); and 9,762,636 (Compl. Ex. C) (the
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`“’636 Patent”) to Harold Price (collectively, the “Asserted Patents”).
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`2.
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`I am being compensated for my work in this matter by WAG Acquisition, L.L.C.
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`(“WAG”), at the rate of $450.00 per hour, with reimbursement for actual expenses. I have no
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`personal or financial stake or interest in the outcome of the above-referenced litigation. My
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`compensation is not tied to the outcome of this matter, is not based on the substance of the
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`opinions rendered here, and I have no financial interest in WAG.
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`I. QUALIFICATIONS
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`3.
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`I have a long professional background in information technology and network
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`engineering, and for the past 20 years I have been the chief executive officer of a specialized
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`Internet hosting company that I founded, which among other things provides Tier I Network
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`Operations Center capabilities for corporations, local municipalities, Federal Government
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`programs, and regulatory agencies in and around southern California. Over the course of my
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`career I have developed extensive technical experience in the field of the Asserted Patents, as
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`discussed briefly below, including experience concerning multimedia communication protocols
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`over the Internet and computer networks. A copy of my curriculum vitae is attached as Exhibit
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`A.
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`4.
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`My day-to-day work in my present capacity involves direct hands-on as well as
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`strategic involvement in the issues of networked data distribution and access, including without
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`limitation architecting and configuring high-capacity content servers, proxy servers, content
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`distribution networks (CDNs), edge and origin servers, peer-to-peer communications, as well as
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`the lower-level routing and switching infrastructure and communications protocols and standards
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`underlying such systems.
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`5.
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`In prior positions, I was the Chief Technology Architect (in addition to being the
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`CEO) for 15 years for a company I founded that was the original communications technology
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`“skunk-works” for Novell Inc. In this capacity, I designed basic and advanced
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`telecommunications and network interfaces for Novell and other companies and developed a
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`mastery of the standards and protocols underlying the Internet. I authored the Network
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`Communications Services Interface (“NCSI”) that became a de-facto communications software
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`LAN/WAN standard, with more than 3 million deployments of software. I also developed
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`protocol adjustments in Novell IPX Protocol for adaptive packet buffering required by
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`LAN/WAN communication (Asynchronous and LAPB X.25) gateways, receiving Industry
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`Product of the Year awards for successive years (1988, 1990, 1991 and 1996).
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`6.
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`I previously served for 10 years architecting network information processing
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`technologies for Goldman Sachs as a senior consultant. In this capacity, I was the architect,
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`designer, development manager, and developer in Goldman’s Network Workstation
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`Technologies Department. I was also the architect of Goldman’s product strategy and
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`deployment of online delivery of consolidated live market data information into local and wide
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`area network-based workstations for mission critical securities trading operations in the
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`worldwide trading rooms of the firm. In particular, I developed proprietary adaptive buffering
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`protocols to mitigate stream delays when terrestrial transatlantic data links were routed through
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`backup satellite connections affecting the flow of steaming market data feeds used for program
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`trading operations.
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`7.
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`As Chief Technology Officer of ShowBizData Inc. between 2000 and 2002 as an
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`“early adopter” pioneered the online Internet streaming of various lived events of the Cannes
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`Film Festival, BFTA Awards and the Sundance Film Festival using both commercial and
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`proprietary systems we architected and developed.
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`8.
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`9.
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`I am also a Network Computing Paradigm Award recipient.
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`I believe that I am qualified to provide reliable technical opinions in the field of
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`the Asserted Patents.
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`II. LEVEL OF SKILL IN THE ART
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`10.
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`I have been asked to identify the level of training and/or experience that would
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`qualify someone as a person of ordinary skill in the art (“POSITA”), in the field of the Asserted
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`Patents (Internet streaming media), circa 1999-2000. In my opinion, a POSITA would have
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`working familiarity with the basic standards applicable to distribution content over the Internet,
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`including the most common video encoding and streaming protocols. In my view, the education
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`and/or working experience necessary to acquire the requisite familiarity with the subject matter
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`to qualify as a POSITA would have included either (1) a bachelor’s degree or equivalent in a
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`field such as Electrical Engineering, Computer Engineering, or Computer Science, or an
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`equivalent field that includes network engineering as a topic of study, plus at least one year of
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`practical academic or industry technical experience in the computer network field, such as
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`serving as an engineer for an streaming content provider performing network design,
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`development, or configuration tasks, or as a software developer for network communications
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`software or related utility software, or (2) or at least three years’ fulltime technical experience as
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`stated (or an equivalent combination of academic study and work experience).
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`III. TECHNICAL BACKGROUND
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`11.
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`I refer herein to text found in the specifications of the Asserted Patents. These
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`patents differ in the claims appended at the end of the respective patent documents, but share a
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`common written description preceding the claims, and a common set of drawings. However, due
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`to pagination and other incidents of the Patent Office printing process, the line and column
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`citations for specific wording varies slightly from patent-to-patent. Unless otherwise noted, my
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`citations are to the column and line numbers of the ’594 patent (chosen only because that is the
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`patent most cited by the Defendants in their submissions).
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`12.
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`Digital media programming may be collected in the aggregate in a media file on
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`an electronic storage device, e.g., a computer disk. See 1:57-60.
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`13.
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`The programming may be distributed by distributing replicas of the physical
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`medium (e.g., CDs or DVDs), or by download over a communications network of the entire file
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`comprising the program.
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`14.
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`However, it is often considered advantageous to stream the file rather than
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`provide physical copies or a download of the entire program, for numerous reasons, including,
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`for example, handling live programming where the program may be ongoing or concerns a
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`current event, and should be delivered in at least perceived real time. See, e.g., 1:60-67. It is also
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`well appreciated that other reasons for streaming as opposed to download include efficiency of
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`time and bandwidth utilization, limiting unauthorized copying, etc.
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`15.
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`Digital media comprises a time-sequenced succession of data elements, into
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`which an audio/video program is digitally encoded, and from which encoding it is electronically
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`played out, in the proper sequence, in a player device. See, e.g., 6:30-32.
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`16.
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`Communicating a time-sequenced and continuous stream of data such as that in
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`an audio/video encoding and playback places demands on the communications channel,
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`especially where the channel is over the Internet. See 2:34-40.
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`17.
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`The Internet operates on individually routed packets of typically 1500 bytes each.
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`Data elements cognizable to user applications are repackaged into such packets, on the server,
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`for transmission. The packets are reassembled at the receiving end for the corresponding
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`application on the receiving side. “Transport” mechanisms exist to handle transit of the packets
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`through the network (such as Transmission Control Protocol (TCP), though there are others).
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`Transport protocols such as TCP are engineered to ensure “reliable” delivery of the packets –
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`i.e., that they all (eventually) get through, and are provided at the receiving end in the proper
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`order. However, given the compromises built into a routed packet network such as the Internet,
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`such “transport protocols” do not guarantee “timely” delivery of the packets. There is inherent
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`uncertainty as to when packets will arrive.
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`18.
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`Distributing Internet streaming media to a mass audience requires other
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`techniques (beyond what is provided at the transport layer of the networking technology), in
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`order to provide acceptable streaming startup characteristics and continuity. These are addressed
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`by the patents in this case. Without such measures, the streaming can be very frustrating to users,
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`for two principal reasons: (1) the necessity to “buffer” data on the player side before starting
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`playback, entailing a startup delay comparable in duration to the number of seconds of buffer
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`protection required, and (2) interruptions resulting when the player buffer runs out of data.
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`19.
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`20.
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`The patents in this case provide solutions for this problem.
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`In one embodiment (not directly involved here), the server also buffers data and
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`uses the buffer it builds up prior to starting the transmission to jump-the start with a high-speed
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`transmission of an entire buffer-load of streaming data to the player. This provide a rapid startup
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`of playback and establishes a full buffer on the player side to protect the remainder of the
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`transmission. See, e.g., id., 8:1-26.
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`21.
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`The solution particularly relevant to the infringement charged in this case is
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`disclosed and claimed in connection with what is referred to as a “pull” embodiment. See id.,
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`14:42-15:18.
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`22.
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`In the pull embodiment, as described primarily at 14:42-15:18 in the ’594 patent,
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`the pace of transmission of a stream can instead be regulated by player requests for elements of
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`the stream. In the pull embodiment, streaming data elements are accumulated on the server side
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`from a media source (similar to the “buffer” in the above-described embodiment), and are each
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`associated with serial identifiers. In the pull embodiment, the player monitors the state of its own
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`buffer, including without limitation the level of the buffer and what elements it needs for
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`continuous playback, and requests them from the server by their serial identifiers, as needed to
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`provide uninterrupted playback. So long as the connection allows each element to be sent in less
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`time than it takes to play it back, this technique also serves as an effective stream control
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`mechanism. The first so-identified element in this embodiment corresponds to the initial buffer-
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`load of data in the buffering embodiment, and its rapid transfer likewise jump-starts the filling of
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`the player buffer and the ability to begin playback, providing a startup benefit comparable to that
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`provided by the buffering embodiment.
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`IV. VIEWS ON SPECIFIC TECHNICAL ISSUES
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`23.
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`The Defendants in the Amazon and Google cases make overlapping claim
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`construction requests. I have been asked to address specific technical issues referred to me with
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`regard to the Defendants’ requests.
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`1. Playback rate
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`24.
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`“Playback rate” is sometime used in streaming technology to refer to the
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`“normalness” of playback, and described by a metric, which is not a data rate itself, but rather a
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`characteristic of how the data is to be played back. Thus, in that usage, “1.0” means normal
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`rendition, numbers higher than 1.0 mean speeded-up rendition, and numbers lower than 1.0 mean
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`slow motion (or if negative, reverse) rendition.
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`25.
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`The programming is also encoded, typically not just as binary 1s and 0s
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`corresponding to raw camera and microphone inputs, but in a manner that processes, shapes,
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`organizes, and most importantly, compresses the digital representation. An important variable in
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`the encoding is the resolution of the media – how many pixels are in the image and its size and
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`shape, and how precisely and often sound, illumination and coloring levels are sampled. It is
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`customary to encode the media at a nominal bitrate (bits per second). The actual bitrate will often
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`be variable, due to taking advantage of providing higher compression to slow-moving material
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`(because the data for slow-moving material has more redundancy that can be removed by
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`compression). The nominal bitrate in such cases is approximate.
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`26.
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`As used in the specification, a POSITA would understand “playback rate” to refer
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`to the bitrate of the media data at a normal (1.0) rendition. Because of the considerations noted
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`above, the playback rate, as a data rate, may of necessity be approximate.
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`2. “as required to maintain about a predetermined number of media data elements”
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`27.
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`A POSITA might analogize this to maintaining about a target level in a gas tank
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`during an automobile trip. Any attentive driver appreciates that due to variable distances to gas
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`stations, the tank level may end up varying slightly from the target before a fill-up, with no
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`operational downside.
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`28.
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`In the streaming context, there can well be a similar factor at play, resulting from
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`the varying sizes of streaming data elements, due to variable bitrate (VBR) encoding. This is
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`addressed at 4:55-5:6 of the specification.
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`29. Media data elements are discrete, as far as media applications are concerned. In
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`the case where the media is VBR-encoded, the size of the elements can vary. Since the elements
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`are handled as units, and the size (as well as duration) of individual elements can vary, target
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`buffer levels therefore must be approximate. But since multiple elements will be in the buffer,
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`the variation in just how full the buffer is when near the target level is not operationally
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`significant. It is akin to a rounding error, or filling a bucket to a specified level with irregular
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`objects. This is not a practical issue at all for a POSITA, any more than a recipe calling for two
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`cups of large shrimp would be indefinite for a chef.
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`3. “each sending is at a transmission rate as fast as the data connection between the
`server system and each requesting user system allows”
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`30.
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`The specification says that “[t]he server buffer 14 ‘sends’ data by delivering it to
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`the transport mechanism.” A POSITA understands that, in a server sending data over a transport
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`mechanism, the transport mechanism makes a “connection” with the requesting user system, and
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`that once data is delivered to the transport mechanism, for that connection, it is sent to the user
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`system as fast as possible, taking into account everything that Defendants raise, including the
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`maximum capacity of the connection elements themselves, the available bandwidth, and the
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`permitted bandwidth. “As fast as the data connection … allows” requires nothing more than
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`simply handing the data to the transport mechanism. This is evident to a POSITA even without
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`reference to the specification, but is certainly reinforced by the express description at 8:38-48 (of
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`the ’824 patent; 8:36-46 of the ’594 patent).
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`4. “data rate”
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`31.
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`A POSITA would understand the term “data rate” as used the specified claims as
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`referring to the rate at which the connection between the server and the user system operates.
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`The claims specify both that the data is sent as fast as this connection will allow, and that that
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`rate should also be more rapid than the playback rate. That is exactly what the specification
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`teaches, when it states (just like the claim) that (i) “The media data will be transmitted to the user
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`as fast as the data connection between the user computer and the server will allow.” 14:60-62 (as
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`to which, see point 3 above), and(ii) “the connection from the Internet to the user is faster than
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`that required for media playback.” 9:62-63. A POSITA understandsthat the latter claim
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`requirement in particular (“wherein the data connection has a data rate more rapid than the
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`playbackrate’’) flows from the need to be able to replenish the user buffer on demand,andthat to
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`do so reliably requires the connection to supply data to the user buffer faster than it is played out.
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`I declare under penalty of perjury that the foregoingis true and correct. Executedat
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`McMinnville, Oregon, U.S.A. on March 31, 2022.
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