`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`
`– against –
`
`Plaintiff,
`
`
`WAG ACQUISITION, L.L.C.,
`
`
`
`
`GOOGLE LLC and
`YOUTUBE, INC.,
`
`
`
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`No. 6:21-cv-00816-ADA
`Patent Case
`
`
`PLAINTIFF’S SUR-REPLY CLAIM CONSTRUCTION BRIEF
`
`
`
`
`
`
`
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0001
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 2 of 14
`
`
`
`I.
`
`II.
`
`
`
`TABLE OF CONTENTS
`
`DISPUTED CONSTRUCTIONS ....................................................................... 1
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`“as required to maintain about a predetermined number of media data elements”
` ................................................. 1
`
` 3
`
` .................................................
`
`“each sending is at a transmission rate as fast as the data connection between the
`
` ................................................ 7
`
`“all of the media data elements that are sent by the server system to the
`requesting user systems are sent from the data structure under the control of the
`server system as the media data elements were first stored the
` ............................. 8
`
`F.
`
`“supplying, at the server system, media data elements representing the program”
` ....................................... 8
`
`CONCLUSION .................................................................................................... 9
`
`
`
`i
`
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0002
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 3 of 14
`
`
`
`TABLE OF AUTHORITIES
`
`Cases
`
`PAGE(S)
`
`
`Multiform Desiccants, Inc. v. Medzam, Ltd.,
` ..........................................................................................
`
`
`Oatey Co. v. IPS Corp.,
` .......................................................................................... 7
`
`
`Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd.,
` .......................................................................................... 1
`
`
`Rehco LLC v. Spin Master, Ltd.,
` ....................................................................................
`
`
`
`ii
`
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0003
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 4 of 14
`
`I.
`
`DISPUTED CONSTRUCTIONS 1
`
`A. “as required to maintain about a predetermined number of media data elements”
` (alleged i
`
` ive Brief, “about” is interpreted in the technological
`
` ogical facts. See Ortho-McNeil Pharm., Inc. v.
`
`Caraco Pharm. Labs., Ltd. .
`
`The purpose of maintaining “about a predetermined number of media data elements” in
`
`the user device buffer is clear. It is to ensure continuous playback.
`
`disclosure encompassing different types of media elements that may be queued up in a buffer,
`
`which could add up to aggregate totals that can vary, within bounds
`
`understood by a person of ordinary skill in the art.
`
`provided testimony regarding how a person of ordinary skill in the art would read this term in the
`
` -1 ¶¶ 27-.
`
` See P -67
`
`(“
`
`
`
`simple sounds, silence, or still scenes. The specification states: “Statements in this
`
`
`
` -encoded data may be involved.” Id., -6.
`
` Patent, the of the invention is to ensure “continuous and
`
`uninterrupted playback. P 6-12. This encompasses variably as well as constant
`
`encoded media, and the claims deal with this factor as well.
`
`
`1 WAG contends that, unless otherwise noted, the Disputed Terms may be construed consistently
`across the Asserted Patents.
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 1
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0004
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 5 of 14
`
` esponsive Brief, the purpose of the buffers Patent,
`
`including the user-side buffer, is to ensure a steady flow of media for continuous playback. The
`
`disclosure states:
`
`As d
`
`in the users buffer.
`
`Id., -18. “A the claim term “about.” The player seeks to keep
`
`
`
`range in this process, because the size of the individual data elements in the buffer can vary. This
`
`consequence yields the “about.”
`
`Depending on the encoding scheme, there are typical, known bounds to the variation
`
`between bitrates in complicated / high bitrate portions of the media, such as the “action scenes”
`
`versus less complicated / low bitrate portions of the media, such as still scenes. The differential is
`
`a result of the encoding and is known to a POSITA, or easily determined from the specification
`
`for the encoding scheme or a sampling of typical content so encoded. This is the basis for the
`
`variability required in the “about a predetermined number of media data elements,” and it is a
`
`well-understood variation.
`
`Google makes the argument that the number of media data elements stored in the buffer
`
`is not necessarily related to the size of each element. This may be true if one is free to arbitrarily
`
`shrink the encoding, but this directly reduces reproduction quality. In the real world, where
`
`quality of the presentation is also , the size and number of elements are
`
`obviously interrelated, as the entire purpose is to maintain a buffer sufficient to avoid running out
`
`of media due to irregular reception, while maintaining the highest quality possible. This is why
`
` n it away by contrived
`
`argument.
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 2
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0005
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 6 of 14
`
`Thus, i
`
`“about” has known bounds, based on the variability of the size of the media data elements due to
`
`
`
`A POSITA would understand this term. See Teruya Decl. ¶¶ 27-
`
`B.
`
`The dispute as to “predetermined” is before what event or step the number has to be
`
`determined. limiting argument.
`
` the conclusion that predetermined must be determined
`
`before playback and that the predetermined number cannot be changed during the course of
`
`playback. Patent is so limiting.
`
` Patent, “predetermined” is recited as a target,
`
`the media player “sending additional requests for subsequent media data elements for storage in
`
`the memory of the media player.” See The claim language requires nothing
`
`more than that the number is determined before the sending of the additional requests.
`
`Nothing in the specification or claims requires that the number be determined before the
`
`start of playback. Google cites language from the specification (id., - about the user
`
`player storing “a predetermined number” of elements and then
`
`the predetermined number,” and “the” latter predetermined number must be the same number as
`
`the predetermined number save. This, however, fails to establish that the predetermination must
`
`be before the start of playback.
`
`Furthermore, nothing the foregoing nor anything else in the claim language or the
`
`specification limits the predetermined number to having to remain constant throughout the
`
`course of playback. wording of “a” as opposed to “the,” in “to maintain about
`
`a predetermined number,” does not read as limited to one predetermined number.” See,
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 3
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0006
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 7 of 14
`
`e.g., Rehco LLC v. Spin Master, Ltd. “[A]s a general
`
` 01
`
`Communique Lab., Inc. v. LogMeIn, Inc. Literally,
`
`reference to “a” predetermined number can denote any determination made any time prior to
`
`whatever it is that is referencing it, in this case, the action the user system performs in sending
`
`each request, so as to maintain such a “predetermined number.”
`
`The language of the claim speaks thus for itself and requires no construction.
`
`The plain and ordinary meaning for this term should therefore be adopted.
`
`C. 2
`
`
`
`commonly understood to refer to a facility from which something comes or can be obtained. As
`
` i.e., any
`
`upstream source from which media comes.
`
`For methods and systems for a “media player to receive and play an audio or video
`
`
`
`wherever that player gets its media, regardless of where the media originated. That is the plain
`
`meaning of the term media source – the source of the media for the player in question.
`
` WAG Acquisition, L.L.C. v. Amazon.com, Inc., No.
`
`6:21-cv--ADA, Dkt. No. at 1 -writing the
`
` o the player. The player is not at all
`
`
`
`2
` Opening Claim Construction Brief. See
`(citing WAG Acquisition, L.L.C. v. Amazon.com, Inc., No. 6:21-cv--ADA, Dkt. No. 37 at
`3- ,
`for the sake of clarity,
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0007
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 8 of 14
`
`
`
`where it gets the media to play.
`
`
`
`media does not reflect the ordinary meaning of the word “source,” but rather a special, limited
`
`interpretation.
`
`However, any special meaning assigned to a term “must be sufficiently clear in the
`
`specification that any departure from common usage would be so understood by a person of
`
` Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d
`
`
`
`Amazon argues that the specification effectively redefined the term “source” as a result
`
`of having references to a server that captures data from a live performance as a “media source.”
`
`
`
`source as a “media source” does not constitute a limiting definition of the term.
`
`Amazon would have the Court lose sight of the fact that the disclosure refers to two types
`
`
`
` - ples of two types of sources
`
`
`
`of media to user computer 18, as well as computer system 28, which originates live content and
`
`serves as a source to server 12. Id. -67. In the case of pre-recorded content, the description
`
`states that the server computer simply reads it from disk. Id., 8:2.
`
`The same disclosure goes on to refer to server 12 as “transmit[ting] the media data to one
`
`or more user computers 18.” Id. - (e.g., id., 11:7-, the disclosure also
`
`refers to server 12 as a “source server,” clearly a usage of “source” in its ordinary sense, not
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0008
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 9 of 14
`
`limited as Amazon argues. Arguing that a “source server” that transmits media data to user
`
`computers is not a “media source” to those computers is splitting hairs far too finely for a
`
`limiting claim construction, especially one based on importing a limitation from the
`
`specification.
`
`Further, specifically with regard to the pull embodiment, the specification refers to a
`
`“media source” as a facility that performs “sequentially numbering the media data elements.” Id.,
`
`- -67, it is “[t]he server buffer manager, or
`
`the media source” that does this numbering—making clear that in the case of prerecorded media
`
`on disk, there need not be a separate “media source” that originates data. Id. In either case
`
`
`
`user computer transmits a request to the server to send one or more data elements, specifying the
`
`serial numbers of the data elements. The server responds by sending the requested data
`
`elements.” Id. -
`
`response by the server sending the same—with the “server” thereby acting as a “source” of the
`
`media to the user computer, as that term is ordinarily understood.
`
` e.g., id. -67,
`
`-
`
` See also id.,
`
`-
`
`of the media data, such as by a connection to a radio station. -
`
`embodiment, and stating that “the server may operate by … receiving requests from the user
`
`
`
` - -
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 6
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0009
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 10 of 14
`
` - server receives the media from a real-time
`
` -2, 8:36-
`
`limit the claims to the
`
`
`
`contrary” (Oatey Co. v. IPS Corp. - s
`
`
`
`
`
` utweigh the numerous intrinsic
`
`indicators that the claims in question cover a process of pull-based streaming from any type of
`
`Internet source.
`
` -recorded media. Where is it
`
`“originated” for purposes of this claim (and why would it be material so long as the server can
`
`
`
`
`
`from the specification into the claims.
`
`D. the
`
`
`
` esponsive Brief, the plain meaning of this term is clear. The term
`
`simply means, as stated in the words of the limitation itself, that each sending is as fast as the
`
`connection allows. This is in contrast to prior art systems that meter or slow down the sending
`
`rate, generally to the playback rate. See :60- Here, the sending rate between the
`
`server system and each requesting user system is as fast as the connection allows / as fast as
`
`possible.
`
`An analogy is to a car, using the term “floor it.” It is clear.
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 7
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0010
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 11 of 14
`
`Google points to disclosures about theoretical highest speed of a connection, actual
`
`highest speed of a connection, and average speed of a connection. These are all beside the point
`
`for this sending limitation. The point is that each sending is as fast as possible, with no metering
`
`of the transmission once the data is sent. esponsive Brief, discussing
`
`the delivery of the data to the TCP transport mechanism. See - Teruya Decl.
`
`¶ 30.
`
`There is no indefiniteness here. The sending is as fast as the connection will allow, in
`
`contrast to prior art systems where the media server software metered the sending rate by, e.g.,
`
`limiting sending to the playback rate.
`
`This term should be given its plain and ordinary meaning.
`
`E. “all of the media data elements that are sent by the server system to the requesting
` the server system
` aims
`
`
`WAG agrees with Google on the construction of this term. See Google
`
`F.
` s
`
`Corresponding to its Patent must request data
`
`only from a server that “originates” the media data elements, Google argues, with respect to the
`
`server- - claims, that “supplying” needs to be re-written as
`
`“creating” because the claimed server systems must create the media data elements. However,
`
`the claimed systems do not need to themselves create the media data elements, as these can be
`
`received from other servers. See, e.g., “source server 12” (referred to as such, e.g., Patent,
`
`11:7- Patent, 11:11-23 is also recited as receiving media data “in real time”
`
` computer system 28 “at a broadcast media source, such as a radio station.”
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 8
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0011
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 12 of 14
`
`Patent, 12:63-66 Patent, 12-62. Or the data can “from a stored file on the source server
`
`12.” e.g., Patent, 11:21-22 Patent, 11:16-.
`
` further assertion that “the patent contains no disclosure of transmitting that live
`
`audio or video program to ‘another actor or ‘another place to create the media data elements”
`
`(Google r. a is simply incorrect. See Patent, 12:60-67 (“media source may be
`
`separate from the server 12 … can be physically collocated … or it can be remote … such as a
`
`computer in a data center receiving digitized audio (emphasis
`
`.
`
` ying” can only mean “creating” because (per the
`
` only receives a digitally encoded stream, in which the media data elements
`
`may not yet have been “created,” is similarly off base. The mere fact that the server has received
`
`some digitally encoded feed—even one that already contains the media data elements that will be
`
`distributed—does not make “supplying” the elements at the server redundant. It only means that
`
`the server has to make the elements available (e.g.,
`
`
`
`them to users. a further requirement of “creating” into “supplying” is unwarranted. 3
`
`II.
`
`CONCLUSION
`
`For the foregoing reasons, the Court should construe each of the above-noted limitations
`
`to have its plain and ordinary meaning, which interpretation is consistent with the internal
`
`language of the claims themselves and the specification.
`
`
`
`
`
`
`3 that media data elements must be “created” somewhere, this “creating,” in itself,
`is not a recited claim step. Supplying could relate to creating but does not equate to creating.
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0012
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 13 of 14
`
`Dated: April , 2022
`
`
`
`
`
`
`
`HALEY & OLSON, P.C.
`
`
` -3336
` -6823
`By: /s/ Brandon R. Oates
`
`
`Email: boates@haleyolson.com
`
`
`OF COUNSEL:
`LISTON ABRAMSON LLP
`The Chrysler Building
` th Floor
`
` -1630
` Admitted pro hac vice
`David G. Liston (Admitted pro hac vice
`Ari J. Jaffess (Admitted pro hac vice
` Admitted pro hac vice
` Admitted pro hac vice
`Gina K. Kim
`Email: docket@listonabramson.com
`
`
`Attorneys for Plaintiff WAG Acquisition, L.L.C.
`
`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 10
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0013
`
`
`
`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 14 of 14
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies that the foregoing document was filed electronically with the
`
`
`
`counsel of record on April , 2022.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`/s/ Brandon R. Oates______
` B
`
`
`
`IPR2022-01228
`EXHIBIT 1014 - PAGE 0014
`
`