Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`WAG ACQUISITION, L.L.C.,
`
`Plaintiff,
`
`vs.
`
`GOOGLE LLC and YOUTUBE, INC.,
`
`Defendants.
`
`Case No.: 6:21-cv-00816-ADA
`
`JURY TRIAL DEMANDED
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`DEFENDANTS GOOGLE LLC AND YOUTUBE, LLC’S REPLY
`CLAIM CONSTRUCTION BRIEF
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`
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`
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`Petitioners' Exhibit 1044
`Page 0001
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`

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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 2 of 14
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`TABLE OF CONTENTS
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`Page
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`
`
`I. 
`II. 
`
`B. 
`
`C. 
`D. 
`
`INTRODUCTION............................................................................................................ 1 
`DISPUTED CLAIM TERMS ......................................................................................... 1 
`“as required to maintain about a predetermined number of media data
`A. 
`elements” (ʼ594 Patent, cls. 1, 6, 11) ..................................................................... 1 
`“a predetermined number of media data elements” (ʼ594 Patent, cls. 1, 6,
`11) .......................................................................................................................... 3 
`“the media source” (ʼ594 Patent, cls. 1, 6, 11) ...................................................... 5 
`“each sending is at a transmission rate as fast as the data connection
`between the server system and each requesting user system allows” (ʼ824
`Patent, cls. 1, 5, 9; ʼ636 Patent, cls. 1, 5, 9) ........................................................... 5 
`“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 therein”
`(ʼ824 Patent, cls. 1, 5, 9; ʼ636 Patent, cls. 1, 5, 9) ................................................. 7 
`“supplying, at the server system, media data elements representing the
`program” (ʼ824 Patent, cls. 1, 5, 9; ʼ636 Patents, cls. 1, 5, 9) ............................... 7 
`III.  CONCLUSION ................................................................................................................ 8 
`
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`E. 
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`F. 
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`
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`i
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`Petitioners' Exhibit 1044
`Page 0002
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 3 of 14
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`TABLE OF AUTHORITIES
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`
`Page
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`
`
`
`Cases
`
`WAG Acquisition, L.L.C. v. Amazon.com, Inc.,
`No. 6:21-cv-00815-ADA, Dkt. 37 (W.D. Tex. Mar. 11, 2022) .................................................5
`
`CUPP Cybersecurity, LLC v. Trend Micro, Inc.,
`No. 3:18-cv-1251-M, 2021 WL 5865393 (N.D. Tex. Dec. 10, 2021) .......................................6
`
`Application of Eltgroth,
`419 F.2d 918 (C.C.P.A. 1970) ...................................................................................................6
`
`K-2 Corp. v. Salomon S.A.,
`191 F.3d 1356 (Fed. Cir. 1999)..................................................................................................4
`
`Media Rights Techs., Inc. v. Capital One Fin. Corp.,
`800 F.3d 1366 (Fed. Cir. 2015)..............................................................................................5, 6
`
`Nautilus, Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ...................................................................................................................2
`
`Pall Corp. v. Micron Separations, Inc.,
`66 F.3d 1211 (Fed. Cir. 1995)....................................................................................................3
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005)..............................................................................................1, 4
`
`Statutes
`
`35 U.S.C.
`
`§ 112, paragraph 1 ............................................................................................................................6
`§ 112, paragraph 2 ............................................................................................................................6
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`
`
`
`
`ii
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`Petitioners' Exhibit 1044
`Page 0003
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 4 of 14
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`Table of Disputed Terms and Constructions
`
`Term
`“as required to maintain about
`a predetermined number of
`media data elements”
`
`(ʼ594 Patent, cls. 1, 6, 11)
`“a predetermined number of
`media data elements”
`
`(ʼ594 Patent, cls. 1, 6, 11)
`“the media source”
`
`(ʼ594 Patent, cls. 1, 6, 11)
`a
`“each
`sending
`is
`at
`transmission rate as fast as the
`data connection between the
`server
`system
`and
`each
`requesting user system allows”
`
`(ʼ824 Patent, cls. 1, 5, 9;
`ʼ636 Patent, cls. 1, 5, 9)
`“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
`therein”
`
`(ʼ824 Patent, cls. 1, 5, 9;
`ʼ636 Patent, cls. 1, 5, 9)
`server
`“supplying, at
`the
`system, media data elements
`representing the program”
`
`(ʼ824 Patent, cls. 1, 5, 9;
`ʼ636 Patents, cls. 1, 5, 9)
`
`Google’s Construction
`Indefinite
`
`WAG’s Construction
`Plain and ordinary meaning
`
`“a specified number of media
`data elements, set prior to the
`start of playback of the audio
`or video program”
`“the storage device or live
`source device from which the
`streaming material originates”
`Indefinite
`
`Plain and ordinary meaning
`
`Plain and ordinary meaning
`
`Plain and ordinary meaning
`
`Plain and ordinary meaning
`
`Plain and ordinary meaning
`
`“all of the media data
`elements that are sent by the
`server system to the
`requesting user systems are
`sent from the same data
`structure under the control of
`the server system and in the
`same format as the media
`data elements were first
`stored therein”
`
`“creating, at the server
`system, media data elements
`representing the program”
`
`iii
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`Petitioners' Exhibit 1044
`Page 0004
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 5 of 14
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`
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`I.
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`INTRODUCTION
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`Under the guise of “plain and ordinary meaning,” Plaintiff WAG Acquisition L.L.C.
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`(“Plaintiff”) proposes constructions that conflict with the claims as a whole and that find no support
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`in the specification. For the terms amenable to construction, Defendants Google LLC and
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`YouTube, LLC (collectively, “Google”) proposed constructions that are not only grounded in the
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`language of the claims, but also align with the intrinsic record. For these reasons, as demonstrated
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`below, Google’s constructions should be adopted. Phillips v. AWH Corp., 415 F.3d 1303, 1316
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`(Fed. Cir. 2005) (en banc) (construction that “stays true to the claim language and most naturally
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`aligns with the patent’s description of the invention will be, in the end, the correct construction.”).
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`Google further identified certain terms that are indefinite because they are subject to
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`multiple potential interpretations, where the patent specification provides no guidance on which
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`interpretation is correct. The parties have agreed to the correct interpretation of one of the terms
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`(“all of the media data elements . . . were first stored therein”), but for the other two terms, Plaintiff
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`does not dispute the fact that the terms are subject to multiple interpretations, nor does Plaintiff
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`identify any objective boundaries in the patent specification that define the scope of these terms.
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`Instead, Plaintiff essentially argues that the lack of objective boundaries should be excused in this
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`case. Plaintiff’s arguments are inconsistent with the patent claims, the patent specification, and
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`the law and should be rejected by the Court.
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`II.
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`DISPUTED CLAIM TERMS
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`A.
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`“as required to maintain about a predetermined number of media data
`elements” (ʼ594 Patent, cls. 1, 6, 11)
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`For this term, Plaintiff fails to show that the specification or prosecution history gives a
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`guidepost or any other objective bound for what range of media data elements satisfies “about a
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`predetermined number.”
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`1
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`Petitioners' Exhibit 1044
`Page 0005
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 6 of 14
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`First, Plaintiff attempts to explain away the ambiguity the term “about” inserts into the
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`claims by blaming it on the inherent limitations of language. (Dkt. 39 (“Pl. Br.”) at 7-8.) While
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`there are inherent limitations of language and absolute precision is sometimes unattainable, the
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`definiteness requirement still “mandates clarity.” Nautilus, Inc. v. Biosig Instruments, Inc., 572
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`U.S. 898, 910 (2014). When Plaintiff chose to use the term “about” in the claims, it was required
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`to provide context in the claims or the specification as to what range “about” encompasses.
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`Plaintiff’s failure to do so has nothing to do with inherent limitations of language and cannot be a
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`basis for avoiding the definiteness requirement.
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`Second, Plaintiff argues that the uncertainty created by the term “about” is necessary to
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`account for the inherent variability of the underlying technology. (Pl. Br. at 8.) In particular,
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`Plaintiff contends that due to variable bit rate encoding the “size of the elements can vary (within
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`bounds),” and therefore, the target buffer levels must be approximate. (Id.) As an initial matter,
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`Plaintiff fails to identify any support in the specification that the number of media data elements
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`stored in the buffer is related to the size of each element, and the specification does not discuss the
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`size of media data elements when determining the number to be maintained in the buffer. Even if
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`the size of the media data elements impacts the number of media data elements to be maintained
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`in the buffer, this only adds further ambiguity to the import of “about” in this context. Indeed,
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`Plaintiff’s argument just adds another layer of approximation and guess work for persons of
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`ordinary skill as the Plaintiff does not provide any guidance on what it means for the size of the
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`elements to vary “within bounds” and how the size of the media data elements impacts whether or
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`not the number of media data elements is “about a predetermined number.”
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`Third, Plaintiff points to the term “approximately” in the specification and argues that
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`understanding “about” to mean “approximately” renders the claim definite. Plaintiff’s argument
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`2
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`Petitioners' Exhibit 1044
`Page 0006
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 7 of 14
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`
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`is based on a mischaracterization of the law. None of the cases relied on by Plaintiff stand for the
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`proposition that “approximately” is per se a definite term. Instead, as detailed in Google’s Opening
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`Brief, the Federal Circuit instructs that when “about” or “approximately” are used to avoid strict
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`numerical boundaries, the claim language and/or specification must provide context and enough
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`certainty for a person of skill in the art to determine an acceptable range. (Dkt. 37 (“Google Op.
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`Br.” at 4-5.) Finding terms of approximation as definite requires the claim language or the
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`specification to provide adequate information to interpret the range in its “technological and
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`stylistic context.” Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995).
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`The fact that certain courts found “approximately” to be definite for specific patents that disclosed
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`the necessary context does not save Plaintiff here because the claim language and the specification
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`of the patents in this case are devoid of such guidance. Indeed, other than pointing to the term
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`“approximately” and arguing it is interchangeable with “about,” Plaintiff fails to identify any
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`context in the claims or specification, or any other modicum of certainty, for a person of skill in
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`the art to determine an acceptable numerical range that would satisfy “approximately” or “about a
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`predetermined number.”
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`Google respectfully submits that this term should be held indefinite.
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`B.
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`“a predetermined number of media data elements” (ʼ594 Patent, cls. 1, 6, 11)
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`The sole issue for this term is whether “predetermined” refers to (a) “prior to the start of
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`playback” as Google proposes, or (b) “prior to sending additional requests” as Plaintiff proposes.
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` Plaintiff does not address Google’s plain language argument, nor dispute Google’s
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`intrinsic and extrinsic evidence, as detailed in Google’s Opening Brief. (Google Op. Br. at 6-7.)
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`Instead, Plaintiff advances an argument that is based entirely on a nonsensical reading of the claim,
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`with no intrinsic or extrinsic support.
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`3
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`Petitioners' Exhibit 1044
`Page 0007
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 8 of 14
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`Focusing solely on the “sending additional requests” portion of this limitation, Plaintiff
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`argues that the “predetermined number of media data elements” must be set prior to sending each
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`request, but can vary during playing. (Pl. Br. at 10.) The claim, however, requires “maintain[ing]
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`about a predetermined number of media data elements…during playing.”1 Not only does Plaintiff
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`ignore this requirement, Plaintiff’s construction would effectively rewrite it. Rather than
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`“maintain[ing]” the predetermined number “during playing” as the claim requires, Plaintiff admits
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`that it proposes construing the claim to permit “changing the ‘predetermined’ number of media
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`data elements during the course of playback.” (Pl. Br. at 10.) Plaintiff cannot use claim
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`construction to rewrite the claim. K-2 Corp. v. Salomon S.A., 191 F.3d 1356, 1364 (Fed. Cir. 1999)
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`(“Courts do not rewrite claims; instead, we give effect to the terms chosen by the patentee.”).
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`In contrast to Plaintiff’s construction, Google’s construction stays true to the claim
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`language and is consistent with the specification. Plaintiff does not dispute that the specification
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`supports Google’s position, but argues that Google has “pointed to nothing in the intrinsic record
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`that would rise to the level of disclaimer.” (Pl. Op. Br. at 10.) Google’s argument, however, is
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`not based on disclaimer—Google’s argument is based on the plain language of the claim, read in
`
`view of the specification. This approach to claim construction is entirely proper. Phillips, 415
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`F.3d at 1315 (“[T]he specification ‘is always highly relevant to the claim construction analysis.
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`Usually, it is dispositive; it is the single best guide to the meaning of a disputed term.’”) (citation
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`omitted). Google’s construction should be adopted.
`
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`1 The disputed claim term appears in the following limitation in claim 1 of the ʼ594 Patent:
`as the received media data elements are played, the media player automatically
`sending additional requests for subsequent media data elements for storage in the
`memory of the media player as required to maintain about a predetermined number
`of media data elements in the memory of the media player during playing.
`(ʼ594 Patent, cl. 1 (emphasis added).)
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`4
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`Petitioners' Exhibit 1044
`Page 0008
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`

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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 9 of 14
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`
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`C.
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`“the media source” (ʼ594 Patent, cls. 1, 6, 11)
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`Google incorporates by reference Amazon’s arguments regarding the construction of “the
`
`media source” as “the storage device or live source device from which the streaming material
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`originates.” WAG Acquisition, L.L.C. v. Amazon.com, Inc., No. 6:21-cv-00815-ADA, Dkt. 37 at
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`3-5 (W.D. Tex. Mar. 11, 2022).
`
`D.
`
`“each sending is at a transmission rate as fast as the data connection between
`the server system and each requesting user system allows” (ʼ824 Patent, cls. 1,
`5, 9; ʼ636 Patent, cls. 1, 5, 9)
`
`For this term, Plaintiff does not dispute that a person of skill in the art would understand
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`that there are at least three different possible ways to interpret what it means for a “transmission
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`rate” to be “as fast as the data connection … allows.” This is a textbook example of indefiniteness.
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`Media Rights Techs., Inc. v. Capital One Fin. Corp., 800 F.3d 1366, 1371 (Fed. Cir. 2015)
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` (“a claim is indefinite if its language might mean several different things and no informed and
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`confident choice is available among the contending definitions” (quotes and citations omitted)).
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`Plaintiff attempts to excuse this indefiniteness issue by arguing that the different potential
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`meanings of “transmission rate” are irrelevant because the claim merely requires sending at a
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`transmission rate “as fast as the data connection … allows” regardless of what that transmission
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`rate is. (Pl. Br. at 14-15.) Plaintiff represents that this limitation is merely intended to distinguish
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`between systems that meter transmissions and those that don’t. (Id. at 15-16.) Plaintiff’s argument
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`is wrong as a factual matter because a person of skill in the art does in fact need to know the
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`“transmission rate” to evaluate the scope of the claims. For example, as explained in Dr.
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`Schonfeld’s expert declaration, for a “data connection” with a maximum speed of 56,000 bits per
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`second and an available bandwidth of 20,000 bits per second, the transmission rate “the data
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`connection … allows” could be interpreted to be: (a) 56,000 bits per second or (b) 20,000 bits per
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`second. (Dkt. 37-13 (“Schonfeld Decl.”), at ¶¶ 76-77.) Accordingly, if the server system in this
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`5
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`Petitioners' Exhibit 1044
`Page 0009
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 10 of 14
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`example is configured to transmit at 40,000 bits per second, a person of skill in the art would have
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`no way to determine whether or not it satisfies the claim limitation because s/he does not know
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`whether to compare the 40,000 bits per second to (a) 56,000 bits per second (where the server
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`system would not be covered by the claim), or (b) 20,000 bits per second (where the server system
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`may be covered by the claim).
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`Plaintiff’s characterization of the case law is also unavailing. First, Plaintiff does not cite
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`a single case supporting the proposition that a claim term that has multiple possible interpretations
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`(as the term undisputedly does here) avoids indefiniteness based on the argument that all
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`interpretations are “subsumed within the limitation.” (Pl. Br. at 14.)2 Second, Plaintiff erroneously
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`attempts to distinguish Media Rights Techs. on the basis that it concerned means-plus-function
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`limitations. The Federal Circuit’s articulation of the indefiniteness standard in Media Rights
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`Techs. is not dependent on the fact that the case concerned means-plus-function limitations, and
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`Plaintiff cannot dispute the legal standard applies here. Third, contrary to Plaintiff’s
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`characterization, this case is very similar to CUPP Cybersecurity, LLC v. Trend Micro, Inc., No.
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`3:18-cv-1251-M, 2021 WL 5865393 (N.D. Tex. Dec. 10, 2021) (finding the relevant claim
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`language indefinite). Just as in CUPP Cybersecurity, in this case there is (i) an actual question of
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`what a term means (i.e., the parties agree at least three different possible ways to interpret what it
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`means for a “transmission rate” to be “as fast as the data connection … allows”), and (ii) depending
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`on the meaning that is selected, some transmission rates will be covered by the claims and others
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`will not.
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` Google respectfully submits that a finding of indefiniteness is required.
`
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`2 Plaintiff cites Application of Eltgroth, 419 F.2d 918, 921 (C.C.P.A. 1970) for the proposition that
`the written description does not require the specification to set forth certain technical minutiae, but the
`case is limited to issues under “35 U.S.C. § 112, paragraph 1” and does not deal with the indefiniteness
`requirement under 35 U.S.C. § 112, paragraph 2. Id. at 922.
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`6
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`Petitioners' Exhibit 1044
`Page 0010
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`

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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 11 of 14
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`
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`E.
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`“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 therein” (ʼ824
`Patent, cls. 1, 5, 9; ʼ636 Patent, cls. 1, 5, 9)
`
`For this term, both parties agree the plain and ordinary meaning is set forth in Dr.
`
`Schonfeld’s declaration, which is: “all of the media data elements that are sent by the server system
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`to the requesting user systems are sent from the same data structure under the control of the server
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`system and in the same format as the media data elements were ‘first stored therein.’” (Schonfeld
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`Decl., at ¶ 82; Pl. Br. at 17 (“Google’s expert’s position on this does not differ materially from
`
`what Plaintiff understands as the plain and ordinary meaning.”).) Google believes that construction
`
`should be adopted.3
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`F.
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`“supplying, at the server system, media data elements representing the
`program” (ʼ824 Patent, cls. 1, 5, 9; ʼ636 Patents, cls. 1, 5, 9)
`
`Following basic claim construction principles, Google proposes construing “supplying” as
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`“creating.” Google proposes this construction because it is most consistent with the claim
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`language, which shows that in order to supply media data elements “at the server system,” the
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`server system must create the media data elements from the “digitally encoded stream for the audio
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`or video program” received “at the server system.” (Google Op. Br. at 14-15.) Plaintiff argues
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`that “supplying” includes receiving media data elements representing the program from “another
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`actor at an earlier time or at another place.” (Pl. Br. at 18.) As Google forecasted in its opening
`
`brief, Plaintiff’s construction renders claim language, particularly that of the ʼ636 Patent,
`
`
`3 Plaintiff is correct that Google has “a different view about the meet and confer process.” (Pl. Br.
`at 6-7.) Google understands that the purpose of the meet-and-confer process is to “meet” and
`actually “confer” about the substantive issues including positions on the parties’ proposed
`constructions. Plaintiff’s refusal to confer is exemplified by the fact that it refused to substantively
`respond to Google’s position regarding this term during the meet-and-confer, but then effectively
`agreed to it during briefing. If Plaintiff would have engaged in a meaningful meet-and-confer, it
`would have avoided the necessity for briefing this term.
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`7
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`Petitioners' Exhibit 1044
`Page 0011
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`

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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 12 of 14
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`superfluous, as the claimed server system has already received the live audio or video program
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`and the patent contains no disclosure of transmitting that live audio or video program to “another
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`actor” or “another place” to create the media data elements.
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`III. CONCLUSION
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`For the reasons set forth herein and in Defendant’s Opening and Responsive Briefs, Google
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`respectfully requests that the Court adopt its proposed constructions for the terms amenable to
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`construction, and find the remaining terms indefinite.
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`Dated: April 15, 2022
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`Respectfully submitted,
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`/s/ Sravan K. Tumuluri
`Paige Arnette Amstutz
`Texas State Bar No. 00796136
`SCOTT, DOUGLASS & MCCONNICO, LLP
`303 Colorado Street, Suite 2400
`Austin, TX 78701
`Tel: (512) 495-6300/Fax: (512) 495-6399
`pamstutz@scottdoug.com
`
`Joseph Drayton (pro hac vice to be filed)
`COOLEY LLP
`55 Hudson Yards
`New York, NY 10001
`Tel: (212) 479-6000/Fax: (212) 479-6275
`jdrayton@cooley.com
`
`Eamonn Gardner (pro hac vice)
`COOLEY LLP
`1144 15th Street, Suite 2300
`Denver, CO 80202
`Tel: (720) 566-4000/Fax: (720) 566-4099
`egardner@cooley.com
`
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`8
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`Petitioners' Exhibit 1044
`Page 0012
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 13 of 14
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`Naina Soni (pro hac vice)
`Sravan K. Tumuluri (pro hac vice)
`COOLEY LLP
`1299 Pennsylvania Ave., NW, Suite 700
`Washington, D.C. 20004
`Tel: (202) 842-7800/Fax: (202) 842-7899
`nsoni@cooley.com
`stumuluri@cooley.com
`
`Cameron C. Vanderwall (pro hac vice)
`COOLEY LLP
`3175 Hanover Street
`Palo Alto, CA 94304
`Tel: (650) 843-5000/Fax: (650) 849-7400
`cvanderwall@cooley.com
`
`Counsel for Defendants
`Google LLC and YouTube, LLC
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`9
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`Petitioners' Exhibit 1044
`Page 0013
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`Case 6:21-cv-00816-ADA Document 43 Filed 04/15/22 Page 14 of 14
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically with the
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`Clerk of Court using the CM/ECF system which will send notification of such filing to all counsel
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`of record on April 15, 2022.
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`/s/ Sravan K. Tumuluri
`Sravan K. Tumuluri
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`10
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`Petitioners' Exhibit 1044
`Page 0014
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