UNITED STATES PATENT AND TRADEMARK OFFICE
`
`UNITED STATES DEPARTMENT OF COMMERCE
`United States Patent and Trademark Office
`Address: COMMISSIONERFORPATENTS
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`www.uspto.gov
`
`APPLICATION NO.
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`FILING DATE
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`FIRST NAMED INVENTOR
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`ATTORNEY DOCKET NO.
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`CONFIRMATION NO.
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`90/014,834
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`08/25/2021
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`8122141
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`125737.538655
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`8070
`
`10/05/2023
`
`7590
`ERNEST D. BUFF
`ERNEST D. BUFF & ASSOCIATES
`231 SOMERVILLE ROAD
`BEDMINSTER, NJ 07921
`
`EXAMINER
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`FERRIS III, FRED 0
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`ART UNIT
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`PAPER NUMBER
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`3992
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`MAIL DATE
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`DELIVERY MODE
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`10/05/2023
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`PAPER
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`Please find below and/or attached an Office communication concerning this application or proceeding.
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`The time period for reply, if any, is set in the attached communication.
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`PTOL-90A (Rev. 04/07)
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 001
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`

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`RECORD OF ORAL HEARING
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Ex parte WAG ACQUISITION, LLC
`
`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
`Technology Center 3900
`
`Oral Hearing Held: September 18, 2023
`
`Before JOHN A. JEFFERY, ERIC B. CHEN, and
`BRIAN J. MCNAMARA, Administrative Patent Judges.
`
`APPEARANCES:
`
`ON BEHALF OF THE APPELLANTS:
`
`RONALD ABRAMSON, ESQUIRE
`Liston Abramson LLP
`The Chrysler Building
`405 Lexington Avenue, 46th Floor
`New York, New York 10174
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`The above-entitled matter came on for hearing on Monday, September
`18, 2023, commencing at 1:00 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
`
`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 002
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
`
`PROCEEDINGS
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`JUDGE CHEN: Okay, Mr. Abramson, welcome to the board. This is
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`Judge Chen, and with me today are Judges Jeffery and McNamara. Before
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`we get started,just a few administrative matters. Number one, if you're not
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`speaking, please mute yourself. Number two -- number two, please identify
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`yourself each time you speak. This helps the court reporter prepare an
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`accurate transcript. Number three, we have the entire record before us,
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`including demonstratives.
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`If you are identifying demonstrative by page number, please provide a
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`few seconds for us to access that document. And lastly, please be aware that
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`members of the public may be listening in on this oral hearing. That being
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`said, please state your name and law form for the record.
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`MR. ABRAMSON: Ronald Abramson, Liston Abramson LLP.
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`JUDGE CHEN: Okay. Thank you, Mr. Abramson. You have about 20
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`minutes, and you may begin. And just initially for, excuse me. This is
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`Appeal Number 2023-002525. Mr. Abramson, you may begin when you're
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`ready. And we would ask that you -- we're particularly interested in the Hill
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`reference with respect to this appeal. So, if you need a few minutes to
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`organize your notes, we can provide that for you.
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`MR. ABRAMSON: Yeah, the notice I got was all three appeals
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`combined, so we're doing them one by one. Which one are we -- which one
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`is this?
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`JUDGE CHEN: Okay, this is 2023-2525. Do you have -- we can be
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`flexible here. Do you want to address -- is there any particular order you'd
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`2
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 003
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`like to proceed in?
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`MR. ABRAMSON: Well, let's just make sure we have on the table here,
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`3 we have three reexaminations that are on appeal here. And you go by the
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`patent number. There's an '839 patent, there's a '141 patent, and there's an
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`'011 patent. Let's see which appeal --
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`ruDGE CHEN: Sorry. Excuse me, okay, I'm going by appeal
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`number. So, calendar number one would be the -- is the '011 patent.
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`MR. ABRAMSON: Yeah. And then we also have the '141 and the
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`'839.
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`ruDGE CHEN: Okay, which one would you like to do first?
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`MR. ABRAMSON: I was planning on starting with the '839. And let
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`12 me tell you what I think the deal number is. It says this appearing --
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`mDGE CHEN: You're going by patent numbers; is that correct?
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`MR. ABRAMSON: Yeah--yeah. Jeez -- I don't even know what--
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`says Appeal Number --
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`mDGE CHEN: '839.
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`MR. ABRAMSON: Yeah, it says 3028. It's 2023-3028.
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`mDGE CHEN: Okay, you want to do that one first?
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`MR. ABRAMSON: Yeah, I think that's going to take the most time.
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`mDGE CHEN: 3028.
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`MR. ABRAMSON: Yes, 3028. Correct. And then --
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`mDGE CHEN: Okay. That is --
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`MR. ABRAMSON: -- by process of elimination. I don't know what
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`the last one is but --
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`3
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 004
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
`
`JUDGE CHEN: Okay, so 3028 is calendar number three, and this is --
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`that's the one with the Chen reference; is that correct? And the Chen
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`prosecution history?
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`MR. ABRAMSON: Correct.
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`JUDGE CHEN: Okay, so in the interest of flexibility, we shall begin
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`6 with Appeal Number 2023-003028.
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`MR. ABRAMSON: Thank you.
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`JUDGE CHEN: Okay, so you may begin when ready.
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`MR. ABRAMSON: Okay, so the three appeals today involve expired
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`patents. The patents and reexamination cover two separately claimed
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`embodiments derived from a common disclosure. And right now, we're
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`addressing one of those that -- that the different -- two different
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`embodiments may be referred to as push and pull. There's a common
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`concept behind the two embodiments which is in this process of streaming,
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`how do you quickly pre-establish on the client side of the connection a
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`buffer of streaming media data elements? In the simplest formulation,
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`connection to the client at about the rate that it'll be played back. Simplest
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`concept is just send it over the line at the same rate that it's going to be
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`played back, the client receives it and plays it back, and that's it.
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`JUDGE CHEN: Mr. Abramson, this is Judge Chen. Just a brief
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`question. Is push or pull actually claimed?
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`MR. ABRAMSON: No, not in those terms, no. But it's a concept that
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`underlies that's the way people refer to these things. They're not claimed
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`terms. But I'm just giving you a little background here. You know, in the
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`4
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 005
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`simplest formulation, you push things at the playback rate, everything is
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`great because client gets it at the playback rate and plays it back. But in
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`practice, over the internet, things are not that simple. The Internet -- the
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`Internet sends the constituent elements of a stream individually but sends
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`each one only on a best efforts basis.
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`So, because of that, the Internet is subject to irregularity in delivering
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`a stream of data, any stream of data. That's just inherent in the Internet. So,
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`as the '839 patent explains, it was known that having a buffer, establishing a
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`buffer on the client side to receive elements, could provide limited
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`protection against delivery disruptions like a gas tank. But that in itself
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`disruption as streaming went on was less than the size of the buffer. Once
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`you used up that buffer, you are out there without a buffer. There's no way
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`to -- there's no way to replenish it if the elements are just arriving at the rate
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`you're going to play it. Once you've used up that buffer, you're done. Any
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`further interruptions is going to result in dropout.
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`As the '839 patent explained, there were such buffers, but they were
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`not -- they were not effective for the duration of streaming. The result of
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`doing it in the prior art way was first of all, there was a startup delay to first
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`build up the client-side buffer before beginning playback and repeated
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`delays during playback for rebuffering. What was not known at the time
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`22 was a simple mechanism to establish a robust client-side buffer in the first
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`place without having a long buffering delay before playback, as well as how
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`to quickly rebuild that buffer without repeated buffering interruptions if the
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`buffer became depleted during the course of streaming.
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`5
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 006
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`The '839 patent claims a push implementation for such a
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`2 mechanism. And I'm using the word push here, just conceptually, so you
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`can separate it from the other embodiments that we'll discuss in the other
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`appeals, which we call pull. So far, we've been talking about a client-side
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`buffer. The only buffer I've mentioned so far is a client-side buffer. But the
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`'839 patent starts with preloading a buffer on the server side. What's that
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`about? In the case of a live stream, that fully loaded buffer, if you're
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`receiving a live stream, that fully loaded buffer can already exist 100 percent
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`9 when the user connects to the stream. It's just coming in continuously to a
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`broadcast station when a user connects. The server already has a full buffer
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`because the stream has been coming in live. If you're working from
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`prerecorded media and you're serving it on demand, when the player wants
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`to see a program, you do have to load the server buffer, but that can be done
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`at discrete speed, which is much faster than playback rate. It's not a
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`significant delay.
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`So, either way, live or prerecorded, it is practicable to start with a full
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`buffer and to do so with little, if any delay. So, this reexamination concerns
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`claim 2 of the '839 patent. However, by dependency, claim 1 is part of
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`claim 2. So, I will go over claim 1 first. Claim l's preamble posits both a
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`user system assumed to have a user buffer as well as a server having a server
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`buffer. Claim 1 recites as its first method step, loading the server buffer
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`22 with streaming media data elements. Per the '839 patent, the connection
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`between the server and the user will have a capacity much faster than the
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`playback rate.
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`6
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 007
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
`
`1
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`The citations are in our brief, I can refer them to you if you
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`2 want. When the user connects, the initial buffer load in this step can be sent
`over to the client side as fast as the connection will allow, as claim 1
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`states. And the next thing in claim 1, "sending an initial amount of
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`streaming media data elements to the user system and an initial sending rate
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`6 more rapid than the playback rate." And further, as recited in claim 1, the
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`initial amount, I'm quoting again, "the initial amount of streaming media
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`data elements and the initial sending rate are sufficient for the user system to
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`begin playing back the streaming media while the user buffer continues to
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`fill." That much of claim 1 takes care of the fast startup. Now we tum to
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`11 what happens after a streaming startup and claim 1 continues.
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`JUDGE JEFFERY: Counsel, excuse me. This is Judge Jeffery here. I
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`have one question about claim 1 while we're on the subject. In line 1 it says
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`a method for distributing streaming media via the interact that should be
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`Internet, right?
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`MR. ABRAMSON: Yes. Nobody ever disputed that.
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`JUDGE JEFFERY: Okay, I just want to clarify the record.
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`MR. ABRAMSON: No, thank you. Now I tum to what happens after
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`streaming startup. "thereafter," that's after this initial amount is sent faster
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`than your playback rate, to fill -- well, to get -- for the user system, the user
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`system can begin to play. Now we go, "thereafter sending further stream
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`the server buffer or moving a data window through the server buffer at about
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`the playback rate."
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`7
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 008
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`So, after that initial burst thereafter we're sending further elements at
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`about the playback rate while we're refilling the server buffer at the
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`playback rate. So it adds -- it adds, "wherein the further streaming media
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`data elements are received at about the playback rate by the user system if
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`there are no interruptions between the transmission of, excuse me, in the
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`transmission of streaming media data elements between the server and the
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`user system." So, taking together the words following thereafter describe a
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`pass-through situation after startup. In effect, a pipeline of media flowing at
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`the playback rate so long as there are no interruptions in transmission.
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`The words filling the server buffer at about the playback rate reflect
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`elements coming into this pipeline at about the playback rate. Absent
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`interruptions, these elements are passed through and then received at the
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`playback rate. This is referred -- this is referred to in specification as a
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`steady state. Specification uses the word steady state to describe that
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`situation after startup without interruptions. Finally, claim 1 recites the step
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`of the server detecting the interruptions have occurred. So, claim 1 itself
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`does not get into what to do about the interruptions.
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`Claim 2, as I said, claim 2 is a claim that's subject to this
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`reexamination. Claim 2 reads, "the method of claim 1 further comprising
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`sending to the user system unsent streaming media data elements in the
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`server buffer at a sending rate more rapid than the playback rate." A key
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`issue on this appeal is claim construction. First, let me address what's not
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`disputed, sending rate. The term sending rate. The specification states that
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`the server buffer 14 sends data by delivering it to the transport
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`25 mechanism. In column 8, Patent Owner construes sending rate to be the rate
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`8
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 009
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`at which media data elements are handed from the server buffer to the
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`server's underlying transport mechanism.
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`The Patent Owner does not understand the examiner to disagree with
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`this. There's a similar statement at page 6 of the answer where he says
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`sending elements means delivering them from the server buffer to the
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`server's transport mechanism. Don't believe there's any dispute on
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`that. Then we get to unsend streaming media data elements. And there's no
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`clear dispute on this term either, since the server buffer sends data by
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`delivering it to the transport mechanism. Unsent simply means data in the
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`server buffer that hasn't been delivered to the transport mechanism.
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`Now, what is disputed? What is actually disputed? The Patent
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`12 Owner, and I'll address this at length, but the Patent Owner position is that
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`claim 2 requires that all unsent elements that are sent from the server buffer
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`are sent at a sending rate that is more rapid than the playback rate. That is,
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`Patent Owner's position is that taking into account the undisputed meaning
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`of the term sending rate, claim 2 imposes the following further limitation on
`claim 1, which is that whenever elements in the server buffer are delivered
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`by an internal process to the transport, this handoff occurs more rapidly than
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`the playback rate.
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`The examiner's interpretation is that claim 2 is met by merely sending
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`any unsent elements at any time from the server buff er at a sending rate
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`22 more rapid than the playback rate. The examiner would interpret claim 2 as
`if it had been written the method of claim 1 further comprising sending to
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`the user system any one or more unsent streaming media data elements in
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`the server buffer at a sending rate more rapid than the playback rate. The
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 0010
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`examiner arrives at this because he contends the Patent Owner's
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`interpretation of claim 2 would contradict its parent claim, claim 1. The
`examiner argues that the parent claim, claim 1 already provides a class of
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`elements which the server deals with by sending those elements at about the
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`playback rate and that if claim 2 required that all elements were sent at a
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`sending rate more rapid than that, claim 2 would contradict claim 1. On that
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`basis he rejects Patent Owner's construction.
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`Patent Owner responds that no such contradiction exists because the
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`provisions of claim 1 that the examiner relies on to make this argument use
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`different wording to address transmission rates which in the respective
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`context of the two claims mean two different things. It is not that the same
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`12 words in the two claims mean different things, it is that different words in
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`the two claims mean different things. So ideally claim 1 limitation speaks to
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`sending further elements and claim 2 speaks to the sending rate of the
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`elements that happen to be in the server buffer from the server buffer.
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`Words in the server buffer are in claim 2, not in that clause from claim
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`1. The term sending in what has been referred to as limitation two of claim
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`1, which is the thereafter clause that I mentioned earlier, is broader and in
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`the context in which this word is used in claim 1. Sending it about the
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`playback rate which is tied to filling the server buffer at about the playback
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`rate refers to a throughput of elements during the steady state and
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`significantly, this includes elements which during the steady state are not yet
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`in the server buffer. The procession of elements in the steady state is sent at
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`the playback rate which of course matches the speed at which they are
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`arriving at the server buffer to be sent in the first place. The clause does not
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 0011
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
`
`1 use the word -- the clause in question in claim 1 does not use the word,
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`"sending rate." Clause before it dealing with the transfer of the initial buffer
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`load does use the word sending rate just like claim 2 does. But there --
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`ruDGE CHEN: Mr. Abramson, this is Judge Chen. Just a brief
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`clarification. So, unsent, is there any antecedent basis for the term unsent in
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`claim 2 and claim 1? In other words, claim 1 does not recite the term
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`unsent, does it?
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`MR. ABRAMSON: No.
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`ruDGE CHEN: Excuse me, is that no?
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`MR. ABRAMSON: That's a no.
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`ruDGE CHEN: Okay, so what -- so the unsent data in claim 2, your
`argument is that that refers to the last clause in claim 1; is that correct?
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`MR. ABRAMSON: No, my argument is it does not refer to that. It does
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`not refer to that. I'll get into that --
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`mDGE CHEN: Okay.
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`MR. ABRAMSON: -- why it doesn't refer to that. Does not refer to
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`that. It just simply refers to sending is the act of these elements in the server
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`buffer to the transport unsent or elements that haven't been handed, or
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`elements in the server buffer that haven't been handed off. That's what I'm
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`saymg.
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`mDGE CHEN: So, to clarify, you're saying that there's no --so claim
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`2 could be interpreted to modify both the last -- the last limitation in claim
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`1. The last limitation reciting the words if any interruptions and the initial
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`filling of the buff er; is that right?
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`MR. ABRAMSON: Yes, sir.
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`IPR2022-01413 - Page 0012
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`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`JUDGE CHEN: So it's both?
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`MR. ABRAMSON: Yes, all three as a matter of fact. Initial filling, the
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`further ones that are sent out to playback. And although a claim 1 doesn't
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`say what happens if things are detected, if lost or missing packets are
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`detected, but unsent means anything in the server buffer that hasn't been
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`handed to transport. It would cover all of those things.
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`JUDGE CHEN: Okay, thank you for that clarification. You may
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`continue.
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`MR. ABRAMSON: Okay, so the clause in claim 1, when it talks about
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`sending further elements at about the playback rate, doesn't use the word
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`sending rate. Clause before it does use the word sending rate just like claim
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`2 does. So, the -- it's different terminology. Sending rate is particular to
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`claim 2, and the first clause of claim 1 does not appear in the clause that the
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`examiner is focusing on. It means a different thing.
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`So, in both cases where the words sending rate more rapid than the
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`playback rate are used, which is for the initial amount in claim 1 and in
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`claim 2, it is tied to the sending rate of elements that are in the server
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`buffer. Claim 1, the first thing happens is we load the server buffer and
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`claim 2 actually recites in the server buffer. The rate of handing those
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`elements to the server's transport mechanism. Thus, the throughput of the
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`stream, looking at the moving set of elements, including those that are not
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`yet in the server buffer, may be at about the playback rate.
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`Indeed, it'll be at about the playback rate because the very same
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`clause of claim 1 recites that these elements only arrive at the server buffer
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`at the playback rate. So I could analogize this to a class of school kids out
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`IPR2022-01413 - Page 0013
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`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`on an organized walk across city blocks. They move across the blocks at a
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`steady pace and pacing, but momentarily pause and then go more quickly to
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`get across the street. Their transit, or overall transit, is at a steady pace, but
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`the street.
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`To take the analogy further, say one kid trips on the curb at the far
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`side, causing the queue to back up behind him into the street. When he gets
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`up and out of the way the other kids in the street all follow quickly to clear
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`out the crosswalk. That's a rough analogy to what process we're referring
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`to. Turning back to our streaming media, the elements that land in the server
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`buff er during the steady state part of the process may at the same time be
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`dispatched therefrom at the full line rate of the transport mechanism. In the
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`claim 1 context, this is not contradictory because where the line speed is
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`faster than the rate of arrival of the elements, there will simply be gaps of
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`time between the arrival of elements at the feed of the server buffer.
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`Claim 1 does not address whether the body of each element is sent out
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`of the buffer at or faster than the playback rate. Claim 2 focuses on this and
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`does address it. It says that in the case of claim 2, each element that lands in
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`the server buffer is delivered to the transport more rapidly than the playback
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`rate. In other words, its elements are, for example, for instance, if you had
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`1,500 byte elements, which would be 12,000 bits and the media is encoded
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`at 24,000 bits per second, this is an example out of the patents, there'd be
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`two elements per second at normal playback. The stream arrives at two
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`elements which 3,000 bits per second into the server buffer.
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`13
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 0014
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`

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`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`Under claim 1, the elements could be handed to the transport, could be
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`handed to the transport at the same 3,000 bits per second, just like the kids
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`rushing across the street. But they can also be handed to the transport in any
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`speed higher than that. In other words, they can arrive at 3,000 bits per
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`second and you can send them out of the buffer at 3,000 bits per
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`second. But the rate limiting step here is the arrival at the buffer. You can
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`send it at any faster speed than that. Claim 2 says, in fact, to send it at faster
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`speeds than that. Claim 1 does not specify that.
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`Claim 2 further requires, in our example, that the elements, once they
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`are in the server buffer, be handed to the transport more rapidly than the
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`playback rate. So, there's no contradiction there. The Patent Owner argues
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`that the examiner's overly broad interpretation of claim 1 --
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`JUDGE CHEN: Mr. Abramson, this is Judge Chen. You've passed
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`about 20 minutes. Just also a question on one of the examiner's
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`rejections. The examiner stated that -- stated that cited a portion of the Chen
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`reference stating that there could be packet drops in interruptions and when
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`these interruptions are detected, I'm paraphrasing, of course, that these
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`packets are sent as quickly as possible and cites to a portion in the Chen file
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`history and refers to the embodiment of the -- I'm going to make sure I get
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`this term correct. But the watermark analogy. Do you have any
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`argumentation as why that rejection is improper?
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`MR. ABRAMSON: Yeah, because it depends upon the -- the claim
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`construction that it depends upon is that it's sending some elements faster
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`than the playback rate. And the problem with that, as I was just about to get
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`into, is that construction, some elements doesn't distinguish claim 1 because
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 0015
`
`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`claim 1 already sends some elements faster than the playback rate. There's
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`just no -- there's no narrower -- that construction is no narrower than claim
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`1. You've picked a different example to infringe it, but that construction
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`doesn't comply with section 112 because it does not further narrow claim 1.
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`Examiner tries to get around this by saying, well, it has to be limited
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`to other elements that are already recited in claim 1. But he hasn't cited any
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`basis for that. He tried to make an argument based on the prosecution
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`history, which talks about original claim 2. The problem with that is that the
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`issued claim 2 was original claim 3, which depended from claim 1, not from
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`claim 2. So, it's very clear from that sequence of events that claim 2 is not
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`directed at the unsent elements in claim 1. Examiner acknowledged that at
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`the beginning. It's just not -- that's not -- he later --
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`ruDGE CHEN: Mr. Abramson, this is how I'm seeing the examiner's
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`position. In claim 1, once there are interruptions detected, there is no
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`recitation of how quickly those are sent to the client; is that correct?
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`MR. ABRAMSON: There's no recitation of anything -- of it doing
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`anything with those. It says detecting and then that's it. There's no
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`recitation in claim 1 of it doing anything with those.
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`mDGE CHEN: Okay, so you're just merely detecting it and then
`nothing happens, that's claim 1?
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`MR. ABRAMSON: As far as claim 1 goes.
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`mDGE CHEN: Okay, but one of the examiner's interpretations is that,
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`23 well, once we detect it, we're going to send them as quickly as possible. I
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`24 mean, why is that improper?
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`MR. ABRAMSON: Because that's only sending some elements faster
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`15
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 0016
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`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`than the playback rate. And if you interpret claim 2 to say that the further
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`limitation it imposes is sending some elements faster than the playback rate,
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`that does not distinguish claim 1.
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`JUDGE CHEN: Okay. Now is there a recitation that in claim 2 that you
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`have to send all the elements?
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`MR. ABRAMSON: Yeah, that's our -- that's our interpretation is that
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`you have to send all the elements, otherwise you have to send all the
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`elements. And the examiner is trying to come up with an interpretation
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`9 where you don't have to send all the elements, but his formulation does not
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`distinguish claim 1.
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`ruDGE CHEN: Now, is that-- now is that interpretation of all the
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`elements being sent, is that based on the Federal Circuit remand decision for
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`a similar case?
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`MR. ABRAMSON: No. No, the remand decision was on the '141.
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`JUDGE CHEN: Okay, just to be clear.
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`MR. ABRAMSON: Had nothing to do with it. Then that was the pull
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`limitation. Totally different animal.
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`JUDGE CHEN: Okay, where, sorry. Where in claim 2 is it say sending
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`all?
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`MR. ABRAMSON: That is implicit in claim 2.
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`JUDGE CHEN: But it is unrecited? But is it unrecited?
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`MR. ABRAMSON: It is unsent in the unsent. It says, "the best of claim
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`1 further comprising sending unsent elements in the server buffer faster to
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`playback rate." If you construe that to mean what the examiner says it
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`25 means, which is to send any elements from the -- from the server buffer
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`Petitioner's Exhibit 1117
`IPR2022-01413 - Page 0017
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`

`

`Appeal 2023-002525 (Reexamination Control 90/014,833)
`Appeal 2023-003028 (Reexamination Control 90/014,836)
`Appeal 2023-003319 (Reexamination Control 90/014,834)
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`1 during the course of transmission faster than the playback rate that does not
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`distinguish claim 1. You need a construction, you know, in order to reject
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`this claim over a piece of prior art you need a construction of the claim to
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`begin with, and he doesn't have one. The only construction he has that
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`ensnares Chen is a construction that also is coextensive with claim 1.
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`ruDGE CHEN: All right, so the way I'm seeing one of the examiner's
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`rejections is that the very last limitation of claim 1 that recites, if any
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`interruptions, you previously stated that nothing is done. There's no
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`recitation as to what happens once these interruptions a