1. My name is Henry HouhKevin Jeffay, and I have been retainedasked by counsel for Thethe parties
`
`Walt Disney Company, Disney Streamingrequesting this review, Amazon.com, Inc., Amazon Web
`Services, Inc., and
`
`Amazon.com Services LLC, Hulu LLC, and Netflix
`Inc. (collectively "Petitioner") to analyze U.S. Patent No.
`
`9,742,824 (the '"824 patent") (EXl00l) and to provide my opinions regarding the
`
`patentability of claims 1-12 of the '824 patent.
`
`2. I am being compensated at my normal consulting rate of $650 per
`hour for my time. MyThis compensation is not
`
`contingent on the upon my performance, the conclusions I reach in my analysis, the
`
`outcome of this
`proceeding matter, or of any proceedings relatingissues involved in or related to the '824 patentthis
`matter.
`
`II. BACKGROUND AND QUALIFICATIONS
`
` * * * * *
`
`III. MATERIALS CONSIDERED
`
`2219. In preparing this declaration, I reviewed the '824 patent, including the
`
`claims of the patent in view of the specification, and I have reviewed the prosecution
`
`prosecution history of the '824 patent and numerous prior art and technical references from and
`
`before the time of the alleged invention. Of the materials cited as anThese references are discussed
`below.
`
`exhibit to the '824 patent IPR petition, I reviewed the following:
`Exhibit
`1001
`1003
`1004
`1005
`1006
`1007
`1008
`1015
`1016
`1017
`Description
`U.S. Patent No. 9,742,824
`File History of20 U.S. Patent No. 9,742,824
`U.S. Patent 6,389,473 to Carmel et al.U.S. Patent No. 8,122,141 to Price
`Final Written Decision, Web Power v. WAG Acquisition, LLC,
`
`WAG, Exhibit 2009
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`

`

`IPR2016-01238, Paper No. 22 (Dec. 26, 2017)
`WAG
`Acquisition, LLC, IPR2016-01238, Paper No. 28 (July 16, 2020)
`U.S. Patent No. 7,529,806 to Shteyn
`Plaintiffs Responsive Claim Construction Brief, No. 6-21-cv-
`00815, Dkt. No. 38 (WDTX)
`Declaration of Keith J. Teruya, No. 6-21-cv-00815, Dkt. No.
`38-1 (WDTX)
`U.S. Patent No. 6,728,763 to Chen
`1018
`1019
`1020
`1021
`1022
`1023
`1024
`1025
`IETF RFC793 published in September 1981.
`TCP/IP Illustrated, Volume 1 by W. Richard Stevens published
`in 1994.
`U.S. Patent No. 6,848,004 to Chang
`WO1997044942 to Kliger
`U.S. Patent No. 6,668,088 to Werner et al.
`U.S. Patent No. 5,533,138 to Kim et al.
`U.S. Patent No. 5,469,212 to Lee
`U.S. Patent No. 6,314,137 to Ono et al.
`23. Petitioner's counsel has asked me to consider whether certain
`
`references disclose or suggest, alone or in combination, the features recited in certain
`
`certain claims of the '824 patent. I have also been asked to consider the state of the art and
`
`the prior art available before the time of the alleged invention of the '824 patent. My
`
`opinions are provided in this declaration.
`
`2421. My opinions in this declaration are based on my review of the
`
`documents above, my understanding as an expert in the relevant field, and my
`
`education, training, research, knowledge, and personal and professional experience.
`
`experience.
`2522. To my knowledge, I have no financial interest in Petitioner. Counsel
`
`for Petitioner has informed me that WAG Acquisition, LLC purports to own the '824
`
`'824 patent. To the best of my knowledge, I have no financial interest in WAG
`
`Acquisition, LLC and, to my recollection, have had no contact with WAG
`
`Acquisition, LLC or the named inventor of the '824 patent, Harold Edward Price.
`
`To the best of my knowledge, I do not have any financial interest in the '824 patent.
`
`WAG, Exhibit 2009
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`

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`patent.
`2623. To the extent any mutual funds or other investments that I own have a
`
`financial interest in the Petitioner, the Patent Owner, or the '824 patent, I am not
`
`aware of, and do not control, any financial interest that would affect or bias my
`
`judgment.
`
`IV. LEGALSTANDARDS
`
`2724. Petitioner's counsel has informed me that, in an inter partes review
`
`proceeding, a patent claim may be deemed unpatentable if it is shown by a
`
`preponderance of the evidence that the claim was either anticipated by a prior art
`
`patent or publication or rendered obvious by one or more prior art patents or
`
`publications.
`
`2825. Petitioner's counsel has informed me that a claim is unpatentable if the
`
`differences between the subject matter of the patent and the prior art are such that
`
`the subject matter as a whole would have been obvious to a person of ordinary skill
`
`in the art, or a "POSIT A", at the time of the invention., a "POSIT A."
`
`2926. Petitioner's counsel has informed me that a determination of whether a
`
`claim would have been obvious should be based upon several factors, including the
`
`following:
`
`• The level of ordinary skill in the art at the time the application was filed;
`
`• The scope and content of the prior art; and
`
`• What differences, if any, existed between the claimed invention and the prior
`
`art.
`
`3027. Petitioner's counsel has informed me that a single reference can render
`
`a patent claim obvious if any differences between that reference and the claims
`
`would have been obvious to a person of ordinary skill in the art. Alternatively, the
`
`teachings of two or more references may be combined in the same way as disclosed
`
`in the claims, if such a combination would have been obvious to one having ordinary
`
`skill in the art. In determining whether a combination based on either a single
`
`reference or multiple references would have been obvious, I understand from
`
`WAG, Exhibit 2009
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`Petitioner's counsel that it is appropriate to consider the following factors:
`
`• Whether the teachings of the prior art references disclose known concepts
`
`combined in familiar ways, and when combined, would yield predictable
`
`results;
`
`• Whether a POSIT A could implement a predictable variation, and would see
`
`the benefit of doing so;
`
`• Whether the claimed elements represent one of a limited number of known
`
`design choices, and would have a reasonable expectation of success by those
`
`skilled in the art;
`
`• Whether a person of ordinary skill would have recognized a reason to combine
`
`known elements in the manner described in the claim;
`
`• Whether there is some teaching or suggestion in the prior art to make the
`
`modification or combination of elements claimed in the patent; and
`
`• Whether the innovation applies a known technique that had been used to
`
`to improve a similar device or method in a similar way.
`
`3128. Petitioner's counsel has informed me that a POSITA has ordinary
`
`creativity and is not an automaton.
`
`3229. Petitioner's counsel has informed me that all prior art references are to
`
`be looked at from the viewpoint of a POSIT A.
`
`3330. Petitioner's counsel has informed me that, in considering obviousness,
`
`it is important not to determine obviousness using the benefit of hindsight derived
`
`from the patent being considered, and that obviousness is analyzed from the
`
`perspective of a POSIT A at the time of the invention.
`
`V. OVERVIEW OF THE '824 PATENT
`
`3431. The '824 patent, titled "Streaming media delivery system"," was filed
`
`on October 3, 2016, and issued on August 22, 2017.
`
`3532. The '824 patent issued from U.S. Patent Application No. 15/283,578
`
`('"578 application"), filed on October 3, 2016. The '578 application is a continuation
`
`of Application No. 13/815,040, filed on Jan 25, 2013, which is a continuation of
`
`WAG, Exhibit 2009
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`

`

`Application No. 13/385,375, filed on February 16, 2012, which is a continuation of
`
`Application No. 12/800,177, filed on May 10, 2010, which is a continuation of
`
`Application No. 10/893,814, filed on July 19, 2004, which is a continuation-in-part
`
`of Application No. 09/819,337, filed on March 28, 2001 , which claims priority to
`
`Application No. 60/231 ,997 ("'997 application"), filed on September 12, 2000 ("(the
`
`"Critical Date").
`
`A. Summary of the Alleged Invention
`
`3633. The '824 patent provides in the "Field of Invention" section of the
`
`specification that it relates generally to "multimedia computer communication
`
`systems" and more specifically describes "systems and methods for delivering
`
`streaming media, such as audio and video, on the Internet." EXl00l , 1:52-55.
`
`3 734. According to the '824 patent, systems purportedly use a "pre-buffering
`
`technique to store up enough audio or video data in the user's computer so that it can
`
`play the audio or video with a minimum of dropouts." Id.,. at 2:42-45. The user would
`
`"start[] the audio or video stream, typically by clicking on a 'start' button, and wait[]
`
`ten to twenty seconds or so before the material starts playing." Id.,. at 2:58-62.
`
`During that time, audio or video data would be delivered to the user's computer and
`
`fill the media player's buffer. Id.,. at 2:62-63.
`
`3 835. The '824 patent states that in such systems "audio or video data is
`
`delivered from the source at the rate it is to be played out." Id.,. at 2:63-3: 1 ("[i]f, for
`
`example, the user is listening to an audio stream encoded to be played-out at 24,000
`
`bits per second, the source sends the audio data at the rate of 24,000 bits per
`
`second.")."). After ten seconds of waiting, assuming the Internet connection has not
`
`been interrupted, "there [was] enough media data stored in the buffer to play for ten
`
`seconds." Id.,. at 3:1-4.
`
`3936. The '824 patent purportedly describes a streaming media system in
`
`which, in addition to a conventional buffer at the user computer, the server uses a
`
`first in, first out ("FIFO") server buffer to store streaming media data, and media
`
`data is sent from the server buffer to the user computer at a rate faster than the
`
`WAG, Exhibit 2009
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`

`

`playback rate, to allegedly protect against interruptions in playback. Id.,. at 6: 13-29,
`
`9:62-6610:1, 13:66-14:45, 14:62-15:1819.
`
`403 7. The '824 patent states that "[ w ]ith the present invention ... the server
`
`12 transmits audio/video data as sequential data elements from its buffer 14 to the
`
`buffer 20 of the user, at a higher than playback rate." Id.,. at 9:36-3938-41. The use of
`
`server-side buffering purportedly allows for a significant amount of media datafor
`
`example, one minute of data-to be quickly transferred from the server buffer to
`
`the user buffer, at a rate faster than the playback rate, so that the media data can be
`
`played out to the user continuously "despite data reception interruptions of less than
`
`a minute." Id.,. at 10:5-177-19; see also, id.,. at 8:59-6761-9:2. If the user buffer level has
`
`decreased due to interruptions in the flow of data to the user computer, the user
`
`computer requests additional media data elements to re-fill the user buffer while the
`
`media data continues to be played out. Id.,. at 6:25-29, 15:9-1822; see also id.,
`. at 10:22-39.24-
`
`4142.
`
`38. The '824 patent discloses two approaches to sending media data from
`
`the server buffer to the user computer: (1) a server-push embodiment in which the
`
`server selects the media data elements to send and sends them to the user computer
`
`on a pre-set schedule that is synchronized with the playback rate of the media data
`
`(id.,. at 9:36-6138-63, 10:45-4943-48), and (2) a client-pull embodiment, in which the user
`
`computer sends requests to the server to send specific media data elements. Id.,. at
`
`14:42-15:1848-66.
`
`4239. The claims of the '824 patent are directed to a client-pull embodiment,
`
`where the prerecorded media data elements stored in a server's data structure are
`
`streamed based on requests from clients for such data by an identifier. Id.,. at claim 1,
`
`1, 3: 65-4: 12. This is known in the prior art as a client-pull system because the client
`
`requests the data from the server. This contrasts with a "server-push" system, where
`
`where the server initiates the streaming to the client.
`
`4340. FIG. 1I of the '824 patent (below) "is a schematic/block diagram
`
`WAG, Exhibit 2009
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`

`

`illustrating the elements of a streaming media buffering system .... "." Id.,. at 4:23-25.
`
`Fig. 1
`
`@fc_,,
`JQW••~: 16
`12
`14
`4441. In FIG. 1, "the system is provided with a server 12 connected to the
`
`Internet 10 for transmitting the streaming media data elements. Associated with the
`
`server 12 is a server bufferbuff er 14 for storing at least one of the data elements for
`
`transmission ... [where] Buffer 14 is a conventional computer storage mechanism
`
`such as a hard disk .... "." Id.,. at 6:3132-41.
`
`4542. The '824 patent Using adescribes that using "standard data communications
`
`protocol
`technique[] techniques such as TCP, the user computer transmits a request to the server
`
`to send one or more data elements" which specifies "the serial numbers of the data
`
`elements." Id.,. at 14:50-5356-59. In response to the request, the server sends the requested
`
`data elements to the user computer. Id.,. at 14:53-5659-62. The media data is sent from the
`
`server buffer to the user computer "at a rate faster than the playback rate, which may
`
`may be the highest rate that the data connection between the server and the user computer
`
`will support." Id.,. at 8:7-189-20, 9:62-6667; see also id.,. at 14:60-6266-15:1 (media data is sent
`
`to the user computer "as fast as the data connection between the user computer and
`
`the server will allow"). For example, if the media data is encoded for playback at
`
`at 24,000 bits per second, and the user's Internet connection is at 56,000 bits per
`
`second, the server sends media data to the user computer at 56,000 bits per second.
`
`Id.,. at 9:6264-10:46.
`
`4643. The '824 patent claims recite that the "data connection between the
`
`server system and each requesting user system has a data rate more rapid than the
`
`playback rate" and "each sending is at a transmission rate as fast as the data
`
`connection between the server system and each requesting user system allow." Id.,.
`
`at claim 1. Such client-pull systems existed well before the '824 patent.
`
`4 744. The technology surrounding the delivery of streaming media over the
`
`WAG, Exhibit 2009
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`

`

`Internet pre-dates the alleged priority date of the '824 patent. Each of the system
`
`components recited in the claims and described in the specification were well-known
`
`and conventional components.
`
`4845. The '824 patent contains twelve claims, of which claims 1, 5, and 9 are
`
`independent. Independent claim 1 recites:
`
`1. A method for distributing over the Internet, from a server system to one or
`
`more user systems, a pre-recorded audio or video program stored in digitally
`
`encoded form on computer-readable media, the method comprising:
`
`reading, by at least one computer of the server system, the pre-recorded audio
`
`or video program from the computer-readable media;
`
`supplying, at the server system, media data elements representing the
`
`program, each media data element comprising a digitally encoded
`
`portion of the program and having a playback rate;
`
`serially identifying the media data elements, said serial identification
`
`indicating a time sequence of the media data elements;
`
`storing the media data elements in a data structure under the control of the
`
`server system;
`
`receiving requests at the server system via one or more data connections over
`
`the Internet, for one or more of the media data elements stored in the
`
`data structure, each received request specifying one or more serial
`
`identifiers of the requested one or more media data elements, each
`
`received request originating from a requesting user system of the one
`
`or more user systems; and
`
`responsive to the requests, sending, by the server system, the one or more
`
`media data elements having the one or more specified serial identifiers,
`
`to the requesting user systems corresponding to the requests; wherein
`
`the data connection between the server system and each requesting
`
`user system has a data rate more rapid than the playback rate of
`
`the one or more media data elements sent via that connection;
`
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`each sending is at a transmission rate as fast as the data connection
`
`between the server system and each requesting user system
`
`allow;
`
`the one or more media data element sent are selected without
`
`depending on the server system maintaining a record of the last
`
`media data element sent to the requesting user systems;
`
`all of the media data elements that are sent by the server system to the
`
`one or more user systems are sent in response to the requests; and
`
`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.
`
`4946. Independent claims 5 and 9 recite similar subject matter except in a
`
`server and computer program product, respectively. Dependent claims 2, 6, and 10
`
`recite that the "serial identifiers are sequential"; claims 3, 7, and 11 recite that the
`
`"sending is via a reliable transmission protocol"; and claims 4, 8, and 12 recite that
`
`the "reliable transmission protocol is TCP."
`
`B. Prosecution History
`
`5047. I understand the '578 application was filed on October 3, 2016, and
`
`included claims 1-12, of which claims 1, 5 and 9 were independent. EX1003,EX1004, 370-
`
`2360-2365375. In an Office Action dated NovemberJanuary 11, 2017, the pending claims were rejected
`
`based on (1) non-statutory double patenting over application no. 15/283,544 (now
`
`U.S. Patent No. 9,762,636) and (2) 35 U.S.C. § 103 in view of"Hooper et al. (Patent
`
`number US 5,414,455) ... Omoigui (US 7,237,254) ... Hodgkinson et al. (US
`
`7,209,437) ... Chen et al. (US 5,822,524)." Id., 288-310. at 215-238.
`
`5148. Applicant amended independent claims 1, 5, and 9, in a Response dated
`
`March 29, 201 72017, to recite "said serial identification indicating a time sequence of the
`
`media data elements1
`"elements"1 and argued that this claim amendment would be sufficient to
`
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`overcome the prior art of record. Id.,. at 166-175. Applicant also filed a terminal
`
`disclaimer to overcome the non-statutory double patenting rejection. Id. at 176.
`
`5249. A Notice of Allowance subsequently issued on June 19, 2017, stating
`
`"the prior art references ... ... does not disclose ... that the client does not maintainone or more media
`data elements sent
`
`are selected without depending on the server system maintaining a record/list of the last
`
`1 Unless otherwise noted, all underlining is added.
`
`media data element sent byto the serverrequesting user systems." Id.,. at 37-43. The '578
`
`application issued as the '824 patent on August 22, 2017. Id.,. at 8.
`
`C. Priority Date
`
`5350. I do not offer any opinion as to whether the '824 patent can claim
`
`priority to provisional Application No. 60/231,997, filed on September 12, 2000.
`
`("Critical Date").
`VI. LEVEL OF ORDINARY SKILL IN THE ART
`
`5451. In my opinion, a person having ordinary skill in the art ("POSIT A") for
`
`the '824 patent would have had a B.S.bachelor's degree in computer science or electrical, computer
`
`1 Unless otherwise noted, all underline is added.
`engineering (, or electrical engineering, or comparable degree)the equivalent, and at least two years of
`
`work experience in networking or
`streaming media, or a M.S. in computer science or electrical engineering ( or systems for delivering audio
`and video.
`
`comparable degree). Additional education in networking or streaming media can
`remedy a deficiency incould have substituted for professional experience, and vice versa.
`
`55significant work experience could have substituted for formal education.
`
`52. As of the filing date of the earliest application that the '824 patent
`
`claims priority to (i.e., September 12, 2000), including up to and including the filing
`
`filing date of the application (i.e., October 3, 2016) resulting in the '824 patent, I was a
`
`person having ordinary skill in the art.
`
`VII. CLAIM CONSTRUCTION
`
`4653. Petitioner's counsel has informed me that claims subject to inter partes
`
`review are construed according to the plain and ordinary and customary meaning of the claim as
`
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`

`understood by a POSIT A and the prosecution history of the patent being construed.
`
`4754. For purposes of this declaration, I have applied the plain and ordinary and
`
`customary meaning of the claims when read in light of the '824 patent and the prosecution
`
`history of the '824 patent, as understood by a POSIT A at the time of the invention.
`
`VIII. SUMMARY OF OPINIONS
`
`4855. In my opinion, the challenged claims of the '824 patent, including
`
`claims 1-12, are invalid as obvious to a person of ordinary skill in the art as of the
`
`Critical Date. Further, as of the Critical Date, in my opinion each of the Carmel and Feig references are
`prior art to
`
`and Shteyn references are prior art to the '824 patent under 35 U.S.C. § 102(e)2. and the Willebeek
`reference is prior art
`
`49under 35 U.S.C. § 102(b)3
`
`.
`
`56. This declaration reflects my opinions that I have formed to date, based
`
`on my review of the materials identified in Section III. I reserve the right to revise,
`
`supplement, or amend my opinions based on new information that becomes available
`
`available to me, and by further continuing analysis of the materials identified in Section III.
`
`2 Carmel was filed as a patent application on March 24, 1999, and Feig was filed as
`
`a patent application on June 1 7, 1998, before the Critical Date (September 12, 2000)
`
`of the '824 patent. See 35 U.S.C. § 102(e).
`
`3 Willebeek was published in 1998, more than one year before the Critical Date of
`
`the '824 patent. See 35 U.S.C. § 102(b).
`
`A. Ground 1: Claims 1-12 are rendered obvious over Carmel in view
`
`of Feig and Willebeek.
`
`57. U.S. Patent No. 6,389,473 to Carmel et al.50. Carmel, ("Carmel"), entitled
`
`"Network media streaming," was filed March 24, 1999, and granted on May 14,
`
`2002. EX1005. Carmel is highly relevant prior art given the PTAB on July 16, 2020, December 26, 2017,
`
`found claims 10, 11, 13-1821, and 23 of related U.S. Patent No. 8,122,141 ('141' 141 patent) (EX1005
`
`(EX1015) anticipated by Carmel and claims 12 and 22 obvious over Carmel. Final and claim 12 obvious
`
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`2 "the invention was described in - ( l) an application for patent, published under section 122(b ), by
`another filed in
`the United States before the invention by the applicant for patent .... "
`
`Written Decision, WebPower v. WAG Acquisition, LLC, IPR2016-01238, Paper No.
`
`22 (Dec. 26, 2017) at 33. The '141 patent has overlapping claim language with the
`
`'824 patent. See, e.g., EXl00l, claim 1 ("media data elements" and "serial
`
`identifiers"); EX1015, claim 1 ("media data elements" and "serial identifiers"). On
`
`remand, the PT AB again found claims 10-18 unpatentable over Carmel. Final
`
`Written Decision on Remand, WebPower v. WAG Acquisition, LLC, IPR2016-
`
`LLC, IPR2016-01238, Paper No. 28 (July 16, 2020) (EX1007) at 16-23, 25-26. Additionally, "Patent
`Owner did not
`
`appeal this decision. The '141 patent has overlapping claim
`language with the the Board's prior conclusion that'824 patent. On December 26, 2017, claims 19-23
`wereare unpatentable." Id. at 3.
`
`invalidated on multiple grounds, including Carmel. Final Written Decision,
`WebPower v. WAG Acquisition, LLC, IPR2016-01238, Paper No.58. Carmel is also relevant because it is
`analogous prior art to the claimed
`
`invention of the '824 patent. Carmel is from the same field of endeavor of
`
`multimedia streaming as the '824 patent. See, e.g., EXl00l, 1:51-55 ("The present
`
`invention relates to multimedia computer communication systems; and more
`
`particularly, to systems and methods for delivering streaming media, such as audio
`
`and video, on the Internet."); EX 1005, 1: 10-13 ("The present invention relates
`
`generally to network data communications, and specifically to real-time multimedia
`
`broadcasting over a network."). Moreover, Carmel is reasonably pertinent to the
`
`problem faced by the inventor of the '824 patent. See, e.g. , EXl00l, 2:34-45 ("users
`
`viewing or listening to streaming content over Internet connections often encounter
`
`interruptions ... commonly referred to as 'dropouts"'); EX1005, 12:10-12 ("when
`
`the slice durations are shorter, the effect of 'drop-out' of a slice due to failure of the
`
`corresponding link is less marked").
`
`59.22 (Dec. 26,
`2017) (EX1006) at 27-29.
`51. Carmel was listed in an information disclosure statement, but it was not
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`substantively considered during prosecution of the '824 patent. EX1004, 12.
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`Critically, the Examiner never considered the PT AB' sPTAB's final written decision on
`
`remand above.
`
`60. U.S. Patent No. 6,175,862 to Jeane Shu-Chun Chen and Ephraim Feig
`
`("Feig"), entitled "Hot objects with sequenced links in web browsers," * * * * *
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`
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`62. Willebeek * * * * *
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`
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`1. Overview of Carmel
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`5264. Carmel is directed towards a method for streaming live or prerecorded
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`media from a server to multiple client computers over the Internet. EXl 004EX1005, 2: 1-21,
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`21, 6:24-2627, 6:57-60, 2:29-31.
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`5365. Figure 2 of Carmel, (below,) is a schematic illustration of a computer
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`system (32) for broadcasting of a multimedia sequence of a network (28). Id.,. at
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`6:24-26.J627.
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`66. System 32 comprises transmitting computer 34 that receives audio
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`visual input from devices 22, a plurality of clients 30, and network server 36. Id.,. at
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`6:28-35.
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`5567. The transmitting computer 34 generates a multimedia data sequence
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`( data stream 40), which comprises a series of or sequential data slices 42, 44, 46, 48,
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`48, etc., with each slice containing a segment of video and/or audio data that corresponds
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`to a respective, successive time interval Tl , T2, T3, etc. Id.,. at 7:2218-25.
`, Fig. 3A (shown
`
`(below).
`
`68. The server sends media data elements to the client using Internet
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`protocols, such as notably TCP/IP.HTTP. Id., 6:50-54. at 5:25-28, 6:28-31 , 6:36-38. Clients 30 connected
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`with server 36 read an index file containing such numbered slices and request or pull
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`the sequential slices by identifier at a fast rate over the network. Id.,
`10. at I 0:25-48, Fig.
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`6A, 7:39-8:5, 2:51-59, 11:9-22. The data slices can have different
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`quality level files. Id., 3:5-9, 8:56-9:5, Fig. 3D.
`57. The server sends the slices as fast as allowed to the clients, or in other
`words, it uses the available bandwidth. Id., 7 :44-49 ("the compression level of the
`data is varied ... so as to adjust the data streaming rate to the available bandwidth
`over one or more channels . . . between server 36 and client 30."); id., 9:6-9
`("[ e Jach of clients 30 chooses ... the quality level appropriate to the bandwidth of
`its link on network 28 to server 36."); id., 3:5-13. Furthermore, Carmel teachessendingteaches sending
`media data
`
`elements at a rate more rapid than the playback rate. Id.,. at 2:51-59 ("the data rate
`
`should be generally equal to or faster than the rate at which the data are generated at
`
`the transmitting computer.")").
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`2.2. Overview of Feig * * * * *
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`3. Overview of Willebeek * * * * *
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`4. Motivation to combine Carmel, Feig, and Willebeek
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`5. Independent claims 1, 5, and 9 are obvious over Carmel in
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`58view of Feig and Willebeek.
`
`78. Independent claim 1 is a method claim that recites steps for distributing
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`over the Internet, from a server system to one or more user systems, a pre-recorded
`
`multimedia program stored in digitally encoded form on computer-readable media.
`
`EXl00l , 16:36-17:15. This is known in the prior art as a client-pull system because
`
`the client requests the data from the server. This contrasts with a "server-push"
`
`system, where the server initiates the streaming to the client. Id. For example, U.S.
`
`Patent No. 6,728,763 (EXl0l 7EX1021) describes both a push and pull system for a
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`streaming media server, and describes a pull system as "starting pull process" when
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`"web client 170 continues to request the media content." EXl0l 7,
`EX1021 , 11:44-4847, 12:13-
`
`14, Fig. 3B.
`
`5979. In my opinion, independent claim 5 is similar in scope to independent
`
`claim 1, though independent claim 5 recites a server system with at least one
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`computer and a machine-readable, executable routine containing instructions to beexecuted by the at
`least one computer to perform steps similar in scope to thebe
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`executed by the at least one computer to perform steps similar in scope to the method
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`of claim 1. Id.,EXl00l , 17:22-18:5.
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`6080. Furthermore, in my opinion, independent claim 9 is similar in scope to
`
`independent claim 1, though independent claim 9 recites a computer program
`
`product comprising a non-transitory computer readable storage medium having
`
`program instructions to be executed by at least one computer to perform steps similar
`
`similar in scope to the method of claim 1. Id.,. at 18: 12-65.
`
`6181. To the extent the limitations recited in claims 5 and 9 differ in scope
`
`compared to the limitations recited in claim 1, for the same reasons for claim 1, and
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`and as shown below, it is my opinion that Carmel in view of Feig and Willebeek
`
`discloses claims 5 and 9.
`
`(a.) Preamble Limitations
`
`[1fl.a.]:] "A method for distributing over the Internet, from a server system to one or more user systems,
`a pre-recorded audio or video
`
`program stored in digitally encoded form on computer-readable media,
`the method comprising:"
`[5.a]: "A server system for distributing a pre-recorded audio or video
`program over the Internet to one or more user systems, the server
`system comprising:"
`[9.a.]: "A computer program product for distributing over the Internet
`from a server system comprising at least one computer to one or more
`more user systems, a pre-recorded audio or video program stored in digitally
`
`encoded form on computer-readable media, the computer programmethod comprising:"
`
`[5.a] "A server system for distributing a pre-recorded audio or video program over
`
`the Internet to one or more user systems, the server system comprising:"
`
`[9.a] "A computer program product for distributing over the Internet from a server
`
`system comprising at least one computer to one or more user systems, a prerecorded
`
`audio or video program stored in digitally encoded form on computerreadable
`
`media, the computer program product comprising a non-transitory
`
`computer readable storagemediumstorage medium having program instructions embodied
`
`therewith, the program instructions comprising:"
`
`6282. To the extent the preambles are limiting, in my opinion Carmel teaches
`
`the preambles.
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`6383. As illustrated in Figure 2 below, Carmel discloses "a transmitting
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`computer [34] [that] generates a data stream and broadcasts the data stream via a
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`network server [36] to a plurality of clients [30]." EX1004EX1005, 2:1-4, and FIG. 2.3:24-27, 7:4-5,
`
`Fig. 2. Moreover, the broadcasting of the data stream from the "transmitting
`
`computer to [the] client computers" is "real-time",," where the "data stream [has] a
`
`given data rate." Id.,. at Abstract.
`
`6484. Carmel's server system ("standard network server 36") includes "any
`
`suitable type of computer or computer system, for example, a Sun Microsystems
`
`UltraSP ARC station or a Windows NT server, as are commonly used by Internet
`
`Service Providers (ISPs)." Id.,. at 6:40-43 . These well-. A POSITA would have known server systems
`comprisethat these
`
`well-known server systems comprise one or more computers.
`
`6585. Internet is used as a network in Carmel for distribution of the data
`
`stream from the