IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
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`In the Inter Partes Review of:
`
`U.S. Patent No.: 9,742,824
`
`For: STREAMING MEDIA
`DELIVERY SYSTEM
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`DECLARATION OF KEVIN JEFFAY
`
`Amazon I WAG Acquisition
`Exhibit 1002
`Page 1
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`WAG, Exhibit 2824
`Amazon.com, Inc. v. WAG Acquisition, LLC, IPR2022-01433
`Page 1 of 83
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`TABLE OF CONTENTS
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`Page
`
`I.
`
`II.
`
`INTRODUCTION ........................................................................................... I
`
`BACKGROUND AND QUALIFICATIONS ................................................. I
`
`III. MATERIALS CONSIDERED ........................................................................ 7
`
`IV. LEGAL STANDARDS ................................................................................... 8
`
`V. OVERVIEW OF THE '824 PATENT .......................................................... 11
`
`A.
`
`B.
`
`C.
`
`Summary of the Alleged Invention ..................................................... 11
`
`Prosecution History ............................................................................. 18
`
`Priority Date ........................................................................................ 19
`
`VI. LEVEL OF ORDINARY SKILL IN THE ART. .......................................... 19
`
`VII. CLAIM CONSTRUCTION .......................................................................... 19
`
`VIII. SUMMARY OF OPINIONS ........................................................................ 20
`
`A.
`
`Ground I: Claims 1-12 are rendered obvious over Carmel in
`view of Feig and Willebeek. ............................................................... 21
`
`1.
`
`2.
`
`3.
`
`Overview of Carmel ................................................................. 24
`
`Overview of Feig ...................................................................... 26
`
`Overview of Willebeek ............................................................. 29
`
`4. Motivation to combine Carmel, Feig, and Willebeek .............. 31
`
`5.
`
`Independent claims 1, 5, and 9 are obvious over Carmel
`in view of Feig and Willebeek. ................................................. 32
`
`(a)
`
`(b)
`
`Preamble Limitations ..................................................... 33
`
`Limitations reciting reading the pre-recorded
`program .......................................................................... 36
`
`1
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`Amazon I WAG Acquisition
`Exhibit 1002
`Page 2
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`TABLE OF CONTENTS
`(Continued)
`
`Page
`
`(c)
`
`( d)
`
`( e)
`
`(f)
`
`(g)
`
`(h)
`
`(i)
`
`(j)
`
`(k)
`
`(1)
`
`Limitations reciting supplying media data elements ...... 38
`
`Limitations reciting serially identifying the media
`data elements .................................................................. 43
`
`Limitations reciting storing the media data
`elements .......................................................................... 46
`
`Limitations reciting receiving requests at the server
`system ............................................................................. 48
`
`Limitations reciting sending media data elements
`to the requesting user systems ........................................ 52
`
`Limitations reciting that the data connection has a
`data rate more rapid than the playback rate .................... 54
`
`Limitations reciting that "each sending is at a
`transmission rate as fast as the data connection
`between the server system and each requesting
`user system allow[s]" ..................................................... 62
`
`Limitations reciting that the elements are sent
`without depending on the server system to
`maintain a record of the last element sent. ..................... 65
`
`Limitations reciting that all of the elements are
`sent in response to the requests ...................................... 69
`
`Limitations reciting that all of the elements are
`sent from the data structure as the elements were
`first stored therein ........................................................... 72
`
`6.
`
`7.
`
`8.
`
`Claims 2, 6, and 10 are obvious over Carmel in view of
`Feig and Willebeek. .................................................................. 76
`
`Claims 3, 7, and 11 are obvious over Carmel in view of
`Feig and Willebeek. .................................................................. 77
`
`Claims 4, 8, and 12 are obvious over Carmel in view of
`Feig and Willebeek. .................................................................. 78
`
`..
`11
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`Amazon I WAG Acquisition
`Exhibit 1002
`Page 3
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`WAG, Exhibit 2824
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`TABLE OF CONTENTS
`(Continued)
`
`IX. CONCLUSION ............................................................................................. 79
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`Page
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`111
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`Amazon I WAG Acquisition
`Exhibit 1002
`Page 4
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`WAG, Exhibit 2824
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`I, Kevin Jeffay, Ph.D., declare as follows:
`
`I.
`
`INTRODUCTION
`
`1. My name is Kevin Jeffay, and I have been asked by the parties
`
`requesting this review, Amazon.com, Inc., Amazon Web Services, Inc. , and
`
`Amazon.com Services LLC (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 for my time. This compensation is not
`
`contingent upon my performance, the conclusions I reach in my analysis, the
`
`outcome of this matter, or any issues involved in or related to this matter.
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`
`3.
`
`I am a tenured professor in the Department of Computer Science at the
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`University of North Carolina at Chapel Hill where I currently hold the position of
`
`Gillian T. Cell Distinguished Professor of Computer Science. I also recently served
`
`as the Chairman of the Department (from 2014-2022). I have been a faculty member
`
`at UNC since 1989.
`
`4.
`
`I received a Ph.D. in computer science from the University of
`
`Washington in 1989. Before that I received a M.Sc. degree in computer science
`
`from the University of Toronto in 1984, and a B.S. degree with Highest Distinction
`
`in mathematics from the University of Illinois at Urbana-Champaign in 1982.
`
`1
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`Amazon I WAG Acquisition
`Exhibit 1002
`Page 5
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`5.
`
`I have been involved in the research and development of computing
`
`systems for nearly 40 years. I have been a faculty member at the University ofNorth
`
`Carolina since 1989 where I perform research, and I teach in the areas of multimedia
`
`networking, computer networks, distributed systems, real-time systems, and
`
`operating systems, among others. A major theme of my research has been the
`
`development of technology to improve the performance of data transfers on the
`
`Internet. My research has examined problems ranging from network and operating
`
`system support for real-time multimedia applications such as audio and video
`
`streaming, voice-over-Internet protocol (VoIP) and Internet videoconferencing, to
`
`the design of congestion control mechanisms in network routers, to measurements
`
`and analysis of network traffic to passively assess the performance of servers on the
`
`Internet.
`
`6.
`
`For example, starting in the late 1980s, the focus of my research was
`
`the development of network and operating system technology to enable the real-time
`
`transfer of streams of audio and video data across the Internet. This involved, among
`
`other things, the development of media encoders, media players, and network
`
`communication protocols for adaptive transmission of live audio and video data on
`
`the Internet. This work culminated in my research group developing some of the
`
`first videoconferencing systems for the Internet. Several of the papers authored by
`
`myself and members of my research group on this project won awards for their
`
`2
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`Amazon I WAG Acquisition
`Exhibit 1002
`Page 6
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`technical contributions. For example, a 1993 paper authored by my research group
`
`on client-side playout buffer management won a best paper award at the Fourth
`
`International Workshop on Network and Operating System Support for Digital
`
`Audio and Video and was republished in 1995 in the journal ACM Multimedia
`
`Systems.
`
`7.
`
`The videoconferencing and adaptive streaming research attracted the
`
`attention of industry groups such as IBM, Intel, Digital Equipment Corporation,
`
`Cabletron, and AT&T Bell Laboratories. For example, starting in 1991 IBM
`
`supported aspects of my research at UNC, and these efforts resulted in U.S. Patent
`
`No. 5,892,754 on adaptive media streaming being issued to IBM and UNC.
`
`8.
`
`During this time, I was also collaborating with researchers at the Intel
`
`Architecture Labs in Hillsboro, OR, to modify an Intel product, the ProShare
`
`videoconferencing system, to use technology developed in my research lab at UNC
`
`for adaptive media transmission. By the late 1990s, the ProShare product included
`
`the ability to also transfer desktop information of a PC to a remote PC.
`
`9. My research group also developed other "data conferencing" systems,
`
`also known as "shared window systems," that were capable of transferring the
`
`desktop information on a PC to a remote PC in real-time. One system that we built,
`
`called "XTV," was operational by 1991. The source code for XTV was made freely
`
`available and, by 1993, had been downloaded by over 600 users and institutions.
`
`3
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`Amazon I WAG Acquisition
`Exhibit 1002
`Page 7
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`The system was functionally and visually equivalent to today's Cisco's WebEx and
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`Zoom's screen sharing products and services. It provided a sophisticated means of
`
`transferring the desktop information of a PC to a remote site. In the XTV system,
`
`individual windows displayed on the desktop, or the entire desktop itself, could be
`
`selected for sharing with remote users. The XTV system also allowed remote users
`
`to remotely control and manipulate the desktop whose information was being
`
`distributed, as well as remotely control the applications that were generating the
`
`desktop information that was being shared.
`
`10.
`
`In much of my research, I regularly build and use clusters of computers
`
`interconnected by network switches, bridges, and routers to form and evaluate
`
`experimental and production networks. For example, in the late 1990s and early
`
`2000s, my research evolved to consider router-based mechanisms for controlling the
`
`performance of network traffic. In much of this research, my students and I built
`
`and instrumented network routers and performed large scale experiments with this
`
`equipment. The instrumentation included, for example, the development of network
`
`monitors that would receive copies of packets flowing on a network link and analyze
`
`and store packets or the results of analyses on these packets, all in real-time. Based
`
`on these experiments, in 2003 , my group at UNC won the most prestigious research
`
`award for original research in computer networking. UNC applied for, and received,
`
`U.S. Patent No. 7,447,209 for aspects of this research.
`
`4
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`Amazon I WAG Acquisition
`Exhibit 1002
`Page 8
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`11. This project, and others, took place in a networking lab my students and
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`I constructed at UNC over a number of years. The lab consists of several hundred
`
`computers and networking devices. Managing this lab required establishing and
`
`configuring VLANs, firewalls, and other security appliances to isolate the lab from
`
`the campus network (and vice versa).
`
`12. More recently, my research group has considered the design and
`
`operation of next generation aerial networks. UNC applied for, and received, U.S.
`
`Patent No. 9,832,705 for aspects of this research.
`
`13.
`
`I have authored or co-authored over 100 articles in peer-reviewed
`
`journals, conference proceedings, texts, and monographs in the aforementioned
`
`areas of computer science and others.
`
`In addition, I have edited and co-edited
`
`numerous published proceedings of technical conferences and have edited a book of
`
`readings in multimedia computing and networking (with Hong-Jiang Zhang)
`
`published by Morgan Kaufman. I am a co-author (with Long Le and F. Donelson
`
`Smith) of a monograph related to computer network protocols, and a co-author (with
`
`Jay Aikat and F. Donelson Smith) of a second monograph related to experimental
`
`computer networking.
`
`14. My research extends to leadership positions m several journals,
`
`conferences, and committees. I have previously served as Editor-in-Chief for the
`
`journal Multimedia Systems and Associate Editor for the journal Real-Time
`
`5
`
`Amazon I WAG Acquisition
`Exhibit 1002
`Page 9
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`Systems.
`
`In addition, I have been an active participant in the Association for
`
`Computing Machinery ("ACM") and the Institute of Electrical and Electronics
`
`Engineers ("IEEE"). Specifically, I have been a member of the steering committees
`
`for the ACM Special Interest Group on Multimedia, and the ACM Special Interest
`
`Group on Data Communications ("SIGCOMM") and its subgroup on Internet
`
`Measurement. I have also served as a member of the IEEE Technical Committee on
`
`Real-Time Systems. As a result of this involvement, I have served as a program
`
`chair or member of the technical program committee for over 100 professional,
`
`international, and technical conferences, workshops, and symposia. I was previously
`
`on the steering committee for the ACM technical committee on Internet
`
`measurement, where we worked on community standards for measurement-based
`
`research. I have also served on numerous proposal review panels for the National
`
`Science Foundation and other international funding agencies in the aforementioned
`
`areas of computer science.
`
`15.
`
`In addition to the U.S. patents referenced above, I am a named inventor
`
`on a fourth patent. Each of these patents is generally related to computer networking
`
`and the delivery of services over networks including audio and video transmission.
`
`16.
`
`I have developed and taught undergraduate and graduate level courses
`
`on operating systems, computer networking, computer security, and multimedia
`
`6
`
`Amazon I WAG Acquisition
`Exhibit 1002
`Page 10
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`computing. These courses have been developed for, and delivered to, students at
`
`UNC as well as for industry professionals.
`
`1 7.
`
`I have served as an expert witness and technical consultant in litigation
`
`and inter partes review matters concerning videoconferencing, data conferencing
`
`and screen sharing, cellular and wireline telephony, voice over IP (VoIP) telephony,
`
`multimedia networking, distributed systems, operating systems, computer networks,
`
`datacenter networking, embedded systems and embedded software, and real-time
`
`systems, among others.
`
`I have testified in several trials, arbitrations, and claim
`
`construction hearings as an expert witness.
`
`18. My Curriculum Vitae, attached as Exhibit 1003, includes a more
`
`detailed summary of my background, experience, and publications.
`
`III. MATERIALS CONSIDERED
`
`19.
`
`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
`
`history of the '824 patent and numerous prior art and technical references from and
`
`before the time of the alleged invention. These references are discussed below.
`
`20.
`
`Petitioner's counsel has asked me to consider whether certain
`
`references disclose or suggest, alone or in combination, the features recited in certain
`
`claims of the '824 patent. I have also been asked to consider the state of the art and
`
`7
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`Exhibit 1002
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`the prior art available before the time of the alleged invention of the '824 patent. My
`
`opinions are provided in this declaration.
`
`21. 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.
`
`22.
`
`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
`
`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.
`
`23.
`
`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
`
`24.
`
`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
`
`8
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`Amazon I WAG Acquisition
`Exhibit 1002
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`patent or publication or rendered obvious by one or more prior art patents or
`
`publications.
`
`25.
`
`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 at the time of the invention, a "POSIT A."
`
`26.
`
`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.
`
`27.
`
`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
`
`9
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`reference or multiple references would have been obvious, I understand from
`
`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
`
`improve a similar device or method in a similar way.
`
`28.
`
`Petitioner's counsel has informed me that a POSITA has ordinary
`
`creativity and is not an automaton.
`
`29.
`
`Petitioner's counsel has informed me that all prior art references are to
`
`be looked at from the viewpoint of a POSIT A.
`
`10
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`30.
`
`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
`
`31.
`
`The '824 patent, titled "Streaming media delivery system," was filed
`
`on October 3, 2016, and issued on August 22, 2017.
`
`32.
`
`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
`
`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
`
`33.
`
`The '824 patent provides in the "Field of Invention" section of the
`
`specification that it relates generally to "multimedia computer communication
`
`11
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`systems" and more specifically describes "systems and methods for delivering
`
`streaming media, such as audio and video, on the Internet." EXl00l , 1:52-55.
`
`34. 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.
`
`35. 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.
`
`36. 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
`
`12
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`playback rate, to allegedly protect against interruptions in playback. Id. at 6: 13-29,
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`9:62-10:1, 13:66-14:5, 14:62-15:19.
`
`3 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 9:38-41. The use of
`
`server-side buffering purportedly allows for a significant amount of media data(cid:173)
`
`for 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 10:7-19; see also id. at 8:61-9:2. 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, 15:9-22; see also id. at 10:24-
`
`42.
`
`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
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`(id. at 9:38-63, 10:43-48), and (2) a client-pull embodiment, in which the user
`
`13
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`computer sends requests to the server to send specific media data elements. Id. at
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`14:48-66.
`
`39. 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, 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
`
`the server initiates the streaming to the client.
`
`40.
`
`FIG. I of the '824 patent (below) "is a schematic/block diagram
`
`illustrating the elements of a streaming media buffering system." Id. at 4:23-25.
`
`25
`
`Fig. 1
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`12
`
`D
`
`D
`
`14
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`41.
`
`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
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`server 12 is a server buff 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 6:32-41.
`
`42.
`
`The '824 patent describes that using "standard data communications
`
`protocol 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 14:56-59. In response to the request, the server sends the requested
`
`data elements to the user computer. Id. at 14:59-62. The media data is sent from the
`
`server buffer to the user computer "at a rate faster than the playback rate, which may
`
`be the highest rate that the data connection between the server and the user computer
`
`will support." Id. at 8:9-20, 9:62-67; see also id. at 14:66-15:1 (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
`
`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 9:64-10:6.
`
`43.
`
`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
`
`15
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`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.
`
`44.
`
`The technology surrounding the delivery of streaming media over the
`
`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.
`
`45.
`
`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
`
`16
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`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;
`
`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.
`
`46.
`
`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
`
`17
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`"sending is via a reliable transmission protocol"; and claims 4, 8, and 12 recite that
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`the "reliable transmission protocol is TCP."
`
`B.
`
`Prosecution History
`
`47.
`
`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. EX1004, 370-
`
`375. In an Office Action dated January 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. at 215-238.
`
`48. Applicant amended independent claims 1, 5, and 9, in a Response dated
`
`March 29