Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 1 of 32
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`WAG ACQUISITION, LLC,
`
`Plaintiff,
`
`v.
`
`AMAZON.COM, INC.,
`AMAZON WEB SERVICES, INC., and
`AMAZON.COM SERVICES LLC,
`
`Defendants.
`
`WAG ACQUISITION, L.L.C.,
`Plaintiff,
`
`vs.
`GOOGLE LLC and YOUTUBE, INC.,
`Defendants.
`
`Civil Action No. 6:21-cv-000815-ADA
`
`Civil Action No. 6:21-cv-00816-ADA
`
`DECLARATION OF DR. DAN SCHONFELD
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`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 1
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`

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`I, Dan Schonfeld, Ph.D., hereby declare as follows:
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`1.
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`My name is Dan Schonfeld. I am at least eighteen years of age. I reside in
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`Northbrook, Illinois. I have personal knowledge of and am competent to testify as to the facts and
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`opinions herein.
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`2.
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`I have been asked by Amazon.com, Inc., Amazon Web Services, Inc., and
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`Amazon.com Services LLC (collectively, "Amazon") and Google LLC and YouTube, Inc.
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`( collectively, "Google") to offer opinions regarding the construction of certain terms and phrases
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`within the claims ofU.S. Patent Nos. 9,729,594 (the " '594 patent"), 9,742,824 (the "'824 patent"),
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`and 9,762,636 (the '" 636 patent") (collectively the "Asserted Patents"). I have also been asked to
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`offer an opinion regarding the definiteness of certain terms.
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`I.
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`QUALIFICATIONS
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`3.
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`My qualifications for forming the opm10ns set forth in this Declaration are
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`summarized here and include my educational background, career history, publications, and other
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`relevant qualifications. My full curriculum vitae is attached as Exhibit A to this Declaration, and
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`includes my detailed employment background, professional experience, and list of publications.
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`4.
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`I received my B.S. degree in Electrical Engineering and Computer Science from
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`the University of California, Berkeley, California, in 1986 with a concentration on Computer
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`Engineering I Systems Engineering. I received my M.S. degree in Electrical and Computer
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`Engineering from The Johns Hopkins University, Baltimore, Maryland, in 1988 with a
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`concentration on Speech Processing / Biomedical Signal Processing. I received my Ph.D. degree
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`in Electrical and Computer Engineering from The Johns Hopkins University, Baltimore,
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`Maryland, in 1990 with a concentration on Nonlinear Signal Processing / Image Analysis.
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`5.
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`In August 1990, I joined the Department of Electrical Engineering and Computer
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`Science at the University of Illinois, Chicago, Illinois, where I am a tenured Professor in the
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`1
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 2
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`Departments of Electrical
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`and Computer Engineering, Computer Science,
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`and
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`Bioengineering. Before I joined the University of Illinois at Chicago, I served as an instructor in
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`the Department of Electrical and Computer Engineering at The Johns Hopkins University,
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`Baltimore, Maryland.
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`6.
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`At the University of Illinois at Chicago, I have served as the Director of the
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`University-Industry Engineering Research Center (UIERC), formerly the Manufacturing Research
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`Center (MRC). I am also Co-Director of the Multimedia Communications Laboratory (MCL) and
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`a member of the Signal and Image Research Laboratory (SIRL).
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`7.
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`Over the past few decades, I have also served as a visiting professor in (a) the
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`Advanced Analytics Institute (AAI) at the University of Technology, Sydney, Australia, (b) the
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`Department of Information Engineering and Computer Science ("DISI") at the University of
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`Trento, Italy, (c) the School of Computer Engineering at the Nanyang Technological University,
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`Singapore, and (d) the Department of Electrical Engineering-Systems at Tel-Aviv University,
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`Israel.
`
`
`8.
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`I have been elected Fellow of the Institute of Electrical and Electronics Engineers
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`("IEEE") "for contributions to image and video analysis" as well as Fellow of the International
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`Society for Optics and Photonics ("SPIE") "for specific achievements in morphological image
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`processing and video analysis." I have also been elected University Scholar of the University of
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`Illinois. A complete list of my publications, professional activities, and honors that I have received
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`is fully set forth in my curriculum vitae, attached hereto as Exhibit A.
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`
`9.
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`I have previously served as Editor-in-Chief and Deputy Editor-in-Chief of the IEEE
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`Transactions on Circuits and Systems for Video Technology. I have also previously served as
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`Area Editor for special issues of the IEEE Signal Processing Magazine. I have served as Associate
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`2
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 3
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`Editor of the IEEE Transactions on Image Processing ( on image and video storage, retrieval and
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`analysis), Associate Editor of the IEEE Transactions on Circuits and Systems for Video
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`Technology (on video analysis), Associate Editor of the IEEE Transactions on Signal Processing
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`( on multidimensional signal processing and multimedia signal processing), and Associate Editor
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`of the IEEE Transactions on Image Processing ( on nonlinear filtering) . I have also served on the
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`editorial board of the IEEE Signal Processing Magazine, EURASIP Journal of Image and Video
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`Processing, Research Letters in Signal Processing, and Bentham Science Publishers, Ltd.' s
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`"Recent Patents on Computer Science" and "Recent Patents on Electrical Engineering"
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`publications.
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`I have served as guest editor of numerous special issues in various journal
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`publications in the area of multimedia systems.
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`
`10.
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`I have previously served on the Conference Board of the IEEE Signal Processing
`
`Society.
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`I have previously served as Technical Program Chair of the IEEE International
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`Conference on Acoustics, Speech, and Signal Processing ("ICASSP") 2018 as well as Program
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`Chair of the IEEE Conference on Visual Communications and Image Processing ("VCIP") 2015.
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`I have also previously served as General Co-Chair of the Workshop on Big Data in 3D Computer
`
`Vision 2013 and the IEEE International Conference on Multimedia and Expo ("ICME") 2012. I
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`have served as Chair of the IEEE Workshop on Video Mining 2008 and the SPIE Conference on
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`Visual Communications and Image Processing 2007.
`
`I have also served on the organizing
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`committees of various conferences including the IEEE International Conference on Image
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`Processing 1998, 2012, and 2020,
`
`IEEE/SPIE
`
`International Conference on Visual
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`Communications and Image Processing (VCIP) 2010, 2017, and IEEE Workshop on Nonlinear
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`Signal and Image Processing (NSIP) 1997. I was an organizer of the Thematic Symposium on
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`
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`3
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`Amazon / WAG Acquisition
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`Multimedia Search and Retrieval at the IEEE International Conference on Acoustics, Speech, and
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`Signal Processing (ICASSP) 2009.
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`
`11.
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`I have authored and co-authored over 250 technical papers for various journals and
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`conferences.
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`I was author of a book chapter, entitled: "Image and video communication
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`networks," and later editions entitled: "Video communication networks." I was co-author (with
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`Carlo Giulietti and Rashid Ansari) of a paper that won the Best Paper Award at the ACM
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`Multimedia Workshop on Advanced Video Streaming Techniques for Peer-to-Peer Networks and
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`Social Networking 2010. I was also co-author (with Junlan Yang) of a paper that won the Best
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`Student Paper Award at the IEEE International Conference on Image Processing 2007. I was also
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`co-author (with Wei Qu) of a paper that won the Best Student Paper Award at the IEEE
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`International Conference on Image Processing 2006.
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`I was also co-author (with Nidhal
`
`Bouaynaya) of a paper that won the Best Student Paper Award in Visual Communications and
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`Image Processing 2006.
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`In addition, many of my publications relate to the broad topic of
`
`multimedia systems, which includes audio, image, and video processing. My publications in the
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`area of multimedia systems dates back to 1988. A list of my publications within the past ten years
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`is included in Exhibit A.
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`
`12.
`
`I was the keynote speaker at
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`the International Conference on Wireless
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`Communications and Signal Processing (WCSP), Y angzhou, China, in 2016, and the International
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`Conference on Intelligent Control and Information Processing (ICICIP) and International
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`Conference on Brain Inspired Cognitive Systems (BICS), Beijing, China, in 2013 . Further, I was
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`a plenary speaker at the IEEE/IET International Conference on Audio, Language and Image
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`Processing (!CALIP), Shanghai, China, in 2010, and at the IEEE International Conference on
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`Advanced Video and Signal Based Surveillance (AVSS), Genoa, Italy, in 2009. I was also a
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`4
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`plenary speaker at the INPT/ASME International Conference on Communications, Signals, and
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`Systems (ICCSS), Rabat, Morocco, in 1995 and 2001.
`
`
`13.
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`I have served as Representative of Regions 1-6 (North America) on the Chapters
`
`Committee of the IEEE Signal Processing Society. I have also served as Chairman of the IEEE
`
`Signal Processing Chicago Chapter.
`
`I have also served on the IEEE Image, Video, and
`
`Multidimensional Signal Processing (IVMSP) Technical Committee, formerly the IEEE Image
`
`and Multidimensional Signal Processing (IMDSP) Technical Committee, Visual Signal Processing
`
`and Communications (VSPC) Technical Committee, IEEE Signal and Image Processing in
`
`Medicine Technical Committee, and
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`the IEEE Multimedia Communications Technical
`
`Committee. I currently serve on the American National Standards Institute (ANSI) / Underwriters
`
`Laboratory (UL) Standards Technical Panel ("STP") on Multimedia Systems.
`
`
`14.
`
`I have also taught various courses that relate to multimedia systems. For example,
`
`since the late 1990s, I have introduced and taught an advanced undergraduate-level / first-year
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`graduate-level course on multimedia systems ( originally called multimedia communication
`
`networks), which focuses on audio, image, and video processing and communications.
`
`
`15.
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`I have also served as a consultant in various engagements related to multimedia
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`systems. For example, over the past decade, I have served as an expert witness in several cases
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`related to multimedia systems. In 1997, I served as a consultant for PrairieComm Corp. where,
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`among other tasks, I developed and deployed multimedia systems. Since 2002, I have also served
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`as a member of the American National Standards Institute (ANSI) / Underwriters Laboratory (UL)
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`Standards Technical Panel (STP) on various standards related to multimedia systems.
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`II. MATERIALS CONSIDERED
`
`
`16.
`
`In connection with my work on this Declaration, I have reviewed the Asserted
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`Patents and their prosecution history files.
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`I have also reviewed the parties' proposed claim
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`5
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 6
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`constructions, the intrinsic evidence, and the extrinsic evidence identified by the parties. Any other
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`materials that I rely on are cited in this Declaration.
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`III. COMPENSATION AND LACK OF FINANCIAL INTEREST IN THIS
`LITIGATION
`
`
`17.
`
`I am being compensated for my time at the rate of $700 per hour. My compensation
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`is not contingent upon my performance, the opinions or conclusions I reach in my analysis, or the
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`outcome of the above-identified matter. I also have no financial interest in Amazon, Google, or
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`this litigation.
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`IV.
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`LEGAL STANDARDS
`
`
`18.
`
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`19.
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`I have been informed by counsel of and understand the following legal principles:
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`Claim construction is a matter of law in that the Court will ultimately determine the
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`meanings of the claims of the Asserted Patents. In providing my opinions here, my purpose is to
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`assist the Court in its construction of the disputed claims based upon how a person of ordinary
`
`skill in the art ("POSIT A") at the time of invention would have understood those claim terms.
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`A. Claims of a Patent
`
`
`20.
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`I understand that a patent may include two types of claims: independent claims and
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`dependent claims. An independent claim stands alone and includes only the limitations it recites.
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`A dependent claim can depend from an independent claim or another dependent claim.
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`I
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`understand that a dependent claim includes all the limitations that it recites in addition to all of the
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`limitations recited in the claim from which it depends.
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`B. Claim Construction Standards
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`21.
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`I understand that the claims are to be interpreted in terms of their meaning to one
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`of ordinary skill in the art at the time of the invention, which I understand means on the effective
`
`filing date of the patent application. I also understand that the scope of a patent claim is to be
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`determined by the words of the claim itself, read in view of the relevant intrinsic record-i. e., the
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`specification and file history.
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`22.
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`I have also been informed that extrinsic sources of information may be used to
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`inform the understanding of one of ordinary skill in the art at the time of patenting, but that such
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`extrinsic information cannot overcome a meaning for a term in a manner that is inconsistent with
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`that given by the intrinsic record consisting of the claims, specification, and file history.
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`C. Indefiniteness
`
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`23.
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`I understand that a patent must conclude with one or more claims particularly
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`pointing out and distinctly claiming the subject matter which the inventor regards as the invention.
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`These claims must be precise enough to afford clear notice of what is claimed, thereby apprising
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`the public of what is still open to them. I am informed that this is known as the "definiteness"
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`requirement.
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`24.
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`I understand that if a claim does not meet the definiteness requirement, it 1s
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`considered "indefinite" and consequently, is invalid. A claim is indefinite if, read in light of the
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`intrinsic record, the claim fails to inform, with reasonable certainty, those skilled in the art about
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`the scope of the invention. I further understand that definiteness is measured from the viewpoint
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`of a person skilled in the art at the time of the effective filing date.
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`V.
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`TECHNOLOGY BACKGROUND AND OVERVIEW OF THE ASSERTED PA-
`TENTS
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`25.
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`Each of the Asserted Patents is titled "Streaming Media Delivery System" and
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`shares the same specification and the same inventor. 1 The applications for the Asserted Patents
`
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`1 Accordingly, citations in this Declaration to one patent apply equally to the identical disclosures
`of the other Asserted Patents.
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`
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`7
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 8
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`were each filed on October 3, 2016. I understand that Plaintiff WAG Acquisition, LLC ("WAG")
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`alleges that the Asserted Patents are entitled to a priority date of November 11, 1999.2
`
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`26.
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`The claims of the '594 patent are directed to "operating a media player to receive
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`and play an audio or video program, from a remote media source via a data connection over the
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`Internet." '594 patent, els. 1, 6, 11. The claims of the ' 824 patent are directed to methods and
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`server systems for distributing "a pre-recorded audio or video program" over the Internet.
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`'824
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`patent, els. 1, 5, 9. The claims of the '636 patent are directed to methods and server systems for
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`distributing "a live audio or video program" over the Internet. '636 patent, els. 1, 5, 9.
`
`
`27.
`
`The technology surrounding delivery of streaming media over the Internet pre-dates
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`the alleged priority date of the Asserted Patents. Each of the system components recited in the
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`claims and described in the specification were well-known and conventional components. In fact,
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`the ' 594 patent admits that "[ s ]ending audio or video files via a network" was known in the art.
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`'594 patent at 2: 1-2. "The advent of streaming media technologies allowed users to listen to or
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`view the files as they were being downloaded ... , such as from a radio station." Id. at 1:63-67.
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`Prior art systems and methods "display[ed] streamed digital video data on a client computer." Id.
`
`at 2: 11-15. In these conventional systems and methods, "[ t ]he client computer is configured to
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`receive the streamed digital video data from a server computer via a computer network." Id. State(cid:173)
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`of-the-art client computers used "a software application . .. commonly called a 'media player"' to
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`play media at the designated playback rate. Id. at 2:57-65 . "[S]tandard communications protocol
`
`
`2 I am not offering an opinion that the Asserted Patents should be entitled to this priority date. I
`have formed no opinion as to whether the asserted claims can properly be afforded this invention
`date. My opinions as to the level of ordinary skill in the art, and all the opinions presented in my
`Declaration, would remain the same whether November 11, 1999, September 12, 2000, or March
`28, 2001 was established as the priority date of the invention for the asserted claims.
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`8
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 9
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`techniques such as TCP" were widely known and used for transmitting audio and video files over
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`the Internet. Id. at 14:50-56.
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`28.
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`The Asserted Patents purportedly identify a common problem of conventional
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`media streaming systems. Namely, "users viewing or listening to streaming content over Internet
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`connections often encounter[ ed] interruptions, due to the frequency of unanticipated transmission
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`delays and losses that are inherent in many Internet protocols." Id. at 2:34-38. To address this
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`problem, conventional systems used a "pre-buffering technique to store up enough audio or video
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`data in the user's computer so that it can play the audio or video with a minimum of dropouts."
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`Id. at 2:42-45 . The user would "start[] the audio or video stream, typically by clicking on a ' start'
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`button, and wait[] ten to twenty seconds or so before the material starts playing." Id. at 2:58-62.
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`During that time, audio or video data would be delivered to the user's computer and fill the media
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`player's buffer. Id. at 2:62-63 . The Asserted Patents state that in these conventional systems
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`"audio or video data is delivered from the source at the rate it is to be played out." Id. at 2:63-3: 1
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`("If, 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
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`seconds of waiting, assuming the Internet connection has not been interrupted, "there [was] enough
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`media data stored in the buffer to play for ten seconds." Id. at 3:1-4.
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`29.
`
`According to the Asserted Patents, even with this pre-buffering, users still
`
`experienced interruptions or "dropouts," where the playback of audio or video stopped for
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`intermittent periods. Id. at 2:55-56. The Asserted Patents state that because these conventional
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`systems sent media data to the client "at the rate it is played out, the user's buffer level c[ ould]
`
`never be increased or replenished while it is playing." Id. at 3:6-9. Over time, as transmission
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`delays and losses occurred, the buffer level decreased from its initial level. Id. at 3:5-11. A dropout
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`9
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`occurred when "the user's media player buffer [became] exhausted" and as a result, the "media
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`player remain[ed] silent until the buffer refills." Id. at 3:33-38; see also 5:50-65.
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`30.
`
`Aiming to address this problem with conventional systems, the Asserted Patents
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`purportedly describe a streaming media system in which, in addition to a conventional buffer at
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`the user computer, the server uses a first in, first out ("FIFO") server buffer to store streaming
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`media data, and media data is sent from the server buffer to the user computer at a rate faster than
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`the playback rate, to allegedly protect against interruptions in playback. Id. at 6: 13-29, 9:62-66,
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`13:66-14:4, 14:62-15:18. The Asserted Patents state that "[w]ith the present invention ... the
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`server 12 transmits audio/video data as sequential data elements from its buffer 14 to the buffer 20
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`of the user, at a higher than playback rate." Id. at 9:36-39. The use of server-side buffering
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`purportedly allows for a significant amount of media data-for example, one minute of data-to
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`be quickly transferred from the server buffer to the user buffer, at a rate faster than the playback
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`rate, so that the media data can be played out to the user continuously "despite data reception
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`interruptions of less than a minute." Id. at 10:5-17; see 8:59-67. If the user buffer level has
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`decreased due to interruptions in the flow of data to the user computer, the user computer requests
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`additional media data elements to re-fill the user buffer while the media data continues to be played
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`out. Id. at 6:25-29, 15:9-18; see also 10:22-39.
`
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`31. More specifically, the server buffer, which is "a conventional computer storage
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`mechanism such as a hard disk" or "Random Access Memory (RAM)," is associated with the
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`server. Id. at 14:62-67; see also 6:35-41. The server buffer receives media data elements from a
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`media source and stores a "predetermined number of data elements" and as mentioned above, is a
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`FIFO buffer: once the server buffer is full, "the oldest data element in the buffer" is deleted "as
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`each new data element is received."
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`Id. at 14:62-15:8. The server has a buffer manager,
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`10
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`implemented in software or firmware, that controls "receiving the media data" from the media
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`source and "supplying media data in order" to the server buffer. Id. at 14:62-15:5.
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`32.
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`The media data may be real-time media which originates "from a live source," such
`
`as a television broadcast,3 or it may be pre-recorded, file-based media that originates "from a stored
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`file on the server" or other storage device. Id. at 6:42-44; see also 5:33-45, 12:59-62, 14:62-67.
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`The media source can be located separately from the server that sends media data to the user
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`computer. Id. at 12:45-67. Alternatively, the media source can be on the server itself or physically
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`co-located with that server. Id. at 6:42-44, 7:36-40, 12:62-67.
`
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`33.
`
`In the case oflive media data-for example, a radio broadcast-the server receives
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`the media data "in real time," "approximately at the rate it is generated." Id. at 7:51-64. The
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`Asserted Patents state that if "the media source is file based," the file can be "stored on the server
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`or an associated computer" so that the server has "near instantaneous" access to the media source.
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`Id. at 7:37-40.
`
`
`34.
`
`The Asserted Patents disclose 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
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`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 9:36-61, 10:45-49), and (2) a client(cid:173)
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`pull embodiment, in which the user computer sends requests to the server to send specific media
`
`data elements. Id. at 14:42-15:18. The claims of the Asserted Patents are directed to a client-pull
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`embodiment. Accordingly, the remainder of this section focuses on the client-pull embodiment
`
`described in the specification.
`
`
`3 The Asserted Patents refer to media data that comes from a live source as “real time” or “broad-
`cast” media. Id. at 5:42-45.
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`
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`11
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`Amazon / WAG Acquisition
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`Page 12
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`35.
`
`Using a "standard data communications protocol technique[] such as TCP, the user
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`computer transmits a request to the server to send one or more data elements" which specifies "the
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`serial numbers of the data elements." Id. at 14:50-53. In response to the request, the server sends
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`the requested data elements to the user computer. Id. at 14:53-56. The media data is sent from the
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`server buffer to the user computer "at a rate faster than the playback rate, which may be the highest
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`rate that the data connection between the server and the user computer will support." Id. at 8:7-
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`18, 9:62-66; see 14:60-62 (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
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`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 9:62-
`
`10:4.
`
`
`36.
`
`The Asserted Patents also describe a user buffer, which is a conventional storage
`
`medium, associated with the user computer. Id. at 15 :9-15; see also 6:51-58. The Asserted Patents
`
`acknowledge that a buffer on the client side was conventional in the art. Id. at 2:42-3:4. The user
`
`buffer stores "a predetermined number of media data elements." Id. at 15:9-15; see also 6:51-58.
`
`The media data elements in the user buffer are played out sequentially as audio or video. Id. at
`
`15 :9-15. As the media data elements are played out, the user computer automatically sends
`
`requests to the server for the next sequential media data elements. Id. at 14:56-60, 15:15-18. The
`
`user computer also has a user buffer manager ( also called a "media player buffer manager" in the
`
`Asserted Patents) that "maintains a record of the serial number of the last data element that has
`
`been received." Id. at 14:45-49, 14:56-60, see 9:46-61. The user buffer manager controls receiving
`
`media data elements, storing them in the user buffer, playing out the media data elements, and
`
`
`
`12
`
`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 13
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`

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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 14 of 32
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`"deleting media data elements from the [user] buffer as they are played out." Id. at 15:9-15; see
`
`also 6:58-65, 9:46-61.
`
`VI.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`
`
`3 7.
`
`It is my understanding that the Asserted Patents are to be interpreted from the
`
`perspective of a POSITA at the time of the alleged invention of the relevant application. I
`
`understand that there are various factors that may establish the level of ordinary skill in the art.
`
`These factors could include: the education level of those working in the field, the sophistication
`
`of the technology, the types of problems encountered in the art, the prior art solutions to those
`
`problems, and the speed in which innovations are made in the field.
`
`
`38.
`
`In my opinion, for the Asserted Patents, a POSITA at the time of the alleged
`
`invention would have had a bachelor's degree in computer science, computer engineering, or
`
`electrical engineering, or the equivalent, and at least two years of work experience in streaming
`
`media systems for delivering audio and video. Additional education could have substituted for
`
`professional experience, and significant work experience could have substituted for formal
`
`education.
`
`
`39.
`
`I met and exceeded the level of skill of a POSIT A described above as of November
`
`11, 1999, which I understand is the alleged priority date identified by WAG for the Asserted
`
`Patents.
`
`VII. “THE MEDIA SOURCE”
`
`
`40.
`
`
`41.
`
`The term "the media source" appears in claims 1, 6, and 11 of the '594 patent.
`
`I understand that Amazon and Google have proposed that this term be construed as
`
`"the storage device or live source device from which the streaming material originates." In my
`
`opinion, this is how a POSIT A would have understood the claim term. A POSIT A would have
`
`understood that the media source is the device from which the audio or video program originates,
`
`
`
`13
`
`
`
`Amazon / WAG Acquisition
`Exhibit 1009
`Page 14
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`

`

`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 15 of 32
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`which is either a live source device for a live media program streamed in real time, or a storage
`
`device for a pre-recorded media program.
`
`42.
`
`The specification of the '594 patent requires "the media source" to be the device
`
`from which the streaming material originates. For example, the specification states:
`
`There are two fundamental types of streaming media , . . . (i) mate-
`rial that originates from a source having a realtime nature, such as a
`radio or TV broadcast, and (ii) material that originates from a non-
`real-time source such as from a disk file. An example of non-real-
`time material might be a piece of music stored as a disk file, or a
`portion of a broadcast that originally was realtime, perhaps yester-
`day’s TV evening news, and was recorded into a disk file.
`
`'594 patent at 5:33-42.
`
`43.
`
`The specification explains that "[t]he media may come from ... a stored file on the
`
`server 12, or another storage device, such as a hard drive." Id. at 6:42-44, 11: 16-19; see also
`
`12:59-62, 14:8-15, 14:62-67. Based on this teaching, a POSITA would have understood that for
`
`a pre-recorded program, the media source is the storage device from which the program originates.
`
`44.
`
`A POSIT A would have understood that the media source is not an intermediary
`
`device that merely transfers the media data. Instead, the media source is the device from which
`
`the streaming material originates. The specification draws a distinction between the "media
`
`source" and the server that sends media data to the user. Although the "server 12 sends the media
`
`data to the user computer" (id. at 8: 12-15), the specification explains that the "media source may
`
`be separate from the server 12." Id. at 12:45-67. As an example of such an arrangement, the
`
`specification discloses "a source server computer co-located in a radio station studio," which sends
`
`media data to a separate "network distribution server resident in a data center, to which users would
`
`connect." Id. at 12:45-58. The network distribution server acts as an intermediary by receiving
`
`media data from the source server, storing the media data in its buffer, and then sending the media
`
`14
`
`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 15
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`

`

`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 16 of 32
`
`data the user. Id. at 12:51-58. This means "the media source" must be the source device from
`
`which the media data originates, and not an intermediary device that passes along the media data.
`
`
`45.
`
`The '594 patent uses different language than the '824 and '636 patents to describe
`
`where requests from the user computer for media data elements are sent. In the '594 patent's
`
`claims, the requests are sent "from the media player to the media source." '594 patent, els. 1, 6,
`
`11. In contrast, in the '824 and'636 patents, requests are received "at the server system." '824
`
`patent, els. 1, 5, 9; '636 patent, els. 1, 5, 9. A POSITA would have understood, based on the term
`
`"media source" in the '594 patent claims, that these claims only cover an arrangement that does
`
`not use an intermediary device to pass along the data, i.e., the user computer sends requests directly
`
`to the media source.
`
`VIII. “PLAYBACK RATE”
`
`
`46.
`
`The term "playback rate" appears in claims 1, 6, and 11 of the '594 patent, claims
`
`1, 5, and 9 of the '824 patent, and claims 1, 5, and 9 of the '636 patent. I understand that Amazon
`
`has proposed that the term "playback rate" should be construed to mean "a rate at which the data
`
`is encoded for playback to a user." I agree with Amazon's proposed construction.
`
`
`4 7.
`
`As an initial matter, I understand that the Patent Office previously construed the
`
`term "playback rate" in claims of a related patent in an inter partes review proceeding. Exhibit 1,
`
`IPR2015-01036, Paper 8 (Oct. 23, 2015) (the "Duodecad Institution Decision") at 10.
`
`In its
`
`Institution Decision, t