`
`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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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 1
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 2 of 32
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`I, Dan Schonfeld, Ph.D., hereby declare as follows:
`
`
`1.
`
`My name is Dan Schonfeld. I am at least eighteen years of age. I reside in
`
`Northbrook, Illinois. I have personal knowledge of and am competent to testify as to the facts and
`
`opinions herein.
`
`
`2.
`
`I have been asked by Amazon.com, Inc., Amazon Web Services, Inc., and
`
`Amazon.com Services LLC (collectively, "Amazon") and Google LLC and YouTube, Inc.
`
`( collectively, "Google") to offer opinions regarding the construction of certain terms and phrases
`
`within the claims ofU.S. Patent Nos. 9,729,594 (the " '594 patent"), 9,742,824 (the "'824 patent"),
`
`and 9,762,636 (the '" 636 patent") (collectively the "Asserted Patents"). I have also been asked to
`
`offer an opinion regarding the definiteness of certain terms.
`
`I.
`
`QUALIFICATIONS
`
`
`3.
`
`My qualifications for forming the opm10ns set forth in this Declaration are
`
`summarized here and include my educational background, career history, publications, and other
`
`relevant qualifications. My full curriculum vitae is attached as Exhibit A to this Declaration, and
`
`includes my detailed employment background, professional experience, and list of publications.
`
`
`4.
`
`I received my B.S. degree in Electrical Engineering and Computer Science from
`
`the University of California, Berkeley, California, in 1986 with a concentration on Computer
`
`Engineering I Systems Engineering. I received my M.S. degree in Electrical and Computer
`
`Engineering from The Johns Hopkins University, Baltimore, Maryland, in 1988 with a
`
`concentration on Speech Processing / Biomedical Signal Processing. I received my Ph.D. degree
`
`in Electrical and Computer Engineering from The Johns Hopkins University, Baltimore,
`
`Maryland, in 1990 with a concentration on Nonlinear Signal Processing / Image Analysis.
`
`
`5.
`
`In August 1990, I joined the Department of Electrical Engineering and Computer
`
`Science at the University of Illinois, Chicago, Illinois, where I am a tenured Professor in the
`
`
`
`1
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`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 2
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 3 of 32
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`Departments of Electrical
`
`and Computer Engineering, Computer Science,
`
`and
`
`Bioengineering. Before I joined the University of Illinois at Chicago, I served as an instructor in
`
`the Department of Electrical and Computer Engineering at The Johns Hopkins University,
`
`Baltimore, Maryland.
`
`
`6.
`
`At the University of Illinois at Chicago, I have served as the Director of the
`
`University-Industry Engineering Research Center (UIERC), formerly the Manufacturing Research
`
`Center (MRC). I am also Co-Director of the Multimedia Communications Laboratory (MCL) and
`
`a member of the Signal and Image Research Laboratory (SIRL).
`
`
`7.
`
`Over the past few decades, I have also served as a visiting professor in (a) the
`
`Advanced Analytics Institute (AAI) at the University of Technology, Sydney, Australia, (b) the
`
`Department of Information Engineering and Computer Science ("DISI") at the University of
`
`Trento, Italy, (c) the School of Computer Engineering at the Nanyang Technological University,
`
`Singapore, and (d) the Department of Electrical Engineering-Systems at Tel-Aviv University,
`
`Israel.
`
`
`8.
`
`I have been elected Fellow of the Institute of Electrical and Electronics Engineers
`
`("IEEE") "for contributions to image and video analysis" as well as Fellow of the International
`
`Society for Optics and Photonics ("SPIE") "for specific achievements in morphological image
`
`processing and video analysis." I have also been elected University Scholar of the University of
`
`Illinois. A complete list of my publications, professional activities, and honors that I have received
`
`is fully set forth in my curriculum vitae, attached hereto as Exhibit A.
`
`
`9.
`
`I have previously served as Editor-in-Chief and Deputy Editor-in-Chief of the IEEE
`
`Transactions on Circuits and Systems for Video Technology. I have also previously served as
`
`Area Editor for special issues of the IEEE Signal Processing Magazine. I have served as Associate
`
`
`
`2
`
`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 3
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 4 of 32
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`Editor of the IEEE Transactions on Image Processing ( on image and video storage, retrieval and
`
`analysis), Associate Editor of the IEEE Transactions on Circuits and Systems for Video
`
`Technology (on video analysis), Associate Editor of the IEEE Transactions on Signal Processing
`
`( on multidimensional signal processing and multimedia signal processing), and Associate Editor
`
`of the IEEE Transactions on Image Processing ( on nonlinear filtering) . I have also served on the
`
`editorial board of the IEEE Signal Processing Magazine, EURASIP Journal of Image and Video
`
`Processing, Research Letters in Signal Processing, and Bentham Science Publishers, Ltd.' s
`
`"Recent Patents on Computer Science" and "Recent Patents on Electrical Engineering"
`
`publications.
`
`I have served as guest editor of numerous special issues in various journal
`
`publications in the area of multimedia systems.
`
`
`10.
`
`I have previously served on the Conference Board of the IEEE Signal Processing
`
`Society.
`
`I have previously served as Technical Program Chair of the IEEE International
`
`Conference on Acoustics, Speech, and Signal Processing ("ICASSP") 2018 as well as Program
`
`Chair of the IEEE Conference on Visual Communications and Image Processing ("VCIP") 2015.
`
`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
`
`have served as Chair of the IEEE Workshop on Video Mining 2008 and the SPIE Conference on
`
`Visual Communications and Image Processing 2007.
`
`I have also served on the organizing
`
`committees of various conferences including the IEEE International Conference on Image
`
`Processing 1998, 2012, and 2020,
`
`IEEE/SPIE
`
`International Conference on Visual
`
`Communications and Image Processing (VCIP) 2010, 2017, and IEEE Workshop on Nonlinear
`
`Signal and Image Processing (NSIP) 1997. I was an organizer of the Thematic Symposium on
`
`
`
`3
`
`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 4
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 5 of 32
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`Multimedia Search and Retrieval at the IEEE International Conference on Acoustics, Speech, and
`
`Signal Processing (ICASSP) 2009.
`
`
`11.
`
`I have authored and co-authored over 250 technical papers for various journals and
`
`conferences.
`
`I was author of a book chapter, entitled: "Image and video communication
`
`networks," and later editions entitled: "Video communication networks." I was co-author (with
`
`Carlo Giulietti and Rashid Ansari) of a paper that won the Best Paper Award at the ACM
`
`Multimedia Workshop on Advanced Video Streaming Techniques for Peer-to-Peer Networks and
`
`Social Networking 2010. I was also co-author (with Junlan Yang) of a paper that won the Best
`
`Student Paper Award at the IEEE International Conference on Image Processing 2007. I was also
`
`co-author (with Wei Qu) of a paper that won the Best Student Paper Award at the IEEE
`
`International Conference on Image Processing 2006.
`
`I was also co-author (with Nidhal
`
`Bouaynaya) of a paper that won the Best Student Paper Award in Visual Communications and
`
`Image Processing 2006.
`
`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
`
`area of multimedia systems dates back to 1988. A list of my publications within the past ten years
`
`is included in Exhibit A.
`
`
`12.
`
`I was the keynote speaker at
`
`the International Conference on Wireless
`
`Communications and Signal Processing (WCSP), Y angzhou, China, in 2016, and the International
`
`Conference on Intelligent Control and Information Processing (ICICIP) and International
`
`Conference on Brain Inspired Cognitive Systems (BICS), Beijing, China, in 2013 . Further, I was
`
`a plenary speaker at the IEEE/IET International Conference on Audio, Language and Image
`
`Processing (!CALIP), Shanghai, China, in 2010, and at the IEEE International Conference on
`
`Advanced Video and Signal Based Surveillance (AVSS), Genoa, Italy, in 2009. I was also a
`
`
`
`4
`
`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 5
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 6 of 32
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`plenary speaker at the INPT/ASME International Conference on Communications, Signals, and
`
`Systems (ICCSS), Rabat, Morocco, in 1995 and 2001.
`
`
`13.
`
`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
`
`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
`
`graduate-level course on multimedia systems ( originally called multimedia communication
`
`networks), which focuses on audio, image, and video processing and communications.
`
`
`15.
`
`I have also served as a consultant in various engagements related to multimedia
`
`systems. For example, over the past decade, I have served as an expert witness in several cases
`
`related to multimedia systems. In 1997, I served as a consultant for PrairieComm Corp. where,
`
`among other tasks, I developed and deployed multimedia systems. Since 2002, I have also served
`
`as a member of the American National Standards Institute (ANSI) / Underwriters Laboratory (UL)
`
`Standards Technical Panel (STP) on various standards related to multimedia systems.
`
`II. MATERIALS CONSIDERED
`
`
`16.
`
`In connection with my work on this Declaration, I have reviewed the Asserted
`
`Patents and their prosecution history files.
`
`I have also reviewed the parties' proposed claim
`
`
`
`5
`
`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 6
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 7 of 32
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`constructions, the intrinsic evidence, and the extrinsic evidence identified by the parties. Any other
`
`materials that I rely on are cited in this Declaration.
`
`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
`
`is not contingent upon my performance, the opinions or conclusions I reach in my analysis, or the
`
`outcome of the above-identified matter. I also have no financial interest in Amazon, Google, or
`
`this litigation.
`
`IV.
`
`LEGAL STANDARDS
`
`
`18.
`
`
`19.
`
`I have been informed by counsel of and understand the following legal principles:
`
`Claim construction is a matter of law in that the Court will ultimately determine the
`
`meanings of the claims of the Asserted Patents. In providing my opinions here, my purpose is to
`
`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.
`
`A. Claims of a Patent
`
`
`20.
`
`I understand that a patent may include two types of claims: independent claims and
`
`dependent claims. An independent claim stands alone and includes only the limitations it recites.
`
`A dependent claim can depend from an independent claim or another dependent claim.
`
`I
`
`understand that a dependent claim includes all the limitations that it recites in addition to all of the
`
`limitations recited in the claim from which it depends.
`
`B. Claim Construction Standards
`
`
`21.
`
`I understand that the claims are to be interpreted in terms of their meaning to one
`
`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
`
`
`
`6
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 7
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 8 of 32
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`determined by the words of the claim itself, read in view of the relevant intrinsic record-i. e., the
`
`specification and file history.
`
`
`22.
`
`I have also been informed that extrinsic sources of information may be used to
`
`inform the understanding of one of ordinary skill in the art at the time of patenting, but that such
`
`extrinsic information cannot overcome a meaning for a term in a manner that is inconsistent with
`
`that given by the intrinsic record consisting of the claims, specification, and file history.
`
`C. Indefiniteness
`
`
`23.
`
`I understand that a patent must conclude with one or more claims particularly
`
`pointing out and distinctly claiming the subject matter which the inventor regards as the invention.
`
`These claims must be precise enough to afford clear notice of what is claimed, thereby apprising
`
`the public of what is still open to them. I am informed that this is known as the "definiteness"
`
`requirement.
`
`
`24.
`
`I understand that if a claim does not meet the definiteness requirement, it 1s
`
`considered "indefinite" and consequently, is invalid. A claim is indefinite if, read in light of the
`
`intrinsic record, the claim fails to inform, with reasonable certainty, those skilled in the art about
`
`the scope of the invention. I further understand that definiteness is measured from the viewpoint
`
`of a person skilled in the art at the time of the effective filing date.
`
`V.
`
`TECHNOLOGY BACKGROUND AND OVERVIEW OF THE ASSERTED PA-
`TENTS
`
`
`25.
`
`Each of the Asserted Patents is titled "Streaming Media Delivery System" and
`
`shares the same specification and the same inventor. 1 The applications for the Asserted Patents
`
`
`1 Accordingly, citations in this Declaration to one patent apply equally to the identical disclosures
`of the other Asserted Patents.
`
`
`
`7
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 8
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 9 of 32
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`were each filed on October 3, 2016. I understand that Plaintiff WAG Acquisition, LLC ("WAG")
`
`alleges that the Asserted Patents are entitled to a priority date of November 11, 1999.2
`
`
`26.
`
`The claims of the '594 patent are directed to "operating a media player to receive
`
`and play an audio or video program, from a remote media source via a data connection over the
`
`Internet." '594 patent, els. 1, 6, 11. The claims of the ' 824 patent are directed to methods and
`
`server systems for distributing "a pre-recorded audio or video program" over the Internet.
`
`'824
`
`patent, els. 1, 5, 9. The claims of the '636 patent are directed to methods and server systems for
`
`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
`
`the alleged priority date of the Asserted Patents. Each of the system components recited in the
`
`claims and described in the specification were well-known and conventional components. In fact,
`
`the ' 594 patent admits that "[ s ]ending audio or video files via a network" was known in the art.
`
`'594 patent at 2: 1-2. "The advent of streaming media technologies allowed users to listen to or
`
`view the files as they were being downloaded ... , such as from a radio station." Id. at 1:63-67.
`
`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
`
`receive the streamed digital video data from a server computer via a computer network." Id. State(cid:173)
`
`of-the-art client computers used "a software application . .. commonly called a 'media player"' to
`
`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.
`
`
`
`8
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 9
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 10 of 32
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`techniques such as TCP" were widely known and used for transmitting audio and video files over
`
`the Internet. Id. at 14:50-56.
`
`
`28.
`
`The Asserted Patents purportedly identify a common problem of conventional
`
`media streaming systems. Namely, "users viewing or listening to streaming content over Internet
`
`connections often encounter[ ed] interruptions, due to the frequency of unanticipated transmission
`
`delays and losses that are inherent in many Internet protocols." Id. at 2:34-38. To address this
`
`problem, conventional systems used 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 . The Asserted Patents state that in these conventional 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
`
`("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
`
`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.
`
`
`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
`
`intermittent periods. Id. at 2:55-56. The Asserted Patents state that because these conventional
`
`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
`
`delays and losses occurred, the buffer level decreased from its initial level. Id. at 3:5-11. A dropout
`
`
`
`9
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`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 10
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 11 of 32
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`occurred when "the user's media player buffer [became] exhausted" and as a result, the "media
`
`player remain[ed] silent until the buffer refills." Id. at 3:33-38; see also 5:50-65.
`
`
`30.
`
`Aiming to address this problem with conventional systems, the Asserted Patents
`
`purportedly describe 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 playback rate, to allegedly protect against interruptions in playback. Id. at 6: 13-29, 9:62-66,
`
`13:66-14:4, 14:62-15:18. The Asserted Patents state 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 9:36-39. The use of server-side buffering
`
`purportedly allows for a significant amount of media data-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 10:5-17; see 8:59-67. 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, 15:9-18; see also 10:22-39.
`
`
`31. More specifically, the server buffer, which is "a conventional computer storage
`
`mechanism such as a hard disk" or "Random Access Memory (RAM)," is associated with the
`
`server. Id. at 14:62-67; see also 6:35-41. The server buffer receives media data elements from a
`
`media source and stores a "predetermined number of data elements" and as mentioned above, is a
`
`FIFO buffer: once the server buffer is full, "the oldest data element in the buffer" is deleted "as
`
`each new data element is received."
`
`Id. at 14:62-15:8. The server has a buffer manager,
`
`
`
`10
`
`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 11
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 12 of 32
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`implemented in software or firmware, that controls "receiving the media data" from the media
`
`source and "supplying media data in order" to the server buffer. Id. at 14:62-15:5.
`
`
`32.
`
`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
`
`file on the server" or other storage device. Id. at 6:42-44; see also 5:33-45, 12:59-62, 14:62-67.
`
`The media source can be located separately from the server that sends media data to the user
`
`computer. Id. at 12:45-67. Alternatively, the media source can be on the server itself or physically
`
`co-located with that server. Id. at 6:42-44, 7:36-40, 12:62-67.
`
`
`33.
`
`In the case oflive media data-for example, a radio broadcast-the server receives
`
`the media data "in real time," "approximately at the rate it is generated." Id. at 7:51-64. The
`
`Asserted Patents state that if "the media source is file based," the file can be "stored on the server
`
`or an associated computer" so that the server has "near instantaneous" access to the media source.
`
`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
`
`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)
`
`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
`
`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.
`
`
`
`11
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`
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`Amazon / WAG Acquisition
`Exhibit 1009
`Page 12
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`
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`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 13 of 32
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`
`35.
`
`Using a "standard data communications protocol technique[] 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 14:50-53. In response to the request, the server sends
`
`the requested data elements to the user computer. Id. at 14:53-56. 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 8:7-
`
`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
`
`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
`
`
`
`Amazon / WAG Acquisition
`Exhibit 1009
`Page 13
`
`
`
`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
`
`
`
`Case 6:21-cv-00815-ADA Document 37-1 Filed 03/11/22 Page 15 of 32
`
`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
`
`
`
`Amazon / WAG Acquisition
`Exhibit 1009
`Page 15
`
`
`
`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