Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 1 of 21
`
`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`WAG ACQUISITION, L.L.C.,
`
`Case No. 6:21-cv-00815-ADA
`
`Plaintiff,
`
`v.
`
`AMAZON.COM, INC., AMAZON
`WEB SERVICES, INC., and
`AMAZON.COM SERVICES LLC.,
`
`Defendants.
`
`JURY TRIAL DEMANDED
`
`PLAINTIFF’S RESPONSIVE CLAIM CONSTRUCTION BRIEF
`
`Amazon / WAG Acquisition
`Exhibit 1010
`Page 1
`
`

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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 2 of 21
`
`TABLE OF CONTENTS
`
`TABLE OF AUTHORITIES ....................................................................................................... ii
`TABLE OF DISPUTED TERMS AND CONSTRUCTIONS ................................................. iv
`INTRODUCTION ............................................................................................... 1
`BACKGROUND .................................................................................................. 1
`Technological Overview ....................................................................................... 1
`LEGAL PRINCIPLES ........................................................................................ 4
`DISPUTED CONSTRUCTIONS ....................................................................... 6
`“the media source” (’594 patent, claims 1, 6, 11) ................................................. 6
`patent, claims 1, 5, 9)............................................................................................. 9
`claims 1, 5, 9) ...................................................................................................... 10
`construction proposed) ........................................................................................ 12
`CONCLUSION .................................................................................................. 15
`
`I.
`II.
`
`III.
`IV.
`
`V.
`
`A.
`
`A.
`B.
`
`C.
`
`D.
`
`“playback rate” (’594 patent, claims 1, 6, 11; ’824 patent, claims 1, 5, 9; ’636
`
`“data rate” (’594 patent, claims 1, 6, 11; ’824 patent, claims 1, 5, 9; ’636 patent,
`
`“as required to maintain about a predetermined number of media data elements”
`(’594 patent, claims 1, 6, 11) (alleged indefinite, but with alternate (disputed)
`
`i
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 2
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`

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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 3 of 21
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`
`
`TABLE OF AUTHORITIES
`
`PAGE(S)
`
`Cases
`
`
`3M Innovative Props. Co. v. Tredegar Corp.,
`
`725 F.3d 1315 (Fed. Cir. 2013).......................................................................................... 5
`
`Allergan, Inc. v. Teva Pharms. USA, Inc.,
`
`No. 2:15-CV-1455-WCB, 2016 WL 7210837 (E.D. Tex. Dec. 13, 2016) ..................... 14
`
`Amgen, Inc. v. Chugai Pharm. Co.,
`
`927 F.2d 1200 (Fed. Cir. 1991) ....................................................................................... 12
`
`Azure Networks, LLC v. CSR PLC,
`
`771 F.3d 1336 (Fed. Cir. 2014) ......................................................................................... 4
`
`BASF Corp. v. Johnson Matthey Inc.,
`
`875 F.3d 1360 (Fed. Cir. 2017).......................................................................................... 5
`
`Biosig Instruments, Inc. v. Nautilus, Inc.,
`
`783 F.3d 1374 (Fed. Cir. 2015) ......................................................................................... 5
`
`Cohesive Techs., Inc. v. Waters Corp.,
`
`543 F.3d 1351 (Fed. Cir. 2008)........................................................................................ 12
`
`Comark Commc’ns, Inc. v. Harris Corp.,
`
`156 F.3d 1182 (Fed. Cir. 1998) ......................................................................................... 4
`
`Datamize, LLC v. Plumtree Software, Inc.,
`
`417 F.3d 1342 (Fed. Cir. 2005).......................................................................................... 6
`
`Epos Techs. Ltd. v. Pegasus Techs. Ltd.,
`
`766 F.3d 1338 (Fed. Cir. 2014).......................................................................................... 5
`
`Immersion Corp. v. Samsung Elecs. Am., Inc.,
`
`No. 2:17-CV-572-JRG, 2018 WL 5005791 (E.D. Tex. Oct. 16, 2018) ........................... 14
`
`Interval Licensing LLC v. AOL, Inc.,
`
`766 F.3d 1364 (Fed. Cir. 2014).......................................................................................... 5
`
`Liebel-Flarsheim Co. v. Medrad, Inc.,
`
`358 F.3d 898 (Fed. Cir. 2004)............................................................................................ 4
`
`Max Blu Techs., LLC v. Cinedigm Corp.,
`
`No. 2:15-CV-1369-JRG, 2016 WL 3688801 (E.D. Tex. July 12, 2016) ........................ 14
`
`ii
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 3
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`

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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 4 of 21
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`Nautilus Inc. v. Biosig Instruments, Inc.,
`572 U.S. 898 (2014) ..................................................................................................... 5, 12
`
`Neodron, Ltd. v. Fujitsu Am., Inc.,
`No. 220CV00239JRGRSP, 2021 WL 2646214 (E.D. Tex. June 28, 2021) ................... 14
`
`Oatey Co. v. IPS Corp.,
`514 F.3d 1271 (Fed. Cir. 2008).......................................................................................... 5
`
`Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd.,
`476 F.3d 1321 (Fed. Cir. 2007)........................................................................................ 12
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ..................................................................... 4, 6
`
`Teva Pharms. USA, Inc. v. Sandoz, Inc.,
`574 U.S. 318 (2015) ........................................................................................................... 6
`
`Thorner v. Sony Computer Entm’t Am. LLC,
`669 F.3d 1362 (Fed. Cir. 2012).......................................................................................... 4
`
`Vitronics Corp. v. Conceptronic, Inc.,
`90 F.3d 1576 (Fed. Cir. 1996)............................................................................................ 5
`
`W.L. Gore & Assocs., Inc. v. Garlock, Inc.,
`721 F.2d 1540 (Fed. Cir. 1983) ....................................................................................... 14
`
`iii
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 4
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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 5 of 21
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`TABLE OF DISPUTED TERMS AND CONSTRUCTIONS
`
`Item
`
`WAG’s Proposed
`Constructions
`
`Amazons’s Proposed
`Constructions
`
`Item 1: “as required to
`maintain about a
`predetermined number of
`media data elements”
`
`ʼ594 patent, claims 1, 6, 11.
`Item 2: “playback rate”
`
`’594 patent, claims 1, 6, 11;
`’824 patent, claims 1, 5, 9;
`’636 patent, claims 1, 5, 9.
`Item 3: “data rate”
`
`’594 patent, claims 1, 6, 11;
`’824 patent, claims 1, 5, 9;
`’636 patent, claims 1, 5, 9.
`Item 7: “the media source”
`
`ʼ594 patent, claims 1, 6, 11.
`
`Plain and ordinary meaning.
`
`Indefinite under § 112.
`
`Plain and ordinary meaning.
`
`A rate at which the data is
`encoded for playback to a
`user.
`
`Plain and ordinary meaning.
`
`Plain and Ordinary Meaning
`
`The actual rate at which the
`data connection delivers data
`to the [media player /
`requesting user system] at any
`given time.
`The storage device or live
`source device from which the
`streaming material originates.
`
`iv
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 5
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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 6 of 21
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`I.
`
`INTRODUCTION
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`U.S. Patent Nos. 9,742,824 (Compl. Ex. A) (the “’824 Patent”); 9,729,594 (Compl. Ex.
`
`B) (the “’594 Patent”); and 9,762,636 (Compl. Ex. C) (the “’636 Patent”) to Harold Price
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`(collectively, the “Asserted Patents”), disclose and claim systems and methods for distributing
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`audio-visual media over the Internet. The Asserted Patents each claim priority to provisional
`
`application no. 60/231,997, dated September 12, 2000. They share similar disclosures, but claim
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`different aspects of the disclosure.
`
`WAG holds full title to the Asserted Patents and accuses Defendants Amazon.com, Inc.,
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`Amazon Web Services, Inc., and Amazon.com Services LL (“Defendants” or “Amazon”) of
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`infringing (1) claims 1-17 of the ’594 Patent; (2) claims 1-12 of the ’636 Patent; and (3) claim 1-
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`12 of the ’824 Patent (collectively, the “Asserted Claims”). WAG believes that the language of
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`the claims is clear and that the Disputed Terms require no construction.
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`II.
`
`BACKGROUND
`
`A. Technological Overview
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`The Asserted Claims address the problem of how to achieve the perception of immediate
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`startup (“Instant-On”) of Internet streaming when the user clicks on an audio-visual media
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`stream, as well as thereafter maintaining uninterrupted delivery. See, e.g., ’594 Patent, 3:45-58
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`(“respond on demand without objectionable buffering delay”); see also id., 6:15-18 (“Immediate
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`playing on a user’s computer is afforded”).
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`Audio and visual media transmitted over a computer network are simply streams of data
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`– sets of time-sequenced data elements. Id., 6:30-32. When delivered over the network, the data
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`stream flows from the source (server) to the player (client) for playback. Id., 6:59-65.
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 1
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 6
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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 7 of 21
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`A problem arises when the aim is to distribute a media program via streaming over the
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`Internet, as opposed to transferring (downloading) an entire recorded version of the program and
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`playing it back after the entire recording has been transferred, because the Internet is a patchwork
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`of relayed connections and, while it can work well for delivering data, does not guarantee timely
`
`delivery of data between nodes. See, e.g., ’594 Patent, 2:34-38 (citing “delays and losses that are
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`inherent in many Internet protocols), 3:5-6, 5:7-15. The Internet can ensure that all data items
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`will be delivered, but cannot assure when any individual item will arrive. Thus, since media
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`programming relies on time-sequenced data, the Internet is inherently susceptible to transmission
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`delays of varying magnitude, for delivering such programming. See Declaration of Keith Teruya,
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`(“Teruya Decl.”) ¶¶ 12-18 (Ex. A).1
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`Internet delivery delays result (inter alia) from transient congestion and contention at
`
`routing nodes. Larger delays in data transit potentially result in sustained interruptions for the
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`data consumer (see, e.g., ’594 Patent, 2:38-42). Internet delivery delay of a stream can result in a
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`stuttering startup and frequent recurring interruptions. See id., 6:11-12 (“startup delays and
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`dropouts”).
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`A long-standing partial solution is to add a buffer to the client device. Id., 2:42-45.
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`Allowing the client-side buffer first to receive and accumulate a portion of the stream, amounting
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`to, e.g., 30 seconds’ worth of data, before beginning playback, allows the playback to withstand
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`up to 30 seconds (cumulatively) of transmission delays before the client-side buffer runs out of
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`data, which if it occurred would cause a playback interruption. See, e.g., id., 3:16-27. The
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`drawback of this approach is the need to wait on streaming startup in order to fill the client-side
`
`1 The Teruya Declaration is of course extrinsic evidence. Plaintiff has not submitted that
`declaration to argue its claim construction positions, but rather has limited it to only those points
`where it believes technical expert input will be of assistance to the Court.
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 2
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 7
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`

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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 8 of 21
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`buffer in advance, before playback can begin. See id., 2:50-55. This startup delay was the
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`“hourglass” streaming experience that was prevalent before Plaintiff’s patents, and it was very
`
`frustrating to users, severely limiting the marketability of programming streamed over the
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`Internet. Id., 3:35-41.
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`In one embodiment (referred to herein as the “buffering” embodiment), Harold Price’s
`
`invention uses two buffers, one on the server side, and one on the client side, which interact in a
`
`particular way. See ’594 Patent, 8:1-26. The server waits until the server-side buffer is full before
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`sending this data to the client. In this embodiment, the buffer operates on a first-in-first-out
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`(FIFO) basis – starting delivery back from the point the data was buffered from – so that there is
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`a block of accumulated data at the server that can be sent quickly in order to jump-start the
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`transmission to the client. See, e.g., id., 9:36-45; Teruya Decl. ¶ 20.
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`In a separate embodiment (see ’594 Patent, 14:42-15:18), which is the embodiment most
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`pertinent to the claims asserted in this case, the pace of transmission of a stream can instead be
`
`regulated by player requests for elements of the stream. This is referred to herein as the “pull”
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`embodiment. In the pull embodiment, streaming data elements are accumulated on the server
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`side from a media source (similar to the “buffer” in the above-described embodiment), and are
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`each associated with serial identifiers. In the pull embodiment, the player monitors the state of its
`
`own buffer, including without limitation the level of the buffer and what elements it needs for
`
`continuous playback, and requests them from the server by their serial identifiers, as needed to
`
`provide uninterrupted playback. So long as the connection allows each element to be sent in less
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`time than it takes to play it back, this technique, referred to as “pull,” also serves as an effective
`
`stream control mechanism. The first so-identified element in this embodiment corresponds to the
`
`initial buffer-load of data in the buffering embodiment, and its rapid transfer likewise jump-starts
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 3
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 8
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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 9 of 21
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`the filling of the player buffer and the ability to begin playback, providing a startup benefit
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`comparable to that provided by the buffering embodiment. See Teruya Decl. ¶ 22.
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`III.
`
`LEGAL PRINCIPLES
`
`Claim terms are generally given their plain and ordinary meaning. Phillips v. AWH Corp.,
`
`415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc); Azure Networks, LLC v. CSR PLC, 771 F.3d
`
`1336, 1347 (Fed. Cir. 2014) (“There is a heavy presumption that claim terms carry their
`
`accustomed meaning in the relevant community at the relevant time.”) (internal quotations and
`
`citation omitted), vacated on other grounds, 575 U.S. 959 (2015). The plain and ordinary
`
`meaning of a term is the “meaning that the term would have to a person of ordinary skill in the
`
`art in question at the time of the invention.” Philips, 415 F.3d at 1313.
`
`“‘Although the specification may aid the court in interpreting the meaning of disputed
`
`claim language, particular embodiments and examples appearing in the specification will not
`
`generally be read into the claims.’” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182,
`
`1187 (Fed. Cir. 1998) (quoting Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1571
`
`(Fed. Cir. 1988)). “[I]t is improper to read limitations from a preferred embodiment described in
`
`the specification—even if it is the only embodiment—into the claims absent a clear indication in
`
`the intrinsic record that the patentee intended the claims to be so limited.” Liebel-Flarsheim Co.
`
`v. Medrad, Inc., 358 F.3d 898, 913 (Fed. Cir. 2004).
`
`The “only two exceptions to [the] general rule” that claim terms are construed according
`
`to their plain and ordinary meaning are when the patentee (1) acts as his/her own lexicographer
`
`or (2) disavows the full scope of the claim term either in the specification or during prosecution.
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`Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012). To act as
`
`his/her own lexicographer, the patentee must “clearly set forth a definition of the disputed claim
`
`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 4
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 9
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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 10 of 21
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`term,” and “clearly express an intent to define the term.” Id. (internal quotations and citations
`
`omitted). To disavow the full scope of a claim term, the patentee’s statements in the specification
`
`or prosecution history must represent “a clear disavowal of claim scope.” Id. at 1366 (internal
`
`quotations and citations omitted). When “an applicant’s statements are amenable to multiple
`
`reasonable interpretations, they cannot be deemed clear and unmistakable.” 3M Innovative
`
`Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1326 (Fed. Cir. 2013).
`
`Further, absent clear disclaimer in the specification or prosecution history, it is improper
`
`to “interpret claim terms in a way that excludes embodiments disclosed in the specification.”
`
`Oatey Co. v. IPS Corp., 514 F.3d 1271, 1277-78 (Fed. Cir. 2008); see also Epos Techs. Ltd. v.
`
`Pegasus Techs. Ltd., 766 F.3d 1338, 1347 (Fed. Cir. 2014); Vitronics Corp. v. Conceptronic,
`
`Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996).
`
`A claim, when viewed in light of the intrinsic evidence, must “inform those skilled in the
`
`art about the scope of the invention with reasonable certainty.” Nautilus Inc. v. Biosig
`
`Instruments, Inc., 572 U.S. 898, 910 (2014). Whether a claim is indefinite is determined from the
`
`perspective of one of ordinary skill in the art as of the time the application for the patent was
`
`filed. Id. at 908. As it is a challenge to the validity of a patent, the failure of any claim in suit to
`
`comply with § 112 must be shown by clear and convincing evidence. BASF Corp. v. Johnson
`
`Matthey Inc., 875 F.3d 1360, 1365 (Fed. Cir. 2017).
`
`When a term of degree is used in a claim, “the court must determine whether the patent
`
`provides some standard for measuring that degree.” Biosig Instruments, Inc. v. Nautilus, Inc.,
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`783 F.3d 1374, 1378 (Fed. Cir. 2015) (quotation marks omitted). Similarly, when a subjective
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`term is used, the court must determine whether the patent's specification supplies some objective
`
`standard for measuring the scope and boundaries of the term. See Interval Licensing LLC v. AOL,
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 5
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 10
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`

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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 11 of 21
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`Inc., 766 F.3d 1364, 1371 (Fed. Cir. 2014); Datamize, LLC v. Plumtree Software, Inc., 417 F.3d
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`1342, 1350-51 (Fed. Cir. 2005).
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`Extrinsic evidence can also be useful in claim interpretation, but it is “‘less significant
`
`than the intrinsic record in determining the legally operative meaning of claim language.’”
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`Phillips, 415 F.3d at 1317 (quoting C.R. Bard, Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862
`
`(Fed. Cir. 2004)); see also Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331-32 (2015)
`
`(reliance on extrinsic evidence directed to “evidentiary underpinnings” of a claim interpretation).
`
`IV.
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`DISPUTED CONSTRUCTIONS2
`
`A. “the media source” (’594 Patent, claims 1, 6, 11)
`
`The plain and ordinary meaning of “media source” requires no construction – it refers
`
`simply to a source of media. The term is used in this conventional sense in the claims of the ’594
`
`Patent, which recite a “method for 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,
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`16:30-32. The very first recited step of this method includes “sending requests from the media
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`player to the media source via the data connection,” in order to obtain the underlying media. Id.,
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`16:34-35. Exactly how this media data came to be on the media source itself (i.e., the media
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`source of the media source) is not claimed or even particularly relevant to the underlying
`
`invention.
`
`Nonetheless, the specification offers specific examples of where and how a media source
`
`may obtain the underlying media data, observing that “[t]here are two fundamental types of
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`streaming media, which affect, in some respects, the requirements for smooth and continuous
`
`2 WAG contends that, unless otherwise noted, the Disputed Terms may be construed consistently
`across the Asserted Patents.
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 6
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 11
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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 12 of 21
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`delivery: (i) material that originates from a source having a realtime nature, such as a radio or TV
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`broadcast, and (ii) material that originates from a non-realtime source such as from a disk file.”
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`Id., 5:33-38. That is, the discussion concerns the types of media, not the types of media sources.
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`Regardless of how this type of media is ultimately originated, “there is in each case at least one
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`user computer 18 (or similar device) connected to the server 12 via the Internet 10” to receive the
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`media data from the server. See id., 6:42-7:5. Moreover, the specification explicitly contemplates
`
`that “the buffer concept of this invention can be daisy-chained between multiple Servers. For
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`example, a system might include a source server computer co-located in a radio station studio,
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`which transmits to a network distribution server resident in a data center, to which users would
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`connect.” Id., 12:46-51. Hence, regardless of the type of media, from the perspective of the user
`
`computer, to which the claims of the ’594 Patent are directed, the “media source” is whatever
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`server the user computer connects to so as to obtain the underlying media data. “Media source”
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`has no more specialized meaning than this – its plain and ordinary meaning.
`
`Defendants go seriously astray by injecting the phrase “from which the streaming
`
`material originates” into the plain meaning of this term. In justifying this position, Defendants
`
`allege that the “specification explains that the user computer may request and receive media data
`
`elements from a media source, or from a server that is not the media source,” thereby assuming
`
`at the outset the conclusion they would have the Court reach. Amazon Br. at 4 (emphasis in
`
`original). Any computer that the client connects to is a source of media data and thus a media
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`source. Defendants have pointed to no clear disclaimer in the specification or file history that
`
`would require interpreting “media source” to refer to only the originator of the underlying data.
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`Rather, it is quite clear from the material quoted by Defendants that the “media source” could be
`
`both an intervening server or the “originator” of such data.
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 7
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 12
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`

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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 13 of 21
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`In fact, Defendants’ construction injects ambiguity where none originally existed, since it
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`is not clear under Defendants’ definition what “the streaming material originates” from means.
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`For example, in a live context illustrated in Fig. 1 of the ’594 Patent, a performer may speak into
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`a microphone that is, in turn, connected to a computer and a hard disk. What is the “originator”
`
`in this context? The performer, the microphone, the hard disk that stores data for transmission, or
`
`the computer itself? Under Defendants’ construction the Court could traverse down a rabbit hole
`
`looking for the ultimate “originator” of the underlying data, when in reality the answer is plain
`
`from the intrinsic record: the originator is irrelevant to the media source, which is the source that
`
`provides media data to the claimed client device.
`
`Defendants would drum up a distinction without a difference when they point out that the
`
`’594 Patent claims recite a media source whereas the ’824 and ’636 Patents recite servers, and
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`again assume the conclusion by stating that such servers “may not be the ‘media source.’”
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`Amazon Br. at 5. The difference in claiming style is obvious, since the ’594 Patent is directed to
`
`the client side, whereas the ’824 and ’636 Patents are directed to the server side. To the client,
`
`every server is a potential media source, and the ’594 Patent claims reflect this. By contrast, the
`
`’824 Patent recites “reading, by at least one computer of the server system, the pre-recorded
`
`audio or video program from the computer-readable media” (’824 Patent, 16:40-42), while the
`
`’623 Patent recites “receiving at the server system a continuous digitally encoded stream for the
`
`audio or video program, via a data connection from a live source….” ’623 Patent, 16:31-33. In
`
`each case, the claims in these two patents respectively distinguish between pre-recorded and live
`
`media sources. From the standpoint of the client, however, the difference is irrelevant in this
`
`regard – both are “media sources” and the ultimate origin of the media is immaterial.
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
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` Page 8
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 13
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`

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`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 14 of 21
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`Defendants’ analogy of a son sending a letter to his mother is flawed. If one wishes to
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`rely upon such analogies, in the instant context a more proper one would be a television tuning in
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`to a television station, for which the television station transmitter (or upstream cable station) is
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`the “source” of the media transmission even though it is not the “originator” of such content.
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`The Court should thus afford this term its plain and ordinary meaning.
`
`B. “playback rate” (’594 patent, claims 1, 6, 11; ’824 Patent, claims 1, 5, 9; ’636 Patent,
`claims 1, 5, 9)
`
`The term “playback rate” is not a technical term that requires construction, nor is it a term
`
`that would have special meaning to a POSITA, other than referring to normal as opposed to fast-
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`forward or slow-motion playback. Teruya Dec ¶¶ 24-26. This is made clear from specifications
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`of the Asserted Patents: “In conventional systems for streaming media over the Internet, media
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`data (whether real-time or file based) is simply transmitted from the server to the user at the rate
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`at which it will be played out (the ‘playback rate’), regardless of the data rate capabilities of the
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`connection between the server and the user.” ’594 Patent, 5:60-65. It is clear from this that the
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`“playback rate” means exactly what the plain and ordinary language suggests: the rate at which
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`the media is played out in a normal rendition.
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`Defendants’ construction is improper because it takes simple, conventional terms and
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`injects undue complexity into them (“rate at which the data is encoded for playback”), while
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`being entirely unnecessary to understand either these terms or their broader context within the
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`Asserted Patents. Further, Defendants’ construction is simply confusing in that, grammatically, it
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`seems to refer to how quickly the media is encoded (“a rate at which the data is encoded”) rather
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`than how quickly the media is played back by the user device.
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`In view of the above, the Court should simply adopt the plain and ordinary meaning for
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`this term.
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`Plaintiff’s Responsive Claim Construction Brief (Amazon)
`
` Page 9
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`Amazon / WAG Acquisition
`Exhibit 1010
`Page 14
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`

`

`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 15 of 21
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`C. “data rate” (’594 Patent, claims 1, 6, 11; ’824 Patent, claims 1, 5, 9; ’636 Patent,
`claims 1, 5, 9)
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`According to the claim language, “the data connection has a data rate more rapid than the
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`playback rate of the media data elements….” E.g., ’594 Patent, 16:43-45. Nothing more of “data
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`rate” is required than this, which is plain on its face.
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`Defendants inject an additional limitation into this language by stating that “data rate” is
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`“the actual rate at which the data connection delivers data to the [media player / requesting user
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`system] at any given time.” Defendants’ construction is wrong not merely because it unduly
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`narrows the claim language, but because it is flatly contradicted by the intrinsic record and runs
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`counter to the invention itself.
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`By way of reference to the ’594 Patent, the specification begins by noting that
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`“[t]ransmitting the audio or video material over a connection slower than the bandwidth
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`requirement [of the media data] results in unsatisfactory viewing or listening, if viewing or
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`listening is possible at all,” and then discusses that for a data connection with a “maximum
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`receive data rate of 56,000 bits per second,” “achieving adequate audio and video over the
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`Internet may consume a considerable portion of the listener’s available bandwidth.” ’594 Patent,
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`4:44-54. The specification goes on to add that “[e]ven if a user’s Internet connection has the
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`requisite average bandwidth capacity to allow reception of the program, the actual rate of
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`delivery of data to the user can fluctuate widely above, and more particularly, below, this
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`average, as a function of the quality of the user's connectivity at any given time,” and provides
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`examples as to why this may occur. Id., 5:7-12. The Asserted Patents allow the client device to
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`play media from a media source even when there are such networking interruptions and/or
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`slowdowns between the two. See id., 9:1-17. The specification acknowledges that “[c]onnections
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`from the server 12 through the Internet 10 commonly are much faster than the data rate required
`
`Plaintiff’s Responsive Claim Construction Brief (Amazon)
`
` Page 10
`
`Amazon / WAG Acquisition
`Exhibit 1010
`Page 15
`
`

`

`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 16 of 21
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`for audio or video playback.” Id., 9:22-24. However, the specification also explains that “[t]he
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`media data will be transmitted to the user computer as fast as the data connection between the
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`user computer and the server will allow.” Id., 14:60-62. In other words, the buffering
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`embodiment contemplates that when requested data elements are sent, it will be sent as fast as
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`possible, where, as noted above the disclosure (at 9:22-24) further specifies that the data
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`connection should have a data rate that is faster than the playback rate. See Teruya Dec. ¶ 31.
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`Defendants’ arguments in support of their claim construction position is, at best,
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`confusing. According to Defendants, “[i]f the data rate were merely a theoretical capability of the
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`data connection, as WAG intends to argue, the claims would allow the media data elements to be
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`sent at the playback rate….” Amazon Br. at 10. This is flatly contradicted by the claim language
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`(as directly supported by the above-cited disclosure), and the claim language recites, for
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`example, “the data connection has a data rate more rapid than the playback rate of the media data
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`elements, and each received media data element is received at a rate as fast as the data
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`connection between the media source and the media player allows….” ’594 Patent, 16:43-47.
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`Obviously, apart from congestion and interruptions that the Asserted Patents are specifically
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`tailored to deal with, the media data elements are not sent at the playback rate, but at a rate faster
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`than the playback rate, the object being to make use of the available connection bandwidth to be
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`able to send the requested elements as fast as possible on demand.
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`Defendants’ argument that “sending media data ‘at a higher than playback rate’ is what
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`purportedly distinguishes the alleged invention from the prior art,” and then twisting this to argue
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`“the claimed ‘data rate’ must be the rate at which the data connection actually delivers data to the
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`user for the present invention to work” is also disingenuous. Amazon Br. at 9; see also id. at 10.
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`The cited language in column 5 of the ’594 patent states that “[i]n conventional systems for
`
`Plaintiff’s Responsive Claim Construction Brief (Amazon)
`
` Page 11
`
`Amazon / WAG Acquisition
`Exhibit 1010
`Page 16
`
`

`

`Case 6:21-cv-00815-ADA Document 38 Filed 04/01/22 Page 17 of 21
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`streaming media over the Internet, media data (whether real-time or file based) is simply
`
`transmitted from the server to the user at the rate at which it will be played out (the ‘playback
`
`rate’), regardless of the data rate capabilities of the connection between the server and the user.”
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`In the pull embodiment (and the asserted claims), however, data is accumulated in identified data
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`elements on the