Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 1 of 12
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`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 SUR-REPLY CLAIM CONSTRUCTION BRIEF
`
`Amazon / WAG Acquisition
`Exhibit 1013
`Page 1
`
`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 2 of 12
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`TABLE OF CONTENTS
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`
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`
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`I.
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`II.
`
`
`
`
`A.
`B.
`C.
`D.
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`DISPUTED CONSTRUCTIONS ....................................................................... 1
`“the media source” (’594 Patent, claims 1, 6, 11) ................................................. 1
`Patent, claims 1, 5, 9) ............................................................................................ 4
`claims 1, 5, 9) ........................................................................................................ 4
`construction proposed) .......................................................................................... 5
`CONCLUSION .................................................................................................... 7
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`“playback rate” (’594 Patent, claims 1, 6, 11; ’824 Patent, claims 1, 5, 9; ’636
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`“data rate” (’594 Patent, claims 1, 6, 11; ’824 Patent, claims 1, 5, 9; ’636 Patent,
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`“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 1013
`Page 2
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 3 of 12
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`
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`TABLE OF AUTHORITIES
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`Cases
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`PAGE(S)
`
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`Multiform Desiccants, Inc. v. Medzam, Ltd.,
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`133 F.3d 1473 (Fed. Cir. 1998).......................................................................................... 1
`
`Oatey Co. v. IPS Corp.,
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`514 F.3d 1271 (Fed. Cir. 2008).......................................................................................... 3
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`Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd.,
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`476 F.3d 1321 (Fed. Cir. 2007).......................................................................................... 5
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`
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`
`
`ii
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 3
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 4 of 12
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`TABLE OF DISPUTED TERMS AND CONSTRUCTIONS
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`WAG’s Proposed
`Constructions
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`Amazons’s Proposed
`Constructions
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`Item
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`Item 1: “as required to
`maintain about a
`predetermined number of
`media data elements”
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`ʼ594 Patent, claims 1, 6, 11.
`Item 2: “playback rate”
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`’594 Patent, claims 1, 6, 11;
`’824 Patent, claims 1, 5, 9;
`’636 Patent, claims 1, 5, 9.
`Item 3: “data rate”
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`’594 Patent, claims 1, 6, 11;
`’824 Patent, claims 1, 5, 9;
`’636 Patent, claims 1, 5, 9.
`Item 7: “the media source”
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`ʼ594 Patent, claims 1, 6, 11.
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`Plain and ordinary meaning.
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`Indefinite under § 112.
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`Plain and ordinary meaning.
`
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`A rate at which the data is
`encoded for playback to a
`user.
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`Plain and ordinary meaning.
`
`
`Plain and Ordinary Meaning
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`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.
`
`iii
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 4
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 5 of 12
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`I.
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`DISPUTED CONSTRUCTIONS1
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`A. “the media source” (’594 Patent, claims 1, 6, 11)
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`The ’594 Patent, in its preamble, recites “a media source.” The word “source” is
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`commonly understood to refer to a facility from which something comes or can be obtained. As
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`argued in WAG’s Responsive Brief, on its face, this can be any source of media, i.e., any
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`upstream source from which media comes.
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`For methods and systems for a “media player to receive and play an audio or video
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`program,” which is the subject matter of the claims of the ’594 Patent, the media source is
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`wherever that player gets its media, regardless of where the media originated. That is the plain
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`meaning of the term media source – the source of the media for the player in question.
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`Contrary to Amazon’s argument (Amazon Reply Br. at 1), WAG is not re-writing the
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`claims. The source of a player’s media is what sends media to the player. The player is not at all
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`concerned with the original place from which the media may have originated, but rather just
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`where it gets the media to play.
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`Amazon’s interpretation that the “media source” must be the device that “originates” the
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`media does not reflect the ordinary meaning of the word “source,” but rather a special, limited
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`interpretation.
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`However, any special meaning assigned to a term “must be sufficiently clear in the
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`specification that any departure from common usage would be so understood by a person of
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`experience in the field of the invention.” Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d
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`1473, 1477 (Fed. Cir. 1998).
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`1 WAG contends that, unless otherwise noted, the Disputed Terms may be construed consistently
`across the Asserted Patents.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Amazon)
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` Page 1
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 5
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 6 of 12
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`Amazon argues that the specification effectively redefined the term “source” as a result
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`of having references to a server that captures data from a live performance as a “media source.”
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`However, the mere fact that the specification refers in some examples to an originating
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`source as a “media source” does not constitute a limiting definition of the term.
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`Amazon would have the Court lose sight of the fact that the disclosure refers to two types
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`of media, one being of a realtime nature (or live), and the other from a nonrealtime source such
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`as a disk file. ’594 Patent, 5:33-38. The disclosure thus gives examples of two types of sources
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`(as “source” is ordinarily understood). For example, it shows server 12, which acts as a source of
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`media to user computer 18, as well as computer system 28, which originates live content and
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`serves as a source to server 12. Id., 12:59-67. In the case of pre-recorded content, the description
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`states that the server computer simply reads it from disk. Id., 8:2.
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`The same disclosure goes on to refer to server 12 as “transmit[ting] the media data to one
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`or more user computers 18.” Id., 13:24-25. Significantly (e.g., id., 11:7-19), the disclosure also
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`refers to server 12 as a “source server,” clearly a usage of “source” in its ordinary sense, not
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`limited as Amazon argues. Arguing that a “source server” that transmits media data to user
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`computers is not a “media source” to those computers is splitting hairs far too finely for a
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`limiting claim construction, especially one based on importing a limitation from the
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`specification.
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`Further, specifically with regard to the pull embodiment, the specification refers to a
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`“media source” as a facility that performs “sequentially numbering the media data elements.” Id.,
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`14:43-45. However, as in the earlier disclosure at 12:59-67, it is “[t]he server buffer manager, or
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`the media source” that does this numbering—making clear that in the case of prerecorded media
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`on disk, there need not be a separate “media source” that originates data. Id. In either case
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`Plaintiff’s Sur-Reply Claim Construction Brief (Amazon)
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` Page 2
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 6
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 7 of 12
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`(separate “media source” or not), the description of the same embodiment goes on to say “the
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`user computer transmits a request to the server to send one or more data elements, specifying the
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`serial numbers of the data elements. The server responds by sending the requested data
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`elements.” Id., 14:51-54. This is plainly a request by the client for media elements, and a
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`response by the server sending the same—with the “server” thereby acting as a “source” of the
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`media to the user computer, as that term is ordinarily understood.
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` Amazon’s construction would also exclude disclosed embodiments (e.g., id., 12:59-67,
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`14:51-54), where a relaying server acts as the source to the client (which performs no differently
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`under the claims of the ’594 Patent depending on the “originality” of the source). See also id.,
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`2:48-49 (“The media data is delivered by a server computer, which has available to it the source
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`of the media data, such as by a connection to a radio station.”), 3:67-4:5 (addressing the pull
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`embodiment, and stating that “the server may operate by … receiving requests from the user
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`system for media data elements; and … sending media data elements to the user system
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`responsive to said requests”), 6:42-44, 7:37-49 (moving “data window” on the server as the
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`original source of the media), 7:51-54 (where the server receives the media from a real-time
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`source), 8:1-2, 8:36-40. The argument appears to be that WAG was doing this to affirmatively
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`limit the claims to the subject matter that pulls from the content originator. However, “it is
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`incorrect to construe the claims to exclude … embodiment[s], absent probative evidence [to] the
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`contrary” (Oatey Co. v. IPS Corp., 514 F.3d 1271, 1276-77 (Fed. Cir. 2008)), and Amazon’s
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`evidence of particular examples of specific types of media “sources” are countered by other
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`usages of the term that are not so limited. There is also no compelling (or indeed at all moving)
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`linguistic basis for Amazon’s limited construction that would outweigh the numerous intrinsic
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`Plaintiff’s Sur-Reply Claim Construction Brief (Amazon)
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` Page 3
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 7
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 8 of 12
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`indicators that the claims in question cover a process of pull-based streaming from any type of
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`Internet source.
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`Amazon’s construction also does not make sense for pre-recorded media. Where is it
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`“originated” for purposes of this claim (and why would it be material so long as the server can
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`access a copy)?
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`In sum, Amazon’s proposed construction is an improper attempt to import a limitation
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`from the specification into the claims.
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`B. “playback rate” (’594 Patent, claims 1, 6, 11; ’824 Patent, claims 1, 5, 9; ’636 Patent,
`claims 1, 5, 9)
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`Amazon’s proposed construction is a reasonable example of the prevalent usage of this
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`term, except that the patent regarded this rate more as “the” rate at which data is encoded for
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`playback to a user, rather than “a” rate.
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`Since claim construction should preferably not depend on the details of technological
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`implementation, and since the experts do not consider this term difficult to apply, the Court
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`should simply adopt plain and ordinary meaning for this term.
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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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`There are two rate-related aspects to these claims, which concern (a) the capacity of the
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`connection (this limitation), and (b) the rate at which the connection is actually utilized to send
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`or receive data (a separate limitation addressed by Amazon’s co-defendant, Google). Amazon’s
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`construction of the “data rate” limitation would blur the two limitations, incorrectly putting
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`considerations of “actual rate” “and any given time” into a limitation that on its face addresses a
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`characteristic of the connection itself. The disclosure relates “data rate” to “bandwidth” (e.g.,
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`’824 patent, 4:38-41), and addresses the “bandwidth capacity” of the data connection (id., 5:7-
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`12; 4:47-49). The issue is simply how a POSITA would quantify the bandwidth of the given
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`Plaintiff’s Sur-Reply Claim Construction Brief (Amazon)
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` Page 4
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 8
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 9 of 12
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`connection, a matter of plain and ordinary meaning. The other limitation (sending/receiving
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`(depending on the claim) the media data elements “as fast as the connection will allow”), is a
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`separate issue, not to be conflated with this limitation.
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`D. “as required to maintain about a predetermined number of media data elements”
`(’594 Patent, claims 1, 6, 11) (alleged indefinite, but with alternate (disputed)
`construction proposed)
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`As discussed in WAG’s Responsive Brief, “about” is interpreted in the technological
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`context and depends on the underlying technological facts. See Ortho-McNeil Pharm., Inc. v.
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`Caraco Pharm. Labs., Ltd., 476 F.3d 1321, 1326 (Fed. Cir. 2007).
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`The purpose of maintaining “about a predetermined number of media data elements” in
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`the user device buffer is clear. It is to ensure continuous playback. This is the context in the
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`disclosure encompassing different types of media elements that may be queued up in a buffer,
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`which could add up to aggregate totals (for the buffer level) that can vary, within bounds
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`understood by a person of ordinary skill in the art. Amazon’s hyperbole aside, Mr. Teruya has
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`provided testimony regarding how a person of ordinary skill in the art would read this term in the
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`context of the asserted claims and the full intrinsic record. D.I. 38-1 (“Teruya Decl.”) ¶¶ 27-29.
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`Variable Bit Rate encoding is disclosed in the specification. See ’594 Patent, 4:64-67
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`(“Variable Bit Rate encoding uses a variable number of bits to represent sounds or video, with
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`more bits required for complex material (e.g., symphonic sounds or action scenes) than for
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`simple sounds, silence, or still scenes.”). The specification states: “Statements in this
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`specification concerning ‘constant’ data rates and the like should be understood as subject to
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`appropriate variation where VBR-encoded data may be involved.” Id., 5:3-6.
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`As disclosed in the ’594 Patent, the object of the invention is to ensure “continuous and
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`uninterrupted playback.” ’594 Patent, 4:6-12. This encompasses variably as well as constant
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`encoded media, and the claims deal with this factor as well.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Amazon)
`
` Page 5
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 9
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 10 of 12
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`As discussed in WAG’s Responsive Brief, the purpose of the buffers in the ’594 Patent,
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`including the user-side buffer, is to ensure a steady flow of media for continuous playback. The
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`disclosure states:
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`As data is played out, the next sequential data elements are requested from the server in
`such a fashion as to approximately maintain the predetermined number of data elements
`in the user’s buffer.
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`Id., 15:15-18. “Approximately” is equivalent to the claim term “about.” The player seeks to keep
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`approximately about a predetermined number of media data elements in its buffer. There is a
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`range in this process, because the size of the individual data elements in the buffer can vary. This
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`consequence yields the “about.”
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`Depending on the encoding scheme, there are typical, known bounds to the variation
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`between bitrates in complicated / high bitrate portions of the media, such as the “action scenes”
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`versus less complicated / low bitrate portions of the media, such as still scenes. The differential is
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`a result of the encoding and is known to a POSITA, or easily determined from the specification
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`for the encoding scheme or a sampling of typical content so encoded. This is the basis for the
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`variability required in the “about a predetermined number of media data elements,” and it is a
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`well-understood variation.
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`Amazon makes the argument that the number of media data elements stored in the buffer
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`is not necessarily related to the size of each element. Amazon Reply Br. at 7. This may be true if
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`one is free to arbitrarily shrink the encoding, but this directly reduces reproduction quality. In the
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`real world, where quality of the presentation is also sought to be maximized, the size and number
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`of elements are obviously interrelated, as the entire purpose is to maintain a buffer sufficient to
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`avoid running out of media due to irregular reception, while maintaining the highest quality
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`possible. This is why the specification considers this a factor, and Amazon cannot explain it
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`away by contrived argument.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Amazon)
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` Page 6
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 10
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 11 of 12
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`Thus, in the context of the claim and the entire record, when read by a POSITA, the term
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`“about” has known bounds, based on the variability of the size of the media data elements due to
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`the VBR encoding.
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`A POSITA would understand this term. See Teruya Decl. ¶¶ 27-29.
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`II.
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`CONCLUSION
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`For the foregoing reasons, the Court should construe each of the above-noted limitations
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`to have its plain and ordinary meaning, which interpretation is consistent with the internal
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`language of the claims themselves and the specification.
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`
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`Dated: April 29, 2022
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`
`
`HALEY & OLSON, P.C.
`100 North Ritchie Road, Suite 200
`Waco, Texas 76712
`Tel: (254) 776-3336
`Fax: (254) 776-6823
`By: /s/ Brandon R. Oates
`Brandon R. Oates
`State Bar No. 24032921
`Email: boates@haleyolson.com
`
`
`OF COUNSEL:
`LISTON ABRAMSON LLP
`The Chrysler Building
`405 Lexington Ave, 46th Floor
`New York, New York 10174
`Tel: (212) 257-1630
`Ronald Abramson (Admitted pro hac vice)
`David G. Liston (Admitted pro hac vice)
`Ari J. Jaffess (Admitted pro hac vice)
`Alex G. Patchen (Admitted pro hac vice)
`M. Michael Lewis (Admitted pro hac vice)
`Gina K. Kim (State Bar No. 24097937)
`Email: docket@listonabramson.com
`
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`Attorneys for Plaintiff WAG Acquisition, L.L.C.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Amazon)
`
` Page 7
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 11
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`

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`Case 6:21-cv-00815-ADA Document 47 Filed 04/29/22 Page 12 of 12
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that the foregoing document was filed electronically with the
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`Clerk of Court using the CM/ECF system which will send notification of such filing to all
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`counsel of record on April 29, 2022.
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`/s/ Brandon R. Oates .
`BRANDON R. OATES
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`Amazon / WAG Acquisition
`Exhibit 1013
`Page 12
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