`
`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`WAG ACQUISITION, L.L.C.,
`
`– against –
`
`Plaintiff,
`
`AMAZON.COM, INC.,
`AMAZON WEB SERVICES. INC., and
`AMAZON.COM SERVICES LLC,
`
`Defendants.
`
`WAG ACQUISITION, L.L.C.,
`
`– against –
`
`GOOGLE LLC and
`YOUTUBE, INC.,
`
`Plaintiff,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`No. 6:21-cv-00815-ADA
`Patent Case
`
`No. 6:21-cv-000816-ADA
`Patent Case
`
`DECLARATON OF KEITH J. TERUYA
`
`I, Keith J. Teruya, declare as follows:
`
`1.
`
`I am submitting this declaration with regard to certain questions of a technical
`
`nature that have been referred to me in connection with the above-referenced litigation, which
`
`accuses the Defendants of infringing U.S. Patent Nos. 9,742,824 (Compl. Ex. A) (the “’824
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 1
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 3 of 11
`
`Patent”); 9,729,594 (Compl. Ex. B) (the “’594 Patent”); and 9,762,636 (Compl. Ex. C) (the
`
`“’636 Patent”) to Harold Price (collectively, the “Asserted Patents”).
`
`2.
`
`I am being compensated for my work in this matter by WAG Acquisition, L.L.C.
`
`(“WAG”), at the rate of $450.00 per hour, with reimbursement for actual expenses. I have no
`
`personal or financial stake or interest in the outcome of the above-referenced litigation. My
`
`compensation is not tied to the outcome of this matter, is not based on the substance of the
`
`opinions rendered here, and I have no financial interest in WAG.
`
`I. QUALIFICATIONS
`
`3.
`
`I have a long professional background in information technology and network
`
`engineering, and for the past 20 years I have been the chief executive officer of a specialized
`
`Internet hosting company that I founded, which among other things provides Tier I Network
`
`Operations Center capabilities for corporations, local municipalities, Federal Government
`
`programs, and regulatory agencies in and around southern California. Over the course of my
`
`career I have developed extensive technical experience in the field of the Asserted Patents, as
`
`discussed briefly below, including experience concerning multimedia communication protocols
`
`over the Internet and computer networks. A copy of my curriculum vitae is attached as Exhibit
`
`A.
`
`4.
`
`My day-to-day work in my present capacity involves direct hands-on as well as
`
`strategic involvement in the issues of networked data distribution and access, including without
`
`limitation architecting and configuring high-capacity content servers, proxy servers, content
`
`distribution networks (CDNs), edge and origin servers, peer-to-peer communications, as well as
`
`the lower-level routing and switching infrastructure and communications protocols and standards
`
`underlying such systems.
`
`- 2 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 2
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 4 of 11
`
`5.
`
`In prior positions, I was the Chief Technology Architect (in addition to being the
`
`CEO) for 15 years for a company I founded that was the original communications technology
`
`“skunk-works” for Novell Inc. In this capacity, I designed basic and advanced
`
`telecommunications and network interfaces for Novell and other companies and developed a
`
`mastery of the standards and protocols underlying the Internet. I authored the Network
`
`Communications Services Interface (“NCSI”) that became a de-facto communications software
`
`LAN/WAN standard, with more than 3 million deployments of software. I also developed
`
`protocol adjustments in Novell IPX Protocol for adaptive packet buffering required by
`
`LAN/WAN communication (Asynchronous and LAPB X.25) gateways, receiving Industry
`
`Product of the Year awards for successive years (1988, 1990, 1991 and 1996).
`
`6.
`
`I previously served for 10 years architecting network information processing
`
`technologies for Goldman Sachs as a senior consultant. In this capacity, I was the architect,
`
`designer, development manager, and developer in Goldman’s Network Workstation
`
`Technologies Department. I was also the architect of Goldman’s product strategy and
`
`deployment of online delivery of consolidated live market data information into local and wide
`
`area network-based workstations for mission critical securities trading operations in the
`
`worldwide trading rooms of the firm. In particular, I developed proprietary adaptive buffering
`
`protocols to mitigate stream delays when terrestrial transatlantic data links were routed through
`
`backup satellite connections affecting the flow of steaming market data feeds used for program
`
`trading operations.
`
`7.
`
`As Chief Technology Officer of ShowBizData Inc. between 2000 and 2002 as an
`
`“early adopter” pioneered the online Internet streaming of various lived events of the Cannes
`
`- 3 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 3
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 5 of 11
`
`Film Festival, BFTA Awards and the Sundance Film Festival using both commercial and
`
`proprietary systems we architected and developed.
`
`8.
`
`9.
`
`I am also a Network Computing Paradigm Award recipient.
`
`I believe that I am qualified to provide reliable technical opinions in the field of
`
`the Asserted Patents.
`
`II. LEVEL OF SKILL IN THE ART
`
`10.
`
`I have been asked to identify the level of training and/or experience that would
`
`qualify someone as a person of ordinary skill in the art (“POSITA”), in the field of the Asserted
`
`Patents (Internet streaming media), circa 1999-2000. In my opinion, a POSITA would have
`
`working familiarity with the basic standards applicable to distribution content over the Internet,
`
`including the most common video encoding and streaming protocols. In my view, the education
`
`and/or working experience necessary to acquire the requisite familiarity with the subject matter
`
`to qualify as a POSITA would have included either (1) a bachelor’s degree or equivalent in a
`
`field such as Electrical Engineering, Computer Engineering, or Computer Science, or an
`
`equivalent field that includes network engineering as a topic of study, plus at least one year of
`
`practical academic or industry technical experience in the computer network field, such as
`
`serving as an engineer for an streaming content provider performing network design,
`
`development, or configuration tasks, or as a software developer for network communications
`
`software or related utility software, or (2) or at least three years’ fulltime technical experience as
`
`stated (or an equivalent combination of academic study and work experience).
`
`III. TECHNICAL BACKGROUND
`
`11.
`
`I refer herein to text found in the specifications of the Asserted Patents. These
`
`patents differ in the claims appended at the end of the respective patent documents, but share a
`
`- 4 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 4
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 6 of 11
`
`common written description preceding the claims, and a common set of drawings. However, due
`
`to pagination and other incidents of the Patent Office printing process, the line and column
`
`citations for specific wording varies slightly from patent-to-patent. Unless otherwise noted, my
`
`citations are to the column and line numbers of the ’594 patent (chosen only because that is the
`
`patent most cited by the Defendants in their submissions).
`
`12.
`
`Digital media programming may be collected in the aggregate in a media file on
`
`an electronic storage device, e.g., a computer disk. See 1:57-60.
`
`13.
`
`The programming may be distributed by distributing replicas of the physical
`
`medium (e.g., CDs or DVDs), or by download over a communications network of the entire file
`
`comprising the program.
`
`14.
`
`However, it is often considered advantageous to stream the file rather than
`
`provide physical copies or a download of the entire program, for numerous reasons, including,
`
`for example, handling live programming where the program may be ongoing or concerns a
`
`current event, and should be delivered in at least perceived real time. See, e.g., 1:60-67. It is also
`
`well appreciated that other reasons for streaming as opposed to download include efficiency of
`
`time and bandwidth utilization, limiting unauthorized copying, etc.
`
`15.
`
`Digital media comprises a time-sequenced succession of data elements, into
`
`which an audio/video program is digitally encoded, and from which encoding it is electronically
`
`played out, in the proper sequence, in a player device. See, e.g., 6:30-32.
`
`16.
`
`Communicating a time-sequenced and continuous stream of data such as that in
`
`an audio/video encoding and playback places demands on the communications channel,
`
`especially where the channel is over the Internet. See 2:34-40.
`
`- 5 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 5
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 7 of 11
`
`17.
`
`The Internet operates on individually routed packets of typically 1500 bytes each.
`
`Data elements cognizable to user applications are repackaged into such packets, on the server,
`
`for transmission. The packets are reassembled at the receiving end for the corresponding
`
`application on the receiving side. “Transport” mechanisms exist to handle transit of the packets
`
`through the network (such as Transmission Control Protocol (TCP), though there are others).
`
`Transport protocols such as TCP are engineered to ensure “reliable” delivery of the packets –
`
`i.e., that they all (eventually) get through, and are provided at the receiving end in the proper
`
`order. However, given the compromises built into a routed packet network such as the Internet,
`
`such “transport protocols” do not guarantee “timely” delivery of the packets. There is inherent
`
`uncertainty as to when packets will arrive.
`
`18.
`
`Distributing Internet streaming media to a mass audience requires other
`
`techniques (beyond what is provided at the transport layer of the networking technology), in
`
`order to provide acceptable streaming startup characteristics and continuity. These are addressed
`
`by the patents in this case. Without such measures, the streaming can be very frustrating to users,
`
`for two principal reasons: (1) the necessity to “buffer” data on the player side before starting
`
`playback, entailing a startup delay comparable in duration to the number of seconds of buffer
`
`protection required, and (2) interruptions resulting when the player buffer runs out of data.
`
`19.
`
`20.
`
`The patents in this case provide solutions for this problem.
`
`In one embodiment (not directly involved here), the server also buffers data and
`
`uses the buffer it builds up prior to starting the transmission to jump-the start with a high-speed
`
`transmission of an entire buffer-load of streaming data to the player. This provide a rapid startup
`
`of playback and establishes a full buffer on the player side to protect the remainder of the
`
`transmission. See, e.g., id., 8:1-26.
`
`- 6 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 6
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 8 of 11
`
`21.
`
`The solution particularly relevant to the infringement charged in this case is
`
`disclosed and claimed in connection with what is referred to as a “pull” embodiment. See id.,
`
`14:42-15:18.
`
`22.
`
`In the pull embodiment, as described primarily at 14:42-15:18 in the ’594 patent,
`
`the pace of transmission of a stream can instead be regulated by player requests for elements of
`
`the stream. In the pull embodiment, streaming data elements are accumulated on the server side
`
`from a media source (similar to the “buffer” in the above-described embodiment), and are 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
`
`time than it takes to play it back, this technique 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 the filling of
`
`the player buffer and the ability to begin playback, providing a startup benefit comparable to that
`
`provided by the buffering embodiment.
`
`IV. VIEWS ON SPECIFIC TECHNICAL ISSUES
`
`23.
`
`The Defendants in the Amazon and Google cases make overlapping claim
`
`construction requests. I have been asked to address specific technical issues referred to me with
`
`regard to the Defendants’ requests.
`
`1. Playback rate
`
`24.
`
`“Playback rate” is sometime used in streaming technology to refer to the
`
`“normalness” of playback, and described by a metric, which is not a data rate itself, but rather a
`
`- 7 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 7
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 9 of 11
`
`characteristic of how the data is to be played back. Thus, in that usage, “1.0” means normal
`
`rendition, numbers higher than 1.0 mean speeded-up rendition, and numbers lower than 1.0 mean
`
`slow motion (or if negative, reverse) rendition.
`
`25.
`
`The programming is also encoded, typically not just as binary 1s and 0s
`
`corresponding to raw camera and microphone inputs, but in a manner that processes, shapes,
`
`organizes, and most importantly, compresses the digital representation. An important variable in
`
`the encoding is the resolution of the media – how many pixels are in the image and its size and
`
`shape, and how precisely and often sound, illumination and coloring levels are sampled. It is
`
`customary to encode the media at a nominal bitrate (bits per second). The actual bitrate will often
`
`be variable, due to taking advantage of providing higher compression to slow-moving material
`
`(because the data for slow-moving material has more redundancy that can be removed by
`
`compression). The nominal bitrate in such cases is approximate.
`
`26.
`
`As used in the specification, a POSITA would understand “playback rate” to refer
`
`to the bitrate of the media data at a normal (1.0) rendition. Because of the considerations noted
`
`above, the playback rate, as a data rate, may of necessity be approximate.
`
`2. “as required to maintain about a predetermined number of media data elements”
`
`27.
`
`A POSITA might analogize this to maintaining about a target level in a gas tank
`
`during an automobile trip. Any attentive driver appreciates that due to variable distances to gas
`
`stations, the tank level may end up varying slightly from the target before a fill-up, with no
`
`operational downside.
`
`28.
`
`In the streaming context, there can well be a similar factor at play, resulting from
`
`the varying sizes of streaming data elements, due to variable bitrate (VBR) encoding. This is
`
`addressed at 4:55-5:6 of the specification.
`
`- 8 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 8
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 10 of 11
`
`29. Media data elements are discrete, as far as media applications are concerned. In
`
`the case where the media is VBR-encoded, the size of the elements can vary. Since the elements
`
`are handled as units, and the size (as well as duration) of individual elements can vary, target
`
`buffer levels therefore must be approximate. But since multiple elements will be in the buffer,
`
`the variation in just how full the buffer is when near the target level is not operationally
`
`significant. It is akin to a rounding error, or filling a bucket to a specified level with irregular
`
`objects. This is not a practical issue at all for a POSITA, any more than a recipe calling for two
`
`cups of large shrimp would be indefinite for a chef.
`
`3. “each sending is at a transmission rate as fast as the data connection between the
`server system and each requesting user system allows”
`
`30.
`
`The specification says that “[t]he server buffer 14 ‘sends’ data by delivering it to
`
`the transport mechanism.” A POSITA understands that, in a server sending data over a transport
`
`mechanism, the transport mechanism makes a “connection” with the requesting user system, and
`
`that once data is delivered to the transport mechanism, for that connection, it is sent to the user
`
`system as fast as possible, taking into account everything that Defendants raise, including the
`
`maximum capacity of the connection elements themselves, the available bandwidth, and the
`
`permitted bandwidth. “As fast as the data connection … allows” requires nothing more than
`
`simply handing the data to the transport mechanism. This is evident to a POSITA even without
`
`reference to the specification, but is certainly reinforced by the express description at 8:38-48 (of
`
`the ’824 patent; 8:36-46 of the ’594 patent).
`
`4. “data rate”
`
`31.
`
`A POSITA would understand the term “data rate” as used the specified claims as
`
`referring to the rate at which the connection between the server and the user system operates.
`
`The claims specify both that the data is sent as fast as this connection will allow, and that that
`
`- 9 -
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 9
`
`
`
`Case 6:21-cv-00816-ADA Document 39-1 Filed 04/01/22 Page 11 of 11
`
`Amazon / WAG Acquisition
`Exhibit 1026
`Page 10
`
`