Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`WAG ACQUISITION, L.L.C.,
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`– against –
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`GOOGLE LLC and
`YOUTUBE, INC.,
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`Plaintiff,
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`Defendants.
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`No. 6:21-cv-00816-ADA
`Patent Case
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`PLAINTIFF’S SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 1
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 2 of 14
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`TABLE OF CONTENTS
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`
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`I.
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`II.
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`A.
`B.
`C.
`D.
`E.
`F.
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`“as required to maintain about a predetermined number of media data elements”
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`“each sending is at a transmission rate as fast as the data connection between the
`server system and each requesting user system allows” (ʼ824 Patent, claims 1, 5,
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`“all of the media data elements that are sent by the server system to the
`requesting user systems are sent from the data structure under the control of the
`server system as the media data elements were first stored therein” (ʼ824 Patent,
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`“supplying, at the server system, media data elements representing the program”
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`DISPUTED CONSTRUCTIONS ....................................................................... 1
`(ʼ594 Patent, claims 1, 6, 11) (alleged indefinite) ................................................. 1
`“a predetermined number of media data elements” (ʼ594 Patent, claims 1, 6, 11) 3
`“the media source” (ʼ594 Patent, claims 1, 6, 11) ................................................. 4
`9; ʼ636 Patent, claims 1, 5, 9) (alleged indefinite) ................................................ 7
`claims 1, 5, 9; ʼ636 Patent, claims 1, 5, 9) (alleged indefinite) ............................. 8
`(ʼ824 Patent, claims 1, 5, 9; ʼ636 Patent, claims 1, 5, 9) ....................................... 8
`CONCLUSION .................................................................................................... 9
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`
`
`i
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 2
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 3 of 14
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`
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`TABLE OF AUTHORITIES
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`PAGE(S)
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`Cases
`
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`Multiform Desiccants, Inc. v. Medzam, Ltd.,
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`133 F.3d 1473 (Fed. Cir. 1998).......................................................................................... 5
`
`Oatey Co. v. IPS Corp.,
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`514 F.3d 1271 (Fed. Cir. 2008).......................................................................................... 7
`
`Ortho-McNeil Pharm., Inc. v. Caraco Pharm. Labs., Ltd.,
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`476 F.3d 1321 (Fed. Cir. 2007).......................................................................................... 1
`
`Rehco LLC v. Spin Master, Ltd.,
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`759 F. App’x 944 (Fed. Cir. 2019) .................................................................................... 4
`
`
`ii
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 3
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 4 of 14
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`I.
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`DISPUTED CONSTRUCTIONS1
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`A. “as required to maintain about a predetermined number of media data elements”
`(ʼ594 Patent, claims 1, 6, 11) (alleged indefinite)
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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. Google’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. 39-1 (“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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`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 (Google)
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` Page 1
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 4
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 5 of 14
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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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`Google 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. This may be true if one is free to arbitrarily
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`shrink the encoding, but this directly reduces reproduction quality. In the real world, where
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`quality of the presentation is also sought to be maximized, the size and number of elements are
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`obviously interrelated, as the entire purpose is to maintain a buffer sufficient to avoid running out
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`of media due to irregular reception, while maintaining the highest quality possible. This is why
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`the specification considers this a factor, and Google cannot explain it away by contrived
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`argument.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
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` Page 2
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 5
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 6 of 14
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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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`B. “a predetermined number of media data elements” (ʼ594 Patent, claims 1, 6, 11)
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`The dispute as to “predetermined” is before what event or step the number has to be
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`determined. Nothing in the language of the claims supports Google’s limiting argument.
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`Google’s argument generally presumes the conclusion that predetermined must be determined
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`before playback and that the predetermined number cannot be changed during the course of
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`playback. But nothing in the claims or specification of the ’594 Patent is so limiting.
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`In the claims of the ’594 Patent, “predetermined” is recited as a target, in the context of
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`the media player “sending additional requests for subsequent media data elements for storage in
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`the memory of the media player.” See ’594 Patent, claim 1. The claim language requires nothing
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`more than that the number is determined before the sending of the additional requests.
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`Nothing in the specification or claims requires that the number be determined before the
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`start of playback. Google cites language from the specification (id., 15:9-18) about the user
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`player storing “a predetermined number” of elements and then acting “to approximately maintain
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`the predetermined number,” and “the” latter predetermined number must be the same number as
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`the predetermined number save. This, however, fails to establish that the predetermination must
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`be before the start of playback.
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`Furthermore, nothing the foregoing nor anything else in the claim language or the
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`specification limits the predetermined number to having to remain constant throughout the
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`course of playback. Indeed, the claims’ wording of “a” as opposed to “the,” in “to maintain about
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`a predetermined number,” does not read as limited to one fixed predetermined number.” See,
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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
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` Page 3
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 6
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 7 of 14
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`e.g., Rehco LLC v. Spin Master, Ltd., 759 F. App’x 944, 949 (Fed. Cir. 2019) (“[A]s a general
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`rule, the words ‘a’ or ‘an’ in a patent claim carry the meaning of ‘one or more.’”) (quoting 01
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`Communique Lab., Inc. v. LogMeIn, Inc., 687 F.3d 1292, 1297 (Fed. Cir. 2012)). Literally,
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`reference to “a” predetermined number can denote any determination made any time prior to
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`whatever it is that is referencing it, in this case, the action the user system performs in sending
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`each request, so as to maintain such a “predetermined number.”
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`The language of the claim speaks thus for itself and requires no construction.
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`The plain and ordinary meaning for this term should therefore be adopted.
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`C. “the media source” (ʼ594 Patent, claims 1, 6, 11)2
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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 (WAG Acquisition, L.L.C. v. Amazon.com, Inc., No.
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`6:21-cv-00815-ADA, Dkt. No. 42 at 1 (W.D. Tex. Apr. 15, 2022)), 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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`2 In its Reply Brief, Google incorporated by reference Amazon’s arguments regarding this claim
`term as presented in Amazon’s Opening Claim Construction Brief. See Google Reply Br. at 5
`(citing WAG Acquisition, L.L.C. v. Amazon.com, Inc., No. 6:21-cv-00815-ADA, Dkt. No. 37 at
`3-5 (W.D. Tex. Mar. 11, 2022)). As such, WAG responds to “Amazon’s” arguments; however,
`for the sake of clarity, Amazon’s arguments are also Google’s via Google’s incorporation.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
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` Page 4
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 7
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 8 of 14
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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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`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
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`of 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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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
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` Page 5
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 8
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 9 of 14
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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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`(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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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
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` Page 6
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 9
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 10 of 14
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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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`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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`D. “each sending is at a transmission rate as fast as the data connection between the
`server system and each requesting user system allows” (ʼ824 Patent, claims 1, 5, 9;
`ʼ636 Patent, claims 1, 5, 9) (alleged indefinite)
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`As outlined in WAG’s Responsive Brief, the plain meaning of this term is clear. The term
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`simply means, as stated in the words of the limitation itself, that each sending is as fast as the
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`connection allows. This is in contrast to prior art systems that meter or slow down the sending
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`rate, generally to the playback rate. See ’824 Patent, 5:60-65. Here, the sending rate between the
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`server system and each requesting user system is as fast as the connection allows / as fast as
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`possible.
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`An analogy is to a car, using the term “floor it.” It is clear.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
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` Page 7
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 10
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 11 of 14
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`Google points to disclosures about theoretical highest speed of a connection, actual
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`highest speed of a connection, and average speed of a connection. These are all beside the point
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`for this sending limitation. The point is that each sending is as fast as possible, with no metering
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`of the transmission once the data is sent. This is outlined in WAG’s Responsive Brief, discussing
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`the delivery of the data to the TCP transport mechanism. See ’824 Patent, 8:38-48; Teruya Decl.
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`¶ 30.
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`There is no indefiniteness here. The sending is as fast as the connection will allow, in
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`contrast to prior art systems where the media server software metered the sending rate by, e.g.,
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`limiting sending to the playback rate.
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`This term should be given its plain and ordinary meaning.
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`E. “all of the media data elements that are sent by the server system to the requesting
`user systems are sent from the data structure under the control of the server system
`as the media data elements were first stored therein” (ʼ824 Patent, claims 1, 5, 9;
`ʼ636 Patent, claims 1, 5, 9) (alleged indefinite)
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`WAG agrees with Google on the construction of this term. See Google Reply Br. at 7.
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`F. “supplying, at the server system, media data elements representing the program”
`(ʼ824 Patent, claims 1, 5, 9; ʼ636 Patent, claims 1, 5, 9)
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`Corresponding to its faulty argument that the client of the ’594 Patent must request data
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`only from a server that “originates” the media data elements, Google argues, with respect to the
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`server-side ’824 (pre-recorded) and ’636 (live) claims, that “supplying” needs to be re-written as
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`“creating” because the claimed server systems must create the media data elements. However,
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`the claimed systems do not need to themselves create the media data elements, as these can be
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`received from other servers. See, e.g., “source server 12” (referred to as such, e.g., ’636 Patent,
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`11:7-19; ’824 Patent, 11:11-23), which is also recited as receiving media data “in real time”
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`(live) from computer system 28 “at a broadcast media source, such as a radio station.” ’824
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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
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` Page 8
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 11
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 12 of 14
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`Patent, 12:63-66; ’636 Patent, 12:59-62. Or the data can “from a stored file on the source server
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`12.” e.g., ’824 Patent, 11:21-22; ’636 Patent, 11:16-19.
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`Google’s further assertion that “the patent contains no disclosure of transmitting that live
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`audio or video program to ‘another actor’ or ‘another place’ to create the media data elements”
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`(Google Reply Br. at 8) is simply incorrect. See ’636 Patent, 12:60-67 (“media source may be
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`separate from the server 12 … can be physically collocated … or it can be remote … such as a
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`computer in a data center receiving digitized audio from a distant radio station”) (emphasis
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`added).
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`Moreover, Google’s assertion that “supplying” can only mean “creating” because (per the
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`claims) the server only receives a digitally encoded stream, in which the media data elements
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`may not yet have been “created,” is similarly off base. The mere fact that the server has received
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`some digitally encoded feed—even one that already contains the media data elements that will be
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`distributed—does not make “supplying” the elements at the server redundant. It only means that
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`the server has to make the elements (even if they exist as received) available (e.g., indexing,
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`storage arrangement, permissions, etc.) to whatever process in the server distributes (serves)
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`them to users. Reading a further requirement of “creating” into “supplying” is unwarranted.3
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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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`3 To the extent that media data elements must be “created” somewhere, this “creating,” in itself,
`is not a recited claim step. Supplying could relate to creating but does not equate to creating.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 9
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 12
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 13 of 14
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`Dated: April 29, 2022
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`
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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
`
`
`Attorneys for Plaintiff WAG Acquisition, L.L.C.
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`Plaintiff’s Sur-Reply Claim Construction Brief (Google)
`
` Page 10
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`Amazon / WAG Acquisition
`Exhibit 1028
`Page 13
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`

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`Case 6:21-cv-00816-ADA Document 45 Filed 04/29/22 Page 14 of 14
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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 1028
`Page 14
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