Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 1 of 26
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`STRATOSAUDIO INC.,
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`v.
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`HYUNDAI MOTOR AMERICA,
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`STRATOSAUDIO INC.,
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`v.
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`MAZDA MOTOR OF AMERICA, INC.,
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`STRATOSAUDIO INC.,
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`v.
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`SUBARU OF AMERICA, INC.
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`STRATOSAUDIO INC.,
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`Plaintiff,
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`
`v.
`VOLVO CARS USA, LLC,
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`STRATOSAUDIO INC.,
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`
`v.
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`VOLKSWAGEN GROUP OF
`AMERICA, INC.,
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`
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`
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`Plaintiff,
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`Defendant.
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`DEFENDANTS’ REPLY CLAIM CONSTRUCTION BRIEF
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`Plaintiff,
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`Defendant.
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`Plaintiff,
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`Defendant.
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`Plaintiff,
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`Defendant.
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`Defendant.
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`Case No. 6:20-CV-01125-ADA
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`Case No. 6:20-cv-1126-ADA
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`Case No. 6:20-cv-1128-ADA
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`Case No. 6:20-cv-1129-ADA
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`Case No. 6:20-CV-01131-ADA
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 2 of 26
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`TABLE OF CONTENTS
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`Page
`
`I.
`II.
`
`III.
`
`“associated”/“associating”/“association” terms .............................................................. - 1 -
`“associating each . . . ” (’307 claim 11 and ’028 claim 11) ............................................ - 2 -
`A.
`The printed matter doctrine prevents Stratos’s interpretation. ............................ - 3 -
`B.
`Stratos’s Section 101 Analysis is Wrong ............................................................ - 5 -
`’028 Patent, Claim 14 ..................................................................................................... - 5 -
`A.
`Claim 14’s four “operations” are indefinite ........................................................ - 5 -
`B.
`The “accessible by” language renders Claim 14 indefinite ................................ - 7 -
`C.
`Dr. Houh’s declaration should not be stricken.................................................... - 7 -
`“interactive media receiver” (’833 patent claims 1, 3, 5-7, and 9) ................................. - 8 -
`IV.
`“responder identifier” (’833 patent claims 1, 3, 5-7, and 9) ......................................... - 10 -
`V.
`“third party” (’806 claim 5, ’843 claim 10) .................................................................. - 11 -
`VI.
`“third party encoded data”; “encoded third party data” ................................................ - 13 -
`VII.
`VIII. The three “module” terms are indefinite ....................................................................... - 13 -
`A.
`The “module” terms are means-plus-function .................................................. - 13 -
`B.
`The patents do not contain structure corresponding to the functions ............... - 16 -
`“correlating” (’806 claim 5) .......................................................................................... - 17 -
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`IX.
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`
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`i
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 3 of 26
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`
`
`Cases
`
`TABLE OF AUTHORITIES
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`
`
`Page(s)
`
`Advanced Ground Inf. Sys., Inc. v. Life360, Inc.,
`830 F.3d 1341 (Fed. Cir. 2016)....................................................................................13, 14, 16
`
`Advanced Ground Inf. Sys. v. Life 360,
`No. 14-80651, 2014 WL 12652322 (S.D. Fl. Nov. 21, 2014) .................................................16
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`573 U.S. 208 (2014) ...................................................................................................................5
`
`C R Bard Inc. v. Angiodynamics, Inc.,
`979 F.3d 1372 (Fed. Cir. 2020)..................................................................................................3
`
`Cannon Rubber Ltd. v. The First Years, Inc.,
`2004 WL 2095669 (N.D. Ill. Sept. 17, 2004) ......................................................................2, 14
`
`Digital Retail Apps, Inc. v. H-E-B, LP,
`No. 6-19-CV-00167-ADA, 2020 WL 376664 (W.D. Tex. Jan. 23, 2020) ..........................4, 15
`
`Egenera, Inc. v. Cisco Sys., Inc.,
`972 F.3d 1367 (Fed. Cir. 2019)................................................................................................15
`
`Engel Indus., Inc. v. Lockformer Co.,
`96 F.3d 1398 (Fed. Cir. 1996)....................................................................................................6
`
`Media Rights Techs., Inc. v. Capital One Fin. Corp.,
`800 F.3d 1366 (Fed. Cir. 2015)..................................................................................................2
`
`Microprocessor Enhancement Corp. v. Tex. Instr’s Inc.,
`520 F.3d 1367 (Fed. Cir. 2008)..................................................................................................9
`
`Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd.,
`868 F.3d 1013 (Fed. Cir. 2017)................................................................................................15
`
`Noah Sys., Inc. v. Intuit Inc.,
`675 F.3d 1302 (Fed. Cir. 2012)................................................................................................17
`
`Praxair Distr., Inc. v. Mallinckrodt Hosp. Prod. IP Ltd.,
`890 F.3d 1024 (Fed. Cir. 2018)..................................................................................................3
`
`RideApp Inc. v. Lyft, Inc.,
`845 F. App’x 959 (Fed. Cir. 2021) ..........................................................................................16
`
`ii
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 4 of 26
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`SimpleAir, Inc. v. Sony Ericsson Mobile Communs. AB,
`820 F.3d 419 (Fed. Cir. 2016)....................................................................................................6
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`Team Worldwide Corp. v. Intex Recreation Corp.,
`__ F. App’x __, 2021 WL 4130634 (Fed. Cir. Sept. 9, 2021) .................................................15
`
`Uniloc USA, Inc. v. Samsung Elecs. Am., Inc.,
`2020 WL 1685557 (Fed. Cir. 2020).........................................................................................16
`
`Visual Memory LLC v. NVIDIA Corp.,
`867 F.3d 1253 (Fed. Cir. 2017)................................................................................................10
`
`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015) (en banc) .........................................................................13, 14
`
`Statutes
`
`35 U.S.C. § 112 ..............................................................................................................................10
`
`iii
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 5 of 26
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`Stratos’s claim construction arguments (Dkt. 55)1 are unsupported by the evidence,
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`violate basic tenets of claim construction, and should be rejected. See Dkt. 51.
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`I.
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`“ASSOCIATED”/“ASSOCIATING”/“ASSOCIATION” TERMS
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`Stratos’s brief illustrates why the claims are indefinite. According to Stratos, “the claims
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`merely require an association (i.e., a connection or relationship) between two things.” Dkt. 55, 6
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`This allegedly means that the two associated things may be sent together or sent separately
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`(Compare id., 6 (“may be sent together”) with Claim 15 of the ’028 Patent). “Associating”
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`allegedly may be active (“to bring two things into relationship with each other”) or passive (“to
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`describe an existing relationship between two things”). Id., 6. It also allegedly means that two
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`things may already be associated, but require correlating to create a new association. Id., 33.
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`Under plain English grammar (which the parties all agree should apply here, so expert testimony
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`is not required), the terms mean nothing under Stratos’s analysis, because “associating” can have
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`directly opposite meanings. Neither the intrinsic evidence nor Stratos’s brief give a POSITA any
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`guidance or limits on what it means to “associate,” be “associated,” or conduct “associating.”
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`Stratos’s expert, Dr. Mangione-Smith, confirmed these terms have no bounds because
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`whether things are associated depends on arbitrary “sorts of associations of interest”:
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`Q. How would I know [two streams that are broadcast separately from each other] are not
`associated?
`A: […] we would have to know what are the associations that are being looked for. And
`they are not associated, if they are not associated under any of the sorts of associations of
`interest. (Ex. B, 119:6-120:1)2
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`By his example, any Beatles songs could be “associated” with any Taylor Swift song by media
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`content identifying data elements of the letter “a” in the artist names, or by being released
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`1 Herein, record cites are to Case No. 6:20-CV-01125-ADA, unless otherwise indicated.
`2 Herein, all emphasis is added, and all internal citations/quotations are omitted unless specified.
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 6 of 26
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`between 1921-2021, or because they are only “not associated if they are not associated under
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`any of the sorts of associations of interest.” (id., 119:24–120:1). In fact, Stratos’s expert was
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`unable to provide any limit for the scope of the “association” terms:
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`Q. Do you agree that associating means any relationship or act of connecting or joining
`together?
`A. […] that is a good characterization of the plain and ordinary meaning of the term. (Id. at
`108:7-16)
`Q. So if I have one type of data embedded within a data stream, those are associated, right?
`A. [T]hey may not be an association that is useful or interesting to any particular party. But
`there is an association between them, sure. (Id. at 109:10-16)
`Q. Do you agree that associating can also mean to bring two things into a relationship with
`one another?
`A. [...], I would agree. (Id. at 109:17-110-3)
`Q. […][H]ow does a person skilled in the art identify what is not associated?
`A. In general, there is no good clear answer to that. In the context of the claims, one
`applies, one would apply how the term “associated” is used, and determine whether
`or not the claim seems to be practiced. […] (Id. at 116:21-117:5)
`Q. [H]ow does [a POSITA] identify a lack of association or a failure to associate within the
`meaning of this claim?
`A. One would have to look at what the associations are when the claim is practiced. And see
`if those associations are formed by the particular system […]. (Id. at 117:23-118:12)
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`No claims identify any “relationship of interest,” so there is no practical limitation on
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`
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`claim scope. “A claim is indefinite if its language might mean several different things and no
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`informed . . . choice is available . . . .” Media Rights Techs., Inc. v. Capital One Fin. Corp., 800
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`F.3d 1366, 1371 (Fed. Cir. 2015). Stratos’s own expert argues that there is no practical
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`limitation on claim scope, and that the language means different things depending on an
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`undefined “relationship of interest.” The claims are indefinite.
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`II.
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`“ASSOCIATING EACH . . . ” (’307 CLAIM 11 AND ’028 CLAIM 11)
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`Dr. Mangione-Smith’s testimony affirms Defendants’ positions that (1) the disputed term
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`gives no notice as to the scope of the term with any certainty; and (2) it requires a step where two
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`elements must be “associated” that are already “associated.” First, Stratos’s expert disavowed
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`Stratos’s position that Claim 11 requires a new association. It might be a new association, or it
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 7 of 26
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`might not: “My response, as I sit here today, would be no. I think also, it may be forming a new
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`association. . . . the associating step also covers the case of determining or discovering a previous
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`or an existing association.” Ex. B, 106:3-106:10. “So it could be an existing association, or it
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`could be a new association.” Id., 107:15-17. This testimony demonstrates that (1) the disputed
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`term gives no guidance to Stratos’s expert (or a jury) as to the scope of the term, or (2) the term
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`allows an impossible step where two elements must to be “associated” that are already
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`“associated.” Either fact means the term is indefinite.
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`Second, Stratos’s expert concedes “the associating step also covers the case of
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`determining or discovering a previous or an existing association” between the media content
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`identifying data element and at least one of a plurality of media content. Id., 106:6-10. Stratos
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`thereby stretched the meaning of the term “associating” to cover “determining” or “discovering.”
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`Stratos’s expert even testified that it could be synonymous with “correlating,” leaving another
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`disputed term superfluous. Ex. B, 109:20-23. Again, this is indefinite.
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`A.
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`The printed matter doctrine prevents Stratos’s interpretation.
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`“[C]laim limitations directed to the content of information and lacking a requisite
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`functional relationship” merit no “patentable weight.” Praxair Distr., Inc. v. Mallinckrodt Hosp.
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`Prod. IP Ltd., 890 F.3d 1024, 1032 (Fed. Cir. 2018). According to Stratos, “media content
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`identifying data” is data allowing “a user to easily obtain and engage with information associated
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`with media content.” Dkt. 55, 2. The “media content identifying data” is thus information
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`communicated to or from a user about which songs to purchase, i.e. “information claimed for its
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`communicative content.” C R Bard Inc. v. Angiodynamics, Inc., 979 F.3d 1372, 1381 (Fed. Cir.
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`2020). It is entirely unrelated to the substrate, which would be computer memory or a disk drive.
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`Stratos argues that “[t]he claim does not recite the value of the identifier ([i.e.] value
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`12345), nor does it recite the content of the media ([i.e.] “Yellow Submarine” by the Beatles).”
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 8 of 26
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`Dkt. 55, 8. This misapplies the printed matter doctrine. The Court in Digital Retail found that a
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`“list of goods and services” and a “list of goods and services purchased” are printed matter
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`because both are “information displayed on some type of electronic device,” and printed matter
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`is matter claimed for what it communicates. Digital Retail Apps, Inc. v. H-E-B, LP, No. 6-19-
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`CV-00167-ADA, 2020 WL 376664, at *11 (W.D. Tex. Jan. 23, 2020). Neither term recited any
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`specific good or service, e.g., “Yellow Submarine” or “milk.”
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`Stratos’s argument that “there is no ‘displaying’ limitation in the claims” (Dkt. 55, 9), is
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`irrelevant because the disputed claims in Digital Retail—which fell within the doctrine—did not
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`have a “displaying” limitation either. Digital Retail, 2020 WL 376664 at *11. And in any event,
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`the portions of the specification Stratos cites (3:35-38, 6:25-29, 7:39-61, 9:17-20) all indicate
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`that “media content identifying data” is shown to a user to purchase a song. See also ’028, Claim
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`11 (requiring that the “media content identifying data” is presented to a user).
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`Stratos also argues that the content is related to the media substrate, and therefore outside
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`the doctrine. Dkt. 55, 8-10. But neither Stratos’s brief nor its expert ever identifies the physical
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`substrate in question or how “media content identifying data” is functionally and structurally
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`related to it. Stratos’s expert was unable to provide any explanation on this point:
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`Q. Is the substrate recited in this claim shown in any of the figures of the ’307 or ’028
`patents?
`A. […] I haven’t tried to answer that. I think in the context of the claim, the substrate is likely
`to be at least the system, as claimed with the various components in claim 11. (Ex. B,
`119:17-119:25)
`Q. Can you show me an example of [the substrate] in any of the figures?
`A. Maybe. […] I don’t know that any of the figures say here is a figure that is exemplar of
`claim 11. (Id. at 120:1-120:5)
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`Plaintiff expert’s identification of the alleged substrate (Dkt. 55-31, ¶ 46) should be given
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`no weight because he concedes (1) he has not performed a thorough analysis (Ex. B, 90:9-91:1),
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`(2) he does not know how to identify a substrate (id.), and (3) “[it is not] clear to me it has to be
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 9 of 26
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`present in the written description.” (id. at 120:17-21). In sum, “media content identifying data”
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`is not functionally or structurally related to the physical substrate, and has no patentable weight.
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`B.
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`Stratos’s Section 101 Analysis is Wrong
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`Stratos argues that the disputed term cannot be directed to abstract ideas because “the use
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`of ‘media content identifying data’ improves the functioning of a communications device, such
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`as a radio receiver.” Dkt. 55, 10. This is not the test under Alice Corp. Pty. Ltd. v. CLS Bank
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`Int’l, 573 U.S. 208 (2014). Limiting an abstract idea to a particular technological environment
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`does not pass the § 101 hurdle. The disputed term here merely uses generic computing
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`technology to apply the basic concepts employed by a person who compiles information that
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`differentiates between a version of “Blackbird” sung by the Beatles or a cover of the same song
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`by Sarah McLachlan. This is precisely Stratos’s plain and ordinary meaning of “associating each
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`media content identifying data element with at least one of a plurality of media content.” It
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`claims nothing inventive beyond the abstract idea of associating song information with a song.
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`The concept has long been practiced with paper and pencil by at least record store owners who
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`associate an album with its unique data for inventory and sales on a ledger, and is abstract.
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`III.
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`’028 PATENT, CLAIM 14
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`A.
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`Claim 14’s four “operations” are indefinite
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`Plaintiff argues Claim 14’s “storing” operation refers to Claim 11’s entire “storing” step.
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`Dkt. 55, 14. Plaintiff’s argument is conclusory. Neither the claims nor the specification clarify
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`whether the “storing” operation is the entirety of step 11[d], or only a subpart of step 11[d] (such
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`as only: “storing . . . at a minimum, media content identifying data elements,” or some other
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`subpart). Plaintiff’s expert argues that Claim 14’s “aggregating” operation is a subpart of step
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`11[d]: “storing . . . into identifying data aggregates.” Dkt. 55-31, ¶ 56. But Plaintiff already
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`mapped this language to the “storing” operation, so its interpretation renders the “aggregating”
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 10 of 26
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`operation superfluous (deleting it would not change Claim 14’s scope). Plaintiff’s expert failed
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`to consider this problem. See Ex. B, 210:19–22. Worse, there is no way to know whether the
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`“aggregating” operation includes only the language Plaintiff proposes, or if it should additionally
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`include other language, such as: “each identifying aggregate associated with . . . .” Nothing in
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`the specification resolves this ambiguity. See Ex. B, 211:16–212:9.
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`Plaintiff’s expert inconsistently argues that every word in Claim 11 is the “correlating”
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`operation (Ex. B, 214:10–215:2), and that there are multiple “correlating” operations within
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`Claim 11 (id., 227:20–228:3), such as the “associating” element in the “extracting” step (id.,
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`215:3–10, 224:8–224:23), and the discussion of “correlating” in the preamble (Dkt. 55-31, ¶ 55).
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`When asked if the “storing” or “providing” elements of Claim 11 would be “correlating,” the
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`expert stated he had not “considered it.” Id., 215:11–17, 219:2–18, 221:20–25. There is no way
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`to determine which alleged act of “correlating” in Claim 11 is the “operation” in Claim 14.
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`Notably, the entire claim cannot be the “correlating” operation because then the other three
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`“operations” in Claim 14 are rendered superfluous (they could be deleted without changing
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`Claim 14’s scope). The specification does not resolve this ambiguity. See Ex. B, 221:12–222:7.
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`Plaintiff argues the “associating” element in Claim 11 is the “correlating” operation. Dkt.
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`55, 14; Ex. B, 223:10–226:18. And Plaintiff’s expert opined that “associating” means the same
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`thing as “correlating.” Ex. B, 222:1–223:9. But Claims 11 and 14 claim both “correlating” and
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`“associating,” and “[d]ifferent claim terms are presumed to have different meanings.” SimpleAir,
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`Inc. v. Sony Ericsson Mobile Communs. AB, 820 F.3d 419, 431 (Fed. Cir. 2016) (quotes and cites
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`omitted); Engel Indus., Inc. v. Lockformer Co., 96 F.3d 1398, 1405 (Fed. Cir. 1996). No
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`lexicography or disavowal in the specification overcomes this presumption. See generally, ’028;
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`Ex. B, 231:22–232:17. Further, Claim 11’s “associating” does not match the “correlating” in the
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 11 of 26
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`preamble—the preamble refers to correlating a “broadcast segment,” which is not referenced in
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`the “associating” element. In essence, there is no defining where “correlating” starts and ends.
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`Plaintiff cites two inapposite cases. Dkt. 55, 14. In both cases, the court turned to the
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`specification to resolve the ambiguity in a claim term. Here, in contrast, nothing in the
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`specification resolves the ambiguities, leaving Claim 14 indefinite.
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`B.
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`The “accessible by” language renders Claim 14 indefinite
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`Claim 14 is further indefinite because it requires that its four ambiguous “operations” be
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`“accessible by” various things such as “a third party database,” which is nonsensical. Dkt. 51,
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`11–12. To overcome this problem, Plaintiff rewrites the claim. Plaintiff argues that Claim 14
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`requires “a database system” that allegedly performs the accessing, a description Plaintiff’s
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`expert agrees with. Dkt. 55, 15; Ex. B, 232:18–233:9. But the claim does not require a
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`“database system”—it requires a “database” to do the accessing. The ’028 Patent distinguishes
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`between the two concepts. For example, Claim 12 requires a “database system,” while Claim 14
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`requires a “database.” And the specification frequently refers to either a “database” or a
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`“database server” in reference to different concepts. Compare ’028, 5:29–31 (“the purchase
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`database server 150 provides purchase and download authorization ”) with id., 6:3–4 (“a
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`database 150 of audio available for purchase”). Thus, the specification clarifies that a database is
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`simply a set of information, while a database “server” performs acts, such as providing “purchase
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`and download authorization” for access to media. Id. Plaintiff’s arguments interpret Claim 14 to
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`require a “database system” or a “database server,” not a “database,” and should be rejected.
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`C.
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`Dr. Houh’s declaration should not be stricken
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`Avoiding the merits, Plaintiff requests Dr. Houh’s declaration be stricken because it
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`“largely parrots Defendants’ opening brief.” Dkt. 55, 15. To the contrary, Defendants’ brief
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`cites and relies on Dr. Houh’s expert analysis and input—not the other way around. Dkt. 51, 10–
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`Case 6:20-cv-01131-ADA Document 57 Filed 09/20/21 Page 12 of 26
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`12. There is nothing wrong with briefs incorporating expert analysis. Plaintiff also argues Dr.
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`Houh’s testimony is conclusory, which it is not—Plaintiff’s table omits most of Dr. Houh’s
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`analysis. See Dkt. 51-4, ¶¶ 43–46. Plaintiff argues he did not adequately answer questions at
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`deposition because he could not provide constructions for terms “such as ‘broadcaster,’” and
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`“numerous other terms” in Claim 14. Dkt. 55, 16–17. But he testified he had not crafted
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`constructions for those terms and he could not do so in the middle of a deposition. Dkt. 55-25,
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`44:14–22 (“It would take time to consider the specification and content and intrinsic evidence to
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`come up with that . . . .”). Plaintiff’s expert gave the same answers during deposition. Ex. B.,
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`22:10–21 (“I don’t believe I’ve taken a position regarding its construction. . . . I don’t think it
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`would be prudent for me to come up with a definition on the spot.”). Further, construing those
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`terms is unnecessary—even Plaintiff’s expert did not construe any terms for this dispute. See
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`Dkt. 55-31, ¶¶ 52–60. Plaintiff cites Realtime Data, LLC v. Oracle Am., Inc. in support, which is
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`inapposite because it involved an expert who would not answer questions such as “did you
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`interview any focus groups in connection with . . . this report?” 2017 U.S. Dist. LEXIS 187717,
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`at *22–24 (E.D. Tex. Mar. 22, 2017). The court struck testimony for failure to respond to “basic
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`questions about his methodology,” not for not having an opinion on how terms should be
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`construed, or not knowing what they would cover under an unknown construction. Id.
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`IV.
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`“INTERACTIVE MEDIA RECEIVER” (’833 PATENT CLAIMS 1, 3, 5-7, AND 9)
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`Stratos’s arguments regarding the disputed term “interactive media receiver” prove
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`VCUSA’s point—the term renders the ’833 claims indefinite because it does not define the bounds
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`of the claims with reasonable certainty. Tellingly, in its arguments, Stratos never states what an
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`“interactive media receiver” is. Rather, in other sections of its Response, Stratos claims that an
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`“interactive media receiver” “can be a computer or a car radio” (Dkt. 55, 4), or it can be a “calendar
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`communication device” (Id., 19). But Stratos also defines an “interactive media receiver” as a
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`“receiver that receives interactive media” (Id., 17). In other words, it can be anything that receives
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`interactive media. Not only is Stratos’s definition circular, but it defines an interactive media
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`receiver in terms of what it does, not what it is. The use of functional language in a claim may fail
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`to provide a clear-cut indication of the scope of subject matter embraced by the claim and thus can
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`be indefinite. See Microprocessor Enhancement Corp. v. Tex. Instr’s Inc., 520 F.3d 1367, 1375
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`(Fed. Cir. 2008). Stratos’s expert even admitted that he had not considered the limits of what an
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`“interactive media receiver” could be. Ex. B, 169:10-22.
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`Neither Stratos nor its expert have any answer for the fact that the ’833 Patent’s detailed
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`description uses the term “interactive media receiver” only once and expressly distinguishes it
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`from a cell phone. ’833, 7:26-27 (“Beginning with the cell phone enabled with an interactive
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`media receiver … .”). This disclosure is significant because the specification lists examples of
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`devices other than a cell phone that can be enabled with an “interactive media receiver,” including
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`a computer and a radio. Id., 7:20-25. Thus, an “interactive media receiver” is not a computer or
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`a radio as Stratos claims. Even Stratos’s expert conceded that an “interactive media receiver” may
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`not be a computer or a radio. Ex. B, 160:14-16, 162:5-7. It also is not a “calendar communication
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`device” because a “calendar communication device” is a cell phone. ’833, 13:56-69.
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`Stratos obscures the dispute by focusing its arguments on the interactivity of the media or
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`the receiver. Dkt. No. 55, 17-19. But the indefiniteness of the term “interactive media receiver”
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`extends far beyond which aspect of the term is interactive—the term as a whole is boundless.
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`Tellingly, according to the Google Ngram Viewer, the term has never been used outside the ’883
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`patent in any book before 2019. Ex. D. Stratos’s claim that a POSITA would know how to
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`implement an interactive media receiver using hardware or software is irrelevant. Dkt. 55, 19
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`(citing 55-31, ¶64). Not only did Stratos’s expert not know when something is configured to the
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`point where it would be considered an “interactive media receiver,” (Ex. B, 173:10-174:15) how
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`an “interactive media receiver” is implemented is an enablement issue, not an indefiniteness issue.
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`See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1261 (Fed. Cir. 2017) (“[W]hether a
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`patent specification teaches an .... artisan how to implement the claimed invention presents an
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`enablement issue under 35 U.S.C. § 112 … .”). What is relevant is that a POSITA reading the
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`claims would not know what an “interactive media receiver” is—hardware, software, or something
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`else—with reasonable certainty. Dkt. 51-2, ¶¶28, 20-31. Thus, the term is indefinite.
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`V.
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`“RESPONDER IDENTIFIER” (’833 PATENT CLAIMS 1, 3, 5-7, AND 9)
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`Stratos argues that a “responder identifier” is “an identifier that identifies who or what is
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`sending the [scheduling] request.” Dkt. 55, 20. But the ’833 claims fail to limit who or what the
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`responder can be. Indeed, Stratos’s expert admits that the responder can be anything and the
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`identifier can be anything. Dkt. 55-31, ¶66. Additionally, Stratos concedes that the ’833 claims
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`do not even recite the step of providing a response. Dkt. 55, 20. Rather, Stratos claims that an
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`interactive media receiver “acts as a ‘responder.’” Id. Even if that is true, the interactive media
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`receiver acting as a responder does not add any certainty to the ’833 claims because the term
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`“interactive media receiver” is indefinite.
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`Stratos’s claim that VCUSA’s expert did not analyze Claim 3 is incorrect. Dr. Medoff
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`analyzed all of the claims where the term “responder” appears, including Claim 3. See Dkt. 51-
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`2, ¶¶53-54. Dr. Medoff also testified that his analysis of the other claims applies equally to
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`claim 3. Ex. C, 30:20-32:7. Specifically, Dr. Medoff opines that the dependent claims, like
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`Claim 3, recite the information that can be associated the “responder identifier,” not what the
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`“responder identifier” is. Dkt. 51-2, ¶73. Further, Stratos’s expert could not explain how Claim
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`3 describes what a “responder identifier” is as opposed to what it does and had not considered
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`the limits of what a “responder identifier” could be. Ex. B, 193:6-17; 190:18-20. Not
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`surprisingly, the Google Ngram Viewer finds zero usage of “responder identifier.” Ex. E.
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`“[R]esponder identifier” thus renders the scope of the ’833 claims indefinite.
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`VI.
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`“THIRD PARTY” (’806 CLAIM 5, ’843 CLAIM 10)
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`Stratos argues that in the asserted claims, the term “third party” means “a person or group
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`besides the two primarily involved in a situation.” Dkt. 55, 21. But immediately thereafter,
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`Stratos argues that the first two parties are a “broadcast source” and a “broadcast receiver,” id.,
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`instantly making it unclear whether Stratos is actually referring to a person or instead referring to
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`a piece of equipment. Then, Stratos explains that the broadcast source could be a radio station
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`and the broadcast receiver could be a radio receiver. Id. The radio receiver is clearly equipment,
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`and the patents define “broadcaster” as “devices that transmit broadcast streams” (’806, 4:53), so
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`perhaps a third party is a piece of equipment other than the transmitter or receiver. But Stratos
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`also argues that a “record company” could be a third party. Dkt. 55, 22.
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`Stratos’s expert only makes things more confusing. In his declaration, he refers to “an
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`entity receiving data” as the receiver, and “an entity transmitting data” as the data source, thus
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`putting himself into the “person or group” camp. Dkt. 51-1, ¶ 71. He goes on to refer to “a
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`[radio] station” as a third party, without explaining whether the third party is the radio station
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`equipment, or the individual or corporation that owns the equipment, or the individuals working
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`at the radio station. Id., ¶ 72. He fails to explain whether two radio stations owned by the same
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`corporation are two third parties, or one entity. (He also doesn’t know whether the “third party”
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`in the specification is the same “third party” in the claims. Ex. B, 57:10–22.)
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`Stratos’s expert was no clearer at deposition. He identified “components,” a radio
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`“station,” “the literal antenna that’s 15 miles away from here,” “a particular individual,” “the
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`physical hardware,” and a “corporate entity” all as examples of one party, that is, a broadcaster.
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`Ex. B, 59:23–61:19. He similarly described both “the physical receiving device” and the person
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`operating the device as “receivers.” Id., 63:3–63:23. He explained that in his declaration, he
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`was referring to pieces of equipment (id., 61:20–62:7), but he then reverted to an “entity”
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`definition: “You know if it’s third party data if you know it originates from a third party, which
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`is to say an entity other than … the broadcaster of the strea