Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 1 of 23
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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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`MAZDA MOTORS 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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`v.
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`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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`Defendant.
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`) Case No. 6:20-CV-01125-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-cv-1126-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-cv-1128-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-cv-1129-ADA
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`) JURY TRIAL DEMANDED
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`) Case No. 6:20-CV-01131-ADA
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`) JURY TRIAL DEMANDED
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`Plaintiff,
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`STRATOSAUDIO INC.,
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`v.
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`HYUNDAI MOTOR AMERICA,
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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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`Plaintiff,
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`Defendant.
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`Plaintiff,
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 2 of 23
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`PLAINTIFF’S SUR-REPLY CLAIM CONSTRUCTION BRIEF
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 3 of 23
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`TABLE OF CONTENTS
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`Page
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`C.
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`DISPUTED CLAIM TERMS .......................................................................................... 1
`A.
`Associated/Associating/Association (All Claims) .................................................. 1
`B.
`“Associating each media content identifying data element with at least one of
`a plurality of media content” (’307 Patent, Claim 11; ’028 Patent, Claim 11)....... 3
`1.
`The Challenged Limitation is Not Indefinite .............................................. 3
`2.
`The Printed Matter Doctrine Does Not Apply ............................................ 4
`3.
`Defendants Did Not Conduct a Section 101 Analysis ................................ 6
`Claim 14 of the ’028 Patent .................................................................................... 6
`The “storing,” “correlating” and “aggregating” limitations are not
`1.
`indefinite ..................................................................................................... 6
`“Accessible by” is not indefinite ................................................................. 7
`2.
`“Interactive Media Receiver” (’833 Patent, all claims) .......................................... 8
`“Responder Identifier” (’833 Patent, all claims) ..................................................... 9
`“Third Party Encoded Data” (’806 Patent claim 5) / “Encoded Third Party
`Data” (’843 Patent claim 10) ................................................................................ 10
`“stream scanner module” (’806 Patent, Claims 5 & 6) ......................................... 12
`1.
`The claim itself connotes sufficient structure ........................................... 12
`2.
`The specification also discloses sufficient structure ................................. 13
`“stream analysis module” (’806 Patent, Claim 5) ................................................. 14
`Correlating (’806 Patent, Claim 5)........................................................................ 15
`“Broadcast Scanning Module” (’843 Patent, Claim 10) ....................................... 16
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`D.
`E.
`F.
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`G.
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`H.
`I.
`J.
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`(i)
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`I.
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 4 of 23
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`TABLE OF AUTHORITIES
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`FEDERAL CASES
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` Page(s)
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`3M Innovative Props. Co. v. Tredegar Corp.,
`725 F.3d 1315 (Fed. Cir. 2013)..................................................................................................9
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`3rd Eye Surveillance, LLC v. City of Forth Worth,
`No. 6:14-cv-00725-JDL, Docket No. 120 (E.D. Tex. June 8, 2016) .........................................2
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`Alfred E. Mann Found. for Sci. Research v. Cochlear Corp.,
`841 F.3d 1334 (Fed. Cir. 2016)................................................................................................14
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`Apex Inc. v. Raritan Computer, Inc.,
`325 F.3d 1364 (Fed. Cir. 2003)................................................................................................12
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`Bancorp Servs., L.L.C. v. Hartford Life Ins. Co.,
`359 F.3d 1367 (Fed. Cir. 2004)..................................................................................................4
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`BASF Corp. v. Johnson Matthey Inc.,
`875 F.3d 1360 (Fed. Cir. 2017)............................................................................................1, 10
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`Berkheimer v. HP Inc.,
`881 F.3d 1360 (Fed. Cir. 2018)..................................................................................................6
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`Biosig Instruments, Inc. v. Nautilus, Inc.,
`783 F.3d 1374 (Fed. Cir. 2015)..................................................................................................7
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`Ericsson, Inc. v. D-Link Sys.,
`773 F.3d 1201 (Fed. Cir. 2014)................................................................................................15
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`Estech Sys. v. Burnco Tex. LLC,
`2021 U.S. Dist. LEXIS 114668 (E.D. Tex. June 18, 2021) .....................................................13
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`Intelligent Automation Design, LLC v. Zimmer Biomet CMF,
`799 Fed. Appx. 847 (Fed. Cir. 2020) .......................................................................................13
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`Microprocessor Enhancement Corp. v. Tex. Instr’s Inc.,
`520 F.3d 1367 (Fed. Cir. 2008)..................................................................................................8
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`Noah Sys. Inc. v. Intuit Inc.,
`675 F.3d 1302 (Fed. Cir. 2012)................................................................................................14
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`Power Integrations, Inc. v. Fairchild Semiconductor Int'l, Inc.,
`711 F.3d 1348 (Fed. Cir. 2013)..........................................................................................12, 14
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`(ii)
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 5 of 23
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`Skky, Inc. v. MindGeek s.a.r.l.,
`859 F.3d 1014 (Fed. Cir. 2017)................................................................................................13
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`USB Bridge Sols., LLC v. Buffalo Inc.,
`2020 U.S. Dist. LEXIS 67678 (W.D. Tex. Apr. 17, 2020) ........................................................8
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`Williamson v. Citrix Online, LLC,
`792 F.3d 1339 (Fed. Cir. 2015) (en banc)..........................................................................12, 13
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`FEDERAL STATUTES
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`35 U.S.C. § 101 ................................................................................................................................6
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`(iii)
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 6 of 23
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`I.
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`DISPUTED CLAIM TERMS
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`A.
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`“Associated”/“Associating”/“Association” (All Claims)
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`Defendants give no credible explanation for why the plain English words “associated,”
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`“associating,” and “association” are indefinite.
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`First, Defendants incorrectly claim that the plain and ordinary meaning of each word has
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`two “directly opposite meanings.” [D.I. 611 (“Reply”) at 1.] This is false—each word has a
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`clear meaning. As StratosAudio’s expert explained, the term “associating” refers to “the act of
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`connecting or joining together.” [D.I. 55-31 (“W.M.S. Decl.”) ¶ 39.] An “association” is a
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`relationship “created by” the act of “associating.” [Id.] Similarly, after performing the step of
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`“associating,” two things become “associated.” [See ’307 Patent, claim 11 (“associating each
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`media content identifying data element with at least one of a plurality of media content;” “each
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`identifying data aggregate associated with at least one of the plurality of media content.”
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`(emphasis added)).] That these related words can be used with different tenses or as different
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`parts of speech (e.g., as a verb, an adjective, or a noun) does not make them indefinite—it simply
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`tracks their plain English usage. [See D.I. 55-24 (listing definitions).]
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`It is certainly true, as Defendants note, that two things can be “associated” in many
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`different ways. For example, sending two data streams together may associate them. Sending
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`them separately, with an identifier attached to both, may also associate them. That does not
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`mean “associate” has two “directly opposite meanings,” it just shows how many ways two things
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`can be “associated.” Yet as the Federal Circuit has repeatedly held, “breadth is not
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`indefiniteness.” See BASF Corp. v. Johnson Matthey Inc., 875 F.3d 1360, 1367 (Fed. Cir. 2017).
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`1 Docket citations are to Case No. 20-cv-1125.
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 7 of 23
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`In every instance where these terms are used, a POSITA would understand the scope of
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`the association with reasonable certainty. For example, claim 11 of the ’307 patent discloses that
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`a computer processor performs the step of “associating” a “media content identifying data
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`element” with “at least one of a plurality of media content.” [’307 Patent, claim 11.] To perform
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`this limitation, the processor must make a connection or relationship between the identifier and
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`the media. The nature of that relationship (i.e., the “association of interest”) is thus made clear in
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`the claim itself. It is irrelevant whether the identifier and the media were previously associated
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`in some manner by someone or something else. The claim requires the processor to make an
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`association. So long as it does, the claim is satisfied.
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`Finally, Defendants rely on irrelevant excerpts from the testimony of Dr. Mangione-
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`Smith where he was asked various questions about how to determine if two things are not
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`associated. That question is impossible to answer in the abstract because there are many ways
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`two things could be associated, but as Dr. Mangione-Smith went on to state, in the context of the
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`claims the determination is straightforward. [See D.I. 61-2 at 116:25-117:5.] For example, the
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`claims describe associating a song with its identifier. [’028 Patent, Claim 11.] There is nothing
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`unclear about that, and a jury can easily analyze a system and its source code to determine if
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`such an association is made or not.
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`The case of 3rd Eye Surveillance, LLC v. City of Forth Worth, Case No. 6:14-cv-00725-
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`JDL, Docket No. 120 (E.D. Tex. June 8, 2016) (attached hereto as Exhibit 29), is directly on
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`point. There, the defendant argued the phrase “associated with” was indefinite because “the
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`patent does not specify how the elements it has identified are associated.” Id. at 6. The court
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`disagreed, noting that “nothing in the patent requires that the term ‘associated with’ specify how
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 8 of 23
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`elements are associated.” Id. at 7. The district court found the term not indefinite and declined
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`to construe it. Id. This Court should do the same here.
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`B.
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` “Associating each media content identifying data element with at least one of
`a plurality of media content” (’307 Patent, Claim 11; ’028 Patent, Claim 11)
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`1.
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`The Challenged Limitation is Not Indefinite
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`Defendants argue (in their Reply at 2) that StratosAudio’s expert “disavowed Stratos’s
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`position that Claim 11 requires a new association.” This mischaracterizes the record.
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`StratosAudio argued claim 11 of the ’307 and ’028 Patents describes creating an association that
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`is new to the receiver. In other words, the receiver obtains a broadcast stream and a data stream.
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`[’028 Patent, Claim 11.] The data stream is “associated” with the broadcast stream, but the claim
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`does not say the receiver created this association. Next, the receiver extracts data from the data
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`stream, then it performs an “associating” step—creating an association between a media content
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`identifying data element in the data stream and an item of media content in the broadcast stream.
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`[Id.] This new associating step must be performed by the receiver whether or not the broadcast
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`and data streams are associated. As StratosAudio’s expert explained in his deposition, to satisfy
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`this limitation the receiver could create some never-previously-recognized association between
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`the song and its identifier, but more likely it is discovering an existing association—i.e., it is
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`connecting the identifier with the song it identifies. [D.I. 61-2 at 106:11-107:17.] To satisfy this
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`limitation, the receiver must take some step or have some logic that makes this connection. If
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`the receiver does nothing, and simply passes the broadcast and data stream without extracting or
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`associating anything, it has not performed the claim as written. Because there is nothing unclear
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`or ambiguous about having the receiver associate two things, the limitation is not indefinite.
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`Defendants also argue (in their Reply at 3) that StratosAudio “stretched the meaning of
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`the term ‘associating’ to cover ‘determining’ or ‘discovering.’ StratosAudio’s expert even
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 9 of 23
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`testified that it could be synonymous with ‘correlating.’” StratosAudio did not “stretch”
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`anything. Defendants acknowledged in their opening brief that the plain meaning of
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`“associating” is “any relationship or act of connecting or joining together.” [D.I. 51 at 4
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`(emphasis added).] “Any relationship” covers new or existing relationships. For example, one
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`could “associate” two socks by reuniting them after a trip through the laundry. This would cover
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`associating two things that already had some pre-existing relationship. Alternatively, one could
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`form a new association, as the U.S. states did when they signed the Constitution. Both are acts
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`of “associating.” Defendants also previously acknowledged “correlating” means “[t]o put or
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`bring into causal, complementary, parallel, or reciprocal relation.” [Id. at 32.] If two things are
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`“connected” or “joined together” they are both associated and correlated. Despite Defendants’
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`suggestions to the contrary, there is nothing per se indefinite about using different words with
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`similar or even identical meanings. See, e.g., Bancorp Servs., L.L.C. v. Hartford Life Ins. Co.,
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`359 F.3d 1367, 1372-74 (Fed. Cir. 2004) (finding “surrender value protected investment credits”
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`means the same thing as “stable value protected investment credits” and is not indefinite).
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`2.
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`The Printed Matter Doctrine Does Not Apply
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`Defendants argue (at 3) that “media content identifying data” is “information claimed for
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`its communicative content.” This is clearly wrong. Indeed, none of the citations Defendants
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`give actually refers to displaying the media content identifying data. Instead, all of Defendants’
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`citations describe sending the media content identifying data to an external device, such as a
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`flash drive, to facilitate a purchase. [See Reply at 3 (citing the ‘028 Patent at 3:35-38, 6:25-29,
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`7:39-61, 9:17-20).] Indeed, as StratosAudio noted in its responsive brief, it would make little
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`sense to show the user a unique identifier since it could be, for example, a string of alphanumeric
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`characters that uniquely identifies a particular broadcast. [See ’028 Patent at 6:1-2, 6:19-22 &
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`Claim 16.] The user would not know what to make of this information. Defendants also argue
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 10 of 23
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`(at 4) that claim 11 requires presenting media content identifying data “to a user,” but as
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`StratosAudio noted in its responsive brief, “presentation” in the claims is not so limited and
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`could include (for example) sending the data to an external device. The word “user” does not
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`appear in the claims. Defendants do not address any of these points in their reply.
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`Even if a system did choose to display the “media content identifying data” to a user, that
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`is not its only purpose. The “media content identifying data” is associated with a specific item of
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`media content, allowing the system (not the user) to uniquely identify that content. [See id. at
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`5:64-6:2 & Claim 16.] The media content identifying data is stored in an aggregate and can be
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`sent to an external device such as a server. [Id., Claims 11 & 17.] Indeed, if the “media content
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`identifying data” were only information displayed to a user, that would eliminate the entire point
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`of StratosAudio’s patents. The patents note that prior art radios could display information about
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`a song, but “the user must write down or remember the identifying information and then go to a
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`store or online retailer to purchase the media.” [’028 Patent at 2:35-49.] This was
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`disadvantageous because “the information provided by the radio station may not be enough to
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`sufficiently identify the song.” [Id.] For example, the user may have the song title but not “other
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`necessary identifying information,” such as information about when or where the song was
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`played. [Id.] The patents solve this problem by creating a system that allows unique
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`identification of broadcast segments at the time they are broadcast. The “media content
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`identifying data” is what enables this unique identification.
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`Because the “media content identifying data” is not just data for display, any disputes
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`about what constitutes the “substrate” are irrelevant. In other words, the “media content
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`identifying data” performs its function (identifying a media segment) regardless of whether the
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`“substrate” is the processor, memory, disk drive, flash drive, or something else. Because the
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 11 of 23
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`“media content identifying data” improves the functioning of the system, the printed matter
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`doctrine does not apply to it.
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`3.
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`Defendants Did Not Conduct a Section 101 Analysis
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`Defendants’ opening brief mistakenly assumed that, if the printed matter doctrine
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`applied, claim 11 must be invalid under 35 U.S.C. § 101. That is not accurate. As Defendants
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`now concede (at 3), if the printed matter doctrine applies, the result is that the limitation is
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`entitled to no patentable weight. Even in that circumstance, however, the Court would need to
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`analyze whether what remains is valid under Section 101. Here, Defendants did not even
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`perform that analysis. While Defendants criticize StratosAudio’s arguments, it is Defendants’
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`burden to prove invalidity under Section 101, not StratosAudio’s burden to disprove it. See
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`Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). Because Defendants did not even
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`attempt to meet their burden, the claim is not invalid even if the Court applies the printed matter
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`doctrine.
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`C.
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`Claim 14 of the ’028 Patent
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`1.
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`The “storing,” “correlating” and “aggregating” limitations are not
`indefinite
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`Defendants argue (at 5) that it is unclear whether the “storing” limitation in claim 14
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`refers to the entire “storing” step in claim 11, or only a subpart thereof. The intrinsic evidence
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`shows that it refers to the entire limitation. First, the “storing” limitation is discrete and self-
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`contained. [See ’028 Patent, Claim 11.] Second, claim 14 also refers to the “aggregating”
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`operation, which is a sub-part of the “storing” limitation. [Id., Claim 14.] Clearly, when the
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`inventors wanted to refer to only a portion of the “storing” limitation, they knew how to do so.
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`Defendants next argue (at 5-6) that the word “aggregating” in claim 14 is “superfluous”
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`because it is duplicative of the phrase “storing.” This is clearly wrong. Claim 14 requires either
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 12 of 23
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`the entire “storing” limitation, or just the “aggregation” sub-portion of the “storing” limitation, to
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`be accessible to various other systems. The two words (“storing” and “aggregating”) refer to two
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`different things—either the entire limitation (“storing”) or a portion of it (“aggregating”), so they
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`are not “superfluous” or redundant. Nor is it superfluous, unclear or indefinite to say, as claim
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`14 does, that either an entire step or only a portion of it is accessible to something else.
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`Defendants next argue (at 6) that “correlating” and “associating” in claims 11 and 14
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`cannot have the same meaning because “no lexicography or disavowal in the specification
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`overcomes [the] presumption” that the two words mean different things. As discussed above, no
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`lexicography or disavowal is necessary here because the plain meanings of these two terms are,
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`for purposes of these patents, identical. In other words, if one were to “associate[e] each media
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`content identifying data element with at least one of a plurality of media content” one would also
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`necessarily “correlat[e] media content identifying data with at least one broadcast segment
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`received by a communication device.” There is nothing unclear or indefinite about the word
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`“correlating” in claim 14 referring to both the preamble and body of claim 11, especially since
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`claim 14 refers to “at least one of the … correlating operations.”
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`Claims do not require mathematical precision, only reasonable certainty. See Biosig
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`Instruments, Inc. v. Nautilus, Inc., 783 F.3d 1374, 1381 (Fed. Cir. 2015). Here, it is reasonably
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`clear which operations claim 14 refers to, so the claim is not indefinite.
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`2.
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`“Accessible by” is not indefinite
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`Defendants argue a database cannot access anything, but they do not explain why.
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`Defendants appear to acknowledge (at 7) that databases reside on database management systems,
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`and that database management systems can access other systems. A person of ordinary skill
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`would not need to redefine the word “database” to understand a database operates in an
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`environment that allows it to access to other systems and operations. [See D.I. 55-25 at 30:8-
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 13 of 23
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`31:7; D.I. 55-31 ¶¶ 58-59 .] Regardless, even if Defendants are correct, that does not make the
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`claim indefinite. The words “database” and “accessible by” are clear. At most, Defendants raise
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`an enablement question—whether it is possible to create a system where a database can access
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`the claimed operations. That is not a dispute the Court should resolve on claim construction.
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`See USB Bridge Sols., LLC v. Buffalo Inc., 2020 U.S. Dist. LEXIS 67678 at *14 (W.D. Tex. Apr.
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`17, 2020).
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`D.
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` “Interactive Media Receiver” (’833 Patent, all claims)
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`Defendants argue incorrectly (at 8-9) that this term is indefinite because StratosAudio
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`“never states what an ‘interactive media receiver’ is” and does not identify all possible examples
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`of the term. As to the latter point, there is no requirement that a patent specification disclose all
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`possible preferred embodiments. See Manual of Patent Examining Procedure § 2164.02
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`(“because only an enabling disclosure is required, applicant need not describe all actual
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`embodiments”). As to the former point, the specification identifies multiple examples of an
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`interactive media receiver, such as a computer or car radio, and contrasts them with receivers of
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`“non-interactive media.” [See ’833 Patent at 7:16-25, 7:36-41, 19:30-33.] Accordingly, the term
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`is not purely functional, as Defendants allege, and the specification provides specific
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`embodiments. Even if the language were functional, that does not render the claim indefinite, as
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`Defendants’ own cited case held: “apparatus claims are not necessarily indefinite for using
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`functional language.” See Microprocessor Enhancement Corp. v. Tex. Instr’s Inc., 520 F.3d
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`1367, 1375 (Fed. Cir. 2008) (holding claims not indefinite).
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` Defendants contend (at 9) that an interactive media receiver cannot be a cell phone,
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`computer, or radio, but the specification does not say that. Rather, the cited portions of the
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`patent identify “examples of other devices which can support integrated interactive broadcast
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`media” as including “computers (including laptops), electronic personal digital assistants,
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 14 of 23
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`automotive entertainment systems, digital video recorders, digital audio devices, digital media
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`devices, GPS devices, radios, televisions, and/or the like.” [’833 Patent at 7:20-25.] Each of
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`these are embodiments that could serve as an interactive media receiver. Nor does the cited
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`testimony from StratosAudio’s expert state that the term excludes a computer or radio. [Cf.
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`Reply at 9 (citing D.I. 61-2 at 160:14-16, 162:5-7).] Indeed, Dr. Mangione-Smith said just the
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`opposite: that radios can be interactive media receivers. [See Id. at 187:20-188:13.]
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` Finally, Defendants’ reliance on Google Ngram Viewer results are irrelevant. At most
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`Defendants are suggesting this is a coined term, but that does not make it indefinite. See 3M
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`Innovative Props. Co. v. Tredegar Corp., 725 F.3d 1315, 1321 (Fed. Cir. 2013) (“Idiosyncratic
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`language, highly technical terms, or terms coined by the inventor are best understood by
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`reference to the specification.”). That is especially true where, as here, the specification gives
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`specific examples of what the claimed “interactive media receiver” can be, and where both the
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`terms “interactive media” and “receiver” had well-known meaning to a POSITA. [See D.I. 51-6,
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`¶¶ 10-12.]
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`E.
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`“Responder Identifier” (’833 Patent, all claims)
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`Defendants’ latest indefiniteness arguments for the “responder identifier” term fare no
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`better than their prior arguments. First, Defendants insist (at 10) that “responder identifier” is
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`indefinite because the claims “fail to limit who or what the responder can be.” This argument is
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`baseless—there is no reason why the ’833 patent must limit the isolated term “responder.”
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`Claim 1 already places various limitations on the responder identifier, reciting (for example) that
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`it is associated with database entries that allow the system to schedule an event. [’833 Patent,
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`Claim 1.] Dependent claims further characterize the responder identifier: claim 3 states it can
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`identify a user or an interactive media receiver, while claims 6 and 7 state that the responder
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`identifier can be associated with “demographics,” “preferences,” a “calendar,” a “location,” or a
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 15 of 23
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`“schedule.” [Id., Claims 3, 6, & 7.] A POSITA would understand what the responder identifier
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`is: information. Specifically, it is information that identifies a user or a device, and that is used
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`to facilitate scheduling. There is no reason why the claims must incorporate additional
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`limitations to explain this term.
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` Next, Defendants’ arguments (at 20-21) about competing expert opinions are misplaced
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`because Defendants concede Dr. Medoff addressed only “responder” by itself, and not claim 3.
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`Dr. Medoff opined that there are many types of potential “responses” in the ’833 patent (see D.I.
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`51-6, ¶ 57), but “breadth is not indefiniteness.” BASF, 875 F.3d at 1367. As Dr. Mangione-
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`Smith explained, the availability of many types of responses or responders does not make the
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`term indefinite to a POSITA. [See WMS Decl., ¶¶ 66-67.] By way of analogy, when a claim
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`recites a “user” one of skill understands that covers any user. The phrase “user identifier” would
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`not be indefinite simply because a claim did not give the identity of a specific user.
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`Finally, for the same reasons discussed above, Defendants’ reliance on Google Ngram
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`Viewer results is irrelevant. At most, Defendants are suggesting Plaintiff coined this phrase, but
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`that does not make it indefinite. One of skill would have known what a “responder” was in the
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`context of the ’833 Patent, which recites sending a response to a scheduling request, and one of
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`skill also would have understood how to identify a user or system. The words “responder” and
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`“identifier” are not indefinite whether considered individually or in combination.
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`F.
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`“Third Party Encoded Data” (’806 Patent claim 5) /
`“Encoded Third Party Data” (’843 Patent claim 10)
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`For the “third party” phrases, Defendants attempt to manufacture ambiguity where there
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`is none. The dictionary definitions for “third party” make clear this phrase refers to a “person or
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`group besides the two primarily involved in a situation.” [D.I. 55-27 (emphasis added).] It
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`cannot refer to equipment because equipment is not a “party.” In the context of the ’806 and
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`10
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 16 of 23
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`’843 Patents, there will be (1) a broadcaster operating broadcasting equipment, (2) a receiver
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`operating receiving equipment, and (3) a third party that provides data (in the ’843 Patent) or
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`encoded data (in the ’806 Patent). The claims require that the data/encoded data come from the
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`third party, not that the third party operates any particular piece of equipment.
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`Defendants complain (at 12) that there may be a “gray area” surrounding whether a party
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`is a “third-party.” Any ambiguity, however, is not caused by the definition of “third party”—that
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`phrase unambiguously requires a separate person or entity. Of course the facts surrounding
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`whether one party is related to another can be complex and case-specific. For example, if a
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`record company owns a broadcaster, a fact-finder may conclude the record company is not a
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`third-party. Whether two parties are related may require analyzing their corporate structure, or
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`their contractual relationships. That does not make the phrase “third party” unclear. It simply
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`means the fact-finder may need to analyze facts to resolve any disputes.
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`This is also why Defendants’ cited testimony from StratosAudio’s expert witness is
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`irrelevant. Defendants gave the expert various hypothetical scenarios. Some hypotheticals were
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`clear, and the expert was able to say whether Defendants’ fact pattern described a third party.
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`[See D.I. 61-2 at 65:8-67:17.] Other hypotheticals were unclear, so the expert was not able to
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`form an opinion without more information. [See Id. at 77:10-78:6.] This questioning shows why
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`infringement and anticipation are questions of fact, and why courts employ burdens of proof. It
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`has nothing to do with whether the phrase “third party” has a plain and ordinary meaning, which
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`it clearly does.
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`Finally, Defendants suggest (at 13) that there is no difference between the phrases
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`“encoded third-party data” and “third-party encoded data.” This is wrong, and it shows why the
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`Court must construe these two different phrases. “Third-party encoded data” requires a third
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`Case 6:20-cv-01131-ADA Document 61 Filed 09/24/21 Page 17 of 23
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`party to encode the data. “Encoded third party data” does not require the third-party to encode
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`the data. In both instances, the data must come from a third party. StratosAudio’s constructions
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`make these points clear, and the Court should adopt them.
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`G.
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` “Stream Scanner Module” (’806 Patent, Claims 5 & 6)
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`1.
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`The claim itself connotes sufficient structure
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`Defendants argue (at 14) that whether the word “scanner” connotes structure is “not a
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`pertinent question.” This invites legal error. In Williamson, the Federal Circuit considered
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`whether the prefix “distributed learning control” imparted sufficient structure to the claimed
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`“module,” finding on the facts of that case that it did not. See Williamson v. Citrix Online, LLC,
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`792 F.3d 1339, 1351 (Fed. Cir. 2015) (en banc). Similarly, in Power Integrations, the Federal
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`Circuit considered whether the prefix “soft start” added sufficient structure when describing a
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`claimed “circuit,” finding that it did. See Power Integrations, Inc. v. Fairchild Semiconductor
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`Int'l, Inc., 711 F.3d 1348, 1364-65 (Fed. Cir. 2013). In Apex Inc. v. Raritan Computer, Inc., 325
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`F.3d 1364, 1374 (Fed. Cir. 2003), the Federal Circuit cautioned that it would be legal error to
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`interpret a claim as means-plus-function without considering the limitation as a whole, including
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`any “adjectival qualifications.”
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`Here, Defendants ignore the “adjectival qualifications,” which indisputably do recite
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`struc