UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
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`
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`l.M.L. SLU and CoolVision
`
`Petitioner
`
`
`
`v.
`
`
`
`WAG Acquisition, LLC
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`Patent Owner
`
`___________________
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`
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`DECLARATION OF DR. GARETH LOY
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`IN SUPPORT OF INTER PARTES REVIEW OF U.S. PATENT 8,185,611
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`
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`PAGE 1 OF 62
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`I.M.L. SLU'S EXHIBIT 1006
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`___________________
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`___________________
`
`
`
`l.M.L. SLU and CoolVision
`
`Petitioner
`
`
`
`v.
`
`
`
`WAG Acquisition, LLC
`
`Patent Owner
`
`___________________
`
`
`
`DECLARATION OF DR. GARETH LOY
`
`IN SUPPORT OF INTER PARTES REVIEW OF U.S. PATENT 8,185,611
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`
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`PAGE 1 OF 62
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`I.M.L. SLU'S EXHIBIT 1006
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`I, Gareth Loy, declare:
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`I. INTRODUCTION
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`1
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`I have been retained by Counsel for Petitioner to provide opinions on certain
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`issues concerning Inter Partes Review of U.S. Patents No. US8122141,
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`US8327141, US8364839, US8185611 issued to Price (“the Price patents”).
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`2
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`I have been asked to analyze the Price patents and the prior art relating to
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`them, including that provided by the Petitioner and others that I am otherwise
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`aware of, as they relate to the Price patents’ claims.
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`3
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`My opinions are set forth below. I make these statements based upon facts
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`and matters within my own knowledge or on information provided to me by others.
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`All such facts and matters are true to the best of my knowledge and belief.
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`II. BACKGROUND AND QUALIFICATIONS
`
`4
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`I am the President of Gareth, Inc., which provides software engineering,
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`consulting, and litigation support to high-technology companies internationally.
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`Through Gareth Inc., I provide research and development services including
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`product development, coding and documentation. I also provide a wide variety of
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`software engineering services including embedded systems, real-time systems,
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`operating systems support and development, file systems, compilers, parallel
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`processing systems, Internet-based media systems, digital recording/playback
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`systems, and digital signal processing (DSP) systems.
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`5
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`I have prepared and provided compilers, interpreters and assemblers,
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`enterprise software systems, chip architectures, software architectures, real-time
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`operating systems, home entertainment systems, Internet-based media systems,
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`digital recording and playback systems, embedded systems, instruction set
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`architectures, datasheets, databooks, user guides, and custom automated
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`documentation systems. Technology clients have included Infineon, Philips
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`Semiconductor, Trimedia Technologies, Equator Technologies, Pixim, Inc., Palm,
`
`Inc., Sonic Solutions, Sony Corporation of America, Chromatic Research, Raza
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`Microelectronics, Cradle Technologies, Siemens Microelectronics, Zoran
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`Corporation, Dolby Laboratories, and C-Cube Microsystems.
`
`6
`
`I have over 37 years of academic and professional experience in computer
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`science, software development, embedded systems, networking, enterprise
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`software systems, digital audio signal processing, and music technology. I
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`received my doctorate from Stanford University in 1980, where I studied under
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`John Chowning at the Center for Computer Research in Music and Acoustics,
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`which at the time was a project within the Stanford Artificial Intelligence
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`Laboratory directed by John McCarthy.
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`7
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`I was an early Apple Computer employee, having been hired there in 1979
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`full time while still in graduate school. I worked for Jef Raskin who reported
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`directly to Steve Jobs, founder and CEO of Apple Computer. I left Apple in 1980
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`to conduct research and teach graduate and undergraduate courses in computer
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`science and digital audio at UCSD. I was Director of Research and cofounder of
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`the Computer Audio Research Laboratory there.
`
`8
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`I have published widely in various peer-reviewed journals, and have
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`authored three books with the MIT Press, including Musimathics, a two-volume
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`introduction and reference to the mathematics of digital signal processing and
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`music, published by the MIT Press.
`
`9
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`I have been a Software Architect for multiple consumer and professional
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`products for large international electronics companies and have sustained a long
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`and successful career at the cutting edge of software development and multimedia
`
`computing.
`
`10
`
`I am experienced in a variety of computer science domains, ranging from
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`embedded systems, digital home entertainment systems, graphical user interfaces,
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`real-time operating systems, parallel processing systems, signal processing
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`computers, device drivers, and software for film, music, and audio. I have
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`extensive experience in use of multiprocessor/multicore architectures to solve
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`problems in digital audio signal processing. I have also provided expertise in
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`compiler design, file systems, operating systems, handheld networked Personal
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`Information Management (PIM) devices, network audio streaming systems,
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`wireless remote control systems, digital loudspeaker systems, digital home
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`entertainment systems, enterprise email systems, software for factory automation
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`systems, interactive databases, enterprise software for managing of music libraries,
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`MPEG audio compression, on-line gaming, composition systems, digital camera
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`hardware and software, digital audio hardware and software technologies, and
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`more.
`
`11
`
`I also have 20 years of experience as an expert witness on numerous cases.
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`Most recently, I testified at an International Trade Commission Investigation No.
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`337-TA-882 hearing involving U.S. Patent Nos. 8,214,873, 8,028,323, and
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`8,230,099. I have also testified before a jury in federal court under oath, have
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`provided Markman claim construction testimony, and have presented exhibits and
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`Markman tutorials in federal court in trademark infringement, inequitable conduct,
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`and patent technology litigation. I have been retained as an expert witness in such
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`areas as software for handheld networked Personal Information Management
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`(PIM) devices, digital music player software, enterprise email systems, software
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`for factory automation systems, Internet-based media delivery systems, digital
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`camera hardware and software, internet customer tracking systems, SAP billing
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`systems, interactive databases, software for management of music libraries, Digital
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`Audio Recording Devices (DARD), MPEG audio compression, on-line gaming,
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`human interface design, music composition systems, MIDI systems, network audio
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`streaming systems, rendering of 3D digital audio, and digital audio hardware and
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`software technologies.
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`12
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`I am also a member of several professional societies, including the Institute
`
`of Electrical and Electronics Engineers (IEEE), and the Association for Computing
`
`Machinery (ACM).
`
`13 A complete list of my qualifications, including a list of my publications and
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`lectures is included in my CV, which is attached as Exhibit A.
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`14
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`I have also performed services in patent disputes as an independent technical
`
`expert and consultant and as an expert witness on computer, video, audio, and
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`software-related matters.
`
`A.
`
`Relevant personal involvement
`
`15 As a graduate student at Stanford University from 1975 to 1980, I conducted
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`research at the Stanford Artificial Intelligence Laboratory and the Stanford Center
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`for Computer Research in Music and Acoustics where, among many other things, I
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`was responsible for designing software that controlled a real-time digital signal-
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`processing computer system to play audio and music in real time. The problem
`
`being solved was not fundamentally different than the problem addressed by the
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`Price patents in that there was a server computer containing audio media, a data
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`communications medium (a computer bus) that connected the server to the real-
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`time signal-processing computer, and a loudspeaker system connected to the
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`signal-processing computer. In order to be musically useful when played with
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`other musical performers, the system was designed to start playing as soon as
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`possible after initialization by filling its buffers as fast as possible and beginning
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`playback while they continued to be filled on demand. In this way the system could
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`be synchronized with live performers and play in time with them. This work is
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`documented in references accompanying my doctoral thesis.
`
`16 Upon graduation in 1980, I became a researcher and professor at UCSD
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`where I spent ten years developing stand-alone computer systems and networked
`
`computer systems that could play audio and music in real time. The stand-alone
`
`systems were also designed to start playing as quickly as possible for the same
`
`musical reasons, and used the technique of “buffer chaining” to accomplish this
`
`aim. Buffer chaining means that the DMA (Direct Memory Access) of the DACs
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`(Digital to Analog Converters) were programmed to begin playing as soon as data
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`arrived, and to interrupt the server immediately so that the server could
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`immediately begin sending the next buffer. Thus, the delay time to playback was
`
`measured in milliseconds. The method of buffer chaining was well known in the
`
`art at the time.
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`17
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`In 1989 I began researching network delivery of digital audio using the then-
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`available desktop workstations designed by Sun Microsystems, connected by 3Mb
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`Ethernet. I noted that this Ethernet speed was capable of conveying reasonably
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`high-quality digital audio in real time and that this could become an interesting
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`means for distributing digital audio. However, I left my research position at UCSD
`
`that year and I abandoned the research.
`
`III. LEGAL STANDARDS
`
`A.
`
`18
`
`Anticipation
`
`I understand that a claim is anticipated if a single prior art reference
`
`discloses, explicitly or inherently, all limitations of the invention arranged or
`
`combined in the same way as in the claim. I further understand that inherency may
`
`not be established by probabilities or possibilities, and the fact that one of ordinary
`
`skill in the art understands that the missing limitation could exist under certain
`
`circumstances is not sufficient. Instead, the party claiming inherency must prove
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`that the missing matter is necessarily present and that it would be so recognized by
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`a person of ordinary skill in the relevant art. Whether the inherent disclosure was
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`recognized at the time of the reference is immaterial.
`
`19
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`I further understand that the disclosure of an anticipatory reference must
`
`describe the claimed invention to a degree adequate to enable person of ordinary
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`skill in the art to not only comprehend the invention, but also to make, or in the
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`case of a method, use, the claimed invention without undue experimentation.
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`Provided that the reference asserted is enabling, it is my understanding that it need
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`not disclose any independent use or utility to anticipate a claimed invention.
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`B. Obviousness
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`20
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`It is my understanding that an invention is unpatentable if the differences
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`between the invention and the prior art are such that the subject matter as a whole
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`would have been obvious at the time the invention was made to a person having
`
`ordinary skill in the art. I further understand that obviousness is determined by
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`evaluating: (1) the scope and content of the prior art, (2) the differences between
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`the prior art and the claim, (3) the level of ordinary skill in the art, and (4)
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`secondary considerations of non-obviousness. To establish obviousness based on a
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`combination of the elements disclosed in the prior art, it is my understanding that a
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`petitioner must identify a specific combination that teaches all limitations and
`
`establish that a person of ordinary skill in the art at the time of the claimed
`
`invention would have found it obvious to make that combination.
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`21
`
`To guard against hindsight and an unwarranted finding of obviousness, I
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`understand that a potentially important component of any obviousness inquiry is
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`whether the petitioner has identified any teaching, suggestion or motivation that
`
`would have prompted a person of ordinary skill in the art to make the claimed
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`combination and have a reasonable expectation of success in doing so. I
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`understand that this test should not be rigidly applied, but can be an important tool
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`to avoid the use of hindsight in the determination of obviousness.
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`22
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`I further understand that the teaching, suggestion, or motivation may be
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`found explicitly or implicitly: (1) in the prior art; (2) in the knowledge of those of
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`ordinary skill in the art that certain references, or disclosures in those references,
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`are of special interest or importance in the field; or (3) from the nature of the
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`problem to be solved. Additionally, I understand that the legal determination of
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`the motivation to combine references allows recourse to logic, judgment, and
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`common sense. In order to resist the temptation to read into prior art the teachings
`
`of the invention in issue, however, it should be apparent that the expert is not
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`conflating “common sense” and what appears obvious in hindsight.
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`23
`
`I understand that if the teachings of the prior art would lead a person of
`
`ordinary skill in the art to make a modification that would render another prior art
`
`device inoperable, then such a modification would generally not be obvious. I also
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`understand that if a proposed modification would render the prior art invention
`
`being modified unsatisfactory for its intended purpose, then there is no suggestion
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`or motivation to make the proposed modification.
`
`24
`
`I understand that it is improper to combine references where the references
`
`teach away from their combination. I understand that a reference may be said to
`
`teach away when a person of ordinary skill in the relevant art, upon reading the
`
`reference, would be discouraged from following the path set out in the reference,
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`or would be led in a direction divergent from the path that was taken by the
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`applicant. In general, a reference will teach away if it suggests that the line of
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`development flowing from the reference’s disclosure is unlikely to be productive
`
`of the result sought by the patentee. I understand that a reference teaches away, for
`
`example, if (1) the combination would produce a seemingly inoperative device, or
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`(2) the references leave the impression that the product would not have the
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`property sought by the patentee. I also understand, however, that a reference does
`
`not teach away if it merely expresses a general preference for an alternative
`
`invention but does not criticize, discredit, or otherwise discourage investigation
`
`into the invention claimed.
`
`25
`
`I understand that where the party asserting invalidity establishes a prima
`
`facie case of obviousness, the burden shifts to the patent owner to come forward
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`with objective evidence demonstrating secondary considerations of non-
`
`obviousness. I have been instructed that secondary considerations include: (1)
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`long-felt but unsolved need; (2) commercial success of the invention; (3) failed
`
`efforts of others; (4) copying by others; (5) praise for the invention; (7) unexpected
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`results; (8) disbelief of experts; (9) general skepticism of those in the art; (10)
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`commercial acquiescence; and (11) simultaneous development. I understand that
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`evidence of secondary considerations must be considered as part of all the
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`evidence, not just when the decision maker remains in doubt after reviewing the
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`art.
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`26
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`I also understand that there must be a nexus between the claimed invention
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`and the secondary considerations before the evidence is relevant to the question of
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`obviousness. In particular, in the case of commercial success of a product
`
`embodying the claimed invention, I understand that the success must be shown to
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`have in some way been due to the nature of the claimed invention, as opposed to
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`other economic or commercial factors unrelated to the technical quality of the
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`patented subject matter. I understand that commercial acquiescence and licensing
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`may be indicative of nonobviousness where it involves prominent or a substantial
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`portion of the competitors in the relevant market.
`
`C.
`
`27
`
`Relevant Time Period For Anticipation and Obviousness Analysis
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`I understand that the earliest U.S. application that eventually led to the ‘611
`
`patent was filed on September 12, 2000. Therefore, for the purposes of this
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`declaration, I have analyzed anticipation and obviousness as of September 2000.
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`28 My analysis travels back in time to the year 2000; whether I write in past or
`
`present tense, my analysis is always with respect to and in the time frame of the
`
`year 2000.
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`D.
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`29
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`Basis for My Opinion
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`I have relied on the patent claims of the instant patents and their disclosures
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`in forming my opinions; also the prior art exhibits to the Petition for the IPR, and
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`my belief as to the knowledge of the person of ordinary skill in the relevant art in
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`the 2000 timeframe.
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`30 My opinions are set forth below. I make these statements based upon facts
`
`and matters within my own knowledge or on information provided to me by others.
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`All such facts and matters are true to the best of my knowledge and belief.
`
`E.
`
`Definition of the person of ordinary skill in the art in the relevant time
`period
`
`31
`
`I believe that a person of ordinary skill in the art (POSITA) in 2000 would
`
`have a bachelor’s degree in computer science or electrical engineering and one
`
`year of practical experience with networked or streaming media or a M.A. or M.S.
`
`degree in computer science, or comparable degree. These descriptions are
`
`approximate, and a higher level of education or specific skill might make up for
`
`less experience, and vice-versa. I believe I have a sufficient level of knowledge,
`
`experience and education to provide an expert opinion in the field of the instant
`
`patents, including what one of ordinary skill in the art would have understood from
`
`the prior art in this field at that time.
`
`F.
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`32
`
`Claim Construction
`
`I understand that in an inter partes review, claim terms in an unexpired
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`patent are interpreted according to their broadest reasonable construction in light of
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`the specification of the patent in which they appear. I applied this rule in my
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`analysis reported herein.
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`IV. THE STATE OF RELEVANT ART IN 2000
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`A.
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`33
`
`Background
`
`The term “streaming media” appears in the title of all of the Price patents
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`discussed in this declaration. Streaming media is digital audio, or video, or their
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`combination, which is continuously received by, and presented to, an end-user
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`while being delivered by a provider.
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`34 As such, the technology dates back to at least the 1960’s with the publication
`
`of Max Mathews’ seminal book on the synthesis, recording, and playback of
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`digital audio on a computer titled The Technology of Computer Music, published
`
`by the MIT Press in 1969, which showed streaming digital audio from a computer-
`
`driven digital tape to a listener in real time.
`
`
`35 Mathews’ publication introduced the concept of buffering as a means of
`
`smoothing out the transitory nature of digital transmission in order to obtain
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`continuous realization of media in real-time. [Mathews, p. 32] Buffering is
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`fundamental to the realization of continuous digital media in real-time.
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`36 With the advent of disk-based computer systems in the 1970’s, multi-
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`channel music and audio could be streamed to and from disk to facilitate live
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`interactive recording, playback, and nonlinear editing. [James A. Moorer – “Signal
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`Processing Aspects of Computer Music: A Survey”, Proc. IEEE, 1977] By 1990
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`these techniques were being developed for professional audio recording and
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`playback. [James A. Moorer, “Hard-disk recording and editing of digital audio” –
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`Audio Engineering Society, 1990]
`
`37 With the advent of networked computer systems, such as the Sun 100
`
`computers manufactured by Sun Microsystems in the early 1980’s, it became easy
`
`to transmit digital audio and other forms of media as files between computers over
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`the Internet via the TCP/IP protocol or the UDP protocol. For example, with then-
`
`current 3Mb/s Ethernet technology, uncompressed 16-bit stereo digital audio could
`
`in theory be streamed from one computer to another on a local network in real time
`
`requiring less than half the network bandwidth.
`
`38
`
`In 1989, Tim Berners-Lee, a British scientist at CERN, invented the World
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`Wide Web originally conceived and developed to meet the demand for automatic
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`information sharing between scientists in universities and institutes around the
`
`world. It introduced the hyperlink to documents, thereby providing a way for the
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`development of document catalogs. Initially, the information distributed was
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`primarily text and graphics. Later, images and stored audio and video files were
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`added to the Web. These audio and video files were typically downloaded from a
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`server and stored at the client before they were played.
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`39 With the adoption of the MPEG-1 standard (published as ISO/IEC 11172) in
`
`1990, compressing digital audio and video became possible, substantially reducing
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`the bandwidth required to record, store, and transmit digital media. I have
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`reviewed this standard as published in the form provided as an Exhibit to one or
`
`more of the petitions to be filed for inter partes review of the Price patent(s).
`
`B.
`
`40
`
`Networked streaming media
`
`These early developments began to be consolidated in the mid-1990’s to
`
`provide network-based streaming of digital media.
`
`41
`
`Techniques previously developed to stream digital media to users on stand-
`
`alone computer systems were repurposed to stream digital media between
`
`computer systems over the Internet. This enabled clients to select and receive audio
`
`and video content from servers across the Internet and to begin hearing and seeing
`
`the content as soon as the first few bytes of the stream arrived at the client.
`
`[Willebeek p. 269 col. 2 para. 1] The system developed by RealNetworks in 1995
`
`used a proprietary audio technology to play audio at the same time as it was being
`
`downloaded. Kozamernick describes RealPlayer as follows:
`
`Modern players, such as for example RealPlayer ™, are able to read the
`file stream as it is coming in, and can begin playing it before the rest of
`the file has arrived. In order to make the playback smooth, the player
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`uses a process of buffering. During buffering, a number of the streaming
`packets are collected before playing them out. As the player begins to
`play out the file, it continues to collect packets in reserve. If there are
`minor delays in receiving the packets, playback will still be continuous.
`[F. Kozamernik - Webcasting - The Broadcasters' Perspective – 2000]
`
`42 However, some developments were still required to allow such systems
`
`reliably to play back digital media starting quickly and without interruption. For
`
`example, then-current Internet transmission speeds to customers typically ranged
`
`from 28.8 kBaud/sec to 56 kBaud/sec, which required high degrees of compression
`
`and low sampling rates to achieve continuous real-time playback. Also, the
`
`common Internet protocol TCP/IP was not designed for streaming delay-sensitive
`
`data across a network as it was originally designed with a built-in “back-off”
`
`strategy to alleviate congestion in the network that is unsuitable for real-time data
`
`transfer.
`
`43 Buffering, first introduced for media streaming by Mathews, has been
`
`commonly known in the context of streaming media from the 1960’s and is still an
`
`important technology for transmitting media data in real time over the Internet,
`
`because transmission over the Internet may not be fully reliable and may suffer
`
`from delay jitter. [Kozamernick, pp. 12-13] Delay jitter is the delay variance of
`
`consecutive transmitted packets; the variance is typically stochastic. [Id.] Buffering
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`has been known to smooth out jitter to enhance playback quality at least since
`
`Mathews. [Mathews p. 32]
`
`44
`
`To overcome these problems, several protocols, including the Real Time
`
`Streaming Protocol (“RTSP”) were developed to provide real-time media services
`
`via the Internet. [Willebeek, p. 270] RTSP remains a popular protocol that enables
`
`on-demand delivery of real-time streaming of audio and video. However, RTSP is
`
`an Internet protocol and does not prescribe the operations of servers and clients
`
`transacting media over the Internet.
`
`C.
`
`The Price patents portray an inaccurate picture of the state of the art in
`2000
`
`45 A potential side effect of buffering is a delay to the recipient while the buffer
`
`fills. The Price patents contend in their specifications that prior art systems could
`
`only fill the buffer from the server at the rate the media player consumed it,
`
`thereby requiring the user to wait for the time it took to completely fill a large
`
`buffer before playback could begin. Further, they contend that the content of the
`
`buffer would dwindle during the time lost packets were being refetched until it
`
`disappeared, whereupon playback would halt until the buffer could be completely
`
`filled again. If, for example, the user had to wait ten seconds before playback
`
`started then there would only ever be enough data to cover for ten seconds worth of
`
`interrupted packet delivery. Price asserts that, because prior art systems could not
`
`fill the buffer any faster than the rate at which data was consumed by the media
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`player, the buffer cannot replenish itself during playback and would eventually be
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`exhausted, resulting in the media player falling out of real time while it rebuffered,
`
`to the consternation of users. See, for example [‘611 Patent, 2:35-3:4].
`
`46
`
`This is an inaccurate characterization of the state of the art. As explained by
`
`Kozamernik, streaming technology of the time allowed for immediate playback.
`
`[Kozamernik, p. 6] According to Willebeek, it was well known at the time that,
`
`where available network bandwidth exceeded the playback rate, the excess
`
`network capacity could be felicitously employed to rapidly fill the buffer in the
`
`first place — avoiding Price’s alleged startup delay — and subsequently use it to
`
`keep the buffer topped up to cover any time required to replace lost packets —
`
`avoiding Price’s alleged inevitable buffer exhaustion. [Willebeek p. 270]
`
`Willebeek states,
`
`If the network conditions are suitable (sufficient sustained bandwidth is
`available), this file, streaming across the network, is played at the client
`immediately. Otherwise, the file is played once uninterrupted playback
`can be ensured.
`
`47
`
`Further, I attest that these principles of buffering were used to provide timely
`
`and uninterrupted playback of streaming digital audio media in stand-alone disk-
`
`based computer systems developed in the 1970’s and 1980’s under my direction,
`
`and these systems did not suffer the problems Price alleges.
`
`PAGE 19 OF 62
`
`I.M.L. SLU'S EXHIBIT 1006
`
`
`
`V. OVERVIEW OF THE PRIOR ART
`
`48
`
`In the late 1990’s various authors began addressing the design of
`
`client/server systems to combine available Internet technologies and media formats
`
`to design functioning systems for real-time dissemination of digital media.
`
`49
`
`I have reviewed the prior art references cited in the Petition(s) including the
`
`following:
`
`• U.S. Patent No. 8,185,611 to Price (the “’611 Patent”)
`
`• U.S. Patent No. 5,822,524 to Chen et al. (“Chen”)
`
`• File History of U.S. Patent No. 5,822,524 to Chen et al. ("Chen File
`History”)
`
`• Willebeek-LeMair, et al., “Bamba – Audio and Video Streaming Over the
`Internet,” IBM Journal of Research and Development¸ Vol. 42, No. 2,
`March 1998 (“Willebeek”)
`
`• U.S. Patent No. 6,405,256 to Lin et al. (“Lin”)
`
`• Prosecution history for U.S. Patent No. 8,185,611
`
`• Zheng & Atiquzzaman, Multimedia Over High Speed Networks: Reducing
`Network Requirements With Fast Buffer Fillup, Global Telecommunications
`Conference (IEEE 1998) (“Zheng)
`
`50 Based upon such review, as explained in detail below, it is my opinion that a
`
`POSITA would have found the teachings in the Chen File History, Willebeek, Lin
`
`and Zheng prior art compatible with the system and methods disclosed in Chen. It
`
`is also my opinion that, for the reasons stated below, a POSITA would have readily
`
`PAGE 20 OF 62
`
`I.M.L. SLU'S EXHIBIT 1006
`
`
`
`used the teachings of the listed prior art to modify the Chen system and methods in
`
`the manner described below.
`
`A.
`
`Chen
`
`51 Chen discloses a server-client architecture in which multimedia files are
`
`delivered via a server buffer (Stream Buffer 11, 18) to a client-side buffer (Packet
`
`Buffer 31, 33) in the form of digital data packets, shown in FIG. 1 below. [Chen,
`
`5:17-34]
`
`
`52 Chen describes three transmission modes for sending multimedia data to the
`
`client: NORMAL, RUSH, and PAUSE. [Chen 6:1-15] When there is too little or
`
`no data in the Packet Buffer 31, the invention enters RUSH mode. [Id.] When the
`
`amount of data in the Packet Buffer 31 is filled to between high and low “Water
`
`Marks”, the invention enters NORMAL mode. [Id.] When the Packet Buffer 31 is
`
`filled above its high “Water Mark”, the invention enters the PAUSE mode. [Id.,
`
`6:40-54]
`
`PAGE 21 OF 62
`
`I.M.L. SLU'S EXHIBIT 1006
`
`
`
`53 Chen teaches that RUSH mode is used at the start of transmission because
`
`when starting, the Packet Buffer is empty, therefore below the low-water mark. In
`
`Chen, the client agent 30 sends a request to the command processor 37 of the
`
`server “for immediate retrieval of the requested data. [Id. 5:64] A response
`
`command is sent to the client agent, and if it is accepted, the server sets up the
`
`necessary structure including the stream buffer, and signals the transmission
`
`scheduler 13 at the server to begin transmitting frames. [Id. 9:41- 48] At this point,
`
`the client buffer is necessarily empty, and no packets have yet been transmitted.
`
`Accordingly, a POSITA would understand that Chen would initially operate in
`
`RUSH mode, which is the mode used when “a low amount of data exists in the
`
`client agent’s packet buffer.” [Id. 10:14-15]
`
`54 Chen switches to NORMAL mode when the client agent’s packet buffer
`
`crosses above the low-water mark. [Id. 6:52-54] In NORMAL mode, the server
`
`scheduler 13 paces the rate of media transmission from the server to the client at
`
`the rate the client consumes frames, that is, so that the data for a single video frame
`
`is transmitted in the time of a single video frame at playback rate. [Id. 6:31-39]
`
`55 Chen’s packet buffer stores from 1-5 frames of video. [Chen, 6:32-33]. In
`
`NORMAL mode, where transmission is paced at the playback rate, and the
`
`playback rate is defined as 30 frames per second, the stream buffer fills and moves
`
`a data window through the 1-to-5 frame buffers at “about” the playback rate. In
`
`PAGE 22 OF 62
`
`I.M.L. SLU'S EXHIBIT 1006
`
`
`
`accordance with Chen’s aim of preserving real-time presentation of the media at
`
`the client, the data window necessarily moves through the data in the stream buffer
`
`at “about” the playback rate. [Id.] This conclusion is supported by the disclosure
`
`in Chen that in NORMAL “mode the server (1) paces its transmission so that the
`
`data for a single video frame is transmitted in the time of a single video frame
`
`(normally 1/30 second)” and at this time “no need exists for the client agent (30) to
`
`send periodic feedback to the server control”. [Chen 6:30-39] In order for the
`
`Chen server to “pace” the client without feedback, the server buffer must fill and
`
`unfill (transmit) data at about the playback rate (i.e., the NORMAL rate), on
`
`average. Moreover, the fill rate of the server buffer would necessarily match the
`
`playback rate during this time, and to the extent that playback rate is “constant,” so
`
`is the server fill rate during this time.
`
`56
`
`The Internet, by its design, must be able to account for lost packets. The
`
`TCP/IP protocol, for example, incorporates methods to account for missing packets
`
`and to request retransfer. Th
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