UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`____________
`
`NETFLIX, INC.
`Petitioner,
`
`v.
`
`AFFINITY LABS OF TEXAS, LLC
`Patent Owner.
`____________
`
`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
`
`____________
`
`Record of Oral Hearing
`Held: December 21, 2017
`____________
`
`
`
`
`Before KEVIN F. TURNER, LYNNE E. PETTIGREW, and JON B. TORNQUIST,
`Administrative Patent Judges.
`
`
`
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`
`
`
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`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`____________
`
`NETFLIX, INC.
`Petitioner,
`
`v.
`
`AFFINITY LABS OF TEXAS, LLC
`Patent Owner.
`____________
`
`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
`
`____________
`
`Record of Oral Hearing
`Held: December 21, 2017
`____________
`
`
`
`
`Before KEVIN F. TURNER, LYNNE E. PETTIGREW, and JON B. TORNQUIST,
`Administrative Patent Judges.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`ANDREW HOLMES, ESQUIRE
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`
`50 California Street
`
`22nd Floor
`
`San Francisco, CA 94111
`
`JOHN W. MCCAULEY, IV, ESQUIRE
`
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`
`50 California Street
`
`22nd Floor
`
`San Francisco, CA 94111
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`RYAN DOMBERGER, ESQUIRE
`ROBINS KAPLAN, LLP
`800 LaSalle Avenue
`New York, NY 10022
`Suite 2800
`Minneapolis, MN 55402
`RYAN M. SCHULTZ, ESQUIRE
`ROBINS KAPLAN, LLP
`800 LaSalle Avenue
`New York, NY 10022
`Suite 2800
`Minneapolis, MN 55402
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`
`
`
`
`
`
`
`
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`The above-entitled matter came on for hearing on Thursday,
`December 21, 2017, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`P R O C E E D I N G S
`JUDGE TORNQUIST: You may be seated. Okay. We are here
`
`on IPR2016-1701, and IPR2017-122, Netflix v. Affinity Lab in Texas.
`Who do we have from Petitioner?
`
`MR. HOLMES: Good afternoon, Your Honors. Andrew Holmes
`on behalf of Petitioner, Netflix. With me today is my associate John
`McCauley also with the same law firm of Quinn Emanuel. And then
`from Netflix we've got Mr. Ed Bailey here today.
`
`JUDGE TORNQUIST: Welcome. patent owner?
`
`MR. SCHULTZ: Ryan Schultz from Robins Kaplan on behalf of
`patent owner, (indiscernible).
`
`JUDGE TORNQUIST: Welcome. Okay. Pursuant to our order of
`November 17th, each side will have 60 minutes to present argument here
`today. Petitioner, bearing the burden of proof, you'll go first. You can
`reserve time for rebuttal if you wish. And then we'll hear from patent
`owner, and anything else you have.
`
`MR. HOLMES: Thank you, Your Honor.
`
`JUDGE TORNQUIST: And so when you're ready.
`
`MR. HOLMES: Thank you. May it please the Board, Andrew
`Holmes on behalf of the petitioner. At the outset, Your Honor, if you
`will, I'd like to reserve 20 minutes for rebuttal.
`
`JUDGE TORNQUIST: Sure.
`
`MR. HOLMES: Okay. And just so the Board is aware, my
`colleague and associate here with me is going to be presenting on the
`'868 patent, the second petition that's at issue here today.
`
`JUDGE TORNQUIST: Okay.
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`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`MR. HOLMES: Okay. So what I'd like to start out by doing is, I
`
`know there's a long slide presentation that we submitted, and we're not
`going to have time to run through every single slide, and I don't intend to
`do that here today. But the goal for us really is to focus on what are the
`disputes, what matters. And so the opening part of my presentation will
`be to focus on claim construction in the '802 patent, and then Mr.
`McCauley will focus on some of the main disputes that we feel are at
`issue in the '868 patent as well. And then I'm happy to answer any
`questions as we go and then we'll reserve our time for rebuttal.
`
`So just a beginning, a quick overview, the 2016-1701 petition
`relates to the '802 patent, there were five grounds instituted by the Board.
`The second IPR that we're here for is the 2017-122 petition, that's the
`'868 patent that we'll be referring to, there were two grounds instituted for
`that one. And I know the Board may be familiar with these -- the patent,
`(indiscernible) as well, but just as a brief background, these two patents
`share a common specification, a lot of the same terminology is used
`across the claims, the claims are, in many ways, similar. And so we're
`trying -- we're going to try to streamline a lot of our presentations today
`by focusing on some of the common issues that have come up in the
`patent owner's response in challenging our petition.
`
`So another piece of background that I think is relevant because it
`came up in our -- in the briefing is the history of this family of patents.
`And, you know, as you can see on the screen, the Board has invalidated a
`number of claims from five different patents. The one we bolded here at
`the top is a notable because it relates to, (a), Treyz and Fuller
`combination that's at issue here today. And then, (b), very similar claim
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`language and also a claim term as construed by the Board previously, and
`we feel that that's binding and is the right construction here.
`
`So we just wanted to note that that's been, (a), already determined
`in prior IPRs, and also notably upheld by the Federal Circuit. In every
`instance, actually, where the claims were found invalid, the Federal
`Circuit's affirmed those. And so I just note that as background because
`it'll become relevant as we get into some of the disputes.
`
`Sort of covered this overview already. The first thing I just want to
`touch on is the one term that was actually construed by the Board, which
`is the term available media. And the Board, in its' institution decisions in
`both of the IPRs at issue today, followed its prior construction of that
`term and we thinks it's the right one. We think that an available media,
`as the Board found in the '407 IPR and then in both institution decisions
`here, includes parts of content accessible from a source of audio, video,
`and our textual information. And the Board went on to note that the term
`is not limited to a single file, song, or video, and may encompass, at a
`minimum, a collection of audio/video files.
`
`We feel like that construction that came from a prior proceeding
`that's been affirmed by the Federal Circuit for patents with the same
`specification is the right one here. And, frankly, the patent owner has not
`offered an alternative, they've waived that. And for a lot of the
`arguments that we're not addressing here today specifically given the
`time constraints, that's because there's been no argument from the patent
`owner, and, therefore, those have been waived. And so we're relying on
`our papers for many of those arguments.
`
`So moving on then to the rationale for the Board applying its prior
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`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`claim construction -- I mean, the NTP case from the Federal Circuit
`clearly says that courts must interrupt the claims consistently across all
`asserted patents. What you see here at the bottom is just an exemplary --
`
`JUDGE TORNQUIST: Counsel, just so you're -- Judge Turner is
`remote, so if you actually say the page number that you're on in your
`demonstrative --
`
`MR. HOLMES: I had a note for that, and I forgot. I've done that
`before, I apologize, Judge Turner. I'm on Slide 8. So at the bottom -- I
`mean, at the top it's just a cite of NTP, which I think is well-established
`law at this point. And at the bottom, it's just -- the point here is just to
`show the Board that what we're dealing with with an available media,
`which is the term that was construed in this -- in the two petitions, that it's
`used in the same way not only from the prior IPRs but also in the two that
`are at issue here today. And so the term should be construed the same in
`the two present IPR petitions.
`
`There's another term that was not explicitly construed in the
`institution decisions, but I think it's worth noting because there was some
`guidance provided by the Board about what it means, or what the scope
`of segment files can be. And I think that -- I just want to address that
`briefly because it's going to come up later in a couple of the disputes, so I
`think it's just worth noting.
`
`But what the Board found in the institution decisions is that
`segment files is broad enough to encompass an individual song, video, or
`station contained within a broader collection of audio or video files. And
`that's in the 122 IPR decision at 11 and 10. And I'm on Slide 9. And this
`is also in the 1701 IPR institution decision paper 9 at 9 to 10.
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`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`The reason why I note that particular -- what I would call it as
`
`guidance because it wasn't part of the formal claim construction section
`of the institution decisions, but it's -- we feel like that's a very appropriate
`and well-reasoned construction because in prior IPRs relating to the same
`kind of family with the same specification, the Board construed the term
`portions which is synonymous with and -- it was just synonymous with
`the independent segment files in the exact same way.
`
`And so, this is -- the construction or the guidance that we have in
`these two IPRs before the Panel right now is completely consistent with
`the prior constructions the Board has provided, it had been affirmed by
`the Federal Circuit, and it should be -- to the extent that there's going to
`be an adoption of it as a formal claim construction, is the appropriate one.
`Again, there's been no countervailing argument that a different
`construction would be appropriate from the patent owner, and we believe
`that's in way --
`
`JUDGE TORNQUIST: Let me take you back to the previous
`slide, slide 8. Or maybe a couple slides back. One, in the '407 -- the '007
`patent that we -- the original construction that we derived for available
`media. We pulled some of that language from dependent claims so that
`dependent claims are consistent. Does that matter in this proceeding that
`those dependent claims are no longer --
`
`MR. HOLMES: No, I don't --
`
`JUDGE TORNQUIST: -- in these patents?
`
`MR. HOLMES: I don't think so at all for -- and I think there's a
`couple reasons why. One of which is, as I think the Board has
`recognized which is that the term "an available media" is not -- it's not a
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`term that's defined in this common specification, right? But it is the exact
`same term as used throughout the claims that stem from the common
`specification to two -- to determine that that particular construction needs
`to be adopted differently when you have a, you know, claim deriving
`from the same specification, it just -- it wouldn't be supported by the
`intrinsic record, there's no extrinsic evidence to contradict it.
`
`So to the extent that we may be dealing with a different nuance of
`the same invention what's in the specification, there's really no -- there's
`no reason to be adopting a different construction here. In fact, there's no
`evidence that that would actually support that. So I believe that, you
`know, we would proffer that that -- there's no reason, even though the
`claims are, you know, the dependent claims are different, it's the same
`term from the same specification and we're guided by the same principles
`of claim construction. And there's just been no -- there's no evidence to
`deviate from that here.
`
`JUDGE TORNQUIST: Uh-huh.
`
`MR. HOLMES: So, with that, I just -- I'm sure this will be
`touched -- I'm on slide 11 now -- I'm sure this will be touched on in the
`patent owner's presentation, but I do want to just touch on two (inaudible)
`of its own claims constructions. The first arguments that the -- the patent
`owner argues that Netflix cannot meet its burden to show obviousness
`where it and its expert must speculate in order to construe the challenged
`claims and compare them to the prior art.
`
`Now, the Board properly rejected that. I think that there's simply
`no evidence to suggest that there's any speculation going on in this
`particular proceeding. And, in fact, what you see on Slide 11 is that the
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`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`Board agreed that they, meaning the Petitioner, provide detailed citations
`and arguments in this proceeding explaining -- or each limitation of the
`challenge claims is disclosed in the recited prior art.
`
`And I think that that then takes us to the second argument which,
`again, this is more, in my view, a little bit of a red herring because it is
`essentially trying to bring in District Court fights with what's going on
`here before the Board. And the argument's essentially that Netflix and its
`experts have alleged that several terms are subject to Section 112-6, and
`Netflix has not identify any function or structure as required by the
`Board's rules for this petition.
`
`And, again, as you can see on the bottom of Slide 12, that was
`clearly rejected in the institution decision. And I think that's -- that's the
`right -- I mean, that's obviously the most accurate way to put it which is
`that neither side, in their briefing, there's no record evidence of anybody
`arguing that the claims are subject to 1 Section -- or, 112 Section 6, that's
`just not part of the record here.
`
`So for them to argue that we were somehow obligated to do that is
`just not right. And it's not supported by anything that they've -- they had
`actually come forward with or us. I think what you'll probably see in
`their slide deck is slide after slide from excerpts from the District Court
`proceeding about a fight over Section 112, and -- where the claim
`construction standards are different. And before the Board now, there's
`no disputes over Section 112-6 at all. So we feel like that's a little bit of a
`red herring, and be happy to address more of that in rebuttal.
`
`JUDGE TORNQUIST: Just so I remember, what was the final
`ruling in the District Court for whether these are 112 Paragraph 6?
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`MR. HOLMES: The final ruling was that the patent owner
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`prevailed on all of those arguments. So they were able to convince the
`court that none of them were 112-6.
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`JUDGE TORNQUIST: Okay.
`
`MR. HOLMES: So for them to now be arguing that, hey, Netflix,
`you've done something wrong by not now claiming that 112-6 is a little
`bit at odds with what they'd, in fact, said at the District Court which is
`that they're not 112-6 to begin with. So we don't feel that like that -- (a),
`that argument has any merit in the current record before the Board, and it
`also just doesn't have any merit on its face.
`
`So now, with that, I'd like to switch to three of the actual
`substantive disputes with respect to the '802. And there's a lot of
`different grounds, I'm just going to -- the patent owner's lumped a lot of
`them together, and I'll like to do the same given the time constraints we
`have and the way that I think is appropriate to streamline this. So I'd like
`to turn to Slide 16. And, Slide 16, what this dispute is about over the
`limitation which we -- this is the method claim, method Claim 1, and the
`argument that the patent owners made applies to 1, 9, and 14, but in the
`interest of time we'll address 1 here.
`
`And now the element at issue is organizing an available media into
`a plurality of independent segment files to facilitate delivery. Now we --
`on the record, the two prior references, the combination at issue here that
`was also at issue in the '407 that was affirmed by the Federal Circuit,
`Treyz and Fuller -- we posit -- clearly discloses this limitation, and those
`are shown here on the screen. Treyz discloses that the audio from
`sources -- from these sources may be combined to form customized
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`Case IPR 2016-01701 (Patent 9,094,802 B2)
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`channels made up of portions of the various sources, and that a user may
`schedule how portions or segments of the audio from the various sources
`are to be played.
`
`So the available media is all these different Internet radio stations,
`and then you can select from that list one or more stations as a segment.
`And then the Fuller reference has a little bit of a different twist on its
`audio streaming -- its audio streaming system in that -- and it discloses
`the same limitation in that it says "the realtime server receives digitized
`video data and compresses that data into jpeg images." The jpeg images
`are just one of a variety of different formats that Fuller discloses, it's just
`the example we chose here.
`
`And then it goes on to say that "these jpeg images are sequenced
`digital frames of a video. Similarly for audio data, the realtime server
`140 breaks the audio information into one-half second periods of audio
`data, and then those can be delivered to an end-user as needed."
`
`Now, where is the dispute? Well, the way I'd characterize the
`dispute is, essentially, it seems to me that it's a collateral attack on the
`court's claim construction argument. There's been no alternative claim
`construction actually provided, but this is a way of, perhaps, going after it
`in a different way. And the argument they've presented is that the
`availability of different Internet radio links to a user can select -- wait,
`pardon me.
`
`"The availability of different Internet radio links a user can select
`in Treyz does not comprise links or network locations to segments of the
`same available media at different output rates as required by the claims."
`That's their argument, and in the institution decisions, that's been rejected
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`already, it was rejected in the '407 as well. And because it comes back to
`what is the definition of an available media. Well, it can include, under
`the Board's construction adopted by the Federal Circuit, it may include
`multiple stations on a play list, and that a segment, then, is broad enough
`to include individual stations on a play list. So, essentially, their
`argument has been rejected by the court's claim construction already.
`
`The second argument here is that -- is a little bit difficult to
`understand, but the gist of it is that Netflix failed to offer a construction
`for the limitations that would encompass the scope Netflix seeks to
`define in the prior art. I think on the one hand Netflix has followed and
`adopted the Board's construction of what available media is in its
`directional and segment files are. So to the extent that -- and, you know,
`to the extent that we didn't offer any constructions in the original petition
`is because all other terms we offered, you know, BRI standard
`constructions for them.
`
`The Board rightly rejected this argument because its prior claim
`constructions from the '407 IPR already set forth a definition of an
`available media. And that's been now affirmed by the Federal Circuit.
`So as a matter of law, that's what that means. And that's why that second
`argument it fails.
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`The last point on this particular dispute is that we just have an
`un-rebutted expert testimony that these claims are disclosed in Treyz and
`Fuller. We've put up Dr. Mir. I don't believe there's another expert on
`the other side that's contradicted anything he said. Didn't depose Dr. Mir
`in this particular proceeding to even challenge any of his opinions, so
`these are now completely un-rebutted. The next dispute I'd like to turn to
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`is --
`JUDGE TURNER: Counsel, can I just ask a quick question?
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`MR. HOLMES: Yes. Yes.
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`JUDGE TURNER: And maybe this will obviously be probably
`
`opinion. Is there anything in patent owner's response any argument that
`was made that wasn't made in the preliminary response?
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`MR. HOLMES: No. They're identical.
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`JUDGE TURNER: Okay. Thank you.
`
`MR. HOLMES: And it's a -- Your Honor, if I may, it think it's a
`great point you raise that because it reminds of something, which is that I
`believe in the institution decision, the Board, in fact, invited patent owner
`to, you know, come forward with additional arguments for the record to
`the extent that they had any. And so that -- they were given that
`opportunity, and what they came back with was an identical brief.
`
`There may be some words here added that are different, but I think
`-- I went back and read them last night to verify that, I'm pretty sure, and
`perhaps my -- Counsel for patent owner will disagree at some respect. I
`believe if you look at the indices, and the table of contents, and the
`substantive arguments, they're identical.
`
`JUDGE TURNER: Thank you.
`
`MR. HOLMES: So moving on from Slide 19 I'd like to turn to
`Slide 21. So this is Claim Element 4.1, as it's referred to in the petition.
`And, again,
`this -- so this particular limitation relates to generating a list that includes
`an address for each of the plurality of independent segment files.
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`So, essentially, once the organization of the segment files occurs,
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`the method then asks is some point you can generate a list that has
`addresses to where you can then access them. And we pause that the
`Treyz is clearly discloses this as shown on Slide 21, where it discloses
`that there's Internet radio stations that also may be listed, it's a list, and
`that the -- and that there links for individual stations, and that the proper
`Internet address for the desired stations is also available to the user.
`
`So you've got the list and you've got the addresses. And we've
`already gone over the claim construction issues of the scope of an
`available media and segment file, so we don't need to rehearse that again.
`But I believe that Figures 9A and B also support that here on Slide 21.
`
`Now the argument -- this should just say patent owner argument, I
`didn't skip one there's just one, I think that two is just a clerical error.
`But in any event, the argument here is that Netflix failed to properly
`compare the claims to the prior art and instead relied on an overly broad
`meaning of the claims, and incorporation by reference for the list or
`message that contains an address where network locations for segments
`of an available media such as a song or video which is available at
`different output rates. And then it cites that the limitations are Claim 1,
`9, and 14 that it's referring to.
`
`Again, I think that the Board properly read the -- the petition found
`that, no, in fact, we provided multiple citations to Treyz, in addition to
`citing back to the '407 and '408 decisions where very similar limitations
`were at issue. And those citations that I just walked through at Treyz,
`clearly provide a list of links for Internet radio stations that are generated
`and sent to the user.
`
`And I think that -- referring back again now to '407 -- the '407 IPR
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`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`and the '408 IPR, that's relevant here because, again, one of the issues
`there was whether or not this exact reference discloses a list. And the
`Board found that it does, and that's been affirmed by the Federal Circuit.
`And so there's no reason to reach a different conclusion here. And, again,
`this is -- we've got un-rebutted expert testimony confirming the
`disclosures in Treyz about this particular limitation. Dr. Mir wasn't
`deposed here, none of his -- none of opinions about the disclosure here
`were even challenged.
`
`So, with that, I'd like to just move onto the final dispute --
`substantive dispute on the '802. And that's going to be Slide 53. So,
`again, this is a different ground that was challenged, a different piece of a
`different reference. It's this production guide that's been referred to in the
`briefing. And it's from Real Systems, which is a very -- which was, and
`still is, a predominate, you know, pioneer in the streaming industry.
`
`And there's no challenge that this is prior art, but there is -- pardon
`me, but there is -- there was a dispute over these two particular
`limitations where in the method step of Claim 1, which I'm using as an
`example, that there's a sending of the given segment which is the first
`segment that gets formatted with a specific rate, and then a sending of a
`different segment, and the different segment is basically defined in the
`claim as having a different rate.
`
`And we pause it here that the production guide clearly disclosed
`these limitations but when it teaches that the RealPlayer, which is the
`client software running on a desk top, requests and receives the streaming
`media clips -- now the clips, I didn't -- we don't have time to run through
`every single thing, but as disclosed in all of our -- all of the briefing in
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`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`the record, the clips are the independent segment files, that's how they're
`referred to in the production guide.
`
`And that there are two different types of segments compressed at
`different bandwidths, and that's disclosed on Slide 53 at the bottom when
`it says that you can create multiple versions of the clips for different
`bandwidths. The RealPlayer chooses which clip to receive based on its
`connection speed and the SMIL file's bandwidth parameters. So that's
`clearly disclosed by the production guide.
`
`And so if we move on to Slide 54. Well, what's the argument?
`Well, the argument that we've seen so far is that Netflix is ignoring
`portions of the production guide that show that the challenged claims are
`not found within the reference because the SMIL file only chooses an
`initial bit rate and does not allow switching -- this should say midstream,
`it's a typo, it should say midstream. And that's actually really critical,
`this concept of switching midstream, which is the -- fundamentally what
`their argument is about.
`
`And it's one that, as you can see, the Board has rejected in the
`institution decision by -- because switching midstream is not part of any
`claim limitation, switching midstream's not disclosed in the specification.
`It's essentially a limitation that we believe the patent owner's trying to
`read in for purposes of the District Court, and it's their infringement
`there, but it has no bearing on any of the claims here because it's actually
`not required. I mean, if we just go back to 1.7 and 1.8, there's no
`requirement of switching midstream. It just says, you send one and you
`send a different one.
`
`This also -- again, we've got un-rebutted expert testimony that
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`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`these claim limitations are clearly disclosed, and -- and, again, it's un-
`rebutted, and I don't need to -- I've said that now a lot of times, but I --
`and so, with that, I'm going to pass the mic to --
`
`JUDGE TORNQUIST: Before you do, let's just assume for a
`minute that midstream is required. Then I think your argument was,
`well, it still does allow switching --
`
`MR. HOLMES: Yes.
`
`JUDGE TORNQUIST: -- is that correct?
`
`MR. HOLMES: That's correct.
`
`JUDGE TORNQUIST: Would you just take me to the SMIL file
`disclosure and walk me through it, just very briefly?
`
`MR. HOLMES: Sure.
`
`JUDGE TORNQUIST: Where this would actually switch?
`
`MR. HOLMES: So I think we addressed this actually in the -- so
`on Pages 6 to -- essentially, 6 to 9, or 6 to 10 of the Petitioner's reply, the
`argument basically follows that, (a), there's no bit rate switching required,
`right, and we've -- I've gone through that, and I'm going to get to your
`point in a second, I think it's a good one.
`
`But I think that if you go to Page 7 and 8, we've clearly laid out
`where the SMIL file actually needs -- if it does require bit rates, which
`we don't think it does, but it clearly does because what the Board latched
`onto in its institution decision was a disclosure about what the server can
`do, and it was that the RealServer can't switch as its -- can't switch
`between the two.
`
`Now what you have, though, is actually the disclosures here cited
`at Page 26 of the production guide, and also 14, 18, and 50 where the
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`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`basic disclosure is that these SMIL files have listed addresses and they
`can be -- and those -- the addresses can be associated with different
`bandwidths, we've establish that, those are the clips, right? And the
`ability of the RealServer -- I'm sorry, the RealPlayer, which in on the
`client's side, has the ability and it's disclosed in here at Page 8 of the
`reply.
`
`The ability to actually make decisions about changing which types
`of bandwidth it wants, and I think that that's actually confirmed by the
`disclosure -- oh, so on Page 9 it also then -- which is citing to Pages 59 to
`60, 107 to 108, and also Page 60, in particular, which I think is important
`because there's a switch statement that you can actually include into --
`
`JUDGE TORNQUIST: So let's go to the switch.
`
`MR. HOLMES: Okay.
`
`JUDGE TORNQUIST: Because I read the switch, it looks for a
`system bit rate attribute depending on -- there's 75,000, 47,000, or
`20,000. Is that the modem rate of the user or is that somehow the
`bandwidth fluctuations of the user?
`
`MR. HOLMES: I'm sorry, can you direct -- which page are you
`looking at?
`
`JUDGE TORNQUIST: I'm looking at 60 of production guide.
`You cited 59, 60, it kind of spans the page.
`
`MR. HOLMES: Right. Right.
`
`JUDGE TORNQUIST: And this is the switch command, I believe,
`that was cited. I just want to make sure that I understand it, of what
`you're saying this actually would do.
`
`MR. HOLMES: Yes. Okay. So, yeah. So what the switch --
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`Case IPR 2016-01701 (Patent 9,094,802 B2)
`Case IPR 2017-00122 (Patent 9,444,868 B2)
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`what you can do with the switch is you -- basically, if you lose two of
`them you can essentially then thereby switch between segments as, you
`know, as you're streaming. I mean, that's what the disclosures as far as
`we've read it and as far as what Dr. Mir said. So it certainly enables the
`ability to switch.
`
`So, for example, if the connection speed changes while the first
`segment is running, the second switch -- that second switch segment will
`detect that and then switch to a segment that's more appropriate for the
`new bandwidth, essentially.
`
`JUDGE TORNQUIST: So are you saying that -- if you look at the
`switch,
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