IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`U.S. Patent No.:
`Inventor(s):
`Issue Date:
`Appl. No.:
`Filing Date:
`Title:
`Attorney Docket
`No.:
`
`
`
`9,444,868
`Russell W. White, Kevin R. Imes
`September 13, 2016
`14/747,002
`June 23, 2015
`System to communicate media
`
`2016-NETFLIX-00003
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`DECLARATION OF NADER MIR, PH.D. IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 9,444,868
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`U.S. Patent No.:
`Inventor(s):
`Issue Date:
`Appl. No.:
`Filing Date:
`Title:
`Attorney Docket
`No.:
`
`
`
`9,444,868
`Russell W. White, Kevin R. Imes
`September 13, 2016
`14/747,002
`June 23, 2015
`System to communicate media
`
`2016-NETFLIX-00003
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`DECLARATION OF NADER MIR, PH.D. IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 9,444,868
`
`
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`I.
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`INTRODUCTION
`1. My name is Nader Mir. I have been asked to provide opinions regarding
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`certain issues involved in an Inter Partes Review (“IPR”) for U.S. Patent
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`9,444,868 (“’868 patent”) based on my direct experience in the field at the time of
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`the above mentioned patent’s earliest claimed priority date and my expertise in the
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`field overall.
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`2.
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`I understand that the parties involved in this IPR proceeding are the
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`Petitioner, Netflix, Inc. (“Netflix” or “Petitioner”), and the patent owner, Affinity
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`Labs of Texas, LLC (“Affinity”).
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`3.
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`For my efforts in connection with the preparation of this declaration, I
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`have been compensated at my standard hourly rate for this type of consulting
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`activity. However, my compensation is not dependent on the outcome of this
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`proceeding. I am not an employee, consultant, or contractor of either party.
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`4. My compensation is not contingent on reaching any particular findings or
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`conclusions, or on any outcome in the case. The opinions contained in this
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`declaration are mine and are based upon my knowledge, experience and study of
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`the materials discussed below.
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`II. QUALIFICATIONS AND PROFESSIONAL EXPERIENCE
`5. My qualifications are set forth in my curriculum vitae (“CV”) (Ex. 1020).
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`I provide a brief summary below.
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`6. My professional career has spanned more than 30 years. As set forth in
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`my CV, during these years I have gained extensive experience in design, analysis,
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`testing, teaching, research, and performance evaluation in the general fields of
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`telecommunications, wireless networks computer networks, TCP/IP,
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`communications systems, multimedia including voice and video communication
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`and networks.
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`7.
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`I am currently a professor in the Department of Electrical Engineering at
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`San Jose State University in California and teach courses on telecommunications,
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`wireless networks computer networks, TCP/IP, VoIP and Multimedia Networks.” I
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`was previously the Associate Chairman of the Electrical Engineering Department
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`at San Jose State University. I am also the Director of a number of graduate
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`programs that San Jose State University offers to several high-tech companies, in
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`northern California.
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`8.
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`I was awarded a Ph.D. degree in Electrical Engineering, with a focus on
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`computer networking and communication systems and protocols, from Washington
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`University in St. Louis in 1995. I received a Master’s of Science (M.Sc.) degree in
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`Electrical Engineering from Washington University in St. Louis in 1990 and my
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`Bachelors of Science (B.Sc.) degree (with honors) in Electrical Engineering from
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`Polytechnic University in 1985.
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`9.
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`For more than 30 years, I have studied, designed, and worked in the
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`general fields of telecommunications, computer networks and communications
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`systems. Based on my extensive research, engineering, and teaching experience in
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`such fields, I have been recognized as a specialist in the areas of computer and
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`communication networks; networking devices; protocols including (but not limited
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`to) packet switched networks, integrated voice, video, data networks, computer
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`networking, TCP/IP, network server operations, voice over IP (VoIP), content
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`delivery networking (CDN), media streaming including adaptive bitrate streaming
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`(ABS), databases in networks, client/server, public-switched telephone networks
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`(PSTN) and SS7 protocols, telecommunication systems including PSTN and SS7
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`protocols, wireless networks, networking devices such as switches and routers,
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`network security, and network virtualization, among others.
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`10. Prior to my current position, I was an assistant professor at the University
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`of Kentucky in Lexington. From 1994 to 1996, I was a research scientist at the
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`Advanced Telecommunications Institute, Stevens Institute of Technology, New
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`Jersey, working on the design of advanced communication systems and high-speed
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`computer networks.
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`11. From 1990 to 1994, I worked at the Computer and Communications
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`Research Center at Washington University in St. Louis as a research assistant on
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`the design and analysis of high-speed switching systems and controllers for
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`computer networks.
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`12. From 1985 to 1988, I worked with Telecommunication Research &
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`Development Center (TRDC), Surrey, as a telecommunications system research &
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`development engineer, participating in the design of a high-speed digital telephone
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`Private Branch Exchange (PBX).
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`13.
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`I am the named inventor on U.S. patent No. 7,012,895 B1, a switching
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`system for use in high-speed computer networks.
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`14.
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`I hold several technical editorial positions for various journals, including
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`IEEE Communication Magazine. As a Technical Editor of IEEE Communication
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`Magazine, I am responsible for accepting or rejecting scientific articles submitted
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`to the journal in the areas of computer networking and communication systems. I
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`am a senior member of the IEEE and have served as a member of the technical
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`program committees and the steering committees for a number of major IEEE
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`communications and networking conferences.
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`15.
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`I have authored a major textbook, titled Computer & Communication
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`Networks, by Pearson Prentice-Hall publisher which is now a standard textbook
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`adopted world-wide for undergraduate and graduate courses in numerous
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`universities and colleges. The first edition of the book was published in 20061 and
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`the second edition was published in 20152 containing 874 pages covering a broad
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`range of fundamental and advanced topics in telecommunication networks,
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`computer networks on all layers of TCP/IP protocol stack, communication
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`systems, wireless networks and network security. I have published more than 100
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`refereed technical journal articles and conference papers, all in the field of
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`communication systems and computer networking. The full list of my publications
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`can be found in my CV. See Ex. 1020.
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`16.
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`I have received a number of prestigious university, national, and
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`international awards. In particular, I have received a number of research grants
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`from private, state, and governmental funding agencies for conducting research in
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`the fields of computers and communication networks. I am also the recipient of
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`several university teaching recognition awards from San Jose State University;
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`several research excellence awards; and the school’s published book award for the
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`year.
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`1 Nader Mir, Computer and Communication Networks (Prentice-Hall, 1st ed.
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`2006).
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`2 Nader Mir, Computer and Communication Networks (Prentice-Hall, 2nd ed.
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`2015).
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`17.
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`I have been invited to give a number of talks at both national and
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`international conferences. My speeches at conferences have focused on a variety
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`of topics in computer networking including topics on TCP/IP, networked servers,
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`multimedia networks including media streaming including adaptive bitrate
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`streaming, switching systems, and networking user interfaces, packet telephony
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`and VoIP (including SIP and IMS), TCP/IP internet, and design of networking
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`equipment, modems, switches and routers. I am the recipient of a number of
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`Outstanding Presentation awards from leading international conferences.
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`18.
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`I make this declaration based on personal knowledge, and I am
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`competent to testify about the matters set forth herein.
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`19. Based on my experience (as described above and in my attached CV), I
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`consider myself to be qualified to provide opinions from the perspective of a
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`person of ordinary skill in the art (“POSITA”), as defined below, and as an expert
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`in the field.
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`III. THE BASIS OF MY OPINION
`A. Relevant Legal Standards
`20.
`I am not a lawyer and I have no legal training. I have been informed by
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`Netflix’s litigation counsel about certain legal principles and standards, which I
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`have assumed and applied for purposes of this declaration. Some of these, which
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`form the legal framework for the opinions I am providing, are summarized below.
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`21. For purposes of this declaration, I have assumed that the priority date of
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`the claims of the ’868 patent is March 28, 2000.
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`22. My understanding is that a primary step in determining validity of patent
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`claims is to properly construe the claims to determine claim scope and meaning.
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`23.
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`In an IPR proceeding, I understand that claims are to be given their
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`broadest reasonable construction (“BRC”) in light of the patent’s specification
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`(also referred to as “broadest reasonable interpretation” or “BRI”). In other forums,
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`such as in federal courts, different standards of proof and claim interpretation
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`control, which are not applied by the PTO for IPR.
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`24.
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`I understand that a patent claim is invalid as anticipated if each and every
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`limitation of the claim is disclosed in a single prior art reference as arranged in the
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`claim. I am informed that this requirement comes from 35 U.S.C. § 102. I
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`understand that each element of a patent claim may be disclosed by a prior art
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`reference either expressly or inherently.
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`25. Further, my understanding is that even an “express” disclosure does not
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`necessarily need to use the same words as the claim. An element of a patent claim
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`is inherent in a prior art reference if the element must necessarily be present, and
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`its presence would be recognized by a person of ordinary skill in the art. However,
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`I understand that inherency cannot be established by mere probabilities or
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`possibilities.
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`26.
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`I understand that a patent claim is invalid as obvious if the differences
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`between the patented subject matter and the prior art are such that the subject
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`matter as a whole would have been obvious at the time the invention was made to a
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`person of ordinary skill in the art. I am informed that this standard is set forth in
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`35 U.S.C. § 103.
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`27.
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`I have assumed that when considering the issues of obviousness, I am to
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`do the following: (i) determine the scope and content of the prior art; (ii) ascertain
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`the differences between the prior art and the claims at issue; (iii) resolve the level
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`of ordinary skill in the pertinent art; and (iv) consider objective evidence of non-
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`obviousness (so-called “secondary considerations”). I appreciate that secondary
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`considerations must be assessed as part of the overall obviousness analysis, and
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`should not be considered merely to decide whether they alter any initial
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`obviousness conclusions that could be drawn based on the prior art. I am not
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`aware of any secondary considerations that would suggest the ’868 patent’s claims
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`are non-obvious.
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`28. Put another way, my understanding is that not all innovations are
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`patentable. Even if a claimed product or method is not disclosed in its entirety in a
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`single prior art reference, the patent claim is invalid if the invention would have
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`been obvious to a person of ordinary skill in the art at the time of the invention.
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`29.
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`In determining whether the subject matter as a whole would have been
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`obvious at the time that the invention was made to a person having ordinary skill in
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`the art, I have been informed of several principles regarding the combination of
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`elements of the prior art. First, a combination of familiar elements according to
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`known methods is likely to be obvious when it yields predictable results. Second,
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`if a person of ordinary skill in the art can implement a “predictable variation” in a
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`prior art device, and would see the benefit from doing so, such a variation would
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`be obvious. In particular, when there is pressure to solve a problem and there are a
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`finite number of identifiable, predictable solutions, it would be reasonable for a
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`person of ordinary skill to pursue those options that fall within his or her technical
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`grasp. If such a process leads to the claimed invention, then the latter is not an
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`innovation, but more the result of ordinary skill and common sense.
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`30.
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`I understand that the “teaching, suggestion, or motivation” test is a useful
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`guide in establishing a rationale for combining elements of the prior art. This test
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`poses the question as to whether there is an explicit teaching, suggestion, or
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`motivation in the prior art to combine prior art elements in a way that realizes the
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`claimed invention. Though useful to the obviousness inquiry, I understand that
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`this test should not be treated as a rigid rule. It is not necessary to seek out precise
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`teachings; it is permissible to consider the inferences and creative steps that a
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`person of ordinary skill in the art would employ. I understand other rationales that
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`may support a conclusion of obviousness include:
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` combining prior art elements according to known methods to yield
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`predictable results;
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` simple substitution of one known element for another to obtain
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`predictable results;
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` use of known technique to improve similar devices (methods, or
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`products) in the same way;
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` applying a known technique to a known device (method, or product)
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`ready for improvement to yield predictable results;
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` “obvious to try” – choosing from a finite number of identified,
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`predictable solutions, with a reasonable expectation of success; and
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` known work in one field of endeavor may prompt variations of it for
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`use in either the same field or a different one based on design
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`incentives or other market forces if the variations are predictable to
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`one of ordinary skill in the art.
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`31.
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`I understand that a patent claim is invalid if it is anticipated or rendered
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`obvious by prior art.
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`B. Materials Considered
`32.
`In forming the opinions expressed, I have considered my expertise in the
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`field and the materials cited in the petition.
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`IV. THE CHALLENGED PATENT, THE RELEVANT FIELD, AND THE
`LEVEL OF ORDINARY SKILL IN THE ART
`33.
`I have been asked to develop and offer opinions related to how a person
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`of ordinary skill in the art would have understood the ’868 patent.
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`34.
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`I have reviewed the ’868 patent. I have also reviewed the prior art and
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`other documents and materials cited herein. My opinions are also based in part
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`upon my education, training, research, knowledge, and experience.
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`A. The ’868 Patent
`35. As characterized by its new abstract (relative to earlier patents to which it
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`claims priority), the’868 patent generally relates to a system for communicating
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`A system for communicating media is disclosed. Such a system may
`include, for example, a media broken into a plurality of
`independent segment files that may represent sequential portions of
`the media. One of the segment files can be encoded to have a
`format that is different than the encoded format of another one of
`the segment files. The formats may be chosen to allow outputting of
`information in the segments at different rates. A list may include
`network addresses for the segment files, and a content delivery
`system may be deployed to distribute media content to remotely
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`media:
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`located requesting devices by sending the segment files in response
`to requests for the segment files.
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`Ex. 1001 at Abstract.
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`36. Aside from the claims and abstract, the description uses the term
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`“independent” and “segment” only one time each (id. at 9:67, 3:29) and not in the
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`same context. Similarly, the description makes no use of the terms “sequential,”
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`“encode,” “output,” or “rate.” as the new Abstract indicates, all the claims in the
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`’868 patent recite in some form the notion that “formats may be chosen to allow
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`outputting of information in the segments at different rates” (e.g., in claim 1: “the
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`given format facilitates an outputting of information in the given segment file at a
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`given rate that is different than a rate associated with the different format”; in
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`claim 7: “the given compression format facilitates an outputting of information in
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`the given segment file at a first rate that is different than a second rate associated
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`with the different compression format”; and in claim 14: “to output information in
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`the given one of the plurality of media segment files at a given rate and to output
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`information in the another one of the plurality of media segment files at a rate that
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`is different than the given rate”). As the Board in IPR2014-00407 (“’407 IPR”)
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`noted, the specification in the ’812 application describes that “different portions of
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`the selected content are delivered at different communication rates.” Final
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`Written Decision (“FWD”) at p. 4. However, the original specification makes no
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`mention of output rates in the electronic device or formatting to facilitate
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`outputting information in different files at different rates.
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`37. The ’868 patent has three independent claims, each directed to a “media
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`system.” Id. at 18:56, 19:48, 20:49. Examples of media include conventional
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`audio (e.g., Internet radio, music, or voice mails), video, and text. See id. at 3:18-
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`23, 6:1-2, 8:12-14, 9:9:53-56.
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`B.
`The Relevant Field
`38. Based on my review of this material, I believe that the relevant field for
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`the purposes of the ’868 patent is the design and implementation of packetized
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`telecommunication networks for media delivery. I have been informed that the
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`relevant timeframe is on or before the earliest claimed priority date of the ’868
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`patent, namely, March 28, 2000.
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`39. As described in Section I above and as shown in my CV, I have extensive
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`experience in the field of electrical engineering, computer networks,
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`telecommunications, and communication systems. Based on my experience, I have
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`a good understanding of the relevant fields in the relevant timeframe.
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`40.
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`I will sometimes refer to the state of the art as “prior to 2000,” “by
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`2000,” or “before the ’868 patent.” Accordingly, when I speak about the state of
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`the art “before the ’868 patent,” I mean before the claimed priority date of the ’868
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`patent.
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`C. The Level of Ordinary Skill in the Art
`41.
`In my opinion, a person of ordinary skill in the art for purposes of the
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`’868 patent is an individual having a Bachelor’s Degree in Electrical Engineering,
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`Computer Science or Computer Engineering, or equivalent experience, and one to
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`two years of experience in the field of computer networking and/or multimedia
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`networks, particularly as those systems relate to media streaming technology.
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`42. For the purpose of this analysis, I have not been asked to opine on the
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`proper priority date, but I understand from the face of the ’868 patent that the
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`earliest application that the ’868 patent could claim priority to was filed on March
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`28, 2000. When I refer to the views of a person of ordinary skill in the art this
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`declaration, unless stated otherwise, I am referring to the views of a person of
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`ordinary skill in the art based on that date.
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`V. TECHNICAL BACKGROUND
`A. Communication Networks
`43. Communication networks in 2000 consisted of two types of networks
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`having different operational infrastructures: (i) public-switched telephone networks
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`(“PSTN”), and (ii) packet-switched networks (“PSN”). Each network was further
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`classified by its medium type into either wireless or wireline systems. PSTN was
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`designed primarily for telephone services, and packet-switched networks was
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`deployed later than PSTN’s deployment for data transmission services.
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`44.
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`In a PSN, each data message is fragmented into smaller units of data.
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`Each unit of data, called payload, is encapsulated by a header to specify control
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`information, such as the source and the destination addresses of the payload. The
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`resulting combination of the header and payload is called a packet.
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`Communications over PSNs dates back more than four decades to the original
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`ARPANET project. One of the earliest and most influential ARPA references in
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`computer networking is the development of methods and protocols that appeared
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`as part of the ARPANET project, published by Vinton Cerf and Robert Kahn of
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`ARPA. See Ex. 1022.
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`45. A packet is forwarded to a data network to be delivered to the destination
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`defined in the header. Before the purported ’868 patent, various network protocols
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`were well-established and supported the functions necessary to deliver data packets
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`from a source (e.g., a server) to a destination (e.g., a client computer) over a
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`network. A basic structure of modern packet-switched networks is found in the 5-
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`layer Transmission Control Protocol/Internet Protocol (TCP/IP) model – a model
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`that dates back to at least 1981. A POSITA would know that different
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`communication technologies have different data rates and different formats. See
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`Ex. 1014 at 13 (comparing various data rates).
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`1.
`Frame Formats of Different Connection Types
`46. Before the ’868 patent, a POSITA would know that what is generally
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`referred to as layer 2 or the link layer of the network protocol stack specifies how
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`packets access links and are attached to an additional header to form “frames.”
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`The additional header provides information such as routing, error detection and
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`flow control.
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`47. Frames for various networking technologies had different formats. For
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`example, IEEE 802.3 frames were used in local-area networks. IEEE 802.3 frames
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`had many distinct features, including the start of frame feature, the capability of
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`controlling media access by using the CSMA/CD protocol, and a back-off scheme
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`known as binary exponential backoff that used random backoff delays to minimize
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`subsequent frame collisions. See generally Mir, Computer and Communications
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`Networks, 2nd edition, Chapter 4.
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`48. As another example, the IEEE 802.11 frames were used in the wireless
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`local-area networks. When compared to the IEEE 802.3 frame, the IEEE 802.11
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`frame does not use the CSMA/CD protocol due to the “near/far” problem: a nearby
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`radio signal is significantly stronger than a signal from farther away. Thus, a
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`source in an IEEE 802.11 environment must then be able to transmit and listen on
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`the same medium at the same time which the “near/far” problem makes it
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`impossible. Other unique aspects of IEEE 802.11 frames include the use of
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`request-to-send/clear-to-send (RTS/CTS) scheme to further enhance reliability.
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`See generally Mir, Computer and Communications Networks, 2nd edition, Chapter
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`4.
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`49. Besides local area networks, many other communications technologies
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`were available to the consumer by 2000. These include a digital subscriber line
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`(DSL) modem connection (generally offered by a telephone company) and a cable
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`modem connection (generally offered by a cable TV company). Such technologies
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`served to bridge the “last-mile” from the company’s network into the consumer’s
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`home and provided higher speed access than a traditional dial-up modem. DSL
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`Internet companies used the existing twisted-pair copper lines of the telephone
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`network to provide Internet access. Cable Internet companies used optical fibers
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`and coaxial cables to provide that access. One early DSL standard was ITU-T
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`Recommendation G.991.1. That DSL standard included many particulars related
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`to the frame formatting of the data sent over the line. See generally Ex. 1018 at pp.
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`21-38 (Sections 5.3, titled “Transmission Method,” and 5.4, titled “Frame
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`Structure”). In comparison, Cable Internet companies use Data Over Cable
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`Service Interface Specification (DOCSIS), which is an international
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`telecommunications standard specifying cable data network architecture and its
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`technology. DOCSIS allows the addition of high-speed Internet access to an
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`existing cable TV system. DOCSIS supported a wide variety of link layer
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`technologies (and their corresponding formats), including IEEE 802.3, FDDI
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`(Fiber Distributed Data Interface), and Ethernet. See generally Ex. 1019 at pp. 10-
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`15.
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`B. Hypertext Transfer Protocol (HTTP)
`50. Before the ’868 patent, the communication in the Web context was
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`carried out through the Hypertext Transfer Protocol (“HTTP”). This technique has
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`been the same up until now. One of ordinary skill in the art would know
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`“Hypertext” is a type of text with references or links to other more detailed text or
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`additional descriptions that a reader can immediately access by using an available
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`“link.” In the context of HTTP, a link is called hyperlink. HTTP is the main Web
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`protocol designed to operate at the application layer of the TCP/IP model. See,
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`e.g., Ex. 1025. HTTP can be viewed as a distributed and collaborative protocol to
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`exchange or transfer objects and hypertext using hyperlinks.
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`51. HTTP is based on the client/server model, and is designed for
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`communication between a client program and a server program by exchanging
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`HTTP messages. The protocol has a footprint in both client programs and server
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`programs. For example, HTTP defines how a pair of client/server hosts should
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`exchange messages. HTTP uses TCP, since reliability of delivery is important for
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`Web pages with text and thus requires a handshake of the engaging client/server
`
`devices before the establishment of a connection between the pair devices. Once a
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`
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`Netflix 1007 - Page 19
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`
`
`connection between the two sides of a client/server is established, a transmission of
`
`data from one side requires an acknowledgment from the other side.
`
`C. Media Streaming Overview
`52.
`In a packet-switched network, streaming media is the act of transmitting
`
`packets from a source (e.g., a server) to a destination (e.g., a client) through the
`
`network. When the content of a media object such as a video clip is to be streamed
`
`from a server to a client, the content is encapsulated into payloads of packets, and
`
`the packets are serially transmitted over the link that is attached to the server using
`
`the available link speed. Note that the media type impacts the amount of
`
`bandwidth required for streaming. For example, video generally requires a higher
`
`bitrate than audio. See Ex. 1036 at p. 4 (Table 1).
`
`53. From the standpoint of a client, an alternative to receiving media through
`
`streaming is receiving the prerecorded media through “downloading.” When the
`
`content of media is streamed, the client that plays the received content of media
`
`can begin to play the content file before the entire file has been received. In
`
`contrast, in a file download case, the client first downloads the entire content of the
`
`prerecorded media and then begins to play it. Streaming a content can also be
`
`deployed in one of the following two forms: prerecorded media streaming and live
`
`media streaming.
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`
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`Netflix 1007 - Page 20
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`54.
`
`In prerecorded media streaming, such as the media found on YouTube,
`
`the media contents are stored on servers. One can think in terms of streaming a
`
`stored music concert or a movie to be watched online. A user can search for a
`
`content file, such as a video file, by sending a request to the servers to view the
`
`contents. The server begins transmission of the video file, and the user begins the
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`content file playback shortly after receiving some, but not all, of the media file
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`content from the server. While the content plays out at the user side, the user
`
`receives the later parts of the content from the server. This way, the user does not
`
`need to wait until the entire file is downloaded before beginning viewing.
`
`55. Live media streaming allows a user to receive a live audio/video or data
`
`program streamed from one location to other location(s) such as when television
`
`programs are broadcast over the Internet. Because live media streaming is by
`
`nature a live event transmission, delay is the main factor that degrades the quality
`
`of broadcasting. Before the ’868 patent, depending whether the streaming is
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`prerecorded or live, media streaming is delivered to the appropriate application on
`
`the client using one of several existing protocols such as Real-time Transport
`
`Protocol (“RTP”) (See Ex. 1027), Real Time Streaming Protocol (“RTSP”) (Ex.
`
`1024), and HTTP-Based Streaming (See Ex. 1021).
`
`56. RTP is an example of streaming protocol that existed before the ’868
`
`patent. RTP was published in RFC 1889 in January 1996. See Ex. 1027. This
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`
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`Netflix 1007 - Page 21
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`
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`RFC presents “end-to-end network transport functions suitable for applications
`
`transmitting real-time data, such as audio, video or simulation data.” Id. at 1. RTP
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`applications included “multi-participant multimedia conferences.” Id. at 3. In
`
`addition to live media streaming, RTP could be used for prerecorded media
`
`streaming. For example, RFC 2032 describes how to “to packetize an H.261 video
`
`stream for transport using” RTP. See Ex. 1023 at 1.
`
`57. RTSP is another example of streaming protocol before the ’868 patent.
`
`RTSP was published in RFC 2326 in April 1998. See Ex. 1024. “The Real Time
`
`Streaming Protocol, or RTSP, is an application-level protocol for control over the
`
`delivery of data with real-time properties. RTSP provides an extensible framework
`
`to enable controlled, on-demand delivery of real-time data, such as audio and
`
`video. Sources of data can include both live data feeds and stored clips.” Id. at
`
`Abst.
`
`58. HTTP-based streaming is yet another example of streaming protocol that
`
`existed before the ’868 patent. One example of an HTTP-based streaming
`
`technique is presented in U.S. Patent No. 6,389,473 to Carmel et al., filed on
`
`March 24, 1999, (“Carmel”) (Ex. 1021). As I will describe below with respect to
`
`Carmel, the concept of streaming, including via HTTP, was known in the art prior
`
`to ’868 patent. As described in Carmel:
`
`
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`Netflix 1007 - Page 22
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`
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`In preferred embodiments of the present invention, a transmitting
`computer generates a data stream and broadcasts the data stream
`via a network server to a plurality of clients. The data stream is
`divided into a sequence of segments or slices of the data, preferably
`time slices, wherein the data are preferably compressed. Each slice
`is preferably assigned a respective slice index. The transmitting
`computer uploads the sequence of slices to the server substantially
`in real time, preferably using an Internet protocol, most preferably
`the File Transfer Protocol (FTP), as is known in the art. The clients
`download the data stream from the server, preferably using an
`Internet protocol, as well, most preferably the Hypertext Transfer
`Protocol (HTTP), or alternatively, using other protocols, such as
`UDP or RTP, which are similarly known in the art. The clients use
`the slice indices of the frames to maintain proper synchronization
`of the playback. The division of the data stream into slices and the
`inclusion of the slice indices in the data stream to be used by the
`clients in maintaining synchronization allows the broadcast to go
`on substantially in real time without the use of special-purpose
`hardware.
`
`Ex. 1021 at 2:1-21.
`
`59. Changing link conditions may impact the amount of time it takes for the
`
`server to upload (or client to download) the data stream. Techniques to adapt the
`
`stream to such conditions were also known before the ’868 patent. For example,
`
`Carmel discloses that “[t]he clients download the data stream from the server,
`
`preferably using an Internet protocol, as well, most preferably the Hypertext
`
`
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`Netflix 1007 - Page 23
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`
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`Transfer Protocol (HTTP), or alternatively, using other protocols, such as … RTP,”
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`(id. at 2:11-15) and periodically “make[] an assessment of the rate of data transfer
`
`
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