Case 1:15-cv-00849-RP Document 64 Filed 10/07/16 Page 1 of 29
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`United States District Court
`Western District of Texas
`Austin Division
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`Case No. 1:15-cv-00849-RP
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`Jury Trial Demanded
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`Affinity Labs of Texas, LLC,
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` Plaintiff,
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` v.
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`Netflix, Inc.
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`
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` Defendant.
`
`Declaration of Professor Kevin C. Almeroth in Support of Affinity Labs of Texas, LLC’s
`Opening Claim Construction Brief
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`Table of Contents
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`I. Basis of Opinions Formed ...................................................................................................... 4
`II. Claim Construction Standards ................................................................................................ 5
`III.
`Invalidity Based Upon Indefiniteness .................................................................................. 8
`IV. General Background of the Technology and Invention of the Patents-in-Suit .................... 9
`A.
`U.S. Patent Nos. 9,094,802 and 9,444,868....................................................................... 9
`B.
`Person of Ordinary Skill in the Art .................................................................................. 9
`C.
`General Background One of Ordinary Skill in the Art Would Appreciate .................... 11
`V. Opinions Regarding Claim Construction .............................................................................. 14
`A.
`Terms for Which both Parties Have Offered Constructions .......................................... 15
`1.
`“to facilitate outputting of the [given|different] segment at a [given|different] rate”
`(Claim 1, ’802 Patent) &“to be delivered from the media delivery resource at a
`[given|different] rate” (Claim 9, ’802 Patent) ....................................................................... 15
`2.
`“a media playlist for the available media” (Claim 14, ’802 Patent) / “playlist” (Claim
`1, ’868 Patent) ....................................................................................................................... 18
`B.
`Terms that Netflix Alleges to be Indefinite .................................................................... 20
`1.
`One of skill in the art would understand the phrase “[a/the] plurality of independent
`segment files” (Claims 1 and 3, ’802 Patent) (Claims 1 and 7, ’868 Patent) ....................... 20
`2.
`One of skill in the art would understand the phrase “in a manner that facilitates
`continuous outputting of the available media by the requesting device” (Claim 14, ’802
`Patent) / “continuously output the video” (Claim 18, ’802 Patent) ...................................... 21
`3.
`One of ordinary skill in the art would understand the phrase “at or near” (Claim 3,
`’802 Patent) ........................................................................................................................... 22
`4.
`One of ordinary skill in the art would understand the phrase “a delivery resource
`configured to respond to a plurality of file requests by transmitting information to the
`requesting device in a manner that facilitates continuous outputting of the available media
`by the requesting device” (Claim 14, ’802 Patent) ............................................................... 24
`5.
`One of ordinary skill in the art would understand the phrase “a collection of
`instructions operable to” (Claims 9 and 18, ’802 Patent) (Claim 1, ’868 Patent) ................ 25
`6.
`One of ordinary skill in the art would understand the phrase “engine that divides the
`available media into the plurality of independent segment files and encodes the plurality of
`independent segment files into an appropriate format to facilitate a delivery” (Claim 8, ’868
`Patent) ................................................................................................................................... 26
`7.
`One of ordinary skill in the art would understand the phrase “communication engine .
`. . that is configured to facilitate a receipt of requests and a communication of information”
`(Claim 11, ’868 Patent) ......................................................................................................... 28
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`I, Kevin C. Almeroth, submit this Declaration pursuant to 28 U.S.C. § 1746 and declare as
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`follows:
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`1.
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`I have prepared this Declaration as an independent consultant at the request of
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`Plaintiff Affinity Labs of Texas, LLC (“Plaintiff” or “Affinity Labs”). I am over 18 years of
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`age and I would be competent to testify as to the matters set forth herein if I am called upon to
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`do so.
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`2. My name is Kevin C. Almeroth, Professor in the Department of Computer Science
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`at the University of California, Santa Barbara. I also hold faculty appointments and am a
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`founding member of the Computer Engineering (CE) Program, Media Arts and Technology
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`(MAT) Program, and the Technology Management Program (TMP). I have been a faculty
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`member at UCSB since July 1997.
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`3.
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`I hold three degrees from the Georgia Institute of Technology: (1) a Bachelor of
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`Science degree in Information and Computer Science earned in June 1992; (2) a Master of
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`Science degree in Computer Science (with specialization in Networking and Systems) earned
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`in June 1994; and (3) a Doctor of Philosophy (Ph.D.) degree in Computer Science (Dissertation
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`Title: Networking and System Support for the Efficient, Scalable Delivery of Services in
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`Interactive Multimedia System, minor in Telecommunications Public Policy) earned in June
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`1997.
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`4. My involvement in the research community extends to leadership positions for
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`several academic journals and conferences. I am the co-chair of the Steering Committee for the
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`ACM Network and System Support for Digital Audio and Video (NOSSDAV) workshop and
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`on the Steering Committees for the International Conference on Network Protocols (ICNP),
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`ACM Sigcomm Workshop on Challenged Networks (CHANTS), and IEEE Global Internet
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`(GI) Symposium. I have served or am serving on the Editorial Boards of IEEE/ACM
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`Transactions on Networking, IEEE Transactions on Mobile Computing, IEEE Network, ACM
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`Computers in Entertainment, AACE Journal of Interactive Learning Research (JILR), and
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`ACM Computer Communications Review. I have co-chaired a number of conferences and
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`workshops including the IEEE International Conference on Network Protocols (ICNP), IEEE
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`Conference on Sensor, Mesh and Ad Hoc Communications and Networks (SECON),
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`International Conference on Communication Systems and Networks (COMSNETS), IFIP/IEEE
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`International Conference on Management of Multimedia Networks and Services (MMNS), the
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`International Workshop On Wireless Network Measurement (WiNMee), ACM Sigcomm
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`Workshop on Challenged Networks (CHANTS), the Network Group Communication (NGC)
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`workshop, and the Global Internet Symposium; and I have served on the program committees
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`for numerous conferences.
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`5.
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`I am an author or co-author of nearly 200 technical papers, published software
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`systems, IETF Internet Drafts, and IETF Request for Comments (RFCs).
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`I.
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`Basis of Opinions Formed
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`6.
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`In this section, I describe my understanding of certain legal standards. Based on my
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`professional experience, I am familiar with the patent system and the process of applying for
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`and obtaining patents. I have been informed of these legal standards by Affinity’s attorneys. I
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`am not an attorney, and I am relying only on instructions from Affinity’s attorneys for these
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`legal standards.
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`7.
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`I understand that, under 35 U.S.C. § 282, a patent is presumed valid. While I
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`understand that this presumption is rebuttable, I understand that Netflix bears the burden of
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`proving invalidity by clear and convincing evidence.
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`8.
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`I have been instructed by counsel on the law regarding claim construction and
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`patent claims, and understand that a patent may include two types of claims, independent
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`claims and dependent claims. An independent claim stands alone and includes only the
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`limitations it recites. A dependent claim can depend from an independent claim or another
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`dependent claim. I understand that a dependent claim includes all the limitations that it recites
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`in addition to all of the limitations recited in the claim from which it depends.
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`II. Claim Construction Standards
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`9.
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`I have been instructed by counsel that claim construction is a matter of law for the
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`arbiter of law to decide. Claim terms should be given their ordinary and customary meaning
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`within the context of the patent in which the terms are used, i.e., the meaning that the term
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`would have to a person of ordinary skill in the art in question at the time of the invention in
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`light of what the patent teaches.
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`10.
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`I understand that, to determine how a person of ordinary skill would understand a
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`claim term, one should look to those sources available that show what a person of skill in the
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`art would have understood that disputed claim language to mean. Such sources include the
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`words of the claims themselves, the remainder of the patent’s specification, the prosecution
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`history of the patent (all considered “intrinsic” evidence), and “extrinsic” evidence concerning
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`relevant scientific principles, the meaning of technical terms, and the state of the art.
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`11.
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`I understand that, in construing a claim term, one looks primarily to the intrinsic
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`patent evidence, including the words of the claims themselves, the remainder of the patent
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`specification, and the prosecution history. I understand that extrinsic evidence, which is
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`evidence external to the patent and the prosecution history, may also be useful in interpreting
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`patent claims when the intrinsic evidence itself is insufficient.
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`12.
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`I understand that words or terms should be given their ordinary and accepted
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`meaning unless it appears that the inventors were using them to mean something else. In
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`making this determination, however, of paramount importance are the claims, the patent
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`specification, and the prosecution history. Additionally, the specification and prosecution
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`history must be consulted to confirm whether the patentee has acted as its own lexicographer
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`(i.e., provided its own special meaning to any disputed terms), or intentionally disclaimed,
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`disavowed, or surrendered any claim scope.
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`13. The claims of a patent define the scope of the rights conferred by the patent. The
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`claims particularly point out and distinctly claim the subject matter which the patentee regards
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`as his/her invention. Because the patentee is required to define precisely what he/she claims his
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`invention(s) is (are), construction of claims in a manner different from the plain import of the
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`terms used consistent with the specification is improper. Accordingly, a claim construction
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`analysis must begin and remain centered on the claim language itself.
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`14. The claims of a patent define the purported invention. The purpose of claim
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`construction is to understand how one skilled in the art would have understood the claim terms
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`at the time of the purported invention.
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`15.
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`I understand that a person of ordinary skill in the art is deemed to read a claim term
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`not only in the context of the particular claim in which the disputed term appears, but in the
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`context of the entire patent, including the specification. For this reason, the words of the claim
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`must be interpreted in view of the entire specification. The specification is the primary basis
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`for construing the claims and provides a safeguard such that correct constructions closely align
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`with the specification. Ultimately, the interpretation to be given a term can only be determined
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`and confirmed with a full understanding of what the inventors actually invented and intended
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`to envelop with the claim as set forth in the patent itself.
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`16.
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`I understand that claim terms must be construed in a manner consistent with the
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`context of the intrinsic record. In addition to consulting the specification, one should also
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`consider the patent’s prosecution history, if available. The prosecution file history provides
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`evidence of how both the Patent Office and the inventors understood the terms of the patent,
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`particularly in light of what was known in the prior art. Further, where the specification
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`describes a claim term broadly, arguments and amendments made during prosecution may
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`require a more narrow interpretation.
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`17.
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`I understand that while intrinsic evidence is of primary importance, extrinsic
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`evidence, e.g., all evidence external to the patent and prosecution history, including expert and
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`inventor testimony, dictionaries, and learned treatises, can also be considered. For example,
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`technical dictionaries may help one better understand the underlying technology and the way in
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`which one of skill in the art might use the claim terms. Extrinsic evidence should not be
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`considered, however, divorced from the context of the intrinsic evidence. Evidence beyond the
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`patent specification, prosecution history, and other claims in the patent should not be relied
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`upon unless the claim language is ambiguous in light of these intrinsic sources. Furthermore,
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`while extrinsic evidence can shed useful light on the relevant art, it is less significant than the
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`intrinsic record in determining the legally operative meaning of claim language.
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`18.
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`I understand that there are special rules of construction for claim elements recited
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`in means-plus-function format. These elements are limited to means that perform the identical
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`function as recited in the element. Moreover, means-plus-function elements are limited to the
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`necessary structures disclosed in the specification, and any equivalents, that correspond to the
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`recited function. I further understand from counsel that the corresponding structure in the
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`specification is “corresponding structure” only if the specification clearly links or associates
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`that structure to the claimed function.
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`19.
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`I understand that whether a term is written in means-plus-function format is a
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`question of law and that a patent applicant may choose to state what function an element of the
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`invention performs rather than adding to the claim words describing how it accomplishes that
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`function. Thus, I understand that not all functional claim language is subject to the special rules
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`of construction for means-plus-function claims.
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`20.
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`I understand that a claim element that omits the words “means for” is
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`presumptively not governed by the special rules of construction for means-plus-function
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`claims. I understand that this presumption is rebuttable, but the party challenging the
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`presumption must overcome it by a preponderance of evidence.
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`III. Invalidity Based Upon Indefiniteness
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`21.
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`I understand that a patent specification must conclude with one or more claims
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`particularly pointing out and distinctly claiming the subject matter that the applicant regards as
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`his invention. Claims are indefinite if they do not reasonably apprise those skilled in the
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`relevant art of the applicant’s intended scope of the invention when read in light of the
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`specification.
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`22.
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`I understand a claim is indefinite if it contains words or phrases whose meanings
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`are unclear when read in light of the specification, and fails to inform, with reasonable
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`certainty, those skilled in the art about the scope of the invention.
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`23.
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`I understand that indefiniteness must be proven by clear and convincing evidence
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`and have written this Declaration with this understanding.
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`IV. General Background of the Technology and Invention of the Patents-in-Suit
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`A. U.S. Patent Nos. 9,094,802 and 9,444,868
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`24. U.S. Patent No. 9,094,802 (“the ’802 patent”) is entitled “System and Method to
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`Communicate Targeted Information.” It claims priority to patent application No. 09/537,812
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`(“the ’812 application), which was filed on March 28, 2000. The priority date of the ’802
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`patent is, therefore, March 28, 2000.
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`25. U.S. Patent No. 9,444,868 (“the ’868 patent”) is entitled “System to Communicate
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`Media.” It claims priority to the ’812 application. The priority date of the ’868 patent is,
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`therefore, March 28, 2000.
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`26. The ’812 application and ’802 and ’868 patents tackled problems in the art related
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`to accessing, managing, and delivering digital audio and video content. As a result, the
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`inventors designed a digital media ecosystem that is now widely used today.
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`27. The inventions claimed in the ’812 application and ’802 and ’868 patents include
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`key features of streaming technology that is now known generally as Hypertext Transfer
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`Protocol adaptive bitrate (HTTP ABR) streaming. For example, the ability for a client device
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`to dynamically select segments of video best suited for a client device’s circumstances, based
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`upon a playlist sent by a server, are just some of these key features.
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`B. Person of Ordinary Skill in the Art
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`28.
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`I understand claim construction is determined through the lens of a person of
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`ordinary skill in the art at the time of the invention’s filing (“one of ordinary skill”). I
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`understand that factors such as: 1) the education level of those working in the field, including
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`the inventor, 2) the sophistication of the technology, 3) the types of problems encountered in
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`the art, 4) the prior art solutions to those problems, and 5) the speed at which innovations are
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`made may help establish the level of one of ordinary skill.
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`29. Both the ’802 and ’868 patents claim priority to a set of earlier continuation patent
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`filings, the earliest being March 28, 2000. The claims of the ’802 and ’868 patents are fully
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`supported by this March 28, 2000 date. As such, it is my understanding that the hypothetical
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`person of ordinary skill in the art should be defined at the time of March 28, 2000.
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`30.
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`I understand the Eastern District of Texas previously found the following
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`description of such ordinary skill for a related patent to the ’802 and ’868 patents:
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`a person of ordinary skill in the art is an individual with the equivalent of a four-
`year degree from an accredited institution (usually denoted in this country as a
`B.S. or Bachelor’s degree)
`in Electrical Engineering (EE), Mechanical
`Engineering (ME), or Computer Science (CS, with at least two semesters of
`coursework in EE and/or ME), together with at least two years of experience
`working with, developing, or designing electronic devices with user interfaces.
`Advanced education in EE, ME, or CS might substitute for some of the
`experience, while extensive experience in working with, developing, or designing
`electronic devices with user interfaces might substitute for some of the
`educational requirements.
`
`Affinity Labs of Tex., LLC v. Samsung Elecs. Co., No. 1-12-CV-557, 2014 U.S. Dist. LEXIS
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`184075, at *9-10 (E.D. Tex. June 3, 2014).
`
`31.
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`It is my opinion that the hypothetical person of ordinary skill, as defined by the
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`Court, is appropriate, with the exception of the minor modifications noted in italics below:
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`a person of ordinary skill in the art is an individual with the equivalent of a four-
`year degree from an accredited institution (usually denoted in this country as a
`B.S. or Bachelor’s degree)
`in Electrical Engineering (EE), Mechanical
`Engineering (ME), or Computer Science (CS, with at least two semesters of
`coursework in EE and/or ME), together with at least two years of experience
`working with, developing, or designing streaming media systems and devices.
`Advanced education in EE, ME, or CS might substitute for some of the
`experience, while extensive experience in working with, developing, or designing
`streaming media systems and devices might substitute for some of the educational
`requirements.
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`I have adopted and applied the above definition of a person of ordinary skill in the art for the
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`purposes of this Declaration.
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`C. General Background One of Ordinary Skill in the Art Would Appreciate
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`32. After reviewing the two parties claim construction proposals and the issues those
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`raise, I think it important to introduce a few concepts one of ordinary skill in the art would
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`have understood and appreciated at the time of the filing of these inventions. First, one of
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`ordinary skill in the art would understand that in the field of streaming media at the time of the
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`invention, there were generally two functionally different media rates that could be associated
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`with a particular piece of streaming media content: 1) a transmission rate; or 2) an output rate.
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`33. An output rate is a rate at which the content item is formatted to be output by a
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`playback device and is determined at the time the content item is formatted. For example, when
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`formatting a content item with a particular compression algorithm, certain parameters will be
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`set prior to formatting. Exemplary formatting parameters include: the dimensions of pixels in
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`the output frames (e.g., 1280 p x 720 p); the number of frames per second (e.g., 30 fps); and
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`the target output rate in bits per second of the video (e.g., 5 Mbps) (which is an average); and
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`the maximum bits per second allowable in the video output (e.g., 6 Mbps) (since the target bits
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`per second is an average over the video, the maximum is the maximum instantaneous bits per
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`second). Once the content item is formatted and a particular output rate set, the content item
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`can be transmitted.
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`34. The transmission rate does not have to be tied to the output rate decided at the time
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`of formatting. For example, if a transmission rate of 10 Mbps was available to a sending device
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`such as a server, a content item formatted with a target output rate of 5 Mbps could be
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`transmitted at the same rate as a content item formatted at 2 Mbps as long as the receiving
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`device included adequately sized buffers. The sending device has control over the transmission
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`rate1, but the receiving device must playback each respective content item at the rate at which
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`the content item was formatted (i.e., the receiving device must playback the 5 Mbps content
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`item at 5 Mbps and the 2 Mbps content item at 2 Mbps even though both content items may
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`have been transmitted at 10 Mbps). Alternatively, if a transmission rate of 10 Mbps was
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`available to a sending device such as a server, the server could decide to transmit the content
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`item formatted with a target output rate of 5 Mbps at 5 Mbps and transmit the content item
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`formatted at 2 Mbps at 2 Mbps. In order for smooth playback at the receiving device, the server
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`must transmit the content item at a rate equal to or higher than its formatted rate or pre-fetch
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`enough content so that even at the slower delivery rate, there is still a sufficient amount of
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`buffered data to maintain continuous playout for the duration of the content. For example, the
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`server generally would not transmit the 5 Mbps content item at a rate of 2 Mbps—unless it
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`expected the receiver to wait a sufficiently long time such that enough content had been stored
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`to prevent interruptions in playback.)
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`35. The second concept one of ordinary skill in the art would have appreciated is that
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`the output rate is determined at the time of formatting and that the output rate is a target,
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`average output rate at a playback device. The reason that it is an average is due to the nature of
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`compressing data, such as video. The instantaneous output rate will vary depending on what is
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`visually being presented in the video at a particular moment in time and its similarity to
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`previous frames. For this reason, those skilled in the art discuss output rates in terms of an
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`overall average as opposed to the instantaneous output rate.
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`1 In some systems, the receiver may influence the transmission rate if there are application layer
`protocol mechanisms that allow it to request the transmitter to slow or stop. Other factors like the
`TCP receive window and Internet congestion may also ultimately affect how quickly data can be
`transmitted.
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`36. The reason the instantaneous output rate varies is due to the inherent nature of
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`video and the manner in which a video file is compressed—or reduced in size. Video is a series
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`of still images (called frames) that are displayed at a (typically) rate of 30 frames per second.
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`The process of displaying a series of 30 frames per second conveys motion.
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`37.
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`If all frames in a video are stored without compression the file size is very large.
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`For example, for one minute of video with a frame size of 1920p x 1080p displayed at 30
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`frames/second, the raw RGB 3x16 bitrate is approximately 3 Gbps. An MPEG 2 compressed
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`version of the same one-minute video would be no more than 6 Mbps. MPEG compression is a
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`popular method of video compression and was well established by 2000.2 When using the
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`MPEG compression technique not every frame of video is treated equally. There are three
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`types of frames in the MPEG compression technique3:
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`•
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`I-frames are intra coded frames that can be reconstructed without any reference to
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`other frames;
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`• P-frames are forward predicted frames that are predicted from the last I-frame or P-
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`frame; and
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`• B-frames are both forward predicted and backward predicted from the last/next I-
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`frame or P-frame, that is, there are two other frames necessary to reconstruct B-
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`frames.
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`38. The amount of data required to encode each type of frame varies when using
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`compression techniques like MPEG. Since the I-frames can be reconstructed without any
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`2 The MPEG 2 standard was established in 1994. (See
`http://www.siggraph.org/education/materials/HyperGraph/video/mpeg/mpegfaq/mpeg2_press_re
`lease.html.) By 2000, MPEG 2 was a widely adopted audio and video compression technique,
`including being the specified compression method for DVD and HDTV. (See
`http://www.erg.abdn.ac.uk/future-net/digital-video/mpeg2.html.)
`3 See Le Gall, Didler; Communications of the ACM, April 1991, Vol. 34, No. 4 at 47-58.
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`reference to other frames, the I-frame requires more data (more bits) than the P-frames or B-
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`frames.
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`39. For example, if a video scene running for 30 seconds long includes grassland with
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`a single deer strolling through it, a single I-frame begins the scene. As the deer strolls through
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`the grass, the background of the scene does not change. The motion of the deer moving
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`forward can be predicted from the neighboring frames and the progression of the deer through
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`the scene can be presented in a series of P and B frames. Now, contrast that scene to a 30
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`second scene of high action, with a car being chased through a chaotic city street. In such a
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`scene there is a high degree of motion, with the backdrop of the scene (buildings, other cars,
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`moving pedestrians) changing rapidly. Such a 30 second scene could not be rendered with a
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`single I-frame like the scene with the deer, but would require numerous I-frames. Thus, the
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`serene scene of a deer strolling through grassland would require less data in 30 seconds than
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`the car chase scene.
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`40.
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`In an entire piece of content, there will be scenes that require more I-frames and
`
`therefore more data per second (such as a car chase scene) and scenes that are less dynamic and
`
`therefore require less data per second. When encoding an entire video content item, the
`
`compression algorithm sets an average goal such that the average amount of data that is output
`
`over time is met. However, at any given instant or over a small interval of time, the actual bits
`
`per second of the content item that is output may vary.
`
`V. Opinions Regarding Claim Construction
`
`41.
`
`In this section, I describe my opinions regarding the claim terms and proposed
`
`claim constructions of the parties in this case.
`
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`

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`Case 1:15-cv-00849-RP Document 64 Filed 10/07/16 Page 15 of 29
`
`A. Terms for Which both Parties Have Offered Constructions
`
`1.
`
`“to facilitate outputting of the [given|different] segment at a
`[given|different] rate” (Claim 1, ’802 Patent) &“to be delivered from the
`media delivery resource at a [given|different] rate” (Claim 9, ’802 Patent)
`
`Claim Term
`“to facilitate outputting of the
`[given|different] segment at a
`[given|different] rate” (Claim
`1)
`“to be delivered from the
`media delivery resource at a
`[given|different] rate” (Claim
`9)
`
`Affinity Labs’ Proposal Netflix’s Proposal
`No construction
`“to facilitate transmitting from a
`necessary.
`server at a [given|different]
`communications rate”
`
`No construction
`necessary.
`
`“transmitted from a media delivery
`resource at a [first|different]
`communications rate”
`
`42. The chart above summarizes my understanding of the parties’ claim construction
`
`positions for the following particular phrases in the ’802 patent: “to facilitate outputting of the
`
`[given/different] segment at a [given/different] rate” (Claim 1); and “to be delivered from the
`
`media delivery resource at a [given/different] rate” (Claim 9).
`
`43. One of ordinary skill would understand that Claims 1 and 9 of the ’802 patent are
`
`both methods for organizing and formatting media in such a manner that the media will be
`
`provided to a device where it will be output, or consumed by a particular device, at a particular
`
`rate. The methods are set out in language that is plain and ordinary, which requires no special
`
`rewriting exercise for one of skill in the art to understand.
`
`44. Claims 1 and 9 are set out below, with the contested terms italicized.
`
`Claim 1: A method to deliver media, comprising:
`organizing an available media into a plurality of independent segment files to
`facilitate delivery;
`formatting a given segment to facilitate an outputting of the given segment at a
`given rate;
`formatting a different segment to facilitate an outputting of the different segment
`at a different rate, wherein the different rate is slower than the given rate;
`generating a list that includes an address for each of the plurality of independent
`segment files;
`
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`Case 1:15-cv-00849-RP Document 64 Filed 10/07/16 Page 16 of 29
`
`receiving an HTTP communication that indicates a desire to access the available
`media;
`sending the list in response to receiving the HTTP communication;
`sending the given segment; and
`sending the different segment.
`
`Claim 9: A streaming method comprising:
`receiving an HTTP communication at a media delivery resource that comprises a
`request for a listing of network locations for segments of available media,
`further wherein the request is from a device having a buffer, a non-volatile
`memory, and a collection of instructions stored in the non-volatile memory
`that are operable: (1) to request a media segment with a formatting that
`allows the media segment to be delivered from the media delivery resource at
`a given rate, (2) to consider an amount of information stored in the buffer,
`and (3) to request a different segment with a different formatting that allows
`the different segment to be delivered from the media delivery resource at a
`different rate, wherein the at least two rates are rates at which a streaming
`me