UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC, MICROSOFT CORPORATION,
`and MICROSOFT MOBILE INC.,
`Petitioners,
`
`v.
`
`KONINKLIJKE PHILIPS N.V.,
`Patent Owner.
`____________
`
`Case IPR2017-00447
`Patent 7,529,806 B1
`___________
`
`Record of Oral Hearing
`Held: February 13, 2018
`____________
`
`
`
`
`Before KEVIN F. TURNER, ROBERT J. WEINSCHENK, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GOOGLE LLC, MICROSOFT CORPORATION,
`and MICROSOFT MOBILE INC.,
`Petitioners,
`
`v.
`
`KONINKLIJKE PHILIPS N.V.,
`Patent Owner.
`____________
`
`Case IPR2017-00447
`Patent 7,529,806 B1
`___________
`
`Record of Oral Hearing
`Held: February 13, 2018
`____________
`
`
`
`
`Before KEVIN F. TURNER, ROBERT J. WEINSCHENK, and
`KAMRAN JIVANI, Administrative Patent Judges.
`
`
`
`
`Case IPR2017 00447
`Patent 7,529,806 B1
`
`
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DAVID M. KRINSKY, ESQUIRE
`CHRISTOPHER SUAREZ, ESQUIRE
`Williams & Connolly, LLP
`725 Twelfth Street Northwest
`Washington, D.C. 20005
`(202) 434-5338
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`JUSTIN OLIVER, ESQUIRE
`SEAN WALSH, ESQUIRE
`Fitzpatrick, Cella, Harper & Scinto
`975 F Street Northwest
`Washington, D.C. 20004
`(202) 530-1010
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, February
`
`13, 2018, commencing at 2:30 p.m., at the U.S. Patent and Trademark
`Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017 00447
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`P R O C E E D I N G S
`- - - - -
`JUDGE WEINSCHENK: Welcome back, everyone. This is our
`second hearing for today in IPR 2017-00447, Google, LLC, Microsoft
`Corporation, and Microsoft Mobile, Inc. versus Philips N.V. Let's start with
`appearances, who do we have for Petitioner?
`MR. KRINSKY: Good afternoon again, Your Honor. For Petitioner
`David Krinsky from Williams and Connolly, LLP for Petitioner Google,
`LLC. With me at counsel table is Christopher Geyer, and I'd also like to
`recognize Kevin Hardy, Christopher Suarez, both of Williams and Connolly,
`and John Colgan of Google sitting in the back row. The one addition since
`this morning's proceedings we also have counsel from Microsoft here
`Christy McCullough is in the back row as well.
`JUDGE WEINSCHENK: Great, thank you. And who do we have for
`Patent Owner?
`MR. OLIVER: Good afternoon, Your Honor.
`Justin Oliver on behalf of the Patent Owner as well as Sean Walsh also of
`Fitzpatrick, Cella on behalf of Patent Owner.
`JUDGE WEINSCHENK: Thank you. So, just to reiterate from the
`prior hearing as you can see
`Judge Turner and Judge Jivani are appearing remotely so please step up to
`the podium when you speak and please refer to slide numbers in your
`demonstratives so they can follow along. Each side has 30 minutes for their
`presentation, we'll start with Petitioner. Please let us know if you'd like to
`reserve any time for rebuttal.
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`MR. KRINSKY: Thank you, Your Honor. And I would, again, like
`to reserve 10 minutes for rebuttal, please, if I may.
`JUDGE WEINSCHENK: Sure.
`MR. KRINSKY: May it please the Board. If we could go straight to
`slide 3, the '806 patent is directed to a method of forming a media
`presentation. From an text-based preferably an XML file, XML being a
`limitation of some of the dependent claims like the one depicted in figure 2.
`I brought up figure 2 of the patent here because I think it's helpful to
`illustrate it. The method in question is one in which a control information
`file, an XML file such as this one, is downloaded to the client device, parsed
`on the client device, and then once the client device has done that parsing it
`identifies which of various alternate files to play as part of the presentation
`and then does so.
`That's what's reflected in Claim 1, those are the limitations. I have it
`on slide 4 for the Board's convenience but I don't know that we need to
`belabor it. Jumping to slide 5, the SMIL specification teaches exactly the
`same thing. SMIL is an XML-based markup language that allows
`integrating a set of independent multimedia objects into a synchronized
`multimedia presentation. That's reading directly from Exhibit 1002,
`paragraph 63, that's Dr. Bulterman's declaration, but he's quoting there in the
`abstract of the SMIL specification on page 2 of Exhibit 1003.
`And if you look at a SMIL file, as SMILs control information files are
`called side-by-side with one from the '806 patent, you'll see they're really the
`same thing. If we could turn to slide 7 I brought up a comparison of figure 2
`of the '806 patent to one example SMIL file from the SMIL specification,
`page 4. You know, they're almost exactly the same format and they
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`certainly convey the same information. They're for the same purpose which
`is to provide which alternate files to play, which files to make a presentation
`out of to form a media presentation.
`And in deposition, as we explained limitation by limitation in our
`reply brief, Philip's expert, Dr. Porter in this one, opined and agreed that
`virtually each one of these, that not every one of these is met. Certainly
`we've established that each one of these limitations is met but the central
`issue that Philips tees up in response is the question of whether SMIL is
`really one teaching. And I think their criticism of SMIL is that in their view
`it's a collection of examples.
`If we could turn to slide 8, you see why that is wrong. The SMIL
`specification is one single specification. It describes the features of a SMIL
`player and that player has, in Dr. Porter's own words, is something that
`would implement the language features that are depicted by each of the
`specifications various examples. Dr. Bulterman, our expert, of course,
`agrees. And this is one embodiment, the notion that each of these examples
`ought to be read in isolation is simply wrong.
`These are not different embodiments that the person of ordinary skill
`needs to combine somehow. These are not multiple separate disclosures in
`one reference that are not present as reading in the claim. These are
`describing what a SMIL player does and I think perhaps the best example of
`this comes from Exhibit 1003, that's the SMIL's specification on page 22. I
`don't have it as a call-out here in the slide deck, but there is an example
`given of two alternate audio files that are played based on alternate bit rates
`and I think there's a criticism in the briefing of this example that, well, it's
`disconnected from the other disclosures to which we point.
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`But the two alternate examples of audio files in example 2 on page 22,
`are given as an example of elements within a switch statement. That
`example refers back to the prior example. The prior example, example 1,
`discusses a media player that evaluates each of the choices for that switch
`one at a time looking for an acceptable bit rate given the known
`characteristics of the link between the media player and the media server.
`This disclosure, among others, just crystalizes how these examples work
`together. They mutually reinforce and each one of them describes a
`particular aspect of a SMIL player but read together they do exactly the
`same thing and embody Claim 1.
`JUDGE WEINSCHENK: Mr. Krinsky, do we need to rely on
`multiple examples or does this example on
`page 22, that you're referring to of the different bit rates, does that teach all
`the limitations that are in dispute for Claim 1?
`MR. KRINSKY: I mean I think that example gets you there when
`you look back, follow the reference in the example itself, the immediately
`prior example. I mean there's two consecutive examples, one and two, and
`example one makes explicit that there's a link between the media player and
`the media server, and that the SMIL player looks for an acceptable bit rate
`given the known characteristics of that link. I was just reading from
`example one, that is the required constraint on a system imposed by
`resources that is used as the basis for selecting the alternative file.
`I think the alternative files themselves are called out in example two.
`So, but I do think that examples one and two are properly written together
`and example two expressly referred back to -- sort of a continuation of the
`same text. So, I guess, it depends in part on how one counts an individual
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`example. But I do think that anticipates Claim 1 presuming, of course, the
`Board maintains its opinion from the institution decision which, of course,
`we agree with. That the final two limitations of Claim 1, in the sort of
`wherein if clause, are not required to be met.
`Those, we submit are obvious but they're not expressly taught in that
`example. So, I won't -- rather than use my limited time to walk through each
`and every one of the particular limitations because we get there I thought I
`would proceed directly to that if question. Unless the Board has other
`questions on this example, the multiple examples point.
`JUDGE WEINSCHENK: No, that's fine.
`MR. KRINSKY: If we could jump ahead to
`slide 19. I put up Claim 1 and highlighted here in yellow the wherein if
`clause, and I've highlighted in orange the two limitations at the end of the
`claim. And we would submit that under the broadest reasonable
`interpretation of this claim, as the Board correctly recognized in its
`institution decision, the method has been practiced and therefore there is an
`anticipation if there's a teaching of identifying one of multiple alternative
`files without regard to whether each of those alternative files itself has
`multiple segments or other -- without regard to whether there are
`consecutive segments to be played out.
`The example, the Joe Audio Better Quality versus Joe Audio example
`I gave from SMIL, page 22, is one example of two alternate files. I don't
`think that example by itself shows you, concurrent with the media
`presentation, retrieving a next file or using the content of a next file to
`continue a media presentation, there's simply alternatives. But I would
`submit that, in that instance, the wherein if clause isn't met. Wherein if the
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`determined file is one of a plurality of files required for the media
`presentation the method further comprises these acts.
`Well, in that instance the determined file is not one of the plurality of
`files required for the media presentation claim. Either one of those audio
`files alone gets you the whole presentation, and in consequence there's no
`need to show these final two claims, claim limitations.
`JUDGE WEINSCHENK: Mr. Krinsky, how do you respond to Patent
`Owner's argument that, for example, the claim recites a given segment of the
`media presentation and if you look throughout the specification segment is
`used pretty consistently to refer to just a portion of the media presentation
`which would then suggest this claim is directed to a media presentation with
`multiple segments?
`MR. KRINSKY: I think I'd respond to that in three ways. The first
`way is to say that there's really no textual requirement that a segment be one
`of multiple segments. You can have a file that is a signal segment --
`presentation that is a single segment. In fact, I think that's the natural use of
`the term. Segment is not here a --
`JUDGE WEINSCHENK: Is there any evidence in the record that you
`can cite us to that would support construing a given segment to include a
`single segment?
`MR. KRINSKY: Well, I think you've gone to the next point which is
`that the specification itself calls out the possibility that the player may not
`support multiple segments. I mean the segment, if we go to slide 24, there's
`a discussion on whether the client is capable of processing split data and
`proceeds with the traditional approach, i.e. downloads the whole file and
`then plays it out. The invention here, what this is saying, is that the
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`invention is not limited to a case where the presentation is segmented into
`multiple pieces but you have a single segment.
`You also have -- I think the third point I wanted to bring to the Board,
`bring the Board's attention to, is the language of the claims themselves. Not
`so much on a segment but on the same overall point of whether the
`presentation must be multiple files sequentially. If we could go to slide 23.
`Slide 23, calls out Claims 12 and 15, and 12 of course the Board didn't
`institute on. It includes some bus function limitations that the Board
`concluded in institution decision we have in turn met.
`But in relevant part it's the same as Claim 1. It has the same basic
`structures. Claim 1, in particular, that is exactly the same claim language
`wherein if the determined file is one of a plurality of files required for the
`media presentation. Claim 15 is a dependent claim from Claim 12 that says
`the device interprets the control information to retrieve multiple files from
`the computer network for sequential play-out. That is a strong suggestion of
`the principle of claim differentiation, that Claim 15 has to be narrower than
`Claim 12, and it wouldn't if a segment -- if Claim 12 and Claim 1 only read
`on multiple segment presentations sequentially.
`But either way I think the question is not is Claim 1 invalid based on
`this issue. It's is this an anticipation case or an obviousness case. We have
`shown and we've described it in some detail in the petition why those final
`two limitations wouldn't of been obvious to the person of ordinary skill in
`the art. So, even if those limitations are construed to be required the claim is
`simply obvious rather than anticipative.
`JUDGE WEINSCHENK: I understand your argument on this to be
`that Hua teaches a pipelining technique that would meet these limitations
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`and that it would be obvious to implement that pipelining with the SMIL
`specification either based on common knowledge or based on a combination
`with Hua, however you want to put it. Let's assume I agree with you that
`someone would be motivated to use pipelining because it reduces wait time
`or something like that, where's the evidence that you could implement
`pipelining with something that uses a SMIL -- a program written in SMIL?
`MR. KRINSKY: So, I think the answer is all you really need from
`Hua or Hui, I have no idea how it's pronounced honestly, is this concept of
`pipelining. And as the disclosure of the '806 patent says expressly the
`networking functionality for this kind of thing is typically provided by the
`alternating system of the claim, that's column 3, it's in a passage that's lines
`14 to 21, I don't know the exact line number of that.
`Likewise, as the specification also says, working in the thread, which
`would be the other thing you would need in order to do this kind of parallel
`operation, is a skill common for software engineers. So, I think it's a very
`basic simple set of implementation techniques that, in Dr. Bulterman's
`opinion, not only would be the natural way to implement a SMIL player but
`was in fact however when implementing SMIL players in accordance with
`the specification as to the priority date.
`JUDGE WEINSCHENK: So, you agree with Patent Owner that you
`can’t actually implement pipelining using a SMIL command or syntax for
`SMIL, right, you would need something else?
`MR. KRINSKY: I think the pipelining is how the SMIL player would
`implement two successive segments that are denominated by S-E-Q, seq
`commands in a SMIL file. The SMIL file, of course, doesn't have the player
`in it's set of directions to the player of what to play, and what the player
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`plays is the first one and then the other. The obvious thing to do when
`you're playing the first one thing and then the other is to make sure that
`there's no gap between what's a normal gap between them. Beginning with
`make sure that you're downloading the next segment while the first segment
`is playing to effectuate that. So, I do think that it is an aspect of
`implementation of a SMIL player but it's an aspect that would be obvious.
`JUDGE WEINSCHENK: I guess the problem I'm having, what I'm
`trying to get here is is the idea of implementing pipelining with a SMIL
`player within the skill of a person of ordinary skill in the art and if it is how
`do we know that?
`MR. KRINSKY: I think it is because of the disclosures that I
`previously articulated and --
`JUDGE WEINSCHENK: Let's put aside what's in the challenged
`patent because I have a little bit of difficulty relying on what's in the
`challenged patent as giving us the basis for modifying the prior art, that's a
`little problematic for me. I understand you can rely on it but let's put aside
`the specification of the challenged patent and tell me what evidence in the
`record indicates that it would be within the skill of the art to implement
`pipelining for a SMIL player.
`MR. KRINSKY: Well, I think perhaps the best evidence of that is the
`testimony of Philips own expert. Dr. Porter opined that based solely on
`very, very limited teachings of the '806 patent it would be possible to
`implement the '806 patent. There's nothing in the specification of the '806
`patent that tells you the details of how to implement pipelining. The
`necessary consequence of that opinion is that the person of ordinary skill in
`the art would of been able to do this.
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`It's sort of, according to him, other than in the particular context where
`he's looking at the SMIL's specification and trying to opine that it's not
`obvious, it's just sort of basic computer science and Dr. Bulterman agreed
`with that. I mean Dr. Bulterman's testimony that we pointed to in our reply
`brief, he opined that with tread is a skill common for software engineers,
`showing it would of composed a skill to implement a simultaneous
`download and playback application, that's Exhibit 1003 at paragraph 2006.
`So, it's expert testimony but that's a routine way of looking to how it is
`that one would reasonably expect to be able to combine the references. I
`submit that the focus on the articulated skilled of the person of ordinary skill
`in the art is a little bit of a side show here. This is just sort of the basic
`software that software engineers including a POSITA would be able to do.
`JUDGE TURNER: Just to follow up on that, counselor. What about
`the reasonable expectation of success? I mean I can strap a jet pack to my
`back and presumably make it all the way to Alexandria but I don't know that
`my, you know, the reasonable expectation of success would be high. So,
`yes, you have this sort of general concept and you're saying you could do it
`but do you have any reasonable expectation that says, any evidence that we
`can sort of pen ourselves to and say, oh, you could do it but here's why it
`would work?
`MR. KRINSKY: I mean I think it's the same evidence that I just
`pointed to, the expert testimony of Dr. Bulterman, and frankly Dr. Porter,
`that this is just how one goes about implementing SMIL players. And let me
`-- if I can beg Your Honors indulgence for a moment I think I'll find the
`exact citation for you. Better yet I can find it during my rebuttal time, but
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`Dr. Bulterman expressed the opinion that this is how SMIL players were, in
`fact, being implemented by ordinarily skilled artisans in the field.
`This is not like a jet pack, this is not a case where this is pushing the
`envelope of what people might think would be possible. This is just a
`routine way of how you do downloading of two sequential things, which is
`why we -- in the initial petition we didn't even believe it was necessary to
`expressly combine SMIL. We think this is a natural way just to implement
`the SMIL player and the Board instituted on obviousness (inaudible) we
`would suggest for that reason. So, I think based on the lights I may be in my
`rebuttal time. I'm sorry, Judge Turner --
`JUDGE TURNER: Thank you.
`JUDGE WEINSCHENK: You are into your rebuttal time but as with
`our previous hearing if you need additional time on rebuttal we'll allow that.
`MR. KRINSKY: Thank you very much, Your Honor.
`JUDGE WEINSCHENK: I do have one more question on this before
`we move along. For your evidence that someone of skill in the art would
`know about pipelining you rely I think exclusively on this Hua reference,
`and Patent Owner points out in their response that it may be unclear whether
`Hua was even really something that was accessible to a person of skill in the
`art before the priority date of the challenged patent. Can you address that,
`because I'm not sure you addressed it in your reply at all?
`MR. KRINSKY: Sure. Let me address that in two ways one
`substantially and one procedurally.
`JUDGE WEINSCHENK: Sure.
`MR. KRINSKY: Substantially, this is the September issue of a
`bimonthly magazine and based on the date on the face of the reference it is
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`plainly before the priority date. So, I don't think there's really any serious
`doubt about its accessibility. It's a journal it's not some obscure publication
`that we need to go into great detail about how it was disseminated. There's
`nothing other than a sort of an attorney argument that, gosh, we haven't
`crossed the Ts and dotted the Is because the copy that we submitted happens
`to have been cataloged by the University of Wisconsin after the priority date.
`I submit that date stamp isn't what we're relying on, it doesn't matter.
`The procedural point is that there was absolutely no objection of this
`evidence at all. One would of expected if this were a real issue that there
`would of been some objection to the evidence and then we could of served
`supplemental evidence before the Patent Owner's response went it, just at the
`time of institution, to be able to provide a different date-stamped copy or the
`like. Instead, Philips waited until the reply to sort of throw this out there and
`given the absence of --
`JUDGE WEINSCHENK: Well, you could of submitted evidence
`with your reply, right, but you didn't?
`MR. KRINSKY: Well, I mean there are Board cases and holding that
`this is something where reply evidence on that is too late. I don't think we
`needed to because, as I said, the face of the reference makes it clear that it's
`from before the priority date. But even if the Board were to conclude that
`Hua isn't prior art we think the balance of the testimony is, and the balance
`of the evidence is sufficient to find obviousness here. Hua is an example of
`a very expressed disclosure of pipelining, but it's really a very simple
`concept that we're pulling from Hua which is --
`JUDGE WEINSCHENK: Do you have other evidence of pipelining
`other than Hua?
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`MR. KRINSKY: Well, the testimony of
`Dr. Bulterman.
`JUDGE WEINSCHENK: Because I think the Federal Circuit has told
`us that if we're going to rely on sort of the knowledge of a person of ordinary
`skill in the art to fill in the claim limitation we can't just sort of use common
`sense without any sort of basis and evidence or documents to do that.
`MR. KRINSKY: Well, Dr. Bulterman's testimony is evidence, is my
`response to that. I mean you can't just necessarily fill in without any
`testimonial evidence but that's not the situation here. There's unrebutted
`expert testimony that this is, in fact, how one would implement the SMIL
`player and Dr. Porter doesn't disagree with that. He agreed in his deposition
`that the natural way to avoid gaps was to have this kind of pipelining. He
`just sort of said, well, gosh, the person of ordinary skill, as defined here by
`Dr. Bulterman, is a user of SMIL rather than a player, but that's not quite
`right or else there's no (inaudible) in the '806 patent either.
`JUDGE WEINSCHENK: Thank you.
`MR. KRINSKY: Thank you, Your Honor.
`MR. OLIVER: Good afternoon, and may it please the Board. I'd like
`to, rather then going over a summary of the case, I'd like to sort of just dive
`into where the conversation left off because I think that would probably be
`most helpful to address the Board's questions. First and foremost on this
`issue of the 103 argument and the use of either common knowledge for Hua
`or Huo. First of all, the burden is simply on the Patent Owner to establish
`this -- excuse me, on the Petitioner to establish, and we believe that the
`burden has not been met in this case.
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`Whether we're talking about establishing the reference as prior art
`because of the date stamp on the document, whether we're talking about the
`reason to combine Hua, whether we're talking about relying on something
`more than common knowledge this is something that not only should of
`been addressed in petition, at the very least once the Patent Owner's
`response addressed these there could of been evidence that indicated this,
`addressed the arguments, corrected any deficiencies. There was no rebuttal
`declaration submitted here, there's nothing to correct the problems that were
`address in Patent Owner's response.
`JUDGE WEINSCHENK: So, which arguments are you talking
`about? Because at least with respect to the disclosure of Hua, the knowledge
`of a person of skill in the art, a reason to modify or use SMIL with
`pipelining I think there's disclosure and there's discussion in evidence in the
`petition. So, I'm not sure what specific issue you think wasn't addressed in
`the petition.
`MR. OLIVER: Certainly, Your Honor, let me make one point clear
`before I jump into that just before I forget, and that is with respect to the
`testimony of
`Dr. Porter the question was asked, well, what evidence is there that a person
`could have combined SMIL and Hua, and the answer was, well, Dr. Porter
`said that the '806 patent was enabled, that someone could make and use the
`'806 patent. That goes to enablement, that is a separate completely distinct
`issue to whether or not one would have combined SMIL and Hua and would
`of had an expectation of success.
`And more important than that, I think getting to your question, let's
`talk about the manner of the combination. First and foremost, there was
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`actually no grounds saying combine SMIL and Hua. That was something
`that came after institution so the petition, on its very face, does not address
`that. But I would point to what the petition actually discusses in this regard
`as we've set forth in our briefing building up to the wherein clause. There
`are several efficiencies in that no one example discloses each and every
`feature of those.
`But putting that aside and looking at just the -- not pulling that side,
`looking at the wherein clause, if we were to combine SMIL and Hua we
`have to do a few things to even have a discussion of whether or not the
`Petitioner met its burden, and then Patent Owner to know exactly what
`they're responding to. And that is how would these different snippets be
`combined leading up to the wherein clause. For the wherein clause we have
`this downloading and playing one segment followed by playing another -- or
`downloading a second segment while the first is playing.
`What the argument seems to be is, well, pipelining was known but the
`question, as being discussed here today, is could SMIL and Hua be used
`together and the answer's simply, no, and I'll address a couple of specific
`reasons on that wherein clause. First, if you look at the petition it relies on
`the seq elements in saying, hey, look at these seq elements and if you have
`multiple seq elements there are a couple options for them as the petition
`states around page 43 of the petition.
`It says, well, seq elements could indicate that you played two files
`slightly offset from one another. Start one, two seconds later the second, so
`they play overlapping. And they say, well, you don't have to do a seq
`element that way. If you have two seq elements you can play them
`back-to-back. Now, first of all, we have to combine the examples that are in
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`-- that they rely on for Claim 1 in the 102 in a certain way. None of those
`examples that they rely on have two seq elements. So, now we have to
`further modify SMIL to use two seq elements back to back.
`We have to modify them in a specific way, meaning they can't overlap
`because otherwise the claim limitation wouldn't be met. They have to be
`back-to-back. Now we get, after all those modifications none of which are
`addressed or explained, to the very heart of the problem of trying to
`incorporate Hua and that is this, their argument is let's say there were two
`seq elements despite none of the examples they rely on have two seq
`elements, and we put them back-to-back so one didn't start playing until
`after the other one.
`They'd said, well, you would pipeline them. You would download the
`first one, start playing, and then you would download the second one and
`you would do that based on either common knowledge or Hua. And,
`obviously, their arguments for whether or not you rely on common
`knowledge and whether or not Hua has been established here. But the very
`face problem that has not been dealt with in the Petitioner's reply is how
`would that combination be made, in what manner would that combination be
`made, and why that combination would be made.
`Dr. Bulterman, in this case, admitted that there was no functionality in
`SMIL for prefetching. What the Petitioner's argument is is that you go get
`one file, play it, and then you go get the other. SMIL doesn't have that
`functionality. That was added to SMIL 2.0 which only came out after the
`critical date. So, the question is if there's no functionality in SMIL for
`providing instructions on that how would you implement Hua.
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`Now, you can look at it also from the opposite side, Hua describes a
`very specific system where the server and the player are working together
`and looking at time, and we can see this on one of our slides. I'll start at 22
`and look at 23 of our slide section. Looking as 22 we see that the testimony
`which says, Hua's pipelining relies on specific knowledge of the size of the
`video file and the speed of the modem receiving that file. Now, we have the
`first problem that there's no prefetching in SMIL.
`JUDGE WEINSCHENK: So, let's hold on that point, I have a
`question about it. I think I understand your point to be that you can't
`actually implement pipelining using SMIL itself so there'd need to be some
`other software than the player to control how you download the files and
`when you download them, correct?
`MR. OLIVER: Correct.
`JUDGE WEINSCHENK: Is there a reason that wou
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