Inter Partes Review No. 2019-01137
`U.S. Patent No. 6,757,907
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`Charter Communications, Inc.
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`Petitioner
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`v.
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`Sprint Communications Company
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`Patent Owner
`
`
`Patent No. 6,757,907
`Case No. IPR2019-01137
`
`
`DECLARATION OF KEVIN ALMEROTH, PH.D.
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`Charter Ex. 1002, Page 1
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`Inter Partes Review No. 2019-01137
`U.S. Patent No. 6,757,907
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION ........................................................................................... 1
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`QUALIFICATIONS AND BACKGROUND ................................................. 2
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`III. THE ’7907 PATENT ..................................................................................... 12
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`A. Overview of the ’7907 Patent .............................................................. 12
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`B.
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`Prosecution History ............................................................................. 14
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`IV. LEGAL STANDARDS ................................................................................. 15
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`V.
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`LEVEL OF ORDINARY SKILL .................................................................. 18
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`VI. CLAIM CONSTRUCTION .......................................................................... 18
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`A.
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`B.
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`C.
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`“A video-on-demand system” (claim 1) / “operating a video-on-
`demand system” (claims 21 and 41) ................................................... 19
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`“viewer control signal” (claims 1, 21, 41) .......................................... 20
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`“transfer … [the first/second] video signals” (claim 1) /
`“transferring [the first/second] video signals” (claims 21, 41) ........... 21
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`D. Agreed Constructions in Comcast Claim Construction Order ............ 22
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`VII. DETAILED ANALYSIS ............................................................................... 23
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`A.
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`PRIOR ART CONSIDERED .............................................................. 23
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`1.
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`2.
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`3.
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`4.
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`Ellis ........................................................................................... 23
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`Yosuke ....................................................................................... 24
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`Browne ...................................................................................... 25
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`Humpleman ............................................................................... 26
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`B.
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`Ground 1: Ellis and Yosuke Render Obvious Claims 1-53 ................. 26
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`Independent Claim 1 ................................................................. 32
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`Dependent Claim 2 ................................................................... 50
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`Dependent Claim 3 ................................................................... 51
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`Dependent Claim 4 ................................................................... 53
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`Dependent Claim 5 ................................................................... 54
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`Dependent Claim 6 ................................................................... 57
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`Dependent Claim 7 ................................................................... 58
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`U.S. Patent No. 6,757,907
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`8.
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`9.
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`Dependent Claim 8 ................................................................... 58
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`Dependent Claim 9 ................................................................... 60
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`10. Dependent Claim 10 ................................................................. 61
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`11. Dependent Claim 11 ................................................................. 63
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`12. Dependent Claim 12 ................................................................. 64
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`13. Dependent Claim 13 ................................................................. 65
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`14. Dependent Claim 14 ................................................................. 67
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`15. Dependent Claim 15 ................................................................. 67
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`16. Dependent Claim 16 ................................................................. 68
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`17. Dependent Claim 17 ................................................................. 68
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`18. Dependent Claim 18 ................................................................. 69
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`19. Dependent Claim 19 ................................................................. 70
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`20. Dependent Claim 20 ................................................................. 71
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`21.
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`Independent Claim 21 ............................................................... 72
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`22. Dependent Claims 22-40 ........................................................... 73
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`23.
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`Independent Claim 41 ............................................................... 74
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`24. Dependent Claims 42-53 ........................................................... 76
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`C.
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`Ground 2: Ellis and Yosuke and Browne Render Obvious
`Claims 1-53 Under § 103 .................................................................... 77
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`Independent Claim 1 ................................................................. 83
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`Dependent Claims 2-11, 13, and 15-20 .................................... 86
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`Dependent Claim 12 ................................................................. 86
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`Dependent Claim 14 ................................................................. 87
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`Independent Claim 21 ............................................................... 88
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`Dependent Claims 22-40 ........................................................... 88
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`Independent Claim 41 ............................................................... 90
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`Dependent Claims 42-53 ........................................................... 91
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`D. Ground 3: Ellis and Yosuke and Humpleman Render Obvious
`Claims 1-53 ......................................................................................... 92
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`1.
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`Independent Claim 1 ................................................................. 98
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`U.S. Patent No. 6,757,907
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`2.
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`3.
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`4.
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`5.
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`6.
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`7.
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`8.
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`9.
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`Dependent Claims 2-6, 8, 10-11 and 13-20 ............................ 101
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`Dependent Claim 7 ................................................................. 101
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`Dependent Claim 9 ................................................................. 101
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`Dependent Claim 12 ............................................................... 103
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`Independent Claim 21 ............................................................. 104
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`Dependent Claims 22-40 ......................................................... 105
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`Independent Claim 41 ............................................................. 106
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`Dependent Claims 42-53 ......................................................... 107
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`VIII. CONCLUSION ............................................................................................ 109
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`Charter Ex. 1002, Page 4
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`I.
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`INTRODUCTION
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`1.
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`I, Kevin Almeroth, Ph.D., submit this declaration to state my opinions
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`on the matters described below.
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`2.
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`I have been retained by Petitioner Charter Communications, Inc. as an
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`independent expert in this proceeding before the United States Patent and
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`Trademark Office.
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`3.
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`I understand that this proceeding involves U.S. Patent No. 6,757,907
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`(“the ’7907 patent”), and I have been asked to provide my opinions as to the
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`patentability of the claims of the ’7907 patent. I have been informed that a copy of
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`the ’7907 patent is attached to the petition as Exhibit 1001.
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`4.
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`This declaration sets forth the opinions that I have formed in this
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`proceeding based on my study of the evidence, my understanding as an expert in
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`the field, and my education, training, research, knowledge, and personal and
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`professional experience.
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`5.
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`I am being compensated for my time at the rate of $700 per hour for
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`my work. This compensation is not contingent in any way upon the nature of my
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`findings, the presentation of my findings in testimony, or the outcome of this
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`proceedings, nor does it affect the substance of my statements in this declaration.
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`6.
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`I have no financial interest in the Petitioner, the Patent Owner Sprint
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`Communications Company, or the ’7907 patent, and I have not had any contact
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`with any of the named inventors of the ’7907 patent, James Schumacher, Mike
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`Inter Partes Review No. 2019-01137
`U.S. Patent No. 6,757,907
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`O’Brien, or Jay Cee Straley.
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`7.
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`In forming my opinions, in addition to any materials cited in this
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`declaration, I have reviewed the following materials:
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` U.S. Patent No. 6,757,907
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` File History for U.S. Patent No. 6,757,907
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` European Patent Application EP 0 872 987 A2 (“Yosuke”)
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` WO 92/22983 (“Browne”)
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` U.S. Patent No. 6,182,094 (“Humpleman”)
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` U.S. Patent No. 7,913,278 (“Ellis”)
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` Claim Construction Order from Comcast Cable Commc’ns, LLC v. Sprint
`Commc’ns Co., LP, Case No. 2:12-cv-859-JD, Dkt. 162 (Aug. 15, 2014,
`E.D. Pa.) (“Comcast Claim Construction Order”)
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` Sprint’s Opening Claim Construction Br. from Comcast Cable
`Commc’ns, LLC v. Sprint Commc’ns Co., LP, Case No. 2:12-cv-859-JD,
`Dkt. 162 (Aug. 15, 2014, E.D. Pa.) (“Sprint Claim Construction Br.”)
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`8.
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`I understand that this is one of multiple inter partes reviews against
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`the ’7907 patent.
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`9.
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`I expect to testify further, if requested, regarding the subject matter set
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`forth in this declaration.
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`II. QUALIFICATIONS AND BACKGROUND
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`10. Based upon my educational and work experience, I believe I am well
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`qualified to serve as a technical expert in this matter. I summarize in this section
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`my educational background, career history, publications, and other relevant
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`qualifications. My qualifications can be found in my curriculum vitae, which I
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`understand is attached to this Petition as Exhibit 1003, including details about my
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`employment history, fields of expertise, and publications.
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`11.
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`I am currently a Professor in the Department of Computer Science at
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`the University of California, Santa Barbara (“UCSB”). I also hold an appointment
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`and am a founding member of the Computer Engineering (CE) Program at UCSB.
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`I am also a founding member of the Media Arts and Technology (MAT) Program,
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`and the Technology Management Program (TMP) at UCSB. I also served as the
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`Associate Director of the Center for Information Technology and Society (CITS) at
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`UCSB from 1999 to 2012. I have been a faculty member at UCSB since July
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`1997.
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`12.
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`I hold three degrees from the Georgia Institute of Technology: (1) a
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`Bachelor of Science degree in Information and Computer Science (with minors in
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`Economics, Technical Communication, and American Literature) earned in June,
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`1992; (2) a Master of Science degree in Computer Science (with specialization in
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`Networking and Systems) earned in June, 1994; and (3) a Doctor of Philosophy
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`(Ph.D.) degree in Computer Science (Dissertation Title: Networking and System
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`Support for the Efficient, Scalable Delivery of Services in Interactive Multimedia
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`Systems), minor in Telecommunications Public Policy, earned in June, 1997.
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`During my education, I have taken a wide variety of courses as demonstrated by
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`my minor. My undergraduate degree also included a number of courses more
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`typical of a degree in electrical engineering including digital logic, signal
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`processing, and telecommunications theory.
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`13. One of the major concentrations of my research has been the delivery
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`of multimedia content and data between computing devices and users. In my
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`research I have studied large-scale content delivery systems and the use of servers
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`located in a variety of geographic locations to provide scalable delivery to
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`hundreds, or even thousands, of users simultaneously. I have also studied smaller-
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`scale content delivery systems in which content, including interactive
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`communication like voice and video data, is exchanged between individual
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`computers and portable devices. As a broad theme, my work has examined how to
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`exchange content more efficiently across computer networks, including the devices
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`that switch and route data traffic. My work has emphasized the exchange of
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`content more efficiently across computer networks, including the scalable delivery
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`of content to many users, mobile computing, satellite networking, delivering
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`content to mobile devices, and network support for data delivery in wireless
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`networks.
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`14.
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`In 1992, the initial focus of my research was the provision of
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`interactive functions (e.g., VCR-style functions like pause, rewind, and fast-
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`forward) for near video-on-demand systems in cable systems, in particular, how to
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`aggregate requests for movies at a cable head-end and then how to satisfy a
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`multitude of requests using one audio/video stream to broadcast to multiple
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`receivers simultaneously. This research has continually evolved and resulted in the
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`development of new techniques to scalably deliver on-demand content, including
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`audio, video, web documents, and other types of data, through the Internet and
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`over other types of networks, including over cable systems, broadband telephone
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`lines, and satellite links.
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`15. An important component of my research has been investigating the
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`challenges of communicating multimedia content, including video, between
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`computers and across networks including the Internet. Although the early Internet
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`was designed mostly for text-based non-real time applications, the interest in
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`sharing multimedia content quickly developed. Multimedia-based applications
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`ranged from downloading content to a device for streaming multimedia content to
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`be instantly used. One of the challenges was that multimedia content is typically
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`larger than text-only content, but there are also opportunities to use different
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`delivery techniques because multimedia content is more resilient to errors. I have
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`worked on a variety of research problems and used a number of systems that were
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`developed to deliver multimedia content to users. One content-delivery method I
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`have researched is the one-to-many communication facility called “multicast,” first
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`deployed as the Multicast Backbone, a virtual overlay network supporting one-to-
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`many communication. Multicast is one technique that can be used on the Internet
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`to provide streaming media support for complex applications like video-on-
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`demand, distance learning, distributed collaboration, distributed games, and large-
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`scale wireless communication. The delivery of media through multicast often
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`involves using Internet infrastructure, devices and protocols, including protocols
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`for routing and TCP/IP. Multicast has also been used as the delivery mechanism in
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`systems that perform local filtering (i.e., sending the same content to a large
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`number of users and allowing them to filter locally content in which they are not
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`interested).
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`16. Starting in 1997, I worked on a project to integrate the streaming
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`media capabilities of the Internet together with the interactivity of the web. I
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`developed a project called the Interactive Multimedia Jukebox (IMJ). Users would
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`visit a web page and select content to view. The content would then be scheduled
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`on one of a number of channels, including delivery to students in Georgia Tech
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`dorms delivered via the campus cable plant. The content of each channel was
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`delivered using multicast communication.
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`17.
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`In the IMJ, the number of channels varied depending on the
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`capabilities of the server including the available bandwidth of its connection to the
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`Internet. If one of the channels was idle, the requesting user would be able to
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`watch their selection immediately. If all channels were streaming previously
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`selected content, the user’s selection would be queued on the channel with the
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`shortest wait time. In the meantime, the user would see what content was currently
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`playing on other channels, and because of the use of multicast, would be able to
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`join one of the existing channels and watch the content at the point it was currently
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`being transmitted.
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`18. The IMJ service combined the interactivity of the web with the
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`streaming capabilities of the Internet to create a jukebox-like service. It supported
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`true Video-on-Demand when capacity allowed, but scaled to any number of users
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`based on queuing requested programs. As part of the project, we obtained
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`permission from Turner Broadcasting to transmit cartoons and other short-subject
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`content. We also attempted to connect the IMJ into the Georgia Tech campus
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`cable television network so that students in their dorms could use the web to
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`request content and then view that content on one of the campus’s public access
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`channels.
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`19. More recently, I have also studied issues concerning how users choose
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`content, especially when considering the price of that content. My research has
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`examined how dynamic content pricing can be used to control system load. By
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`raising prices when systems start to become overloaded (i.e., when all available
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`resources are fully utilized) and reducing prices when system capacity is readily
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`available, users’ capacity to pay as well as their willingness can be used as factors
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`in stabilizing the response time of a system. This capability is particularly useful
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`in systems where content is downloaded or streamed on-demand to users.
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`20. As a parallel research theme, starting in 1997, I began researching
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`issues related to wireless devices and sensors. In particular, I was interested in
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`showing how to provide greater communication capability to “lightweight
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`devices,” i.e., small form-factor, resource-constrained (e.g., CPU, memory,
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`networking, and power) devices. Starting in 1998, I published several papers on
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`my work to develop a flexible, lightweight, battery-aware network protocol stack.
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`The lightweight protocols we envisioned were similar in nature to protocols like
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`Universal Plug and Play (UPnP) and Digital Living Network Alliance (DLNA).
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`21. Recent work ties some of the various threads of my past research
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`together. I have investigated content delivery in online social networks and
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`proposed reputation management systems in large-scale social networks and
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`marketplaces. On the content delivery side, I have looked at issues of caching and
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`cache placement, especially when content being shared and cache has geographical
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`relevance. We were able to show that effective caching strategies can greatly
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`improve performance and reduce deployment costs. Our work on reputation
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`systems showed that reputations have economic value, and as such, creates a
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`motivation to manipulate reputations. In response, we developed a variety of
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`solutions to protect the integrity of reputations in online social networks.
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`22.
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`I am an author or co-author of approximately 200 technical papers,
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`published software systems, IETF Internet Drafts and IETF Request for Comments
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`(RFCs). A list of these papers is included in my CV, which is attached as Exhibit
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`A.
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`23. My involvement in the research community extends to leadership
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`positions for several academic journals and conferences. I am the co-chair of the
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`Steering Committee for the ACM Network and System Support for Digital Audio
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`and Video (NOSSDAV) workshop and on the Steering Committees for the
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`International Conference on Network Protocols (ICNP), ACM Sigcomm
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`Workshop on Challenged Networks (CHANTS), and IEEE Global Internet (GI)
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`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
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`Network, ACM Computers in Entertainment, AACE Journal of Interactive
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`Learning Research (JILR), and ACM Computer Communications Review. I have
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`co-chaired a number of conferences and workshops including the IEEE
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`International Conference on Network Protocols (ICNP), IEEE Conference on
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`Sensor, Mesh and Ad Hoc Communications and Networks (SECON), International
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`Conference on Communication Systems and Networks (COMSNETS), IFIP/IEEE
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`International Conference on Management of Multimedia Networks and Services
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`(MMNS), the International Workshop On Wireless Network Measurement
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`(WiNMee), ACM Sigcomm Workshop on Challenged Networks (CHANTS), the
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`Network Group Communication (NGC) workshop, and the Global Internet
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`Symposium, and I have served on the program committees for numerous
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`conferences.
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`24. Furthermore, in the courses I teach at UCSB, a significant portion of
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`the curriculum covers aspects of the Internet and network communication,
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`including each of the layers of the Open System Interconnect (OSI) protocol stack
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`commonly used in the Internet, as well as standardized protocols for
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`communicating across a variety of physical media such as cable systems, telephone
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`lines, wireless, and high-speed Local Area Networks (LANs). These layers
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`include the physical and data link layers and their handling of signal modulation,
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`error control, and data transmission. The courses I have taught also cover most
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`major topics in Internet communication, including data communication,
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`multimedia encoding, and mobile application design. I teach the configuration and
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`operation of switches, routers, and gateways including routing and forwarding and
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`the numerous respective protocols as they are standardized and used throughout the
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`Internet. Topics include a wide variety of standardized Internet protocols at the
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`Network Layer (Layer 3), Transport Layer (Layer 4), and above. My research and
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`courses cover a range of physical infrastructures for delivering content over
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`networks, including cable, Integrated Services Digital Network (ISDN), Ethernet,
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`Asynchronous Transfer Mode (ATM), fiber, and Digital Subscriber Line (DSL).
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`25.
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`In addition, I co-founded a technology company called Santa Barbara
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`Labs that was working under a sub-contract from the U.S. Air Force to develop
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`very accurate emulation systems for the military’s next generation internetwork.
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`Santa Barbara Labs’ focus was in developing an emulation platform to test the
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`performance characteristics of the network architecture in the variety of
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`environments in which it was expected to operate, and in particular, for network
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`services including IPv6, multicast, Quality of Service (QoS), satellite-based
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`communication, and security. Applications for this emulation program included
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`communication of a variety of multimedia-based services, including video
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`conferencing and video-on-demand.
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`26.
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`In addition to having co-founded a technology company myself, I
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`have worked for, consulted with, and collaborated with companies for nearly 30
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`years. These companies range from well-established companies to start-ups and
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`include IBM, Hitachi Telecom, Turner Broadcasting System (TBS), Bell South,
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`Digital Fountain, RealNetworks, Intel Research, Cisco Systems, and Lockheed
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`Martin.
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`27. Additional details about my employment history, fields of expertise,
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`Inter Partes Review No. 2019-01137
`U.S. Patent No. 6,757,907
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`and publications are further included in my CV, which I understand is attached the
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`Petition as Exhibit 1003.
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`III. THE ’7907 PATENT
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`A. Overview of the ’7907 Patent
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`28. The ’7907 patent was filed February 9, 2000. I am not aware of any
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`claim by Sprint to an earlier priority date and I am currently not aware of any
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`evidence that would support an earlier priority date. To the extent Sprint may
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`argue the ’7907 patent is entitled to an earlier priority date, I reserve the right to
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`respond to such a claim in a reply declaration.
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`29. The ’7907 patent has fifty-three claims, three of which are
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`independent. The ’7907 patent’s three independent claims (1, 21, and 41) are
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`generally directed to methods and systems for using a computer to remotely
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`control a VOD system, and offering the user the choice of displaying the selected
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`video content on either a computer or a television. (’7907 patent, 6:42-58, 7:58-
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`8:4, 8:62-9:11.) The patent, like the prior art, recognized limitations in using set-
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`top boxes for remotely controlling a video-on-demand system, and attempted to
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`improve on VOD systems by replacing the set-top box with a “portable computer
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`[that] has many other uses and eliminates the cost of a special television set-top
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`box.” (’7907 patent, 1:53-55.)
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`30. The ’7907 patent claims require interactions between a “first
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`communication system,” which the patent defines as including “optical fiber
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`systems, wire cable systems, and wireless link systems,” and a “second
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`communication system,” which the patent defines as the “Internet,” and “in
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`particular, the World-Wide Web.” (’7907 patent, 2:42-46.) Each communication
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`system is coupled to its own display, e.g., the first communication system is
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`coupled to a television and the second communications system is coupled to a
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`portable computer with a browser. (’7907 patent, 2:46-48.)
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`31. The ’7907 patent describes a known video-on-demand system that is
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`“configured with software and conventional communication interfaces.” (’7907
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`patent, 2:49-51.) In the disclosed video-on-demand system, the second
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`communication system, e.g., the Internet, is used to transmit the user’s request for
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`video signals to the video-on-demand system. (’7907 patent, 2:51-67.) The video-
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`on-demand system then transmits certain video signals to a display over either
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`communications systems, e.g., coaxial cable or the Internet, in response to a
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`request from the user. (’7907 patent, 3:1-14.)
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`32. The ’7907 patent claims are directed to a method for controlling the
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`two communications systems using two separate communication interfaces,
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`wherein each interface is coupled to a particular communication system. (’7907
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`patent, 3:1-14.) The video-on-demand system transmits a “user control signal” to
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`the user over a second communications system, the user then transmits “video
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`control signals” to the video-on-demand system over a communication interface
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`that is coupled to a particular communications system, and in response, the video-
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`on-demand system transmits “video content signals” over the user’s selected
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`communications system, either the first or the second communication system.
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`(’7907 patent, 2:29-3:14.)
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`33. Figure 1 of the ’7907 patent, reproduced below, demonstrates the
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`interaction of the various claimed systems, interfaces, and displays. Figure 6, also
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`reproduced below, depicts a preferred embodiment of the invention.
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`B.
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`Prosecution History
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`34. During prosecution, the Examiner rejected the pending claims under
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`the doctrine of obviousness-type double patenting as being unpatentable over the
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`claims of copending Application No. 09/501,055 (issued as U.S. Patent No.
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`6,757,907). (09/03/2003 Office Action at 2-4.) In response, the applicant filed a
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`terminal disclaimer. (Oct. 24, 2003 Terminal Disclaimer.)
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`35.
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`In a series of rejections, the Examiner also rejected the pending claims
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`under § 103(a). In response, the applicant made a number of amendments to the
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`claims and argued, “[the prior art] does not teach or suggest transferring video
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`content signals to either a first communication interface or a second
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`communication interface, based on a video control signal received from the second
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`communication interface.” (Oct. 28, 2003 Response to Office Action at 8.) The
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`Examiner agreed and issued a Notice of Allowance. (Notice of Allowability.)
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`IV. LEGAL STANDARDS
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`36.
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`I have been told that the following legal principles apply to analysis of
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`patentability based on 35 U.S.C. § 102 or 35 U.S.C. § 103. I also have been told
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`that, in an inter partes review proceeding, a patent claim may be deemed
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`unpatentable if it is shown by a preponderance of the evidence that the claim was
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`either anticipated by one prior art patent or publication under § 102 or rendered
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`obvious by one or more prior art patents or publications under § 103.
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`37.
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`I have been informed by counsel that for a claim to be anticipated
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`under § 102, every limitation of the claimed invention must be found in a single
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`prior art reference. I have also been informed that there is a set process as follows:
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`(a) the claims of the patent are properly construed, (b) then, you must compare the
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`claim language to the prior art on a limitation-by-limitation basis. I understand
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`that an anticipatory reference does not have to recite word-for-word what is in the
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`anticipated claims. Rather, anticipation can occur when a claimed limitation is
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`“inherent” in the relevant reference. I have been advised that if the prior art
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`necessarily functions in accordance with, or includes, the claim limitations, it can
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`anticipate even though the limitation is not expressly recited.
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`38.
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`I have been told that under 35 U.S.C. § 103(a), “[a] patent may not be
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`obtained though the invention is not identically disclosed or described as set forth
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`in section 102, if the differences between the subject matter sought to be patented
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`and the prior art are such that the subject matter as a whole would have been
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`obvious at the time the invention was made to a person having ordinary skill in the
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`art to which said subject matter pertains.”
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`39. When considering the issues of obviousness, I have been told that I
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`am to do the following:
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`a. Determine the scope and content of the prior art;
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`b. Ascertain the differences between the prior art and the claims at issue;
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`c. Resolve the level of ordinary skill in the pertinent art; and
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`d. Consider evidence of secondary indicia of non-obviousness (if
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`available).
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`40.
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`I have also been advised that, where a party alleges obviousness based
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`on a combination of references, that party must identify a reason why a person
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`skilled in the art would have been motivated to combine the asserted references in
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`the manner recited in the claims and to explain why one skilled in the art would
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`have had a reasonable expectation of success in making such combinations.
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`41.
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`I have been advised that combining familiar elements according to
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`known methods and in a predictable way may suggest obviousness when such a
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`combination would yield nothing more than predictable results. I understand,
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`however, that a claim is not obvious merely because every claim element is
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`disclosed in the prior art and that a party asserting obviousness must still provide a
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`specific motivation to combine the references as recited in the claims and explain
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`why one would have reasonably expected to succeed in doing so.
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`42.
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`I have been advised that two references are considered to be in the
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`same field of art when the references are either (1) in the same field of endeavor,
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`regardless of the problems they address, or (2) reasonably pertinent to the
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`particular problem being solved by the inventor i