[00:00:01] Speaker 04:
This morning is number 222147, Avago Technologies versus Netflix.

[00:00:09] Speaker 04:
Mr. Young.

[00:00:11] Speaker 01:
Good morning, Your Honor.

[00:00:12] Speaker 01:
May it please the Court, Dan Young for Avago Technologies.

[00:00:16] Speaker 01:
In its final written decision, the board improperly construed the quality level terms to include not only the quality level of the digital media content, but also the quality level of the network connection.

[00:00:30] Speaker 01:
And this broad interpretation or construction goes against the intrinsic evidence in the case, including the prosecution history, the specification, and the claim language itself.

[00:00:41] Speaker 01:
When these.

[00:00:42] Speaker 04:
Just to be fair, it didn't.

[00:00:45] Speaker 04:
say that either one of those independently could suffice, right?

[00:00:50] Speaker 04:
It just said that the quality of the process of getting the content to the endpoint might be a factor in the ultimate quality of what is received.

[00:01:05] Speaker 01:
the quality level of the digital media content.

[00:01:08] Speaker 01:
That's what the board specifically said.

[00:01:10] Speaker 01:
We do not agree with Pat and owner that the claimed quality levels are limited to the quality of the digital media content independent of network connections.

[00:01:19] Speaker 01:
So as the claims were originally filed, these were filed in relation to the quality level of a digital media service.

[00:01:29] Speaker 01:
And when those claims were initially proposed, the examiner reject them over a

[00:01:34] Speaker 01:
over a system where the user was receiving voice data over a connection and if that connection was bad that we would switch over to voice data or digital media content to a better connection and that would then improve the digital media service and in response to that the applicant amended the claims in four specific ways

[00:02:00] Speaker 01:
They left digital media service in the preamble.

[00:02:04] Speaker 01:
But everywhere else in the claim, and this is shown on appendix page 168, every other place where it said digital media service, service was struck and a more narrow term content was added.

[00:02:19] Speaker 01:
So instead of talking about the quality of the digital media service as a whole, those quality levels talked about the quality of the digital media content.

[00:02:27] Speaker 00:
But doesn't it also talk about

[00:02:29] Speaker 00:
the current quality level, and doesn't that mean current being during delivery?

[00:02:35] Speaker 00:
How do you respond to that, which is one of the grounds, one of the reasons that the board identified for why it arrived at the construction it arrived at?

[00:02:45] Speaker 01:
Yeah, sure, and there's a number of reasons for that.

[00:02:47] Speaker 01:
One of the things that the board or the applicant did during prosecution is it not only changed service to content, but it added two limitations.

[00:02:56] Speaker 01:
It added a using limitation and a second delivery limitation.

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And so what the using limitation says is we are going to use the network connection to obtain the higher quality digital media content.

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Once it's obtained,

[00:03:11] Speaker 01:
we are then going to deliver that content to the user.

[00:03:15] Speaker 01:
So one of the problems with the board's construction is it takes those two limitations and it eliminates the second one.

[00:03:21] Speaker 01:
It says as soon as you are getting the content, you are then also then delivering it.

[00:03:25] Speaker 01:
They read it as one, they call it the whole limitation, limitation one D. And that is in contrast to what the specification says where it says higher quality information and their expert, Netflix's own expert admitted that information can include content.

[00:03:42] Speaker 01:
It says, and this is on appendix page 35, column 6, 25 through 30, it says, higher quality information is of little value if the communication network is slow.

[00:03:54] Speaker 01:
And so what it's saying is, if you have, and they use different examples, and figure five is used as an example in the specification throughout the entirety of the specification.

[00:04:02] Speaker 01:
And what that says is, in this particular example, and this was, again, this was filed a long time ago, you had a PDA, and say you were receiving voice music in like an MP3 format, you didn't have large file sizes because you were worried about storage, and you were listening to it, it was being delivered to the user,

[00:04:21] Speaker 01:
And there's no network connection there.

[00:04:23] Speaker 01:
It's just on the, in this case, on the hard drive of the PDA.

[00:04:26] Speaker 01:
And then it says, well, we have a connection with another system, and that system has CD quality.

[00:04:32] Speaker 01:
This is the example used in the specification.

[00:04:35] Speaker 01:
And if that network connection is high enough, if we can grab it, then we're going to let the user listen to a higher quality of content, the CD quality content in that example.

[00:04:45] Speaker 01:
and throughout the entirety of the specification it talks about quality of information

[00:04:55] Speaker 01:
versus a network connection.

[00:04:58] Speaker 01:
Now, this claim still, as amended, still talk about a digital media service.

[00:05:03] Speaker 01:
And that service includes considerations of network connection.

[00:05:08] Speaker 03:
What about the current quality level, the question Judge Stoll asked?

[00:05:13] Speaker 03:
I'm not sure I understand the answer.

[00:05:14] Speaker 03:
Doesn't current quality level just necessarily imply you have to take account in some way for how it's being delivered, i.e.

[00:05:22] Speaker 03:
the network connections?

[00:05:24] Speaker 01:
That's why I was saying, those two limitations, the using limitation and the second delivery limitation, those are two separate limitations.

[00:05:33] Speaker 01:
They deal with different things.

[00:05:34] Speaker 01:
In the way these claims are written, you obtain the content and then you deliver.

[00:05:39] Speaker 01:
So the current content, as currently delivered, as the specification talks about, the delivery is through

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As an example, if you look at column 8, 55 through 64, it talks about delivering it through the user interface devices, like the screen, the keyboard, the mouse.

[00:05:59] Speaker 01:
That's how it's being delivered.

[00:06:01] Speaker 01:
So it's currently being delivered, and in this case, in the example I gave, in a lower quality format.

[00:06:07] Speaker 01:
It's currently being delivered.

[00:06:08] Speaker 01:
They're currently listening to a lower quality

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song in this case, and then it's evaluating can I get a better connection to a system where I can get a higher quality.

[00:06:19] Speaker 01:
And then if I can obtain it, that's what the using limitation says, if I can obtain it, then I will then deliver it.

[00:06:25] Speaker 01:
So the current delivery of the content is talking about the content itself.

[00:06:31] Speaker 01:
It's not talking about the service, because if it was talking about the delivery of the service,

[00:06:36] Speaker 01:
or the current delivery of the content.

[00:06:39] Speaker 01:
That's exactly how the claims were originally written.

[00:06:43] Speaker 03:
Let's come back to that, the prosecution history and the distinction of Jagadeesh.

[00:06:48] Speaker 03:
Isn't it a problem for you that there were, as you say, four different amendments made?

[00:06:53] Speaker 03:
And as far as I could tell, there's no discussion about why the amendment from service to content was made.

[00:07:01] Speaker 03:
Isn't this, at best, ambiguous and not particularly helpful to your proposed construction?

[00:07:07] Speaker 01:
No, Your Honor, I would disagree.

[00:07:08] Speaker 01:
On Appendix page 175, it talks about the applicant gives kind of a lengthy description as to why the claims were amended.

[00:07:18] Speaker 01:
And what they say is, as a whole, Jagadishan fails to disclose or suggest obtaining voice data from a second source.

[00:07:27] Speaker 01:
Now, that second source is another limitation added.

[00:07:31] Speaker 01:
But then it says, let alone obtaining digital media content

[00:07:35] Speaker 01:
at a higher quality level from the second system.

[00:07:38] Speaker 01:
There is the amendment from a higher quality digital media service to a higher quality digital media content.

[00:07:47] Speaker 01:
That's the narrowing of the claim.

[00:07:49] Speaker 01:
And then it says, as such, Jaggedeason also necessarily fails to teach, dispose, or suggest delivering the digital media content at a higher quality level to the user instead of the digital media content at the current quality.

[00:08:01] Speaker 01:
That's the second delivery.

[00:08:03] Speaker 01:
So it says if you're not obtaining it, then you certainly can't deliver it.

[00:08:08] Speaker 01:
So the applicant gave three distinct reasons as to why these claims were narrow and get around Jaggedeason.

[00:08:14] Speaker 01:
The first one is obtaining it from a second source.

[00:08:17] Speaker 01:
That's what the board relied on to distinguish the file history.

[00:08:20] Speaker 01:
But the board did not address the second and third reasons, which were

[00:08:25] Speaker 01:
that you're not obtaining the higher quality level, you know, an example of CD quality versus an MP3 quality as an example, or an HD version versus an SD version of a movie.

[00:08:35] Speaker 01:
And then obviously if you can't obtain it, then there's no way to deliver it.

[00:08:39] Speaker 01:
And so, and the using and delivering limitations are two separate.

[00:08:43] Speaker 01:
You can have a high enough bandwidth

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to grab a CD quality or an HD version of the movie.

[00:08:50] Speaker 01:
But if you're watching it on a phone that doesn't have an HD stream, you can't deliver it to the user.

[00:08:56] Speaker 01:
And their expert agreed that delivering it, what delivering means is presenting the content in a form

[00:09:02] Speaker 01:
that the user can use.

[00:09:05] Speaker 01:
It doesn't do you any good to obtain an HD movie if you don't have a screen that will show an HD quality.

[00:09:11] Speaker 01:
That's why those two limitations are different, and that's what the applicant is saying here, that you're doing it

[00:09:17] Speaker 01:
You have three different reasons why these claims are narrowed and get around Jagadeesan.

[00:09:21] Speaker 01:
And they repeated that because Kamiya is another reference that they used, the examiner used in the prosecution history.

[00:09:27] Speaker 01:
This is on the bottom of page 175.

[00:09:30] Speaker 01:
And it says Kamiya, like Jagadeesan, relates to selection of a communication medium.

[00:09:36] Speaker 01:
Again, that's the network connection.

[00:09:39] Speaker 01:
and fails to disclose teachers suggest obtaining digital media content at a higher quality level from the second system, as recited in the amended claim.

[00:09:45] Speaker 01:
In this case, it was claim 38, but that became claim one that we're discussing now.

[00:09:50] Speaker 01:
So the applicant says there twice.

[00:09:54] Speaker 01:
The prior art that the examiner was using was talking about changing the network connection, but not the medium, not the content itself.

[00:10:08] Speaker 01:
And this is important because if you look at the prior art that's asserted in this case, the Shaw reference, that's a situation where you have a content, you have a CDN, content delivery network, and what happens is in that prior art, you get content into an entry point through, and this is in figure two, you replicate that content throughout a whole number of servers throughout the network.

[00:10:37] Speaker 01:
And what you're doing there is you're taking an identical copy of a show, as an example, and you're putting it throughout the network so that the user who's going to be using that movie is in the closest proximity, so you have a shorter distance.

[00:10:52] Speaker 01:
And that was the whole idea behind that prior art.

[00:10:55] Speaker 00:
I have a question.

[00:10:56] Speaker 00:
Is there anything, given that there were four different reasons for the amendments,

[00:11:04] Speaker 00:
Is there anything from the Pat examiner, for example, by way of reasons for allowance that might support that the examiner understood the way you're interpreting the claims now to be important to the reason that the patent was allowed?

[00:11:20] Speaker 01:
Yes, Your Honor.

[00:11:20] Speaker 01:
When the examiner allowed the claims, the examiner said, for the reasons set forth in the response.

[00:11:28] Speaker 01:
In other words, the reasons set forth by the applicant.

[00:11:30] Speaker 00:
Which were multiple reasons.

[00:11:32] Speaker 01:
Yes, Your Honor.

[00:11:33] Speaker 00:
OK.

[00:11:34] Speaker 01:
But again, if the only reason why the claims were narrowed was because it came from a second system, then that's all they would have had to done.

[00:11:46] Speaker 01:
They could have just amended it and said digital media service from a second system, but they went and they narrowed it substantially more than that.

[00:11:55] Speaker 01:
and they did it because the media system, the media service as a whole, will absolutely improve when you switch to a better connection.

[00:12:04] Speaker 01:
But you're not going to get a higher quality digital content.

[00:12:07] Speaker 01:
And that's why the

[00:12:08] Speaker 01:
The way the board construed it allowed Shaw to come into the scope of the claim because Shaw teaches the same exact content replicated throughout the various servers so that you might get a better connection, but you're not going to get better content.

[00:12:23] Speaker 03:
Isn't Shaw's thinning within the scope of the claims as you would have them construed?

[00:12:31] Speaker 01:
No, Your Honor.

[00:12:31] Speaker 01:
Both experts said that the thinning

[00:12:34] Speaker 01:
relates to the degradation in the bandwidth of the connection.

[00:12:39] Speaker 03:
So in other words, you have... I thought it, it may relate to that, but I thought it was basically deleting frames or certain portions of the content itself.

[00:12:48] Speaker 03:
Maybe you did it because you have bandwidth limitations.

[00:12:52] Speaker 03:
That may be your motivation, but what you're actually doing is degrading the content, isn't it?

[00:12:59] Speaker 04:
Before it's sent out.

[00:13:01] Speaker 01:
That's the result.

[00:13:02] Speaker 01:
And that's the same thing that the prior art in the Jagadeesan case has, where you have the voice data is being degraded by the network connection.

[00:13:10] Speaker 01:
So you're switching to a better connection.

[00:13:12] Speaker 01:
And that's the same thing that's going on in Jagadeesan.

[00:13:16] Speaker 04:
You might be talking past the question.

[00:13:19] Speaker 04:
My understanding,

[00:13:21] Speaker 04:
correct me if I'm wrong, the thinning, is that there's a source with a fat content.

[00:13:29] Speaker 04:
That source looks at the network that it's about to send something down and says, very constrained, I can't send the fat content.

[00:13:38] Speaker 04:
So before I put it out on the network, I'm going to thin it so there's less to send.

[00:13:44] Speaker 04:
Is that an incorrect description of what this sending is?

[00:13:47] Speaker 01:
Partially, Your Honor.

[00:13:49] Speaker 01:
The frames are being dropped as they're being sent.

[00:13:52] Speaker 01:
So then if the network connection, and the reason for that is if the network connection then goes up, then it's going to start sending all the frames again.

[00:13:59] Speaker 01:
But the content is the same.

[00:14:00] Speaker 01:
The movie or the picture, the standard is the same.

[00:14:03] Speaker 01:
It's not like you're taking, in this case, an MP3 file and you're changing it down to a lower level and then sending it.

[00:14:11] Speaker 01:
It's the same file.

[00:14:13] Speaker 01:
It's just the frames are being parsed out because the network connection is bad.

[00:14:17] Speaker 01:
It's exactly the same thing that's going on in the prior art in a voice context.

[00:14:21] Speaker 03:
But do all the frames get sent when you spin?

[00:14:24] Speaker 01:
No, Your Honor.

[00:14:25] Speaker 01:
Then how can it be the same?

[00:14:27] Speaker 01:
Well, it's not, Your Honor.

[00:14:29] Speaker 01:
In this case, the digital media service is degraded because you're not having the network connection.

[00:14:34] Speaker 01:
It's not as good.

[00:14:37] Speaker 01:
But the content is still, when you look at the content at the source and at the end, that content is the same content.

[00:14:50] Speaker 01:
It has to be thinned because the network connections, as soon as the network connection goes back up.

[00:14:54] Speaker 03:
If we could look at the content at the level of the frames, it's not the same.

[00:15:01] Speaker 03:
at the output end than at the received end.

[00:15:04] Speaker 03:
So why isn't that lowering the quality of the content even if we were to adopt your construction?

[00:15:18] Speaker 01:
Simply put, the content is being degraded because of the network connection, not because of the content itself.

[00:15:28] Speaker 01:
And that is exactly the reason why the claims were amended.

[00:15:31] Speaker 01:
And in this case, the way these claims would be applied to that is you would do the determination, you would say the connection is not high enough, and you wouldn't try to obtain that content to begin with.

[00:15:43] Speaker 01:
Your Honor, I know I don't have much time left, but I'd like to save the rest of my time.

[00:15:46] Speaker 04:
You're actually over your time.

[00:15:47] Speaker 01:
Oh, I apologize.

[00:15:48] Speaker 04:
We will restore some rebound time.

[00:15:50] Speaker 01:
Thank you, Your Honor.

[00:16:08] Speaker 02:
May this please the court?

[00:16:09] Speaker 02:
Harper-Batz on behalf of Pell-E, Netflix.

[00:16:12] Speaker 02:
I'd like to discuss two issues with you today.

[00:16:14] Speaker 02:
First, the claim construction of quality level under a Phillips analysis.

[00:16:18] Speaker 02:
And then the second is this alternative basis for affirmance based upon the thinning teachings of Shaw.

[00:16:23] Speaker 02:
I'd like to start with the second one that you were just discussing with opposing counsel.

[00:16:28] Speaker 02:
It's clear from the final written decision, I'd like to actually just go straight to the final written decision,

[00:16:33] Speaker 02:
on pages 16 and 17 of the appendix, that the final written decision not only concluded that we were correct as to the construction of quality level, but also that Shaw's thinning results in the content quality being reduced before the digital media is placed on the network.

[00:16:53] Speaker 02:
And I'm specifically referring to the last sentence on the bottom of 16, where it says, we agree with petitioner, that when a server is thinning a stream, the quality of the digital media content being delivered

[00:17:03] Speaker 02:
provided or obtained is reduced before the digital media content is placed on the network.

[00:17:09] Speaker 02:
And it cites specifically to our reply arguments in our sections of exhibit 1011 where we address this issue.

[00:17:18] Speaker 04:
The way that works, do you agree with at least what I understand?

[00:17:31] Speaker 04:
of bits, and it's essentially just being filtered at the exit door, so that less of that goes out.

[00:17:38] Speaker 04:
But it's not as though, when that's done, there is now, at the source, a new, thinner version in memory.

[00:17:47] Speaker 02:
So I disagree with that.

[00:17:48] Speaker 02:
The record is clear, and both experts agreed, that the file is actually smaller before it's sent, because similar to what Judge Stark was saying, you're actually removing frames from the file prior to the transmission.

[00:17:59] Speaker 04:
Right.

[00:18:01] Speaker 04:
What you just said is completely consistent with my description.

[00:18:08] Speaker 04:
What Mr. Young said is, it depends what you mean by before it's set.

[00:18:12] Speaker 04:
He said that frames are being dropped at the exit door so that less is going out.

[00:18:20] Speaker 02:
I think that's an accurate description.

[00:18:23] Speaker 02:
But that is before it's being sent over the communication network.

[00:18:27] Speaker 04:
But the thinning is going on.

[00:18:30] Speaker 04:
As each frame hits the exit door, it's not collectively even in chunks being thinned before.

[00:18:37] Speaker 02:
Actually, both experts discussed that the thinning, it actually results in a smaller file size, as both experts agree.

[00:18:53] Speaker 04:
Well, of course it results in a smaller file size at the far end.

[00:19:01] Speaker 04:
whether a smaller file is produced at the sending end that exists after this process at the sending end.

[00:19:10] Speaker 02:
Yes.

[00:19:11] Speaker 02:
Yes.

[00:19:11] Speaker 02:
And that I would point to a response brief at page 55 in appendix 357, the Mylor Declaration at 72, and their experts declaration, which is appendix 870 and 871, paragraph 69.

[00:19:26] Speaker 02:
So that is true.

[00:19:27] Speaker 02:
And I do think that goes to the point of for whether the claim construction even matters here, we have the thinning occurring before the transmission.

[00:19:36] Speaker 02:
So while Shaw has what is called identical copies of the content at different locations, before the content is sent, a lesser version of the content is actually being transmitted.

[00:19:46] Speaker 02:
So I do think that's an alternative basis for permits.

[00:19:49] Speaker 03:
Can I ask you, at page 35 of the blue brief, I guess at the end of their summary of the argument, they say,

[00:19:56] Speaker 03:
The board had to ignore deposition testimony from your own expert that the concept of finning concerned the transmission of digital media content over a communication network and not the quality of the digital media content itself.

[00:20:13] Speaker 03:
So they're accusing the board of ignoring that your own expert directly contradicted your position.

[00:20:20] Speaker 03:
What's your response to that?

[00:20:21] Speaker 02:
I don't think so.

[00:20:22] Speaker 02:
I think if you review our expert's testimony, it's clear they're mischaracterizing that testimony.

[00:20:27] Speaker 02:
He was consistent in explaining how thinning results in frames being reduced.

[00:20:31] Speaker 02:
app source before being transmitted out and that the copy of the file is therefore smaller before transmission.

[00:20:37] Speaker 03:
Is it true that in Shaw the reason for the thinning is due to network issues?

[00:20:42] Speaker 02:
Yes, so that's the issue I wanted to hit because plaintiff's counsel is somehow arguing that because the reason for the thinning was the problems with the communication channel, that somehow negates what is required for the claim.

[00:20:57] Speaker 02:
The claim doesn't say what a cause would be for the quality level being different in two different servers.

[00:21:04] Speaker 02:
Whether or not it's because of a communication network struggling, that's irrelevant to the claim that's drafted.

[00:21:10] Speaker 02:
So the causation of what results in the teaching is not relevant for whether it satisfies the claim language.

[00:21:16] Speaker 00:
Your view is that it could be either cause.

[00:21:18] Speaker 00:
It doesn't matter.

[00:21:19] Speaker 00:
And the problem with the current quality level could be because

[00:21:23] Speaker 00:
of the original source or because of something in the service provided.

[00:21:27] Speaker 00:
Do I understand that correctly?

[00:21:28] Speaker 02:
Yes, correct.

[00:21:29] Speaker 02:
And going to that claim construction issue, I think it's notable that plaintiff's counsel or appellant's counsel immediately shifted to discussing the file history.

[00:21:38] Speaker 02:
With a Phillips analysis, we should be looking at the claim language, then the specification within the file history.

[00:21:43] Speaker 02:
And if we look at the claim language, we have clear languages talking about the obtaining or the delivering of content, not the content alone.

[00:21:50] Speaker 00:
And then I do want to touch on... Are you focusing on that it's part of the delivering step and also the bandwidth limitation?

[00:21:58] Speaker 02:
Yes, and the obtaining is tied to the bandwidth.

[00:22:01] Speaker 02:
So obtaining is pulling it over the communication network.

[00:22:04] Speaker 02:
We agree with Appellants Council that delivering is to actually display the media at the device of the user.

[00:22:12] Speaker 02:
So I think the board correctly explained that it wasn't conflating the two principles.

[00:22:17] Speaker 02:
The board specifically said we are treating these as separate limitations, but they are still satisfied.

[00:22:23] Speaker 02:
And if we look at Appellant's brief on page 56, what I think is notable is that bottom of page 56 and the top of 57, while they say quality level has to be just basically the encoding on the source server,

[00:22:37] Speaker 02:
for their claim construction, at the bottom of 56 and the top of 57, they specifically say that the processing capability of the user's device provides the higher level of quality to the user and not the network connection.

[00:22:50] Speaker 02:
So they're providing another example.

[00:22:52] Speaker 02:
They're broadening their own construction to say, well, yeah, you would look at, for a quality level, you'd look at the capabilities of the user's device, but not the communication network.

[00:23:00] Speaker 02:
So they make this arbitrary cut as to what would be the scope of the claim that's not even supported by their own briefing here.

[00:23:07] Speaker 02:
And I'd like to turn then to the specification, specifically column five.

[00:23:11] Speaker 02:
So figure one was discussed by both parties.

[00:23:15] Speaker 02:
And column five and six discussed figure one.

[00:23:18] Speaker 02:
And if we see both throughout column five and six, there are various discussions of different aspects that would affect the quality level being received or provided to the user.

[00:23:30] Speaker 02:
And so for example, I would go to column five, line 27 through 31 that talks about

[00:23:36] Speaker 02:
The first and second system may utilize information to determine whether utilizing various resources of the second system will result in the current service being provided to the user at a higher quality level than the current quality level.

[00:23:47] Speaker 02:
And then it goes on as an example, it says the communication protocols at the end of that paragraph are one of the factors that would be used to determine whether the quality level is higher.

[00:23:57] Speaker 02:
And then if we switch over to column six, as we briefed, we explained how they also talk about access being an aspect of quality level.

[00:24:04] Speaker 02:
So if column six, starting at line eight and going through 30, I'll specifically direct you to line 17.

[00:24:13] Speaker 02:
As another example, such higher quality information

[00:24:16] Speaker 02:
may include information to which the second system has access and to which the first system has no access.

[00:24:22] Speaker 02:
So even access was being used as a consideration for quality level, not just the encoding of the data.

[00:24:31] Speaker 02:
And that's also consistent, I wanna go to the file history because I do think if we go back to the file history, appendix 175.

[00:24:39] Speaker 02:
I believe the court correctly noted here

[00:24:46] Speaker 02:
uh...

[00:24:47] Speaker 02:
that the only discussion about the distinguishing of Jagadeesan is the top paragraph, the full first paragraph of appendix 175.

[00:24:55] Speaker 02:
And if you actually read the paragraph in order of the question rather than just jumping to the portion that appellant tries to rely upon, it's clear that they distinguish Jagadeesan based upon the fact that Jagadeesan was going to a single source.

[00:25:09] Speaker 02:
It was using two links, but it was going only to one server to collect that information.

[00:25:14] Speaker 02:
So it specifically starts with a sentence explaining

[00:25:17] Speaker 02:
the communication links.

[00:25:18] Speaker 02:
The next sentence then says, however, though Jagadee Singh may disclose a mobile station switching between communication links based on link quality, the source of the content transmitted across the communication links remains the same, i.e.

[00:25:30] Speaker 02:
no second system.

[00:25:32] Speaker 02:
And then it goes on and it says indeed and explains that it, confirming basically that it's only looking at one link or one source.

[00:25:40] Speaker 02:
And then the next sentence, this is what I think, it goes back to what is the intent.

[00:25:44] Speaker 02:
They keep on trying to say what was the intent of the applicant versus what was actually argued.

[00:25:48] Speaker 02:
They say that is, comma, in Jagadee's and comma, prior to transmission by either the LAN or the cellular network, the voice data is the same.

[00:25:57] Speaker 02:
Again, talking about a single system versus two systems.

[00:26:01] Speaker 02:
So then they go, as a whole, it just fails to disclose data from another source.

[00:26:06] Speaker 02:
So again, they're arguing about not from another source.

[00:26:08] Speaker 04:
I'm sorry, the that is sentence, it doesn't say the source of the data.

[00:26:12] Speaker 04:
The voice data is the same.

[00:26:13] Speaker 04:
It just says the data is the same.

[00:26:14] Speaker 02:
That is correct.

[00:26:19] Speaker 04:
make the two different sources point?

[00:26:21] Speaker 02:
I do.

[00:26:22] Speaker 02:
I think it does, because it's still maybe not as clear as I'd like, Your Honor.

[00:26:26] Speaker 02:
So maybe there are multiple interpretations, I guess, under the case law here that you get to argue.

[00:26:30] Speaker 02:
But I think when you look at it in the progression that it's being argued by the applicant, I think that within the context of the full paragraph when you read it, it's clear.

[00:26:40] Speaker 02:
at worst ambiguous as to the intent of why did they make all these amendments?

[00:26:45] Speaker 02:
And when Appellant's counsel was asked about, well, what did the examiner say about this, it was only Boyle wordplay language.

[00:26:51] Speaker 02:
It was the standard Boyle wordplay language for the reasons that the applicant gave were granting the claims.

[00:26:56] Speaker 02:
They provided no further clarity, the examiner provided no further clarity as to why granting the claims beyond the limits.

[00:27:03] Speaker 03:
What about the, I'm sorry.

[00:27:05] Speaker 03:
the rest of that sentence, which your friend emphasized, let alone obtaining digital media content at a higher quality level.

[00:27:12] Speaker 03:
Sure.

[00:27:12] Speaker 02:
So I view that as, think about it if you're accused of going 90 in a school zone with your car, right?

[00:27:20] Speaker 02:
If you can say, I wasn't driving a car,

[00:27:23] Speaker 02:
then that ends the discussion, and then they just add in, I wasn't driving a car, let alone I wasn't driving 90, let alone I wasn't in a school zone.

[00:27:30] Speaker 02:
So the fact that they're using that language, that language is only, again, repeating the claim language, and that claim language still, I would point out, still is talking about obtaining, let alone obtaining digital media content at a higher quality level, or suggests delivering the digital media content.

[00:27:47] Speaker 02:
So even here, they're still referring to the actual transmission of the data, not just the underlying content alone.

[00:27:59] Speaker 04:
better than I do.

[00:28:01] Speaker 04:
What in the Joint Appendix supports what I think you said.

[00:28:08] Speaker 04:
That is, this all has to do with finning.

[00:28:11] Speaker 04:
And I'm trying to distinguish two processes that I'm imagining as possible and understand what the record says about which takes place.

[00:28:23] Speaker 04:
The one that Mr. Young suggested, as I understand it, is that

[00:28:28] Speaker 04:
Frames are being deleted at the exit door so that there does not exist at that source, a thin version of the content.

[00:28:43] Speaker 04:
But what you're sending out is of course a shrunken version of that, but it's being shrunk at the exit door.

[00:28:52] Speaker 04:
Use the alternative version, which I think you said the expert testimony supports.

[00:28:58] Speaker 04:
is that at the source there is a process called thinning.

[00:29:02] Speaker 04:
It creates a file, an actual file, maybe a buffer or something, that is thin and then that degraded quality file is set.

[00:29:15] Speaker 04:
You pointed to

[00:29:17] Speaker 04:
I forget what page it was.

[00:29:20] Speaker 02:
Well, to clarify, Your Honor, I think you're correct in the first instance.

[00:29:26] Speaker 02:
It is reducing the frames.

[00:29:29] Speaker 02:
So it's pulling out frames before the transmission.

[00:29:31] Speaker 02:
It is not creating an actual separate file at the source.

[00:29:36] Speaker 04:
That could make a difference for whether or not

[00:29:47] Speaker 04:
findings about thinning are supported in a way that would satisfy the claims even under the other side's construction.

[00:29:58] Speaker 02:
I don't believe so, Your Honor, because if we go back to the language and what the board determined, the question for the claim language is whether the digital media is being delivered, provided, or obtained is reduced before the digital media is placed on the network.

[00:30:13] Speaker 02:
So it's about whether, before it's on the network and on the communication bandwidth is being taken into consideration, whether it's being reduced.

[00:30:20] Speaker 02:
And that's the fact that both parties are in agreement on it, and the experts are in agreement on it.

[00:30:28] Speaker 02:
No further questions.

[00:30:29] Speaker 02:
Thank you, Your Honors.

[00:30:30] Speaker 04:
Thank you.

[00:30:47] Speaker 01:
Thank you, Your Honor.

[00:30:48] Speaker 01:
I'll try to rapid fire through these.

[00:30:51] Speaker 04:
Sometimes that's not helpful.

[00:30:53] Speaker 01:
Thank you, Your Honor.

[00:30:56] Speaker 01:
The first issue is there is no evidence that there is an actual file created at the source that is of lower quality, and then it is then sent.

[00:31:07] Speaker 04:
And the reason for that is just... We're talking about thinning now.

[00:31:09] Speaker 01:
Yes, Your Honor.

[00:31:10] Speaker 00:
Can I ask you a question just to make sure I understand your point?

[00:31:13] Speaker 00:
You're saying, I think, that if it's then you're reduced, it's not before the data is placed on the network, it's as it's placed on the network.

[00:31:22] Speaker 00:
Exactly.

[00:31:22] Speaker 00:
Do I have that right?

[00:31:23] Speaker 01:
Exactly, Your Honor.

[00:31:24] Speaker 01:
And both experts agree.

[00:31:26] Speaker 01:
If you look at appendix 357 and then appendix, that is their expert, and then 870,

[00:31:33] Speaker 01:
That's our expert.

[00:31:35] Speaker 01:
They both agree, and I'll just read a portion.

[00:31:37] Speaker 04:
I don't think you're better off spending your time on the click.

[00:31:40] Speaker 01:
Thank you, Ron.

[00:31:41] Speaker 01:
But there's no evidence.

[00:31:43] Speaker 01:
And it wouldn't make any sense.

[00:31:45] Speaker 01:
You wouldn't create a separate file of a lower quality to then send it up, because the bandwidth can change dynamically.

[00:31:51] Speaker 01:
That's why you thin it as you go.

[00:31:54] Speaker 01:
OK, thank you.

[00:31:55] Speaker 01:
And then they had a point about page 56 of our brief

[00:32:01] Speaker 01:
and we were talking about processing capability.

[00:32:04] Speaker 01:
What that part of the brief talks about is the delivery limitation.

[00:32:07] Speaker 01:
As part of the evaluation step, they'll send information back and forth between the two systems.

[00:32:13] Speaker 01:
In the case of Figure 5, it was the PDA and the

[00:32:17] Speaker 01:
and the computer, and they'll say what kind of processing capability you have.

[00:32:23] Speaker 01:
Because if you have low processing ability at what's being delivered to the user, that device, well then you can obtain the content, but you can't deliver it.

[00:32:32] Speaker 01:
So that's what that's talking about.

[00:32:35] Speaker 01:
It's not talking about the quality level of the media content itself, it's talking about how can we deliver it.

[00:32:39] Speaker 01:
And their expert says, delivery is how it's presented to the user.

[00:32:54] Speaker 01:
And then as Netflix Council was talking about, you know, in talking about Figure 1 and talking about what was discussed in the patent, you'll notice that when it's talking about the network connection information within the patent itself, it's talking about the service as a whole.

[00:33:16] Speaker 01:
We've never taken the position that the digital media service

[00:33:21] Speaker 01:
is has no considerations of bandwidth.

[00:33:24] Speaker 01:
It absolutely does.

[00:33:25] Speaker 01:
It's part of the determining limitations, part of the using limitations.

[00:33:30] Speaker 01:
So the bandwidth relates to the service.

[00:33:31] Speaker 01:
And that goes back to the claim construction issue and how the claims were amended during the prosecution history.

[00:33:37] Speaker 01:
And how you went from a system that was talking about quality levels of the service as a whole, in this case, I'm receiving the voice data.

[00:33:44] Speaker 01:
This is the Jaggedeason reference in the file.

[00:33:46] Speaker 01:
I'm receiving the voice data, but I'm getting it over a bad link, a bad network connection.

[00:33:50] Speaker 01:
It's coming in unclear.

[00:33:52] Speaker 01:
I'm going to switch to a better connection, same voice, but then so the quality of the service is maintained.

[00:34:00] Speaker 01:
And I notice I'm out of time, Ryan.

[00:34:02] Speaker 04:
Thank you.