Sound View Innovations, LLC v. Hulu, LLCNOTICE OF MOTION AND MOTION for Summary Judgment of Non-Infringement of U.S. Patent Nos. 6,708,213, 6,757,796, and 9,462,074 and Memorandum in SupportC.D. Cal.March 5, 2019HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BRETT J. WILLIAMSON (#145235) bwilliamson@omm.com JOHN C. KAPPOS (#171977) jkappos@omm.com CAMERON W. WESTIN (#290999) cwestin@omm.com BO K. MOON (#268481) bmoon@omm.com BRADLEY M. BERG (#300856) bmberg@omm.com O’MELVENY & MYERS LLP 610 Newport Center Drive, 17th Floor Newport Beach, CA 92660 Telephone: (949) 823-6900 Facsimile: (949) 823-6994 Attorneys for Defendant and Counter-Claimant HULU, LLC UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA SOUND VIEW INNOVATIONS, LLC, Plaintiff, v. HULU, LLC, Defendant. Case No. 2:17-cv-04146-JAK-(PLAx) DEFENDANT HULU, LLC’S NOTICE OF MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT OF U.S. PATENT NOS. 6,708,213, 6,757,796, AND 9,462,074 AND MEMORANDUM IN SUPPORT Hon. Judge John A. Kronstadt HULU, LLC, Counter-Claimant, v. SOUND VIEW INNOVATIONS, LLC, Counter-Defendant. Date: April 15, 2019 Time: 8:30 a.m. Courtroom No.: 10B Discovery Cutoff: February 11, 2019 Trial Date: TBD REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 1 of 32 Page ID #:15268 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF SOUND VIEW INNOVATIONS, LLC AND ITS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 15, 2019, at 8:30 a.m., Defendants Hulu, LLC (“Hulu”) will bring for hearing its Motion for Summary Judgment of Non-Infringement of U.S. Patent Nos. 6,708,213, 6,757,796, and 9,462,074 (“the CDN Patents”), before the Honorable John A. Kronstadt, in courtroom 10B at First Street Courthouse, 350 W. First Street, Los Angeles, CA 90012. Hulu moves the Court pursuant to Fed. R. Civ. P. 56 for summary judgment that Hulu does not infringe the CDN Patents. This Motion is based on the attached memorandum of points and authorities, the Declaration of Cameron Westin and accompanying exhibits, the Omnibus Declaration of Dr. Jeffrey S. Chase and supporting exhibits, the Statement of Undisputed Facts (“SOF”), any matters of which this Court may take judicial notice, and such additional evidence or argument as may be presented at or before the hearing on this matter. This Motion is made following a conference of counsel pursuant to Local Rule 7-3 on February 25, 2019. Dated: March 4, 2019 Respectfully submitted, O’MELVENY & MYERS LLP BRETT J. WILLIAMSON JOHN C. KAPPOS CAMERON W. WESTIN BO K. MOON BRADLEY M. BERG By /s/ Brett J. Williamson Attorneys for Defendant and Counter-Claimant HULU, LLC Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 2 of 32 Page ID #:15269 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY TABLE OF CONTENTS Page - i - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION ........................................................................................... 1 II. FACTUAL BACKGROUND ......................................................................... 2 A. The CDN Patents .................................................................................. 2 B. The Accused Services ........................................................................... 5 III. LEGAL STANDARD ..................................................................................... 7 IV. ARGUMENT .................................................................................................. 8 A. None Of Hulu’s Accused Services Infringes Any Claim Requiring An SM Object (All Claims Of The ’213 Patent And ’074 Patent) ........................................................................................... 8 1. The Accused Video Content Does Not Meet The Court’s Construction of “SM Object” ..................................................... 9 a. The Accused Video Content Is Not “A File” ................. 10 b. The Accused Video Content Does Not Have A Regulated Transmission Rate ......................................... 13 2. “SM Objects” Are Not Requested, Serviced, Received, Or Stored ........................................................................................ 14 B. Hulu’s Live TV Does Not Infringe Any Claim Requiring A “Live SM Object” (All Claims Of The ’796 Patent) .......................... 16 1. The Court’s Construction Of “Live SM Broadcast Object” Is Not Met By The Accused Live Video Content .................... 16 a. Hulu’s Accused Live Video Content Is Segmented ....... 16 b. Hulu’s Accused Live Video Content Does Not Have A Regulated Transmission Rate ........................... 18 2. The Accused Helper Servers Do Not “Receive” A Request For Live SM Objects .................................................. 18 Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 3 of 32 Page ID #:15270 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY TABLE OF CONTENTS (continued) Page - ii - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. None Of The Accused Services “Adjust A Data Transfer Rate At A Helper Server” (’213 Patent, Claim 16) ..................................... 18 D. The Accused Services Do Not Meet The Requirements For A “Helper Server,” “Ring Buffer,” “Playout History Buffer” Or “Replacement Of A Portion” .............................................................. 22 E. There Is No Evidence Supporting Doctrine Of Equivalents .............. 24 V. CONCLUSION ............................................................................................. 25 Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 4 of 32 Page ID #:15271 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY TABLE OF AUTHORITIES Page(s) - iii - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASES AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320 (Fed. Cir. 2007) .......................................................................... 25 Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042 (Fed. Cir. 2000) ............................................................................ 8 CAE Screen-plates v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308 (Fed. Cir. 2000) ............................................................................ 7 Celotex v. Catrett, 477 U.S. 317 (1986) ............................................................................................. 7 Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722 (2002) ........................................................................................... 25 Intellectual Sci. & Tech., Inc. v. Sony Elecs., Inc., 589 F.3d 1179 (Fed. Cir. 2009) ............................................................................ 8 Kahn v. Gen. Motors Corp., 135 F.3d 1472 (Fed. Cir. 1998) ............................................................................ 7 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ............................................................................................. 7 Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043 (Fed. Cir. 2001) ............................................................................ 7 Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202 (Fed. Cir. 2001) .......................................................................... 25 SRI Int’l v. Matsushita Elec., 775 F.2d 1107 (Fed. Cir. 1985) ............................................................................ 7 Warner-Jenkinson v. Hilton Davis Chem. Co., 520 U.S. 17 (1997) ............................................................................................... 7 Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 5 of 32 Page ID #:15272 TABLE OF AUTHORITIES (continued) Page(s) - iv - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Zelinski v. Brunswick Corp., 185 F.3d 1311 (Fed. Cir. 1999) ............................................................................ 8 RULES Fed. R. Civ. P. 56(c) .................................................................................................. 7 Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 6 of 32 Page ID #:15273 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendant Hulu, LLC (“Hulu”) seeks summary judgment of non- infringement of U.S. Patent Nos. 6,708,213, 6,757,796, and 9,462,074 (the “CDN Patents”) because it is undisputed that the services accused by Sound View of infringing (the “Accused Services”) do not meet at least one limitation in each asserted claim. The Accused Services involve modern techniques that allow media consumers (called “clients”) to watch live video content (e.g., television broadcasts) and on-demand video, popularly called “streaming.” These services deliver content encoded using two video standards—the HLS and MPEG-DASH protocols—to provide streaming video. The HLS and MPEG-DASH protocols split video content into short “segments,” each 4-6 seconds in length. Clients then use “players” (i.e., software programs run on computers or set-top boxes) to request individual segments from servers (“proxy servers”) located close to the requesting client. Third party content delivery networks (“CDNs”) provide proxy servers. These proxy servers also store copies of the segments they deliver to users to avoid retrieving the same segments in response to multiple requests. In both the HLS and MPEG-DASH protocols, each segment is available in multiple quality levels (“representations”), each encoded at different bit rates, enabling a player to request a higher bit rate (and thus larger) segment when network conditions are good, or a lower bit rate (smaller) segment when network conditions are poor. The CDN Patents, on the other hand, describe an entirely different streaming technique theorized by the inventors at the turn of the century, but never actually adopted by the industry. In fact, the CDN Patents criticized the techniques actually adopted by the industry and used by the Accused Services as “deficient,” purportedly because those methods failed “to consider the logical relationships among the various pieces” of video content. The CDN Patents instead propose using “helper servers” to distribute “streaming media objects” and “live streaming Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 7 of 32 Page ID #:15274 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 2 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 media objects.” These streaming multimedia objects represent multimedia files whose “transmission is regulated” at the helper server. Rather than providing different adaptations in video quality in response to different network conditions, the CDN Patents describe “adjusting a data transfer rate” at the helper server to reduce “latency,” i.e., the delay before the video starts playing. There is no genuine factual dispute as to how the Accused Services operate, and they do not practice the claimed techniques of the CDN Patents. Sound View’s allegations of infringement depend upon an unsupported stretching of the CDN Patents’ outdated and unused techniques to make them somehow read on modern streaming technology. The Court has already rejected this stretching. For example, the Court rejected Sound View’s attempts to construe the claimed “streaming media object” (or “SM object”) and “live SM object” as merely a type of “data,” instead interpreting those terms consistent with the specification to require “a multimedia file” whose “transmission is regulated.” The plain language of the claims requires the helper servers to “adjust a data transfer rate” at a helper server “for transferring data.” Testimony by witnesses from the two third party CDNs implicated by Sound View’s allegations have confirmed that none of Sound View’s techniques were ever adopted by the industry. Because the Accused Services do not practice any of these features, they cannot, as a matter of law, infringe the CDN Patents. Hulu accordingly asks that the Court grant summary judgment that it does not infringe any asserted claim of the CDN Patents. II. FACTUAL BACKGROUND A. The CDN Patents The CDN Patents relate to methods for “enhancing existing caching systems to better support streaming media over the Internet.” Declaration of Cameron Westin, Ex. 311 (“’213 Patent”), Abstract; Ex. 32 (“’796 Patent”), Abstract; Ex. 33 1 All Exhibits refer to exhibits to the Declaration of Cameron Westin, unless otherwise noted. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 8 of 32 Page ID #:15275 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 3 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“’074 Patent”), Abstract; Dkt. 40, First Amended Complaint ¶¶ 91, 132, 162. Specifically, the ’213 Patent purports to utilize helper servers to “implement several methods specifically designed to support streaming media, including proxy caching, client request aggregation …, and data transfer rate control to reduce startup latency.” ’213 Patent at Abstract and 4:57-62. The ’796 Patent purports to extend these techniques to “live broadcast of streaming multimedia.” ’796 Patent at Abstract. The ’074 states that it “enhance[s] existing caches in a network to better support streaming media storage and distribution.” ’074 Patent at Abstract. In streaming systems available at the time of the CDN Patents, such as Real- time Streaming Protocol (RTSP) (which is used in an embodiment of the ’213 Patent), upon receiving a request, a system would continuously transmit the content from the requested beginning until the end, or until the client terminated the stream. Ex. 29 (Richardson Rpt.), ¶¶ 61-63; Ex. 44 (Guo Dep. Tr.), 216:14-222:1; Chase Decl., Ex. A, ¶ 75. These solutions required servers incorporate software to support functions and protocols that are specific to streaming media deliver by continuous transmission of a stream, and go beyond the standard HTTP functions and protocols. See id. The CDN Patents describe each video file as an “SM object” (’213 and ’074 Patents) or a “live SM object” (’796 Patent). The ’213 Patent disparages Web caching techniques that existed at the time as “restricted to support static web objects, … [which] are typically small and as such are always cached in their entirety.” ‘213 Patent at 2:23-25. These existing techniques did “not adequately support streaming multimedia data (i.e., web objects) … like video objects [which] are usually too large to be cached in their entirety.” ’213 Patent at 2:23-27. SM objects were larger than static web objects because, as the Court’s claim construction recognizes, an SM object is “a multimedia data file whose transmission has temporal characteristics such that the data may become useless unless the transmission rate is regulated in accordance with predetermined criteria Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 9 of 32 Page ID #:15276 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 4 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (e.g., audio and video files)”. See Dkt. No. 148, Claim Construction Order at 17. See also ’213 Patent at 4:9-15. All of the CDN Patents describe systems using “helper servers (HS)” that “operate as caching and streaming agents inside the network” in a way that “reduces server and network loads” for distributing these SM objects over the network. ’213 Patent at 2:64-66, 3:6-8. These helper servers, similar to proxy servers described in the background portion of the CDN Patents, are located between the content servers and the clients, as shown in Figure 2, below. However, the helper servers implement specific caching, streaming, and storage techniques. These are the techniques claimed by the CDN Patents. One technique described in the ’213 Patent is “data transfer rate control to reduce start-up latency.” ’213 Patent at 4:57-62; see also id., Abstract and 3:2-5. The ’213 Patent describes using this “data transfer rate control” method to reduce start-up latency by allowing the helper server to initially transfer data to a client “as fast as the [network] bandwidth allows,” but then reducing that data transfer rate to one that is no faster than the rate at which the helper server can fill its own buffer with data “from either its local disk, or another HS, or the content server.” Id. at 8:46-9:13; see also 9:49-51. This avoids emptying the helper server’s buffer and avoids overfilling the client’s buffer. Id. at 9:8-13.2 The ’796 Patent adopts these techniques to streaming “live SM objects,” including through the use of a “pre-configured playout history buffer.” ’796 Patent at 1:62-2:23. These “live SM objects” have similar transmission requirements to SM objects, but, in addition to being “live,” must be “non-segmented.” Dkt. No. 148 at 19 (construing “live SM object” as “a type of live, non-segmented, multimedia data that can be packetized and whose transmission has temporal 2 The ’796 Patent employs a similar rate control method. See, e.g., ’796 Patent at 5:18-20; 8:24-28. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 10 of 32 Page ID #:15277 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 5 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 characteristics such that the data may become useless unless the transmission rate is regulated in accordance with predetermined criteria (e.g., audio and video files)”). The ’074 Patent is directed to techniques used by the helper servers to store the SM objects, which are “divided into multiple chunks.” ’074 Patent at 4:4-10; 6:37-40. The helper server cache memory that stores the SM object “chunks” is “made up of a plurality of contiguous disk block units,” with “each unit being of a fixed size, S.” ’074 Patent at 6:59-7:2. When a content server sends a SM object to a helper server, the SM object is “stored on disk chunk-by-chunk, continuously from the beginning of the SM object.” Id. at 10:48-50. If there is insufficient disk space available, the helper server overwrites chunks on the disk allocated to other SM objects to make space for the chunks of the newly received SM object. Id. at 10:58-11:2. In this way, “newer SM objects replace a set of older SM objects by simultaneously replacing the end portions of the older SM objects, thereby leaving the prefixes of as many SM objects in the cache as possible.” Id. at 11:2-6. B. The Accused Services There is no dispute that the Accused Services, like all modern streaming systems, operate in a fundamentally different manner than the techniques described in the CDN Patents. The Accused Services use standardized formats such as MPEG-DASH and HLS, which split video content into small, independently requested and distributed segments. Ex. 29 ¶¶ 64, 158-59, 212, 253. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 11 of 32 Page ID #:15278 Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 12 of 32 Page ID #:15279 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 7 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See id. III. LEGAL STANDARD Summary judgment is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party has the initial burden of demonstrating the absence of any genuine dispute of material fact. SRI Int’l v. Matsushita Elec. Corp. of Am., 775 F.2d 1107, 1116 (Fed. Cir. 1985). To defeat a well-founded summary judgment motion, the nonmoving party must set forth “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis added). The determination of literal infringement is a two-step analysis. CAE Screenplates v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1316 (Fed. Cir. 2000). First, a court must construe the asserted claim to determine its scope. Id. Second, the Court compares the claim as construed to the accused device. Id. Literal infringement requires the patentee prove the accused device contains each element of the asserted claim. See Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 29 (1997). The absence of even a single claim element from the accused device precludes a finding of literal infringement of that claim and any claim that depends from it. See Kahn v. Gen. Motors Corp., 135 F.3d 1472, 1477-78 (Fed. Cir. 1998). In the context of a motion for summary judgment of noninfringement, “[s]ince the ultimate burden of proving infringement rests with the patentee, an accused infringer …may meet its initial responsibility either by providing evidence that would preclude a finding of infringement, or by showing that the evidence on file fails to establish a material issue of fact essential to the patentee’s case.” Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043, 1046 (Fed. Cir. 2001). Then, “[t]o satisfy the summary judgment standard, a patentee’s expert must set Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 13 of 32 Page ID #:15280 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 8 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 forth the factual foundation for his infringement opinion in sufficient detail for the court to be certain that features of the accused product would support a finding of infringement under the claim construction adopted by the court, with all reasonable inferences drawn in favor of the non-movant.” Intellectual Sci. & Tech., Inc. v. Sony Elecs., Inc., 589 F.3d 1179, 1183 (Fed. Cir. 2009) (affirming summary judgment of noninfringement). “[I]t is well settled that an expert’s unsupported conclusion on the ultimate issue of infringement is insufficient to raise a genuine issue of material fact. A party may not avoid that rule by simply framing the expert's conclusion as an assertion that a particular critical claim limitation is found in the accused device” Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042, 1046 (Fed. Cir. 2000); see also, Zelinski v. Brunswick Corp., 185 F.3d 1311, 1317 (Fed.Cir.1999) (conclusory expert declarations devoid of facts upon which the conclusions were reached do not raise a genuine issue of material fact). Sound View cannot establish that Hulu infringes any claims of the CDN Patents. A comparison of Hulu’s Accused Services and the claims of the CDN Patents demonstrates the complete absence of at least one required limitation of each Asserted Claim from the accused products.3 IV. ARGUMENT A. None Of Hulu’s Accused Services Infringes Any Claim Requiring An SM Object (All Claims Of The ’213 Patent And ’074 Patent) All claims of the ’213 and ’074 Patents require an “SM object.” The Court construed “SM object” to mean “a multimedia data file whose transmission has temporal characteristics such that the data may become useless unless the transmission rate is regulated in accordance with predetermined criteria (e.g., audio and video files).” Dkt. 148 at 17. All of the asserted claims of the ’213 and ’074 Patents require that the helper servers interact with entire “SM Objects”: 3 Hulu does not concede that the Accused Services meet other limitations in the CDN patents, but focuses here only on the limitations where it is clearest that there is no factual dispute. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 14 of 32 Page ID #:15281 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 9 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • ’213 Patent, Claims 1, 7, 8: “servicing a first request received from one of said plurality of clients . . . for one of said plurality of SM objects” and “allocating a second ring buffer to service a further request for said one of said plurality of SM objects received at said one of said plurality of helper servers”; • ’213 Patent Claim 16: “receiving a request for an SM object from one of said plurality of clients at one of said plurality of helper servers”; • ’074 Patent, Claims 3 and 9: “receiving said SM object” and “storing said SM object at said at least one HS if it is determined that there is sufficient disk space available.” The Court’s claim construction is dispositive here. The Accused Services do not infringe the ’213 or ’074 Patents because the helper servers do not receive requests for, service, or store “SM objects.” The video content is not a “file” and does not have a “transmission rate [that] is regulated.” Further, these differences mean that the manner in which video content is requested, serviced, and stored by the Akamai and Level 3 edge servers (the accused “helper servers”) is markedly different than how the asserted claims of the ’213 Patent and ’074 Patent require SM objects to be requested, serviced, and stored. 1. The Accused Video Content Does Not Meet The Court’s Construction of “SM Object” The Court’s construction of “SM object” requires, among other things, that an SM object (i) be a “multimedia data file;” (ii) whose “transmission rate [must be] regulated” or else the “data may become useless.” Dkt. 148 at 17. Sound View’s technical expert, Dr. Richardson, opines that “the on-demand video assets in Hulu’s SVOD Platform” and “live TV assets in Hulu’s Live TV Platform” constitute “multimedia data files” that satisfy the claim limitations for “SM objects.” Ex. 38 ¶ 20. This position is contrary to the Court’s claim construction, as no reasonable fact finder could conclude that these “assets” meet the “file” or Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 15 of 32 Page ID #:15282 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 10 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “transmission rate” requirements of the Court’s construction. a. The Accused Video Content Is Not “A File” The Court’s claim construction recognized this difference, holding: “Indeed the patent disclosure shows that an ‘object’ must be an entire file, not a portion.” Dkt. No. 148 at 16. The “key issue is whether a particular file—whether an entire movie or clip of a portion of it—is manipulated or divided by a content server or helper server prior to the commencement of the requisite steps stated in each of the claims.” Id. at 16-17 (emphasis added). The Court also noted: Taking a media file like a ‘top news story’ and dividing it before applying the steps of the claims would be inconsistent with the disclosure in the patent. As Defendant notes, ‘breaking video objects into smaller pieces and treating each portion of the ‘data’ as an individual ‘SM object’ would go against the purported goals of the invention and other statements in the specification. Id. at 16. As detailed below, that is exactly what happens in the Accused Services. (1) Hulu’s Live Video Content Is Not “A File” Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 16 of 32 Page ID #:15283 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 11 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This segmentation, which takes place before Hulu or its CDNs perform any steps of the claimed method, is precisely what the Court warned would be “inconsistent with the disclosure in the patent.” Dkt. No. 148 at 16. Thus, for HLS and MPEG-DASH formats, a live broadcast is cached and delivered not as an “SM object,” but as a plurality of segments identical to the disclaimed solution in the ’213 Patent. See, e.g., ’213 Patent at 2:31-42. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 17 of 32 Page ID #:15284 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 12 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) Hulu’s SVOD Video Content Is Not “A File” 4 Ex. 29 (Richardson Rpt.), ¶¶ 212, 253; Ex. 39 (Darnault Dep. Tr.), 142:14-143:19, Ex. 30 (Knox Dep. Tr.), 52:10-53:7, 70:24-72:3, 128:13-141:15; Ex. 40 (Newton Dep. Tr.), 55:18-56:3, 80:13-82:19, 196:13-198:17, 215:3-23. 5 See, e.g., Ex. 29 (Richardson Rpt.), ¶¶ 171, 184-85, 252, 253; Ex. 39 (Darnault Dep. Tr.), 144:24-145:13; Ex. 30 (Knox Dep. Tr.), 50:4-51:8, 70:24-72:3; Ex. 40 (Newton Dep. Tr.), 94:9-20. 6 See, e.g., Ex. 39 (Darnault Dep. Tr.), 65:3-65:23; Ex. 40 (Newton Dep. Tr.), 92:17-95:10, 96:19-101:5, 227:11-228:7; Ex. 44 (Guo Dep. Tr.), 216:14-222:4 (HTTP requests serviced independently); Chase Decl., Ex. B., Supplemental Report Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 18 of 32 Page ID #:15285 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 13 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In addition to their segmented nature, MPEG-DASH and HLS encoded data also prohibit edge servers from acting and responding to requests for “SM objects” because of the multiple levels of different-quality “representations” in which they are stored. As discussed above, when streaming a video, a client’s player will make requests for different segments or byte ranges that correspond to different “representations,” depending upon the network conditions. Ex. 29 (Richardson Rpt.), ¶¶ 64, 167, 185, 220, 230, 354-356, 413-414. Accordingly, it is undisputed that Akamai and Level 3’s edge servers cannot and do not receive requests for, or deliver, “a multimedia data file” as required by the Court’s construction, at least because the multimedia content is stored as a plurality of files for the program’s different tracks and representations. See, e.g., Ex. 29 (Richardson Rpt.), ¶¶ 159, 165-167; Ex. 41 (Ex. 3 to Richardson Rpt. (Ex. 29)) (illustrating that each representation is stored as a distinct file named by a URL in the manifest); Chase Decl. Ex. A, ¶ 86, Ex. B, ¶¶ 45, 106-08, 168. b. The Accused Video Content Does Not Have A Regulated Transmission Rate The Court’s construction of “SM object” further requires that its “transmission has temporal characteristics such that the data may become useless unless the transmission rate is regulated.” Dkt. 148 at 17. As described in the asserted patents, a helper server’s ability to regulate the transmission rate is essential to stream caching with the type of “sliding window” buffers described by the ’213 Patent. Chase Decl., Ex. A. Rebuttal Non-Infringement Report, ¶¶ 89-90; Ex. B, Supplemental Rpt., ¶¶ 46, 111-113. ¶¶ 45, 168. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 19 of 32 Page ID #:15286 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 14 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Far from becoming “useless” if its transmission rate is not regulated, it is undisputed that Hulu’s video content does not require its transmission rate to be “regulated” at all. 2. “SM Objects” Are Not Requested, Serviced, Received, Or Stored The difference between the claimed “SM objects” and Hulu’s MPEG-DASH and HLS segmented data means that further elements of the ’213 and ’074 Patents’ asserted claims are also not met by the Accused Services. As discussed above, each asserted independent claim requires a specific way of handling an SM object not performed by the Accused Services. For example, Claim 1 of the ’213 Patent requires “servicing a first request …for one of said plurality of SM objects” (emphasis added). Claim 16 of the ’213 Patent requires “receiving a request for an SM object …at one of said plurality of helper servers” (emphasis added). Claims 3 and 9 of the ’074 Patent require the steps of “receiving said SM object,” and “storing said SM object” (emphasis added). It is no surprise that these claimed steps are absent. The streaming concept of the CDN Patents is fundamentally different from the streaming techniques actually adopted and implemented by the industry. The CDN Patents’ claims were 7 Ex. 30 (Knox Dep. Tr.), 123:7-11, 131:6-13, 143:6-19, 152:14-22, 260:7-263:10; Ex. 40 (Newton Dep. Tr.), 69:8-70:17; 103:17-112:3, 158:19-159:2, 233:12-234:25; Ex. 39 (Darnault Dep. Tr.), 268:15-269:6. 8 Ex. 30 (Knox Dep. Tr.), 151:6-152:7; 263:1-10; Ex. 40 (Newton Dep. Tr.), at 69:8-70:17, 106:1-108:10; Chase Decl. Ex. A, ¶¶ 103, 200, Ex. B, ¶¶ 43-44. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 20 of 32 Page ID #:15287 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 15 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 written to cover servicing a single request from a client to a helper server to set up a continuous data stream, in order to avoid the “deficient” solution where “caching systems will treat different chunks from the same video object independently, while it might be desirable to consider the logical relationship among the various pieces.” ’213 Patent at 2:31-36. Yet even Sound View’s expert concedes that modern streaming techniques such as MPEG-DASH and HLS involve “[e]very few seconds, the client requests from the server a segment containing one of the available audio / video representations indicated in the manifest.” Ex. 29 (Richardson Rpt.), ¶ 64. Thus, it is undisputed that the Akamai and Level 3 edge servers do not “receive an SM object”, “receive a request for an SM object,” or “service a request” for an SM object. The inventors of the CDN Patents believed existing systems to be “deficient.” History proved them wrong, and their alternative “solution” was never adopted by the industry. The Accused Services do not deal in “SM objects,” but in the independent chunks that the Court’s construction of that term excludes. Because all of the asserted claims of the ’213 and ’074 Patents require receiving, 9 See, e.g., id., ¶ 253, Ex. 39 (Darnault Dep. Tr.), 142:14-143:19, Ex. 30 (Knox Dep. Tr.), 52:10-53:7, 70:24-72:3, 128:13-141:15, Ex. 40 (Newton Dep. Tr.), 55:18-56:3, 80:13-82:19, 196:13-198:17, 215:3-23. 10 Ex. 29 (Richardson Rpt.), ¶¶ 355, 413; Ex. 30 (Knox Dep. Tr.), 52:10-17, 137:22- 142:16, 151:9-152:22; Ex. 40, (Newton Dep. Tr.), 92:17-95:10, 200:11-23, 227:11- 228:7; Ex. 44 (Guo Dep. Tr.), 216:14-222:4. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 21 of 32 Page ID #:15288 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 16 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 servicing, and/or storing “SM objects,” summary judgment of no infringement for these three patents is appropriate here. B. Hulu’s Live TV Does Not Infringe Any Claim Requiring A “Live SM Object” (All Claims Of The ’796 Patent) 1. The Court’s Construction Of “Live SM Broadcast Object” Is Not Met By The Accused Live Video Content Over Sound View’s objection, the Court construed “live SM object” as requiring “live, non-segmented, multimedia data” (emphasis added). Dkt. No. 148 at 19. Bizarrely, Sound View now accuses the same segmented Hulu Live TV content of being “non-segmented” data. It is undisputed that Hulu’s Live TV services utilize segmented media programs, and thus cannot infringe the claims of the ’796 Patent, all of which require a “live SM object.” Accordingly, the Court’s construction is dispositive. a. Hulu’s Accused Live Video Content Is Segmented In its Claim Construction Order, the Court held that during prosecution of the ’796 Patent, the applicants made an “unambiguous” and “clear disavowal of claim scope” that “that live SM broadcast objects can not be segmented.” Dkt. No. 148 at 18. Accordingly, the Court construed “live SM broadcast object” as “a type of live, non-segmented, multimedia data that can be packetized and whose transmission has temporal characteristics such that the data may become useless unless the transmission rate is regulated in accordance with predetermined criteria (e.g., audio and video files).” Id. at 19. 11 Hulu does not, and is not accused of, transmitting its Hulu Live platform over Level 3’s edge server. Ex. 29 (Richardson Rpt.), ¶ 214. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 22 of 32 Page ID #:15289 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 17 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 That a “live SM object,” as that term is used in the claims of the ’796 Patent, can have data that “can be packetized” (Dkt. No. 148 at 19) does not mean that it can be segmented. Indeed, all data transmitted over a packet-switched network (e.g., the Internet) is sent as packets and therefore “can be packetized.” Chase Decl., Ex. B, Supplemental Rpt., ¶ 63-64. Sound View raised this point in claim construction, while conceding that packetized information was not segmented data. See Ex. 45 (Claim Construction Hearing Tr.), 22:16-23:9. By adding the “packetized” language to the construction of “live SM object,” the Court allowed that “live” data “can[] be transmitted or stored in smaller increments.” Dkt. No. 148 at 18. However, the Court explicitly rejected any argument that applicants “did not disclaim any sort of segmenting.” Id. Sound View cannot now rely on the obvious acknowledgement that all data sent over the Internet is packetized to eviscerate the Court’s construction and holding that it had disavowed segmented data. There is no genuine dispute that the content of Hulu’s Live TV service is segmented, and thus there is no genuine dispute that Hulu does not infringe any asserted claim of the ’796 Patent. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 23 of 32 Page ID #:15290 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 18 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Hulu’s Accused Live Video Content Does Not Have A Regulated Transmission Rate Like the Court’s construction for “SM object” for the ’213 and ’074 Patents, its construction of “live SM object” for the ’796 Patent requires that its “transmission has temporal characteristics such that the data may become useless unless the transmission rate is regulated.” For the same reasons described in Section IV.A.1.b, this requirement is not met by the Accused Services. 2. The Accused Helper Servers Do Not “Receive” A Request For Live SM Objects As the ’213 Patent requires for “SM objects,” so too the ’796 Patent requires “receiving a first request from one of said plurality of clients for one of said plurality of live SM broadcast objects at one of said plurality of HSs.” This requirement is not met for the same reasons that the equivalent requirement of the ’213 Patent is not met, as described above in Section IV.A.2. C. None Of The Accused Services “Adjust A Data Transfer Rate At A Helper Server” (’213 Patent, Claim 16) As an additional and entirely independent ground for non-infringement as a matter of law, Claim 16 of the ’213 Patent requires “adjusting a data transfer rate at said one of said plurality of HSs for transferring data from said one of said plurality of helper servers to said one of said plurality of clients.” Sound View does not identify any actual adjustment of a data transfer rate by any of the Accused Services. Instead, it accuses what even the ’213 Patent’s inventor testified is a “completely different orthogonal concept,” the ability of MPEG-DASH and HLS to switch between multiple different representations in transmitting each segment of a video. Ex. 44 (Guo Dep. Tr.), 233:17-25; Chase Decl. Ex. A, ¶¶ 135-140, Ex. B, ¶¶ 132-133, 136-138. Sound View’s expert, Dr. Richardson, refers to this ability in MPEG-DASH and HLS as “adaptive bitrate streaming” (ABR). Ex. 29, ¶¶ 354, 412, 414. There is Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 24 of 32 Page ID #:15291 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 19 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no dispute as to how ABR works in the Accused Services: HTTP Adaptive Streaming provides multimedia content such as video in multiple ‘representations’, each of which is a version of the content in a different quality level and/or resolution…. Video content is split into small segments each containing a few seconds of playable video…. The client decides which representation to download based at least in part on the estimated delivery rate from the server. Id. ¶ 64. Providing different quality levels and/or resolutions is one type of technique known as “quality adaptation.” Chase Decl. Ex. A, (Rebuttal Rpt., ¶¶ 136-137), Ex. B, (Supplemental Rpt.), ¶¶ 123; Ex. 44 (Guo Dep. Tr.), 233:17-237:24, 272:25- 273:2. See also Ex. 29 (Richardson Rpt.) ¶ 64 and Ex. 38 (Richardson Supp. Rpt.) ¶ 74. There is no dispute that quality adaptation schemes like ABR are a fundamentally different technology than “adjusting a data transfer rate.” The inventor of the ’213 Patent, Adjusting a data transfer rate, on the other hand, is actually changing the rate at which data is sent to the client (i.e., to fill up a client’s buffer as quickly as possible). Id.12 During prosecution of the ’796 Patent, the applicants (including one of the same inventors on the ’213 Patent) made the same distinction with respect to a similar limitation in that patent: In contrast to Applicant’s method, Rejaie does not disclose or suggest any change in the data rate for servicing clients. Rather, Rejaie 12 Dr. Guo acknowledged that although the two concepts are completely separate and orthogonal, it is confusing because of the similar language used to describe them. Ex. 44, Guo Dep. Tr. at 237:22-24. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 25 of 32 Page ID #:15292 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 20 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discloses a quality adaptation scheme to smooth out variations in the quality of a cached stream during subsequent play backs such that the quality of a cached stream is proportional to its popularity …. It is well known that a quality adaptation scheme does not involve changes in the data rate. Ex. 42 at SVI-HULU000001691 (emphasis added). No reasonable juror could conclude that adaptive bit rate streaming includes “adjusting a data transfer rate,” as required by Claim 16 of the ’213 Patent. Indeed, as the inventors of the patents have noted, these are entirely different concepts. “Data transfer rate,” on the other hand, is described by the ’213 Patent as “the rate at which data streams are transmitted between clients, HSs and content servers in the network.” ’213 Patent at 8:5-8. In other words, the data transfer rate is the amount of data transmitted divided by the actual time it takes to transmit that data. See e.g., ’213 Patent at 8:15-16, 8:34-36 (data transfer rate measured in bytes/second). Changing the bitrate of the representation that is requested changes only the size of the segment—it does not change the transfer rate of the segment. Ex. 29 (Richardson Rpt. ¶¶ 64, 354-356, 413-414); Chase Decl. Ex. A, ¶ 135, Ex. B, ¶ 135. 13 The parties agree that this is how ABR streaming works—by making each video and broadcast available in multiple quality levels (e.g., ranging from standard definition to high or even ultrahigh definition) called “representations,” each encoded at a different bitrate. Ex. 29 (Richardson Rpt.) ¶¶ 64, 75. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 26 of 32 Page ID #:15293 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 21 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11, 131:6-13, 143:6-19, 152:14-22, 260:7-263:10; Ex. 40 (Newton Dep. Tr. (Vol. 1)), 69:8-70:17; 103:17-112:3, 158:19-159:2, 233:12-234:25; Ex. 39 (Darnault Dep. Tr.), 268:15-269:6. Second, while Claim 16 requires “adjusting a data transfer rate adjusting a data transfer rate at said one of said plurality of HSs,” ABR performs no such adjustment. Instead, the client requests different representations in response to changing network conditions, i.e., the rate at which data can be transferred. Ex. 29 (Richardson Rpt.) ¶¶ 64, 354-56, 413-14; Chase Decl. Ex. A, ¶¶ 138, 140 Ex. B, ¶ 137. It does not adjust that rate. In other words, with ABR the client player adjusts the requested playback bitrate according to the observed transfer rate of the network, and not the other way around. Sound View’s expert acknowledges this fact in both his opening and supplementary reports. See, e.g., Ex. 29 at ¶ 64, Ex. 38 at ¶ 69. See also Chase Decl. Ex. A, ¶¶ 138, 140, Ex. B, ¶ 137. Third, adjusting the bitrate of transmitted content, as in ABR, is not “[a] method of reducing latency,” as recited in the Claim 16. The ’213 Patent describes latency as “delays between the time video content is requested by a client and the time when the video content actually begins playing.” ’213 Patent at 1:66-2:1 (emphasis added). By definition, the “adjustment” in ABR involves a client selecting a segment from a representation with a different bit rate than the previous segment. Chase Sup. Rpt. at ¶ 139. Sound View itself acknowledged that reducing latency is a limitation requirement. In responding to an IPR petition on the ’213 Patent, Sound View argued, “‘adjusting a data transfer rate’ does not, and cannot, mean randomly changing the data transfer rate with no purpose. It is performed in furtherance of ‘reducing latency.’” ¶ 13, Ex. 43, IPR2018-01023 POPR at 45 (emphasis added). See also, id., 46 (“‘reducing latency’ is a central aspect of [claim 16’s] rate control method, and a fundamental characteristic of the invention.”). In other words, the applicants disclaimed adjustments to a data transfer rate that, like ABR, are not Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 27 of 32 Page ID #:15294 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 22 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 done “in furtherance of reducing latency.” The ’213 Patent describes a single technique for adjusting a data transfer rate (not a bit rate) in order to reduce latency. See ’213 Patent at 8:1-10:4. There is no dispute that this technique is not used by the Accused Services. D. The Accused Services Do Not Meet The Requirements For A “Helper Server,” “Ring Buffer,” “Playout History Buffer” Or “Replacement Of A Portion” In addition to the arguments outlined above, Hulu does not concede that the Accused Services meet any of the limitations of the CDN Patents. Although Hulu has focused on limitations that apply across a large number of claims and patents, other independent grounds justify a finding that the CDN Patents are not infringed as a matter of law. In particular, the Court should find as a matter of law that the Accused Services do not meet the requirements of a “helper server,” “ring buffer,” “playout history buffer” or the limitations for the replacement of a portion of the SM object, as outlined briefly below. • “helper server” (all asserted CDN Patent Claims): The Court’s Claim Construction order requires that “helper servers” “communicate SM objects (or segments of such objects) between and among each other and between content servers and clients.” Dkt. 148 at 14. As the objects communicated are streaming multimedia objects, whose transmission rate is regulated, as discussed above in Section IV.A.1, the helper servers must communicate these objects through “streaming,” which includes understanding the temporal characteristics of the SM objects being communicated. The ’213 Patent, for example, explains: “HSs understand an object’s transmission requirements.” ’213 Patent at 4:16-24 (emphasis added). Helper servers capable of streaming is, in fact, what differentiates the claimed methods from the prior art: “By using helper servers (HS), also referred to as helpers, which operate as caching and streaming agents inside the network, existing caching techniques are enhanced Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 28 of 32 Page ID #:15295 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 23 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to better support streaming media over the Internet.” Id. at 2:64-67 (emphasis added). • “ring buffer” and “playout history buffer” (’213 Patent claims 1, 7, 8; ’796 Patent claims 1, 2, 13, 27, 29): As the Court’s constructions make clear, both playout history buffers and ring buffers (collectively “sliding window buffers”) refer to essentially the same structure. Both act as short-term storage that can serve requests for the same object received within a certain fixed time interval, and both operate as a moving window in the sense that they advance with the object. See, Dkt. No. 148 at 19-25.15 Moreover, Sound View’s own expert accuses the same services as utilizing both “ring buffers” and “playout history buffers,” and maps them to the same structure within the Akamai edge server. See, e.g., Ex. 38, ¶¶ 46, 58. 14 Ex. 30, 123:7-11, 131:6-13, 143:6-19; 151:6-152:22; 260:7-10; Ex. 40, 69:8- 70:17, 103:17-112:3, 158:19-159:2, 233:12-234:25; Ex. 39 at 268:15-269:6. 15 It is evident from the Court’s Claim Construction Order and from the ’796 Patent that the requirements that the buffer be “manually configured and permanently maintained in memory” apply only to pre-configured playout history buffers, while other elements of the construction apply to both “pre-configured” and “non pre- configured playout history buffers.” Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 29 of 32 Page ID #:15296 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 24 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 • Replacement/deletion of a portion of an SM object (’074 Patent claims 3 and 9): Moreover, storing such segments cannot meet the requirement of “storing said SM object at said [at least one] HS,” as discussed above in Section IV.A.2. E. There Is No Evidence Supporting Doctrine Of Equivalents When a defendant establishes its entitlement to summary judgment of no 16 Ex. 29 (Richardson Rpt.) ¶ 222-23, 233-34; Ex. 30 (Knox Dep. Tr.), 52:10-17; 137:22-142:16, 151:9-152:22. 17 See Ex. 30 (Knox Dep. Tr.), 178:10-185:18, 255:13-257:18, Ex. 40 (Newton Dep. Tr.), 112:5-121:6, 157:8-158:18; Chase Decl. Ex. A, ¶¶ 263-264. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 30 of 32 Page ID #:15297 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 25 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 literal infringement, plaintiff then has the burden of producing “particularized testimony and linking argument on a limitation-by-limitation basis that create[s] a genuine issue of material fact as to equivalents.” AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320, 1328-29 (Fed. Cir. 2007) (affirming grant of summary judgment of noninfringement). See also, Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1210 (Fed. Cir. 2001) (“The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent.”) (citation omitted). Moreover, “a patentee’s decision to narrow his claims through amendment may be presumed to be a general disclaimer of the territory between the original claim and the amended claim.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd., 535 U.S. 722, 740 (2002). The patentee “bear[s] the burden of showing that the amendment does not surrender the particular equivalent in question.” Id. Although Sound View made conclusory allegations that Hulu infringes under the doctrine of equivalents, Sound View provided no evidence in support of these allegations in either its infringement contentions or in its expert reports. Accordingly, Sound View has failed to produce “particularized testimony and linking argument on a limitation-by-limitation basis that create[s] a genuine issue of material fact as to equivalents.” AquaTex Indus., Inc., 479 F.3d at 1328-29. Moreover, for many relevant limitations, such as “live SM object,” the applicant surrendered potential equivalents through claim amendments made for reasons related to patentability. See Festo Corp., 535 U.S. at 740. Accordingly, no genuine issue of material fact exists to demonstrate infringement of the CDN Patents under the doctrine of equivalents. V. CONCLUSION For all the reasons stated herein, Hulu respectfully requests that the Court grant summary judgment of non-infringement for each claim of the Patents-in-Suit. Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 31 of 32 Page ID #:15298 HIGHLY CONFIDENTIAL - ATTORNEY’S EYES ONLY - 26 - HULU LLC’S MSJ OF NON-INFRINGEMENT OF ’213, ’796, AND ’074 PATENTS CASE NO. LA CV17-04146 JAK (PLAx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: March 4, 2019 O’MELVENY & MYERS LLP BRETT J. WILLIAMSON JOHN C. KAPPOS CAMERON W. WESTIN BO K. MOON BRADLEY M. BERG By: /s/ Brett J. Williamson Brett J. Williamson Attorneys for Defendant and Counterclaim-Sound View HULU, LLC Case 2:17-cv-04146-JAK-PLA Document 268 Filed 03/05/19 Page 32 of 32 Page ID #:15299