Sound View Innovations, LLC v. Hulu, LLC

NOTICE OF MOTION AND MOTION for Partial Summary Judgment of Invalidity and Noninfringement of U.S. Patent No. 5,806,062 and Memorandum in Support

C.D. Cal.March 5, 2019

HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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’S NOTICE OF MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 1 of 28 Page ID #:15322 HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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., Defendant Hulu, LLC (“Hulu”) will bring for hearing its Motions for Partial Summary Judgment of Invalidity and Noninfringement of U.S. Patent No. 5,806,062 (the “’062 Patent”), before the Honorable John A. Kronstadt, in courtroom 10B at First Street Courthouse, 350 W. First Street, Los Angeles, CA 90012. Hulu, by and through their undersigned counsel, hereby moves this Court pursuant to Fed. R. Civ. P. 56 for partial summary judgment that the ’062 Patent’s asserted Claim 14 is invalid under 35 U.S.C. § 101 and, to the extent the Court finds the ’062 Patent not invalid, moves for partial summary judgment that Hulu does not infringe asserted Claim 14, the only asserted claim, of the ’062 Patent. This Motion is based on the attached memorandum of points and authorities, the Omnibus Declaration Of Cameron Westin and accompanying exhibits, the Declaration Of Mark E. Crovella, 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 269 Filed 03/05/19 Page 2 of 28 Page ID #:15323 TABLE OF CONTENTS Page - i - HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-CV-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. THE ’062 PATENT ......................................................................................... 2 III. THE ’062 PATENT IS DIRECTED TO UNPATENTABLE SUBJECT MATTER UNDER 35 U.S.C. § 101 ............................................. 3 A. Legal Standard On Summary Judgment Of Patent Eligibility Under 35 U.S.C. § 101 .......................................................................... 3 B. Hulu’s Prior Motion To Dismiss And The Court’s Findings ............... 5 C. The Court’s Claim Construction Resolved Any Alleged Factual Disputes Regarding Patent Eligibility Of The ’062 Patent ................... 6 D. Alice Step 1 - Claim 14 Is Directed To A Patent Ineligible Abstract Idea Of Combining Two Operators ........................................ 7 E. Alice Step 2 - Claim 14 Does Not Recite An “Inventive Concept” Beyond the Abstract Idea .................................................... 10 IV. HULU DOES NOT INFRINGE CLAIM 14 OF THE ’062 PATENT ......... 12 A. Legal Standard On Summary Judgment Of Noninfringement ........... 12 B. The Accused Technology ................................................................... 13 1. Webpages And Their DOM Representations ........................... 14 2. Hyperlinks ................................................................................. 15 3. Images In Webpages ................................................................. 16 C. Hulu Does Not Infringe Because The Accused DOM Does Not Qualify As The Claimed “Virtual Database” ..................................... 17 1. Links To Another Document Create A Node In DOM That Refers To Documents Outside The DOM Itself .............. 19 2. An Image Referenced By A Webpage And Its DOM Representation Is Not Part Of The DOM Itself ........................ 20 D. There Is No Evidence Of Infringement Under The Doctrine Of Equivalents .......................................................................................... 20 V. CONCLUSION ............................................................................................. 21 Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 3 of 28 Page ID #:15324 TABLE OF AUTHORITIES Page(s) - ii - HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 Alice Corp. Pty. v. CLS Bank Int'l, 573 U.S. 208, 134 S. Ct. 2347, 189 L. Ed. 2d 296 (2014) ................................ 3, 4 AquaTex Indus., Inc. v. Techniche Solutions, 479 F.3d 1320 (Fed. Cir. 2007) ........................................................................... 20 Arrhythmia Research Tech., Inc. v. Corazonix Corp., 958 F.2d 1053 (Fed.Cir.1992) ............................................................................... 3 Arthur A. Collins, Inc. v. N. Telecom Ltd., 216 F.3d 1042 (Fed. Cir. 2000) ........................................................................... 13 CAE Screenplates v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308 (Fed. Cir. 2000) ........................................................................... 12 Celotex v. Catrett, 477 U.S. 317 (1986) .............................................................................................. 3 Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343 (Fed. Cir. 2014) ............................................................. 4, 5, 10, 11 Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016) ............................................................................. 5 Intellectual Sci. & Tech., Inc. v. Sony Elecs., Inc., 589 F.3d 1179 (Fed. Cir. 2009) ........................................................................... 13 Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332 (Fed. Cir. 2017) ................................................................. 5, 10, 11 K.H.S. Musical Instrument Co. v. Ultimate Support Sys., Inc., No. LACV1102455JAKEX, 2013 WL 12244318 (C.D. Cal. Mar. 4, 2013) .................................................................................................................... 21 Kahn v. Gen. Motors, 135 F.3d 1472 (Fed. Cir. 1998) ........................................................................... 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .............................................................................................. 3 Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 4 of 28 Page ID #:15325 TABLE OF AUTHORITIES (continued) Page(s) -iii- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 Maxell, Ltd. v. Fandango Media, LLC, No. CV 17-07534 AG (SSX), 2018 WL 4502492 (C.D. Cal. Sept. 11, 2018) .............................................................................................................. 12 Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289 (2012) .......................................................................................... 4 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) ............................................................................. 4 Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314 (Fed. Cir. 2016) ......................................................................... 3, 5 Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043 (Fed. Cir. 2001) ........................................................................... 13 Prod. Ass'n Techs. LLC v. Clique Media Grp., No. CV 17-05463-GW (PJWX), 2017 WL 5664986 (C.D. Cal. Oct. 12, 2017), aff'd sub nom. Prod. Ass'n Techs. LLC v. Clique Brands Inc., 738 F. App'x 1021 (Fed. Cir. 2018) ........................................................ 9, 10 Return Mail, Inc. v. United States Postal Serv., 868 F.3d 1350 (Fed. Cir. 2017) ............................................................................. 8 Sage Products Inc. v Devon Industries Inc., 126 F.3d 1420 (Fed. Cir. 1997) ........................................................................... 21 SAP America, Inc. v. Investipic, LLC, 898 F.3d 1161 (Fed. Cir. 2018) ..................................................................... 11, 12 Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202 (Fed. Cir. 2001) ........................................................................... 20 SRI Int’l v. Matsushita Elec., 775 F.2d 1107 (Fed. Cir. 1985) ............................................................................. 3 Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138 (Fed. Cir. 2016) ........................................................................... 11 Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014) ............................................................................... 4 Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 5 of 28 Page ID #:15326 TABLE OF AUTHORITIES (continued) Page(s) -iv- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 Warner-Jenkinson v. Hilton Davis Chem. Co., 520 U.S. 17 (1997) .............................................................................................. 12 Zelinski v. Brunswick Corp., 185 F.3d 1311 (Fed.Cir.1999) ............................................................................. 13 Other Authorities Addison Wesley Longman, 2 - A History of HTML (1998) https://www.w3.org/People/Raggett/book4/ch02.html. ...................................... 16 W3shools - HTML Images, https://www.w3schools.com/html/html_images.asp ........................................... 19 Rules Fed. R. Civ. P. 56(c) ................................................................................................... 3 Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 6 of 28 Page ID #:15327 - 1 - HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 Earlier in this case, Hulu moved to dismiss Count I of Sound View’s First Amended Complaint on the ground that U.S. Patent No. 5,806,062 (the “’062 Patent”) claims unpatentable subject matter under 35 U.S.C. § 101. The Court reserved judgment on that motion at the time, because Sound View—at the time— disputed the scope of some of the terms in the asserted claims. The scope of Claim 14—the only asserted claim—is now resolved by the Court’s claim construction order. The ’062 Patent Claim 14 is directed to the simplistic and abstract idea of combining multiple sets of software instructions that all operate on the same format of data. Claim 14 does not require any “reusable interoperable software operators” as Sound View previously argued. Dkt. No. 43 at 2. The ’062 Patent itself admits that individual elements of Claim 14 existed in the prior art. “Software operators” and “virtual database[s]” were known. See Westin Decl. Ex. 46 (“’062 Patent”) at 1:36-40 (describing a software operator in prior art systems); 7:47-53 (describing types of known virtual databases that “may be used in conjunction with the present invention”). Thus, there is nothing inventive that transforms the abstract idea into a patent eligible application. Should the Court find Claim 14 to be not invalid under 35 U.S.C. § 101, the Court should grant Hulu summary judgment on Sound View’s claim for infringement of the ’062 Patent because no factfinder could reasonable conclude that Hulu’s accused websites infringe Claim 14. Claim 14 requires the “software operators” to be used on “virtual databases,” which require that “a record referred to in a field in the virtual database is itself contained in the virtual database.” Dkt. No. 148 at 26 (Court construing “virtual database on September 5, 2018) (emphasis added). Hulu’s accused webpages do not infringe Claim 14 because the internal representation of Hulu’s webpages—which Sound View alleges to be the “virtual database” of Claim 14—refer to records (such as website elements, images, and Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 7 of 28 Page ID #:15328 -2- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 files) that are outside the webpage itself. The fact that webpages refer to records outside the page itself is what makes the Internet what it is today. A reader can select a link in a webpage (such as a Google search page) and immediately jump to another webpage (to which the link refers). Because the internal representation of Hulu’s webpages is not a “virtual database” as properly construed by the Court, Hulu’s accused webpages cannot infringe Claim 14. II. THE ’062 PATENT The ’062 Patent, now expired, purports to “creat[e] data analysis applications using reusable software operators.” ’062 Patent, Abstract. The ’062 Patent states, “in existing repository analysis systems, the operators are generally designed for a single application…. Thus, when a new application is desired, a new operator must be designed from scratch.” Yet, the ’062 Patent does not provide a solution to this so-called problem. It states only that “data analysis applications” can be created using two or more known software operators “in various ways.” Id. at 2:8-10. The ’062 Patent then dubs the two combined operators a “customizable data analysis application.” Id. at 2:18-19. Claim 14—the only claim of the ’062 Patent now asserted in this litigation—recites using two or more operators on what it calls a “virtual database” to create a larger “application”: A method for processing information comprising the steps of: providing a plurality of software operators each configured to receive a virtual database having a first schema, for processing information contained in said virtual database, and for outputting a virtual database having said first schema; and combining at least two of said software operators to create an application. ’062 Patent, Claim 14. In Claim 14, a “software operator” means any “software that extracts or converts information from a repository.” Dkt. No. 148 at 6. The ’062 Patent itself admits that the “virtual database” recited in Claim 14 is not new, explaining that various database formats known at the time of the alleged invention can be used as Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 8 of 28 Page ID #:15329 -3- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 “virtual databases.” ’062 Patent, 7:46-53. Claim 14 does not require any particular type of “schema” for the “virtual database.” It only requires that two or more “software operators” are applied to a “virtual database.” Id. at Claim 14. III. THE ’062 PATENT IS DIRECTED TO UNPATENTABLE SUBJECT MATTER UNDER 35 U.S.C. § 101 A. Legal Standard On Summary Judgment Of Patent Eligibility Under 35 U.S.C. § 101 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). Summary judgment is an appropriate vehicle for resolving issues of patent eligibility under 35 U.S.C. § 101. See Alice Corp. Pty. v. CLS Bank Int'l, 573 U.S. 208, 214, 134 S. Ct. 2347, 2353, 189 L. Ed. 2d 296 (2014) (affirming district court’s grant of summary judgment finding invalidity under Section 101). “Whether a claim is directed to statutory subject matter is a question of law.” Arrhythmia Research Tech., Inc. v. Corazonix Corp., 958 F.2d 1053, 1055–56 (Fed.Cir.1992). Although “[t]he § 101 inquiry may contain underlying factual issues…it is also possible, as numerous cases have recognized, that a § 101 analysis may sometimes be undertaken without resolving fact issues.” Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016) (emphasis original) (citations omitted). In such circumstances, the § 101 inquiry may appropriately be resolved on a motion for summary judgment. Id. The Supreme Court in Alice Corp. Pty. Ltd. v. CLS Bank Int'l, 134 S. Ct. Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 9 of 28 Page ID #:15330 -4- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 2347 (2014), established a two-step test for deciding subject matter eligibility of claims under 35 U.S.C. § 101. First, the court must determine whether the claims are drawn to one of three patent-ineligible exceptions—laws of nature, natural phenomena, and abstract ideas. Id. at 2355. In determining whether a claim is directed to unpatentable abstract ideas, courts look to whether the claim recites a mental process. For this analysis, the relevant inquiry is not whether a human could personally perform the claimed function. See Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Instead, courts look to whether the claims in the patent focus on a specific means for achieving the claimed function, or are instead directed to a result or effect that itself is the abstract idea and merely invokes generic processes and machinery. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016). Second, if the claim is directed to an abstract idea, the court must look to “the elements of the claim both individually and as an ‘ordered combination’” to see if there is an “‘inventive concept’—i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.’” Id. “[T]he prohibition against patenting abstract ideas cannot be circumvented by attempting to limit the use of [the idea] to a particular technological environment.” Id. at 1312. In particular, the inventive concept must involve more than performing the abstract idea using “generic computer implementation.” Alice, 134 S. Ct. at 2352. “Those ‘additional features’ must be more than ‘well-understood, routine, conventional activity.’” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1298 (2012)). Under Federal Circuit law, combining two or more different pieces of standard computer technology is not sufficient to render a claim patentable. See, e.g., Content Extraction, 776 F. 3d at 1347-48. Examples of claims directed to computer functionality found patent ineligible include: Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 10 of 28 Page ID #:15331 -5- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 • Claims to “receiving . . . data” from power system data sources, “detecting and analyzing events” from the received data, and “displaying the event analysis results” are ineligible because the claims “do not require any nonconventional computer, network, or display components, or even a ‘non-conventional and non-generic arrangement of known, conventional pieces.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016); • Claims to the abstract idea of “collecting, displaying, and manipulating data,” including formatting documents based on “management record types.” Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1339-40, 1341-42 (Fed. Cir. 2017); • Claims to “1) collecting data, 2) recognizing certain data within the collected data set, and 3) storing that recognized data in memory.” Content Extraction, 776 F.3d at 1347; and • Claims to a computer-implemented system that allows lenders and borrowers to upload information so that the borrower could identify a loan package for which he would be eligible are directed to the abstract idea of “anonymous loan shopping,” even though claims required computer-implemented communication of particular data and recited computer components “such as an ‘interface,’ ‘network,’ and ‘database,’” because “recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.” Mortgage Grader, Inc. v. First Choice Loan Services, Inc., 811 F.3d 1314, 132425 (Fed. Cir. 2016). B. Hulu’s Prior Motion To Dismiss And The Court’s Findings On August 17, 2017, Hulu moved to dismiss the ’062 Patent on the basis that the ’062 Patent is directed to nothing more than the abstract idea that a user may combine two or more “software operators” to create an “application.” See Dkt. No. Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 11 of 28 Page ID #:15332 -6- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 42-1 at 13-18. Hulu explained that the ’062 Patent is directed to the broad concept of combining two or more “software operators,” which the ’062 specification generally describes as any “computer program that extracts or converts information from a repository.” Dkt. 42-1 at 14 (citing ’062 Patent at 1:33–34). Hulu also explained that the ’062 Patent, by its own admission, did not describe “any new type of software operator.” Id. at 14–15 (citing ’062 Patent at 3:33–4:30, 4:57–59). In response, Sound View argued that the ’062 Patent “is directed to a specific software structure that supports the flexible creation of cohesive software applications using reusable interoperable software operators.” Dkt. No. 83 at 7 (emphasis added by the Court). Relying on Sound View’s argument, the Court found that “[w]hether reusable operators [allegedly invented by the ’062] are unconventional presents a question of fact.” Dkt. No. 83 at 8. The Court further found that because this “factual dispute will not be material or ripe until the scope of the claims is fully determined . . . an analysis of the patentability of the ’062 Patent cannot be conducted on a motion to dismiss.” Id. C. The Court’s Claim Construction Resolved Any Alleged Factual Disputes Regarding Patent Eligibility Of The ’062 Patent During Markman proceedings, Sound View agreed that the “software operator” term should be construed simply as “software that extracts or converts information from a repository,” as Hulu initially explained in its motion to dismiss. Dkt. No. 67 at 1. Sound View eventually conceded that “software operator” does not require a “reusable interoperable software operator” as it had argued in defense of Hulu’s motion to dismiss. The Court adopted the parties agreed construction. Dkt. No. 148 at 6. Claim 14 thus covers use of any two or more generic “software operators” that take input and create output in the same format, full stop. Whether those software operators are “reusable” or “interoperable” is no longer an issue. With the scope of Claim 14 now clarified, the question of whether the ’062 Patent Claim 14 is directed to patent eligible subject matter is now ripe for decision. See Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 12 of 28 Page ID #:15333 -7- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1367 (Fed. Cir. 2018) (“The factual allegations of the inventiveness of the claimed invention do not have to be accepted by the court if the claims of the asserted patent do not reflect the alleged innovative concepts and transform the nature of the claim into a patent- eligible abstract idea.”). D. Alice Step 1 - Claim 14 Is Directed To A Patent Ineligible Abstract Idea Of Combining Two Operators The ’062 Patent claims that “[i]n existing repository analysis systems, the operators are generally designed for a single application…and there is no convenient mechanism for combining the various operators to create new applications.” ’062 Patent, 1:44-52. Yet the ’062 Patent does not provide any solution to this alleged problem—it does not describe a new mechanism for combining the various operators. Nor does it describe any new type of operators. For example, the’062 specification describes “software operators”—i.e., the “software that extracts or converts information from a repository”—in prior art. Id. at 32-33 (stating, in “Background Of The Invention,” that “[a] computer program that extracts or converts information from a repository is called an operator”); 1:44- 53 (describing operators in existing systems). The ’062 specification admits that “virtual databases” were known in the art before the ’062 Patent. See id. at 7:47-53 (describing types of known virtual databases that “may be used in conjunction with the present invention”). The ’062 specification also admits that combining the two operators in the alleged invention can be implemented using a well-known operating system mechanism called “pipe.” Id. at 4:67-5:3 (“A pipe is an operating system mechanism that allows two processes (operators in the present description) to exchange information as streams of characters.”); 5:11-21 (describing prior art publication that describes the UNIX pipe). The ’062 specification also states that the alleged invention can be implemented on “any one of the types [of computer systems] which are well known in the art such as a mainframe computer, a Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 13 of 28 Page ID #:15334 -8- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 minicomputer, a workstation, or a personal computer.” Id. at 4:54-57. The ’062 specification also does not claim to have invented a software operator that takes the same input and output format. Instead, the ’062 Patent’s purported invention is merely the recognition that two or more operators that have the same input and output format “may be combined.” Id. at 2:18-19. But combining thins that takes same input and output is a fundamental concept known to the ancient Greek mathematicians, and now to every elementary school student. Assume, for example, two operators—“multiply by 2” and “multiply by 3”—that both take a number as input and output a number. The input and output are thus in the same format—a number. You can take a number (e.g., 1) and apply one operator to it (e.g., “multiply by 2”), and get an output: 1 x 2 = 2. You can then take the output of this first operator (i.e., 2) and feed it as an input to another operator (e.g., “multiply by 3”), and get another output: 2 x 3 = 6. Claim 14 recites nothing more than this fundamental concept—a simple, two-step mathematical equation: (1 x 2) x 3 = 6—and applies it to a “virtual database,”—a type of database that the ‘062 Patent admits was already known in the art. The ’062 Patent does not solve any computer-specific problem inherent to the technology itself. Instead, it suggests an old solution to an even older problem of trying to avoid repetitive work as much as possible, recast in the context of computer programming. See Return Mail, Inc. v. United States Postal Serv., 868 F.3d 1350, 1368 (Fed. Cir. 2017) (finding claims reciting “receiving from a sender a plurality of mail items,” “identifying undeliverable mail items,” “decoding…encoded data,” “creating output data,” and “determining if the sender wants a corrected address” are directed to an abstract idea, and that “[l]imiting the abstract idea to a particular environment, here a mail processing system with generic computing technology, does not make the claims any less abstract for the step 1 analysis” under Alice). Here, limiting the concept of combining operators to Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 14 of 28 Page ID #:15335 -9- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 the field of computer programming done on a generic computer does not make Claim 14 any less abstract. What is more, the purported solution recited in Claim 14 does not actually solve the stated problem. Claim 14 requires “combining at least two…software operators,” whether or not the operators are reusable or interoperable, to create an “application.” ’062 Patent Claim 14; see also, Dkt. No. 083 at 6 (agreed definition of “software operator”). A software engineer could still practice Claim 14 even if she writes new software operators every time she creates a new application, as long as those new software operators receive and output a “virtual database” and she uses at least two such software operators. Despite Sound View’s earlier argument that the ’062 Patent “is directed to a specific software structure that supports the flexible creation of cohesive software applications using reusable interoperable software operators,” Claim 14 does not actually require more than one software application to be created using the same operators. ’062 Patent, Claim 14 (“combining at least two of said software operators to create an application.”) (emphasis added). Nor does the ’062 Patent “improve the computer functionality itself” by explaining how to combine two operators. See e.g., Prod. Ass'n Techs. LLC v. Clique Media Grp., No. CV 17-05463-GW (PJWX), 2017 WL 5664986, at *6 (C.D. Cal. Oct. 12, 2017), aff'd sub nom. Prod. Ass’n Techs. LLC v. Clique Brands Inc., 738 F. App’x 1021 (Fed. Cir. 2018). In Clique Media, a Court in this district found abstract a claim that “recites the steps of establishing a cross-referencing resource, transmitting and displaying a web page with a hyperlink to a user, responding to activation of the hyperlink with messages to the cross-referencing resource, identifying desired information in the cross-referencing resource, sending a message to the web page with the desired information, sending the desired information back to the web browser, and using the web browser to display the information.” The Court noted that the claim does not “submit a particular Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 15 of 28 Page ID #:15336 -10- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 technological way of establishing the cross-referencing resource, identifying desired information, sending messages, or displaying data that would improve the functioning of a computer.” Id. at *6. Similarly, here, Claim 14 merely recites generically “combining at least two of said software operators to create an application” without being limited to any specific method of combining the operators that may improve the computer functionality itself. There is no teaching, for example, that combining software operators to create an application will improve the underlying processing or functionality of the computer. And for good reason—the ’062 Patent does not purport to solve any computer-specific problem. Instead, Claim 14 is directed to the abstract idea of combining two operators to create a larger application. E. Alice Step 2 - Claim 14 Does Not Recite An “Inventive Concept” Beyond the Abstract Idea Claim 14 adds nothing beyond this abstract idea when the steps are considered individually or as an ordered combination. Content Extraction, 776 F.3d at 1347. The ’062 Patent acknowledges that a “software operator” is simply “[a] computer program that extracts or converts information from a repository,” performing tasks as simple as “count[ing] the number of occurrences of a particular word.” ’062 Patent, 1:33-40. Programs that performed these tasks were published and in use well before the ’062 Patent. See ’062 Patent, 1:36-40 (describing an operator in prior art systems). Likewise, the ’062 Patent did not invent “virtual databases.” The ’062 specification admits that “virtual databases” were known in the art before the ’062 Patent. See ’062 Patent, 7:47-53 (describing known virtual databases that “may be used in conjunction with the present invention”). While Claim 14 is limited to operators used on “virtual databases,” this specific use “at best…limits the invention to a technological environment for which to apply the underlying abstract concept.” Capital One, 850 F.3d at 1339-40. In Capital One, the Federal Circuit found that claims directed to rendering documents compatible in Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 16 of 28 Page ID #:15337 -11- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 a “specialized computer language—XML” fail to transform the claimed abstract concept of “collecting, displaying, and manipulating data.” Capital One, 850 F.3d at 1339-40. The idea to apply the abstract concept of combining two operators to “virtual databases” in this case fares no better than applying the abstract concept of rendering documents in the specialized XML computer language. There is also no “ordered combination” of the steps in Claim 14 that creates an “‘inventive concept’—something sufficient to ensure that the claim amounts to ‘significantly more’ than the abstract idea itself.” Content Extraction, 776 F.3d at 1347. Claim 14 recites two basic steps—providing a plurality of software operators, and combining at least two of those software operators. To combine two software operators, one must necessarily have two or more (i.e., a plurality of) software operators at the start. The step of “providing” a plurality of software operators is thus nothing more than a necessary prerequisite to “combining at least two” software operators. Claim 14, therefore, boils down to the “combining” step, which is the abstract idea itself. Claim 14’s elements, either individually or as an ordered combination, do not transform the claimed abstract concept of the ’062 Patent into patentable subject matter. “[L]imit[ing] claims to a particular field of information”—here, a “virtual database”—“does not move the claims out of the realm of abstract ideas.” SAP America, Inc. v. Investipic, LLC, 898 F.3d 1161, 1169 (Fed. Cir. 2018). Nor does the fact that parties dispute whether Claim 14 is anticipated or is obvious over prior art create a sufficient factual dispute that precludes summary judgment. This is because “a claim for a new abstract idea is still an abstract idea. The search for a § 101 inventive concept is thus distinct from demonstrating § 102 novelty.” Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). In SAP, the Federal Circuit found abstract claims that require a particular method of resampling data. The Federal Circuit explained that the “resampling data” concept is abstract idea, and that additional limitations to specific method of resampling Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 17 of 28 Page ID #:15338 -12- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 “simply provide further narrowing of what are still mathematical operations.” SAP, 898 F.3d at 1169. Thus, the Federal Circuit found those additional limitations “add nothing outside the abstract realm.” Id. at 1163. Here, limiting the “software operators” to those that receive and output a “virtual database” adds nothing outside the abstract idea of combining those software operators. Id. at 1169; see also, Maxell, Ltd. v. Fandango Media, LLC, No. CV 17-07534 AG (SSX), 2018 WL 4502492, at *8–9 (C.D. Cal. Sept. 11, 2018) (“The § 101 inquiry does not require just any ‘improvement.’ Indeed, [the Court] ‘may assume that the techniques claimed are groundbreaking, innovative, or even brilliant, but that is not enough for eligibility.’”) (citing SAP, 898 F.3d at 1163). The ’062 Patent Claim 14 is thus invalid under Section 101. IV. HULU DOES NOT INFRINGE CLAIM 14 OF THE ’062 PATENT A. Legal Standard On Summary Judgment Of Noninfringement 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.” Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 18 of 28 Page ID #:15339 -13- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 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 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 based do not raise a genuine issue of material fact). B. The Accused Technology Sound view alleges that Hulu’s internal and customer-facing websites infringe the ’062 Patent Claim 14 because those websites, when viewed in the website visitors’ browsers, are converted into a format called “Document Object Model” or “DOM” for short. Sound View alleges that these DOM-formatted webpages, which follow the DOM standard, are “virtual database[s]” having a “first schema.” Westin Decl. Ex. 47, Opening Expert Report of Dr. Sigurd Meldal, ¶¶ 54, 92-95. Sound View further alleges that third party software called “jQuery,” an open-source software provided and maintained by a group of volunteers through a non-profit entity called jQuery Foundation, contains software tools that qualify as “software operators… configured to receive a virtual database having a first schema…and for outputting a virtual database having said first schema” as recited in Claim 14. Ex. 47, ¶ 91. The below technical background explains the relevance Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 19 of 28 Page ID #:15340 -14- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 of DOM and jQuery to “virtual database[s].” 1. Webpages And Their DOM Representations In the computer context, a webpage is a document. This document can be either displayed in the browser window or as the HTML source. But it is the same document in both cases. Declaration of M. Crovella, Ex. A (“Crovella Rpt.”) at ¶ 45. Webpages are typically stored on web servers. When a user uses a web browser to access a webpage, the browser receives an HTML document from a web server. Id. at ¶ 46. The HTML document is simply text written in a specific format. Id. The browser “parses” this text into an internal structure that it can use to “render” the page visually. Id. The DOM represents the internal structure of an HTML document in the browser. Id. The below figures illustrate an exemplary web document (as displayed in a browser) and its HTML source displayed as text. HTML, which stands for Hypertext Markup Language, was developed in the 1980s at CERN (the European Organization for Nuclear Research) by Tim Berners- Lee. Id. at ¶ 47. The World Wide Web Consortium (W3C) was formed in 1994 with Tim Berners-Lee as one of its founding members to develop open standards for HTML, as well as other components for the world-wide web. See https://www.w3.org/People/Raggett/book4/ch02.html. Id. By the time of the alleged invention of the ’062 Patent, October 17, 1995, the first standard for HTML was fully published and generally used around the world, supported by the many Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 20 of 28 Page ID #:15341 -15- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 web browsers that were gaining popularity at the time. Id. An HTML document may include various elements, such as text, links to other documents stored outside the page, images, etc. Id. at ¶ 48. Some of the elements are “dynamic” in that they are created, changed, or deleted while the HTML page is displayed on the user’s web browser. Often, an HTML document includes a programming language, such as JavaScript, C#, VBScript, JavaScript, or ECMAScript, etc., to control the behavior of dynamic elements. Id. The Document Object Model (DOM) represents that same document so it can be more easily manipulated. Id. at ¶ 49. The DOM represents the document as nodes and objects such that programming languages can easily access the various elements contained in the page. Id. But whether in its HTML source form or in DOM representation, the document is one and the same. Id. That is, the DOM representation contains all of the elements that make up the HTML source document, such as text, images, and links. Id. 2. Hyperlinks An HTML document may include a link to another HTML document. When it does, the HTML document will include a statement similar to the highlighted statement below: The above statement means the HTML document will display text that reads “Link to Webpage 2.” This text will, when selected, direct the user to the Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 21 of 28 Page ID #:15342 -16- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 Webpage_2.html document. See Crovella Rpt. ¶¶ 91-92. Because no specific element of Webpage_2.html was identified in the statement, the browser will display Webpage_2.html at its beginning. Id. To direct the browser to a specific location of the Webpage_2.html (such that the browser will automatically scroll down to a specific location), the highlighted statement in the Webpage_1.html is modified to point to a specific object within the Webpage_2.html: Link to Webpage 2 And Webpage_2.html will include a line that reads:

This is a paragraph identified as the "target" location.

The above statement means the HTML document will display text that reads “Link to Webpage 2.” See Crovella Rpt. ¶¶ 88-89. This text will, when selected, direct the user to an HTML element in Webpage_2.html, in this case a paragraph with the statement id = “target” inside brackets, residing in Webpage_2.html. Id. In other words, when the user selects the link, the browser will open Webpage_2.html, and scroll to the part that reads “This is a paragraph identified as the “target” location” (i.e., to the id = “target” statement.) Id. 3. Images In Webpages An HTML document may also include an image, or more precisely speaking, a reference to an image that will cause the browser to display the specified image with other elements of the webpage. To do so, the HTML document includes a statement as highlighted below: Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 22 of 28 Page ID #:15343 -17- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 The statement “

” tells the browser that the source file for the image is Smiley.png. (src= “Smile.png”). It also tells the browser that, if the browser cannot locate or display the image, show text reading “Smiley Face.” (alt= “Smiley Face”), similar to below. The DOM representation of the above example will then have an node. This node has two attributes—“src” (image source file) and “alt” (alternative text). The “src” attribute refers to the image file itself, Smiley.png, and the “alt” attribute has the value of “Smiley Face.” See https://www.w3schools.com/html/ html_images.asp. The image file is not part of the DOM. Ex. 48 at 53:11-22. C. Hulu Does Not Infringe Because The Accused DOM Does Not Qualify As The Claimed “Virtual Database” Sound View alleges that a DOM representation of a webpage is a “virtual database having a first schema” as recited in Claim 14. Westin Decl. Ex. 47, Opening Expert Report of Dr. Sigurd Meldal (“Meldal Report”), ¶¶ 92-95. Sound Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 23 of 28 Page ID #:15344 -18- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 View is wrong. The DOM format, which allows links to objects outside the current DOM itself, is not a “virtual database” as construed by the Court. Consequently, Hulu’s use of jQuery (the accused “software operator”), which according to Sound View “receives” and “outputs” the DOM,1 cannot infringe Claim 14. During claim construction, Sound View sought to interpret “virtual database” to be simply “a sequence of characters organized into one or more sections.” The Court rejected this argument, specifically noting that the ’062 Patent specification states: A virtual database (VDB), such as initial VDB 106, is self contained and may be operated on further by other operators. A VDB is self contained, in that if a record is referred to in a field in the VDB, then the referred to record is contained in the VDB. The self contained characteristic of a VDB will be discussed further below in conjunction with the exemplary embodiment. Dkt. No. 148 at 8 (citing ’062 Patent, 3:37-43) (emphasis added). The Court explained, “to the extent a section does include one or more records, the specification’s disclosure also clarifies that those records are ‘made up of one or more fields containing information’ and are self-contained.’” Id. (emphasis added). Finding that the virtual database must be self-contained, the Court construed the term “virtual database” as “a sequence of characters organized into one or more sections, where each section contains zero or more records made up of one or more fields containing information, and where a record referred to in a field in the virtual database is itself contained in the virtual database.” Dkt. No. 148 at 8 and 26 (emphasis added). The DOM format permits a field to refer to a record not itself contained in the same DOM. Crovella Rpt. at ¶¶ 88-89. Moreover, Sound View has not presented any evidence (in their complaint, infringement contentions, or discovery responses) that any specific Hulu web page or web site refers only to 1 Hulu does not agree the jQuery operations “receive” or “output” DOM. That dispute, however, is not relevant to the resolution of this motion, because Sound View identify DOM as the only alleged “virtual database.” Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 24 of 28 Page ID #:15345 -19- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 records contained within the webpage itself. Ex. 47, ¶¶ 90-96; see also, Crovella Rpt. at ¶¶ 98, 102, 103, 107, 111, 113, 118, 122, 126, 132, 137, 142. For these reasons, the DOM format cannot meet the requirements for the claimed “virtual database.” 1. Links To Another Document Create A Node In DOM That Refers To Documents Outside The DOM Itself To be a “virtual database” under the Court’s construction, “a record referred to in a field in the virtual database” must be “itself contained in the virtual database.” Dkt. No. 148 at 26. But as discussed above, the DOM of the accused webpage can have a “record” (an object in another webpage) that is not “itself contained in the” same DOM. When a webpage (Webpage_1.html) has a link to an object in another webpage (the “target” paragraph in Webpage_2.html), the DOM of the first webpage (the alleged “virtual database”) also contains a DOM node (the alleged “record”) that has an “href” attribute (the alleged “field”) that specifies the destination for when the link is selected. Crovella Rpt. at ¶¶ 88-89, 95-96. In the example discussed above, the destination is identified as “Webpage_2.html#target” (i.e., the HTML element identified by id=“target” statement in Webpage_2.html). This target paragraph is another “record” in a DOM representation of Webpage_2.html, but not a record in the DOM of the Webpage_1.html. Thus, this “record” (the node for the target paragraph in Webpage 2), which is referred to in a “field” in a DOM of Webpage 1, is not itself contained within the DOM of Webpage 1. Tellingly, Sound View’s expert, Dr. Meldal does not address this aspect of the DOM, which permits references to objects outside the DOM itself. Indeed, he does not address anywhere in his report the requirement that “a record referred to in a field in the virtual database is itself contained in the virtual database.” This is unsurprising because, as discussed above, there is no dispute that “a record referred to in a field” in a DOM representation of an HTML (what Sound View accuses as Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 25 of 28 Page ID #:15346 -20- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 the “virtual database”) is not “itself contained in” the DOM. 2. An Image Referenced By A Webpage And Its DOM Representation Is Not Part Of The DOM Itself A webpage may also include a reference to an image so that the browser may fetch the image and display it on the browser along with other elements of the webpage. As discussed above, when a webpage includes images, the HTML of the webpage, and also the DOM, includes an image node (the alleged “record”) that has an attribute (the alleged “field”) that refers to the image file itself. Ex. 48 at 49:25- 51:17; 51:25-53:22. The image file is not part of the DOM. See Ex. 48 at 53:11- 22. This is yet another example of the DOM format having a record referred to in a field in the DOM, but the referenced record is not itself contained in the DOM. Because the DOM does not satisfy the requirement that “a record referred to in a field in the virtual database is itself contained in the virtual database,” the DOM cannot be a “virtual database” as required by Claim 14. D. There Is No Evidence Of Infringement Under The Doctrine Of Equivalents “When a defendant establishes its entitlement to summary judgment of no 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). To avoid summary judgment of noninfringement under the doctrine of equivalents, a patentee must do more than raise the possibility that infringement may be found under the doctrine—it must present facts to show a genuine issue for trial. Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1210 (Fed. Cir. 2001) (“Because [plaintiff] bears the burden of proving equivalence at trial, summary judgment against [plaintiff] is appropriate…. The doctrine of equivalents is not a talisman that entitles a patentee to a jury trial on the basis of Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 26 of 28 Page ID #:15347 -21- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 suspicion; it is a limited remedy available in special circumstances, the evidence for which is the responsibility of the proponent.”) (citation omitted). Here, no evidence exists to support a claim of infringement of the ‘062 Patent Claim 14 under the doctrine of equivalents. Sound View’s expert provided no analysis of how Hulu’s accused webpages could be equivalent to the missing “virtual database” and, in particular, how the DOM, which permits reference to elements outside the DOM itself, could nonetheless “perform substantially the same function, in substantially the same way, to achieve substantially the same result” as the self-contained virtual database recited in Claim 14. Crovella Decl. Ex. A, at ¶ 173; see generally, Westin Decl. Ex. A. In addition, “in cases where the patentee’s theory of equivalents would ‘entirely vitiate a particular claim element, partial or complete summary judgment should be rendered by the court.’” Sage Prods. Inc. v Devon Indus. Inc., 126 F.3d 1420, 1429 (Fed. Cir. 1997) (affirming summary judgment of non-infringement under the doctrine of equivalents). Here, the patentee provided a specific explanation about the scope and meaning of the term “virtual database,” which the Court adopted. Dkt. No. 148 at 8. “As between the patentee who had a clear opportunity to negotiate broader claims but did not do so, and the public at large, it is the patentee who must bear the cost of its failure to seek protection for this foreseeable alteration of its claimed structure.” K.H.S. Musical Instrument Co. v. Ultimate Support Sys., Inc., No. LACV1102455JAKEX, 2013 WL 12244318, at *13 (C.D. Cal. Mar. 4, 2013) (citing Sage Products at 1425). Thus, there can be no infringement under the doctrine of equivalents as a matter of law. V. CONCLUSION For all the reasons stated herein, Hulu respectfully requests the Court to enter summary judgment that the ’062 Patent Claim 14 is invalid under Section 101 or, in the alternative, is not infringed by Hulu. Case 2:17-cv-04146-JAK-PLA Document 269 Filed 03/05/19 Page 27 of 28 Page ID #:15348 -22- HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT U.S. PATENT NO. 5,806,062 CASE NO. 2:17-cv-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 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 269 Filed 03/05/19 Page 28 of 28 Page ID #:15349