Sound View Innovations, LLC v. Hulu, LLC

MEMORANDUM in Opposition to NOTICE 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 Support

C.D. Cal.March 18, 2019

SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT Case No. LACV17-04146 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 RUSS AUGUST & KABAT Marc A. Fenster (SBN 181067) mfenster@raklaw.com Benjamin T. Wang (SBN 228712) bwang@raklaw.com Kent N. Shum (SBN 259189) kshum@raklaw.com 12424 Wilshire Boulevard, 12th Floor Los Angeles, California 90025 Tel: (310) 826-7474 Fax: (310) 826-6991 DESMARAIS LLP Alan S. Kellman (admitted pro hac vice) Richard M. Cowell (admitted pro hac vice) C. Austin Ginnings (admitted pro hac vice) Jennifer M. Pryzbylski (admitted pro hac vice) 230 Park Avenue New York, New York 10169 Tel: (212) 351-3400 Fax: (212) 351-3401 Peter C. Magic (SBN 278917) 101 California Street, Suite 3070 San Francisco, CA 94111 Tel: (415) 573-1900 Fax: (415) 573-1901 Attorneys for Plaintiff Sound View Innovations, LLC UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION SOUND VIEW INNOVATIONS, LLC, Plaintiff, v. HULU, LLC, Defendant. Case No. LACV17-04146 JAK (PLAx) PLAINTIFF SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON- INFRINGEMENT OF U.S. PATENT NOS. 6,708,213, 6,757,796, AND 9,462,074 Date: April 15, 2019 Time: 8:30 a.m. Hon. Judge John A. Kronstadt Courtroom: 10B REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 1 of 27 Page ID #:18652 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT i Case No. LACV17-04146 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 TABLE OF CONTENTS Pages I. INTRODUCTION ................................................................................................ 1 II. OVERVIEW OF THE ACCUSED PRODUCTS ................................................ 2 III. LEGAL STANDARDS ........................................................................................ 4 IV. ARGUMENT........................................................................................................ 4 A. The Accused Video Content Is “SM Objects,” And The CDN Edge Servers Receive Requests For “SM Objects,” Store “SM Objects,” Receive “SM Objects,” And Service “SM Objects”(’213 And ’074 Patents, All Asserted Claims). ................................................................... 4 1. The CDN Edge Servers In Hulu’s Accused Platforms Receive “Requests” For “SM Objects” And “Service” Those Requests By Receiving, Storing, And Transmitting “SM Objects” (’213 and ’074 Patents, All Asserted Claims). ................................ 6 2. Hulu’s Video Assets Are Each A “File.” ........................................ 9 3. The Accused Video Data “Has Temporal Characteristics Such That The Data May Become Useless Unless The Transmission Rate Is Regulated.” ........................................................................ 11 B. Hulu’s Accused Platforms “Adjust[] A Data Transfer Rate” (’213 Patent, Claim 16). ........................................................................... 13 a. Hulu’s Use Of Adaptive Bitrate Adjusts The Amount Of Data Sent To A Client Over A Given Time Period. ...... 14 b. The Court Rejected Hulu’s Argument That The Helper Server Must “Control” The Claimed “Adjusting” And Cannot Adjust The Data Transfer Rate At The Request Of A Client. ......................................................................... 15 c. The Court Also Already Rejected Hulu’s Arguments That The Claimed “Adjusting” Must Be Performed For The Purpose Of Reducing Startup Delay. ........................... 17 C. The Other Elements Of The Asserted Claims Are Met By The Hulu Accused Products. ........................................................................... 19 1. ’213 Patent ..................................................................................... 19 a. Helper Server ....................................................................... 19 b. The Accused Processes Meet All Other Elements Of The ’213 Patent Asserted Claims. ....................................... 19 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 2 of 27 Page ID #:18653 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT ii Case No. LACV17-04146 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. ’074 Patent ..................................................................................... 19 a. Helper Server ....................................................................... 19 b. Replacement/Deletion of Portion(s) Of SM Objects. ......... 19 c. The Accused Processes Meet All Other Elements Of The ’074 Patent Asserted Claims. ....................................... 21 V. CONCLUSION .................................................................................................. 21 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 3 of 27 Page ID #:18654 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT iii Case No. LACV17-04146 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 TABLE OF AUTHORITIES Cases Asetek Holdings, Inc. v. CoolIT Sys., Inc., No. C-12-4498 EMC, 2014 WL 4090400 (N.D. Cal. Aug. 19, 2014) ......... 17, 18 In re Katz Interactive Call Processing Patent Litig., No. MDL 2:07-CV-2192-B, 2013 WL 3223382 (C.D. Cal. June 12, 2013) ............................................................................. 17, 18 Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Employees of Transferred GE Operations, 244 F.3d 1109 (9th Cir. 2001). ............................................................................. 4 Intellectual Ventures I LLC v. Nextel Operations, Inc., No. CV 13-1670-LPS, 2017 WL 2304006 (D. Del. May 19, 2017) ............ 17, 18 MyKey Tech., Inc. v. Intelligent Computer Solutions, Inc., No. 2:13-ml-02461-AG (PLAx), D.I. 360 (C.D. Cal. Nov. 16, 2016) ........... 4, 11 Rivera v. Remington Designs, LLC, No. LA CV16-04676 JAK (SSx) D.I. 196 (C.D. Cal. Aug. 28, 2018) .............. 11 Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir. 2011) ...................................................................... 4, 11 Voice Int’l, Inc. v. Oppenheimer Cine Rentals, LLC, No. LA CV15-08830 JAK (KSx), 2018 WL 3830030 (C.D. Cal. Jan. 18, 2018) .................................................................................... 11 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 4 of 27 Page ID #:18655 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 1 Case No. LACV17-04146 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 Hulu’s motion for summary judgment that Hulu does not infringe the asserted claims of U.S. Patent Nos. 6,708,213 (the “’213 patent”), 6,757,796 (the “’796 patent”), and 9,462,074 (the “’074 patent”) (Dkt. No. 272-03 (“Mot.”)) should be denied because more than sufficient facts exist on which a reasonable jury could find infringement of each asserted claim.1 Hulu asserts-often based on claim interpretations that it explicitly lost during the Markman phase-that the following claim elements are not met: (1) “SM objects” (all asserted claims of the ’213 patent and ’074 patent); (2) “adjusting a data transfer rate…” (’213 patent claim 16); (3) “helper server” (all asserted claims of the ’213, ’796, and ’074 patents); and (4) limitations of the asserted claims of the ’074 patent concerning “deleting” or “replacing” “portion(s)” of SM objects. But ample proof exists that the accused platforms that Hulu uses to distribute video to end users meet each of those claim elements. First, video content (e.g., movies and TV programs) that Hulu encodes and stores on its “origin servers” for distribution to end users via content delivery networks (“CDNs”) constitute “SM objects”-each is a “file” according to both Hulu’s witness and Sound View’s expert, and will become useless unless the rate of delivery of video content to the client device is regulated. Second, Hulu’s platforms “adjust[] the data transfer rate” during the streaming process through the mechanisms that effectuate adaptive bitrate (ABR) streaming because ABR increases or decreases the amount of video data transmitted to the client over a given time period (e.g., period of playback at a client). Third, Hulu’s arguments concerning the “helper server” term-that the accused servers are not helper servers because the objects they transmit are not “SM objects,” they do not track “relationships” between 1 In view the parties’ joint stipulation to dismiss with prejudice (see D.I. 298 filed March 18, 2019) claims, defenses, and counterclaims pertaining to Hulu’s Live TV product, including the parties’ claims, defenses, and counterclaims pertaining to the ’796 Patent as well as claims 1, 7, and 8 of the ’213 Patent, the portions of Hulu’s motions for summary judgment and Daubert motions pertaining to those claims, defenses, and counterclaims are moot. Thus, Sound View in this opposition brief addresses all other subject matter of Hulu’s motion for summary judgment of non- infringement. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 5 of 27 Page ID #:18656 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 2 Case No. LACV17-04146 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 SM objects, and do not adjust the transfer rate-are a rehash of its other arguments and fail for the same reasons. And fourth, Hulu’s arguments about the operation of the cache replacement processes in the CDN edge servers overlook testimony that shows those aspects of the ’074 patent asserted claims are met. Thus, at a minimum, ample proof exists to demonstrate genuine disputes of material fact regarding infringement of each asserted claim, making summary judgment of non-infringement inappropriate. II. OVERVIEW OF THE ACCUSED PRODUCTS 2 The concurrently filed Declaration of Iain E. Richardson, Ph.D. incorporates by reference that copy of the Richardson Opening Report that Hulu filed with its Motion. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 6 of 27 Page ID #:18657 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 3 Case No. LACV17-04146 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 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 7 of 27 Page ID #:18658 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 4 Case No. LACV17-04146 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 III. LEGAL STANDARDS “On summary judgment, the proper task is not to weigh conflicting evidence, but rather to ask whether the nonmoving party has produced sufficient evidence to permit the fact finder to hold in his favor.” Ingram v. Martin Marietta Long Term Disability Income Plan for Salaried Employees of Transferred GE Operations, 244 F.3d 1109, 1114 (9th Cir. 2001). “[A]ssessing allegations of infringement by applying the claims to the accused products presents a question of fact.” Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1302 (Fed. Cir. 2011); see MyKey Tech., Inc. v. Intelligent Computer Solutions, Inc., No. 2:13-ml-02461-AG (PLAx), D.I. 360 at 18 (C.D. Cal. Nov. 16, 2016) (denying defendant’s motion for summary judgment of non- infringement when “Defendant relies on conclusory statements by its expert”). IV. ARGUMENT A. The Accused Video Content Is “SM Objects,” And The CDN Edge Servers Receive Requests For “SM Objects,” Store “SM Objects,” Receive “SM Objects,” And Service “SM Objects”(’213 And ’074 Patents, All Asserted Claims). The accused video data (e.g., movies and TV programs) that Hulu streams through edge servers to end users meets the requirements of the “SM object” element of the asserted claims of the ’213 and ’074 patents, which the Court construed as “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 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 8 of 27 Page ID #:18659 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 5 Case No. LACV17-04146 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 predetermined criteria (e.g., audio and video files).” Mot. at 9; Dkt. No. 148 at 17. Working from an incorrect premise that only a “single request” must be used to retrieve an “entire” SM object, Hulu argues that the accused processes do not “receive,” “receive a request for,” “store,” or “service” SM objects Mot. at 12. Hulu further argues that its video assets do not meet the Court’s construction of “SM object” for the following reasons: Mot. at 9-13. As an initial matter, the claims do no recite “entire SM object,” and the Court rejected Hulu’s attempt to construe the claims that way. See Dkt. No. 148 at 15-16. Hulu’s last argument is flawed in multiple respects: (1) the construction of “SM object” explicitly identifies “video files” as an example of data that becomes useless unless the transmission rate is regulated, and, setting aside Hulu’s arguments specific REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 9 of 27 Page ID #:18660 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 6 Case No. LACV17-04146 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 the word “file,” Hulu does not dispute that what it conveys to clients is video; (2) the construction of SM object does not require actual regulation of a transmission rate, but just that the data possesses the characteristic of “[it] may become useless unless the transmission rate is regulated,” and video inherently may become useless if the rate at which it is delivered to a client is too fast or too slow to work with the playback observed by the end user; and (3) 1. The CDN Edge Servers In Hulu’s Accused Platforms Receive “Requests” For “SM Objects” And “Service” Those Requests By Receiving, Storing, And Transmitting “SM Objects” (’213 and ’074 Patents, All Asserted Claims). Hulu argues that its accused platforms do not meet various claim elements concerning SM objects-“receiving a request for an SM object,” “receiving an SM object,” “storing” an SM object, and “servicing a request for an SM object”-for the following reasons: (1) the ’213 and ’074 patents allegedly require “servicing a single request from a client to a helper server to set up a continuous data stream,” as opposed to the used in Hulu’s accused platforms; (2) and (3) the asserted claims require that the accused system “consider the logical relationship” of the segments of the video data delivered to a client, which Hulu’s first argument rests on an unsupported assertion that the ’213 and ’074 patents “were written to cover” servicing “a single request from a client to a helper server to set up a continuous data stream.” Mot. at 14-15. Nothing in the claims or the Court’s constructions refer to “a single request” or “a continuous data stream.” See generally Dkt. No. 148. Indeed, the claims specifically contemplate buffering, replacing, and transmitting portions of SM objects. See, e.g., ’213 patent, claim 16 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 10 of 27 Page ID #:18661 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 7 Case No. LACV17-04146 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 (reciting “allocating a buffer . . . to cache at least a portion of said requested SM object” and “concurrently retrieving a remaining portion of said requested SM object”). The claim language itself thus directly contradicts the notion that the claimed processes can be practiced only by requesting an “entire” SM object all at once and delivering the “entire” SM object in a “continuous stream.” Nothing in the claim language requires that the platform receive and service a request for an SM object by setting up and delivering “a continuous data stream” in response to a single request. Hulu’s attempts to read such a limitation into the Court’s constructions and the claim language are unsupported and improper, and should be rejected. Hulu’s second argument similarly works from the unsupported premise that an “entire” SM object must be “requested” all at once. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 11 of 27 Page ID #:18662 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 8 Case No. LACV17-04146 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 are each a ‘streaming media (SM) object.’” Dkt. No. 272-17 (Richardson Opening Rpt.), ¶ 377. Each request is thus for an “SM object.” Hulu’s argument that because each request the request is not for an SM object is simply an attempt to reargue its failed claim construction position that “an SM object must constitute an ‘entire media file.’” Dkt. No. 148 at 15. But the claim language that forms the basis of Hulu’s arguments never specifies “entire” SM object. Hulu’s third argument again rests on reading alleged limitations from the specification into the claims. While nothing in the claim language or the Court’s constructions requires that the system in which the accused method occurs “consider the logical relationship” among segments of video, Hulu’s platforms do in fact consider the logical relationship between segments through the use of a “manifest.” Mot. at 5. Dr. Richardson confirmed that fact. He explained that Additionally, as discussed above, the CDN edge servers in Hulu’s SVOD Platform REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 12 of 27 Page ID #:18663 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 9 Case No. LACV17-04146 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 Therefore, even if the “logical relationship” language Hulu relies on were considered part of the Court’s construction, Sound View has shown that the platforms that perform the method steps at issue in this case meet that language. At a minimum, a genuine dispute of material fact exists as to whether the accused steps practice the various claim elements concerning SM objects-“receiving a request for an SM object,” “receiving an SM object,” “storing” an SM object, and “servicing a request for an SM object”-that are the subject of Hulu’s motion, which precludes summary judgment. 2. Hulu’s Video Assets Are Each A “File.” Dr. Chase agrees with Dr. Richardson that is a file, as Dr. Chase repeatedly REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 13 of 27 Page ID #:18664 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 10 Case No. LACV17-04146 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 refers to each of them as a “file.” Dkt. No. 254-2, Ex. A (Chase Rebuttal Rpt.), ¶ 86 n.4; id., Ex. B (Chase Supp. Rebuttal Rpt.), ¶ 108 (“I agree that each video representation asset and each audio track asset is stored as a file . . . .”)3 Thus, both parties’ experts agree that each representation of Hulu’s accused SVOD movies and TV episodes is a “file.” Hulu does not dispute this in its Motion, and indeed admits that “each representation is stored as a distinct file.” Mot. at 13; id. (“the multimedia content is stored as a plurality of files”). Likewise, Despite the above proof, Hulu argues that (1) “the accused on-demand videos” are not “SM objects” because and (2) that the different representations of a given on-demand video are separate files. Mot. at 12-13. Hulu’s first argument is simply a rehash of its earlier argument (discussed in Section IV.A.1 above) that the client application’s request is not a “request for an SM object” because the entire movie is not delivered to the client in response to that single request. 4 3 the extent Hulu is contending that d must be an independent file, H is not a file, and contradicts its own witness testimony that each REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 14 of 27 Page ID #:18665 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 11 Case No. LACV17-04146 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 As for Hulu’s second argument, Hulu admits that “each representation [of, e.g., a movie] is stored as a distinct file.” Mot. at 13. Therefore, at a minimum, there is a genuine dispute of material fact as to whether Hulu’s SVOD Platform satisfies the “file” aspect of the Court’s construction of “SM object,” and summary judgment is therefore inappropriate. See, e.g., Rivera v. Remington Designs, LLC, No. LA CV16-04676 JAK (SSx) D.I. 196 at 11 (C.D. Cal. Aug. 28, 2018) (denying summary judgment of non-infringement when “competing testimony” of experts “shows only that there is a question of material fact as to whether the Accused Products” meet a claim element); Voice Int’l, Inc. v. Oppenheimer Cine Rentals, LLC, No. LA CV15-08830 JAK (KSx), 2018 WL 3830030, at *5 (C.D. Cal. Jan. 18, 2018) (citing Uniloc USA, Inc. v. Microsoft Corp., 632 F.3d 1292, 1302 (Fed. Cir. 2011)) (“[A]ssessing allegations of infringement by applying the claims to the accused products presents a question of fact.”); MyKey, D.I. 360 at 18. 3. The Accused Video Data “Has Temporal Characteristics Such That The Data May Become Useless Unless The Transmission Rate Is Regulated.” No dispute exists that the accused video data may become useless to an end user if the rate at which it is transmitted to (and thus received by) the end user is either too slow (resulting in a lack of data to display to the user) or too fast (resulting in potentially more data arriving at the client device than can be stored at the client buffers for of a particular “file format.” Indeed, Hulu cites no proof establishing that such of a video are not files. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 15 of 27 Page ID #:18666 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 12 Case No. LACV17-04146 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 playback). Richardson Decl., Ex. 1 (Richardson Supp. Rpt.), ¶ 36; Ginnings Decl., Ex. 1 (Chase Dep. Tr.), 136:4-137:10. Indeed, the construction of “SM object” explicitly mentions “video files” as an example-“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. No. 148 at 17 (emphasis added). Hulu argues that the “transmission” of its on-demand assets does not have “temporal characteristics such that the data become useless unless the transmission rate is regulated in accordance with predetermined criteria” as required by the Court’s construction of “SM object” for the following reasons: (1) the “edge servers do not use the sliding window buffers described by the [asserted] patents”; and (2) Hulu prevents video from becoming useless by putting responsibility on the client to regulate the timing of when it requests segments and which quality level it requests. None of Hulu’s arguments demonstrate a lack of proof that its on-demand assets meet the “become useless unless the transmission rate is regulated in accordance with predetermined criteria” requirement of the Court’s construction of “SM object.” First, nothing in the Court’s construction of “SM object” requires the use of a sliding window buffer in order to prevent data from becoming useless. Indeed, different asserted claims recite different types of buffers (e.g., a “ring buffer” in ’213 patent claim 1 (which the Court has separately construed), and a “buffer” in ’213 patent claim 16). Hulu’s attempts to add a “sliding window” requirement into the Court’s construction of “SM object” is unsupported and should be rejected. Second, Hulu’s client applications do in fact regulate the transmission rate of SM objects through adaptive bitrate functionality, which regulates the amount of data the client requests and receives over a given period of time by switching between higher and lower quality representations of the video data for the very purpose of delivering video content to a user in a timely manner. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 16 of 27 Page ID #:18667 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 13 Case No. LACV17-04146 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 Thus, Sound View has ample proof that Hulu’s accused platforms meet the “temporal characteristics such that the data become useless unless the transmission rate is regulated” aspect of the Court’s construction of “SM object.” Hulu’s contrary assertions at most highlight the existence of a genuine dispute of material fact. B. Hulu’s Accused Platforms “Adjust[] A Data Transfer Rate” (’213 Patent, Claim 16). The edge servers for which Hulu specifically contracts with CDNs to deliver video files to client devices change the amount of data they send over a given time period (i.e., rate of transfer of data) in response to requests from client devices to downgrade or upgrade the quality of the video (also called Adaptive Bitrate (“ABR”) functionality) delivered to the clients. Hulu argues that its on-demand assets do not meet the “adjusting a data transfer rate…” element of ’213 patent claim 16 (for which the Court determined that no construction was necessary) for the following reasons: (1) the ABR functionality in Hulu’s accused platforms merely adjusts the quality level of the video; (2) the accused adjusting is requested by the client application, not the helper server (i.e., the impetus for making the adjustment comes from the client); (3) claim 16 is allegedly limited to methods of adjusting a data transfer rate that reduce the time delay in beginning playback, which Hulu’s ABR functionality allegedly does not perform. But those arguments overlook how ABR actually impacts the amount of data sent to a client device over a given time period, and are based on reading limitations into the claims. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 17 of 27 Page ID #:18668 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 14 Case No. LACV17-04146 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 Specifically, none of Hulu’s arguments demonstrate a lack of proof that its accused platforms meet the “adjusting a data transfer rate…” limitation of claim 16 because: (1) the way that Hulu uses ABR does in fact adjust the data transfer rate; (2) the Court already rejected Hulu’s argument during the Markman phase of the case that the helper server must “control” the claimed “adjusting”; (3) although the Court also rejected Hulu’s arguments during the Markman phase of the case that the claimed “adjusting” must be done in furtherance of reducing startup delay, the accused mechanism actually does reduce startup latency and is used for that purpose. a. Hulu’s Use Of Adaptive Bitrate Adjusts The Amount Of Data Sent To A Client Over A Given Time Period. Hulu does not dispute that the amount of data sent to a client over a given time period is a function of the quality level at which the video is encoded. Ginnings Decl., Ex. 1 (Chase Dep. Tr.), 171:3-172:3. ABR is a process in which a client may, during the process of playback of a given movie (for example), change which quality level it requests when requesting segments of video. Dkt. No. 272-17 (Richardson Opening Rpt.), ¶¶ 167, 181, 412-414. A reasonable jury could find based on the evidence here that when edge servers change the quality level of video delivered to a client over the course of playback of a given movie or TV program, they adjust the rate of transfer of data for a given period of time. Hulu argues that the accused use of ABR cannot constitute “adjusting a data transfer rate” because: (1) edge servers always send data “as fast as the network allows”; (2) and (3) Sound View made statements in prosecution of a separate patent that allegedly distinguish ABR from adjustments of a data transfer rate. First, whether edge servers send data “as fast as the network allows” is irrelevant because the issue is whether the edge server changes the amount of data it transmits over a given time period. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 18 of 27 Page ID #:18669 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 15 Case No. LACV17-04146 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 Second, neither Dr. Guo’s testimony nor the ’796 patent file history support a different conclusion. The testimony from Dr. Guo that Hulu cites (Mot. at 19 (citing Dkt. No. 272-23 at 233:17-237:24)) and the portion of the ’796 patent prosecution history Hulu cites (id. (citing Dkt. No. 259, Ex. 42 at SVI-HULU00001691)) do not concern ABR functionality at all, but instead concern “quality adaptation.” As Dr. Guo explained, ABR functionality does not involve instead, as discussed above, ABR functionality involves requesting higher or lower bitrate representations of the video. Dkt. No. 272-17 (Richardson Opening Rpt.), ¶¶ 167, 181, 412-414. Dr. Guo’s testimony and the ’796 patent prosecution history are inapplicable here. b. The Court Rejected Hulu’s Argument That The Helper Server Must “Control” The Claimed “Adjusting” And Cannot Adjust The Data Transfer Rate At The Request Of A Client. Hulu’s argument that the accused functionality cannot meet the “adjusting” requirement because the edge server merely performs the adjusting in response to requests or instructions from a client device (“in response to changing network conditions”) to deliver a different quality level of video is simply a repeat of the same argument it made and lost in claim construction. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 19 of 27 Page ID #:18670 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 16 Case No. LACV17-04146 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 Dkt. No. 67 at 22 (Hulu’s Opening Claim Construction Brief). The Court expressly rejected Hulu’s argument: With respect to the first dispute, Plaintiff adopts an interpretation of the “adjusting a data rate” phrase that would encompass “adjusting the data rate under the control of something other than the helper server (e.g., in response to a request or instruction from the client to use a certain data range).” Dkt. 73 at 12. Defendant disputes this position (Dkt. 78 at 9) and argues that the patent disclosure requires that the adjustment be controlled by the helper server. Dkt. 72 at 22-23 (citing ’213 Patent at 9:49-51). [. . .] In the context of the surrounding disclosure, the statement in the patent specification that the data transfer rate from the HS to the client is “the only parameter under the control of the HS to improve start-up latency” is ambiguous. Therefore, it does not warrant limiting the scope of the phrase “adjusting a data transfer rate at said one of said plurality of HSs” as Defendant proposes. [. . .] Moreover, as Plaintiff notes, the specification “never states that the helper server has exclusive control over any adjustment, or that it cannot adjust the rate in response to, for example, a request from a client.” Dkt. 80 at 6. Dkt. No. 148 at 10. Because Hulu’s argument is premised on an expressly rejected interpretation of the claims, summary judgment based on Hulu’s argument is not appropriate. See, e.g., In re Katz Interactive Call Processing Patent Litig., No. MDL 2:07-CV-2192-B, 2013 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 20 of 27 Page ID #:18671 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 17 Case No. LACV17-04146 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 WL 3223382, at *12 (C.D. Cal. June 12, 2013) (denying summary judgment of non- infringement when defendant’s argument was “simply a variation of a position this Court previously rejected” in its claim construction order); Asetek Holdings, Inc. v. CoolIT Sys., Inc., No. C-12-4498 EMC, 2014 WL 4090400, at *10 (N.D. Cal. Aug. 19, 2014) (denying summary judgment of non-infringement when defendant’s “argument [was] predicated on rejected claim constructions”); cf. Intellectual Ventures I LLC v. Nextel Operations, Inc., No. CV 13-1670-LPS, 2017 WL 2304006, at *6 (D. Del. May 19, 2017), vacated on other grounds and remanded sub nom. Intellectual Ventures I LLC v. T-Mobile USA, Inc., 902 F.3d 1372 (Fed. Cir. 2018) (granting summary judgment of non-infringement when plaintiff’s opposition “depend[ed] entirely on a claim construction position the Court ha[d] rejected”). c. The Court Also Already Rejected Hulu’s Arguments That The Claimed “Adjusting” Must Be Performed For The Purpose Of Reducing Startup Delay. Hulu once again advances an argument based on repeating a claim construction it lost in the Markman phase of the case. Specifically, Hulu argues that the “adjusting a data transfer rate…” step must be performed to “reduc[e] latency,” which Hulu further argues is limited to “delays between the time video content is requested by a client and the time when the video content actually begins playing.” Mot. at 21 (quoting ’213 patent at 1:66-2:1). Hulu asserts, as it did during claim construction, that the only “adjustment” that satisfies claim 16’s alleged purpose of “reducing latency” is the adjustment of the data transfer rate from the fastest allowed by the available bandwidth to the content server’s playback rate. See Mot. at 21-22; Dkt. No. 72 at 23. The Court rejected those exact arguments in its claim construction order: As to the parties’ second dispute, Defendant argues that the specification describes only one “adjustment” in data transfer rate that can meet Claim 16’s recited goal of “reducing latency in a network.” [. . .] Defendants’ proposal, which requires the transfer rate to change “from the fastest rate allowed by the network bandwidth to the content REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 21 of 27 Page ID #:18672 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 18 Case No. LACV17-04146 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 server’s playback rate,” is inconsistent with the disclosure in the specification regarding this embodiment. Thus, it would exclude a scenario anticipated by the specification where the average rate of transfer between the helper server and the client is slower than the rate of transfer between the content server (or other source) and the helper server. [. . .] Even if Defendant’s proposed construction took into account the disclosure in the patent of a scenario of a slower transfer rate between the helper server and the client, it would still improperly limit the scope of Claim 16 to a particular disclosed embodiment in the patent specification. Dkt. No. 148 at 11. Because Hulu’s argument rests on a rejected interpretation of the claims, summary judgment based on that argument is not appropriate. See, e.g., In re Katz, 2013 WL 3223382, at *12; Asetek, 2014 WL 4090400, at *10; cf. Intellectual Ventures, 2017 WL 2304006, at *6. Moreover, Hulu’s use of ABR in fact reduces latency, including startup latency. Richardson Decl., Ex. 1 (Richardson Supp. Rpt.), ¶ 74; Ginnings Decl., Ex. 1 (Chase Dep. Tr.), 172:5-7. In contrast, Hulu’s expert included no testing in his reports. Ginnings Decl., Ex. 1 (Chase Dep. Tr.), 105:24-107:20. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 22 of 27 Page ID #:18673 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 19 Case No. LACV17-04146 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. The Other Elements Of The Asserted Claims Are Met By The Hulu Accused Products. 1. ’213 Patent a. Helper Server Hulu’s argument that edge servers are not the claimed “helper servers” is a rehash of its arguments earlier in its motion (and addressed above) that edge servers must “consider the logical relationship” between video segments and that edge servers deal in video objects that don’t qualify as the claimed “SM objects.” As explained above, none of those argument support summary judgment of non-infringement because numerous disputes of material fact exist regarding whether the accused video data constitutes an “SM object,” and Hulu’s attempt to import a requirement of “considering the logical relationship” between video segments is improper. b. The Accused Processes Meet All Other Elements Of The ’213 Patent Asserted Claims. While Hulu’s motion does not allege that the accused processes fail to meet other elements of the ’213 patent, sufficient proof exists that Hulu’s accused platforms meet all of the limitations of the asserted claims. For example, Sound View has shown how Hulu’s SVOD Platform meets each element of claim 16 of the ’213 patent (Dkt. No. 272-17 (Richardson Opening Rpt.), 372-385, 386-388, 395-397, 400-405, 410-414), as well as how Hulu directs and controls the performance of the steps of that claim (Dkt. No. 272-17 (Richardson Opening Rpt.), ¶¶ 389-394, 398, 399, 406-409, 415-417). 2. ’074 Patent a. Helper Server Hulu’s argument is the same here as with the ’213 patent, and fails for the same reasons. b. Replacement/Deletion of Portion(s) Of SM Objects. Hulu argues that: (1) REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 23 of 27 Page ID #:18674 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 20 Case No. LACV17-04146 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 None of Hulu’s arguments demonstrate a lack of proof that its accused platforms meet the limitations of the’074 patent asserted claims because: (1) nothing in the Court’s construction of “SM object” requires that “SM objects” be “an entire video or broadcast”; (2) and (3) the claims impose no requirement that . Hulu’s argument that an “SM object” must be “an entire video or broadcast” was rejected in the Court’s claim construction order. Dkt. No. 148 at 16 (“There is insufficient disclosure in the specification to support construing ‘SM object’ to limit it to require Defendant’s proposed ‘entire media file’ limitation as that limitation seemingly has been argued by Defendant.”) Hulu’s argument that the ’074 patent claims must receive “an entire video or broadcast” is thus contrary to the Court’s claim construction, and cannot be a basis for summary judgment.5 Hulu’s argument regarding Level 3 is flawed as well. Hulu argues that Mot. at 24. Hulu never explains why that would be true, and the wording of Hulu’s argument (i.e., “ ”) further suggests its shortcoming. Hulu’s argument also ignores the testimony of a Level 3 witness (Mr. Utz) that indicated at least Ginnings Decl., Ex. 5 (Utz Dep. Tr.), 62:4-65:10. Thus, there is at a minimum 5 Moreover, Hulu’s argument that “[f]iles in the CDN edge server caches are either completely REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 24 of 27 Page ID #:18675 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 21 Case No. LACV17-04146 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 genuine issue of material fact concerning whether Summary judgment is therefore inappropriate. Finally, nothing in the language of claims requires that the “determining” step (which appears in claim 3) be performed . Instead, that step merely requires “determining whether there is a disk space available on said one of said plurality of [helper servers].” Moreover, Sound View has introduced evidence that Dkt. No. 272-18 (Knox Dep. Tr.), 181:9-183:1; Ginnings Decl., Ex. 3 (Knox Dep. Tr.), 237:11-240:1; Knox Dep. Ex. 5 (“As the cache on a server fills up, our software looks for the least recently used objects in its cache and evicts them to make room for new objects.”); Dkt. No. 272-21 (Newton Dep. Tr.), 116:18-121:6. c. The Accused Processes Meet All Other Elements Of The ’074 Patent Asserted Claims. While Hulu’s motion does not allege non-infringement of other elements of the ’074 patent, significant proof exists that Hulu’s accused platforms meet all of the limitations of the asserted claims. For example, Sound View has shown how Hulu’s SVOD Platform meets each element of claims 3 and corrected and uncorrected claim 9 of the ’074 patent (Dkt. No. 272-17 (Richardson Opening Rpt.), ¶¶ 715-732, 739-741, 744-748, 752-756, 759-762, 777-793, 800-802, 805-812, 816-819), as well as how Hulu directs and controls the performance of the steps of those claims (Dkt. No. 272-17 (Richardson Opening Rpt.), ¶¶ 733-738, 742, 743, 749-751, 757, 758, 763, 794-799, 803, 804, 813-815, 820, 821). V. CONCLUSION For at least the foregoing reasons, the Court should deny Hulu’s motion for summary judgment of non-infringement of the ’213, ’796, and ’074 patents. REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 25 of 27 Page ID #:18676 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 22 Case No. LACV17-04146 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 18, 2019 By: /s/ Benjamin T. Wang RUSS AUGUST & KABAT Marc A. Fenster Benjamin T. Wang Kent N. Shum 12424 Wilshire Boulevard, 12th Floor Los Angeles, California 90025 Tel: (310) 826-7474 Fax: (310) 826-6991 mfenster@raklaw.com bwang@raklaw.com kshum@raklaw.com Of Counsel: DESMARAIS LLP Alan S. Kellman (admitted pro hac vice) Richard M. Cowell (admitted pro hac vice) C. Austin Ginnings (admitted pro hac vice) Jennifer M. Przybylski (admitted pro hac vice) 230 Park Avenue New York, NY 10169 Tel: (212) 351-3400 Fax: (212) 351-3401 akellman@desmaraisllp.com rcowell@desmaraisllp.com aginnings@desmaraisllp.com jprzybylski@desmaraisllp.com Peter C. Magic (SBN 278917) 101 California Street, Suite 3070 San Francisco, CA 94111 Tel: (415) 573-1900 Fax: (415) 573-1901 pmagic@desmaraisllp.com Attorneys for Plaintiff Sound View Innovations, LLC REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 26 of 27 Page ID #:18677 SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 23 Case No. LACV17-04146 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 Certificate of Service I hereby certify that a copy of the foregoing document was filed electronically in compliance with Local Rule 5-3.2. Therefore, this document was served on all counsel who are deemed to have consented to electronic service. Pursuant to Federal Rule of Civil Procedure 5(d) and Local Rule 5-3.2, all other counsel of record not deemed to have consented to electronic service were served with a true and correct copy of the foregoing by email on March 18, 2019. ____/s/ Benjamin T. Wang_______________ REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEALCase 2:17-cv-04146-JAK-PLA Document 322 Filed 03/18/19 Page 27 of 27 Page ID #:18678