SOUND VIEW INNOVATIONS, LLC’S OPPOSITION TO HULU’S
MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT
Case No. LACV17-04146 JAK (PLAx)
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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(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.
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
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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)
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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
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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.
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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
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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_______________
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