REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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. Przybylski (admitted pro hac vice) 230 Park Avenue New York, New York 10169 Tel: (212) 351-3400 Fax: (212) 351-3401 DESMARAIS LLP Peter C. Magic (SBN 278917) pmagic@desmaraisllp.com 101 California Street San Francisco, CA 94111 Tel: (415) 573-1900 Fax: (415) 573-1901 Attorneys for Plaintiff Sound View Innovations, LLC IN THE 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) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 Date: April 15, 2019 Time: 8:30am Hon. John A. Kronstadt Courtroom 10B Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 1 of 32 Page ID #:19437 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 I. The ’062 Patent Is Not Invalid Under Section 101 .............................................. 1 A. Background And Statement Of Facts......................................................... 2 1. The ’062 Patent Is Directed To A Software Development Environment With Reusable Software Operators. .......................... 2 2. The Court’s Denial Of Hulu’s Motion To Dismiss And Subsequent Claim Construction Proceedings. ................................. 4 B. Applicable Legal Standards. ...................................................................... 4 1. Summary Judgment. ........................................................................ 4 2. Subject Matter Eligibility Under 35 U.S.C. § 101. ......................... 5 (a) Alice Step One: Is The Claim Directed To A Patent- Ineligible Concept? ................................................................ 5 (b) Alice Step Two: Do The Claim Elements, Considered As A Whole, Recite An Inventive Concept? ......................... 6 C. Argument. ................................................................................................... 6 1. The ’062 Patent Is Not Directed To An Abstract Idea. ................... 6 (a) The Claimed Invention Solves A Particular Problem Rooted In Computing Technology. ....................................... 7 (b) The ’062 Patent Claims A Specific Improvement In Computer Capabilities, Not An Abstract Idea Implemented Using Generic Computer Technology As A Tool. ................................................................................... 8 2. The ’062 Patent Also Claims An Inventive Concept. ................... 12 3. The Court’s Claim Construction Did Not Resolve Any Factual Disputes Regarding The Patent Eligibility Of The ’062 Patent. .................................................................................... 14 II. Hulu Infringes Claim 14 of the ’062 Patent ....................................................... 16 A. Background And Statement Of Facts....................................................... 17 B. Legal Standard For Summary Judgment Of Non-Infringement. ............. 19 C. Argument. ................................................................................................. 20 1. Hulu’s Argument Regarding Links Fails Because The Text Of A Web Address In A Field Does Not Refer To A Record. ...... 20 Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 2 of 32 Page ID #:19438 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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. Hulu’s Argument Regarding Images Fails Because Text Representing The Location Of An Image File Does Not Refer To A Record That Is Not Self-Contained. ........................... 24 III. CONCLUSION .................................................................................................. 25 Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 3 of 32 Page ID #:19439 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354 (Fed. Cir. 2018) ................................................................................ 15 Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014) ....................................................................................... passim Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .............................................................................................. 5, 19 Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013) ............................................................................................... 5 BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) ................................................................................ 13 Berkheimer v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018) ........................................................................ 2, 6, 16 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................... 4 Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343 (Fed. Cir. 2014) ................................................................................ 13 Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018) ................................................................................ 10 Data Engine v. Google LLC, 906 F.3d 999 (Fed. Cir. 2018) .................................................................................. 11 DDR Holdings, LLC v. Hotels.com, LP, 773 F.3d 1245 (Fed. Cir. 2014) ............................................................................ 6, 12 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) ................................................................ 5, 6, 7, 9, 10 Maxell, Ltd. v. Fandango Media, LLC, No. CV 17-07534 AG (SSX), 2018 WL 4502492 (C.D. Cal. Sept. 11, 2018) ...13-14 McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir. 2016) ........................................................................ 6, 9, 10 MyKey Tech., Inc. v. Intelligent Computer Solutions, Inc., No. 2:13-ml-02461-AG (PLAx), D.I. 360 (C.D. Cal. Nov. 16, 2016) ............... 20, 23 Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043 (Fed. Cir. 2001) ................................................................................ 19 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 Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 4 of 32 Page ID #:19440 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 iv 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 sub nom. Prod. Ass’n Techs. LLC v. Clique Brands Inc., 738 F. App’x 1021 (Fed. Cir. 2018) .................................................................................................................. 11 Proxyconn, Inc. v. Microsoft Corp., No.SA CV 16-1102-DOC, 2016 WL 9109110 (C.D. Cal. Sept. 29, 2016) ............... 6 Return Mail, Inc. v. United States Postal Service, 868 F.3d 1350 (Fed. Cir. 2017) ................................................................................ 11 Rivera v. Remington Designs, LLC, No. LA CV16-04676 JAK (SSx) D.I. 196 (C.D. Cal. Aug. 28, 2018) .............. 20, 24 SAP America, Inc. v. Investipic, LLC, 898 F.3d 1161 (Fed. Cir. 2018) .......................................................................... 13, 14 Signal IP, Inc. v. Am. Honda Motor Co., No. LACV1402454JAKJEMX, 2016 WL 1693091 (C.D. Cal. Mar. 22, 2016) .. 6, 12 Vaporstream, Inc. v. Snap Inc., No. 217CV00220MLHKSX, 2018 WL 1116530 (C.D. Cal. Feb. 27, 2018) ............ 5 Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253 (Fed. Cir. 2017) ................................................................................ 11 Statutes 35 U.S.C. § 101 ............................................................................................................... 5 Rules Fed. R. Civ. P. 56(a) ....................................................................................................... 4 Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 5 of 32 Page ID #:19441 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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. THE ’062 PATENT IS NOT INVALID UNDER SECTION 101 U.S. Patent No. 5,806,062 (the “’062”) Patent is directed to a specific improvement to computing functionality. It describes and claims a novel configuration of software operators, governed by limitations that Hulu’s own expert concedes are concrete and not abstract. And those concrete limitations are what allows them to be combined to create customized data analysis applications. Hulu disregards those facts in its Alice Step One analysis. Instead, Hulu uses an incorrect high-level analogy-its third in this case-to oversimplify the claimed invention and downplay its benefits, contravening the Federal Circuit’s directive requiring analysis of the specific requirements of the claims. Accordingly, Hulu’s analysis fails Alice Step One. The Court should find as a matter of law that the asserted claim is not directed to an abstract idea and need not reach the Alice Step Two analysis. Even if the Court reaches Alice Step Two-whether the ’062 Patent claims an inventive concept-genuine issues of material fact preclude summary judgment of invalidity under § 101. This Court’s Opinion denying Hulu’s Motion to Dismiss for lack of patentable subject matter correctly held that “[w]hether reusable operators are unconventional presents a question of fact.” Dkt. 83 at 8. That question of fact remains in dispute. More than sufficient evidence exists for a reasonable jury to conclude that the claimed configuration of software operators recites an unconventional technical solution to a problem rooted in computer technology and therefore an inventive concept sufficient to confer patent-eligibility under Alice Step Two. And Hulu’s analysis, which improperly focuses on individual claim terms and high-level abstractions while ignoring the relevant claim language and constructions, cannot not establish as a matter of law that the asserted claim does not recite an “inventive concept.” Faced with this clear dispute of material fact, Hulu attempts to misdirect the Court by baselessly asserting that the construction of the term “software operator”-which the Court acknowledged was undisputed at the time of the Motion to Dismiss Opinion- resolves all factual disputes because it did not include the magic words “reusable” or Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 6 of 32 Page ID #:19442 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 “interoperable.” But ample record evidence establishes that the asserted claim, as construed, does in fact recite a class of novel software operators that are configured to be reusable and interoperable. Thus, at a minimum, factual disputes remain regarding: (i) whether the claimed configuration of software operators are reusable or interoperable; and (ii) whether the claimed configuration of software operators was “well-understood, routine, and conventional” in the art, precluding summary judgment. Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). A. Background And Statement Of Facts. 1. The ’062 Patent Is Directed To A Software Development Environment With Reusable Software Operators. The ’062 Patent is directed to a specific software structure for “creating data analysis applications using reusable software operators.” Ex. 1,1 abstract, 2:3-5. At the time of the invention, database software environments were rigid and closed. Declaration of Sigurd Meldal, Exhibit A (“Meldal Reb.”) ¶ 157; Ex. 1, 1:54-57. Each individual system comprised a limited set of operators that were specific to that system and that had access to a limited set of databases defined by the system. Meldal Reb. ¶ 157; Ex. 1, 1:44-67. Different operators in the prior art systems processed data in different ways and generated different outputs. Meldal Reb. ¶ 157; Ex. 1, 1:49-50. Because “[d]ifferent operators process the repository in a different manner, [] there [wa]s no convenient mechanism for combining the various operators to create new applications.” Meldal Reb. ¶ 157; Ex. 1, 1:49-52. Rather, “when a new application [wa]s desired, a new operator must be designed from scratch.” Ex. 1, 1:52-53. In addition, the output of a given operator within a conventional closed system could not be further processed by software operators in external systems. Meldal Reb. ¶ 158; Ex. 1, 1:60-67. Thus, at the time of the invention, there was “no convenient mechanism to 1 As used herein, “Ex.” refers to an exhibit to the Declaration of Steven M. Balcof In Support Of Plaintiff’s Opposition To Defendant’s Motion For Partial Summary Judgment Of Invalidity And Noninfringement Of U.S. Patent No. 5,806,062, filed concurrently herewith. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 7 of 32 Page ID #:19443 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 allow the repository analysis system to communicate with operators which are external to the system.” Meldal Reb. ¶ 158; Ex. 1, 1:65-67. The ’062 Patent solved these problems with an apparatus and method for creating customizable data analysis applications using reusable, interoperable software operators. See Meldal Reb. ¶ 159; Ex. 1, 2:3-19. This novel class of operators is configured to receive a virtual database in a certain format (or “schema”)2 and output the processed virtual database in that same schema. Claim 14 recites this feature: 14. 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. Ex. 1, 15:66-16:7. 3 The Court construed “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. 148 at 8. Those features of the virtual database, along with a common schema, define the specific data structure that each reusable software operator must accept as an input and must generate as an output. Meldal Reb. ¶ 161. During his deposition, Hulu’s expert confirmed that those features comprise concrete rules defining the claimed structures and not abstract ideas. Ex. 2, 205:22-25 (a virtual database is not an abstract idea); 207:11-208:8 (the Court’s construction of virtual database includes three sets of non- abstract, concrete rules that define that term); 206:22-24 (a software operator is not an abstract idea); 211:23-24 (a schema is not an abstract idea). That particular configuration ensures that the plurality of software operators claimed are reusable and interoperable and can therefore be combined into custom applications. Meldal Reb. ¶ 161; Ex. 1, 3:60-64, 5:29-33. In this way, the ’062 Patent 2 The Court construed “schema” as “format of the entire virtual database, which includes the formats of each section of the virtual database.” Dkt. 148 at 9. 3 Emphasis has been added unless otherwise noted. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 8 of 32 Page ID #:19444 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 created a novel software environment that enabled engineers to quickly and efficiently build software applications by combining multiple operators that function together as a cohesive unit. 2. The Court’s Denial Of Hulu’s Motion To Dismiss And Subsequent Claim Construction Proceedings. On April 11, 2018, this Court issued an Opinion denying Hulu’s Motion to Dismiss for lack of patentable subject matter with respect to the ’062 Patent. In denying that motion, the Court held that “[w]hether reusable operators are unconventional presents a question of fact.” Dkt. 83 at 8. The Court found “that factual dispute will not be material or ripe until the scope of the claims is fully determined” because although “[t]he parties ha[d] not specifically sought construction of the term ‘operator,’ [] some of the other claim construction disputes continue to relate to whether the claims of the ’062 Patent are drawn to operators that are reusable and interoperable.” Id. The parties had agreed to Sound View’s proposed construction of the general term “software operator” as “software that extracts or converts information from a repository.” Dkt. 67 at 1; see Ex. 3 at 2. But the constructions of other claim terms related to the configuration of the claimed software operators, including “schema” and “virtual database,” remained in dispute. Dkt. 67 at 1-2. On September 4, 2018, the Court issued an Order construing “schema” and “virtual database.” Dkt. 148 at 8, 9. B. Applicable Legal Standards. 1. Summary Judgment. Summary judgment is warranted only where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The burden is on the moving party to show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding a summary judgment motion, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A factual issue is genuine “if the evidence is Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 9 of 32 Page ID #:19445 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. 2. Subject Matter Eligibility Under 35 U.S.C. § 101. A patent may be obtained for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. Three limited exceptions apply: “laws of nature, natural phenomena, and abstract ideas are not patentable.” Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116 (2013). These exceptions are applied narrowly because “too broad an interpretation of this exclusionary principle could eviscerate patent law.” Id. Courts analyze whether a patent is directed to an “abstract idea” under 35 U.S.C. § 101 pursuant to a two-step process. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2355 (2014). “The accused infringer bears the burden of proof on both steps of the Alice inquiry. Patent ineligibility must be proven by clear and convincing evidence.” Vaporstream, Inc. v. Snap Inc., No. 217CV00220MLHKSX, 2018 WL 1116530, at *5 (C.D. Cal. Feb. 27, 2018) (internal citations omitted). (a) Alice Step One: Is The Claim Directed To A Patent- Ineligible Concept? The Alice Step One analysis determines “whether the claims at issue are directed to one of th[e] patent-ineligible concepts.” Alice, 134 S. Ct. at 2355. The step one inquiry does not “simply ask whether the claims involve a patent-ineligible concept, because essentially every routinely patent-eligible claim involving physical products and actions involves a law of nature and/or natural phenomenon.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). “Rather, the directed to inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether their character as a whole is directed to excluded subject matter.” Id. “[T]he first step of the [Alice] inquiry is a meaningful one, [and] a substantial class of claims are not directed to a patent-ineligible concept.” Id. For example, a claim that recites “limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice” is patent-eligible under Alice Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 10 of 32 Page ID #:19446 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 Step One. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1316 (Fed. Cir. 2016); see also Proxyconn, Inc. v. Microsoft Corp., No.SA CV 16-1102-DOC, 2016 WL 9109110, at *5 (C.D. Cal. Sept. 29, 2016). “[T]he first step in the Alice inquiry in this case asks whether the focus of the claims is on the specific asserted improvement in computer capabilities . . . or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” Enfish, 822 F.3d at 1335-36. A patent “specification’s teachings that the claimed invention achieves other benefits over conventional [technology]” supports the conclusion that the claims are directed to a patent-eligible invention, rather than to an abstract idea. Id. at 1337. (b) Alice Step Two: Do The Claim Elements, Considered As A Whole, Recite An Inventive Concept? If a court finds an abstract idea at Alice Step One, it must consider “the elements of each claim both individually and ‘as an ordered combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent-eligible application.” Signal IP, Inc. v. Am. Honda Motor Co., No. LACV1402454JAKJEMX, 2016 WL 1693091, at *3 (C.D. Cal. Mar. 22, 2016) (quoting Alice, 134 S. Ct. at 2355). For example, claims that specify how interactions between computers may be manipulated to solve a problem rooted in computer technology recite an inventive concept. See DDR Holdings, LLC v. Hotels.com, LP, 773 F.3d 1245 (Fed. Cir. 2014). “The second step of the Alice test is satisfied when the claim limitations involve more than performance of well-understood, routine, [and] conventional activities previously known to the industry.” Berkheimer, 881 F.3d at 1367 (internal quotation omitted). “[W]hether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact.” Id. at 1368. C. Argument. 1. The ’062 Patent Is Not Directed To An Abstract Idea. The ’062 Patent addresses a problem necessarily rooted in computer technology: the software architecture of existing data analysis systems at the time of the invention Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 11 of 32 Page ID #:19447 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 lacked a convenient mechanism for combining various data analysis operators to create new applications. Ex. 1, 1:44-53. The asserted claim remedies that problem with a particular configuration of software operators that support the flexible creation of cohesive software applications. Because that claimed solution represents a specific improvement to computer capabilities rather than an abstract idea that is merely implemented using generic computer technology as a tool, it is a patent-eligible. (a) The Claimed Invention Solves A Particular Problem Rooted In Computing Technology. Hulu concedes that the ’062 Patent describes a particular problem rooted in computer technology to be solved by the claimed invention: “[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.” Dkt. 256 at 7 (citing Ex. 1, 1:44-52). Unable to dispute that fact, Hulu claims that “the ’062 Patent does not provide any solution to this alleged problem” because the “software operators,” “virtual database,” and “combining” terms were known prior to the invention. Dkt. 256 at 7-8. But those arguments amount to a novelty analysis of individual claim terms; they do not establish whether the “character [of the claim] as a whole is directed to excluded subject matter.” Enfish, 822 F.3d at 1335. Moreover, Hulu’s conclusory assertions that the ’062 Patent does not describe any new type of operator or mechanism for combining operators find no support in the record. Dkt. 256 at 7. In support of its contention that “software operators” were known at the time of the invention, Hulu relies upon passages from the “Background of the Invention” in the specification that do not describe the claimed software structure. Id. (citing Ex. 1, 1:32-33, 1:44-53). Rather, those portions of the specification describe: (1) the software operators used in existing systems at the time of the invention that could not be not be combined to create a new application or with external operators (Ex. 1, 1:44-53), and (2) a general definition of the term “software operator” (id., 1:32-33). But, as the specification explains, the invention of the ’062 Patent relates to a new class Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 12 of 32 Page ID #:19448 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 of operators that improve upon those found in the existing systems described: reusable operators that can be combined to create new applications. Id., 2:3-19. Claim 14 is directed to that specific improvement over the prior art systems: a particular configuration of software operators that can be combined to create customizable data analysis applications. And it is precisely that claimed configuration that solves the problems identified in the specification by ensuring that the plurality of software operators are compatible and can be combined into custom applications. Meldal Reb. ¶ 161. As the specification explains, the particular configuration of operators recited Claim 14 solved the problems with existing systems-those reusable operators could be combined to create customizable new applications. See Ex. 1, 2:3- 19, 3:60-64 (“Since the input and output to a query operator is a VDB of a particular schema, any number of query operators may be connected to process information. Thus, such query operators may be used as reusable components that receive and produce VDBs of a particular format.”); id., 5:29-33 (“Users of a computer system which embodies the present invention may be provided with a library of reusable operators which may be applied to various data. Providing users with access to such a library allows the users to combine the operators to create customizable applications.”).4 Thus, Claim 14 is directed to a patent-eligible solution rooted in computer technology: a novel software environment using a particular configuration of software operators. (b) The ’062 Patent Claims A Specific Improvement In Computer Capabilities, Not An Abstract Idea Implemented Using Generic Computer Technology As A Tool. Hulu alleges-based solely on attorney argument-that the claimed invention is 4 Hulu’s assertion that the claim does not require the creation of more than one software application is irrelevant to whether the claimed configuration solved the problems identified in the specification. Dkt. 256 at 9. As Dr. Meldal explained, the particular limitations governing the claim ensure that the claimed operators are compatible and can therefore be combined to create applications. Meldal Reb. ¶ 161. Thus, that claimed configuration represents an improvement to the existing systems described in the specification involving operators that could not be combined. Ex. 1, 1:44-67. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 13 of 32 Page ID #:19449 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 directed to merely “combining thins[sic] that takes[sic] the same input and output.” Dkt. 256 at 8. In support of that new articulation of the claimed invention, Hulu discards the analogy promulgated in its Motion to Dismiss-“combining two or more instructions . . . e.g., heat before serving, chew before swallowing, or look both ways before crossing the street”-and its expert’s analogy to combining physical Lego blocks. Dkt. 36-1 at 14, Ex. 4 ¶ 217. Instead, Hulu tries an entirely new analogy: combining two mathematical operators, for example, “multiply by 2” and “multiply by 3.” Dkt. 256 at 8. But Hulu’s shifting articulation of the claimed invention-as a concept broad enough to encompass combining anything from instructions to physical Lego blocks to mathematical operations-“describ[es] the claims at such a high level of abstraction and untethered from the language of the claims, [it] all but ensures that the exceptions to § 101 swallow the rule.” Enfish, 822 F.3d at 1337. And, it improperly “oversimplify[ies] the claim[] by looking at [it] generally and failing to account for the specific requirements of the claims.” McRO, 837 F.3d at 1313. Indeed, Hulu’s mathematical operation example is not a suitable analogy for the claimed invention. Hulu concedes that the software operators of Claim 14 “extract or convert information from a repository.” Dkt. 256 at 7. But “multiply by 2” and “multiply by 3” do not extract, convert, or operate on information from a repository. And, numbers-the inputs and outputs of mathematical operations-are not analogues for the virtual databases comprising the inputs and outputs of Claim 14. The claimed virtual database is a particular data structure: “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. 148 at 8. Thus, Hulu’s mathematical operation example is wholly untethered to the ’062 Patent. Rather than merely claiming an abstract idea, Claim 14 discloses a particular way of configuring software operators to improve upon existing software environments. Meldal Reb. ¶ 161; see McRO, 837 F.3d at 1316 (holding that a claim that “uses the Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 14 of 32 Page ID #:19450 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice,” is not directed to an ineligible abstract idea). Like the claims at issue in McRO, Claim 14 is “limited to rules with specific characteristics.” Id. at 1313. For example, the claimed software operators must be configured to both receive and to generate as an output a “virtual database,” which the Court has construed to require concrete and specific limits as to the data structure. Meldal Reb. ¶ 161. In addition, the claim itself requires that those software operators are configured to receive and generate virtual databases with a common “schema,” or format. Id. In fact, Hulu’s expert admitted that the claim language and the Court’s construction of virtual database provide concrete rules defining the claimed structures and not abstract ideas. Ex. 2, 205:22-25 (a virtual database is not an abstract idea); 207:11-208:8 (the Court’s construction of virtual database includes three sets of concrete rules that define that term); 206:22-24 (a software operator is not an abstract idea); 211:23-24 (a schema is not an abstract idea). Those concrete and specific claim requirements provide a solution to the problem identified in the specification by ensuring that the plurality of software operators are compatible and can be combined into custom applications. Meldal Reb. ¶ 161. That particular way in which the asserted claim addresses the identified computer-specific problem grounds it as an improvement to computer capabilities rather than in the abstract idea of combining operations. See McRO, 837 F.3d at 1316; Enfish, 822 F.3d at 1337-38 (finding claims reciting a self- referential table for a computer database eligible because the claims were directed to a specific rules that enabled a particular improvement in the computer’s functionality); Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1362 (Fed. Cir. 2018) (holding claims patentable because “[a]lthough the generic idea of summarizing information certainly existed prior to the invention, these claims are directed to a particular manner of summarizing and presenting information in electronic devices”). The cases Hulu cites in its Alice Step One analysis, on the other hand, are distinguishable because the challenged patents therein simply invoked generic Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 15 of 32 Page ID #:19451 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 computing technology as a means to an end; they did not improve the functioning of computing technology itself. Dkt. 256 at 8-10. Patents that fall within that paradigm are ineligible because “[t]he focus of the claims is not on . . . an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools.” 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). For example, in Clique Media, the asserted claims were directed to simply automating the “age-old fixture of information kiosks in a mall” using generic computer functionality, including cross- referencing, as a tool for that automation. Id. Similarly, the claims in Return Mail, Inc. v. United States Postal Service involved using generic computer technology as a tool to automate a process that had previously been performed by the human mind-encoding and decoding mail recipient information. 868 F.3d 1350, 1368 (Fed. Cir. 2017). Unlike the claims at issue in those cases, the asserted claim here is not directed to automating a well-known process using generic computer functionalities but rather to a particular configuration software operators that improves computer capabilities; it is therefore patent-eligible. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1260-62 (Fed. Cir. 2017) (holding that although the abstract concept of categorical data storage underlay the patent claims, those claims were not directed to an unpatentable abstract idea because “they focused on a specific asserted improvement in computer capabilities . . . instead of on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.); see also Data Engine v. Google LLC, 906 F.3d 999, 1011 (Fed. Cir. 2018) (rejecting an argument that claims relating to navigating three- dimensional spreadsheets using tabs were directed to an abstract idea of using tabs to organize information as “fail[ing] to appreciate the functional improvement achieved by the specifically recited notebook tabs in the claimed methods.”) Like the asserted claims in Visual Memory and Data Engine, Claim 14 solved a particular problem rooted in computer technology-the lack of a mechanism for combining software operators to Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 16 of 32 Page ID #:19452 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 create a new application-with a specific improvement to computer capabilities-the claimed configuration of software operators governed by concrete rules-and is therefore patent-eligible. 2. The ’062 Patent Also Claims An Inventive Concept. Claim 14 of the ’062 Patent claims an inventive concept because its limitations include concrete metes and bounds specifying how to solve a particular problem rooted in computer technology. As explained above, the claimed invention is directed to solving a problem necessarily rooted in computer technology: at the time of the invention, existing systems lacked a “mechanism for combining the various operators to create new applications” or “to allow the repository analysis system to communicate with operators which are external to the system.” Ex. 1, 1:49-52, 1:64-67. Moreover, that claimed invention recites particular way of solving that problem by providing software operators configured to be compatible and enabling them to be combined into custom applications. See Meldal Reb. ¶¶ 157-162. For example, the limitations of Claim 14 require that the claimed operators are configured to receive and generate as output virtual databases in a common schema. Id. ¶¶ 161-162. And the Court’s construction of “virtual database” provides additional concrete rules defining the particular data structure the claimed operators are configured receive, process, and generate in the claimed configuration. Id.; Ex. 2, 207:11-208:8. Those particular requirements of Claim 14 comprise “meaningful limitations that represent sufficiently- inventive concepts.” See Signal IP, 2016 WL 1693091, at *8 (holding that a claim directed to a process for combining the two data sets into one recited an “inventive concept” because “it included specific limitations that recite a specific process for transforming two types of data into a single, efficient data stream”). Because Claim 14 provides a concrete limitations that “specify how” that technical solution can be achieved-using a novel configuration of software operators-rather than “applying a known business process to [a] particular technological environment,” it claims a patent- eligible “inventive concept.” See DDR Holdings, 773 F.3d at 1258-1259. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 17 of 32 Page ID #:19453 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 Hulu recycles arguments from its Motion to Dismiss that individual claim terms-“software operators” and “virtual databases”-were known in the art at the time of the invention. Dkt. 256 at 10-11. Hulu’s also asserts that no “ordered combination” of steps in claim 14 creates an innovative concept, relying solely on attorney argument recasting the elements of the claim as generally and simplistically as possibly. Id. For example, Hulu’s contends that “[t]he step of ‘providing’ a plurality of software operators is thus nothing more than a necessary prerequisite to ‘combining at least two’ software operators,” mischaracterizes that limitation by ignoring the majority of the claim language and the Court’s constructions. Id. For example, Hulu fails to even mention the construction of “virtual database” or to address the requirement that those operators receive a virtual database in a certain “schema” and output the processed virtual database in that same schema. Dkt. 256 at 10-12. Critically, Hulu fails to analyze whether the claimed software operators-operators with the particular configuration required by the claim-involve more than performance of “well- understood, routine, and conventional activities previously known to the industry.” BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349-50 (Fed. Cir. 2016) (“The inventive concept inquiry requires more than recognizing that each claim element, by itself, was known in the art.”). Thus, Hulu cannot establish that the claimed configuration as a whole does not recite an “inventive concept.” 5 Hulu’s assertion that “limiting the claim to a particular field of information- here, a ‘virtual database’ does not move the claims out of the realm of abstract ideas” does not advance its argument. Dkt. 256 at 11-12 (citing SAP America, Inc. v. Investipic, LLC, 898 F.3d 1161, 1169 (Fed. Cir. 2018); Maxell, Ltd. v. Fandango Media, 5 The case Hulu relies upon is distinguishable. Dkt. 256 at 11 (citing Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014). In Content Extraction, the claims did not recite an “innovative concept” because, unlike Claim 14, they were directed to using generic computer functionalities-existing scanning and processing technology-to automate processes that humans perform- extracting data from documents and recognizing and storing information. Id. at 1348. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 18 of 32 Page ID #:19454 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 LLC, No. CV 17-07534 AG (SSX), 2018 WL 4502492, at *8-9 (C.D. Cal. Sept. 11, 2018).) In SAP, the Federal Circuit found that claims applying an idea of statistically analyzing data in a particular “field of information”-“investment information”-did not provide an inventive concept. 898 F.3d at 1169. In Maxwell, the Court found that in claims directed to “implementing rules based on certain time constraints” using conventional computer network components, the information regarding those temporal requirements failed to provide an inventive concept. 2018 WL 4502492, at *8-9. Unlike the claims at issue in those cases, Claim 14 is directed to an improvement to computer software architecture itself-not the use of generic computing technology as a tool to automate a known process. Further, the claimed “virtual database” comprises a particular data structure (defined by the concrete metes and bounds of the Court’s construction) that limits configuration of the software environment claimed. It is not merely a “field of information”-like the investment information in SAP or the temporal requirements in Maxwell-that humans have long processed using a pen and paper. 3. The Court’s Claim Construction Did Not Resolve Any Factual Disputes Regarding The Patent Eligibility Of The ’062 Patent. Hulu argues that the agreed upon construction of the term “software operator”- which was adopted prior to the Court’s denial of Hulu’s Motion to Dismiss-somehow resolves all factual issues relating to the § 101 analysis of the ’062 Patent in that opinion. Dkt. 256 at 6-7. That argument mischaracterizes the record and fails as a matter of law. Hulu asserts, without citation, that “Soundview 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,” and that whether the claimed operators are reusable or interoperable is therefore “no longer an issue.” Id. That assertion is demonstrably false. In denying Hulu’s Motion to Dismiss, the Court acknowledged that the construction of the “operator” was not in dispute, but nonetheless found that “some of the other claim construction disputes continue to relate to whether the claims of the ’062 Patent are drawn to operators that are reusable and interoperable,” Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 19 of 32 Page ID #:19455 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 precluding an analysis of the patentability of the ’062 Patent. Dkt. 83 at 8; see Dkt. 67 at 1. The constructions of other terms relevant to the configuration of the claimed software operators-“schema” and “virtual database”-remained in dispute. Id. at 1-2. Thus, the construction of “software operator” did not resolve the referenced disputes. Moreover, Sound View has identified ample evidence establishing that the particular configuration recited in Claim 14, as construed by the Court, includes reusable operators. For example, Sound View’s expert submitted a report explaining in detail his conclusion that the asserted claim is directed to novel reusable operators. Meldal Reb. ¶¶ 154-166. As Dr. Meldal explained, the particular configuration of software operators required by the language of Claim 14 as well as the Court’s construction of “virtual database” and “ensures that the plurality of reusable software operators are compatible and can be combined into custom applications.” Id. ¶ 161. Dr. Meldal also concluded that the particular configuration claimed was a novel solution to the technical problems identified in the specification. Id. ¶¶ 157-159, 164-165. Hulu, on the other hand, points to no record evidence demonstrating (i) that the claimed operators are not reusable or interoperable, or (ii) that the claimed operators were conventional. Rather, Hulu’s argument is premised solely on the faulty assumption that because the term “software operator” itself was not construed using the magic words “reusable” or “interoperable,” the claim as a whole cannot recite a particular configuration of software operators that are reusable and interoperable. Dkt. 256 at 6-7.6 But, as explained above, while the general definition of “software operator” may be broad enough to encompass multiple configurations of software operators, Claim 14 is directed to a particular configuration of “software operators”-reusable 6 Hulu’s legal support for this argument-a quotation taken from Judge Reyna’s dissent from the denial of en banc review-does not support its position. Dkt. 256 at 6-7 (citing Aatrix Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1367 (Fed. Cir. 2018). While arguments relating to an innovative concept that is untethered to the claim may indeed be ignored, here there is sufficient evidence to support a conclusion that the claim limitations do include the innovative concept of reusable operators. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 20 of 32 Page ID #:19456 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 operators that may be combined to create new applications. Because, at a minimum, factual disputes exist regarding whether the claimed configuration of software operators were “well-understood, routine, and conventional” in the art at the time of the invention, Hulu’s argument fails as a matter of law. Berkheimer, 881 F.3d at 1368. II. HULU INFRINGES CLAIM 14 OF THE ’062 PATENT Hulu’s motion for partial summary judgment of non-infringement is premised on its theory that two particular fields-“href” and “src”-refer to records that are not contained within the DOM. Dkt. 256 at 19-20. But the evidence establishes that neither of those fields refers to a record at all, let alone a record not contained in the DOM. The “href” field of an anchor tag does not refer to records from another DOM- it is self-contained. In fact, Hulu’s expert, Dr. Crovella, admitted, “there’s nothing that is displayed on a web page that is not contained in the HTML source.” Ex. 2, 73:8-12. Hulu’s argument relies entirely upon its expert’s conclusory assertion that the “href” field refers to a record. But because Dr. Crovella could not provide any basis for that conclusion, his opinion is entitled to no weight. Indeed, in Dr. Crovella’s opinion, no rule exists for figuring out whether or not a something referenced in a field is a record- you just “have to understand the technology.” Ex. 2, 157:6-18. Thus, at a minimum, a genuine issue of material fact-whether the “href” field refers to a “record”-requires weighing the credibility of the expert witnesses. Hulu’s argument that an image tag contains a field that refers to a record not contained in the DOM-a new theory not raised in Hulu’s expert reports-also lacks merit. Hulu does not even allege that the image file identified in the “src” field is a “record” in the context of the claimed virtual database. Nor does Hulu identify any evidence that would support that premise. In any event, Hulu’s expert testified that the DOM will include a referenced image file and therefore “satisfies the condition that a record referred to in the field of a virtual database is itself contained in the virtual database.” Ex. 2, 165:24-166:12, 158:12-16. Thus, any record corresponding to an image is itself contained in the DOM. Because, at a minimum, a factual dispute exists Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 21 of 32 Page ID #:19457 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 as to whether the DOMs meet the requirements of the claimed “virtual database,” the Court should deny Hulu’s motion for partial summary judgment of non-infringement. A. Background And Statement Of Facts. Declaration of Sigurd Meldal, Exhibit B (“Meldal Opening”) ¶¶ 53-54, 89; Ex. 5, 13:15-24, 56:23-25. Each Accused Web Application is associated with an underlying HTML source document, written by Hulu, with text instructions representing elements of a webpage. Meldal Opening ¶ 54; Ex. 5, 51:12- 14. When a browser navigates to one of those applications, it interprets the instructions in the underlying HTML document and creates a DOM. Meldal Opening ¶¶ 46-50. A DOM is a tree-like data structure that represents all of the elements that form a webpage, such as text, style sheets, or executable code. Id. ¶ 48; Ex. 2, 53:13-18. The DOM represents the sequence of characters of the HTML source document organized into and sections. Meldal Opening ¶ 92; Ex. 2, 125:7-22, 134:18-24. Figure 1: Ex. 6 at SVI-HULU00032453(annotated in red). The DOM tree is organized into nodes represented as boxes in the illustration above. Certain of those nodes in the DOM comprise tags, which are represented by brackets, e.g., , <a>, and <h1>. Meldal Opening ¶¶ 92-93; Ex. 2, 133:7-10, Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 22 of 32 Page ID #:19458 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 28 135:20-136:22, 127:10-16. Tag nodes may have sub-nodes called attributes, which contain information, e.g., “href” or text. Meldal Opening ¶¶ 92-93; Ex. 2, 136:23-139:1. As both experts agree, in the context of the claimed virtual database, a tag node in the DOM comprises a record made up of fields-attributes of the tags. Meldal Opening ¶¶ 92-93; Ex. 2, 142:14-19, 128:12-18, 126:4-127:3, 135:20-139:1. To render a webpage, a web browser traverses the DOM, and whenever it encounters a tag, it takes the action associated with the tag. Meldal Opening ¶ 49. For example, an anchor tag <a> instructs the browser to display a hyperlink, and the associated “href” field provides the web address for the link. Ex. 2, 68:7-25. An image tag <img> instructs the browser to render an image using the “src” field-text representing the location of an image file. Ex. 2, 59:21-60:9, 141:22-142:2, 143:17-144:4. If a DOM contains a reference to a record (a tag), the entirety of the tag will be included. For example, as shown, a paragraph tag may refer to a bold tag, and that bold tag could refer to an anchor tag. Each of those nested tags will be included in their entirety in the HTML source document and the DOM data structure. Where a node refers to a record (a tag), that reference is indicated by a line connecting those nodes in the DOM tree. Attributes, which comprise strings of text characters, cannot refer to tags and therefore are always represented as the end of a branch in the DOM tree. For example, because the value of the “href” field is a URI, which is classified as a DOMString-a string of text characters in a field-and not a node in the DOM data structure, it is the end of the branch within the anchor node. Ex. 7 at 24, 26, 56. Figure 2: HTML Source Document Figure 3: Webpage Display Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 23 of 32 Page ID #:19459 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 As Hulu’s expert admits, a DOM “is a representation of all of the elements that form a page.” Ex. 2, 53:13-18. A field in a DOM representing a particular webpage cannot refer to a record in another DOM because no other DOMs are created as a result of creating the DOM with that field. Meldal Opening ¶¶ 46-50. A browser will only create another DOM when it navigates to another address and it receives another document comprising HTML-compliant text. Id. B. Legal Standard For Summary Judgment Of Non-Infringement. To succeed on a motion for summary judgment of non-infringement, an accused infringer must establish that summary judgment is proper “either by providing evidence that would preclude a finding of infringement, or by showing that the evidence on file fails to establish a material issue of fact essential to the patentee’s case.” Novartis Corp. v. Ben Venue Labs., Inc., 271 F.3d 1043, 1046 (Fed. Cir. 2001). In either event, such a motion for summary judgment must be denied if the patentee sets forth, by affidavit or as otherwise permitted under Rule 56, “specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248. Summary judgment of non-infringement is inappropriate where “competing testimony” of experts “shows only that there is a question of material fact as to whether the Accused Products” meet a claim element. Figure 4: DOM Data Structure Representation Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 24 of 32 Page ID #:19460 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 Rivera v. Remington Designs, LLC, No. LA CV16-04676 JAK (SSx) D.I. 196 at 11 (C.D. Cal. Aug. 28, 2018); see also 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 motion for summary judgment of non-infringement where “Defendant relies on conclusory statements by its expert that” a claim element was not met). C. Argument. Ample evidence exists to support a finding that the DOMs corresponding to the Accused Web Applications comprise the claimed “virtual databases.”7 The Court construed “virtual database” to mean “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. 148 at 8. No dispute exists that the accused DOMs comprise a sequence of characters organized into <head> and <body> sections. Meldal Opening ¶ 92; Ex. 2, 125:7-22, 134:18-24. Nor is there any dispute that, under the Court’s construction, tag nodes within the DOM data structure comprise records and that the attributes of those tags comprise fields. Meldal Opening ¶¶ 92-93; Ex. 2, 142:14-19, 126:4-127:3, 128:12-18. The sole dispute with respect to the term “virtual database” revolves around the phrase “where a record referred to in a field in the virtual database is itself contained in the virtual database” (the “self-contained requirement”). Hulu contends that two particular fields-“href” and “src”-refer to records that are not contained within the DOM. Dkt. 256 at 19-20. But, as explained below, the record establishes that neither field refers to a record at all-let alone a record that is not contained in the DOM. 1. Hulu’s Argument Regarding Links Fails Because The Text Of A Web Address In A Field Does Not Refer To A Record. Hulu’s argues that a DOM with instructions for displaying a link to another web 7 Ample evidence also demonstrates that Hulu’s websites meet the remaining limitations of Claim 14. See Meldal Opening ¶¶ 46-67, 74-113. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 25 of 32 Page ID #:19461 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 address includes a field-“href”-that refers to a record that is not itself contained in the DOM. Dkt. 256 at 19-20. But the “href” field in a DOM does not refer to a record- an tag node in the DOM data structure-that is not itself contained within the DOM. Hulu asserts that the accused DOMs do not meet the self-contained requirement because “the DOM of the accused webpage can have a ‘record’ (an object in another webpage) that is not ‘itself contained in the’ same DOM.” Dkt. 256 at 19. But that argument finds no support in the record. In fact, the example provided in Hulu’s brief confirms that, to the contrary, the inclusion of a web address as the value of the “href” field in a DOM does not incorporate any elements from another DOM. As both experts agree, in the context of the claimed virtual database, node in the DOM data structure corresponding to a tag (represented as “<>”) comprises a record made up of fields (attributes of the tags). Meldal Opening ¶¶ 92-93; Ex. 2, 142:14-19, 126:4-127:3, 128:12-18, 135:24-136:4. A browser parsing a DOM with a node that refers to a tag will render that tag as an element in the webpage. Meldal Opening ¶ 49. For example, as illustrated in Figures 2-4, if a paragraph tag refers to a bold tag, the browser will render a bold text element within the paragraph element on the webpage. But Hulu admits that parsing the “href” field in a DOM representation of a webpage merely displays a link in that webpage; it does not render elements from any other DOM. As illustrated Hulu’s figures, when a web browser parses a first DOM (for “Website 1”) and reaches the anchor (<a>) tag, the browser displays the text attribute within the anchor tag (“Link to Webpage 2”) as a link to the web address provided in the “href” attribute (“Webpage_2.html”). Dkt. 256 at 15; Ex. 2, 68:7-13, 69:10-22. As Hulu’s expert confirmed, “[w]ith respect to an anchor tag, there’s nothing that is displayed on a web page that is not contained in the HTML source.” Ex. 2, 73:8-12. Rendering an anchor tag with an “href” field does not import records from the DOM of Webpage 2-or any other DOM-into the DOM of Webpage 1. Id., 68:7-20.8 Nor 8 Indeed, even if the location specified by the “href” field is not a valid web address, a browser can still render the webpage with each DOM element. See Ex. 2, 146:3-7. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 26 of 32 Page ID #:19462 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 does selection of the link by a user import elements from any other DOM. Rather, user selection of the link merely causes the browser to navigate away from the webpage corresponding to the DOM-e.g., from Webpage 1 to Webpage 2. Dkt. 256 at 15-16. Hulu’s argument relies upon the faulty premise that the value of an “href” field- text corresponding to a web address-refers to a record in a different DOM. Dkt. 256 at 19. But a web address merely provides a location where data or information may be found; it does not refer to a record in the DOM data structure.9 In fact, a field in the DOM of a particular webpage (e.g., Webpage 1) cannot refer to a record in another DOM because no other DOMs are created as a result of creating the DOM with that field. Meldal Opening ¶¶ 46-50. Rather, a browser will only create another DOM when it navigates to another address and it receives another document comprising HTML- compliant text. Id. For example, a browser will only create a DOM data structure for Webpage 2 if user selection of the link causes it to navigate to webpage_2.html and to download the HTML document associated with that address. Id. Accordingly, the “href” field of the Webpage 1 DOM cannot refer to a record in the DOM of Webpage 2-no DOM for Webpage 2 need exist when the DOM for Webpage 1 is created. The use of an id (e.g., #target) within a web address in the “href” field, as Hulu suggests, does not convert that web address into a reference to a record in the DOM data structure. Dkt. 256 at 19. As Hulu admits, when a browser renders the DOM of Webpage 1, it will display a link to whatever location is listed as the value of the “href” field. Id. at 15-16. The inclusion of an id within the web address in the “href” field dictates that if a user selects the link and the browser navigates to that web address, the browser then will automatically scroll to a particular area of the webpage. Id. In other words, the inclusion of the id in the web address merely further specifies the location to which a browser will attempt to navigate upon selection of the link by a user-it does 9 The DOM standard differentiates between a web address (URI), which it classifies as a DOMString-a string of characters in a field-and a node, the primary data structure within a DOM. See Ex. 7 at 24, 26, 56. For that reason, as shown in Figure 4, the “href” field is not connected to another node in the DOM-it cannot refer to a record. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 27 of 32 Page ID #:19463 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 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 not cause the browser to create the DOM for the second webpage or to incorporate any elements from that webpage into the first DOM. Moreover, within the HTML document of the second webpage, the id attribute (e.g., “target”) appears only as a field within a tag-it is not a record in a DOM data structure (a tag node). As Hulu admits, the id may be contained within a paragraph tag (<p>) in the second HTML source document. Dkt. 256 at 16. Notably, Hulu concedes that the destination identified as “Webpage_2.html#target” is “the HTML element identified by “id=target” statement in Webpage_2.html.” It cannot identify an element in a DOM data structure for Webpage 2 because, as explained above, a DOM representation of Webpage 2 need not exist when the browser creates the DOM for Webpage 1. Additionally, as both experts agree, text within a tag comprises an attribute-a field in the context of the claimed virtual database. Ex. 2, 128:12-18. Because the id is not itself a tag node in a DOM data structure, but rather an attribute that can be included within a tag in an HTML source document, it is not a record. Therefore, the inclusion of an id (e.g., #target) fails to convert the web address value for the “href” field into a reference to a record that is not contained in the DOM. In support of its argument, Hulu relies entirely upon its expert Dr. Crovella’s conclusory assertion that the “href” field refers to a record. Dkt. 256 at 19. At his deposition, Dr. Crovella acknowledged that not everything that may be referred to in a field comprises a record. Ex. 2, 157:1-5. However, he could not provide any explanation as to how he concluded that the text in the “href” field refers to a “record,” and his opinion is therefore entitled to no weight. See MyKey Tech., Inc., No. 2:13-ml- 02461-AG (PLAx), D.I. 360 at 18 (denying summary judgment where “Defendant relies on conclusory statements by its expert that” a claim element was not met). Dr. Corvella testified that in his opinion, no rule exists for figuring out whether or not a something referenced in a field is a record-you just “have to understand the technology.” Ex. 2, 157:6-18. Accordingly, even if Dr. Crovella’s opinions were credited, whether the “href” field refers to a “record” is a fact dispute that would require weighing the Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 28 of 32 Page ID #:19464 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 24 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 credibility of the expert witnesses.10 Rivera, No. LA CV16-04676 JAK (SSx) D.I. 196 at 11 (summary judgment is inappropriate when “competing testimony” of experts “shows only that there is a question of material fact as” regarding a claim element). 2. Hulu’s Argument Regarding Images Fails Because Text Representing The Location Of An Image File Does Not Refer To A Record That Is Not Self-Contained. Hulu’s argument-that an image tag contains a field that refers to a record not contained in the DOM-is meritless.11 Hulu asserts that a DOM may include an image tag with an “src” attribute (a field) with text comprising the location of an image file. Dkt. 256 at 20. But that assertion fails to establish that a DOM cannot not meet the Court’s construction of “virtual database.” The “src” attribute-the field within an image tag-comprises a text location of an image file. Dkt. 256 at 17; Ex. 2, 59:21- 60:9, 141:22-142:2, 143:17-24. But Hulu does not even allege-let alone establish as a matter of law-that an image file is a “record” in the context of the claimed virtual database. Dkt. 256 at 20. Nor does it provide any evidentiary support for that assumption. Because Hulu fails to identify any support for the premise that image file is a record, it cannot establish that the “src” field refers to a record at all. Moreover, the evidence dictates that an image file is not a record-it is not a data structure within any DOM at all. Ex. 8, 51:16-52:20, 53:20-22. As explained above, a field in the DOM representing a particular webpage cannot refer to a record in another 10 Hulu’s allegation that Dr. Meldal does not address this aspect of the DOM is meritless. Dkt. 256 at 18-19. To the contrary, Dr. Meldal explains that a DOM comprises a virtual database under the Court’s construction of that term, and provides examples of the sections, records, and fields within the DOM that meet the requirements of that construction. Meldal Opening ¶¶ 46-50, 92-93. In so doing, he specifically addresses the anchor tag (<a>) which he opines comprises a record and the “href” attribute, which he opines comprises a field containing information. Id. ¶¶ 93. In addition, Dr. Meldal explained that he disagreed with Dr. Crovella’s assertion that the “href” attribute refers to records not contained within the DOM. Meldal Reb. ¶ 173. 11 Hulu failed to identify its non-infringement theory relating to image files in its expert reports. Hulu’s expert has not disclosed any opinions in support of this theory. In support of its argument, Hulu cites only deposition testimony of Sound View’s expert. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 29 of 32 Page ID #:19465 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 25 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 DOM because no other DOMs are created as a result of rendering that field. Meldal Opening ¶¶ 46-50. Rather, a browser will only create another DOM when it navigates to an address associated with another HTML document. Id. Accordingly, the “src” field of the Webpage with Image DOM cannot refer to a record in another DOM. Rather, like the “href” field discussed above, the “src” field contains only text identifying a location where a file may be found. When a browser parses a DOM containing an image tag with an “src” attribute, the browser navigates to that location, retrieves whatever file is saved there, and displays it. But, as Hulu admits, even if no file is saved at the location specified in an “src” field, the HTML document and the image node remain valid and the webpage will be rendered without an image. Dkt. 256 at 17; Ex. 2, 146:11-19. Thus, the “src” field does not refer to a record at all. To the extent the DOM contains a record corresponding to an image file, Hulu admits that that record is contained within the DOM. Indeed, the very record that Hulu points to as containing the “src” field-the image tag-is itself the record for rendering an image. See Ex. 2, 59:21-60:3, 141:22-142:23, 143:17-144:4; Ex. 8, 51:16-52:20. And, as Hulu admits, that record is contained within the DOM. Dkt. 256 at 17. Additionally, to the extent that an image file itself could be a record, Hulu’s expert admitted that it is also self-contained within the DOM and that the DOM containing the image file “satisfies the condition that a record referred to in the field of a virtual database is itself contained in the virtual database.” Ex. 2, 158:12-16, 165:24-166:2. Thus, any record corresponding to an image on a webpage is self-contained in the DOM. Because there is ample record evidence for a reasonable jury to conclude that neither field identified by Hulu refers to a record that is not contained in the DOM, this Court should reject Hulu’s argument that the DOMs do not comprise “virtual databases” and deny its motion for partial summary judgment of non-infringement. III. CONCLUSION Sound View respectfully requests that Hulu’s motion to for partial summary judgment of invalidity and non-infringement of U.S. Patent No. 5,806,062 be denied. Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 30 of 32 Page ID #:19466 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 26 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 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 101 California Street San Francisco, CA 94111 Tel: (415) 573-1900 Fax: (415) 573-1901 Attorneys for Plaintiff Sound View Innovations, LLC Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 31 of 32 Page ID #:19467 REDACTED VERSION OF DOCUMENT PROPOSED TO BE FILED UNDER SEAL PLAINTIFF’S OPPOSITION TO HULU’S MSJ OF INVALIDITY AND NONINFRINGEMENT OF U.S. PATENT NO. 5,806,062 27 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 Case 2:17-cv-04146-JAK-PLA Document 327 Filed 03/18/19 Page 32 of 32 Page ID #:19468