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Personal Audio, LLC v. Google LLC

United States District Court, D. Delaware

January 16, 2019

PERSONAL AUDIO, LLC, Plaintiff,
v.
GOOGLE LLC, Defendant. Term Plaintiffs Proposed Construction Defendant's Proposed Construction Term Plaintiffs Proposed Construction Defendant's Proposed Construction Term Plaintiffs Proposed Construction Defendant's Proposed Construction LocType Meaning

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE.

         In this action filed by Plaintiff Personal Audio, LLC ("PA" or "Plaintiff) against Google LLC ("Google" or "Defendant"), PA alleges infringement of United States Patent Nos. 6, 199, 076 (the '"076 patent") and 7, 509, 178 (the "'178 patent" and collectively with the '076 patent, "the asserted patents"). Presently before the Court is the matter of claim construction. The Court recommends that the District Court adopt the constructions as set forth below.

         I. BACKGROUND

         A. The Asserted Patents

         The asserted patents are related and share a common specification. (See D.I. 147, ex. A (hereinafter, the '"076 patent"); id, ex. B (hereinafter, the '"178 patent"); D.I. 38 at ¶ 30; D.I. 159 at 1 n.1)[1] The '076 patent is entitled "Audio Program Player Including a Dynamic Program Selection Controller" and was issued on March 6, 2001 from U.S. Appl. No. 08/724, 813, which was filed on October 2, 1996. ('076 patent) The '178 patent, entitled "Audio Program Distribution and Playback System," is a divisional of the application that led to the '076 patent, and was issued on March 24, 2009. ('178 patent)

         The asserted patents are directed to an audio program player that automatically plays a predetermined schedule of audio program segments (e.g., songs) from a program library. (D.I. 38 at ¶¶ 31, 33; '076 patent, col. 2:6-8; D.I. 159 at 1) The claimed player further allows a listener to dynamically alter the sequence and content of the audio program segments presented. (D.I. 38 at ¶¶ 31, 33; '076 patent, cols. 1:7-9, 1:64-2:3, 2:44-47, 2:55-58) The Abstract of the patents explains that "a host system organizes and transmits program segments to client subscriber locations" (i.e., to players). ('076 patent, Abstract) The audio program player may be implemented by a conventional laptop or desktop computer equipped with, inter alia: (1) a sound card connected to a speaker; and (2) a modem connected to the Internet that downloads the program information from the remote server and uploads program selections and preferences as well as usage data. (Id., cols. 4:32-5:45)

         B. Procedural History

         On September 15, 2015, PA filed this action against Google in the United States District Court for the Eastern District of Texas ("Eastern District of Texas"), alleging infringement of the asserted patents. (D.I. 1 at ¶¶ 1-4) Prior to filing the instant lawsuit, PA had asserted the '076 patent and '178 patent in six other litigations in the Eastern District of Texas. (D.I. 128 at ¶ 7) In one of these litigations, Personal Audio, LLC v. Apple, Inc., Civil Action No. 9:09CV111 (the "Apple litigation"), the Eastern District of Texas Court issued multiple orders in which it construed certain terms of the asserted patents, (D.I. 160 (hereinafter, "Sano Decl."), exs. 1-3), and further discussed the meaning of claim terms in connection with opinions relating to the defendant's motion for summary judgment of indefiniteness and motions for judgment as a matter of law, (id,, ex. 16; D.I. 147 (hereinafter, "Almeroth Decl."), ex. C).

         In conjunction with the Apple litigation, an ex parte reexamination proceeding was instituted by the United States Patent and Trademark Office ("PTO") with respect to certain claims of the '076 patent, and an inter partes reexamination proceeding was instituted by the PTO with respect to the '178 patent. (See D.I. 147, ex. Z at 3-4) The reexamination examiners ultimately confirmed the relevant claims of the '076 patent, and the reexamination proceeding for the '178 patent was eventually terminated as a result of the conclusion of the Apple litigation. (Id.)

         Shortly after PA initiated this action in the Eastern District of Texas, the case was stayed, at Google's request, pending inter partes review ("IPR") proceedings (the "IPR proceedings") involving certain claims of both asserted patents, which had been instituted by the Patent Trial and Appeal Board ("PTAB") of the PTO. (See D.I. 234 at 4) Those proceedings concluded by September 2016. (Almeroth Decl, exs. G, H) With respect to the '076 patent, the PTAB found that: (1) claims 1 and 4 were unpatentable; and (2) Google had not proven that claims 2, 3, 14 and 15 were unpatentable. (Id., ex. G at 57; D.I. 23 at 1) As for the '178 patent, the PTAB found that: (1) claims 1-4, 9 and 13 were unpatentable; and (2) Google had not proven that claims 5-8, 14-17, 28 and 29 were unpatentable. (Almeroth Decl, ex. H at 44; D.I. 23 at 1) The parties filed cross-appeals with respect to those decisions to the United States Court of Appeals for the Federal Circuit, and the Federal Circuit ultimately affirmed the PTAB's conclusions in all respects. Google LLC v. Personal Audio, LLC, 743 Fed.Appx. 978 (Fed. Cir. 2018).

         In January 2017, the Eastern District of Texas Court lifted the stay, (D.I. 31), but the case was thereafter transferred to this District in December 2017, (D.I. 103). Upon transfer here, the case was assigned to the Vacant Judgeship docket on December 13, 2017, and was referred to the Court "for handling through case-dispositive motions[, ]" including "deciding non-dispositive matters and making recommendations as to the resolution of dispositive matters." (Docket Item, December 13, 2017) The case has since been re-assigned to District Judge Colm F. Connolly, with the substance of the referral to the Court remaining the same. (Docket Item, September 10, 2018)

         The parties completed initial briefing on claim construction on July 18, 2018. (D.I. 146; D.I. 159; D.I. 176; D.I. 186) The Court held a Markman hearing on August 1, 2018. (D.I. 250 (hereinafter, "Tr.")) Following the hearing, on August 7, 2018, Google submitted a supplemental letter brief to address caselaw newly disclosed by PA during the Markman hearing. (D.I. 202)

         II. STANDARD OF REVIEW

         A. General Claim Construction Principles

         It is well-understood that "[a] claim in a patent provides the metes and bounds of the right which the patent confers on the patentee to exclude others from making, using, or selling the protected invention." Corning Glass Works v. Sumitomo Elec. U.S.A., Inc., 868 F.2d 1251, 1257 (Fed. Cir. 1989). Claim construction is a generally a question of law, although subsidiary fact finding is sometimes necessary. Teva Pharms. USA, Inc. v. Sandoz, Inc., 135 S.Ct. 831, 837-38 (2015).

         The Court should typically assign claim terms their "ordinary and customary meaning[, ]" which is "the meaning that the term[s] would have to a person of ordinary skill in the art ['POSITA'] in question at the time of the invention, i.e., as of the effective filing date of the patent application." Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (citations omitted). However, when determining the ordinary meaning of claim terms, the Court should not extract and isolate those terms from the context of the patent; rather it should endeavor to reflect their "meaning to the ordinary artisan after reading the entire patent." Id. at 1321; see also Eon Corp. IP Holdings LLC v. Silver Spring Networks, Inc., 815 F.3d 1314, 1320 (Fed. Cir. 2016).

         In proceeding with claim construction, the Court should look first and foremost to the language of the claims themselves, because "[i]t is a bedrock principle of patent law that the claims of a patent define the invention to which the patentee is entitled the right to exclude." Phillips, 415 F.3d at 1312 (internal quotation marks and citations omitted). For example, the context in which a term is used in a claim may be "highly instructive." Id. at 1314. In addition, "[o]ther claims of the patent in question, both asserted and unasserted, can ... be valuable" in discerning the meaning of a particular claim term. Id. This is "[b]ecause claim terms are normally used consistently throughout the patent, [and so] the usage of a term in one claim can often illuminate the meaning of the same term in other claims." Id. Moreover, "[differences among claims can also be a useful guide[, ]" as when "the presence of a dependent claim that adds a particular limitation gives rise to a presumption that the limitation in question is not present in the independent claim." Id. at 1314-15.

         In addition to the words of the claims, the Court should look to other intrinsic evidence. For example, the Court should analyze the patent specification, which "may reveal a special definition given to a claim term . . . that differs from the meaning [that term] would otherwise possess" or may reveal an intentional disclaimer of claim scope. Id. at 1316. Even if the specification does not contain such revelations, it "is always highly relevant to the claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning of a disputed term." Id. at 1315 (internal quotation marks and citation omitted). That said, however, the specification "is not a substitute for, nor can it be used to rewrite, the chosen claim language." SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). And a court should also consider the patent's prosecution history, if it is in evidence, because it "can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution[.]" Phillips, 415 F.3d at 1317.

         Extrinsic evidence, "including expert and inventor testimony, dictionaries, and learned treatises[, ]" can also "shed useful light on the relevant art[.]" Id. (internal quotation marks and citations omitted). Overall, while extrinsic evidence may be useful, it is "less significant than the intrinsic record in determining the legally operative meaning of claim language." Id. (internal quotation marks and citations omitted); accord Markman v. Westview Instruments, Inc., 52 F.3d 967, 981 (Fed. Cir. 1995).

         In utilizing these resources during claim construction, courts should keep in mind that "[t]he construction that stays true to the claim language and most naturally aligns with the patent's description of the invention will be, in the end, the correct construction." Renishaw PLC v. Marposs Societa' per Azioni, 158 F.3d 1243, 1250 (Fed. Cir. 1998).

         B. Principles for Construction of Means-Plus-Function Limitations

         35 U.S.C. § 112, ¶ 6 ("Section 112, paragraph 6")[2] provided as follows:

An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.

         The "means-plus-function" technique of claim drafting is a "convenience" that allows a patentee to express a claim limitation in functional terms "without requiring the patentee to recite in the claims all possible structures" that could perform that function. Med, Instrumentation & Diagnostics Corp. v. Elekta AB, 344 F.3d 1205, 1211 (Fed. Cir. 2003). In exchange for getting the benefit of this drafting convenience, however, patentees must disclose, in the written description of the patent, a corresponding structure for performing the claimed function. Noah Sys, Inc. v. Intuit Inc., 675 F.3d 1302, 1318 (Fed. Cir. 2012); see also Elekta, 344 F.3d at 1211 ("[T]he price that must be paid for use of that convenience is limitation of the claim to the means specified in the written description and equivalents thereof") (citation omitted). A patentee satisfies this requirement "only if the specification or prosecution history clearly links or associates that structure to the function recited in the claim." In re Aoyama, 656 F.3d 1293, 1297 (Fed. Cir. 2011) (emphasis added) (quoting Elekta, 344 F.3d at 1210); see also Elekta, 344 F.3d at 1220 ("The public should not be required to guess as to the structure for which the patentee enjoys the right to exclude. The public instead is entitled to know precisely what kind of structure the patentee has selected for the claimed functions, when claims are written according to section 112, paragraph 6."). "If the specification does not contain an adequate disclosure of the structure that corresponds to the claimed function, the patentee will have failed to particularly point out and distinctly claim the invention as required by . . . section 112, [paragraph 2], which renders the claim invalid for indefiniteness." Blackboard, Inc. v. Desire2Learn Inc., 574 F.3d 1371, 1382 (Fed. Cir. 2009) (internal quotation marks and citation omitted).[3]

         Construing a means-plus-function limitation is a two-step process. The first step is determining the claimed function of the limitation. Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1351 (Fed. Cir. 2015); Medtronic, Inc. v. Advanced Cardiovascular Sys., Inc., 248 F.3d 1303, 1311 (Fed. Cir. 2001). The second step is identifying the corresponding structure disclosed in the specification and equivalents thereof. Williamson, 792 F.3d at 1351; Medtronic, Inc., 248 F.3d at 1311.

         When a patentee claims a computer-implemented invention and invokes means-plus-function limitations, the United States Court of Appeals for the Federal Circuit has "consistently required that the structure disclosed in the specification be more than simply a general purpose computer or microprocessor." Aristocrat Techs. Austl. Ply Ltd, v. Int'l Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008). This requirement seeks to avoid "pure functional claiming[, ]" id., and mandates that the patent must disclose sufficient algorithmic structure[4] or some other description explaining how the computer performs the claimed function, see Id. at 1332-37; Blackboard, Inc, 574 F.3d at 1383-85; Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1340 (Fed. Cir. 2008) (explaining that a patentee is permitted "to express that algorithm in any understandable terms including as a mathematical formula, in prose, [] or as a flow chart, or in any other manner that provides sufficient structure") (internal citation omitted). The Federal Circuit has identified a "narrow exception" to this requirement; no algorithm need be disclosed "when the function 'can be achieved by any general purpose computer without special programming.'" Ergo Licensing, LLC v. CareFusion 303, Inc., 673 F.3d 1361, 1364-65 (Fed. Cir. 2012) (quoting In re Katz Interactive Call Processing Patent Litig, 639 F.3d 1303, 1316 (Fed. Cir. 2011)). For example, "a general-purpose computer is sufficient structure if the function of a term such as 'means for processing' requires no more than merely 'processing,' which any general-purpose computer may do without special programming." Id. at 1365. The Federal Circuit has emphasized that "[i]t is only in the rare circumstances where any general-purpose computer without any special programming can perform the function that an algorithm need not be disclosed." Id; see also Alfred E. Mann Found, for Sci. Research v. Cochlear Corp., 841 F.3d 1334, 1342 (Fed. Cir. 2016).

         III. DISCUSSION

         The parties currently have disputes regarding ten terms or sets of terms (hereinafter, "terms").[5] This Report and Recommendation addresses the first three terms, in the order in which the parties addressed them at the Markman hearing. The other seven terms will be addressed in a forthcoming Report and Recommendation(s).

         A. "file"

          The claim term "file" appears in all asserted claims of the patents-in-suit. The use of the disputed term in claim 1 of the '178 patent is representative. Accordingly, this claim is reproduced below, with the disputed term highlighted:

1. An audio program player comprising:
a communications port for establishing a data communications link for downloading a plurality of separate digital compressed audio program files and a separate sequencing fie from one or more server computers,
a digital memory unit coupled to said communications port for persistently storing said separate digital compressed audio program files and said separate sequencing file, said sequencing file containing data specifying an ordered sequence of a collection of said separate digital compressed audio program files, an audio output unit including at least one speaker or headset for reproducing said audio program files in audible form perceptible to
a listener, one or more manual controls for accepting commands from said listener, and
a processor for continuously delivering a succession of said audio program files in said collection to said audio output unit in said ordered sequence specified by said sequencing file in the absence of a program selection command from said listener, and for discontinuing the reproduction of the currently playing audio program file and instead continuing the reproduction at the beginning of a listener-selected one of said audio program files in said collection in response to a program selection command from said listener.

('178 patent, cols. 45:60-46:18 (emphasis added))

         The parties' competing proposed constructions for "file" are set out in the chart below:

Term
Plaintiffs Proposed Construction
Defendant's Proposed Construction

file

any collection of data that is stored and manipulated as a unit

or, alternatively:

a collection of data that is stored and manipulated as a unit by a file management or database system

a collection of data that is stored and manipulated as a named unit by a file-management system

         (D.I. 146, Appendix A at Ref. 1; D.I. 176 at 14) As reflected in these proposals, the parties have two disputes with respect to the term "file": (1) whether the term refers to a collection of data that must be stored and manipulated by a file-management system (Google's position) or may alternatively simply be stored and manipulated by either a file-management system or a database system (PA's position); and (2) whether, as Google suggests, the "file" must be named. (See D.I. 159 at 9; Tr. at 11-12) Google argues that while it is undisputed that "file" and "data" must mean two different things, (D.I. 186 at 13; see also, e.g., '076 patent, 46:18 (claim 1 reciting "means for receiving and storing a file of data") (emphasis added)), PA's "broad construction" improperly conflates "file" and "data[, ]" (D.I. 159 at 10-11). During the Markman hearing, Google's counsel explained that with respect to this term, "the key issue that is really going to drive the construction is to make sure that a file is construed as something different from data." (Tr. at 11) And in Google's view, the only way to do that is to require that a "file" be a named collection of data stored and manipulated as a unit by a, file-management system. (Id., at 11 -13 ("[A] file is distinguished by the fact that it is also named and stored in a file-management system whereas data that is not a file cannot be stored in a file-management system."); see id, at 20)

         The Court will first assess Google's proposed "file-management system" limitation. As to that limitation, the Court is not persuaded that, in the context of these patents, a "file" must be limited to something (i.e., data) stored and manipulated only by a file-management system. This is so for four reasons.

         First, despite Google's argument to the contrary, the Court does not understand PA's alternative proposed construction for "file" (i.e, "a collection of data that is stored and manipulated as a unit by a file management or database system") to mean the same thing as "data" and to thus improperly conflate "file" and "data." PA does not simply propose to construe "file" to mean "data." Instead, its proposal adds additional parameters: (1) there must be a collection of data; (2) such collection must be stored and manipulated as a unit; and (3) such storing and manipulation is by a file-management system or a database system. (See Id. at 23-24 (PA's counsel explaining that its proposal amounts to more than just "unstructured" data, instead encompassing a block of data that is stored and manipulated by a database system (or file-management system)))

         Second, it is undisputed that the patents nowhere use the term "file-management system" in describing the invention. (See D.I. 146 at 3; Tr. at 14) And thus, as PA puts it, Google "ignores that the patents teach storing and accessing files and the data within files without ever teaching that a file-management system is necessary." (D.I. 146 at 4)[6] Moreover, while the patents do not include the phraseology "file-management system," they do refer to "database[s]" that "store[]" "file[s]." (See, e.g., '076 patent, cols. 5:66-6:2, 6:34-44; D.I. 146 at 4)

         Third, the patents refer to database tables as files, which (as PA asserts) indicates that the construction for "file" should encompass data structures that are stored and manipulated by database systems. (D.I. 146 at 3-4; D.I. 176 at 14; Tr. at 7-8, 25) For instance, in discussing the preferred embodiment, the patents refer to a particular table (Table 301) that is stored in a database as a "file":

The [program] selections made by and uploaded from the [individual] subscriber take the form of a file (sequence) of 32 bit integers, each integer (ProgramID) designating a particular program segment. This file of integers is placed in a relational database Requested Table seen at 301 in Fig. 4 . . .. The Program Segment records in the Programs Table 303 are relationally linked using the ProgramID key to other tables including[] the Requested Table 301 discussed above.

('178 patent, col. 17:15-61 (emphasis added))[7] And earlier, the patents explain that at step 219, "the selections made by the user at 217 as well as the contents of the usage log recorded at 215 are uploaded to the server as a requested file (seen at 301 in Fig. 4)." (Id., col. 9:50-52 (emphasis added)) Additionally, the patents describe another database table ("Table 307") as a "file" which is formed from segments added to Table 301:

The Program_Segment records in the Programs Table 303 are relationally linked using the ProgramID key to other tables including ... Schedule Table 307 which contains the recommended sequence of program segments for the next playback session[.]

(Id., col. 17:58-64 (emphasis added))

The programs, advertising and announcement segments which are added to the Request Table 301 to form the Schedule Table 307 are determined by a matching procedure 342 which may be better understood by first considering the content of the data structures which provide data utilized to make those selections.

(Id., col. 18:37-42 (emphasis added))

As described in more detail later in connection with FIGS. 4 and 5, the sequence of program segments to be presented to the user is formed into a schedule file (seen at 307 in Fig. 4) consisting of a sequence of program segment identification numbers which are used to compile a sequencing file, called the selections file, illustrated at 351 in FIG. 5, which contains more detailed information about the sequence of events which occur during playback.

(Id., col. 12:9-16 (emphasis added)) In the Court's view, the patents' references to these structures as both database tables and files supports PA's argument that a file should be construed to mean data stored and manipulated as a unit by a file-management system or a database system.[8] (See Tr. at 25)[9]

         Fourth and finally, the extrinsic evidence further supports that a "file" is not always something that is stored and manipulated by a file-management system. (D.I. 146 at 4) For example, in support of its argument, Google cites to a dictionary that defines "file" in a way mirroring Google's construction ("any collection of data that is stored and manipulated as a named unit by a file-management system"). (D.I. 147 at ¶ 39 & ex. M (citing Academic Press Dictionary of Science & Technology 826 (1st ed. 1992))) However, that same dictionary provides another definition for "file" that makes no mention of a "file-management system." (Id.) This alternative definition simply describes a "file" as "a collection of items with certain common aspects, organized for a specific purpose and stored or processed as a unit[.]" (Id.) Similarly, other dictionaries from the relevant time period do not require that a file be something that is only stored in and manipulated by a "file-management system." For example, one such dictionary defines "file" as '"a block of information stored on disk, tape, or similar media. A file may contain a program, a document, or a collection of data (such as a mailing list).'" (Id., at ¶ 38 & ex. J (quoting Barron's Dictionary of Computer and Internet Terms (5th ed. 1996))) Another dictionary defines "file" to mean:

A complete, named collection of information, such as a program, a set of data used by a program, or a user-created document. A file is the basic unit of storage that enables a computer to distinguish one set of information from another. A file is the "glue" that binds a conglomeration of instructions, numbers, words, or images into a coherent unit that a user can retrieve, change, delete, save or send to an output device.

(Id. at ¶ 38 & ex. K (quoting Microsoft Press Computer Dictionary (3d ed. 1997)))[10] These dictionary definitions also help to underscore that a "file" is not something that must always be associated with a file-management system. (D.I. 146 at 4; Tr. at 7)

         With regard to the parties' second dispute (that is, whether a file must constitute data that is a "named" unit), the Court will adopt that portion of Google's construction. In its opening brief, Google argued that the patent specification "confirms that 'files' must be identified by name, distinct from unnamed collections of data[, ]" and it cited to numerous examples of the patents: (1) describing files as being requested, downloaded, or stored using a filename; and (2) making reference to named files. (D.I. 159 at 10; see also Tr. at 13-14) In its briefing, PA did not address this dispute at all. During the Markman hearing, PA only raised the issue in response to questioning from the Court. (See, e.g., Tr. at 10) This all suggests that PA's opposition on this point is not especially strong.

         PA ultimately explained that its hesitation with respect to the "named" limitation is that it is not sure what the scope of "named" is-for instance, does a file with an identifier amount to a "named" file? (Id. at 10-11, 23-24) Because this issue was not well-argued in the briefs, Google's response to PA's question (about what it means for a file to be "named") is unclear. In light of all of this, the Court will recommend adoption of the "named" portion of Google's construction, and to the extent that there are disputes down the line with respect to what "named" means, the parties may address those during the summary judgment stage of the case. (See Id. at 10 (PA's counsel acknowledging that the "named" issue is one "probably [best] taken up on summary judgment"))

         For all of the above reasons, the Court recommends that the term "file" be construed as "a collection of data that is stored and manipulated as a named unit by a file-management or database system."

         B. "sequencing file" terms

         The terms "sequencing file" and "playback session sequencing file" appear in independent claims 1 and 14 of the '178 patent, respectively, while the term "file of data establishing a sequence" is part of the means-plus-function element "a means for receiving and storing a file establishing a sequence" of the independent claims of the '076 patent (collectively, the "sequencing file limitations" or the "sequencing file terms"). (See, e.g., D.I. 146 at 4-5) The use of the disputed term in claim 1 of the '178 patent is representative. Accordingly, this claim is reproduced again below for ease of reference, with the disputed term highlighted:

1. An audio program player comprising:
a communications port for establishing a data communications link for downloading a plurality of separate digital compressed audio program files and a separate sequencing file from one or more server computers,
a digital memory unit coupled to said communications port for persistently storing said separate digital compressed audio program files and said separate sequencing file, said sequencing file containing data specifying an ordered sequence of a collection of said separate digital compressed audio program files,
an audio output unit including at least one speaker or headset for reproducing said audio program files in audible form perceptible to a listener,
one or more manual controls for accepting commands from said listener, and
a processor for continuously delivering a succession of said audio program files in said collection to said audio output unit in said ordered sequence specified by said sequencing file in the absence of a program selection command from said listener, and for discontinuing the reproduction of the currently playing audio program file and instead continuing the reproduction at the beginning of a listener-selected one of said audio program files in said collection in response to a program selection command from said listener.

         ('178 patent, cols. 45:60-46:18 (emphasis added))

         The parties' competing proposed constructions for the "sequencing file" limitations are set ...


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