Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Personal Audio, LLC v. Google LLC

United States District Court, D. Delaware

June 7, 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 Term Plaintiffs Proposed Construction Defendant's Proposed Construction

          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 AND STANDARD OF REVIEW

         The Court hereby incorporates by reference the summary of the factual and procedural background of this matter set out in its January 16, 2019 Report and Recommendation ("January 16 R&R"). (D.I. 331 at 1-4) It additionally incorporates by reference the legal principles regarding claim construction set out in the January 16 R&R. (Id. at 4-9)

         II. DISCUSSION

         The parties had disputes regarding 10 terms or sets of terms (hereafter, "terms"). The January 16 R&R addressed the first three terms. The Court addressed terms 4, 5 and 6 in a March 13, 2019 Report and Recommendation. (D.I. 372) The Court addresses the remaining terms herein.[1]

         A. "communications port" terms

         The claim terms "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" and "a communications port for downloading at least some of said audio program files and said playback session sequencing file from said one or more server computers" (the "communications port" terms) appear in claims 1 and 14 of the '178 patent, respectively. (D.I. 146 at 28) The use of the disputed term in claim 1 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 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 term are set out in the chart below, with the main disputed points noted by bold, underlined language:

Term
Plaintiffs Proposed Construction
Defendant's Proposed Construction

"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" (claim 1)

"a communications port for downloading at least some of said audio program files and said playback session sequencing file from said one or more server computers" (claim 14)

"communications port":

"a port for establishing a connection between a player and a network"

"downloading":

"transferring a file from a remote computer to the requesting computer by means of a modem or network" (claim 1)

"transferring a plurality of separate digital compressed audio program files and a separate sequencing file one or more remote server computers via a modem or network to the player upon a request by the player" (claim 14)

"communications port":

"[a] port for establishing a connection between the player and a network"

"downloading":

" [transferring digital compressed audio program files and a separate sequencing file from one or more separate computers to the player over a network upon a request by the player identifying said digital compressed audio program files and said separate sequencing file" (claim 1)

"[transferring at least some of said audio program files and said playback session sequencing file from one or more separate computers to the player over a network upon a request by the player identifying said digital compressed audio program files and said playback session sequencing file" (claim 14)

         (D.I. 146, Appendix A at Ref. 9) As reflected in these proposals, the parties agree on the construction for "communications port[, ]"[2] but disagree over the construction for "downloading" in these terms.

         As an initial matter, the parties do not dispute that "downloading" is initiated by a request from the player computer to the host server to initiate the download. (See D.I. 146, Appendix A at Ref. 9; Tr. at 161-62)[3] What the parties do dispute is whether that "request by the player" to download files must identify the files to be downloaded.[4] (D.I. 146 at 28-30; D.I. 159 at 11-13; Tr. at 163 (Google's counsel explaining that "[t]he question is when a request is made to download, does the player have to identify the files that it wants to be downloaded?")) Google's position is that the intrinsic record demonstrates that such an identification of files must be made. (D.I. 159 at 12-13) PA asserts that this additional "unsupported limitation" should be not be imported into the claims (such that the request could simply involve the player informing the server "here I am" to initiate the download). (D.I. 146 at 29-30) For the reasons discussed below, the Court agrees with Google.

         The specification consistently explains that a request by the player to download files includes an identification of the files to be downloaded. (D.I. 159 at 12-13; D.I. 186 at 12; Tr. at 162) To that end, as Google points out, the specification states that the "player uses the sequence file to determine files not already on the player, then issues download requests for those files." (Google's Markman Presentation, Slide 73; see also D.I. 159 at 12; Tr. at 162)[5] The specification describes the following with regard to this process, (Google's Markman Presentation, Slide 73; D.I. 159 at 12):

(1) "The data downloaded includes a recommended program sequence file which provisionally identifies the order in which downloaded program segments are to be played, with the initial selection and sequence being established based on user preference data by the download compilation processing mechanism seen at 151 at the server." ('178 patent, col. 8:48-53) (emphasis added);
(2) "Before a playback session begins ... the subscriber has the opportunity to review and alter the provisional program selections and sequence established as a default by the downloaded information from the server." (Id., col. 8:54-57) (emphasis added);
(3) "In accordance with the invention, the host server receives and supplements the user's initial selection of a sequence of desired pro grams[.]" (Id., col. 18:24-26) (emphasis added);
(4) "The file 145 is placed in a predetermined FTP download file directory and assigned a filename known to the player 103.” (Id., col. 6:62-64) (emphasis added);
(5) "The player 103 downloads the session schedule file and then issues download requests for those identified program segment files which are not already available in the player's local storage unit 107" (Id., col. 7:19-22) (emphasis added).

         In describing the download mechanism of the invention, then, the specification makes clear that when the player requests to download files, it identifies such files. (D.I. 159 at 12)[6]

         The Court's conclusion here is also consistent with the Eastern District of Texas Court's decision in the Apple litigation on a motion for judgment as a matter of law relating to the "communications port" terms. (D.I. 159 at 13; Google's Markman Presentation, Slide 76; Tr. at 165) There, PA's expert had argued that a "UBS [sic] system or cable protocol [that said to the server] 'here I am'" met the "downloading" requirement, but the Eastern District of Texas Court found that to be insufficient. (D.I. 160, ex. 18 at 3253 (emphasis omitted)) The Eastern District of Texas Court ruled that "'here I am' is not a request... to initiate the transfer." (Id.) While PA's proposed construction here amounts to the player initiating a download by informing the server "here I am," as noted by the Apple Court, a more robust communication to "initiate the transfer" is needed. Google's proposed construction (i.e., a request that includes an identification of the needed files) would certainly amount to more than "here I am."[7]

         PA's arguments to the contrary with respect to this dispute are not persuasive. PA first asserts that in "ordinary experience" a person can "simply press a button to initiate a download without identifying or even knowing the files one will receive (for example, Microsoft updates)." (D.I. 146 at 29) In support, PA included in its briefing a snapshot of a "Windows Update" message that appears on a computer screen; the message states: "Download and install updates for your computer[.]" The message also indicates that "3 important updates are available" and "6 optional updates are available." (Id.) But the message additionally states that "1 important update [was] selected, 24.5MB[.]" (Id., (emphasis omitted)) As Google explained, the snapshot actually refutes the point PA was trying to make, in that the snapshot demonstrates that "[w]hen the 'Install updates' button is pressed, only the selected update is requested to be downloaded." (D.I. 159 at 13 n.8 (certain emphasis omitted))

         PA also contends that certain portions of the specification indicate that the host server can identify the files to be downloaded, thus demonstrating that Google's position cannot be correct. (D.I. 146 at 30; D.I. 176 at 13) In support, PA first points to the following disclosure in the specification:

As indicated at 203, an interested subscriber invokes programming services by first supplying personal information .... Based on the information supplied by the user, the server then compiles one or more files for downloading to the subscriber at step 207 which include programming and advertising segments[.]

('178 patent, col. 8:21-32 (quoted in D.I. 146 at 30) (certain emphasis added by PA)) But this passage only discloses that, based on information from the subscriber, the server will then collect the files that will later be downloaded. (D.I. 159 at 12) Indeed, just a few lines later, the specification explains that "[t]he download file or files containing programming and advertising segments as well as subscriber specific data are designate[d] by filenames provided by the requesting client/player 103[.]” ('178 patent, col. 8:37-40 (emphasis added); see also D.I. 159 at 12)

         PA next asserts that "the specification discloses that identification by the player of files to download is only 'preferably' done (not required)[.]" (D.I. 176 at 13 (citing '178 patent, col. 7:10-22)) But the portion of the specification that PA cites in support does not actually say what PA says it does. What the specification says there is: "[t]he download compilation file 145, though represented as a single file in FIG. 1, preferably takes the form of 'one or more subscriber and session specific files which contain the identification of separately stored sharable files. ('178 patent, col. 7:10-13 (emphasis added)) In other words, this disclosure is describing the preferable form of the download compilation file; it does not address the identification by the player of files to download. (D.I. 186 at 12; Tr. at 164-65) However, the specification does address that identification issue just a few lines later, when it explains that the player: (1) downloads the session schedule file (which contains the recommended order and the identification of the program files making up an individual playback session); and then (2) "issues download requests for those identified program segment files which are not already available in the player's local storage unit 107." ('178 patent, col. 7:13-22 (emphasis added))

         Lastly, PA points to a disclosure in the specification explaining that in one scenario, the host server will prepare a Schedule Table 307 containing program segments selected by the host:

In accordance with the invention, the host server receives and supplements the user's initial selection of a sequence of desired programs, first by adding the program selections specified in failed hypertext requests as indicated by the Usage Log Table 333 during usage log processing at 350, and then by adding advertisements, announcements and additional program segments tailored to the subscriber's known preferences as indicated at 340 in FIG. 4, thereby producing the recommended Schedule Table 307 which is transferred to the subscriber, along with program segments, during the download transfer. Indeed, if the subscriber provides no selections at all, the host will prepare a Schedule Table 307 containing program segments selected entirely by the host on the subscriber's behalf.

(Id., col. 18:23-37 (emphasis added); see also D.I. 176 at 13) According to PA, this means that "[c]learly, the subscriber could not have identified the files in such a case" and that Google's position is therefore wrong. (D.I. 176 at 13)

         But as Google responds, Schedule Table 307 is not equivalent to the downloadedprogram files themselves. (D.I. 186 at 12) Rather, Schedule Table 307 consists of "a sequence of program segment identification numbers which are used to compile a sequencing file .. . which contains more detailed information about the sequence of events which occur during playback." ('178 patent, col. 12:9-16 (emphasis added); see also, e.g., id., col. 17:62-64 (noting that "Schedule Table 307 [] contains the recommended sequence of program segments for the next playback session") (emphasis added)) And so the player is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.