Quibi Holdings, LLC v. Interlude US, Inc.

• Court: District Court, C.D. California
• Decided: April 12, 2021
• Docket: 2:20-cv-02250
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Present: The Honorable CHRISTINAA.SNYDER Catherine Jeang Not Present N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: Not Present Not Present Proceedings: (IN CHAMBERS) - CLAIM CONSTRUCTION ORDER I. INTRODUCTION This claim construction order construes disputed terms in U.S. Patent Nos. 10,460,765 (“the ’765 Patent’’), 8,660,220 (“the 220 Patent’), and 10,418,066 (“the □□□□ Patent”). The disputed terms arise in the context of patent infringement claims brought in two related cases. Quibi filed the first-filed action on March 9, 2020, Case No. 2250 (“Quibi ECF’’) No. 1, and its operative first amended complaint on May 12, 2020. Quibi ECF No. 25. Eko filed a separate action against Quibi on March 10, 2020, Case No. 2299 (“Eko ECF”) No. 1, and its operative fifth amended complaint on January 28, 2021. Eko ECF No. 425. Quibi seeks a declaratory judgment of non-infringement of the □□□□ Patent and Eko alleges that Quibi’s Turnstyle technology infringes the ’765 Patent, the °220 Patent, and the ’066 Patent. The Court previously considered the patents as part of its Order denying Eko’s motion for a preliminary injunction. See ECF No. 260 (“PI Order’).! After the Court issued its PI Order, the parties proceeded with discovery and have now reached claim construction. As relevant here, the parties filed their Joint Claim Construction and Prehearing Statement on December 21, 2020. ECF No. 199. Eko filed its opening claim construction brief on February 4, 2021. ECF No. 278 (“Opening Br.”). Quibi filed its responsive claim construction brief on February 18, 2021. ECF No. 280 (“Response”). Eko filed its reply claim construction brief on February 25, 2021. ECF No. 291 (“Reply”). Quibi filed its surreply claim construction brief on March 4, 2021. ECF No. 295 (“Surreply”). 1 All docket entry references in the remainder of this Order refer to the Quibi ECF.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘415 F.3d 1303, 1316-17 (Fed. Cir. 2005) (en banc). Courts first turn to “the words of the claims themselves, both asserted and nonasserted.”’ Abbott Labs. v. Andrx Pharms., Inc., 452 F.3d 1331, 1336 (Fed. Cir. 2006) (quoting Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). “[T]he claims themselves provide substantial guidance as to the meaning of particular claim terms” and “the context in which a term is used in the asserted claim can be highly instructive.” Phillips, 415 F.3d at 1314. Claim language is generally interpreted consistently across different claims. Id. “The claims, of course, do not stand alone,” but instead “must be read in view of the specification, of which they are a part.” Id. at 1315—17 (internal quotations omitted); see also Vitronics, 90 F.3d at 1582 (“[T]he specification 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’’). It is improper, however, to read limitations from the written description into a claim. Tate Access Floors, Inc. v. Maxcess Techs. Inc., 222 F.3d 958, 966 (Fed. Cir. 2000) (citations omitted); see also Phillips, 415 F.3d at 1320 (quoting SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337, 1340 (Fed. Cir. 2001)) (referring to reading a limitation from the written description into

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘388 F.3d 858, 862 (Fed. Cir. 2004)). Technical extrinsic evidence, such as dictionaries, encyclopedias, and technical treatises, may similarly be consulted to help determine the meaning of claim terms. Phillips, 415 F.3d 1322-23. But the Federal Circuit has cautioned that “heavy reliance on the dictionary divorced from the intrinsic evidence risks transforming the meaning of the claim term to the artisan into the meaning of the term in the abstract, out of its particular context, which is the specification.” Id. at 1321. When conducting claim construction, all evidence—both intrinsic and extrinsic— should be viewed from the perspective of a person of ordinary skill in the relevant art at the time the invention was filed. Markman v. Westview Instruments Inc., 52 F.3d 967, 979-80 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). When considering intrinsic and extrinsic evidence, “[t]he sequence of steps used by the judge in consulting various sources 1s not important; what matters is for the court to attach the appropriate weight to be assigned to those sources in light of the statutes and policies that inform patent law.” Phillips, 415 F.3d at 1324.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Vitronics, 90 F.3d at 1580). To act as her own lexicographer, the patentee must “‘clearly set forth a definition of the disputed claim term’ other than its plain and ordinary meaning.” Id. (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)): Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) (patentee must “clearly express an intent” to depart from the plain and ordinary meaning). To effect a clear disavowal or disclaimer in the patent specification, the applicant must make clear “that the invention does not include a particular feature . . . even though the language of the claims, read without reference to the specification, might be considered broad enough to encompass the feature in question.” SciMed, 242 F.3d at 1341; see also Thorner, 669 F.3d at 1366. Similarly, during prosecution, a patent applicant can “make[ | clear that the invention does not include a particular feature, or is clearly limited to a particular form of the invention.” Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014) (internal quotations and citations omitted). If the plain language of the claim 1s to be narrowed, any disclaimer of a broader construction must be “clear and unmistakable.” Cordis Corp. v. Boston Scientific Corp., 561 F.3d 1319, 1329 (Fed. Cir. 2009); Home Diagnostics, Inc. v. Lifescan, Inc., 381 F.3d 1352, 1358 (Fed. Cir. 2004).

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

? Because the disputed terms appear throughout many of the claims, for ease of reference in this Order, the Court lists only the independent claims in which the disputed terms appear.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘323 F.3d 989, 993-996 (Fed. Cir. 2003) ( “the fact that

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘O’ Case No. 2:20-CV-02299-CAS (ska) Date April 12, 2021 Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL. QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL. the prosecution shifted to a different focus does not blunt the impact of those remarks made to overcome the prior rejection”). The Federal Circuit has explained that, “The public notice function of a patent and its prosecution history requires that a patentee be held to what he declares during the prosecution of his patent,” and the Court finds that notice requirement pertinent here. See id. at 995 (quotations omitted). Second, under the doctrine of claim differentiation, dependent Claim 5 supports the applicant’s statement, that the first and second “video presentations” in the ’765 Patent are independent videos presentations not each comprising a different region of one larger- dimensioned video. This is because Claim 5 discloses, “The method of claim 1, wherein configuring the first state of the video from the first video presentation comprises setting a viewing region of the video from the first video presentation to a partial area of the video from the first video presentation.” ’765 Patent at 13:33-37 (emphasis added). To give meaning to the term “partial area of the video” in this dependent claim, the first video presentation and a second, different video presentation in Claim | cannot be construed to be partial areas of the same video. See Nazomi Comme’ns, Inc. v. Arm Holdings, PLC., 403 F.3d 1364, 1370 (Fed. Cir. 2005) (“limitations stated in dependent claims are not to be read into the independent claim from which they depend”) (internal quotation marks omitted); see also 35 U.S.C. § 112(d) (a dependent claim must “specify a further limitation of the subject matter claimed”). Additionally, that the independent and dependent claims distinguish between a first and second video presentation on the one hand, and “a partial area of the video” on the other, suggests that “a first video presentation” and “second, different video presentation” (Claim 1), and “a viewing region of the video” (Claim 5), mean different things. See CAE Screenplates Inc. v. Heinrich Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000) (“In the absence of any evidence to the contrary, we must presume that the use of these different terms in the claims connotes different meanings.”). To overcome this finding, which the Court first made in its PI Order, Eko presents a new theory. Namely, referring to Figures 2, 3, and 4, Eko argues that, when a user may switch between cropped portions of a larger video presentation without seeing the video presentation 1n its entirety, those portions may be the first and second video presentations in Claim 1, whereas Claim 5 covers the scenario where a user may switch between viewing the entire video and a smaller portion thereof. Eko supports this theory with a

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

As shown in FIG. 2, smartphone 200 is In one example, a change in a property rotatable between a portrait mode A and a associated with a user device can result landscape mode B. .. . For instance, in one__| ina change in the size and/or position of implementation, the rotation of the the viewport. Referring to FIGS. 4A-4D, smartphone 200 from portrait mode A to a video 400 of a family is provided to a landscape mode B results in a change in the | user device 402; however, only a state of the video presentation (in this portion of the video 400 is viewable by example, a change in the video and/or audio | the user at any point in time during content). Still referring to FIG. 2, a playback of the video 400. The viewable smartphone user watching a music video can | portion is defined by the viewport 410, seamlessly alternate between two distinct which can be resized, rotated, or moved views of the video by switching between around about the video 400 during portrait and landscape modes. As depicted, | playback in response to change in a when the smartphone 200 is positioned in device property. In one implementation, portrait mode A, video of the lead singer 210 | the viewport is a mask layered over the is shown to the user. Upon rotating the video that includes a resizable smartphone 200 to landscape mode B, the transparent area allowing the user to see video changes to show the rest of the band a portion of the underlying video. To 220... . It should be appreciated that the reposition the viewport 410, the mask present technique 1s not limited to two can be moved with respect to the video display modes (1.¢e., landscape and portrait). | 400 and/or the video 400 can be moved Rather, various combinations of audio, with respect to the mask. video, and/or other media content can be

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘0’ Case No. 2:20-CV-02299-CAS (ska) Date April 12, 2021 Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL. QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL. shown based on any rotation or positioning | ’765 Patent at 6:24-38 (emphasis of a user device. For example, a first video | added). may be shown when in portrait mode, a second video when changing to landscape mode by rotating the device counterclockwise, a third video when changing to landscape mode by rotating the device clockwise, a fourth video when tilting the device away from the user, a fifth video when tilting the device toward the user, a sixth video when laying the device flat, and so on. °765 Patent at 4:64-65, 5:14-24, 5:35-46, 6:4-5 (emphasis added); see id. at 5:47-50 (“FIG. 3 depicts a concept similar” but “with a windowed media player 300 on a desktop computer;” depending on how a window is resized, one “of three different videos 1s presented’’) (emphasis added).

3 Relatedly, during prosecution, to distinguish Kasai, the applicant relied on Figure 2 to show the “seamless|]| transition to video from a second, different presentation.” See Jacobs Decl., Ex. 1 at 64.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘O’ Case No. 2:20-CV-02299-CAS (ska) Date April 12, 2021 Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL. QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL. Because these figures refer to two different things, the Court finds unpersuasive Eko’s argument that Quibi’s construction reads out of the patent the Figure 4 embodiments. These descriptions confirm the distinction between different video presentations (e.g., the video changes from 210 to 220; “three different videos”), and a portion of a video (e.g., depicted through a viewport). In any event, as Quibi observes, if the claims cannot be read to cover the embodiments in Figures 4A-4D (e.g., because those figures relate to the “configuring” step of Claim 1, or because they relate to Claim 5), “[t]he fact that claims do not cover certain embodiments disclosed in the patent is compelled when narrowing amendments are made in order to gain allowance over prior art.” N. Am. Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335, 1345-46 (Fed. Cir. 2005). Finally, as the Court explained in its PI order, to the extent that Eko’s proposed construction is inconsistent with its trade secret claim, the Court rejects that proposed construction. See PI Order at 17. For the reasons explained above, the Court construes “video presentation” to have the meaning explained by the applicant during prosecution of the ’765 Patent: “each of the first video presentation and the second video presentation 1s an independent video presentation not comprising a region of a larger-dimensioned video.” B. “Resized”

Construction Resized °765 Patent, Plain and ordinary | “changed in size by Claims 1, 10 meaning, whichis | an input device (not “changed in size” physically rotated)”

Eko argues that its proposed construction is consistent with the claims and specification, whereas Quibi’s construction reads out preferred embodiments. Opening Br. at 10. Eko explains that, “Claims 1 and 10 both expressly state that a media player window ‘has been resized’ when there is a “change from first dimensions comprising a first height and a first width to second, different dimensions comprising a second height and a second width.’” Id. (quoting ’765 Patent, Claims 1 & 10). Eko also relies on the

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘O’ Case No. 2:20-CV-02299-CAS (ska) Date April 12, 2021 Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL. QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL. specification, which explains that, “In describing prior art systems, the patent notes that, upon rotation of a smartphone displaying media such as a video, the video is resized ‘to fit the current screen properties.’” Id. at 11 (quoting ’765 Patent at 4:64-5:5): see also °765 Patent at 8:50-56 (parallel tracks of a video may be included, wherein “each parallel track is mapped to one or more device properties, such as screen size, window size, or device orientation”); id. at 7:2-13 (“the device is rotated . . . the viewport 510b is modified in size”). Based on the specification, Eko contends that a person of ordinary skill in the art would have understood that “resizing can be done by rotation or by using an input device.” Opening Br. at 13. Quibi asks the Court to adopt its observation from the PI Order, that “‘it appears Quibi does not practice the claimed resizing of the media player window .. . . Quibi’s application changes from landscape to portrait orientation based on device rotation (not window resizing).’” Response at 9 (quoting PI Order at 20). In support of its proposed construction, Quibi relies on the specification, which explains that, “Fig. 2 depicts a video state change responsive to a rotation of a user device,” whereas “Fig. 3 depicts a video state change responsive to a window resizing.” ’765 patent at 2:26-29. With respect to Figure 3, Quibi notes that the specification explains that, “In this instance, rather than physically rotating or repositioning the user device, the user changes the window size or state (e.g., minimized, maximized, thumbnailed) of the media player 300 using an input device (e.g., mouse, keyboard, touchscreen, etc.).” Patent at 5:50-54. Quibi explains that its proposed construction “tracks this disclosure.” Response at 11. Quibi notes that the applicant relied on Figure 3 depicting window resizing (not Figure 2 depicting rotation) to overcome rejections. Id. Quibi also reyects Eko’s reading-out-the-preferred- embodiments argument because, Quibi explains, the patent “has no preferred embodiments,” just embodiments. Id, Quibi asks the Court to reject Eko’s reliance on “resizing” with respect to an item on a phone screen (as opposed to the claimed media player window), and notes that rotate and resize do not share the same definition. Id. at 11-12. In reply, Eko explains that, “[u]nder the express language of the claim, ‘resized’ requires only that the height and width ‘change’ from a first value to a second value, where the first and second values are different.” Reply at 8. Eko reiterates that, the “resizing through rotation is described in the specification and shown in Figure 2.” Id. at 9. Eko argues that Quibi’s implied disavowal arguments do not meet the standard

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘451 U.S. 390, 395 (1981)). The specification supports the conclusion that “resized” should not be limited to a change in size that occurs only from an input device, as Quibi suggests. The specification notes that, typically, when “a mobile device, such as a smartphone or tablet, is displaying a video, photograph, webpage, or the like, rotating the device between portrait and landscape results in a rotation of the item displayed on the device screen in order to maintain the orientation of the item while, in some cases, simultaneously resizing the item to fit to the current screen proportions. For example, an image that occupies the entire device screen in landscape mode will retain its orientation when the device is rotated to portrait mode, but is resized so that the width of the image fits within the narrower width of the portrait screen, resulting in mattes displayed above and below the image.” ’765 Patent at 4:66-5:10 (emphasis added). And taking this concept one step further, the present invention “provides further enhancements to the user’s media viewing experience beyond simple rotation or resizing of images or videos,” such as changing between different videos and different audio tracks. Id, at 5:11-34: see also, e.g., id. at 7:2-13 (“the device is rotated . . . the viewport 510b is modified in size’).

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Construction media player °765 Patent, Plain and ordinary | “a user-resizable window Claims 1, 10 meaning, whichis | rectangular portion “a window of an of a screen in which application running | media content is on a device, such as | displayed” a computer, smartphone, or tablet, that is capable of presenting (or playing) video content” Eko seeks plain and ordinary meaning construction, which it contends “‘is consistent with how the term is used in the claims and specification.” Opening Br. at 14. For example, Eko notes that the specification teaches that, “videos can be presented to a

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Construction range °765 Patent, Plain and ordinary | “plurality of Claims 1, 10 meaning, whichis | possible values “a set of possible between upper and values” lower limits” Eko seeks plain and ordinary meaning construction, explaining that “range” “appears in the phrases ‘media player window height ranges’ and “media player window width ranges,’” which Eko contends “simply refer[] to the set of possible values for the height and width of the media player window.” Opening Br. at 15. Eko contends that “range” must mean more than “a plurality of possible values between two limits,” because the patent discloses device properties other than window size (e.g., model, screen size). Id. (citing ’765 Patent at Claim 2 (properties selected from the group consisting of physical orientation, model, physical screen size, screen resolution, and window size), id. at 1:46-48, 4:39-64, 11:7-10). Eko argues that, “Many of these properties can be expressed as, or mapped to, ranges of window heights or widths that are not necessarily specified as a plurality of possible values between two limits.” Id.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘O’ Case No. 2:20-CV-02299-CAS (ska) Date April 12, 2021 Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL. QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL. Quibi argues that “range” requires a plurality of possible values because “[a] fixed value, by definition, has only a single value, not a plurality of possible values.” Response at 15 (citing PI Order at 20 (“Quibi’s application changes from landscape to portrait orientation . . . based on fixed values (not ranges).”). Quibi argues this is correct because the specification “expressly contrasts ‘fixed dimensions’ with ‘ranges.’” Id. at 15-16 (citing ’765 patent, 5:65-6:1 (“In some implementations, instead of limiting the windowed media player 250 to fixed dimensions, ranges for window heights and/or widths can be defined and associated with differing media content.”’); id. at 5:57-58 (a “fixed window dimension” is a “defined height and width”)). Quibi argues that the claim language also supports this construction, because “Claims | and 10 both recite “determining that the second [height / width] is included in a particular one of the media player window [height / width] ranges,” and “[t]he words ‘included in’ indicate that the ranges comprise multiple values.” Id. at 16. Further, Quibi argues that Eko’s reliance on Claim 2 is misplaced, because “The ‘properties’ recited in claim 2 are not used in claim 1’s steps involving ‘ranges’: they are used in an earlier step of ‘configuring a first state of the video.’” Id. at 17. In reply, Eko argues that “range” should not be limited to the examples shown in Table 1 and Figure 3 of the patent. Reply at 14. Eko also argues that Quibi’s construction would include values that are not possible (e.g., resulting in fractions of pixels). Id. at 15. Eko contends that Quibi’s construction should be rejected for the additional reason that it “reads out claim 6 because it precludes window size (e.g., window width and height) from being associated with an initial (and single) value or a (single) value to which those properties changed.” Id. at 16 (citing ’765 Patent at Claim 6 (“wherein the video from the first video presentation is associated with an initial value of the one of the properties, and wherein the video from the second video presentation is associated with a value to which the one of the properties changed’’). In surreply, Quibi notes that “Eko does not contest that the specification expressly contrasts ‘fixed dimensions’ with ‘ranges’ and that every range in Table 1 1s a plurality of values.” Surreply at 10. Further, Quibi explains that, “Eko’s argument that Quibi’s construction ‘reads out claim 6’ is based on Eko’s misreading of both claim 1 and claim 6.” Id. “Claim 1 says that the mapping is used upon “determining that a media player window in which the video is playing has been resized.” Id. at 10-11. Eko did not respond to the contention that, “The device ‘properties’ are used in a different step of

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Id. at 5:65-6:5. Based on these definitions and illustrations, “range” in Claims 1 and 10 cannot mean “fixed dimension.” Eko does not meaningfully dispute that a “range” must be bounded by limits. Because devices have limited screen size, the Court agrees that the

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Construction segment °220 Patent Plain and ordinary | “standalone video” Claims 1, 13 meaning, which is Patent “a portion of video Claims 1, 11 and/or audio content” collection of °220 Patent Plain and ordinary | “a first segment of a segments Claims 1, 13 meaning, whichis | video that is played “a collection of and one or more portions of video subsequent and/or audio segments” content” The parties dispute whether each “segment” is a portion of a video or an independent, i.e., standalone, video. Eko argues that plain and ordinary meaning dictates that “segment” is a portion of a video. Opening Br. at 17. Eko explains that, “Claim 1

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Regular Video

oir interlude Video (with branches) — Downloaded video Le Played video EN — Remaining video te download ~~ Decision point ——}--__-—» Time See ’220 Patent at Fig. 3 (“illustrating the differences between a regular video and a video of the present invention’).

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Construction content paths 066 Patent “two or more “selectable Claims 1, 11 multimedia content | sequences of two or segments” more multimedia content segments”

The parties dispute whether “content paths,” i.e., “two or more multimedia content segments,” must be “selectable sequences.” Eko argues that “selectable sequence” should not be added because Claim | already encompasses this concept. Opening Br. at 25 (citing ’220 Patent, Claim 1 (“multimedia content segments, each content segment defining a portion of one or more content paths, wherein a particular content segment comprises a decision period during which a subsequent content segment can be selected for playback”). Eko also argues that adding selectable sequence adds ambiguity to the term by possibly requiring each content path to have three or more segments. Id. at 25. In response, Quibi argues that, “[a] ‘content path’ is not just any two disconnected segments. Rather, as the word ‘path’ conveys, it is two (or more) segments 1n a 4 At the hearing the parties agreed that, to comport with the purpose of the invention, “collection of segments” requires no set order for the subsequent segments.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘O’ Case No. 2:20-CV-02299-CAS (ska) Date April 12, 2021 Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL. QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL. sequence.” Response at 23. Quibi argues that the specification supports this construction: “a content path is formed through a repeatable process in which a user ‘select[s] the next content segment to view as the current segment is playing’ and then the “selected segment is seamlessly appended |] onto the currently playing content segment.’” Id. (quoting □□□□ Patent at 2:55-61). Quibi argues that this construction serves the purpose of the patent, “which is to provide ‘systems and methods to synchronize audio for selectably presentable media content segments.’” Id. at 23-24 (quoting ’066 Patent at 1:42-46). The ’066 Patent provides “|a] system for synchronizing audio and video of selectably presentable multimedia content [and] includes a memory for storing a plurality of selectably presentable multimedia content segments.” ’066 Patent at Abstract. “Each content segment defines a portion of one or more content paths and includes a decision period during which a user may select a subsequent content segment as the content segment is playing.” Id. The invention recognized a “need for systems and methods to synchronize audio for selectably presentable media content segments, such that a synchronized, seamless transition in audio and video occurs between the end of one segment and the start of another.” Id. at 1:42-46. Thus, in the invention, “Each content segment defines a portion of content paths and includes a decision period during which a user may select a subsequent content segment as the content segment is playing.” Id. at 1:53-56. “Two or more combined segments form a seamless multimedia content path and there may be multiple paths that a viewer can take to experience a complete, start-to- finish, seamless presentation.” Id. at 4:27-29. “Ultimately, the viewer arrives at a final segment, having traversed a complete multimedia content path.” Id. at 5:3-5. In its Tenative Claim Construction Order, the Court observed that no apparent material dispute existed between the parties’ positions with respect to “content paths.” Eko argued that the words “selectable” or “sequence” should not be added to the construction, in part because Eko observed that Claim | “already includes the concept of allowing a selection,” thereby making “selectable sequence” “redundant and unnecessary.” Opening Br. at 25. Quibi likewise observed that the word “path” already conveys, “two (or more) segments in a sequence.” Response at 23. At the hearing, Quibi explained that a material dispute does exist as to this term. Specifically, Quibi argued that “content paths” should not be construed to encompass two parallel segments but rather, should be limited to segments that can be selected one after the other. Eko responded that “content paths” are any two or more combined segments that need not be

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘

Parallel Downloaded video re eee cee — Played video ANAEK — |= Remaining video to download

FIG. 10 The description of Figure 10 and Figure 10 itself make clear that, like the ’220 and °066 Patents overall, Figure 10 involves selectable segments driven by user choice. In this example, the decision points allow a user to move either to another point on the same branch or to another point on a different (parallel) branch. The branching concept remains the same: movement along a content path of segments is controlled by a user selecting from among available options, with certain choices changing the branching path (e.g., moving down to a parallel branch instead of along a linear branch). Nothing in the ’220 Patent suggests that a “content path” in the 066 Patent is formed from any two content segments without regard to a set of predetermined decision points and user selections (or in the case of no user selection, a specific default content path). See ’066 Patent at 4:58- 61 (user has “an amount of time to make a selection (i.e., a decision period), after which, if no selection 1s made, a default segment will be automatically selected”). Accordingly, for the reasons stated above, the Court construes “content path” to mean “two or more multimedia content segments.” In connection with this construction, because selectable sequence is implied in the remaining claim language, neither party may later argue in this litigation that Claim 1 does not disclose a sequence of content segments forming one or more content paths.°

> Specifically, Claim 1 discloses, “a memory for storing a plurality of multimedia content segments, each content segment defining a portion of one or more content paths, wherein a particular content segment comprises a decision period during which a subsequent content segment can be selected for playback as the particular content segment is playing.” ’066 Patent at Claim 1. In other words, a content path is made up of content

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES —- GENERAL ‘O’ Case No. 2:20-CV-02299-CAS (ska) Date April 12, 2021 Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL. QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL. V. CONCLUSION In accordance with the foregoing, the Court construes the disputed claim limitations as follows: “wideo presentation” means “each of the first video presentation and the second video presentation 1s an independent video presentation not comprising a region of a larger- dimensioned video” “resized” means “changed in size” “media player window” means “a generally rectangular area of an application in which media content is displayed” “range” means a “plurality of possible values between upper and lower limits” “segment” means “a standalone video,” and “collection of segments” means “a first segment that is played and one or more subsequent segments” “content path” means “two or more multimedia content segments” IT IS SO ORDERED. 00 00 Initials of Preparer CM)

segments, and each content segment gives the user a selection choice that determines which content segment is played next; the content path 1s not made up of an arbitrary plurality of segments.