Netflix, Inc. v. Blockbuster, Inc.

Filing 148

Netflix, Inc. v. Blockbuster, Inc.

Doc. 148

Case 3:06-cv-02361-WHA

Document 148

Filed 02/13/2007

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KEKER & VAN NEST, LLP JEFFREY R. CHANIN - #103649 DARALYN J. DURIE - #169825 ASHOK RAMANI - #200020 710 Sansome Street San Francisco, CA 94111-1704 Telephone: [phone] Facsimile: [phone] Attorneys for Plaintiff NETFLIX, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

NETFLIX, INC., a Delaware corporation, Plaintiff, v. BLOCKBUSTER, INC., a Delaware corporation, DOES 1-50, Defendant. AND RELATED COUNTERCLAIMS

Case No. C 06 2361 WHA (JCS) NETFLIX'S CRITIQUE OF THE COURT'S TENTATIVE CLAIM CONSTRUCTION ORDER Complaint filed: April 4, 2006

NETFLIX'S CRITIQUE OF THE COURT'S TENTATIVE CLAIM CONSTRUCTION ORDER CASE NO. C 06 2361 WHA (JCS) Dockets.Justia.com

Case 3:06-cv-02361-WHA

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Netflix respectfully submits these comments to address just one issue in the Court's February 9, 2007 Tentative Claim Construction Order ("Tentative Order"): whether an "ordered list" reflects a customer's desired order. Netflix appreciates the Court's careful effort to define the related terms "queue" and "ordered list" such that they are not co-extensive. In defining the "queue," the Court correctly observed that "the provider, in arranging the queue, may take into account different priorities than those used to create the `ordered list,'" (Tentative Order at 7:23), and that, while the items in the queue "may not be in a customer-determined order, they still would be arranged in some manner for the system to rent items." (Id. at 8:6-7). But, by holding that, even when the queue comprises (i.e., includes) an "ordered list," the ordered list may itself be in "some default order" other than one which consists of, or at least includes, the customer's desired rental order, the Court's tentative construction of "ordered list" arguably erases the distinction between the ordered list and the queue. The patents use the term "ordered list" to capture two related, but distinct, concepts: (1) a sequence (which derives from the word "list"), and (2) a priority (which derives from the word "ordered"). A list that is simply in a default order has a sequence (it is a list), but it does not reflect any priority (it is not ordered). The patent uses the term "ordered" list to capture this concept of priority: a sequence of items is placed into the order of desired delivery. Otherwise, "ordered" would be surplusage, and the claims would refer simply to a list. The Court has correctly observed that, in the patented system, the provider itself may select items for rental to a customer based, at least in part, on input received from the customer. (Id. at 7:22-25). The Court also concluded that, when the queue comprises an "ordered list," that ordered list need not be in the customer's preferred order because Claim 38, which depends from Claim 34, recites that "the two or more movies [making up the ordered list] for renting to the customer are selected by the customer." The Court further concluded that "[f]or Claim 38 to add a limitation, the ordered list itself must be able to be based on some sequence other than the customer's preferences." (Id. at 5:4-5). However, Claim 38 does add a limitation to what is contained in the "ordered list," independent of the customer's desired order. When not further limited by Claim 38, the "ordered list" could consist of movies selected by the provider (not 1
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selected by the customer) based, in part, on input from the customer (but not selected by the customer). Claim 38 limits the "ordered list" to movies selected by the customer. What the "ordered" part of "ordered list" adds is a prioritization, different from the default sequence of the queue. In the example of Claim 34 when not further limited by Claim 38, the movies selected by the provider and queued up for rental would subsequently be ordered (i.e., prioritized) by the customer, and thereby placed into the customer's desired order. The customer would not necessarily have to rearrange the movies in order for this to be true -reviewing the list and accepting the default order of the queue would suffice. Indeed, the Court's Tentative Order discusses this possibility at the top of page 11, in explaining that the provider could automatically add all adventure movies starring Harrison Ford, and the customer could then place one ahead of the other, resulting in his or her "ordered list." Claim 38 therefore does not compel the conclusion that an "ordered list" must be broader than a list reflecting a customer's desired order. The Court's discussion of "in the order of the list," "based upon the desired order" and "in the desired order" reflects this distinction. The Court appears to agree that "desired order" is, necessarily, the order desired by the customer, not an order established by a default setting on the part of the provider (which does not reflect any "desire" at all). Indeed, if "ordered list" meant a list in any order, rather than a list in the customer's desired order, then there would be no reason to distinguish between providing movies "in" the order of the list and providing movies "based upon" the order of the list. The "ordered list" would simply be whatever list was used to rent movies, even if it did not reflect the customer's desired order at all. That is clearly not the invention of these patents, which require that the customer's preferences inform the order in which movies will be received. Therefore, the Court's construction of "ordered list" should make clear that the ordered list must reflect a customer's desired rental order. Netflix believes that the ordered list should be construed as exclusively the order desired by the customer, since the customer, either by reordering the list itself, or by choosing to accept the order established by the queue, expresses his or her desired order, but if the Court disagrees, the "ordered list" should at least in part reflect 2
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the customer's desired order, and not just a default order (which already exists by operation of the queue).

Dated: February 13, 2007

KEKER & VAN NEST, LLP

By: /s/ Eugene M. Paige________ EUGENE M. PAIGE Attorneys for Plaintiff NETFLIX, INC.

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