Motorola Mobility, Inc. v. Apple, Inc.

Filing 185

RESPONSE in Opposition re 178 MOTION to Strike Motorola's Supplemental Infringement Contentions filed by Motorola Mobility, Inc.. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14)(Giuliano, Douglas)

EXHIBIT 6

CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

APPLE INC., and NEXT SOFTWARE,
INC. (f/k/a NeXT COMPUTER, INC.),
Plaintiffs and
CounterclaimDefendants,
v.

Case No. 10-CV-662 (BBC)

MOTOROLA, INC. and MOTOROLA
MOBILITY, INC.
Defendants and
CounterclaimPlaintiffs

INITIAL EXPERT REPORT OF DR. NATHANIEL POLISH REGARDING
INFRINGEMENT OF U.S. PATENT NUMBER 6,343,263

CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

TABLE OF CONTENTS
Page
I.

INTRODUCTION ............................................................................................................. 1

I.

BACKGROUND AND QUALIFICATIONS ................................................................... 1

II.

SUMMARY OF OPINIONS ............................................................................................. 3

III.

MATERIALS REVIEWED............................................................................................... 3

IV.

U.S. PATENT NO. 6,343,263 ........................................................................................... 4
A.

Description and Background of the ’263 Patent .................................................... 4

B.

Asserted Claims of the ’263 Patent...................................................................... 10

V.

ACCUSED PRODUCTS ................................................................................................. 11

VI.

LEGAL STANDARDS ................................................................................................... 14
A.

Infringement......................................................................................................... 15

VII.

PERSONS OF ORDINARY SKILL IN THE ART ........................................................ 20

VIII.

RELEVANT LEGAL PRINCIPLES AND GUIDANCE ............................................... 20
A.

IX.

Proposed Constructions ....................................................................................... 20

INFRINGEMENT OF THE ’263 PATENT: OVERVIEW............................................. 22
A.

Realtime ............................................................................................................... 22
1.
2.

B.
X.

Types of Realtime Systems...................................................................... 22
Realtime “Streaming” .............................................................................. 24

OpenMAX IL API ............................................................................................... 25

INFRINGEMENT OF THE ’263 PATENT BY MOTOROLA’S ANDROID
PHONES .......................................................................................................................... 28
A.

Overview.............................................................................................................. 28

B.

Infringement of Claim 1 of the ’263 Patent ......................................................... 30

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1.

“A signal processing system for providing a plurality of realtime
services to and from a number of independent client applications
and devices, said system comprising:” .................................................... 31

2.

“(a) a subsystem comprising a host central processing unit (CPU)
operating in accordance with at least one application program and
a device handler program, said subsystem further comprising an
adapter subsystem interoperating with said host CPU and said
device;” .................................................................................................... 32
a.
b.

“operating in accordance with at least one application
program and a device handler program”...................................... 33

c.
3.

“subsystem comprising a host central processing unit
(CPU)” ......................................................................................... 32

“said subsystem further comprising an adapter subsystem
interoperating with said host CPU and said device”.................... 38

“(b) a realtime signal processing subsystem for performing a
plurality of data transforms comprising a plurality of realtime
signal processing operations; and”........................................................... 39
a.

4.

C.

“(c) at least one realtime application program interface (API)
coupled between the subsystem and the realtime signal processing
subsystem to allow the subsystem to interoperate with said
realtime services.”.................................................................................... 41

Infringement of Claim 2 of the ’263 Patent ......................................................... 43
1.

D.

for performing a plurality of data transforms comprising a
plurality of realtime signal processing operations; and”.............. 40

“The signal processing system as set forth in claim 1, wherein said
signal processing system receives and transmits a plurality of
datatypes over a plurality of different wide area networks
(WANs).” ................................................................................................. 43

Induced And Contributory Infringement ............................................................. 44

XI.

RESERVATION OF THE RIGHT TO SUPPLEMENT................................................. 45

XII.

CONCLUSION................................................................................................................ 45

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I.

INTRODUCTION
1.

I have been retained by counsel for Apple, Inc. in this Action to provide analysis,

expert opinions, and testimony regarding the issue of infringement of U.S. Patent No. 6,343,263
(the “’263 patent”), including a discussion of the ’263 patent and the design and operation of
Motorola Mobility, Inc.’s and Motorola Solutions, Inc.’s (collectively, “Motorola”) phones and
other computing devices running versions of the Android operating system as installed on these
Motorola devices (“Accused Products”), which are accused of infringing the ’263 patent. At any
hearing or trial in this matter I may also provide a tutorial on the design and operation of mobile
phone operating systems, and other aspects of the relevant technologies.
2.

At trial, I may be asked to testify about the claims and disclosures contained in the

’263 patent, including the specification and the figures, as well as relevant portions of the file
history. In addition, I may testify regarding the operation of the embodiments of the claimed
invention that are described in the ’263 patent. I may also be asked to testify regarding any prior
art that was cited in the course of prosecution of the ’263 patent. I may also testify regarding the
general state of the art in the field of computer-based realtime signal processing at the time the
invention claimed in the ’263 patent was developed.
3.

I am being compensated for my time expended in connection with this case at the

rate of $500 per hour, plus reimbursement of any expenses I incur. I have no financial stake in
this litigation, and my compensation is not contingent upon the outcome of this litigation.
I.

BACKGROUND AND QUALIFICATIONS
4.

I expect to testify regarding my background, qualifications, and experience

relevant to the issues in this litigation. I have a Ph.D. in Computer Science from Columbia
University. I hold the following four degrees from Columbia, spanning the years 1980 to 1993:

CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

Ph.D. in Computer Science, May 1993, Thesis: Mixed Distance Measures
for the Optimization of Concatenative Vocabularies in Speech Synthesis;
M.Phil. in Computer Science, December 1989;
M.S. in Computer Science, December 1987;
B.A. in Physics, Columbia College, May 1984.
5.

For over twenty-five years, I have run a computer technology development firm

that I co-founded, called Daedalus Technology Group. My primary business activity is the
development of computer-related products. This activity involves understanding the business
objectives of customers, designing products to suit their needs, and supervising the building,
testing, and deployment of these products. I develop hardware and software as well as supervise
others who do so.
6.

Also, from time to time I found other companies in order to pursue particular

product opportunities. I develop and ultimately sell these companies. Most of my business
activity, however, is as a consulting product developer. From time to time I have also served as
an expert witness on computer and software related cases. I am a named inventor on seven
United States patents, and am a member of several professional societies, including the IEEE and
ACM.
7.

I have extensive experience in several areas relevant to this case. From the mid-

1980s to the mid-1990s I and my company were engaged in a number of research and
development projects related to realtime processing, DSPs, signal processing, speech and audio
coding and video serving. I used several early TI DSP chips as part of my dissertation research
in the late 1980s. I have developed a number of systems having a variety of realtime aspects and
requirements. These included signal processing systems as well as media serving systems.

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8.

These are similar technologies to those discussed in the ’263 patent. As part of

my work on these projects, I was involved in all aspects of designing and developing these
systems. I was and am very familiar with the technology.
9.

Attached to this report as Appendix C is a copy of my curriculum vitae, which

includes a list of the matters in which I have served as an expert witness.
II.

SUMMARY OF OPINIONS
10.

Based on my analysis of accused Motorola products, the documentation and

source code produced by Motorola, as well as other documents and/or source code that I have
reviewed, and my understanding of the legal standards and the materials considered, I have
formed the following opinions regarding the ’263 patent:
The Accused Products, which include all Motorola Android phones and
tablet devices running versions 1.5 to 3.1 of the Android operating system
(as identified in Table 1 below), infringe at least claims 1 and 2 of the ’263
patent.
11.

I expect to testify at trial concerning these opinions, the subject matter, disclosure,

technology, claim construction and validity of claims 1 and 2 of the ’263 patent, based on my
review and study of that patents, relevant prior art, and my experience, knowledge of the field,
and education.

I also expect to rebut any opinions I disagree with that are provided by

Motorola’s expert(s) with respect to the opinions I express in this Report.
12.

My analyses relating to infringement of the Accused Products are discussed

below.
III.

MATERIALS REVIEWED
13.

In forming the opinions set forth in this report, I considered and relied upon my

education, background, and experience. I also reviewed the ’263 patent and its prosecution
history (including the prior art cited therein), as well as the other documents or reference

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materials cited or listed in this report. In addition, I have evaluated representative samples of the
Accused Products. Exhibit A includes a list of the documents I have reviewed. I reserve the
right to rely upon any additional information or materials that may be provided to me or that are
relied upon by any of Motorola’s experts or witnesses, if called to testify or to give additional
opinions regarding this matter.
14.

I understand that discovery is ongoing in this matter. I reserve the right to

supplement my opinions in this report should additional information become available to me.
IV.

U.S. PATENT NO. 6,343,263
A.

Description and Background of the ’263 Patent

15.

The ’263 patent, entitled “Real-Time Signal Processing System For Serially

Transmitted Data,” was filed on August 2, 1994, and issued on January 29, 2002. The named
inventors on the ’263 patent are James B. Nichols and John Lynch, and the patent was assigned
to Apple Computer, Inc. I understand that the ’263 patent is still assigned to Apple.
16.

The ’263 patent provides: “The present invention is directed to the transmission of

data to and from a computer, and more particularly to a system for performing real-time signal
processing of data that is serially transmitted to and from a computer.” (’263 patent at col. 1:58.) In particular, at the time of the invention: “Various devices are known for transmitting data
between a computer and a remote site via wide-area telecommunications networks. One of the
most widely used devices of this type is the modem, which enables data to be transmitted to and
from a computer over a wide-area analog telephone network.” (Id. at col. 1:10-15.)
17.

Examples of applications that processed data received from over a modem include

facsimile or video conferencing applications. (’263 patent at col. 1:40, 2:39-40.)
18.

The patent explains that: “[t]o enhance the performance of modems, a digital

signal processor (“DSP”) has been incorporated into its structure. In this arrangement, the
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modem software was designed to cooperate with the DSP to provide data thereto for processing
prior to transmission or after reception over the telephone line.” (’263 patent at col. 1:45-50.)
19.

A DSP is a processor used to accelerate certain kinds of computations, for

example, computations used for processing signals such as an audio signal from a microphone.
DSPs were first introduced in the early 1980s with, for example, the TMS320 from Texas
Instruments.
20.

I had first-hand experience with DSPs in the early 1990s. For example, I used

DSPs during that timeframe to perform realtime processing of speech signals.
21.

The patent explains “[t]here are three possible implementations of the DSP,

respectively identified as hard, soft and native.” (’263 patent at col. 6:46-48.) In the hard
implementation, the DSP is fixed in a piece of hardware and cannot be reprogrammed or updated
without changing the chip. (Id. at col. 6:48-52.) In the soft implementation, the DSP is still
resident as a separate piece of hardware but is programmable and can be updated as desired. (Id.
at col. 6:59-64.) “In the native implementation of the DSP, the processor does not reside in a
separate piece of hardware. Rather, it’s [sic] functions are carried out by the CPU of the host
computer.” (Id. at col. 7:5-7.)
22.

In order to achieve the desired performance from a DSP-accelerated system, an

engineer needed to write low-level code specifically for the DSP. The process was complicated
and time consuming. An engineer who designed a system for a DSP would find that his software
architecture lost essentially all hardware independence. The code had to run on a very specific
configuration of hardware. As the ’263 patent explains, “Further in this regard, the modem
control software had to be designed to work with the specific DSP incorporated into the

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CONTAINS CONFIDENTIAL BUSINESS INFORMATION SUBJECT TO PROTECTIVE ORDER

computer.

If a different DSP was to be used, the modem control software had to be

reprogrammed to work with the new DSP.” (’263 patent, at col. 1:63-67.)
23.

Additionally, since DSPs had to be communicated with in certain specific ways,

there was little flexibility in how an engineer might approach problem-solving with the DSP. Per
the patent: “While the addition of the DSP provided increased capabilities in terms of the speed
at which the data could be transmitted over a telephone network and the ease with which the
modem could be configured, it was still limited in the types of data that could be processed.”
(’263 patent, at col. 1:50-54.)

If tomorrow there was a new audio file format, computer

manufacturers would be forced to update each of the DSP-manufacturer-specific code bases.
Thus, the patent explains that “it is desirable to provide a signal processing system that is not
limited to one specific DSP, but rather one that can operate with any of a variety of different
types of signal processors.” (Id. at col. 2:23-25.)
24.

The ’263 patent aimed to remedy these problems. At a high level, the ’263 patent

is concerned with providing realtime APIs through which applications can access the DSP.
25.

Per Claim 1 and Figure 2 of the patent, the signal processing system includes two

major subsystems, a CPU subsystem (10, 20, 44) and a realtime signal processing subsystem
(46). Coupled between the subsystems is a realtime API (48) that allows applications running on
the CPU to request realtime services, such as video image processing of data received from over
a wide-area network (“WAN”):

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26.

The CPU subsystem includes, for example, a host central processing unit (CPU)

operating in accordance with at least one application program and a device handler program and

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an adapter subsystem that interoperates with the host CPU and the device. Example applications
include facsimile or video conferencing applications. (See ’263 patent at col. 1:40; 2:39-40.)
One of ordinary skill in the art would have recognized that the CPU subsystem could include
other programs such as driver software.
27.

The ’263 patent explains that, as illustrated in Figure 2, there can be a number of

realtime APIs 48. (See ’263 patent, at col. 6:25-26.) In particular, each realtime API “represents
services for a particular class of functionality. For example, one interface may relate to the
operation of the engine as a virtual telephone, another interface can be associated with a virtual
sound device, e.g. stereo, and a third interface can pertain to a virtual video device.” (Id. at col.
6:27-32.) Each realtime API instructs the realtime signal processing subsystem “to carry out the
necessary transforms which relate to the function of the virtual device being implemented, e.g.
text-to-speech conversion, video image processing, etc.” (Id. at col. 6:33-38.)
28.

Figure 3 of the patent illustrates the architecture of the realtime signal processing

subsystem in further detail. (’263 patent, at col. 6:39-40.)

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29.

Per the ’263 patent specification, the generic service providers receive commands

from the realtime APIs 48 “to perform the transforms that are required in the operation of the
virtual device being implemented.” (’263 patent, at col. 7:16-20.) The generic service providers
62 are labeled as being generic because they are independent of the actual hardware that is used
as the DSP. (Id. at 7:20-23.) In other words, the realtime communications modules implement
the realtime APIs in a DSP-independent manner.
30.

The patent explains that “separate generic service providers can be employed for

the different virtual devices implemented.” (’263 patent, at col. 7:34-36.) For example, one

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service provider could be employed to provide the services of a virtual telephone. (Id. at col.
7:36-38.) Another service provider could be used for sound applications, and a third service
provider could be used for video applications. (Id. at col. 7:44-46.)
31.

These generic service providers 68 are made independent by the interface 64.

(See ’263 patent, at col. 7:23-33.) This translation interface program essentially functions as an
additional layer of abstraction that virtualizes the DSP, i.e., the realtime communications module
is aware of the existence of the DSP but does not need to know if it is hard, soft or native. (Id.)
B.

Asserted Claims of the ’263 Patent

32.

I understand that Apple is asserting claims 1 and 2 of the ’263 patent. These

claims recite:
1.

A signal processing system for providing a plurality of realtime services to
and from a number of independent client applications and devices, said
system comprising:
(a)

(b)

a realtime signal processing subsystem for performing a plurality
of data transforms comprising a plurality of realtime signal
processing operations; and

(c)

2.

a subsystem comprising a host central processing unit (CPU)
operating in accordance with at least one application program and
a device handler program, said subsystem further comprising an
adapter subsystem interoperating with said host CPU and said
device;

at least one realtime application program interface (API) coupled
between the subsystem and the realtime signal processing
subsystem to allow the subsystem to interoperate with said
realtime services.

The signal processing system as set forth in claim 1, wherein said signal
processing system receives and transmits a plurality of datatypes over a
plurality of different wide area networks (WANs).

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V.

ACCUSED PRODUCTS
33.

Motorola designs and sells mobile devices, including phones and tablet

computers, that run the Android operating system. These devices also incorporate touchscreens
to allow user input. At this time, I understand that the mobile devices that Motorola makes, uses,
sells, or offers to sell in the United States, or imports into the United States that run the Android
operating system are the Motorola Atrix, Backflip, Bravo, Charm, Citrus, Cliq/Dext, Cliq 2, Cliq
XT/Quench, Defy, Devour, Droid, Droid 2, Droid 2 Global, Droid Bionic, Droid Pro, Droid X,
Droid X2, Droid 3, Flipout, Flipside, i1, Titanium, Xoom, and XPRT (the “Accused Products”).
See, e.g., Respondent Motorola Mobility, Inc’s 1st Suppl. Resp. to Complainant Apple Inc.’s 1st
Set of Interrog., 337-TA-750, at 22; Respondent Motorola Mobility, Inc’s Resp. to Complainant
Apple Inc.’s 2d Set of Interrog., 337-TA-750, at 15; Respondent Motorola Mobility, Inc.’s 2d
Suppl. Resp. to Complainant Apple’s 1st Set of Interrog., 337-TA-750, at 20-21.
34.

A table of the Accused Products based on information produced by Motorola as

well as public information provided by Motorola at http://developer.motorola.com/products/ is
provided in TABLE 1 below:1
1

See, e.g., WI-Apple0034146 (Atrix Tech Specs); WI-Apple1604158 (Atrix Dev Specs); WIApple0034176 (Backflip Tech Specs); WI-Apple0147729 (Backflip Dev Specs); WIApple0147565 (Bionic Dev Specs); WI-Apple0034213 (Bravo Tech Specs); WI-Apple0147718
(Bravo Dev Specs); WI-Apple0034203 (Charm Tech Specs); WI-Apple0147332 (Charm Dev
Specs); WI-Apple0034181 (Citrus Tech Specs); WI-Apple0147224 (Citrus Dev Specs); WIApple0034191 (Cliq2 Tech Specs); WI-Apple0147231 (Cliq2 Dev Specs); WI-Apple0034208
(Cliq XT Tech Specs); WI-Apple0147649 (Cliq XT Dev Spec); WI-Apple0147573 (Cliq Dev
Specs); WI-Apple0034152 (Defy Tech Specs); WI-Apple0147325 (Defy Dev Specs); WIApple0034157 (Devour Tech Specs); WI-Apple0147651 (Devour Dev Specs); WIApple0034186 (Droid Tech Specs); WI-Apple0147502 (Droid Dev Specs); WI-Apple0034192
(Droid 2 Tech Specs); WI-Apple0147222 (Droid 2 Dev Specs); WI-Apple0034162 (Droid 2
Global Tech Specs); WI-Apple0147506 (Droid 2 Global Dev Specs) WI-Apple1604162 (Droid 3
Tech Specs); WI-Apple1604161 (Droid 3 Dev Specs); WI-Apple0034170 (Droid Pro Tech
Specs); WI-Apple0147220 (Droid Pro Dev Specs); WI-Apple0034198 (Droid X Tech Specs);
WI-Apple0147323 (Droid X Tech Specs); WI-Apple1604237 (Droid X2 Tech Spec); WIApple1604235 (Droid X2 Dev Specs); WI-Apple0034182 (Flipout Tech Specs); WI11

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Product
(Code
Name)

Product
Type

Operating System
(Reviewed)

Touch
Screen

Processor

Atrix
(Olympus)

Smartphone

Capacitive

NVIDIA Tegra
2 AP20H

1 GB

2 GB

Backflip
(Motus)

Smartphone

Android v2.2
(2.2.2-OLYFR_U4_1.8.3)
Android v2.1
(2.1-update1MOTUS_U3_0.139.0)

Capacitive

Qualcomm
MSM7200A

256 MB

512 MB

Bionic
(Targa)

Smartphone

Android v2.3.3
(2.3.3-5.5.1-c71610)

Capacitive

NVIDIA Tegra
2 AP20H Dual
Core

512 MB

2 GB

Bravo
(Kobe)

Smartphone

Capacitive

TI OMAP3610

512 MB

2 GB

Charm
(Ciena)

Smartphone

Capacitive

TI OMAP3410

512 MB

512 MB

Citrus
(Basil)

Smartphone

Capacitive

Qualcomm
MSM7625

256 MB

512 MB

Cliq
(Morrison)

Smartphone

Android v2.1
(2.1-update1-KOBE_U3_5.35.0)
Android v2.1
(2.1-update1A3013_X_00.58.22P)
Android v.2.1
(2.1-update1BASIL_U3_03.90.7)
Android v.1.5
(Blur_Version.1.0.11.MB200.TMobile.en.US)
(Blur_Version.1.4.8.MB200.TMobile.en.US)

Capacitive

Qualcomm
MSM7200A

256 MB

512 MB

Cliq 2
(Begonia)

Smartphone

Android v2.2
(BGN_1.0.23)

Capacitive

512 MB

1 GB

Cliq XT
(Zeppelin)

Smartphone

Android v1.5
(MB501_0.12.11_1.3.27)

Capacitive

256 MB

512 MB

Defy
(Jordan)

Smartphone

Android v2.1
(JORDN_U3_6.36.0)

Capacitive

512 MB

2 GB

Devour
(Calgary)

Smartphone

Capacitive

256 MB

512 MB

Droid
(Sholes)

Smartphone

Android v1.6
(CALAND_X_01.15.10P)
Android v2.1
(MILER_X1_01.22.0)
(MILER_X1_01.26.1)

TI
OMAP36201000
Qualcomm
MSM7200A
TI
OMAP36201000
Qualcomm
MSM7627

Capacitive

TI OMAP3430

256 MB

512 MB

Droid 2
(Droid2)

Smartphone

Android v2.2
(DROID_X6_2.3.20)

Capacitive

TI
OMAP36201000

512 MB

8 GB

Memory Memory
(RAM) (FLASH)

Apple0147716 (Flipout Dev Specs); WI-Apple0034214 (Flipside Tech Specs); WIApple0147330 (Flipside Dev Specs); WI-Apple0034180 (i1 Tech Specs); WI-Apple0147229 (i1
Dev Specs); WI-Apple1604306 (Milestone Tech Specs); WI-Apple1604304 (Milestone Dev
Specs); WI-Apple1604367 (Photon Tech Specs); WI-Apple1604365 (Photon Dev Specs);WIApple1604527 (Titanium Tech Specs); WI-Apple1604525 (Titanium Dev Specs); WIApple1604611 (Triumph Tech Specs); WI-Apple1604609 (Triumph Dev Specs); WIApple0147327 (Xoom Tech Specs); WI-Apple0147504 (Xoom Dev Specs); WI-Apple1604687
(XPRT Tech Specs); WI-Apple1604684 (XPRT Dev Specs) (collectively, “List of Accused
Products Specifications”)

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Product
(Code
Name)

Product
Type

Operating System
(Reviewed)

Touch
Screen

Droid 2
Global
(DroidWE)

Smartphone

Android v2.2.1
(DROID2WE_X6_2.5.12)

Capacitive

Droid 3

Smartphone

Android v2.3.4

Capacitive

Droid Pro
(Venus)

Smartphone

Android v2.2.1
(VNUS2_X1_02.26.6)

Capacitive

Droid X
(Shadow)

Smartphone

Android 2.2.1
Android v2.3.3
(SHADOW_X6_2.3.34)
(DROIDX_SHADOW_06-2311)

Capacitive

DroidX2
(Daytona)

Smartphone

Android v2.2.2
(4.4.1A-274_DTN-14.8)

Flipout
(Ruth)
Flipside
(Sage)
i1
(OpusOne)
Milestone

Smartphone

Smartphone

Android v2.1
(RUTH_U3_00.28.4)
Android v2.1
(SAGE_U3_10.23.20)
Android v1.5 (OPUS_ONE_AP_
RBE.03.00_MS_ARM)
Android v2.2

Capacitive

Photon

Smartphone

Android v2.3.3

Capacitive

Spice
(Sesame)

Smartphone

Android v2.1
(SESLA_U3_01.71.0)

Capacitive

Titanium

Smartphone

Android v2.1

Capacitive

Triumph

Smartphone

Android v2.2

Xoom
(Everest)
(Hubble)

XPRT

Processor
TI
OMAP36301200
TI
OMAP44301000
TI
OMAP36201000

Memory Memory
(RAM) (FLASH)
512 MB

8 GB

512 MB

1.5 GB

512 MB

2 GB

TI
OMAP36301000

512 MB

8 GB

Capacitive

NVIDIA Tegra
2 AP20H Dual
Core

512 MB

2 GB

Capacitive

TI OMAP3410

512 MB

512 MB

Capacitive

TI OMAP3410

512 MB

512 MB

Capacitive

256 MB

512 MB

256 MB

512 MB

1 GB

3 GB

256 MB

512 MB

256 MB

512 MB

Capacitive

Freescale Zeus
2.0 ARM1136
TI OMAP3430
NVIDIA Tegra
2 AP20H Dual
Core
Qualcomm
MSM7225
Freescale Zeus
2.0 ARM1136
Qualcomm
MSM8655

512 MB

2 GB

Tablet

Android v3.0.1
(MR0)
Android v3.1
(XOOM_HUBBLE_WIFI_0623-11)

Capacitive

NVIDIA Tegra
2 T20

1 GB

32 GB

Smartphone

Android v2.2

Capacitive

TI
OMAP36201000

512 MB

2 GB

Smartphone
Smartphone

35.

I note that Motorola has not produced source code for every version of the

Android OS currently available for use on each of the Motorola Accused Products. For example,
I understand that certain phones have received OTA (“over the air”) upgrades, such as the Atrix
to version 2.3.4. OTA upgrades may be relevant to infringement to the extent that certain

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functionality is added, however, in my opinion, an OTA upgrade that purportedly deleted
functionality previously present on a phone would not defeat infringement, because
infringement—as I understand it—can be established based on the devices as sold. I reserve the
right to supplement my analysis for additional source code and other documentation as it is made
available by Motorola or Google. Based on my review of the source code, documents, and
materials described herein and in Appendix A, it is my opinion that any differences between the
source code present on each of the different Accused Products are not material to my
infringement analysis and conclusions.
36.

I reserve the right to supplement this report to accuse additional products in the

event that Motorola is making, using, selling or offering for sale in the United States or
importing into the United States other mobile devices running the Android operating system that
it has not identified during discovery.
37.

I understand that there may be disputes between the parties about additional

discovery to be provided. I understand that discovery in this case is continuing, and I will
consider additional facts and material produced through discovery to determine whether such
additional material has an impact on my opinions. I may amend or supplement this Report as
necessary based on such additional information. I reserve the right to supplement my report if I
receive additional information, including information about the Accused Products or their
operation.
VI.

LEGAL STANDARDS
38.

I am not a legal expert and offer no legal opinions. However, I have been

informed by counsel of the various legal standards that apply to the pertinent technical issues,
and I have applied those standards in arriving at my conclusions expressed in this Report.

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A.

Infringement

39.

I understand that to determine whether there is infringement of a patent: (1) the

claims of the patent must be construed; and (2) the properly construed claims must then be
compared with the Accused Products.
40.

Where the construction of the asserted claims of the ’263 patent have not been

proposed, I have interpreted the claims as one of ordinary skill in the art would have at the time
the patent was filed.
41.

As the second step in the infringement analysis, I understand that the properly

construed claim must be compared to the Accused Products. I understand that an accused
product may infringe a claim either literally or equivalently. If a product does not literally
satisfy an element of the claim, it can still infringe under the doctrine of equivalents if it is
insubstantially different from the claimed element.
42.

I understand that one test for determining equivalence is to determine whether the

differences between the claimed limitation and the accused product are insubstantial. I
understand that another test for determining equivalence is to examine whether the accused
product performs substantially the same function in substantially the same way to achieve
substantially the same result as the claimed element.
43.

My understanding is that a showing of inducement or contributory infringement

requires proof both of direct infringement by the direct infringer as well as additional
requirements to show inducement and contributory infringement.
44.

I understand that to be liable as a contributory infringer, a party must import into

the United States or offer to sell or sell in the United States a component of a patented machine
or apparatus constituting a material part of the invention, and must know that the component is

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especially made or adapted for use in infringement of the patent and is not a staple article
suitable for substantial non-infringing uses.
45.

I understand that whoever actively induces infringement of a patent is liable as an

infringer. I understand that in order to be liable for inducement there must be direct infringement
of the asserted claim. Induced infringement also requires that the infringer knew or should have
known that his actions would induce actual infringement, and that the alleged infringer had
specific and actual intent to cause the actions that would result in direct infringement. Although
I offer my opinion as to whether certain conduct directly infringes the asserted claims of the ’263
patent, I do not offer any opinion as to Motorola’s knowledge or intent.
46.

I understand that if the body of the claim describes a structurally complete

invention such that deletion of the preamble phrase does not affect the structure or steps of the
claimed invention, the preamble is generally not limiting unless there is clear reliance on the
preamble during prosecution to distinguish the claimed invention from the prior art.
47.

I understand that there may be disputes between the parties about additional

discovery to be provided. I understand that discovery in this case is continuing, and I will
consider additional facts and material produced through discovery to determine whether such
additional material has an impact on my opinions. I may amend or supplement this Report as
necessary based on such additional information. I reserve the right to supplement my report if I
receive additional information, including information about the Accused Products or their
operation. Specifically, I understand that whoever induces infringement of a patent is also liable
as an infringer. I understand that in order to be liable for inducement there must be direct
infringement of the asserted claim, as well as knowledge that the induced acts constitute patent
infringement. I understand that contributory infringement is found where a party offers for sale,

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or sells in the United States, or imports into the United States a component of a patented machine
or apparatus, or offers for sale or sells in the United States, or imports into the United States a
patented machine or apparatus (among other things) for use in practicing a patented method,
knowing the component or apparatus to be specifically made to be used to infringe the patent and
where the apparatus is not a staple article suitable for substantial non-infringing use.
48.

I understand that Apple asserts that Motorola’s Accused Products, which run the

Android operating system, infringe the ’263 patent. I have reviewed the Accused Products and
documentation relating to those devices, portions of Android source code obtained from public
sources, portions of Motorola’s source code for the Accused Products, deposition testimony of
certain Motorola employees, and interrogatory responses. I have also relied on my personal
knowledge and experience in the field of computer science, as well as my review of the ’263
patent, its prosecution history and cited references, and materials produced by and exchanged
between the private parties. Other documents or materials that I have reviewed are listed in
Appendix A. I conclude that Apple’s position is correct and that the Accused Products practice
every limitation of claims 1 and 2 of the ’263 patent, both literally and under the doctrine of
equivalents. My analysis below applies to the Accused Products.
49.

I understand that Motorola and Apple exchanged proposed constructions of

certain terms of the ’263 patent, but those proposed constructions are still before the Court. My
analysis below considers Motorola’s proposed constructions and Apple’s proposed constructions
that were exchanged between the parties. I also understand that certain terms from the asserted
claims of ’263 patent were construed in ITC Investigation No. 710, particularly in the Initial
Determination by Administrative Law Judge Carl C. Charneski. See, e.g., Initial Determination

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337-TA-710, pp. 23-44; WI-Apple1604823-844. More particularly, Administrative Law Judge
Charneski construed the following terms as set forth below:
The claim term “realtime” was construed to mean “within the defined
upper bounded time limit.” Id. at 26; WI-Apple1604826.
The claim term “realtime signal processing subsystem” was construed to
carry a plain and ordinary meaning. Id. at 32; WI-Apple1604832.
The claim term “realtime API” was construed to mean “API that allows
realtime interaction between two or more subsystems.” Id. at 33; WIApple1604833.
The claim term “device handler” was construed to mean “software
associated with an interface device that sets up data flow paths, and also
presents data and commands to a realtime processing subsystem.” Id. at
42; WI-Apple1604842.
50.

I adopt the constructions set forth in Administrative Law Judge Charneski’s Initial

Determination for the ’263 patent.
51.

For all other claim terms in the asserted claims of the ’263 patent, I have applied

the plain and ordinary meaning that those terms would have to one of ordinary skill in the art at
the date of the invention of the ’263 patent, which at this time I understand Apple to have alleged
to be May 29, 1992.

[Apple’s Supplemental Response to Motorola’s Second Set of

Interrogatories]. I reserve the right to supplement this report in the event that new issues
regarding claim construction are raised in connection with the ’263 patent.
52.

In developing my opinions, I have reviewed the source code produced for

inspection by Motorola. I reviewed the source code builds for each Accused Product produced
by Motorola, which included the specific version of the Android operating system used on the
particular phones. See, e.g., MOTO-662-SOURCE 00339-643.
53.

It is my opinion, based on my review of Motorola’s source code, the publicly-

available Google Android platform code, documents describing the Accused Products and the

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code, and the testimony of witnesses, that there are no material differences in how the different
Accused Products operate for purposes of my infringement analysis.

I have reviewed the

corresponding code in all versions of the Android operating system produced by Motorola, and
this code reflects how the infringing realtime services on the Accused Motorola Android
Products works in all of the Accused Products. I have printed out certain source code relevant to
the functionality accused of infringing the ’263 patent. Although I cannot attach it to this report
because of Protective Order restrictions, it is identified as follows: MOTO-662-SOURCE 00328643.
54.

Further, due to restrictions on the number of pages of source code that can be

printed, I have only printed code for a subset of the versions of Android used in the Accused
Products. I have not come across any material differences between the realtime services in the
code I have printed and the corresponding functionality in the other Accused Products.
55.

Similarly, in developing my opinions, I have reviewed public Android platform

source code provided by Google, and have compared it to the functionality in the confidential
source code produced by Motorola for the Accused Products. In the course of my study, I have
reviewed sections of code from Google’s Android code base versions 1.5, 1.6, 2.1, 2.2, 2.2.1,
2.2.2,

and

2.3.3,

all

accessible

from

http://android.git.kernel.org,

or

from

http://source.android.com/, which is a website that is maintained by the Android Open Source
Project (AOSP). See http://source.android.com/about/index.html [Android Developer site] at
WI-Apple1684898 \0011\INDEX008.HTM. I reserve the right to use portions of this code
beyond those cited specifically in my report. It is my understanding that Motorola receives
initial builds of the Google Android source code from Google, and then may modify the initial
build to customize it for use in Motorola products. See Steimle Dep. at 11:19-12:20; 13:4-24;

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Boldt Dep. at 85:11-86:24. Further, based on my review of the public Android code and the
Motorola-produced code, I did not identify any material differences between the public source
code and the Motorola code with respect to my infringement analysis.
56.

Additionally, in developing my opinions, I have reviewed and relied upon a

number of Google Android Developer Documents that were produced by Motorola. See, e.g.,
MOTO-APPLE-0002584118;

MOTO-APPLE-0000335047;

MOTO-APPLE-0000369211;

MOTO-APPLE-0000404496, (and other materials listed in my Materials Considered).
VII.

PERSONS OF ORDINARY SKILL IN THE ART
57.

I may offer testimony regarding the level of ordinary skill in the art of the ’263

patent, and specifically the qualifications of such a person at the time of the inventions of the
’263 patent. In my opinion and as found by Administrative Law Judge Charneski a person of
ordinary skill in the art for the ’263 patent would have a bachelor of science degree in computer
science, or the equivalent, and at least two to three years experience in signal processing systems.
See Initial Determination at WI-Apple1604825.
58.

I meet the aforementioned criteria and consider myself a person to have at least

ordinary skill in the art pertaining to the ’263 patent and I was such a person as of the date of
invention of the ’263 patent.
VIII. RELEVANT LEGAL PRINCIPLES AND GUIDANCE
59.

I am not a legal expert and offer no legal opinions. However, I have been

informed by counsel of the various legal standards that apply to the pertinent technical issues,
and I have applied those standards in arriving at my conclusions expressed in this Report.
A.

Proposed Constructions

60.

I understand that in a prior case, ITC investigation 337-TA-710, claim

construction issues were extensively considered. The issues in the present case are the same as

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they relate to claim construction. I am also aware that neither party in the present case has
submitted terms for construction. As such I am adopting the interpretations of the claims that
were used by Apple and adopted by the ITC in the 337-TA-710 investigation. I also adopt and
incorporate by this reference, Administrative Law Judge Charneski’s reasoning and opinions for
construing the claim terms of the ’263 patent as set forth at pages 23-44 of the public version of
the Initial Determination at WI-Apple1604823-844. For all other terms, as mentioned above, I
have applied the plain and ordinary meaning of those terms as they would have been understood
by a person of ordinary skill in the art at the time of the invention. I also understand that claim
construction is a matter of law and will be determined by the Judge in this Action. Should the
Court adopt different constructions, I reserve the right to supplement my opinions in accordance
with the court’s constructions. I understand that the meaning of the term “realtime” is important
to an understanding of the subject matter of the ’263 patent.

Administrative Law Judge

Charneski construed “realtime” to mean “within a defined upper bounded time limit” in the ITC
investigation. See Initial Determination at WI-Apple1604832. A person of ordinary skill in the
art would, therefore, understand “realtime” to mean that somewhere in the system, there is a time
value that is defined for some period of time that is used to bound the processing speed of the
system. In the example of the Accused Products, this upper bounded time limit is the rate at
which the media (audio or video) is sequenced out to the speaker or screen. This rate will
changed depending on the specific media involved. Different “realtime” applications would
have allowed (and still do allow) for different time limits for processing.

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IX.

INFRINGEMENT OF THE ’263 PATENT: OVERVIEW
A.

Realtime
1.

61.

Types of Realtime Systems

“A realtime system is a system that must satisfy explicit (bounded) response-time

constraints or risk severe consequences, including failure.” Phillip A Laplante, Real-Time
Systems Design and Analysis: An Engineer’s Handbook at 10 (IEEE Computer Society Press,
1st ed. 1993); WI-Apple0610122-476. “A failed system is a system which cannot satisfy one or
more of the requirements laid out in the formal system specification.” WI-Apple0610150. In a
realtime system, if a defined performance deadline is missed then the value of continued
performance seriously degrades. By contrast, in a non-realtime system quick performance may
be desirable, but performance is not subject to any particular deadline.
62.

A hard realtime system is one where “failure to meet response time constraints

leads to system failure.” WI-Apple0610150. A classic example of a hard realtime system is
missile defense. Performance is subject to a hard deadline — defined by the time at which the
incoming missile will hit its target.

The missile defense system must perform certain

calculations in order to successfully shoot down the missile. If the system fails to complete those
calculations before the deadline, then continued performance is of no value — the missile has
already hit.
63.

A soft realtime system is one where “performance is degraded but not destroyed

by failure to meet response time constraints.” WI-Apple0610150. An example of a soft realtime
system is one that processes streaming media such as audio or video. With streaming media,
there is an implicit playback rate. If a deadline for delivering the next frame of audio is missed
then a detectible artifact such as a click, pop, or silence may result. Such missed deadlines cause
degradation in playback, but the value of continued playback is not destroyed.

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64.

Streaming media may be categorized as a “firm” realtime system: one with “hard

deadlines where some low probability of missing a deadline can be tolerated.”

WI-

Apple0610150. The deadline for delivering a frame of audio is a hard deadline, but missing the
occasional frame doesn’t lead to complete system failure; it can be tolerated as long as the
system is generally reliable.
65.

The reliability of a realtime system can be measured by “the probability that [it]

will operate without failure for a specified period of time.” WI-Apple0610381. A deterministic
realtime system, for instance, allows perfect reliability — it can guarantee that it will meet every
deadline (short of serious hardware failure).

WI-Apple0610152

An example of a

“deterministic” realtime system is a pacemaker.

A pacemaker has consistent performance

regardless of the input signals. By contrast, a missile defense system, while a hard realtime
system, is not necessarily “reliable,” and is certainly not “deterministic,” because it cannot
guarantee that it will shoot down every missile.
66.

Related to reliability, fault tolerance “is the ability of the system to continue to

function in the presence of hardware or software failures. In real-time systems, fault tolerance
includes design choices that transform hard real-time deadlines into soft ones. … Temporal fault
tolerance involves techniques that allow for tolerating missed deadlines.” WI-Apple0610393.
67.

Reliability is an important goal in any realtime system. WI-Apple0610152 (“the

goal is to predict how a system will behave in all possible circumstances”) (emphasis added).
Indeed some hard realtime systems, such as pacemakers, have little utility if they are nondeterministic, because superior deterministic alternatives are widely available.
68.

But while reliability is an important goal in a realtime system, no particular

degree of reliability is required in order for a system to be considered realtime. The suggestion

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that a realtime system must guarantee timely performance is negated by the very concept of
fault-tolerant realtime systems. See, e.g., WI-Apple0610393-403. A fault-tolerant realtime
system knows that it cannot guarantee performance in all cases, but nonetheless aims to tolerate
faults. Id. Indeed determinism is impossible to guarantee for any but the simplest realtime
systems. As Laplante’s Real-Time Systems treatise explains, “cache, pipelines, and DMA (all
designed to improve average real-time performance) destroy determinism and thus make
prediction of real-time performance essentially impossible.” See Real-Time Systems 2nd ed. at
WI-Apple0579511.

The essence of a realtime system is that late performance has severe

consequences — not that late performance is guaranteed never to occur. See Real-Time Systems
1st ed. at WI-Apple0610149.
2.
69.

Realtime “Streaming”

In the context of realtime processing of data streams, a realtime system must

process each “frame” of streaming data within a short period of time. Specifically, suppose that a
mobile phone user wishes to stream music from the Internet, so clicks “play” on an online music
file. The first frame of music in that file is not subject to any particular processing deadline, but it
should received, processed, and output within some reasonably responsive time period. Every
subsequent frame of music, however, is subject to a deadline: it must be processed and ready for
playback no later than the moment the immediately preceding frame finishes playback.
70.

Every realtime system must have some latency between when the user presses

play and when playback begins. In part, this delay is a necessary implication of physics; a user’s
command can only travel at a finite speed (the speed of light). In addition, some small delay is
often built into a realtime system to smoothly handle network jitters.
71.

A “progressive download” system is one where playback begins after a portion of

the file has downloaded. A progressive download system may be realtime, if playback begins
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after a short latency period and keeps going until the file ends; or non-realtime, if playback
begins after a substantial portion of the file has downloaded in order to mask a download or
processing speed that is too slow, too unreliable, or both. For example, in the case of video
streaming services like YouTube, the system is realtime only if the network bandwidth and
processing power allows for the file to be downloaded and processed reliably faster than the
video playback rate. In the realtime case, the video will start after an initial short latency, and
keep playing without pause until the video ends. Thus in certain circumstances whether a system
is realtime can depend on real world performance metrics.
B.

OpenMAX IL API

72.

Motorola’s Accused Products utilize the OpenMAX Integrated Layer (or “IL”)

API. See, e.g., MOTO-662-SOURCE 0481-520. The OpenMAX IL components are used to
create DSP independent processing components. This allows systems built using OpenMAX IL
flexibility in what DSP hardware they use. According to the online description of OpenMAX IL:
“The principal goal of the IL is to give codecs a degree of system abstraction using a specialized
arsenal of features, honed to combat the problem of portability among many vastly different
media systems.” (OpenMAX - The Standard for Media Library).2

Per OpenMAX

documentation: “The OpenMAX IL API strives to give media components portability across an
array of platforms. The interface abstracts the hardware and software architecture in the system.”
OpenMAX Integration Layer Application Programming Interface Specification Version 1.1.2, at
WI-Apple0576950. This document further states: “The OpenMAX IL API gives applications
and media frameworks the ability to interface with multimedia codecs and supporting
components (i.e., sources and sinks) in a unified manner. … Without a standardized interface of

2

Available at http://www.khronos.org/openmax/.

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this nature, component vendors have little alternative than to write to proprietary or closed
interfaces to integrate into mobile devices.” Id. at WI-Apple0576950-51. Moreover:

Id. at WI-Apple0576978.
73.

OpenMAX IL consists of two parts, an OMX Core and individual OMX

Components. See, e.g., WI-Apple0576953. The OMX Core enumerates codecs available on a
phone. Id. OpenMAX components implement codecs. WI-Apple0577080-135. A given phone
can have multiple Cores provided by different manufacturers. WI-Apple1695883-905.
74.

At a high level, clients of the OpenMAX IL API (e.g., components or nodes that

need to use audio or video decoding services) ask the OMX Core for a particular OMX
Component by providing a name.

For example, a client can ask the OMX Core for the

Qualcomm video decoder for the AVC file format by asking for a component with the name,
“OMX.qcom.video.decoder.avc.” The client then sends commands to this Component using the
OpenMAX IL API, such as the following:

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OpenMAX Integration Layer Application Programming Interface Specification at WIApple0576986.
75.

Certain commands contain further sub-enumerations.

OMX_CommandStateSet contains the following state enumerations:

Id. at WI-Apple0576988.

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For example, the

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resources that present media to the user. Id. The distinction is made between the SurfaceFlinger
and the AudioFlinger to distinguish between display media and audio media. Id. The use of the
multimedia applications on the Accused Products is illustrated below in Figure 1. An example of
such an application includes the YouTube application, which is installed on each of the Accused
Products. 4

Figure 2: Mastering the Android Media Framework at WI-Apple 0575186.

4

User Guides and Manuals for the Motorola Accused Products, including but not limited to WIApple0147233 (Atrix User Guides); WI-Apple0033229 (Backflip User Guides); WIApple0033363 (Bravo User Guides); WI-Apple0032798 (Charm User Guides); WIApple0033492 (Citrus User Guides); WI-Apple0033554(Cliq 2 User Guides), WIApple0033880(CliqXT User Guides); WI-Apple0033295 (Defy User Guides); WIApple0032930 (Devour User Guides); WI-Apple0032860 (Droid 2 User Guides); WIApple0147575 (Droid 2 Global User Guides); WI-Apple1604165 (Droid 3 User Guides); WIApple0034020 (Droid User Guides); WI-Apple0033950 (Droid Pro User Guides); WIApple1604240 (Droid X2 User Guides); WI-Apple0034078 (Droid X User Guides); WIApple0033624 (Flipout User Guides); WI-Apple0033688 (Flipside User Guides); WIApple0033429 (i1 User Guides); WI-Apple1604309 (Milestone User Guides); WIApple1604370 (Photon User Guides); WI-Apple1604531 (Titanium User Guides); WIApple1604616 (Triumph User Guides); WI-Apple0147653 (Xoom User Guides); WIApple1604692 (XPRT User Guides) (collectively, “List of Accused Products User Guides”).

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78.

Depending on the file type, the Media Server utilizes different virtual media

players. Examples of such virtual media player include PVPlayer and the Stagefright Player.
Figure 2 below illustrates, at a high level, how Media Server uses such media players. In Figure
2, PVPlayer is part of OpenCORE.

Figure 2: Mastering the Android Media Framework at WI-Apple0575188.
79.

The system selects the appropriate player based on the file extension specified by

the URL the user is trying to play. In order to handle the particular media files, PVPlayer and
Stagefright Player set up data flow paths using nodes. These nodes then call the OpenMAX IL
API for processing services. The details of this are addressed below.
B.

Infringement of Claim 1 of the ’263 Patent

80.

As an exemplary Motorola Accused Product running the Android OS, I examined

a Motorola Droid 2 device, which runs version 2.2 of the Android OS. I also examined a
Motorola Xoom device, which runs version 3.0 of the Android OS. Portions of my analysis
discuss the Motorola Droid 2 running version 2.2 of the Android OS for ease of reference. My
focus on the Droid 2 is not an express or implicit exclusion of any other Motorola product or

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Android OS version. The implementation of the relevant source code in the Android OS on the
Motorola Droid 2 is, for all relevant purposes, substantially the same as the implementation in
the other Motorola Accused Products. I have reviewed both Motorola produced code and
Motorola open source code for the Accused Products beyond the excerpts that I printed, and
these excerpts are representative of the realtime services functionality in any of the Accused
Products, described below, and are intended to be exemplary. I have not come across any
material differences between the realtime services functionality in the code I have printed and the
corresponding functionality in the other Accused Products.5
1.

81.

“A signal processing system for providing a plurality of realtime
services to and from a number of independent client applications and
devices, said system comprising:”

It is my understanding that Motorola has not argued that the preamble of claim 1

is limiting. In my opinion, the preamble of claim 1 is not limiting because the claim body
defines a structurally complete invention and because the applicants did not rely on the preamble
during prosecution to distinguish the claimed invention from the prior art.
82.

To the extent that this preamble is found to be a limitation, it is my opinion is that

the Accused Products practice claim 1 even if limited by its preamble. For the reasons discussed
below, the Accused Products include a signal processing system for providing a plurality of
5

I also note that the consistency between the various generations of the Android OS is expected,
because new versions of the code will generally need to maintain compatibility with earlier
versions in order to maintain compatibility between the core system applications, new
applications, and newer and older versions of the Android OS. This same consistency is also
expected between the public versions of the Android OS and Motorola’s proprietary versions
thereof, and I have indeed observed that consistency in my source code review. In particular,
while Motorola may seek to add functionality to differentiate its products from the Android
products sold by other manufacturers, such changes would be made with a mind to maintain
compatibility between the core system applications, new applications, and the same newer and
older versions of the Android OS. In other words, Motorola would be unlikely to change its
version of Android in such a manner to make it incompatible with the expected functionality of
the Android system as a whole.

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realtime services to and from a number of independent client applications and devices. See
supra Table 1.
83.

To the extent Motorola contends that the Accused Products do not “provid[e] a

plurality of realtime services,” it is my opinion that Motorola nonetheless infringes under the
doctrine of equivalents because the claimed and systems of the Accused Products are
insubstantially different. As described at length elsewhere in this report, to the extent that the
Accused Products could be argued as not “realtime,” they are designed to be imperceptibly
different from a “realtime” system, with processing capacity exceeding or approaching the rate
of the multimedia stream, such that they provide seamless presentation of multimedia data to the
end-user.

In that way, the Accused Products perform substantially the same function, in

substantially the same way, to achieve substantially the same result, as a “realtime” system.
2.

“(a) a subsystem comprising a host central processing unit (CPU)
operating in accordance with at least one application program and a
device handler program, said subsystem further comprising an
adapter subsystem interoperating with said host CPU and said
device;”
a.

84.

“subsystem comprising a host central processing unit (CPU)”

The Accused Motorola Android Products each include a subsystem comprising a

host central processing unit (“CPU”).

As described in publicly available literature and

summarized in Table 1, each of the Accused Products include a CPU. See, e.g., supra Table 1;
List of Accused Products Developers Specifications at supra n.1. For example, the Droid 2 uses
a TI OMAP3630-1200 CPU.

See, e.g., id.; Droid 2 Developer Specification at WI-

Apple0147222.
85.

To the extent Motorola contends that the Motorola Accused Android Products do

not include “a subsystem comprising a host central processing unit (CPU),” Motorola
nonetheless infringes under the doctrine of equivalents because the claimed and accused systems
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are insubstantially different. For example, the Accused Products include one or more processors
that are primarily responsible for the execution of application programs. In this respect, these
processor(s) in the Accused Products perform substantially the same function, in substantially
the same way, to achieve substantially the same result as a “host CPU.”
b.
86.

“operating in accordance with at least one application program
and a device handler program”

A person of ordinary skill in the art would understand “device handler” to mean

software associated with an interface device that sets up data flow paths, and also presents data
and commands to a realtime processing subsystem.

As shown above, this construction is

identical to Administrative Law Judge Charneski’s construction of “device handler” in ITC
Investigation No. 710. See, e.g., Initial Determination at WI-Apple1604823-44.
87.

The CPU in the Accused Motorola Android Products operates in accordance with

at least one application program and a device handler program.
88.

I understand the parties disagree about the meaning of “device handler.” Apple

has proposed that “device handler” means “software associated with an interface device that sets
up data flow paths, and also presents data and commands from the data managers to a real-time
data processing engine.” See June 3, 2011 Apple’s Proposed Claim Construction. Apple’s
construction is identical to the construction adopted by Administrative Law Judge Charneski’s
construction in ITC Investigation No. 710. See e.g.; WI-Apple1604842. Motorola has proposed
that “device handler” means “software associated with an interface device that sets up data paths
and also presents data and commands to a realtime signal processing subsystem.” See June 3,
2011 Motorola Proposed Constructions. I do not believe that there is any meaningful difference
between these two proposed constructions and it is my opinion that Motorola infringes under
both constructions.

Should the court adopt a different construction, my opinion may not

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materially change depending on the construction adopted and information that may be obtained
during ongoing discovery, and I reserve the right to supplement my opinions accordingly.
89.

Each of the Accused Products includes one or more application programs

installed by default that make use of various types of media files. The Accused Products include
application programs such as the YouTube application, a music player, and the browser each of
which make use of the OpenMax IL API and operate in accordance with the CPU. All accused
products have the YouTube application and music player installed by default. See, e.g., List of
Accused Products Developers Specifications at supra n.1.
90.

In the Accused Products, the PVPlayer implementation is a device handler

program. Some of the Accused Products (specifically, those with Android version 2.2 and later)
also have a Stagefright Player that can use the OpenMAX IL API. The Stagefright Player
implementation is also a device handler program.
91.

The PVPlayer implementation in the Accused Products consists of the PVPlayer,

the PlayerDriver and the PVPlayerEngine – collectively a PVPlayer implementation. [At least a
portion of the source code for these is found in playerdriver.h, playerdriver.cpp,
pv_player_engine.cpp] Additional code related to the media player is found in mediaplayer.cpp.
I have specifically printed some of this code but have examined all of it as part of my
investigation.
92.

The PVPlayer implementation exists in each of the Accused Products. That is,

each of the Accused Products includes OpenCORE. OpenCORE within Android includes the
PacketVideo Player Engine.
93.

The PVPlayer implementation is associated with an interface device such as the

cellular or Wi-Fi antenna. The PVPlayer implementation also sets up data flow paths which, for

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example, are a sequences of nodes that go from the interface device (e.g., antenna, hard drive, or
Flash) through coders and decoders, all the way to the relevant output device (or Flinger) such as
the screen or speaker. The PVPlayer inherits from MediaPlayerInterface [playerdriver.h]. As a
result, the PVPlayer has two methods for setting up the datasource in the datapath:
(1) setDataSource(int fd, int64_t offset, int64_t length) which is used for local file playback and
(2) setDataSource(const char *url), which is used for playing URLs. These methods are specific
to a source device (e.g., antenna, hard drive, or Flash). The local file (hard drive or Flash
memory) playback method is associated with the local hard drive (or Flash), and the URL
playback method is associated with playback from over a network interface (e.g., antenna).
94.

While creating the source node (the first node in the path), the code within

pv player engine.cpp sets the source, sink, and type of the noted and then issues the appropriate
call to create the node. These nodes are referred to as PVMF nodes. Examples of such nodes
include those defined in the files pvmf_omx_videodec_node.h and pvmf_omx_audiodec_node.h.
These nodes, for example perform video or audio decoding.
95.

Specifically,

PVPlayerDataSourceURL’s

when

the

source

data

for

source

playback
format

is

a

URL,
type

the
is

PVMF_MIME_DATA_SOURCE_HTTP_URL. [playerdriver.cpp] If the source is a local file,
the source format type is PVMF_MIME_FORMAT_UNKNOWN. The PVPlayerNodeRegistry
creates a PVMFDownloadManagerNode node.

In contrast if the source is a file, the

PVPlayerNodeRegistry creates the relevant parser node, for example a PVMFMP3FFParserNode
for mp3 files. The PVPlayer implementation loads different source nodes depending on the
source device. Moreover, the PVMFMP3FFParserNode will be used for both URLs and local
files, but the code performs different kinds of processing depending on whether playback is local

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or not. [pvmf_mp3ffparser_node.cpp] Thus the PVPlayer has device specific code, that is, it has
“software associated with [] interface device[s].”
96.

The PacketVideo Player Engine utilizes MIO components that are “customized

for a specific target platform and hardware” Media IO Developer’s Guide OpenCORE at WIApple0593246. Per PacketVideo’s documentation: “In the PV multimedia framework (PVMF)
architecture, the Media I/O (MIO) component is a data sink or source at either the beginning or
end of the datapath for media data” Id.
97.

As such, each of the Accused Products has “a subsystem comprising a host central

processing unit (CPU) operating in accordance with at least one application program and a
device handler program.”
98.

The Stagefright player implementation consists of the StagefrightPlayer and the

AwesomePlayer.

[StagefrightPlayer.cpp and Awesomeplayer.cpp]

The Accused Motorola

Android products running Android 2.2 and above use the Stagefright player implementation and
it is my opinion that the Stagefright player implementation also constitutes a device handler
program. I have reviewed the Motorola produced Android code for Android versions 2.2 and
above and found the Stagefright player implementation in each of them including, at least, the
two files listed in this paragraph and OMXCODEC.cpp.
99.

The Stagefright player implementation is associated with an interface device such

as the cellular or WiFi antenna. Similar to the PVPlayer implementation, the Stagefright player
implementation also inherits from the MediaPlayerInterface [StagefrightPlayer.h] As a result,
the Stagefright player implementation also contains separate setDataSource() methods”
setDataSource(init fd, int64_t offset, int64_t length), which is used for local file playback, and
setDataSource(const char *url), which is used for playing URLs. These methods are specific to a

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source device. For example, the local file playback method uses a FileSource object to access
local files.

[awesomeplayer.cpp]

In contrast, the URL playback method uses an

HTTPDataSource onject, which is specific to playback from over a network interface.
100.

In similar fashion to the PVPlayer implementation, the Stagefright player

implementation is such that a higher level module – the Stagefright player (akin to Media
Player) – calls to another “player” – the Awesome Player (akin to Player Driver in that each has
knowledge of whether the realtime service is for local or URL). Awesome Player, like PVPlayer
sets up data flow paths. Awesome Player then calls OMX Codec which serves the same purpose
as the audio and video PVMF Nodes in PVPlayer.

Accordingly, the Stagefright player

implementation is also a device handler program and for this additional reason, Accused
Products running Android version 2.2 or above meet this limitation.
101.

There is little to no available documentation of the functioning of the Stagefright

and Awesome players. My analysis is from a detailed examination of the code provided.
102.

To the extent Motorola contends that the Accused Products do not include a

subsystem or host CPU “operating in accordance with at least one application program,” it is my
opinion that Motorola nonetheless infringes under the doctrine of equivalents because the
claimed and accused systems are insubstantially different. For example, the Accused Products
include one or more software modules that provide the functionality typical of an application
program and that execute on the CPU in the Accused Products.
103.

To the extent Motorola contends that the Accused Products do not include a

“device handler program,” it is my opinion that Motorola nonetheless infringes under the
doctrine of equivalents because the claimed and accused systems are insubstantially different. To
the extent that the accused “device handler program” is not “specific to a device,” it is performs

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substantially the same function, in substantially the same way, to achieve substantially the same
result as a structure that is “specific to a device” because it is “associated with an interface
device,” as I explained elsewhere, and it interacts with the device to achieve the result of
presenting information to the realtime signal processing subsystem for processing. To the extent
that Motorola asserts that the accused “device handler program” does not “set up data flow
paths,” it is insubstantially different from a structure that does, because it sets up at least a
substantial portion of the data flow path, such that data is presented to the realtime signal
processing subsystem. To the extent that Motorola asserts that the accused “device handler
program” does not “present[] data and commands to a realtime processing system,” it is
insubstantially different from a structure that does, because it presents information to the realtime
processing subsystem for processing, along with other information about the information to be
processed.
104.

To the extent Motorola contends that the Motorola Accused Android Products do

not include a subsystem or host CPU “operating in accordance with ... a device handler
program,” it is my opinion that Motorola nonetheless infringes under the doctrine of equivalents,
for the reasons explained above with respect to the term “device handler program.”
c.
105.

“said subsystem further comprising an adapter subsystem
interoperating with said host CPU and said device”

In my opinion, the Accused Products’ subsystem further comprises an adapter

subsystem interoperating with said host CPU and said device. The Accused Products include an
adapter subsystem that interoperates with the ARM processor of the CPU (e.g., the TI
OMAP3620-1000) and devices. By way of one example, the Droid 2 includes an SDIO interface
and driver software that interoperates with the ARM processor and the WiFi modem unit. See,
e.g., TI OMAP 3X Product Bulletin at WI-Apple0149673-75; Android Open Source: WiFi at

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WI-Apple0149679-81; supra Table 1. By way of another example, Droid 2 also includes a USB
interface and multichannel buffered serial port (McBSP) interface and driver software that
interoperates with the ARM processor and the 3G/4G modem unit. See, e.g., TI OMAP 3X
Product Bulletin at WI-Apple0149673-75; supra Table 1.
106.

To the extent Motorola contends that the Motorola Accused Android Products do

not include “an adapter subsystem interoperating with said host CPU and said device,” it is my
opinion that Motorola nonetheless infringes under the doctrine of equivalents because the
claimed and accused systems are insubstantially different. For example, the Accused Products
include hardware and optionally software that provides an interface to one or more networks,
including wide area networks; allows the Accused Products to transmit data via those
network(s); and interacts with the CPU and one or more devices.
3.

107.

“(b) a realtime signal processing subsystem for performing a plurality
of data transforms comprising a plurality of realtime signal
processing operations; and”

In my opinion, the Accused Products include a “realtime signal processing

subsystem for performing a plurality of data transforms comprising a plurality of realtime signal
processing operations.”
108.

Per the PVPlayer documentation: [PVPlayer SDK Developer’s Guide include

section 6.3 “Faster or slower than real-time”]
109.

By way of example, the Droid 2 uses a hardware accelerator, the IVA 2, for

performing a plurality of data transforms that comprise a plurality of realtime audio and video
processing operations. See, e.g., TI OMAP 3X Product Bulletin at WI-Apple0149673-75; supra
Table 1. More specifically, PVPlayer sets up dataflow paths that consist of PVMF nodes. One
of those nodes, in the case of video, is PVMF_OMX_videodec_node. That node will in turn call,
via Open MAX IL, an MPEG decoding OMX component that resides in the hardware
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accelerator. Similarly, in the case of audio, PVPlayer sets up a PVMF_OMX_audiodec.mode.
That node will in turn call, via OpenMAX IL, an AAC decoding OMX component, for example,
that resides in the hardware accelerator. The Stagefright player operates in a substantially
similar way.
110.

To the extent Motorola contends that the Accused Products do not include “a

realtime signal processing subsystem,” it is my opinion that Motorola nonetheless infringes
under the doctrine of equivalents because the claimed and accused systems are insubstantially
different. As described at length elsewhere in this report, to the extent that the accused systems
could be argued as not “realtime,” they are designed to be imperceptibly different from a
“realtime” system, with processing capacity exceeding or approaching the rate of the multimedia
stream, such that they provide seamless presentation of multimedia data to the end-user. In that
way, the Accused Products perform substantially the same function, in substantially the same
way, to achieve substantially the same result, as a “realtime” system.
a.
111.

for performing a plurality of data transforms comprising a
plurality of realtime signal processing operations; and”

A person of ordinary skill in the art would understand the realtime subsystem to

perform a “plurality of data transforms comprising a plurality of realtime signal processing
operations,” because the realtime subsystem executes a plurality of encoding and decoding
operations, some DSP hardware-accelerated, that process audio and video signals in realtime.
112.

The Accused Products satisfy this element because a plurality of the hardware-

accelerated codecs (as described above in Section X.3) are designed to and in fact do perform
computations on an isochronous data stream.
113.

To the extent Motorola contends that the Accused Products do not include a

realtime signal processing subsystem “for performing a plurality of data transforms comprising a

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plurality of realtime signal processing operations,” it is my opinion that Motorola nonetheless
infringes under the doctrine of equivalents because the claimed and accused systems are
insubstantially different. As described at length elsewhere in this report, to the extent that the
accused systems could be argued as not “realtime,” they are designed to be imperceptibly
different from a “realtime” system, with processing capacity exceeding or approaching the rate
of the multimedia stream, such that they provide seamless presentation of multimedia data to the
end-user. In that way, the Accused Products perform substantially the same function, in
substantially the same way, to achieve substantially the same result, as a “realtime” system.
4.

114.

“(c) at least one realtime application program interface (API) coupled
between the subsystem and the realtime signal processing subsystem
to allow the subsystem to interoperate with said realtime services.”

A person of ordinary skill in the art would understand “realtime services” to mean

data handling in realtime. I understand that the parties disagree about the meaning of “realtime
services.” Apple has proposed “realtime services” means “data handling in realtime.” June 3,
2011 Apple’s Proposed Constructions.

Motorola has proposed “realtime services” means

“constant bit rate data handling in realtime.” June 3, 2011 Motorola’s Proposed Constructions.
Nevertheless, it is my opinion that Motorola infringes under both constructions. Should the court
adopt a different construction, my opinion may not materially change depending on the
construction adopted and information that may be obtained during ongoing discovery, and I
reserve the right to supplement my opinions accordingly.
115.

The PVMF Node API, which is a part of the PVPlayer implementation, is a

realtime API in the context of the ’263 patent, because it is an “API that allows realtime
interaction between two or more subsystems.” See Initial Determination at WI-Apple1604833.
Specifically, it is an interface that abstracts underlying audio/video encoding and decoding
functionality. Per PacketVideo’s documentation: “There are several ways to integrate a codec
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into the PVOpenCORE multimedia framework including as a compressed media I/O component,
as a node, and an OpenMAX component integrated into the OpenMAX codecs nodes that are
part of the framework.

Many codecs, especially those that include hardware acceleration,

implement the OpenMAX IL interface making the OpenMAX interface the most straightforward
method of integration in those cases.”

See, e.g., OMX Core Integration Guide at WI-

Apple1695883-906. Thus it is my opinion that the PVMF Node API constitutes the realtime
API.
116.

The PVMF Node API is an API that calls the OpenMAX IL API. As such, the

PVMF Node API is coupled between the subsystem and the realtime signal processing
subsystem. This arrangement allows the subsystem to interoperate with the realtime services.
117.

Similarly, the Stagefright player implementation meets this element.

The

Stagefright player implementation includes a realtime API as described in this element in the
OMX Codec portion of the implementation because it is an API that allows realtime interaction
between two or more subsystems – for example, it allows for abstracting audio and video coding
and decoding functionality in a manner substantially similar to the PVPlayer’s PVMF Node API.
118.

To the extent Motorola contends that the Motorola Accused Android Products do

not include “at least one realtime application program interface (API) coupled between the
subsystem and the realtime signal processing subsystem to allow the subsystem to interoperate
with said realtime services,” it is my opinion that Motorola nonetheless infringes under the
doctrine of equivalents because the claimed and accused systems are insubstantially different. As
described at length elsewhere in this report, to the extent that the accused systems could be
argued as not “realtime,” they are designed to be imperceptibly different from a “realtime”
system, with processing capacity exceeding or approaching the rate of the multimedia stream,

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such that they provide seamless presentation of multimedia data to the end-user. In that way, the
Accused Products perform substantially the same function, in substantially the same way, to
achieve substantially the same result, as a “realtime” system.
C.

Infringement of Claim 2 of the ’263 Patent
1.

119.

“The signal processing system as set forth in claim 1, wherein said
signal processing system receives and transmits a plurality of
datatypes over a plurality of different wide area networks (WANs).”

The Accused Products receive and transmit data over a plurality of different wide

area networks (WANs), such as cellular and WiFi. See, e.g., supra Table 1; List of Accused
Products Developers Specifications at supra n.1.
120.

To the extent Motorola contends that transmitting and receiving and receiving

data signals over cellular data and Wi-Fi networks does not constitute transmitting and receiving
data over “a plurality of different” WANs, I disagree. In my opinion different connection types,
such as cellular data or Wi-Fi, comprise a plurality of different WANs.
121.

The Accused Motorola Android Products receive and transmit a plurality of

different audio and video data types. For example, MPEG4 and H.263 at least are different data
types. [perhaps a reference showing the phones use MPEG4 and h.263] Further: [table2 from
OpenCORE Multimedia framework capabilities] shows that different media types are supported.
122.

To the extent Motorola contends that, in the Motorola Accused Android Products,

the signal processing system does not “receive[] and transmit[] a plurality of datatypes over a
plurality of different wide area networks (WANs),” it is my opinion that Motorola nonetheless
infringes under the doctrine of equivalents because the claimed and accused systems are
insubstantially different. To the extent Motorola contends that the various multimedia formats
used by the Accused Products are not “datatypes,” they would be understood by a person of
ordinary skill to be equivalent to “datatypes,” as they represent different types of techniques for
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encoding and decoding data. To the extent Motorola contends that the various cellular and
WLAN standards used by the Accused Products to transmit data are not a “plurality of different
WANs,” they would be understood by a person of ordinary skill to be equivalent, as they
represent distinct, separately defined standards for accessing networks with broad geographic
coverage (the Internet, in the case of Wi-Fi/WLAN transmission).
D.

Induced And Contributory Infringement

123.

Contributory Infringement:

In my opinion, the sale, offer to sell and

importation of the Accused Products is an act of contributory infringement of claims 1 and 2 of
the ’263 patent because the realtime services functionality component described above, as
present in the Accused Products, has no substantial non-infringing use. Specifically, the realtime
services functionality component in the Accused Products (which is utilized by pre-installed
applications such as the YouTube application, music player application, and browser) is
fundamental to the use of realtime services on the Accused Products. Further, the realtime
services functionality component described above is a material part of the patented apparatus of
claims 1 and 2 that is specifically made and adapted (or designed) for use in an infringing
manner. Moreover, the Accused Products are and must be known to be especially adapted for
infringement of the ’263 patent, as using the realtime services functionality component on the
Accused Products, is one of the natural and ordinary purposes for such a device. Therefore, the
realtime services functionality component described above in the Accused Products has no
substantial non-infringing use other than to be used in an infringing manner.
124.

Inducement: In my opinion, Motorola actively induces infringement of claims 1

and 2 of the ’263 patent by the users of the Accused Products. As discussed above with respect
to contributory infringement, the Accused Products as sold are devices that utilize a realtime
services functionality component.

In addition, the User Guides provided by Motorola to
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purchasers of the Accused Products provide instructions on how to use the Accused Products in a
manner, such as viewing videos using the installed YouTube application and listening to music
using the music player application, that infringes claims 1 and 2 as discussed above. See, e.g.,
List of Accused Products User Guides at supra n.4.
XI.

RESERVATION OF THE RIGHT TO SUPPLEMENT
125.

I reserve the right to supplement my report after the patent terms are construed. I

further reserve the right to supplement my opinions if or when Respondents clarify their
noninfringement positions. Also, I reserve the right to supplement my opinions if or when
Respondents provide source code, documents, and other evidence for additional Accused
Products. Finally, I reserve the right to create demonstrative exhibits, summary charts, and the
like that may be useful in presenting my opinions in further proceedings in this case.
XII.

CONCLUSION
126.

I understand that there is still time remaining for fact discovery, and that there are

current outstanding discovery issues relating to Motorola’s and third-party document production.
I understand there are also still depositions remaining to be completed. I therefore reserve the
right to supplement my report should additional information be produced that is relevant to the
infringement and domestic industry issues discussed in this Report.
127.

In connection with my anticipated testimony in this action, I may use as exhibits

various documents produced in this case that refer or relate to the matters discussed in this
report. I have not yet selected the particular exhibits that might be used. In addition, I may
create or assist in the creation of certain demonstrative exhibits to assist in the presentation of my
testimony and opinions as described herein or to summarize the same or information cited in this
report. Again, those exhibits have not yet been created.

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