Motorola Mobility, Inc. v. Microsoft Corporation

Filing 170

RESPONSE in Opposition re #129 MOTION in Limine Nos. 1-9 and Brief in Support Thereof filed by Microsoft Corporation. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9)(Miner, Curtis)

Exhibit 9

9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 1:10-CV-24063-MORENO

MOTOROLA MOBILITY, INC.,
Plaintiff,
v.
MICROSOFT CORPORATION,
Defendant.
MICROSOFT CORPORATION,
Counterclaim Plaintiff,
v.
MOTOROLA MOBILITY, INC.,
Counterclaim Defendant.

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EXPERT REPORT OF LOREN G. TERVEEN REGARDING INFRINGEMENT
OF U.S. PATENT NOS. 6,785,901 AND 6,897,904

35.

Motorola’s proposed construction of “live program content” is not plain and

ordinary meaning of the term “program content currently being tuned.”

Further, such

construction is neither supported by the specification nor the file history of the patent. For
example, in discussing the types of content that is provided by a content provider, the ’904 Patent
draws a distinction between three different types of program content: (1) “stored content” which
is stored by the content provider; (2) “live content” which is defined as “content that was not
previously stored by the content provider”; and (3) “content stored at other locations” (i.e., stored
content that is stored by an entity other than the content provider). (The ’904 Patent, col. 2, lines
32-42). Microsoft’s proposed construction, on the other hand, comports with the plain and
ordinary meaning of the term because it defines what program content is contemplated by the
claim language—the program content that is being received by the tuner—rather than where that
program content came from (e.g., whether the content was stored by the content provider or is
from a live feed).
36.

For the claim terms other than “program content currently being tuned” in the

’904 Patent, I used the ordinary and customary meaning for the analysis set forth herein.
IX.

INFRINGEMENT ANALYSIS
A.

The ’901 Patent
1.

37.

The ’901 Accused Devices

The ’901 Accused Devices include Motorola Broadband Media Center set-top

boxes with digital video recording (DVR) functionality and parental control functionality, as
well as associated software. The ’901 Accused Devices include the BMC9012 and BMC9022D
Moxi based set-top boxes and other set-top boxes incorporating hardware and/or software that is
substantially similar.
38.

The ’901 Accused Devices are set-top boxes having a graphical user interface and

providing functions for controlled access by a user to programming content. (See, e.g., Moxi

13

Viewer’s Guide2 at MS-MOTO_SDFLA_00000149277-283, 149286-290, 149304-309; Moxi
Media Center User Guide3 at MS- MS-MOTO_SDFLA_00000149176, 149181, 149201-203.)
The ’901 Accused Devices provide functions for displaying of guide data on a display that
describes programming content, such as program title, program start time, program end time and
channel. (See, e.g., Moxi Viewers’ Guide at MS-MOTO_SDFLA_00000149277-283; Moxi
Media Center User Guide at MS-MOTO_SDFLA_00000149176.) For example:

(Moxi Viewer’s Guide at MS-MOTO_SDFLA_00000149277.)
39.

The ’901 Accused Devices also provide functions for recording a show that is

currently on or scheduling a recording.
MOTO_SDFLA_0000000000149286-290;

(See, e.g., Moxi Viewer’s Guide at MSMoxi

Media

Center

User

Guide

at

MS-

MOTO_SDFLA_00000149181.) For example:

2

Moxi by digeo Viewer’s Guide, Version 3.0, 2004 (MS-MOTO_SDFLA_00000149269-321).

3

Moxi Media Center User Guide, Software Version 4.1, 2006 (MS-MOTO_SDFLA_00000149160-

268).

14

172.

In sum, it is my opinion that all the limitations in claim 35 are literally present in

each of the ’901 Accused Device. To the extent that it is found that the ’901 Accused Devices
do not literally meet any of the elements of claim 35 of the ’901 Patent, it is my opinion that the
’901 Accused Devices would meet such claim element under the doctrine of equivalents. For
each element of claim 35, the ’901 Accused Devices perform substantially the same function, in
substantially the same way, to achieve substantially the same result as the recited element. To
the extent any difference exists at all, any difference between the claimed limitations of the ’901
Patent and the ’901 Accused Devices is insubstantial.
173.

In addition, by making the ’901 Accused Devices available, Motorola encourages

the users to use the ’901 Accused Devices in an infringing manner as described above.
B.

The ’904 Patent
1.

174.

The ’904 Accused Devices

The ’904 Accused Devices include Motorola set-top boxes with digital video

recording (DVR) functionality and two or more tuners, as well as associated software. The ’904
Accused Devices include the DCT6416, DCH6416 and DCX3400 and other set-top boxes
running software version 78.xx or substantially similar software.

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218.

In sum, it is my opin ion that all the limitations in claim 20 are literally present in

each of the '904 Accused Device. To the extent that it is fouod that the '904 Accused Devices
do not literally meet any of the elements of claim 20 of the '904 Patent, it is my opinion that the
'9 04 Accused Devfces would meet such claim element under the doctrine of equivalents. For
each element of claim 20, the ' 904 Accused Devices perfonn substanti ally the same fun ction, io
substantially the same way, to ach ieve substantially the same resu lt as the recited element. To
the extent any d ifference exists ·at all, any difference between the claimed limitations of the ' 904
,
Patent and the '904 Accused Devices is insubstanti al.
219.

In add ition, by making the '904 Accused Devices available, Motorola encourages

the users to use the ' 904 Accused Devices in an infringing manner as described above.

X.

CONCLUSION
220.

Based on the foregoing, it is my opinion that the '901 Accused Devices infringe­

either literally or under the doctrine of equivalents---claims 1-3, 5·6, 8-9, II , 22-23, 25, 27·29,
3 1,33 and 35 of the '90 1 Patent.
22J.

It is also my opi nion that the ' 904 Accused Devices infringe--either literally or

under the doctrine of equivalents- claims 12 and 18-20 of the '904 Patent.

Dated: June 24, 2011

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