JBF Interlude 2009 Ltd - Israel v. Quibi Holdings, LLC

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case □□□ 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

ee eee CHRISTINA ASNYDER

Catherine Jeang Not Present N/A

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

Not Present Not Present

Proceedings: (IN CHAMBERS) - CLAIM CONSTRUCTION ORDER

I. INTRODUCTION

This claim construction order construes disputed terms in U.S. Patent Nos.

10,460,765 (“the ’765 Patent’’), 8,660,220 (“the 220 Patent’), and 10,418,066 (“the □□□□

Patent”). The disputed terms arise in the context of patent infringement claims brought in

two related cases. Quibi filed the first-filed action on March 9, 2020, Case No. 2250

(“Quibi ECF’’) No. 1, and its operative first amended complaint on May 12, 2020. Quibi

ECF No. 25. Eko filed a separate action against Quibi on March 10, 2020, Case No.

2299 (“Eko ECF”) No. 1, and its operative fifth amended complaint on January 28, 2021.

Eko ECF No. 425. Quibi seeks a declaratory judgment of non-infringement of the □□□□

Patent and Eko alleges that Quibi’s Turnstyle technology infringes the ’765 Patent, the

°220 Patent, and the ’066 Patent.

The Court previously considered the patents as part of its Order denying Eko’s

motion for a preliminary injunction. See ECF No. 260 (“PI Order’).! After the Court

issued its PI Order, the parties proceeded with discovery and have now reached claim

construction. As relevant here, the parties filed their Joint Claim Construction and

Prehearing Statement on December 21, 2020. ECF No. 199. Eko filed its opening claim

construction brief on February 4, 2021. ECF No. 278 (“Opening Br.”). Quibi filed its

responsive claim construction brief on February 18, 2021. ECF No. 280 (“Response”).

Eko filed its reply claim construction brief on February 25, 2021. ECF No. 291

(“Reply”). Quibi filed its surreply claim construction brief on March 4, 2021. ECF No.

295 (“Surreply”).

1 All docket entry references in the remainder of this Order refer to the Quibi ECF.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

The Court held a hearing on March 29, 2021. For the reasons stated herein, the

Court adopts the constructions set forth below.

I. PATENT OVERVIEW

A. The ’765 Patent

The ’765 Patent, issued on October 29, 2019, discloses “systems and methods for

dynamically modifying a video state based on changes in user device properties.” See

°765 Patent at 1:6-9. Specifically, it “describes a ‘smart video response’ technique, in

which video content (streaming or otherwise) can adapt in real-time, with targeted,

customized, or other responsive content, to changes in properties associated with a user

device, all without scaling, letterboxing, or other noted disadvantages of the prior art.”

Id. at 1:38-43. Based on at least one device property (e.g., physical orientation, model,

physical screen size, screen resolution, and window size), “a first state of the video is

configured, and the video is presented according to the first state. During playback of the

video, a change in one of the device properties 1s detected, and the video is seamlessly

transitioned to a second state based on the change.” Id. at 1:49-53.

As relevant to this dispute, Claim 1 discloses:

1. A computer-implemented method comprising:

identifying one or more properties associated with a user device;

receiving video from a first video presentation:

receiving, simultaneously with the video from the first video presentation, video

from a second, different video presentation:

configuring a first state of the video from the first video presentation based on at

least one of the properties associated with the user device:

presenting the video from the first video presentation according to the first state;

providing a mapping of video presentations to media player window height

ranges and media player window width ranges; and

during playback of the video from the first video presentation:

determining that a media player window in which the video is playing has been

resized to change from first dimensions comprising a first height and a first width

to second, different dimensions comprising a second height and a second width:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

determining that the second height is included in a particular one of the media

player window height ranges:

determining that the second width is included in a particular one of the media

player window width ranges;

evaluating the mapping to determine that the second video presentation is mapped

to both the particular media player window height range and the particular media

player window width range; and

in response to the evaluating, seamlessly transitioning from the video from the first

video presentation to the video from the second video presentation based on the

change.

°765 Patent at 12:49-13:18 (emphasis added). Claims 2 through 9 depend from Claim 1.

Claim 10 discloses a system for executing a method like that described in Claim 1.

Claims 11 through 18 depend from Claim 10.

B. The ’220 Patent

The ’220 Patent, issued on December 3, 2013, is “directed to systems and methods

for loading video content, and more particularly to systems and methods that load more

than one video at the same time.” See ’220 Patent at 1:8-10. The invention sought to

improve “the loading of videos” by providing a system to load more than one video at a

time such that the video and audio would play seamlessly, and where multiple videos

have multiple segments that are “standalone videos.” Id. at 1:50-64. The disclosed

system also sought to “provide systems and methods for loading videos that allow a user

to create customized videos.” Id. at 1:65-67.

As relevant here, Claim 1 discloses:

A system for facilitating the selective presentation of video content, wherein the

video content is comprised of a collection of segments, the system comprising:

a video loading manager for selectively determining a subset of the collection of

segments to download, wherein the determination 1s based, at least in part, on a

download priority.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

°220 Patent at 8:4-10 (emphasis added). Claims 2 through 12 depend directly or indirectly

from Claim 1. Claim 13 discloses a method for implementing a system like that disclosed

in Claim 1. Claims 14 through 21 depend directly or indirectly from Claim 13.

C. The ‘066 Patent

The ’066 Patent, issued on September 17, 2019, discloses “A system for

synchronizing audio and video of selectably presentable multimedia content includ|ing] a

memory for storing a plurality of selectably presentable multimedia content segments.”

°066 Patent, Abstract. “Each content segment defines a portion of one or more content

paths and includes a decision period during which a user may select a subsequent content

segment as the content segment is playing.” Id. The invention also includes “an

assembly engine” for placing content segments into a content path, and a “configuration

manager” to determine which audio and video file to play. Id. An “audio engine”

processes the audio file and a “video engine” synchronizes the video to the audio. Id.

Regarding the “[s|electably presentable multimedia content,” this “may include, for

example, one or more separate multimedia content segments that are combined to create a

continuous, seamless presentation such that there are no noticeable gaps, jumps, freezes,

or other interruptions to video or audio playback between segments.” Id. at 4:14-19. To

ensure “seamless transition|s],” the “audio and video streams are divided into individual

fragments” that are “loaded and played at particular times to enforce synchronization”

and “ensure[ | that streams the remain synchronized while transitioning from one segment

to another.” °066 Patent at 5:22-36.

As relevant here, Claim 1 discloses:

A system comprising:

a memory for storing a plurality of multimedia content segments, each content

segment defining a portion of one or more content paths, wherein a particular

content segment comprises a decision period during which a subsequent content

segment can be selected for playback as the particular content segment is playing;

an assembly engine for seamlessly assembling a subset of the content segments

into a multimedia presentation comprising one of the content paths;

a configuration manager for determining an audio file and a video file to be

played based on a selected subsequent content segment:

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

an audio engine for: dividing the audio file into a plurality of audio samples, each

audio sample comprising a timestamp indicating a time at which the audio sample

should be played; and upon causing one of the audio samples to be played,

updating a current playback time based on the timestamp of the played audio

sample, wherein the current playback time comprises a time that is maintained

separately from timestamps of the audio samples and identifies a most recently

played audio sample; and

a video engine for synchronizing playback of the video file with playback of the

audio file based on the current playback time.

°066 Patent at 12:21-48 (emphasis added). Claims 2 through 10 depend directly or

indirectly from Claim 1. Claim 11 discloses a method for implementing the system

disclosed in Claim 1. Claims 12 through 20 depend directly or indirectly from Claim 11.

Il. LEGAL STANDARD

Claim construction begins with an examination of the intrinsic evidence of record,

including the patent claims, the specification, and, if in evidence, the prosecution history.

Phillips v. AWH Corp., 415 F.3d 1303, 1316-17 (Fed. Cir. 2005) (en banc). Courts first

turn to “the words of the claims themselves, both asserted and nonasserted.”’ Abbott Labs.

v. Andrx Pharms., Inc., 452 F.3d 1331, 1336 (Fed. Cir. 2006) (quoting Vitronics Corp. v.

Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)). “[T]he claims themselves

provide substantial guidance as to the meaning of particular claim terms” and “the

context in which a term is used in the asserted claim can be highly instructive.” Phillips,

415 F.3d at 1314. Claim language is generally interpreted consistently across different

claims. Id.

“The claims, of course, do not stand alone,” but instead “must be read in view of

the specification, of which they are a part.” Id. at 1315—17 (internal quotations omitted);

see also Vitronics, 90 F.3d at 1582 (“[T]he specification is always highly relevant to the

claim construction analysis. Usually, it is dispositive; it is the single best guide to the

meaning of a disputed term’’). It is improper, however, to read limitations from the

written description into a claim. Tate Access Floors, Inc. v. Maxcess Techs. Inc., 222

F.3d 958, 966 (Fed. Cir. 2000) (citations omitted); see also Phillips, 415 F.3d at 1320

(quoting SciMed Life Sys., Inc. v. Advanced Cardiovascular Sys., Inc., 242 F.3d 1337,

1340 (Fed. Cir. 2001)) (referring to reading a limitation from the written description into

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

the claims as “one of the cardinal sins of patent law’’). Conversely, “an interpretation

[which excludes a preferred embodiment] is rarely, if ever, correct and would require

highly persuasive evidentiary support.” Vitronics, 90 F.3d at 1583.

The prosecution history “contains the complete record of all the proceedings before

the Patent and Trademark Office, including any express representations made by the

applicant regarding the scope of the claims.” Vitronics, 90 F.3d at 1582. “[B]ecause the

prosecution history represents an ongoing negotiation between the PTO and the

applicant, rather than the final product of that negotiation, it often lacks the clarity of the

specification and thus is less useful for claim construction purposes.” Phillips, 415 F.3d

at 1317. Despite this, the prosecution history “can often inform the meaning of the claim

language by demonstrating how the inventor understood the invention.” Id.

As a supplement to intrinsic evidence, courts also may also use extrinsic evidence,

for example dictionaries, treatises, and expert or inventor testimony, to resolve

ambiguities in the disputed claim terms. But “while extrinsic evidence can shed useful

light on the relevant art ... it is less significant than the intrinsic record in determining the

legally operative meaning of claim language.” Phillips, 415 F.3d at 1317-18 (internal

citations omitted) (quoting C.R. Bard. Inc. v. U.S. Surgical Corp., 388 F.3d 858, 862

(Fed. Cir. 2004)). Technical extrinsic evidence, such as dictionaries, encyclopedias, and

technical treatises, may similarly be consulted to help determine the meaning of claim

terms. Phillips, 415 F.3d 1322-23. But the Federal Circuit has cautioned that “heavy

reliance on the dictionary divorced from the intrinsic evidence risks transforming the

meaning of the claim term to the artisan into the meaning of the term in the abstract, out

of its particular context, which is the specification.” Id. at 1321.

When conducting claim construction, all evidence—both intrinsic and extrinsic—

should be viewed from the perspective of a person of ordinary skill in the relevant art at

the time the invention was filed. Markman v. Westview Instruments Inc., 52 F.3d 967,

979-80 (Fed. Cir. 1995) (en banc), aff'd, 517 U.S. 370 (1996). When considering intrinsic

and extrinsic evidence, “[t]he sequence of steps used by the judge in consulting various

sources 1s not important; what matters is for the court to attach the appropriate weight to

be assigned to those sources in light of the statutes and policies that inform patent law.”

Phillips, 415 F.3d at 1324.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

To construe claim limitations, courts begin with a presumption that “claim terms

are to be given their ordinary and customary meaning.” Aylus Networks, Inc. v. Apple

Inc., 856 F.3d 1353, 1358 (Fed. Cir. 2017) (internal quotations omitted) (citing Aventis

Pharm. Inc. v. Amino Chems. Ltd., 715 F.3d 1363, 1373 (Fed. Cir. 2013)). “Properly

viewed, the ‘ordinary meaning’ of a claim term is its meaning to the ordinary artisan after

reading the entire patent.” Phillips, 415 F.3d at 1321. “In some cases, the ordinary

meaning of claim language as understood by a person of skill in the art may be readily

apparent even to lay judges, and claim construction in such cases involves little more

than the application of the widely accepted meaning of commonly understood words.” Id.

at 1314.

The Federal Circuit recognizes two exceptions to the general rule that claim terms

are given their ordinary and customary meaning as understood by a person of ordinary

skill in the art in the context of the patent intrinsic record: “1) when a patentee sets out a

definition and acts as his own lexicographer, or 2) when the patentee disavows the full

scope of a claim term either in the specification or during prosecution.” Thorner v. Sony

Computer Entm’t Am. LLC, 669 F.3d 1362, 1365 (Fed. Cir. 2012) (citing Vitronics, 90

F.3d at 1580). To act as her own lexicographer, the patentee must “‘clearly set forth a

definition of the disputed claim term’ other than its plain and ordinary meaning.” Id.

(quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed. Cir. 2002)):

Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008)

(patentee must “clearly express an intent” to depart from the plain and ordinary meaning).

To effect a clear disavowal or disclaimer in the patent specification, the applicant

must make clear “that the invention does not include a particular feature . . . even though

the language of the claims, read without reference to the specification, might be

considered broad enough to encompass the feature in question.” SciMed, 242 F.3d at

1341; see also Thorner, 669 F.3d at 1366. Similarly, during prosecution, a patent

applicant can “make[ | clear that the invention does not include a particular feature, or is

clearly limited to a particular form of the invention.” Hill-Rom Servs., Inc. v. Stryker

Corp., 755 F.3d 1367, 1372 (Fed. Cir. 2014) (internal quotations and citations omitted). If

the plain language of the claim 1s to be narrowed, any disclaimer of a broader

construction must be “clear and unmistakable.” Cordis Corp. v. Boston Scientific Corp.,

561 F.3d 1319, 1329 (Fed. Cir. 2009); Home Diagnostics, Inc. v. Lifescan, Inc., 381 F.3d

1352, 1358 (Fed. Cir. 2004).

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

IV. DISCUSSION

As an initial matter, the Court observes that both parties offer expert testimony on

how to construe ordinary, non-technical language in the patents. The Court notes that,

“<Te]xperts may be examined to explain terms of art, and the state of the art, at any

given time,’ but they cannot be used to prove ‘the proper or legal construction of any

instrument or writing.’” Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 574 U.S. 318,

332 (2015) (quoting Winans v. New York & Erie R. Co., 62 U.S. 88, 100 (1859)). Thus,

where appropriate, the Court may reference expert testimony that meaningfully explains

technical terms or the state of the art. The Court otherwise gives no weight to expert

testimony that merely offers an opinion on the proper construction of a claim.

Pursuant to the Court’s earlier order, the parties have raised three disputed claim

limitations per patent. The Court construes each disputed claim limitation below.

A. “Video Presentation”

Construction

video presentation | ’765 Patent, “visual media “independent video

Claims 1, 10 content displayed to | presentation not

a user on a user comprising a region

device and may of a larger-

have audio and/or _| dimensioned video”

other media

associated with it”

The parties’ central dispute concerning this limitation is whether each claimed

“video presentation” may be a portion or region of a single, larger video, i.e., whether a

single video may be comprised of multiple claimed “video presentations.”

? Because the disputed terms appear throughout many of the claims, for ease of reference

in this Order, the Court lists only the independent claims in which the disputed terms

appear.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

Eko argues that plain and ordinary meaning applies, that is, “a video presentation

simply refers to visual content displayed (or played, or presented) to a user on the user

device.” Opening Br. at 4. Eko argues that the neither the claim language, specification,

nor prosecution history supports Quibi’s “independent” video requirement. Id. at 4-5.

Because the patent and file wrapper are “silent” regarding “how video from the two video

presentations is transmitted or received,” Eko concludes that “[t]hey may be separate files

or streams, or they may be a part of a larger video that is itself never displayed to the

user.” Id. at 6 (emphasis added). Eko contends that Figures 4A-4D support the conclusion

that “video presentation” includes “portions” of a larger video, but not the entire larger

video. See id. (citing ’765 Patent at 6:24-59 (regarding Figures 4A-4D, “[o]nly a portion

of the video 400 is viewable by the user at any point in time during playback of the

Eko argues that Quibi’s construction would read this embodiment out of the

patent. Id. at 6. Eko also argues that, contrary to the Court’s earlier ruling, dependent

Claim 5 favors Eko’s construction. Id. at 7. Eko contends that, according to Claim 5, “if

the larger video is intended to be viewed as a whole by the user, then the result is not two

different video presentations, but rather one video presentation and a region within that

same video presentation.” Id. Regarding the patent applicant’s disclaimer concerning the

“Kasai” reference, Eko argues that Kasai discloses a single video presentation “because

the full zoomed-out video is meant to be viewed by a user.” Id. at 9. In any event, Eko

argues that, at worst, the proposed and later-rescinded amendment is ambiguous. Jd.

Quibi argues that its proposed construction “is based verbatim on statements that

Eko made regarding this term during prosecution.” Response at 4. Quibi explains that,

Claims | and 10 require receiving “a first video presentation” and a “second, different

video presentation,” terms that Eko added to overcome rejection based on Kasai by

“assert|ing] that “each of the first video presentation and the second video presentation is

an independent video presentation not comprising a region of a larger-dimensioned

video.”” Id. at 5 (quoting Jacobs Decl., Ex. 1 at 1906-1907). Even if not viewed as a

disavowal, Quibi argues that the prosecution history statements are nonetheless

informative as to what the applicant understood the terms to mean. Id. at 7-8. Quibi

maintains that its construction does not conflict with dependent Claim 5 or necessarily

read out any embodiment. Id. at 8.

In reply, Eko argues that the specification makes clear that Figure 2 is two views of

the same video, demonstrating that each video presentation can be a part of one larger

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

video. Reply at 3 (citing °765 Patent at 5:17-21 (“referring to FIG. 2, a smartphone user

watching a music video can seamlessly alternate between two distinct views of the video

by switching between portrait and landscape modes”’), 5:59-60, 6:24-59). Eko explains

that, Figure 2 shows only the user view, whereas Figure 4 shows the zoomed-out view

with a box drawn around what the user sees. Id. at 3. In support, Eko supplies “an

illustrative music video frame,” combining images from Figure 2 and adding additional

images to create a new “music video” figure. Id. at 4.

In its surreply, Quibi asks the Court to reject Eko’s new “illustrative music video

frame,” which was created by Eko’s expert, because it improperly purports to illustrate

“what is actually happening in the patent.” Surreply at 2. Quibi explains that Figure 4

does not show the same thing as Figures 2 and 3, but rather introduces the “viewport”

concept, which the patent explains is an “example” of a change to media playback that

“can be” made “[i]n addition to changes in audio and video content, as described above

[7.e., in Figures 2 and 3].” ’765 Patent at 6:14-26. Quibi contends that, “Rather than

switching between two ‘videos,’ the viewport displays different regions of a single

‘video’ in response to a change in some device property. Surreply at 5; compare °765

Patent at 6:24-32 (viewport of Figure 4 setting a “viewable portion” of “the video 400”)

with id. at 6:4-5 (resized window dimensions of Figure 3 determining “which of three

different videos is presented”’).

In its PI Order, the Court reyected Eko’s proposed claim scope as it relates to

“wideo presentation” for three reasons: (1) construing each “video presentation” to be part

of one stitched-together video was inconsistent with Eko’s position during patent

prosecution; (2) it was inconsistent with dependent Claim 5; and, (3) it was inconsistent

with Eko’s trade secret claim. Having reviewed the parties’ detailed claim construction

positions regarding this limitation, the Court affirms its prior interpretation.

First, as the Court explained in its PI Order, during prosecution of the ’765 Patent,

the applicant overcame an Office Action rejecting the application based on anticipation

by Kasai; the applicant explained that Kasai “focuses on a single video presentation,

and allow[s] a user to switch his viewing area among regions of that single

presentation.” See ’765 Patent Prosecution History, ECF No. 280-2, Jacobs Decl., Ex. 1

at 64 (emphasis added). In contrast, Eko explained, the ’765 Patent “seamlessly

transition|[s| to video from a second, different presentation.” Id. at 64 (emphasis

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

added); see also id. at 66-68, 70. Even if the Court declines to construe this averment as a

clear disavowal, at minimum, the applicant’s clear averment remains relevant to

understanding claim scope. This is because, “Even where prosecution history statements

do not rise to the level of unmistakable disavowal, they do inform the claim construction”

because “an applicant’s repeated and consistent remarks during prosecution can define a

claim term by demonstrating how the inventor understood the invention.” See

Personalized Media Communs., LLC v. Apple Inc., 952 F.3d 1336, 1340, 1345 (Fed. Cir.

2020).

The applicant’s clear and repeated statements here explain that Kasai covers a

single video presentation with the user switching between regions of that video

presentation, whereas the ’765 Patent covers two video presentations, “wherein each of

the first video presentation and the second video presentation is an independent video

presentation not comprising a region of a larger-dimensioned video.” Jacobs Decl., Ex. 1

at 82 (emphasis in original): see also id. at 87-88 (same); id. at 108 (retracting clarifying

amendment). The Court finds unconvincing Eko’s argument that the statements

distinguishing Kasai during prosecution are immaterial because “Kasai relates to

techniques that can be performed at a remote server to reduce bandwidth by allowing a

user to view a whole scene in standard resolution, or zoom into a particular region in high

definition,” whereas the ’765 Patent “relates to techniques that could be performed at the

user device to seamlessly transition between two different video presentations.” Opening

Br. at 8. Notably, this 1s not how the applicant distinguished Kasai during prosecution. If

each video could comprise a region of a larger-dimensioned video—at the user device in

the ’765 Patent and at a remote server in Kasai—the applicant could have explained this

to the examiner, but did not.

Moreover, that Eko later withdrew this clarifying amendment does not change its

relevance. Eko does not meaningfully address the authority on which the Court relied in

the PI Order, or the authority on which Quibi relies in its briefing, to demonstrate that

simply removing a proposed clarifying amendment cannot erase express representations.

See, e.g., Greenliant Sys.. Inc. v. Xicor LLC, 692 F.3d 1261, 1271 (Fed. Cir. 2012) (“But

[applicant] is bound by the arguments that it made before the examiner and before the

Board. It does not matter whether the examiner or the Board adopted a certain argument

for allowance; the sole question is whether the argument was made.”’); Springs Window

Fashions LP v. Novo Indus., L.P., 323 F.3d 989, 993-996 (Fed. Cir. 2003) ( “the fact that

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

the prosecution shifted to a different focus does not blunt the impact of those remarks

made to overcome the prior rejection”). The Federal Circuit has explained that, “The

public notice function of a patent and its prosecution history requires that a patentee be

held to what he declares during the prosecution of his patent,” and the Court finds that

notice requirement pertinent here. See id. at 995 (quotations omitted).

Second, under the doctrine of claim differentiation, dependent Claim 5 supports the

applicant’s statement, that the first and second “video presentations” in the ’765 Patent

are independent videos presentations not each comprising a different region of one larger-

dimensioned video. This is because Claim 5 discloses, “The method of claim 1, wherein

configuring the first state of the video from the first video presentation comprises setting

a viewing region of the video from the first video presentation to a partial area of the

video from the first video presentation.” ’765 Patent at 13:33-37 (emphasis added).

To give meaning to the term “partial area of the video” in this dependent claim, the

first video presentation and a second, different video presentation in Claim | cannot be

construed to be partial areas of the same video. See Nazomi Comme’ns, Inc. v. Arm

Holdings, PLC., 403 F.3d 1364, 1370 (Fed. Cir. 2005) (“limitations stated in dependent

claims are not to be read into the independent claim from which they depend”) (internal

quotation marks omitted); see also 35 U.S.C. § 112(d) (a dependent claim must “specify a

further limitation of the subject matter claimed”). Additionally, that the independent and

dependent claims distinguish between a first and second video presentation on the one

hand, and “a partial area of the video” on the other, suggests that “a first video

presentation” and “second, different video presentation” (Claim 1), and “a viewing region

of the video” (Claim 5), mean different things. See CAE Screenplates Inc. v. Heinrich

Fiedler GmbH & Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000) (“In the absence of any

evidence to the contrary, we must presume that the use of these different terms in the

claims connotes different meanings.”).

To overcome this finding, which the Court first made in its PI Order, Eko presents

a new theory. Namely, referring to Figures 2, 3, and 4, Eko argues that, when a user may

switch between cropped portions of a larger video presentation without seeing the video

presentation 1n its entirety, those portions may be the first and second video presentations

in Claim 1, whereas Claim 5 covers the scenario where a user may switch between

viewing the entire video and a smaller portion thereof. Eko supports this theory with a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

new “music video” figure (created by its expert) that appears nowhere in the patent.

Neither the claim language nor the specification support Eko’s new theory.

The Court agrees with Quibi that nothing in the patent or its prosecution history

suggests that a “video presentation” necessarily encompasses only what a user can see,

and varies depending on a given video (i.e., sometimes it includes an entire video and

sometimes only portions of a video). The specification makes clear that Figures 2 and 3

on the one hand, and Figures 4A-4D on the other, do not depict the same thing. Figures 2

and 3 relate to different videos and Figures 4A-4D apply the “viewport” technique to

different portions of one video.

As shown in FIG. 2, smartphone 200 is In one example, a change in a property

rotatable between a portrait mode A and a associated with a user device can result

landscape mode B. .. . For instance, in one__| ina change in the size and/or position of

implementation, the rotation of the the viewport. Referring to FIGS. 4A-4D,

smartphone 200 from portrait mode A to a video 400 of a family is provided to a

landscape mode B results in a change in the | user device 402; however, only a

state of the video presentation (in this portion of the video 400 is viewable by

example, a change in the video and/or audio | the user at any point in time during

content). Still referring to FIG. 2, a playback of the video 400. The viewable

smartphone user watching a music video can | portion is defined by the viewport 410,

seamlessly alternate between two distinct which can be resized, rotated, or moved

views of the video by switching between around about the video 400 during

portrait and landscape modes. As depicted, | playback in response to change in a

when the smartphone 200 is positioned in device property. In one implementation,

portrait mode A, video of the lead singer 210 | the viewport is a mask layered over the

is shown to the user. Upon rotating the video that includes a resizable

smartphone 200 to landscape mode B, the transparent area allowing the user to see

video changes to show the rest of the band a portion of the underlying video. To

220... . It should be appreciated that the reposition the viewport 410, the mask

present technique 1s not limited to two can be moved with respect to the video

display modes (1.¢e., landscape and portrait). | 400 and/or the video 400 can be moved

Rather, various combinations of audio, with respect to the mask.

video, and/or other media content can be

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘0’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

shown based on any rotation or positioning | ’765 Patent at 6:24-38 (emphasis

of a user device. For example, a first video | added).

may be shown when in portrait mode, a

second video when changing to landscape

mode by rotating the device

counterclockwise, a third video when

changing to landscape mode by rotating the

device clockwise, a fourth video when tilting

the device away from the user, a fifth video

when tilting the device toward the user, a

sixth video when laying the device flat, and

so on.

°765 Patent at 4:64-65, 5:14-24, 5:35-46,

6:4-5 (emphasis added); see id. at 5:47-50

(“FIG. 3 depicts a concept similar” but “with

a windowed media player 300 on a desktop

computer;” depending on how a window is

resized, one “of three different videos 1s

presented’’) (emphasis added).

3 Relatedly, during prosecution, to distinguish Kasai, the applicant relied on Figure 2 to

show the “seamless|]| transition to video from a second, different presentation.” See

Jacobs Decl., Ex. 1 at 64.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

Because these figures refer to two different things, the Court finds unpersuasive

Eko’s argument that Quibi’s construction reads out of the patent the Figure 4

embodiments. These descriptions confirm the distinction between different video

presentations (e.g., the video changes from 210 to 220; “three different videos”), and a

portion of a video (e.g., depicted through a viewport). In any event, as Quibi observes, if

the claims cannot be read to cover the embodiments in Figures 4A-4D (e.g., because

those figures relate to the “configuring” step of Claim 1, or because they relate to Claim

5), “[t]he fact that claims do not cover certain embodiments disclosed in the patent is

compelled when narrowing amendments are made in order to gain allowance over

prior art.” N. Am. Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d 1335,

1345-46 (Fed. Cir. 2005).

Finally, as the Court explained in its PI order, to the extent that Eko’s proposed

construction is inconsistent with its trade secret claim, the Court rejects that proposed

construction. See PI Order at 17.

For the reasons explained above, the Court construes “video presentation” to have

the meaning explained by the applicant during prosecution of the ’765 Patent: “each of

the first video presentation and the second video presentation 1s an independent video

presentation not comprising a region of a larger-dimensioned video.”

B. “Resized”

Construction

Resized °765 Patent, Plain and ordinary | “changed in size by

Claims 1, 10 meaning, whichis | an input device (not

“changed in size” physically rotated)”

Eko argues that its proposed construction is consistent with the claims and

specification, whereas Quibi’s construction reads out preferred embodiments. Opening

Br. at 10. Eko explains that, “Claims 1 and 10 both expressly state that a media player

window ‘has been resized’ when there is a “change from first dimensions comprising a

first height and a first width to second, different dimensions comprising a second height

and a second width.’” Id. (quoting ’765 Patent, Claims 1 & 10). Eko also relies on the

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

specification, which explains that, “In describing prior art systems, the patent notes that,

upon rotation of a smartphone displaying media such as a video, the video is resized ‘to

fit the current screen properties.’” Id. at 11 (quoting ’765 Patent at 4:64-5:5): see also

°765 Patent at 8:50-56 (parallel tracks of a video may be included, wherein “each parallel

track is mapped to one or more device properties, such as screen size, window size, or

device orientation”); id. at 7:2-13 (“the device is rotated . . . the viewport 510b is

modified in size”). Based on the specification, Eko contends that a person of ordinary

skill in the art would have understood that “resizing can be done by rotation or by using

an input device.” Opening Br. at 13.

Quibi asks the Court to adopt its observation from the PI Order, that “‘it appears

Quibi does not practice the claimed resizing of the media player window .. . . Quibi’s

application changes from landscape to portrait orientation based on device rotation (not

window resizing).’” Response at 9 (quoting PI Order at 20). In support of its proposed

construction, Quibi relies on the specification, which explains that, “Fig. 2 depicts a

video state change responsive to a rotation of a user device,” whereas “Fig. 3 depicts a

video state change responsive to a window resizing.” ’765 patent at 2:26-29. With respect

to Figure 3, Quibi notes that the specification explains that, “In this instance, rather than

physically rotating or repositioning the user device, the user changes the window size or

state (e.g., minimized, maximized, thumbnailed) of the media player 300 using an input

device (e.g., mouse, keyboard, touchscreen, etc.).” Patent at 5:50-54. Quibi explains

that its proposed construction “tracks this disclosure.” Response at 11. Quibi notes that

the applicant relied on Figure 3 depicting window resizing (not Figure 2 depicting

rotation) to overcome rejections. Id. Quibi also reyects Eko’s reading-out-the-preferred-

embodiments argument because, Quibi explains, the patent “has no preferred

embodiments,” just embodiments. Id, Quibi asks the Court to reject Eko’s reliance on

“resizing” with respect to an item on a phone screen (as opposed to the claimed media

player window), and notes that rotate and resize do not share the same definition. Id. at

11-12.

In reply, Eko explains that, “[u]nder the express language of the claim, ‘resized’

requires only that the height and width ‘change’ from a first value to a second value,

where the first and second values are different.” Reply at 8. Eko reiterates that, the

“resizing through rotation is described in the specification and shown in Figure 2.” Id. at

9. Eko argues that Quibi’s implied disavowal arguments do not meet the standard

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

required for excluding something from a claim term, especially where, in Eko’s view, the

specification simply uses “resize” and “rotate” as alternatives: and the applicant relied on

Figure 3 as “illustrat[ive] only.” Id. at 10.

In its surreply, Quibi argues that, “Eko’s claim language is not broader than Figure

3 and not broad enough to include Figure 2.” Surreply at 5. Quibi contends that “resized”

must be tethered to Figure 3 because that figure explains “window resizing.” Id. at 5-6. In

support, Quibi argues that, “Figure 3 is the only description of resizing a media player

window, describes exactly what this process entails, and contrasts it with Figure 2’s

device rotation.” Id. at 6.

On the fully developed claim construction record before the Court, the Court

agrees with Eko, that “resized” means simply “a change in size.” Although the Court

reached a contrary tentative conclusion in its PI Order, as Eko observes, a claim

construction adopted during preliminary injunction proceedings is “tentative and is not

binding on the district court in subsequent proceedings.” Transonic Sys.. Inc. v. Non-

Invasive Med. Techs. Corp., 75 F. App’x 765, 774 (Fed. Cir. 2003) (referencing tentative

claim construction adopted on an appeal from a preliminary injunction order) (citing

Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).

The specification supports the conclusion that “resized” should not be limited to a

change in size that occurs only from an input device, as Quibi suggests. The specification

notes that, typically, when “a mobile device, such as a smartphone or tablet, is displaying

a video, photograph, webpage, or the like, rotating the device between portrait and

landscape results in a rotation of the item displayed on the device screen in order to

maintain the orientation of the item while, in some cases, simultaneously resizing the

item to fit to the current screen proportions. For example, an image that occupies the

entire device screen in landscape mode will retain its orientation when the device is

rotated to portrait mode, but is resized so that the width of the image fits within the

narrower width of the portrait screen, resulting in mattes displayed above and below the

image.” ’765 Patent at 4:66-5:10 (emphasis added). And taking this concept one step

further, the present invention “provides further enhancements to the user’s media viewing

experience beyond simple rotation or resizing of images or videos,” such as changing

between different videos and different audio tracks. Id, at 5:11-34: see also, e.g., id. at

7:2-13 (“the device is rotated . . . the viewport 510b is modified in size’).

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

The description of Figure 3 is not as limiting as Quibi suggests. Instead, it refers to

use of the claimed invention on devices other than tablets or smartphones. “FIG. 3 depicts

a concept similar to that shown in FIG. 2, with a windowed media player 300 on a

desktop computer, laptop, or other user device supporting windowed applications. In this

instance, rather than physically rotating or repositioning the user device, the user

changes the window size or state (e.g., minimized, maximized, thumbnailed) of the media

player 300 using an input device (e.g., mouse, keyboard, touchscreen, etc.).” ’765 Patent

at 5:47-54 (emphasis added). When read in its entirety, this description is not

distinguishing between rotating and resizing as two distinct concepts, but rather

distinguishes between how resizing occurs, i.e., by rotating on a handheld device and by

user input on a desktop or laptop computer.

Accordingly, for the reasons stated above, the Court construes “resized” to have its

plain and ordinary meaning, which is “changed in size.”

C. “Media Player Window”

Construction

media player °765 Patent, Plain and ordinary | “a user-resizable

window Claims 1, 10 meaning, whichis | rectangular portion

“a window of an of a screen in which

application running | media content is

on a device, such as | displayed”

a computer,

smartphone, or

tablet, that is

capable of

presenting (or

playing) video

content”

Eko seeks plain and ordinary meaning construction, which it contends “‘is

consistent with how the term is used in the claims and specification.” Opening Br. at 14.

For example, Eko notes that the specification teaches that, “videos can be presented to a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

user using ‘an application on a user device, such as a media player on a smartphone or

tablet.’” Id. (quoting ’765 Patent at 7:48-50). And, Eko notes, the patent “also refers to

“window size’ as one of the properties of ‘an application on a user device, such as a

media player on a smartphone or tablet,’ and includes examples of window size as

properties 1n conjunction with orientation of handheld devices.” Id. (citing ’765 Patent at

7:48-55, 8:54-59).

Quibi notes that, “The dispute over ‘media player window’ is closely related to the

‘resized’ dispute because the terms appear in the same limitation: “determining that a

media player window in which the video is playing has been resized . . . Response at

12 (quoting *765 patent, Claim 1). In support of its construction, Quibi notes that Figure 2

includes a long list of features of a smartphone 200, but does not include a “window” as

one such feature. Id. at 13. In contrast, Quibi relies on the use of “windowed

applications” and “windowed media player 300” in connection with Figure 3, which

relates to using the invention on, e.g., a desktop or laptop computer. Based on this

distinction, Quibi argues that the “media player window” must be resizable by a user. Id.

at 14.

In reply, Eko argues that Quibi’s construction improperly limits the claim scope to

a single embodiment, which would improperly limit the invention to desktop displays

only. Reply at 12. Eko reiterates that, the specification supports its construction where

Figure 6 “depicts one implementation of a method for providing adaptive and responsive

video,” and at “STEP 602, an application on a user device, such as a media player on a

smartphone or tablet, identifies one or more properties associated with the device.” Id. at

13 (quoting 765 Patent at 7:46-51). Eko notes further that the patent distinguishes

between a “windowed media player” (a “windowed application” on a desktop device) and

a “media player window” (a property of an application on a device such as a

smartphone). Id. at 14 (citing ’765 Patent at 4:55-63, 5:47-50, 7:46-61).

The Court agrees that the construction of this limitation is closely related to

“resized,” as construed above. Consistent with that construction, and reading the claims

in light of the specification, the Court agrees with Eko that a “media player window”

does not require user resizing. First, the specification explains that a user device such as a

smartphone or tablet includes an application “such as a media player.” 765 Patent at

7:48-51: see also id. at 4:65-5:2 (“In a typical mode of operation, when a mobile device,

such as a smartphone or tablet, is displaying a video [or other item] . . . rotating the

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

device between portrait and landscape results in a rotation of the item displayed on the

device”). Second, the specification distinguishes the “windowed media player” in Figure

3. See id. at 5:48-50 (the “windowed media player” is found “on a desktop computer,

laptop, or other user device supporting windowed applications”). Nothing about this

embodiment suggests that the claimed “media player window” 1s limited to the properties

of a “windowed media player,” i.e., a player running in a Windows-based application.

The Court declines to limit the claims based on the embodiment depicted in Figure 3. See

Phillips, 415 F.3d at 1320.

Accordingly, consistent with its construction of “resized” above, the Court

construes “media player window” as having its plain and ordinary meaning, that is, “a

generally rectangular area of an application in which media content is displayed.”

D. “Range”

Construction

range °765 Patent, Plain and ordinary | “plurality of

Claims 1, 10 meaning, whichis | possible values

“a set of possible between upper and

values” lower limits”

Eko seeks plain and ordinary meaning construction, explaining that “range”

“appears in the phrases ‘media player window height ranges’ and “media player window

width ranges,’” which Eko contends “simply refer[] to the set of possible values for the

height and width of the media player window.” Opening Br. at 15. Eko contends that

“range” must mean more than “a plurality of possible values between two limits,”

because the patent discloses device properties other than window size (e.g., model, screen

size). Id. (citing ’765 Patent at Claim 2 (properties selected from the group consisting of

physical orientation, model, physical screen size, screen resolution, and window size), id.

at 1:46-48, 4:39-64, 11:7-10). Eko argues that, “Many of these properties can be

expressed as, or mapped to, ranges of window heights or widths that are not necessarily

specified as a plurality of possible values between two limits.” Id.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

Quibi argues that “range” requires a plurality of possible values because “[a] fixed

value, by definition, has only a single value, not a plurality of possible values.” Response

at 15 (citing PI Order at 20 (“Quibi’s application changes from landscape to portrait

orientation . . . based on fixed values (not ranges).”). Quibi argues this is correct because

the specification “expressly contrasts ‘fixed dimensions’ with ‘ranges.’” Id. at 15-16

(citing ’765 patent, 5:65-6:1 (“In some implementations, instead of limiting the

windowed media player 250 to fixed dimensions, ranges for window heights and/or

widths can be defined and associated with differing media content.”’); id. at 5:57-58 (a

“fixed window dimension” is a “defined height and width”)). Quibi argues that the claim

language also supports this construction, because “Claims | and 10 both recite

“determining that the second [height / width] is included in a particular one of the media

player window [height / width] ranges,” and “[t]he words ‘included in’ indicate that the

ranges comprise multiple values.” Id. at 16. Further, Quibi argues that Eko’s reliance on

Claim 2 is misplaced, because “The ‘properties’ recited in claim 2 are not used in claim

1’s steps involving ‘ranges’: they are used in an earlier step of ‘configuring a first state of

the video.’” Id. at 17.

In reply, Eko argues that “range” should not be limited to the examples shown in

Table 1 and Figure 3 of the patent. Reply at 14. Eko also argues that Quibi’s construction

would include values that are not possible (e.g., resulting in fractions of pixels). Id. at 15.

Eko contends that Quibi’s construction should be rejected for the additional reason that it

“reads out claim 6 because it precludes window size (e.g., window width and height)

from being associated with an initial (and single) value or a (single) value to which those

properties changed.” Id. at 16 (citing ’765 Patent at Claim 6 (“wherein the video from the

first video presentation is associated with an initial value of the one of the properties, and

wherein the video from the second video presentation is associated with a value to which

the one of the properties changed’’).

In surreply, Quibi notes that “Eko does not contest that the specification expressly

contrasts ‘fixed dimensions’ with ‘ranges’ and that every range in Table 1 1s a plurality of

values.” Surreply at 10. Further, Quibi explains that, “Eko’s argument that Quibi’s

construction ‘reads out claim 6’ is based on Eko’s misreading of both claim 1 and claim

6.” Id. “Claim 1 says that the mapping is used upon “determining that a media player

window in which the video is playing has been resized.” Id. at 10-11. Eko did not

respond to the contention that, “The device ‘properties’ are used in a different step of

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case □□□ 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

‘configuring a first state of the video.’” Id. at 11. And Claim 6 “merely requires that some

device property change from an initial value to another value and that two videos be

associated with those values. It recites no limitation on the number of possible initial and

changed values.” Id. Moreover, Quibi argues that, because Table 1 reflects percentages of

screen size, the ranges must be bounded by limits (e.g., a window dimension could not be

larger than 100% of screen size). Id.

In its PI Order, the Court noted that “ranges” exclude the concept of “fixed values”

(e.g., a landscape aspect ratio of 16:9 does not express a range). PI Order at 20. Having

reviewed the parties’ detailed claim construction positions regarding this limitation, the

Court affirms its prior interpretation.

The specification distinguishes between a fixed dimension and a range. That is,

“Different media content can be associated with each fixed window dimension (defined

height and width).” ’765 Patent at 5:57-58 (emphasis added). And, “In some

implementations, instead of limiting the windowed media player 250 to fixed dimensions,

ranges for window heights and/or widths can be defined and associated with differing

media content. For example, assuming the height and width of a particular window can

be individually resized to occupy between 5% and 100% of a screen, Table 1 indicates

which of three different videos 1s presented depending on current window dimensions.”

TABLE 1

Window Height Range Window Width Range Video

5% to <50% 5% to 100% Video 1

50% to 100% 3% to <25% Video 2

50% to 100% 25% to 100% Video 3

Id. at 5:65-6:5.

Based on these definitions and illustrations, “range” in Claims 1 and 10 cannot

mean “fixed dimension.” Eko does not meaningfully dispute that a “range” must be

bounded by limits. Because devices have limited screen size, the Court agrees that the

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

ranges must necessarily fall within upper and lower limits, such as the limits illustrated in

Table 1.

The Court further agrees with Quibi that construing “range” to exclude fixed

dimensions does not read out Claim 6. The “initial value” in Claim 6 refers to

“configuring a first state of the video from the first video presentation based on at least

one of the properties associated with the user device.” See ’765 Patent at Claims 1, 6.

After configuring and presenting the video, only then does the invention “provid{[e] a

mapping of video presentations to media player window height ranges and media player

window width ranges,” and upon determining that the media player has changed size

during playback, determines a new “range” for the new height and width, and seamlessly

changes the video presentation accordingly. See id.

Accordingly, for the reasons stated above, the Court construes “range” as a

“plurality of possible values between upper and lower limits.”

E. “Segment” and “Collection of Segments”

Construction

segment °220 Patent Plain and ordinary | “standalone video”

Claims 1, 13 meaning, which is

Patent “a portion of video

Claims 1, 11 and/or audio

content”

collection of °220 Patent Plain and ordinary | “a first segment of a

segments Claims 1, 13 meaning, whichis | video that is played

“a collection of and one or more

portions of video subsequent

and/or audio segments”

content”

The parties dispute whether each “segment” is a portion of a video or an

independent, i.e., standalone, video. Eko argues that plain and ordinary meaning dictates

that “segment” is a portion of a video. Opening Br. at 17. Eko explains that, “Claim 1

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

contemplates, for example, that a subset of the collection of segments can be downloaded

according to a download priority,” and in this context, the system “facilitate|es] the

selective presentation of video content, and that video content is comprised of a

collection of segments.” Id. at 17-18; see °220 Patent at Abstract (“The interactive video

player in operation creates in real-time a custom video that includes a plurality of video

segments.”); see also id. at 4:29-32 (“‘a first segment can be the first ten seconds of a

video”). Although the patent states that, “a plurality of videos is loaded, each having a

plurality of segments that are a standalone videos,” ’220 Patent at 1:61-64, Eko argues

that “standalone videos” is meant to modify “plurality of segments,” not just “segments.”

Opening Br. at 19. Eko concludes that, “‘[s|tandalone videos’ thus refers to the plurality

of segments that make up each video, and does not mean that each segment must be a

standalone video.” Id.

Quibi notes that, at the preliminary injunction stage, the Court found Quibi’s video

was not comprised of Eko’s “segments,” and Quibi argues for a construction based on

“how the ’220 patent, incorporated by reference in the ’066 patent, characterizes the word

“segment.” Response at 18. Quibi observes that, “The Court took note of this language,

explaining that Eko’s ‘invention sought to improve “the loading of videos” by providing

a system ... where multiple videos have multiple segments that are “standalone

videos.”’” Response at 18 (quoting PI Order at 10). Quibi argues that the Figures in the

specification further support this construction. Id. at 19.

As to “collection of segments,” the parties dispute whether a specific sequence 1s

required. Eko argues that “collection” does not require a particular order because “‘the

claims themselves require that the determination of any subset or order be set by a

different claim limitation,” e.g., Claim 1 of the ’220 Patent recites that “a subset of the

collection of segments” is selectively determined to be downloaded “based, at least in

part, on a download priority.” Opening Br. at 20-21; see also ’220 Patent at Claim 2

(requiring segments to be organized by “decision points”).

Quibi argues that the patent demonstrates that a “collection of segments” is “not a

loose, unorganized group, but rather segments appended onto one another in sequential

fashion.” Response at 21. Quibi observes that Eko failed to address “the Court’s

conclusion that ‘a collection of segments’ does not exist where the ‘video comprises a

single download or stream.’” Id. (quoting PI Order at 21-22). Quibi argues further that

construing “collection of segments” to begin with a first segment cures a later ambiguity

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

problem in dependent claims that refer to “the first segment,” even where no proper

antecedent basis has been provided. Id. at 22. At the hearing, Quibi clarified that it does

not believe “segment” is akin to an “independent movie” (i.e., the claimed invention does

not give the user a choice between watching, e.g., The Sound of Music or Star Wars).

In its PI Order, in the context of analyzing likelihood of success of Eko’s ’220

Patent infringement claim, the Court rejected the contention that a single, stitched-

together video could comprise the claimed “collection of segments.” PI Order at 22. Now

in the context of claim construction, having reviewed the parties’ detailed claim

construction positions regarding this limitation, which subsumes the additional disputed

limitation “segment,” in light of the claim language and the specification, the Court

concludes that a “collection of segments” means multiple, standalone videos.

The ’220 Patent is entitled “systems and methods for loading more than one video

content at a time.” The purpose of this invention 1s to give the user a choose-your-own-

adventure video-watching experience. This is accomplished by an “interactive video

player’ that “creates in real-time a custom video that includes a plurality of video

segments.” See ’220 Patent at Abstract. The invention accomplishes this by breaking

video content into the claimed “segments,” which together form a “collection of

segments;” the system queues segments to download and play based on decisions made

by the user. The patent depicts this process as follows.

Regular Video

FIM!

interlude Video (with branches)

7 Pownloaded video

— layed video

c= Remaining video to download

~~ Decision point

——}--__-—» Time

See ’220 Patent at Fig. 3 (“illustrating the differences between a regular video and a video

of the present invention’).

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

The patent distinguishes this invention from “[c]}urrent methods [that] load the

entire video and just one video 1s provided.” Id. at 1:41-43. The “present invention” is

different because it “provide[s| systems and methods for loading more than one video at a

time” and “provide[s] systems and methods for loading videos where a plurality of videos

is loaded, each having a plurality of segments that are standalone videos.” Id. at 1:52-53,

1:61-64 (emphasis added). The specification reiterates, “With the system of the present

invention, a plurality of videos are loaded, each having a plurality of segments that are a

standalone video. In one embodiment, a user downloads various segments and these are

then selected as segments to be loaded. A custom download is created.” Id. at 3:34-38

(emphasis added).

The specification makes clear that segments are “standalone videos.” See id. at

1:41-43 (“segments that are standalone videos”). The Court disagrees with Eko’s

proposed construction because it would make the above-quoted portions of the

specification grammatically incorrect; “standalone video(s)” corresponds with

“segments” in these passages, the term does not correspond with “plurality” (z.e., if

standalone video referred to a plurality of segments, the specification would say “a

plurality of segments that is a standalone video”). This construction stays true to the

claim language, specification, and purpose of the invention.

The Court agrees with Quibi that a “collection of segments” must begin with a

“first segment” and be followed by one or more subsequent segments. This is consistent

with the claim language and the specification, including Figure 3. Although the choose-

your-own-adventure style of decision points that determine download priority makes a

non-linear path of segments possible, this construction reflects that because no set order

is required for the subsequent segments. See, e.g., °220 Patent at Fig. 2 & 4:17-20 (“After

pressing play the system plays a first segment, collect first user selection, then plays the

second segment, collect the second user selection and plays the last segment.”); id, at Fig.

3 & 4:42-47 (“In FIG. 3, the regular video is represented as a played video, downloaded

video and remaining video to be downloaded. With the video of the present invention, a

downloaded video from a played video is the first segment. A decision point exists after

the first segment where it branches into two second segments with remaining video to

download.”).

Further, this construction alleviates the potential vagueness problem created by

lack of antecedent basis for “the first segment” in dependent Claim 10. See, e.g., Slimfold

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

Mfg. Co. v. Kinkead Indus., Inc., 810 F.2d 1113, 1116 (Fed. Cir. 1987) (lack of

antecedent basis may render claim invalid under 35 U.S.C. § 112). Dependent Claim 10

discloses, “The system of claim 7 further comprising a pre-loader module for starting

downloading prior to the playing of the first segment.” ’220 Patent at Claim 10.

For the reasons explained above, the Court construes “segment” to mean “a

standalone video,” and “collection of segments” means “a first segment that is played and

one or more subsequent segments.”* That the applicant did not define “standalone video”

in the specification—even though the term is used twice—does not make the term vague

or confusing, but rather suggests that the applicant intended the term to carry its plain and

ordinary meaning.

F. “Content Paths”

Construction

content paths 066 Patent “two or more “selectable

Claims 1, 11 multimedia content | sequences of two or

segments” more multimedia

content segments”

The parties dispute whether “content paths,” i.e., “two or more multimedia content

segments,” must be “selectable sequences.” Eko argues that “selectable sequence” should

not be added because Claim | already encompasses this concept. Opening Br. at 25

(citing ’220 Patent, Claim 1 (“multimedia content segments, each content segment

defining a portion of one or more content paths, wherein a particular content segment

comprises a decision period during which a subsequent content segment can be selected

for playback”). Eko also argues that adding selectable sequence adds ambiguity to the

term by possibly requiring each content path to have three or more segments. Id. at 25.

In response, Quibi argues that, “[a] ‘content path’ is not just any two disconnected

segments. Rather, as the word ‘path’ conveys, it is two (or more) segments 1n a

4 At the hearing the parties agreed that, to comport with the purpose of the invention,

“collection of segments” requires no set order for the subsequent segments.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

sequence.” Response at 23. Quibi argues that the specification supports this construction:

“a content path is formed through a repeatable process in which a user ‘select[s] the next

content segment to view as the current segment is playing’ and then the “selected segment

is seamlessly appended |] onto the currently playing content segment.’” Id. (quoting □□□□

Patent at 2:55-61). Quibi argues that this construction serves the purpose of the patent,

“which is to provide ‘systems and methods to synchronize audio for selectably

presentable media content segments.’” Id. at 23-24 (quoting ’066 Patent at 1:42-46).

The ’066 Patent provides “|a] system for synchronizing audio and video of

selectably presentable multimedia content [and] includes a memory for storing a plurality

of selectably presentable multimedia content segments.” ’066 Patent at Abstract. “Each

content segment defines a portion of one or more content paths and includes a decision

period during which a user may select a subsequent content segment as the content

segment is playing.” Id. The invention recognized a “need for systems and methods to

synchronize audio for selectably presentable media content segments, such that a

synchronized, seamless transition in audio and video occurs between the end of one

segment and the start of another.” Id. at 1:42-46. Thus, in the invention, “Each content

segment defines a portion of content paths and includes a decision period during which a

user may select a subsequent content segment as the content segment is playing.” Id. at

1:53-56. “Two or more combined segments form a seamless multimedia content path and

there may be multiple paths that a viewer can take to experience a complete, start-to-

finish, seamless presentation.” Id. at 4:27-29. “Ultimately, the viewer arrives at a final

segment, having traversed a complete multimedia content path.” Id. at 5:3-5.

In its Tenative Claim Construction Order, the Court observed that no apparent

material dispute existed between the parties’ positions with respect to “content paths.”

Eko argued that the words “selectable” or “sequence” should not be added to the

construction, in part because Eko observed that Claim | “already includes the concept of

allowing a selection,” thereby making “selectable sequence” “redundant and

unnecessary.” Opening Br. at 25. Quibi likewise observed that the word “path” already

conveys, “two (or more) segments in a sequence.” Response at 23. At the hearing, Quibi

explained that a material dispute does exist as to this term. Specifically, Quibi argued that

“content paths” should not be construed to encompass two parallel segments but rather,

should be limited to segments that can be selected one after the other. Eko responded

that “content paths” are any two or more combined segments that need not be

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

“selectable,” as illustrated in Figure 10 of the Patent, which is incorporated by

reference in the ’066 Patent and shows that a user can go back and forth between parallel

video tracks.

The specification makes clear that the purpose of this invention is user choice,

offering a series of decision points seeking user selections that will determine the

sequence of audio and video presented. See, e.g., Patent at 4:34-38 (“[t]he segment

that is played after a currently playing segment is determined based on the option

selected”). Because the claim language, including the word “path,” already implies a

selectable sequence, the Court sees no need to add these words to its construction. See

id., Claim | (“multimedia content segments, each content segment defining a portion of

one or more content paths, wherein a particular content segment comprises a decision

period during which a subsequent content segment can be selected for playback”).

The ’220 Patent does not change this analysis. The 066 Patent incorporates by

reference the ’220 Patent. See ’066 Patent at 6:6-11. The Court observes that Figure 10 of

the ’220 Patent does not define a “content path.” In any event, to the extent Figure 10 is

useful, like the relevant claim language in the ’066 Patent, Figure 10 relates to a user

selecting a sequence of video segments. The Patent provides a system for loading

more than one video at a time. Specifically, the system “downloads a video and allows

for the creation of multiple segments of video that can be linked together via branches.”

°220 Patent at 4:25-27. To facilitate user choice, the system “provides a jump feature”

whereby “[i|n some videos|,] the user can jump to a different part of the tree [branches].”

Id. at 7:11-13. For example, “if the character dies or the user wishes to skip a part, then

the loader 12 downloads the destination part in order to prevent buffering on such a

jump.” Id. at 7:13-16. As depicted in Figure 10, “in some videos the user can move back

and forth between two or more branches.” Id. at 7:21-22. “Back and forth movement is

achieved in the same manner. The options always appear on the screen and the two

videos are played simultaneously, and the loader 12 needs to download both parallel

segments.” Id. at 7:25-28 (emphasis added). Further, “[w]ith the present invention, the

interactive nature of a video impacts the video’s content and the user can control the

video’s path.” Id. at 7:41-43.

Figure 10 depicts the claimed system with parallel directional branching options,

adding to the linear directional branching options noted in Figure 3 above.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘<O’

Case No. 2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

Parallel

Ty — Downloaded video

cee — Played video

□□ c= Remaining video to dawnload

FIG. 10

The description of Figure 10 and Figure 10 itself make clear that, like the ’220 and

°066 Patents overall, Figure 10 involves selectable segments driven by user choice. In

this example, the decision points allow a user to move either to another point on the same

branch or to another point on a different (parallel) branch. The branching concept remains

the same: movement along a content path of segments is controlled by a user selecting

from among available options, with certain choices changing the branching path (e.g.,

moving down to a parallel branch instead of along a linear branch). Nothing in the ’220

Patent suggests that a “content path” in the 066 Patent is formed from any two content

segments without regard to a set of predetermined decision points and user selections (or

in the case of no user selection, a specific default content path). See ’066 Patent at 4:58-

61 (user has “an amount of time to make a selection (i.e., a decision period), after which,

if no selection 1s made, a default segment will be automatically selected”).

Accordingly, for the reasons stated above, the Court construes “content path” to

mean “two or more multimedia content segments.” In connection with this construction,

because selectable sequence is implied in the remaining claim language, neither party

may later argue in this litigation that Claim 1 does not disclose a sequence of content

segments forming one or more content paths.°

> Specifically, Claim 1 discloses, “a memory for storing a plurality of multimedia content

segments, each content segment defining a portion of one or more content paths, wherein

a particular content segment comprises a decision period during which a subsequent

content segment can be selected for playback as the particular content segment is

playing.” ’066 Patent at Claim 1. In other words, a content path is made up of content

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES —- GENERAL ‘O’

Case No. —2:20-CV-02299-CAS (SKx) Date April 12, 2021

2:20-CV-02250-CAS (SKx)

Title JBF INTERLUDE 2009 LTD, ET AL. v. QUIBI HOLDINGS LLC, ET AL.

QUIBI HOLDINGS LLC, ET AL. v. INTERLUDE U.S., INC., ET AL.

V. CONCLUSION

In accordance with the foregoing, the Court construes the disputed claim

limitations as follows:

“wideo presentation” means “each of the first video presentation and the second video

presentation 1s an independent video presentation not comprising a region of a larger-

dimensioned video”

“resized” means “changed in size”

“media player window” means “a generally rectangular area of an application in which

media content is displayed”

“range” means a “plurality of possible values between upper and lower limits”

“segment” means “a standalone video,” and “collection of segments” means “a first

segment that is played and one or more subsequent segments”

“content path” means “two or more multimedia content segments”

IT IS SO ORDERED.

90

Initials of Preparer CM)

segments, and each content segment gives the user a selection choice that determines

which content segment is played next; the content path 1s not made up of an arbitrary

plurality of segments.