Corporation ofAmerica, Sony Electronics Inc., Sony ... - Docket Alarm

UNITED STATES INTERNATIONAL TRADE COMMISSION

WASHINGTON, DC

Before Administrative Law Judge David P. Shaw

In the Matter of

CERTAIN POINT-TO-POINT NETWORK

Investigation No. 337-TA-892

COMMUNICATION DEVICES AND PRODUCTS CONTAINING SAME

RESPONSES OF SONY CORPORATION, SONY CORPORATION OF AMERICA, SONY ELECTRONICS INC., SONY MOBILE COMMUNICATIONS AB, SONY MOBILE COMMUNICATIONS (USA) INC., SONY COMPUTER ENTERTAINMENT, INC., AND SONY COMPUTER ENTERTAINMENT AMERICA LLC TO

STRAIGHT PATH IP GROUP, INC.’S LIST OF PROPOSED REPRESENTATIVE ACCUSED PRODUCTS

Pursuant to the Procedural Schedule (Order No. 9), Respondents Sony Corporation, Sony

Corporation of America, Sony Electronics Inc., Sony Mobile Communications AB, Sony Mobile Communications (USA) Inc., Sony Computer Entertainment, Inc., and Sony Computer

Entertaimnent America LLC (“SCEA”) (collectively, the “Sony Respondents”) respond to the

List of Proposed Representative Accused Products (“List”) offered by Complainant Straight Path IP Group, Inc. (“Straight Path”).

As the Sony Respondents explain below, Straight Path’s List is defective procedurally and substantively to the point that it should be rejected in its entirety. Nonetheless, in an effort to manage the scope of this Investigation for all parties and the Commission, after explaining the critical defects in each of Straight Path’s categorizations, the Sony Respondents affirmatively

propose a categorization that could reasonably be adopted for use in this Investigation.

f Find authenticated court documents without watermarks at docketalarm.com.

Further, the Sony Respondents are prepared to meet and confer regarding representative accused products in advance of the January 7, 2014 deadline for a final stipulation pursuant to the Procedural Schedule and Ground Rule 6(d).

A.

General Remarks and Response to Section A of Straight Path’s List (“Accused Products Identified in the Complaint”).

Straight Path’s List violates Ground Rule 6(d), which requires that the list be based on Straight Pat ’s “infringement contentions.”

Here, however, the only “infringement contentions” that Straight Path has provided with respect to the Sony Respondents are the three claim charts that Straight Path attached to its complaint, two of which concerned YouTube and one of which concerned Netflix. Straight Path has never offered an explanation or contention regarding how the use of any other application on the Sony Respondents’ products could be accused of infringing the asserted patents. Straight Path has yet to provide any meaningful response to the Sony Respondents’

interrogatories (served on September 19, 2013) asking for Straight Path’s infringement contentions. Instead, Straight Path responded on October 8, 2013 by (1) citing the exhibits to its

complaint and (2) indicating that it would “further respond c■ at the time and in the manner to be established in the [then] forthcoming Procedural Schedule and in accordance with the

applicable Commission Rules and Ground Rules.” As noted above, however, the Ground Rules

required Straight Path to identify proposed representative products based on its “infringement contentions.”


Straight Path has known of this requirement as well as the applicable deadline (i.e., December 17, 2013) since the October 28, 2013 entry of the Procedural Schedule (Order 9), which codified a proposed schedule to which Straight Path had agreed even earlier. Yet Straight

Path has never provided any infringement contentions beyond the exhibits to its complaintl Accordingly, pursuant to Ground Rule 6(d) (which requires that this response “assume” Straight Path’s infringement contentions), the Sony Respondents have prepared this response by

reference to the claim charts that Straight Path attached to its complaint documenting the Sony Respondents’ alleged infringement based on YouTube and Netflix “streaming video”

applications. The Sony Respondents recognize that Straight Path’s complaint also included

claim charts related to the “Google Talk” application for other respondents. While Straight Path has never offered contentions based on Google Talk against Sony products, the Sony Respondents nevertheless are prepared to craft a list of representative products and applications based on Google Talk in addition to YouTube and Netflix, since the Sony Respondents have had the opportunity to consider the Google Talk claim charts attached to Straight Path’s complaint. Straight Path’s List repeatedly uses the catch-all phrases “streaming media applications”

and “Video and voice chat applications.” Such generic references violate Ground Rule 6(d) and would unfairly prejudice the Sony Respondents’ analysis and development of non-infringement defenses. Different media and chat applications work differently, and Straight Path has not even

attempted to explain why one would be “representative” of another?

1 The Procedural Schedule sets January 31, 2014 as the deadline for “final supplementation” of Straight Path’s contention interrogatory responses related to infringement. This deadline does not override Ground Rule 6(d)’s requirement that the identification of proposed representative products be based on meaningful “infringement contentions” from Straight Path.

2 On the contrary, there are material differences even between Straight Path’s claim charts related to Netflix and those concerning YouTube.


That said, the Sony Respondents acknowledge that the List identifies particular streaming media applications other than the Netflix and YouTube applications identified in the complaint. While such identifications in Straight Path’s List fail to comply with Ground Rule 6(d) given the lack of corresponding infringement contentions, the Sony Respondents are willing to proceed

with the specific streaming media applications identified in the List (i.e., not just the Netflix and YouTube applications charted in Straight Path’s complaint). The Sony Respondents understand, however, that streaming media applications not

appearing on the List are now out of the case. Straight Path’s first set of discovery requests (served on September 10, 2013) included requests related to “streaming services” generally. Despite the substantial burden presented by that open-ended inquiry, the Sony Respondents agreed to extend discovery accordingly, rather than limiting discovery only to YouTube and

Netflix. In response, the Sony Respondents identified several other video streaming applications in their discovery responses (e.g., Hulu Plus, Crackle, Amazon Instant Video, and T-Mobile TV, along with others identified pursuant to 19 C.F.R. § 210.29(c)). Straight Path’s List, however, does not mention such applications. Accordingly, the Sony Respondents understand that Straight

Path has elected not to attempt to prove infringement based on those applications. With respect to “chat applications,” Straight Path’s List does not identify any other than Google Talk. The focus on Google Talk is consistent with discovery. Straight Path’s September discovery requests did not include any requests related to chat

applications generally (as contrasted with streaming video applications, with respect to which Straight Path did request wide discovery).


In subsequent requests served over two months later, after the Sony Respondents were

already executing detailed discovery plans based on Straight Path’s prior approach, Straight Path for the first time mentioned “chat services” generally. The Sony Respondents promptly objected

to all requests related generically to “chat services” given that this catch-all term swept “far beyond the scope of the investigation as reasonably understood by the Sony Respondents based, inter alia, on Straight Path’s August 1, 2013 Complaint; September 10, 2013 First Set of Interrogatories; September 10, 2013 First Set of Document Requests; and September 20, 2013 Amended Complaint.” Lg” Response to Interrogatory No. 82 (served on November 27, 2013). Straight Path never responded to the Sony Respondents’ objection.

Under these circumstances, proceeding based on “chat applications” other than Google Talk would violate Ground Rule 6(d), and would be unfair, unreasonable and — with just one month left in the discovery schedule — all but impossible.

B.

Specific Responses to Section D (“Representative Sony Products”) 1.

Gaming Consoles a.

Problems with Straight Path’s Proposal

Straight Path proposes to treat the Sony PlayStation 4 (“PS4”) as representative of all Sony Gaming Consoles, including various iterations of the PlayStation 3 (“PS3”), the PlayStation Vita (“PS Vita”), and the PlayStation Portable (“PSP”). Further, Straight Path

alleges that the PS4 infringes the asserted patents because the PS4 “includes video and voice chat applications and streaming media applications, including at least Netflix, YouTube, the Sony PlayStation Network, Sony Video Unlimited, Sony Music Unlimited and Bravia Intemet Video.”

There are numerous problems with Straight Path’s proposal.


First, the catch-all references to “video and Voice chat applications” and “streaming

media applications” violate Ground Rule 6(d) for the reasons discussed above in Section A. Second, “Bravia Internet Video” has nothing to do with any Sony gaming consoles.

Third, as the Sony Respondents have repeatedly stressed, it is unreasonable and inappropriate to characterize the entire “Sony PlayStation Network” as an “application” and/or use such terminology to capture “video and voice chat applications.” In particular:

0

Straight Path’s 30(b)(6) deposition notice included a number of topics referencing the alleged “Sony PlayStation Network Application,” but without offering a definition of that

term. As the Sony Respondents emphasized in their November 25, 2013 response, the term “Sony PlayStation Network Application” is “undefined, vague, ambiguous, inconsistent with Sony terminology and not understood by the Sony Respondents.” On December 2, 2013, Straight Path sent a generic email response concerning the Sony Respondents’ objections that did not address (or even acknowledge) the substance of the

Sony Respondents’ objection to non-sensical references to the “Sony PlayStation Network Application.” Nor did Straight Path raise the issue during a subsequent meetand-confer on December 11, 2013.

0

Straight Path’s Second Set of Interrogatories to the Sony Respondents included various interrogatories referencing the alleged “Sony PlayStation Network and PlayStation Store Applications,” which Straight Path defined as “any application that provides access to

and/or interacts with Sony’s PlayStation Network video chat service, voice chat service, text chat service, streaming media service, online or multiplayer gaming service, or game

and application store service, including, but not limited to, any application software branded “PlayStation Network” or “PSN” (emphasis added). In their November 27, 2013 response, the Sony Respondents objected to this definition as, inter alia, “sweeping far beyond the scope of the investigation as reasonably understood by SC, SCA, SEL, SoMC AB, SoMC USA, SCEI, and SCEA based, inter alia, on Straight Path’s August 1, 2013

Complaint; September 10, 2013 First Set of Interrogatories; September 10, 2013 First Set of Document Requests; and September 20, 2013 Amended Complaint.” Accordingly, the

Sony Respondents did not respond to the subj ect interrogatories. Straight Path never responded to the Sony Respondents’ objections.

0

Straight Path’s Second Set of Requests for Production of Documents included various requests referencing the alleged “Sony PlayStation Network and PlayStation Store

Applications,” which Straight Path defined in its Second Set of Interrogatories. In their December 2, 2013 responses, the Sony Respondents objected to this definition for the same reasons set forth in their interrogatory responses, and accordingly did not indicate a willingness to produce documents in response to the subject requests. Once again, Straight Path never responded to the Sony Respondents’ objections.

At this stage, with just one month left in discovery and the Sony Respondents and their counsel fully occupied complying with an already extraordinarily demanding set of discovery responsibilities based on the case as it has developed, it would be all but impossible to expand

the scope to encompass PlayStation functionalities unrelated to the streaming media applications on which the parties have focused to date. Furthermore, such expansion of the case would severely burden Sony Network Entertainment International (“SNEI”), which is responsible for

operation of the PlayStation Network. Although SNEI’s role is publicly known,3 Straight Path never identified SNEI in its complaint, nor in any discovery requests.

Furthermore, the PS4 is not representative of the Sony Respondents’ other gaming consoles. For instance, while Netflix applications are not included on any PS4, PS3, PS Vita, or PSP console at the time those devices are imported into the United States or later sold here, the particular circumstances vary among the different Sony gaming consoles. In addition, Straight Path never referenced the PSP console in its complaint or even in its first set of discovery requests. Given these omissions and the reality that the PSP is nearing the end of its life cycle, the Sony Respondents reasonably understood that the PSP was not at issue in the investigation. Given the differences between these products and applications, and the lack of clarity

regarding how Straight Path believes any of them (let alone all of them) infringe the asserted patents, the Sony Respondents cannot agree with Straight Path’s List.

3 Lg, http://www.sony.com/SCA/who-we-are/our-businesses.shtml.

b.

The Sony Respondents’ Counterproposal

The Sony Respondents propose the following representative gaming consoles: 0

PS4 (generically), based on the Netflix, Video Unlimited, and Music Unlimited Applications

— representative of the PlayStation 4 DualShock 4 Bundle, PlayStation 4 Killzone Bundle (PS490001), PlayStation 4 Knack Bundle (PS490003), PlayStation 4 (PS4), and all models of the CUH- 1001A series. 0

PS3 (generically), based on the Netflix, YouTube, Video Unlimited, and Music Unlimited

Applications — representative of the PlayStation 3 (PS399), the PlayStation 3 Legacy Bundle,

Super Slim Console, PlayStation 3s bundled with Various games, all models of the CECH-4001B, CECH-4001C, CECH-4201A, CECH-4201B, and CECH-4201C series. 0

PS Vita (generically), based on the Netflix, YouTube, Video Unlimited, and Music

Unlimited Applications — representative of the PlayStation Vita The Walking Dead Bundle, PlayStation Vita First Edition Bundle, PlayStation Vita LEGO Batman 2 DC Super Heroes Wi-Fi

Bundle, PS Vita Wi-Fi and 3G (BUNDLE) (PSV22l68), and PS Vita Wi-Fi (PSV2203 l). 2.

Smart TVs

a.


Straight Path proposes to treat the Sony XBR-55X850A as representative of all Sony televisions. Further, Straight Path alleges that the XBR-55X850A infringes the asserted patents because the XBR-55X850A “includes streaming media applications, including at least Netflix, YouTube, Sony Video Unlimited, Sony Music Unlimited and Bravia Internet Video.” There are numerous problems with Straight Path’s proposal.

First, the catch-all reference to “streaming media applications” violates Ground Rule 6(d) for the reasons discussed above in Section A. Similarly, referencing “Bravia Internet Video” is inappropriate if Straight Path is attempting to use it as a shortcut to capture streaming media

applications4 other than Netflix, YouTube, Sony Video Unlimited, and Sony Music Unlimited. (The Sony Respondents do not object to the “Bravia Internet Video” reference, however, if

4 The Sony Respondents identified such applications in response to Straight Path’s discovery requests. & Sony_SP-ITC_0796594 (referenced in the Sony Respondents’ Supplemental Response to Straight Path’s Interrogatory No. 28). However, Straight Path elected not to list specific applications other than Netflix, YouTube, Video Unlimited, and Music Unlimited.

Straight Path intends it to reference functionality relevant to Netflix, YouTube, Sony Video Unlimited, and Sony Music Unlimited.)

Further, Netflix, YouTube, Sony Video Unlimited, and Sony Music Unlimited are not fiilly preinstalled on any Sony televisions at the time of importation or sale following importation.

Separately, the Netflix applications used with 2013 Sony-engineered televisions (e.g., the XBR-55X850A) incorporate Netflix Ready Device Platform (“NRDP”) 3.2, whereas the Netflix applications used with 2014 Sony-engineered televisions incorporate NRDP 4.0.

Given the differences between these products and applications, and the lack of clarity regarding how Straight Path believes any of them (let alone all of them) infringe the asserted patents, the Sony Respondents cannot agree with Straight Path’s List. b.

The Sony Respondents’ Counterproposal

The Sony Respondents propose the following representative television products: 0

XBR-55X850A, based on the Netflix, YouTube, and Video Unlimited, and Music

Unlimited applications — representative of 2013 Sony-engineered televisions (including the KDL-32W650A, KDL-32W650A, KDL-47W802A, KDL-55W802A, KDL55W90OA, KDL-65S99OA, KDL-65W850A, KDL-65W950B, XBR-55X850A, XBR-

55X900A, XBR-65X850A, and the XBR—65X900A). 0

KDL-50R550A, based on the Netflix, YouTube, and Video Unlimited, and Music

Unlimited applications — representative of 2013 ODM televisions (including the KDL50R550A, KDL-60R520A, KDL-60R550A, KDL-70R520A, and the KDL-7OR550A). 0

KDL-32W700B, based on the Netflix, YouTube, and Video Unlimited, and Music

Unlimited applications — representative of 2014 Sony-engineered televisions (including the KDL-32W700B, KDL-40W580B, KDL-40W590B, KDL-40W600B, KDL-

42W700B, KDL-48W580B, KDL-48W590B, KDL-48W600B, KDL-50W800B, KDL55W790B, KDL-55W800B, KDL-55W950B, KDL-60W630B, KDL-60W640B, KDL-

60W650B, KDL—60W840B, KDL-60W850B, KDL-70W840B, and the KDL-70W850B).

3.

Blu-Ray Players, Streaming Media Players, and Set Top Boxes a.


Straight Path proposes to treat the Sony BDP-S790 as representative of all alleged “Sony Blu-ray Player, Streaming Media Player, and Set Top Box Accused Products.” Further, Straight Path alleges that the BDP-S790 infringes the asserted patents because it “includes streaming

media applications, including at least Netflix, YouTube, Sony Video Unlimited, Sony Music Unlimited and Bravia Internet Video.”

There are numerous problems with Straight Path’s proposal. First, the catch-all reference to “streaming media applications” violates Ground Rule 6(d) for the reasons discussed above in Section A. Similarly, referencing “Bravia Internet Video” is inappropriate if Straight Path is attempting to use it as a shortcut to capture streaming media

applicationss other than Netflix, YouTube, Sony Video Unlimited, and Sony Music Unlimited. (The Sony Respondents do not object to the “Bravia Internet Video” reference, however, if Straight Path intends it to reference functionality relevant to Netflix, YouTube, Sony Video Unlimited, and Sony Music Unlimited.)

Further, Netflix, YouTube, Sony Video Unlimited, and Sony Music Unlimited are not

fully preinstalled on any Sony Blu-ray products at the time of importation or sale following importation.

5 The Sony Respondents identified such applications in response to Straight Path’s discovery requests. _S_e_e Sony_SP-ITC_0796594 (referenced in the Sony Respondents’ Supplemental Response to Straight Path’s Interrogatory No. 28). However, Straight Path elected not to list specific applications other than Netflix, YouTube, Video Unlimited, and Music Unlimited.

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