1751892 

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

VOXER, INC. and VOXER IP LLC,

Plaintiffs,

v. 

FACEBOOK, INC. and INSTAGRAM LLC,

Defendants

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Civil Action No. 1:20-cv-00655 [ADA]

Jury Trial Demanded

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT NO. 3 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OF NON-INFRINGEMENT 

OF U.S. PATENT NO. 8,180,030

PUBLIC VERSION

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TABLE OF CONTENTS

Page 

I. INTRODUCTION........................................................................................................... 1

II. UNDISPUTED FACTS................................................................................................... 1

A. The ’030 Patent.................................................................................................... 1

B. The Accused Instrumentalities ............................................................................. 2

1. Rendering Facebook and Instagram Live and “Was-Live” Videos 

on the Viewer’s iOS Device ..................................................................... 2

2. Live Rewind............................................................................................. 4

III. LEGAL STANDARD ..................................................................................................... 7

IV. ARGUMENT .................................................................................................................. 8

A. The Asserted Claim Requirements....................................................................... 8

B. Voxer’s Theory of Infringement........................................................................... 9

C. Undisputed Facts Establish There is No Infringement of Claim 1 and 

Claim 33 ............................................................................................................ 10

1. Scenario One: Was-Live......................................................................... 10

2. Scenario Two: Live Rewind ................................................................... 12

D. Doctrine of Equivalents...................................................................................... 14

E. Dependent Claims.............................................................................................. 15

V. CONCLUSION ............................................................................................................. 15

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TABLE OF AUTHORITIES

Page(s) 

Federal Cases

Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 

811 F.3d 1334 (Fed. Cir. 2016)............................................................................................15

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986)..............................................................................................................7

Jeneric/Pentron, Inc. v. Dillon Co., 

205 F.3d 1377 (Fed. Cir. 2000)..............................................................................................8

Litton Sys., Inc. v. Honeywell, Inc., 

140 F.3d 1449 (Fed. Cir. 1998)..............................................................................................7

Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC, 

739 F.3d 694 (Fed. Cir. 2014)................................................................................................7

Seal-Flex, Inc. v. Athletic Track and Court Constr., 

172 F.3d 836 (Fed. Cir. 1999)................................................................................................7

Texas Instruments, Inc. v. Cypress Semiconductor Corp., 

90 F.3d 1558 (Fed. Cir. 1996)................................................................................................7

Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 

520 U.S. 17 (1997)..............................................................................................................15

Federal Statutes

35 U.S.C. § 112(d)......................................................................................................................8

Rules

Fed. R. Civ. P. 56(c)....................................................................................................................7

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I. INTRODUCTION

Judgment should be entered in Defendants Facebook, Inc. and Instagram LLC’s 

(collectively, “Defendants” or “Facebook”) favor as to Plaintiffs Voxer Inc. and Voxer IP LLC’s

(“Plaintiffs” or “Voxer”) first cause of action because Plaintiffs have not presented any evidence 

upon which a reasonable jury could find that the asserted claims of U.S. Patent No. 8,180,030 

(’030 patent) are infringed.

II. UNDISPUTED FACTS1

 

A. The ’030 Patent 

The ’030 patent is entitled “Telecommunication and multimedia management method and 

apparatus” and issued on May 15, 2012. The patent is directed to a purportedly novel “mode of 

engaging in conversations and/or managing multiple conversations.”2 More specifically, the 

patent purports to claim a system that, among other things, records incoming streaming media at 

a communication device (such as a mobile phone) so that the recipient can either listen to the 

media as it is arriving at the communication device or review a saved copy of the message at a

more convenient time in the future.3

 

The claims recite streaming media being “progressively and persistently” stored on and 

streamed from a transmitting device.4 Streaming media is also “progressively and persistently” 

stored on and rendered on a receiving device.5 The incoming streaming media on the receiving 

device must be capable of being rendered “for the first time” in both a “real-time mode” and in a 

1 All exhibit citations are to the Declaration of Sean M. Arenson, filed concurrently herewith.

2 Ex. A (’030 Patent) at 4:1-2. 

3 Id. at 4:6-10. 

4 See, e.g., Ex. A, Claims 1 & 33. 5 Id. 

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“time-shifted mode.”6 The streaming media that is rendered in a time-shifted mode must be 

retrieved and rendered “from persistent storage.”7

 

B. The Accused Instrumentalities 

Facebook Live and Instagram Live are live streaming video services available to users of 

the Facebook and Instagram mobile and web applications. The services are free to all Facebook 

users and allow them to share live video on the Facebook and Instagram platforms. When Voxer 

first filed suit, it accused the Facebook and Instagram iOS, Android, and web services of 

infringing the ’030 patent.

8 But after discovery closed, Voxer narrowed its claims of 

infringement to the Facebook and Instagram iOS mobile applications only.9 

1. Rendering Facebook and Instagram Live and “Was-Live” Videos on the 

Viewer’s iOS Device 

Broadcasters of Facebook Live and Instagram Live videos have the option of saving a 

version of their live broadcasts to Facebook and Instagram servers so that they can be watched in 

the future. Live broadcasts are referred to as “is-live” video and videos viewable on demand that 

were previously live are referred to as “was-live” video. The parties do not dispute how is-live 

and was-live videos are transmitted to and watched on a viewer’s iOS device.10 

6 Id.

7 Id.

8 Complaint ¶ 53. 

9 Ex. B (Opening Expert Report of Michael Mitzenmacher, Ph.D. (hereinafter, “Mitzenmacher 

Opening Rpt.”)), ¶¶ 344-345. 

10 Compare Ex. B (Mitzenmacher Opening Rpt.) ¶¶ 281-284 with Ex. C (Rebuttal Report of 

Defendants’ Expert Dr. Kevin Jeffay (hereinafter, “Jeffay Rebuttal Rpt.”)) ¶¶ 162-167 and 

¶¶ 228-236. 

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to as “Live Rewind,” and it was first made available to some viewers on iOS devices for some 

live broadcasts starting in 2018.21 Live Rewind is not available on Instagram Live.22

Live Rewind is available only in limited circumstances. From the broadcaster’s 

perspective, Live Rewind cannot be enabled on any broadcasts made through a mobile device—

including iOS devices.23 Instead, only Facebook Live broadcasts made through a desktop or 

laptop computer using Facebook’s Live Producer platform (available on the www.facebook.com 

site) can have Live Rewind functionality enabled and, even then, only at the broadcasting user’s 

election.24 Even then, Live Rewind is only available for viewers that view the live broadcast 

A. Yes.”); Ex. F (Loh Dep. Tr.) at 198:8-12 (“Q. What is Live Rewind? . . . THE WITNESS: 

Live Rewind is a product feature to allow the viewer to scroll back in time to places that the 

viewer is interested to watch.”).

21 Ex. G (FBVOX00037479). 

22 Ex. D (Vaidya Dep. Tr.) at 66:3-5 (“Q. Is Live Rewind available for Instagram Live? A. No.”); 

Ex. E (Pei Dep. Tr. of J. Pei) at 63:20-64:11 (“Q. Let’s go back to the scenario where a user with 

the Instagram iOS app has clicked on a live video and they are -- they are currently viewing a 

live -- an Instagram Live video. Do you have that scenario in mind? A. Yes. . . . Q. Can they 

rewind the video? A. No. They cannot rewind the video.”); id. at 64:20-21 (“Q. Can a user fast 

forward a live video? A. Hmmm. No. A user cannot.”).

23 Ex. H (Defendants’ Response to Request for Admission No. 24 (July 22, 2021)); Ex. D 

(Vaidya Dep. Tr.) at 63:5-10 (“Q. Okay. Is the default when a Facebook user broadcasts a 

Facebook Live video from a mobile device that viewers can rewind the live video? A. The -- no. 

The Facebook Live broadcasts broadcasted through mobile devices are not eligible for Live 

Rewind.”); id. at 63:15-22 (“A. . . . Live Rewind is only eligible for videos broadcasted through 

Live Producer where the broadcaster has chosen to allow the videos to be live rewindable. Q. 

You believe that videos that are broadcasted from a mobile device do not have Live Rewind 

enabled; is that accurate? A That is accurate.”); id. at 64:3-4 (“Videos broadcasted through a 

mobile device are not live rewindable.”); id. at 64:11-17 (“Q. It's your testimony that a broadcast 

would have to go through Live Producer in order for Live Rewind to be enabled; is that 

accurate? A. Broadcaster will have -- that is correct. Broadcaster will have to go through the Live 

Producer and not disable Live Rewind functionality for that video to be Live-Rewind-eligible.”).

24 Ex. H (Defendants’ Response to Request for Admission No. 24 (July 22, 2021)); Ex. D

(Vaidya Dep. Tr.) at 63:5-10 (“Q. Okay. Is the default when a Facebook user broadcasts a 

Facebook Live video from a mobile device that viewers can rewind the live video? A. The -- no. 

The Facebook Live broadcasts broadcasted through mobile devices are not eligible for Live 

Rewind.”); id. at 63:15-22 (“A. . . . Live Rewind is only eligible for videos broadcasted through 

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from a device that supports Live Rewind.25

 

Live Producer where the broadcaster has chosen to allow the videos to be live rewindable. Q. 

You believe that videos that are broadcasted from a mobile device do not have Live Rewind 

enabled; is that accurate? A. That is accurate.”); id. at 64:3-4 (“Videos broadcasted through a 

mobile device are not live rewindable.”); id. at 64:11-17 (“Q. It's your testimony that a broadcast 

would have to go through Live Producer in order for Live Rewind to be enabled; is that 

accurate? A. Broadcaster will have -- that is correct. Broadcaster will have to go through the Live 

Producer and not disable Live Rewind functionality for that video to be Live-Rewind-eligible.”).

25 Ex. H (Defendants’ Response to Request for Admission No. 24 (July 22, 2021)); Ex. D 

(Vaidya Dep. Tr.) at 63:5-10 (“Q. Okay. Is the default when a Facebook user broadcasts a 

Facebook Live video from a mobile device that viewers can rewind the live video? A. The -- no. 

The Facebook Live broadcasts broadcasted through mobile devices are not eligible for Live 

Rewind.”); id. at 63:15-22 (“A. . . . Live Rewind is only eligible for videos broadcasted through 

Live Producer where the broadcaster has chosen to allow the videos to be live rewindable. Q. 

You believe that videos that are broadcasted from a mobile device do not have Live Rewind 

enabled; is that accurate? A. That is accurate.”); id. at 64:3-4 (“Videos broadcasted through a 

mobile device are not live rewindable.”); id. at 64:11-17 (“Q. It's your testimony that a broadcast 

would have to go through Live Producer in order for Live Rewind to be enabled; is that 

accurate? A. Broadcaster will have -- that is correct. Broadcaster will have to go through the Live 

Producer and not disable Live Rewind functionality for that video to be Live-Rewind-eligible.”).

26 Ex. H (Defendants’ Response to Request for Admission No. 24 (July 22, 2021)). 

27 Ex. H (Defendants’ Response to Request for Admission No. 24 (July 22, 2021)). 

28 Ex. C (Jeffay Rebuttal Rpt.) ¶ 154; Ex. D (Vaidya Dep. Tr.) at 72:4-6, 97:13-98:4. 

29 Ex. C (Jeffay Rebuttal Rpt.) ¶ 154; Ex. D (Vaidya Dep. Tr.) at 72:4-6, 97:13-98:4. 

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III. LEGAL STANDARD

Summary judgment is appropriate if “there is no genuine dispute as to any material fact” 

and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A genuine 

issue of material fact exists only “if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“[T]he mere existence of some alleged factual dispute between the parties will not defeat an 

otherwise properly supported motion for summary judgment; the requirement is that there be no 

genuine issue of material fact.” Id. at 247–48 (emphases in original).30 

To prove infringement, the patent owner “must supply sufficient evidence to prove that 

the accused product or process contains, either literally or under the doctrine of equivalents, 

every limitation of the properly construed claim.” Seal-Flex, Inc. v. Athletic Track and Court 

Constr., 172 F.3d 836, 842 (Fed. Cir. 1999). “Literal infringement requires that the accused 

device contain each limitation of the claim exactly; any deviation from the claim precludes a 

finding of literal infringement.” Litton Sys., Inc. v. Honeywell, Inc., 140 F.3d 1449, 1454 (Fed. 

Cir. 1998). 

To prove infringement under the doctrine of equivalents, the patent holder must provide 

“particularized testimony and linking arguments as to the ‘insubstantiality of the differences’ 

between the claimed invention and the accused device or process . . . on a limitation-bylimitation basis.” Texas Instruments, Inc. v. Cypress Semiconductor Corp., 90 F.3d 1558, 1567 

(Fed. Cir. 1996); see also Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC, 739 F.3d 

694, 700 (Fed. Cir. 2014) (explaining that an “alternate formulation focuses on whether the 

30 Unless otherwise noted, all emphases are added, and internal quotation marks and citations 

omitted.

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[d] a rendering module configured to provide rendering 

options to selectively render the received streaming 

media, for the first time, in both a real-time mode as 

the streaming media is received over the network 

and in a time-shifted mode by retrieving and

rendering the retrieved streaming media from 

persistent storage. 

[d] selectively rendering, for the first time, the 

received streaming media using one of two 

rendering options, the two rendering options 

including both (i) a real-time mode as the streaming 

media is received over the network and (ii) a timeshifted mode by retrieving and rendering the 

retrieved streaming media from persistent storage.

Claim element 1[c] requires an application’s network receive and storage modules to 

cooperate “to progressively and persistently store streaming media received over the network 

from a remote communication device as the streaming media is received.” In turn, claim element 

1[d] requires a rendering module “configured to provide rendering options to selectively render 

the received streaming media, for the first time, in both a real-time mode . . . and in a timeshifted mode.” “The received streaming media” of claim element 1[d] has as its antecedent basis 

the “progressively and persistently store[d] streaming media received over the network from a 

remote communication device” of claim element 1[c]. Accordingly, claim element 1[d] requires 

that the rendering module be configured to render the particular “received streaming media” that 

has been “progressively and persistently stored” on the recipient’s communication device for the 

first time in both the claimed real-time mode and the claimed time-shifted mode. Independent 

claim 33 has similar requirements in the form of a method claim. As applied to the accused 

products in this case, Voxer must establish that received streaming media associated with 

Facebook Live and Instagram Live videos can be rendered for the first time in both a real-time 

mode and in a time-shifted mode.

B. Voxer’s Theory of Infringement 

Voxer asserts that claim elements 1[d] and 33[d] are satisfied in two separate scenarios: 

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That same received streaming media cannot be rendered in a “real-time 

mode,” as both a logical and a technical matter. Therefore, the Facebook and Instagram iOS 

Apps are not “configured to provide rendering options to selectively render the received 

streaming media, for the first time, in both a real-time mode . . . and in a time-shifted mode.”35 

To illustrate this point, consider the “was-live” scenario, which Voxer describes as 

follows: “[a] user can select th[e] option to view a video for the first time in a time-shifted mode 

by, for example, waiting for a Live video to conclude and then starting to view the was-live 

version instead of joining the video while it is still live.”36 Even in this scenario, when

hypothetical users “start to view the was-live version,” 

Streaming media that is “received” and “stored” only after a corresponding 

live broadcast has concluded cannot be rendered “for the first time” in “a real-time mode”—

doing so is both a logical and technical impossibility. In other words, the received streaming 

media of was-live videos can be rendered for the first time only in a time-shifted mode.

Likewise, 

the received streaming 

media of is-live videos can be rendered for the first time only in real-time mode. 

Voxer does not dispute that is-live and was-live videos are not rendered from the same 

stored media.37 Instead, it asserts that “the retrieved streaming media” referenced in claim 

35 Ex. A (’030 patent) Claim 1[d]. 

36 Ex. B (Mitzenmacher Opening Rpt.) ¶ 392.

37 Ex. B (Mitzenmacher Opening Rpt.) ¶ 402. 

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element 1[d] is “the video, whether in is-live or was-live format, and regardless of what time the 

data for the video was downloaded.”38 But Voxer cites no support for this position39 and it rests 

upon a construction of “the received streaming media” that is contrary to the plain language of 

claim elements 1/33[c] and 1/33[d]. As noted above, “the received streaming media” of claim 

elements 1[d] and 33[d] have as their antecedent basis the streaming media referenced in claim 

elements 1[c] and 33[c], respectively. Accordingly, claim elements 1[d] and 33[d] cannot be 

satisfied by retrieving and rendering any version of a video, wherever it may reside. Rather, 

claim elements 1[d] and 33[d] require that, for the specific “progressively and persistently 

store[d] streaming media received over the network from a remote communication device” 

referenced in claim element 1[c], both claimed rendering modes (real-time and time-shifted 

modes) must be available for the first time. As even Voxer acknowledges, the Facebook and 

Instagram iOS Apps do not function in that manner because the received streaming media of an 

is-live video cannot be rendered for the first time in a time-shifted mode, and the received 

streaming media of a was-live video cannot be rendered for the first time in a real-time mode.

40

Received and stored streaming media can be rendered, at most, in one mode or the other, but not 

both. Therefore, neither the Facebook nor Instagram App for iOS devices practices claim 

elements 1[d] and 33[d]. 

2. Scenario Two: Live Rewind

The situation is no different for the Live Rewind scenario.

41 In that scenario, too, the 

received and stored streaming media of claim elements 1[c] and 33[c] cannot be rendered, as it 

38 Id. 39 Id. 40 Ex. B (Mitzenmacher Opening Rpt.) ¶ 402. 41 Voxer never asserted that Live Rewind infringed any of the Asserted Claims in its 

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must under claim elements 1[d] and 33[d], “for the first time, in both a real-time mode as the 

streaming media is received over the network and in a time-shifted mode by retrieving and 

rendering the retrieved streaming media from persistent storage.”42 When a user rewinds a video 

such that they are viewing portions of the video behind the live head, 

As previously explained, streaming media that 

is not received and stored by the viewer’s device until after it is no longer live cannot be 

rendered in a “real-time mode.” In that case, there is no option to render the received streaming 

media in both claimed modes. Alternatively, if the viewer rewinds to a portion of an ongoing 

Facebook Live broadcast that they have already viewed, 

In that instance, however, the purported “time-shifted” rendering is necessarily of media 

that has already been rendered in a real-time mode—that is, live. Therefore, it is still not 

possible to render the received streaming media “for the first time, in both a real-time mode as 

the streaming media is received over the network and in a time-shifted mode by retrieving and 

rendering the retrieved streaming media from persistent storage.”43 Because any streaming media 

retrieved and rendered from storage on the receiving device has necessarily already been 

rendered live, that received streaming media cannot be rendered for the first time in a timeshifted mode. 

infringement contentions. Consequently, Defendants are simultaneously moving to strike 

Voxer’s infringement theories concerning Live Rewind as they apply to the ’030 patent. 42 Ex. A (’030 patent) Claim 1[d]. 

43 Id.

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Indeed, neither in its discovery response nor its expert’s report (the relevant portions of which 

are provided above) does Voxer address how anything Facebook Live or Instagram Live does is 

equivalent to the requirement for rendering “for the first time” “the received streaming media” in 

both a real-time and time-shifted mode. 

It is black letter law that “[u]nder the doctrine of equivalents, an infringement theory . . . 

fails if it renders a claim limitation inconsequential or ineffective.” Akzo Nobel Coatings, Inc. v. 

Dow Chem. Co., 811 F.3d 1334, 1342 (Fed. Cir. 2016). This vitiation doctrine ensures the 

application of the doctrine of equivalents does not “effectively eliminate [a claim] element in its 

entirety.” Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 29 (1997). But 

Voxer has, in effect, vitiated the “for the first time” requirement as it applies to “the received 

streaming media” in the asserted claims. 

Because Voxer failed to produce any evidence or expert opinions establishing

how the inability to view streaming media in both of the two claimed rendering modes in the first 

instance is “substantially the same” as the absence of that ability, the Facebook and Instagram 

iOS Apps do not achieve substantially the same result as claim element 1[d]. Summary judgment 

of non-infringement on any doctrine of equivalents theory must be entered for Defendants.

E. Dependent Claims 

Because neither Facebook Live nor Instagram Live infringe independent claims 1 and 33, 

neither do they infringe either of the asserted dependent claims—16 and 47. Consequently, 

Defendants are entitled to summary judgment of non-infringement on those claims as well. 

V. CONCLUSION

For the foregoing reasons, Defendants respectfully request summary judgment of noninfringement of the ’030 patent be entered as to both Scenarios One (was-live) and Two (Live 

Rewind) of Voxer’s infringement theories. 

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October 18, 2021 Respectfully submitted,

By: s/ Paven Malhotra

Christa M. Anderson

canderson@keker.com 

David J. Silbert

dsilbert@keker.com 

Eugene M. Paige

epaige@keker.com

Matthew W. Werdegar

mwerdegar@keker.com

Paven Malhotra

pmalhotra@keker.com 

KEKER, VAN NEST & PETERS LLP

633 Battery Street

San Francisco, CA 94111

Tel: 415-391-5400 

Michael E. Jones

SBN: 10929400

Patrick C. Clutter

SBN: 24036374

POTTER MINTON, PC

110 North College, Suite 500

Tyler, Texas 75702

Tel: 903-597-8311 

Fax: 903-593-0845 

mikejones@potterminton.com 

patrickclutter@potterminton.com

Attorneys for Defendants

FACEBOOK, INC. and INSTAGRAM LLC

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CERTIFICATE OF SERVICE

I hereby certify that all counsel of record who have consented to electronic service are 

being served with a copy of this document via electronic mail on October 18, 2021. 

I also hereby certify that all counsel of record who have consented to electronic service 

are being served with a notice of filing of this document, under seal, pursuant to L.R. CV-5(a)(7)

on October 18, 2021. 

/s/ Paven Malhotra 

Paven Malhotra

CERTIFICATE OF AUTHORIZATION TO FILE UNDER SEAL

I certify that the foregoing document is authorized to be filed under seal pursuant to the 

Protective Order in this case and Judge Albright’s Standing Order Regarding Filing Documents 

Under Seal in patent Cases and Redacted Pleadings. 

/s/ Paven Malhotra 

Paven Malhotra

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