Apple's Weakness In Its Position On The Storage of a Time Compression Multiplexing-type compressed signal

Apple claims in its brief that storage in TCM can take place before or after compression, but it fails to cite a single instance where storage occurs after compression. (Apple Br. at 26-27). The only example that Apple provides involves tape recording the audio output of a phonograph played at a higher speed (45 rpm) than the normal playback speed (33 rpm). Apple makes no effort, however, to tie its example to the TCM literature it cites.

Moreover, Apple's example speaks volumes about the weakness of its position on the storage of a TCM-type compressed signal. The example is entirely removed from the context of the claims. The signal stored and played in the hypothetical is an analog signal; it does not involve the storage or transmission of a digital signal. The Burst patent claims, however, involve
digital storage, either because of express claim limitations or because of the type of storage required. See, e.g., "995 claim 1 (requiring random access storage, which is digital storage); *705 claim 1 (the stored time compressed representation is digital); '932 claim 4 (storage is on magnetic disks); see also '995 Patent, 2:13-17, 2:59-3:2, 4:23-27, 9:55-59; 1st Payne Decl., Exh. 9 ('995 PH, March 12, 1990 Amendment), at 19-20; Brown Decl., Exh. U, at APBU 415366-68. Apple's example uses analog storage - a record and a tape recorder. The effect of TCM-type compression is lost when the signal is stored digitally. Because Apple's example neither transmits nor digitally stores a compressed representation, it only serves to highlight the problems raised by the claimed sequence in Apple's time compression world.

For these reasons, one skilled in the art would not believe the Burst claims require TCM.

(Footnote 16) Apple's expert was stumped at his deposition by this out-of-order sequence relative to the claims. Mr. Halpem testified that he had not performed any analysis to determine if Apple's position on "time compressed representation" made any technical sense in the context of the claimed sequence. 2d Payne Dec!., Exh. 32 (Halpem Depo. Tr.), at 121-127.