Realtime Adaptive Streaming LLC

Patent Trials and Appeals Board

Jun 15, 2020

IPR2018-01817 (P.T.A.B. Jun. 15, 2020)

Trials@uspto.gov Paper 37
571-272-7822 Entered: June 15, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

NETFLIX, INC.,
Petitioner,

v.

REALTIME ADAPTIVE STREAMING LLC,
Patent Owner.

IPR2018-01817
Patent 9,762,907 B2

Before GREGG I. ANDERSON, GARTH D. BAER, and
KAMRAN JIVANI, Administrative Patent Judges.
ANDERSON, Administrative Patent Judge.

DECISION
Denying Petitioner’s Request on Rehearing of Final Written Decision
37 C.F.R. § 42.71(d)

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Patent 9,762,907 B2
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I. INTRODUCTION
Petitioner filed a Request for Rehearing (“Request,” “Req. Reh’g,”
Paper 36) of our Final Written Decision (“Decision” “Dec.,” Paper 35)
cancelling claims 1–14 of U.S. Patent No. 9,762,907 B2 (“the ’907 patent,”
Ex. 1001). Petitioner contends that our Decision “includes several errors
that the Board misapprehended or overlooked that were critical to its
invalidity findings.” Req. Reh’g 1. For the reasons stated below,
Petitioner’s Request is denied.
II. STANDARD OF REVIEW
The applicable standard for a request for rehearing of a Final Written
Decision is set forth in 37 C.F.R. § 42.71(d), which provides that a request
for rehearing “must specifically identify all matters the party believes the
Board misapprehended or overlooked, and the place where each matter was
previously addressed in a motion, an opposition, or a reply.” The party
challenging a decision bears the burden of showing the decision should be
modified. 37 C.F.R. § 42.71(d) (2018).
III. BACKGROUND
A. The ’907 Patent
The ’907 patent describes a system that “provide[s] bandwidth
sensitive data compression.” Ex. 1001, 8:4–5. The system selects
compression routines using a “controller for tracking the throughput of the
system and generating a control signal to select a compression routine based
on the system throughput.” Id. at 8:8–13. When the throughput of the
system falls below a predetermined threshold, the system generates control
signals to enable/disable different compression algorithms. Id. at 10:60–64.
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B. Illustrative Claim
The Request focuses its arguments on claim 1, the only independent
claim of the ’907 patent. See, e.g., Req. Reh’g 1 (limitation 1[d]1 of claim
1). Claim 1 is reproduced below.
1. A system comprising:
[1[a]] one or more different asymmetric data compression
algorithms,

[1[b]] wherein each algorithm of the one or more different
asymmetric data compression algorithms utilizes one or more
asymmetric data compression routines of a plurality of
different asymmetric data compression routines,

[1[c]] wherein a first asymmetric data compression routine of
the plurality of different asymmetric data compression
routines is configured to produce compressed data with a
higher data rate for a given data throughput than a second
asymmetric data compression routine of the plurality of
different asymmetric data compression routines; and

[1[d]] a processor configured:

to analyze one or more data parameters from one or more
data blocks containing video data, wherein at least one
data parameter relates to an expected or anticipated
throughput of a communications channel; and

1[e] to select two or more different data compression
routines from among a plurality of different data
compression routines based upon, at least in part, the one

1 Petitioner identifies limitations by a format where the claim number is
followed by limitations designated by bracketed letters. See, e.g., Pet. 18
(limitation 1[b]). We adopted this format in the Decision. Dec. 6 n.4.
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or more data parameters relating to the expected or
anticipated throughput of the communications channel.
Ex. 1001, 20:49–21:6.
C. Procedural Background
Petitioner asserted three grounds of unpatentability in its Petition. See
Paper 2, 3 (“Pet.”); Dec. 8. In the Decision, we determined that Petitioner
had shown each challenged claim to be unpatentable. Dec. 13–39. The
Request for Rehearing specifically contests our finding of unpatentability for
claims 1–4 and 6–14. See Req. Reh’g 13; see also Dec. 8; id. at 13–29
(analysis of Ground 1 relating to claims 1–4 and 6–14). All of Patent
Owner’s arguments relate to whether certain limitations of claim 1 are taught
or suggested by Pauls. See, e.g., Req. Reh’g 14.
IV. ANALYSIS
The issues presented in the Request are summarized below and are
followed by an analysis of each issue. See Sections IV.B–IV.D below.
A. Summary of Arguments Presented
Patent Owner identifies three determinations from the Decision that it
contends merit granting the Request. Patent Owner first alleges that we
overlooked the argument that limitation 1[d], reciting in part, “to analyze
one or more data parameters from one or more data blocks,” is not taught by
Pauls’s files because the alleged data parameter, USER ID, does not lie in
and therefore is “not ‘from’ the file.” Req. Reh’g 2–3. Second, for
limitation 1[e], which recites, in part, “select two or more different data
compression routines from among a plurality of different data compression
routines,” Patent Owner argues the Decision relied on a new “sequential
selection” theory to teach limitation 1[e] and not the “concurrent access”
theory advanced in the Petition. Id. at 3–9. For its third argument, Patent
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Owner contends the User ID “data parameter[s]” in limitation 1[e] must be
the same User ID recited in limitation 1[d]. Id. at 9–12. We address each
argument in turn below.
B. “to analyze one or more data parameters
from one or more data blocks” (Limitation 1[d])
Patent Owner argues that the Patent Owner Response presented an
argument “that Limitation 1[d] requires the data parameter to be ‘from,’ i.e.,
contained within, the data block.” Req. Reh’g 2 (citing Paper 18 (“PO
Resp.”), 19). Patent Owner argues the Decision erroneously failed to
consider this argument. Id. at 2–3 (citing Dec. 19–20). Patent Owner
acknowledges that this argument was part of an unused demonstrative that
included an “incomplete citation.” Id. at 3 n.1 (citing Dec. 19–20).
In the Petition, Petitioner advanced two alternative teachings from
Pauls relating to the claimed “data blocks” of limitation 1[d]. Pet. 24 (citing
Ex. 1004 ¶¶ 8, 19; Ex. 1003 (“Storer Declaration”) ¶¶ 131–133). Petitioner
alleged that a person of ordinary skill
would have understood that Pauls’ bit stream[2] or file containing
video data meets the claim limitation of “one or more data blocks
containing video data” because a bit stream or file is a “unit of
data each comprising more than one bit,” and the bit stream or
file represents video data.

Id. at 25 (citing Ex. 1003 ¶ 132) (emphases added). In other words, either
Pauls’s bitstream or its files are Petitioner’s evidence for “data blocks.”

2 Unless quoting from a paper, we use Pauls’s spelling of the term
“bitstream,” rather than the alternative spelling “bit stream.” See, e.g.,
Ex. 1004 ¶ 8.

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In its Response, Patent Owner recognized “two possibilities from
Pauls are offered for what a ‘data block’ is in the context of Claim 1, namely
a ‘bit stream’ or a ‘file.’” PO Resp. 15 (citing Ex. 2001 (“Zeger
Declaration”) ¶ 52). Patent Owner also separately argued the “bitstream”
and “file” alternatives. Id. at 16–17 (bitstream), 17–19 (files). In the section
addressing the “file” alternative, Patent Owner argued that “the User ID does
not lie in the file, and thus the user ID is not ‘from’ the file, which is the
alleged data block.” Id. at 19. Patent Owner, however, made no such
argument in the section addressing the “bitstream” alternative. Id. at 16–17.
In its Sur-reply, Patent Owner similarly made the “from the data block”
argument in the section addressing the “file” alternative but not the section
addressing the “bitstream” alternative. Paper 25 (“Sur-reply”), 5–9.
Our analysis of limitation 1[d] in the Decision was separated into two
sections. Dec. 15–24. The first section, which included an analysis of the
arguments of both parties about bitstream, found that Pauls teaches “data
blocks.” Dec. 15–18; see also id. at 11 (adopting Patent Owner’s
construction of “data block”).
The second section of the Decision analyzed the part of limitation 1[d]
that recites “a processor . . . to analyze one or more data parameters . . .
wherein at least one data parameter relates to an expected or anticipated
throughput of a communications channel.” Dec. 18–20. The Decision
found that “Petitioner has sufficiently shown that the USER ID is a data
parameter relating to ‘expected or anticipated throughput’ in a bitstream
transmission.” Id. at 19 (emphasis added). In making this finding, we
summarized Patent Owner’s arguments and distinguished them from our
finding. Id. Specifically, we explained that Patent Owner’s arguments
“[we]re directed to Pauls’s transmitting files and not to bitstream
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transmission.” Id. (citing Sur-reply 5–6). The Decision relied on Patent
Owner’s acknowledgement “that USER ID shown in Figure 2 of Pauls as
part of the bitstream teaches the limitations in question.” Id. (citing Tr.
49:10–19) (emphasis added). Because we relied on the bitstream alternative,
the Decision did not need to, and did not, make any determination as to the
files alternative.
Patent Owner’s assertion in the Request that it previously raised the
argument that the data parameter must be “‘from,’ i.e., contained within, the
data block” is flawed because Patent Owner’s Response and Sur-reply did
not make this argument for the bitstream alternative relied on in the
Decision. Req. Reh’g 2; see PO Resp. 16–17; Sur-reply 6–9. Contrary to
what is asserted in the Request, the “from the data block” argument was only
made with respect to the files alternative, upon which the Decision did not
rely. Dec. 19 (citing PO Resp. 17–19; Sur-reply 5–6 (both discussing the
“files” alternative)). Indeed, the Response agreed that the USER ID is a data
parameter “[b]ut this cannot be the case for Pauls’s files.” PO Resp. 19
(emphasis added). Patent Owner did not dispute that the bitstream
alternative teaches that USER ID is a data parameter that “relates to an
expected or anticipated throughput of a communications channel.” Dec. 19
(quoting Tr. 49:10–19).
The Decision’s analysis of limitation 1[d] rested on the bitstream
alternative and not the files alternative taught by Pauls. See Dec. 15–24. As
discussed above, in its Response and Sur-reply filed during trial, the Patent
Owner did not dispute our determination that Pauls’s bitstream taught “data
blocks.” To the extent the Request now argues that “from the data block” is
not disclosed by Pauls’s bitstream disclosure, we do not consider arguments
made for the first time in a request for rehearing. The Decision did not
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overlook or misapprehend the “from the data block” argument because the
argument was not made with respect to the bitstream alternative of Pauls.
C. “select two or more different data compression routines from among a
plurality of different data compression routines” (Limitation 1[e])
The second argument that Patent Owner makes in the Request relates
to limitation 1[e]. Patent Owner asserts the Decision relies on a new
“sequential access/selection” theory and not the “concurrent access” theory
advanced in the Petition for limitation 1[e]. Req. Reh’g 3–9.
The Request includes the following edited excerpt from the Decision:
We need not address “concurrent use” in detail because it is not
part of limitation 1[e] . . . . The Storer Declaration uses
“concurrent use” as terminology for accessing the same data but
nonetheless relies on Pauls to teach the recited limitation. . . .
Because we analyze limitation 1[e] based on its plain and
ordinary meaning, Petitioner’s argument that the claim does not
require “concurrent access to the same data by multiple users” is
not a new obviousness theory presented for the first time in the
Reply, as Patent Owner contends. See Sur-reply 9–10. Petitioner
has remained steadfast since filing the Petition that Figure 4 of
Pauls identifies different users that select different transcoders,
or “data compression routines,” to select data types.
Req. Reh’g 4 (quoting Dec. 23). Patent Owner alleges the preceding was
error “because the Petition’s entire theory for Limitation 1[e] depends on
Pauls providing ‘concurrent access to the same data by multiple users’ and
provides no other theory.” Id.
We are not persuaded by Patent Owner’s argument. Neither the
Decision nor the Petition relied on any concurrent access theory. The
Petition included argument and supporting evidence that a person of
ordinary skill “would select suitable compression techniques for each
connected user.” Pet. 27 (citing Ex. 1003 ¶ 136). The Petition also cited
Pauls’s Figure 4 as showing different users selecting different “transcoders,”
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to disclose the claimed “different data compression routines.” Id. at 27–28
(citing Ex. 1004 ¶ 20, Fig. 4; Ex. 1003 ¶ 134–136). The Decision relied on
the preceding from the Petition and found that Pauls teaches selection of
“two or more compression routines from among a plurality of different data
compression routines.” Dec. 20.
The Decision found that “neither party has proposed a construction
that requires ‘concurrent use.’” See Dec. 23 (citing Paper 20 (“Reply”), 6–7
n.4 (“The claim does not mention any concurrent or sequential
requirement.”)). Patent Owner’s excerpt from the Decision accurately states
that “concurrent access” is not a part of limitation 1[e] but fails to state that
neither party proposed a construction of limitation 1[e], let alone a
construction that included “concurrent.” Compare Req. Reh’g 4, with Dec.
23. The Decision found that the Petition proceeded on plain and ordinary
meaning without express construction. Dec. 23.
In sum, we are not persuaded that the excerpt represents error. The
Decision correctly determined that express construction of limitation 1[e]
was unnecessary. Patent Owner has never argued a construction of
limitation 1[e] based on “concurrent access.” We proceeded on the plain
meaning of the claim language. Dec. 23. Patent Owner cannot now argue a
construction of limitation 1[e] requiring “concurrent access.” Patent Owner
has not pointed to anything that we misapprehended or overlooked.
Moreover, we are not persuaded by Patent Owner’s assertion that the
Petition relied on “concurrent access” by multiple users to teach limitation
1[e]. See Req. Reh’g 5–7. Although Petitioner and Dr. Storer both used the
term “concurrent access” in describing what Pauls teaches, Petitioner’s
“entire theory” is not based on “concurrent access.” Id. at 5; see also Pet. 27
(citing Ex. 1003 ¶ 134) (using the term “concurrent access” with respect to
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limitation 1[e]). Rather, as detailed above, the Decision relied on the plain
and ordinary meaning of limitation 1[e] and the teachings of Pauls as
identified in the Petition. Dec. 23 (citing Pet. 27–28 (citations omitted)).
In addition, we are not persuaded that “sequential selection” is a new
theory. Req. Reh’g 7–9. First, our Decision is not based on “sequential
selection,” but rather the plain and ordinary meaning of limitation 1[e] and
Petitioner’s argument and evidence at pages 27 and 28 of the Petition. Dec.
23.
Second, Patent Owner raised the sequential argument in its Response
when it contended that Pauls “discloses a sequential system that may support
multiple users, but there is no suggestion that it supports transcoding the
same data for multiple users at the same time.” PO Resp. 23 (citing Ex.
2001 ¶ 76) (emphasis added). Petitioner’s Reply responded to Patent
Owner’s argument that limitation 1[e] is met by either “concurrent” or
“sequential” access. Reply 6. Petitioner correctly pointed out that “[t]he
claim does not mention any concurrent or sequential requirement.” Id. at 6
n.4.
We are not persuaded that the Decision misapprehended or
overlooked any argument with respect to the selection of “two or more
different data compression routines” as recited in limitation 1[e].
D. User ID as “data parameters” in Limitations 1[d] and 1[e]
The Request argues “Limitation 1[e] takes antecedent basis from
Limitation 1[d].” Req. Reh’g 9–10. Patent Owner then argues the “data
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Patent 9,762,907 B2
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parameters” in limitation 1[e] must be the same one recited in limitation
1[d]. Id. at 9–10.3
The Decision found that “Petitioner has sufficiently shown that
[Pauls’s] USER ID is a data parameter relating to ‘expected or anticipated
throughput’ in a bitstream transmission.” Dec. 19. Above we explained
how the second section of the Decision analyzing limitation 1[d] found the
USER ID is a data parameter relating to “expected or anticipated
throughput” in a bitstream transmission. Patent Owner did not dispute this
finding. Id. (citing Tr. 49:10–19).
The Request faults the Decision for finding that limitation 1[e]’s data
parameter is shown by Pauls’s USER ID for the same reasons the Decision
determined that limitation 1[d]’s corresponding recitation was shown. Req.
Reh’g 10 (citing Dec. 23–24). Patent Owner argues:
Limitation 1[e] requires the selection of two or more different
data compression routines to be “based upon” the one or more
data parameters recited in Limitation 1[d]. Thus, any alleged
parameter identified for Limitation 1[e] must also satisfy
Limitation 1[d]. This is an express requirement of the claim
language of Limitation 1[e].
Id. at 11.
This argument does not identify anything that the Decision
misapprehended or overlooked. Limitation 1[d] recites “to analyze one or
more data parameters . . . wherein at least one data parameter relates to an
expected or anticipated throughput of a communications channel”
(emphases added). Limitation 1[e] recites “to select two or more different

3 Patent Owner also argues the data parameter must be “from” the one or
more data blocks. Req. Reh’g 10. This argument was addressed in Section
IV.B above.

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data compression routines . . . based upon, at least in part, the one or more
data parameters relating to the expected or anticipated throughput of the
communications channel” (emphases added). Limitation 1[e] references the
“one or more data parameters” first recited in limitation 1[d]. See Req.
Reh’g 9–10 (acknowledging the antecedent basis for “one or more data
parameters” is limitation 1[d]). The Decision found that Pauls’s USER ID is
the “one or more data parameters” for limitation 1[d]. See Dec. 19. The
Decision found that both limitations 1[d] and 1[e] require “one or more data
parameters,” which must also “relat[e] to an expected or anticipated
throughput of a communications channel.” Id. at 23. For the same reasons
that limitation 1[d] is taught by Pauls’s USER ID, limitation 1[e], the same
data parameter, is also taught. Id. at 23–24.
The Request acknowledges that both limitations 1[d] and 1[e] refer to
the same data parameter. Req. Reh’g 11 (“‘[S]elect two or more routines’
must be based on the same analyzed parameter from the same data blocks.”).
We are not persuaded that different users having different USER IDs to
select different compression routines means the recited “one or more data
parameters” are not “based on the same analyzed parameter.” See id. at
11–12. The claim language requires that the data parameter, USER ID, is
the same. That the data parameter may have different values does not
change the data parameter to another data parameter.
We also are not persuaded by Patent Owner’s argument that the
analyzed parameter must be “from the same data blocks.” See Req. Reh’g
11–12. Limitation 1[d] recites “to analyze one or more data parameters from
one or more data blocks” and does not require the data parameter to be from
any particular data block. Further, as already discussed, Pauls’s bitstream is
the relevant data block. As analyzed above, Patent Owner did not argue that
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the “one or more data parameters” must be “from one or more data blocks”
with respect to Pauls’s bitstream alternative.
Patent Owner further contends that the Decision analyzed limitation
1[e] “in isolation” because we did not find “sequential” or “concurrent”
selection was required. Req. Reh’g 11 (citing Dec. 22–23). As already
discussed above, neither the claims nor the Decision require “sequential” or
“concurrent” selection.
The Decision did not overlook or misapprehend Patent Owner’s
arguments regarding the “data parameter” recited in limitations 1[d] and 1[e]
in finding that limitation 1[e] is taught by Pauls.
E. Patent Owner’s Remaining Arguments
Patent Owner argues the Request should be granted for Ground 2,
under which we held claims 1–4 and 6–14 unpatentable based on Pauls and
Imai. Req. Reh’g 13; see also Dec. 29–36 (Ground 2). No arguments are
made beyond those presented for Ground 1. Id. Patent Owner states the
“Board should correct the errors identified above for Ground 1 and carry
them over to its consideration of Ground 2.” Id. We refer to our prior
analysis for Ground 1.
V. CONCLUSION
Based on the foregoing discussion, we determine that Petitioner has
not demonstrated that we misapprehended or overlooked any matters in the
Final Written Decision as required by 37 C.F.R. § 42.71(d).
VI. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that Petitioner’s Request for Rehearing is denied.

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FOR PETITIONER:
Harper Batt
Chris Ponder
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
hbatts@sheppardmullin.com
cponder@sheppardmullin.com

FOR PATENT OWNER:
Philip X. Wang
Kent N. Shum
Neil A. Rubin
C. Jay Chung
Reza Mirzaie
RUSS AUGUST & KABAT
pwang@raklaw.com
kshum@raklaw.com
nrubin@raklaw.com
jchung@raklaw.com
rmirzaie@raklaw.com