Realtime Adaptive Streaming, LLC

Patent Trials and Appeals Board

Jul 15, 2020

IPR2019-00209 (P.T.A.B. Jul. 15, 2020)

Trials@uspto.gov Paper No. 32
571-272-7822 Entered: July 15, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

NETFLIX, INC., and COMCAST CABLE COMMUNICATIONS, LLC,
Petitioner,

v.

REALTIME ADAPTIVE STREAMING LLC,
Patent Owner.
_______________

IPR2019-002091
Patent 7,386,046 B2
_______________

Before GEORGIANNA W. BRADEN, GREGG I. ANDERSON, and
CHRISTA P. ZADO, Administrative Patent Judges.

BRADEN, Administrative Patent Judge.

DECISION
Denying Petitioner’s Request for Rehearing
37 C.F.R. § 42.71

1 Comcast Cable Communications, LLC, which filed a petition in IPR2019-
01280, has been joined as a party to this proceeding.
IPR2019-00209
Patent 7,386,046 B2

2
I. INTRODUCTION
Netflix, Inc., (“Petitioner”) timely filed a Request for Rehearing under
37 C.F.R. § 42.71(d) on June 18, 2020. Paper 31 (“Req. Reh’g”).
Petitioner’s Request for Rehearing seeks reconsideration of our Final
Written Decision (Paper 30, “Decision”) entered on May 26, 2020.
Petitioner disagrees with the Decision due to alleged errors in (1) the
obviousness analysis of Couwenhoven, (2) not accepting Dr. Storer’s
testimony as establishing obviousness under the KSR framework, (3) failing
to find a motivation to replace Imai’s rate control system with
Couwenhoven’s teachings, and (4) requiring proof that Couwenhoven’s
teachings were superior to Imai’s teachings. Reh’g Req. 1.
For the reasons provided below, we deny Petitioner’s request with
respect to making any change thereto.
II. ANALYSIS
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.”
37 C.F.R. § 42.71(d). The party challenging a decision bears the burden of
showing the decision should be modified. Id.
Petitioner contends “[t]he unrebutted evidence provided by Netflix
and Dr. Storer establishes that the claimed step of “tracking a number of
pending requests for data transmission” would have been obvious when
combining Couwenhoven’s rate-control teachings with Imai’s networking
environment. Reh’g Req. 2 (citing Pet. 25; Ex. 1003 ¶¶ 134–137; Reply 5–
6). According to Petitioner, the “Board erred by not adopting Dr. Storer’s
unrebutted opinions.” Id. at 7–9 (citing Ex. 1003 ¶¶ 106–113).
IPR2019-00209
Patent 7,386,046 B2

3
Petitioner further contends “the only rebuttal from Patent Owner was
based on improper bodily incorporation arguments.” Id. (citing Reply 9).
Petitioner argues that the evidence cited by the Board (i.e., Dr. Zeger’s
testimony) only analyzed Couwenhoven in isolation and never in
combination with Imai’s networked environment. Id. at 5–6 (citing
Ex. 1019, 19:4–9, 17:3–9, 42:15–43:3; Reply 9). According to Petitioner,

Dr. Zeger contradicted KSR and engaged in impermissible bodily
incorporation by limiting his analysis to the implementations of
Couwenhoven’s explicitly disclosed embodiments, such as
Couwenhoven’s source code for fixed rate, direct transmission
embodiments, without considering what would have been
obvious when Couwenhoven’s teachings—as opposed to its
specific physical implementation—are combined with Imai’s
networked environment.
Id. at 6. Thus, Petitioner further argues “the Board erred by focusing on the
bodily incorporation of Couwenhoven’s embodiments into Imai.” Reh’g
Req. 4.
Petitioner lastly contends it established a motivation to combine the
teachings of Imai and Couwenhoven. Reh’g Req. 9. Petitioner argues it and
Dr. Storer explained why a person of ordinary skill in the art would have
been motivated to apply Couwenhoven’s teachings to improve Imai, even in
view of Imai’s existing technique but the Decision overlooked these
explanations. Id. Petitioner further argues that the Board improperly
required “Petitioners to prove that Couwenhoven’s teachings are superior to
Imai’s existing technique.” Id.
First, the Board’s analysis was not premised on a bodily incorporation
of Couwenhoven’s embodiment into Imai. Rather, as explained in the
Decision, the Board analyzed Couwenhoven’s teachings and found
IPR2019-00209
Patent 7,386,046 B2

4
Couwehoven to teach the monitoring of the fill rate fraction for
its output buffer, which would neither provide an indication of
the exact number of items in the buffer nor the exact number of
pending requests for data. Couwenhoven is directed at ensuring
that its output buffer does not overflow and, therefore, only
monitors the fill rate and fill percent.
Decision 25. The Board further found that “[m]onitoring these
characteristics of Couwenhoven’s output buffer does not require the tracking
of a specific quantity or number of pending requests.” Id. As stated in the
Decision, “[p]etitioner presents insufficient evidence that a person of
ordinary skill in the art would understand how to correlate the items in
Couwenhoven’s output buffer with an exact number of pending requests for
data transmission.” Decision 25. The Board’s analysis, as reiterated here,
does not rely on incorporating Couwenhoven’s embodiments directly into
Imai’s system, but relies on the specific language of Couwenhoven’s
teachings in comparison to the challenged claim’s limitation. Although the
Board’s holding in the Decision is in the context of Imai’s system in view of
Couwenhoven’s teachings, its’ language regarding this particular limitation
is directed to Couwenhoven because the Petitioner only relies on
Couwenhoven’s teachings and Dr. Storer’s testimony to support its
arguments for this limitation. See Pet. 24–26 (citing Ex. 1008, 1:54–62,
1:59–2:4, 3:36–41, 3:62–4:2, 4:42–54, 5:24–30, 5:62–6:7 8:1–5; Ex. 1003
¶¶ 134–137).
Second, we remain unpersuaded that Dr. Storer’s testimony is
unrebutted.2 Although Petitioner argues Dr. Zeger “admitted he never

2 As the trier of fact, we determine “the weight to be accorded even
unrebutted expert testimony.” Bradshaw v. United States, 443 F.2d 759, 772
(D.C. Cir. 1971) (citations omitted).
IPR2019-00209
Patent 7,386,046 B2

5
considered Couwenhoven’s teachings in combination with Imai’s networked
environment,” such testimony relates to the use of a data packet (as taught
by Imai) being a request for data transmission. See Ex. 1019, 17:3–9, 19:4–
9, 42:15–43:3. As explained in the Decision, we find that Couwenhoven’s
“output data could be subdivided into packets.” Decision 25. But, as the
Decision notes that “[t]estimony from both Dr. Zeger and Dr. Storer
supports the reading of the claim to mean tracking or recording a specific
number.” Id. at 25–26 (citing See Ex. 2001 ¶ 73; Ex. 2002, 18:23–19:1).
Accordingly, we hold in the Decision “[t]he plain language of the claim
requires the ‘tracking a number,’ not tracking of a different qualitative
property or a faction of a buffer.” Nothing presented in the Request for
Rehearing persuasively cites to any misapprehended or overlooked
arguments or evidence that would warrant a different holding.
Third, contrary to Petitioner’s arguments, we considered Petitioner’s
argument (and the cited supporting evidence) with respect to a rationale to
combine Couwenhoven’s teachings with Imai’s system. Decision, 30–34.
Specifically, we found Petitioner failed to provide sufficient rationale for
why a person of skill in the art would have combined the teachings from the
cited prior art to arrive at the inventions recited in the challenged claims. Id.
at 34. As noted in the Decision, we determined that the references are
directed to different problems and use different rate control systems. Id.
at 32–33. We further stated that “[g]iven Imai’s express teaching of
controlling the rate of compression and providing its own method of doing
so, we do not agree with Petitioner’s position that a person of ordinary skill
would have been motivated to turn to Couwenhoven’s monitoring of a rate

IPR2019-00209
Patent 7,386,046 B2

6
buffer in relation to fill thresholds for an output buffer for use with Imai’s
system.” Id.
Contrary to Petitioner’s argument here, our analysis only requires a
rationale to combine the teachings of the cited references; it does not require
a showing that the proposed combine be better than alternatives.
Furthermore, we note that merely disagreeing with our analysis or
conclusions does not serve as a proper basis for a rehearing, because it does
not show an overlooked or misapprehended matter.
For the forgoing reasons, Petitioner has not shown that the Board
misapprehended or overlooked arguments or evidence in analyzing
Petitioner’s proposed rational to combine the teachings of Couwenhoven
with Imai. For the same reasons as discussed in the Decision, Petitioner’s
Request for Rehearing similarly is not persuasive as to Petitioner’s position
on the same. Petitioner’s arguments regarding its proffered reasons to
combine the prior art teachings fail to identify what we misapprehended or
overlooked as required by 37 C.F.R. § 42.71(d). Thus, Petitioner has not
carried its burden of demonstrating that the Board’s Decision should be
modified. See 37 C.F.R. § 42.71(d).

IV. ORDER
It is hereby ORDERED that Petitioner’s request for rehearing is
denied.

IPR2019-00209
Patent 7,386,046 B2

7
For PETITIONER:

Harper Batts
Christopher Ponder
Jeffrey Liang
SHEPPARD MULLIN RICHTER & HAMPTON LLP
hbatts@sheppardmullin.com
cponder@sheppardmullin.com
jliang@sheppardmullin.com

For PATENT OWNER:

Philip Wang
C. Jay Chung
Reza Mirzaie
Neil Rubin
Kent Shum
RUSS AUGUST & KABAT
pwang@raklaw.com
jchung@raklaw.com
rmirzaie@raklaw.com
nrubin@raklaw.com
kshum@raklaw.com