Case 3:16-cv-06180-WHA Document 186 Filed 08/04/17 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`COMCAST CABLE
`COMMUNICATIONS, LLC,
`Plaintiff,
`
` v.
`OPENTV, INC., and NAGRAVISION SA,
`Defendants.
` /
`
`No. C 16-06180 WHA
`
`ORDER RE PILOT MOTIONS
`FOR SUMMARY JUDGMENT
`
`INTRODUCTION
`In this patent action for declaratory judgment of non-infringement, as part of a pilot
`procedure to more quickly and efficiently reach the merits, both sides move for summary
`judgment on one asserted claim of one patent-in-suit. Plaintiff’s motion for summary judgment
`is GRANTED as to non-infringement and DENIED AS MOOT as to invalidity. Defendants’ motion
`for summary judgment of infringement is DENIED.
`STATEMENT
`The procedural background of this action thus far has been summarized in a prior order
`(Dkt. No. 145 at 1–2) and need not be repeated here. In brief, plaintiff Comcast Cable
`Communications, LLC, brought this action for declaratory judgment of non-infringement
`against defendants and patent owners OpenTV, Inc., and Nagravision SA (collectively,
`“OpenTV”), both subsidiaries of Kudelski SA, after OpenTV approached Comcast to negotiate
`a licensing deal based on the premise that certain Comcast products infringed Kudelski’s patent
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`Case 3:16-cv-06180-WHA Document 186 Filed 08/04/17 Page 2 of 11
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`portfolio. After an initial case management conference, a case management order required each
`side to bring a pilot summary judgment motion on one chosen claim — OpenTV, to set forth its
`strongest case for infringement, and Comcast, to set forth its strongest case for non-
`infringement or invalidity (Dkt. No. 82). The parties agreed to both cross-move for summary
`judgment on Claim 1 of United States Patent No. 6,895,595 (“the ’595 patent”) (Dkt. No. 114).
`The technology at issue in this case concerns the provision of interactive television
`experiences to subscribers. As of May 1998, when the ’595 patent was filed, television
`providers wanting to provide such experiences would typically transmit to a subscriber’s
`television a broadcast signal that included both audio-video and interactive data. An interactive
`television receiver connected to the television, known as a “set-top box,” would receive the
`signal and separate the audio-video data from the interactive data. The set-top box would then
`feed the audio-video data consisting of the television program to the television and use the
`interactive data to execute an interactive television application and generate interactive graphics
`or audio to be displayed along with the television program (Dkt. No. 149-2 at 1:30–57).
`This transmission method consumed expensive bandwidth and was further constrained
`by the limited amount of memory available on set-top boxes. To alleviate these restrictions,
`television providers would often divide applications into “modules” of data and transmit the
`modules to all subscribers in a repeating cycle called a “carousel,” from which set-top boxes
`could extract any needed modules (while skipping unneeded ones) and reassemble the modules
`to run applications. The carousel method conserved set-top box memory by enabling the
`sharing of commonly-used modules between different applications and saved bandwidth by
`reducing the amount of data transmitted (see id. at 2:9–17; 150-11 at 28:10–19, 30:17–32:25).
`Carousels, however, did not differentiate between different subscribers who needed
`different applications, and the necessary components of any given application could reside in
`different carousels or in modules available at different times. A subscriber who “missed” a
`particular module needed to execute an application would therefore have to wait for the
`carousel to come back around with that module (see Dkt. No. 149-2 at 2:17–20).
`Against this technological backdrop, the ’595 patent describes and claims an improved
`“system and method for managing modules” that shifts transmission of some modules to a
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`Case 3:16-cv-06180-WHA Document 186 Filed 08/04/17 Page 3 of 11
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`second signal received over a second input port while monitoring both signals for modules
`needed for applications (see id. at 2:20–31). For example, “[t]he system may provide for
`modules which are in greater demand among subscribers of the system to be transmitted to all
`of the subscribers via a broadcast channel, while modules which are in less demand are
`transmitted to individual subscribers via a modem channel” (id. at 3:4–9).
`Specifically, Claim 1 recites:
`An interactive television receiver for retrieving modules for an
`interactive television application, the receiver comprising:
`a first input port configured to receive a broadcast signal;
`a second input port configured to receive a second signal;
`a microprocessor coupled to said first input port and said
`second input port, said microprocessor being
`configured to:
`execute said interactive television application;
`store one or more requests generated by said
`interactive television application for one or
`more corresponding requested interactive
`television application modules;
`monitor both said broadcast signal received by said
`first input port and said second signal
`received by said second input port for said
`requested interactive television application
`modules;
`retrieve said requested interactive television
`application modules from one or both of
`said broadcast signal and said second signal;
`and
`store said retrieved interactive television application
`modules;
`a data storage device coupled to said microprocessor and
`configured to store said requests and said retrieved
`interactive television application modules.
`The carousel method is not expressly mentioned in Claim 1 but is expressly and repeatedly
`referenced in other claims and in the rest of the specification.
`OpenTV accuses 16 models of set-top boxes, each of which runs Comcast’s Xfinity X1
`platform, of infringing Claim 1. According to OpenTV, all 16 models work the same way with
`respect to Claim 1 and any differences are irrelevant to non-infringement (Dkt. No. 148-3 at 4,
`8). Each of the accused set-top boxes includes a single coaxial cable input that receives a
`modulated composite signal from Comcast’s cable head-end. The modulated composite signal
`contains both “linear video,” representing television programs intended for multiple subscribers,
`and “IP data” intended for a specific subscriber. Inside the set-top box, a front-end systems-on-
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`Case 3:16-cv-06180-WHA Document 186 Filed 08/04/17 Page 4 of 11
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`chip captures and digitizes the composite signal. Tuners in the front-end filter and segregate the
`digitized signal into a “linear video” signal and an “IP data” signal, each of which is
`demodulated and sent to a different part of a video systems-on-chip for further processing. The
`“linear video” signal is ultimately displayed to the subscriber as a video stream, whereas the “IP
`data” signal is passed on to applications that use the data (see Dkt. No. 148-5 at 12–13, 38).
`Comcast’s X1 platform, first released in 2012, uses a “cloud-based” design significantly
`different from the technology that informed the ’595 patent in 1998. The accused set-top boxes
`do not download or run applications, nor do they use carousels to receive modules for local
`processing. Instead, each set-top box contains software called the Cross-Platform Runtime
`Environment (“XRE”) Receiver, which serves as a display vehicle for applications executed on
`Comcast’s remote XRE Servers. When a set-top box receives user input, it passes that input
`along to an XRE Server. In response, the XRE Server executes the application and issues
`commands to the XRE Receiver on the set-top box, instructing it on what to display and how to
`display it. This kind of cloud-based design requires low latency and high bandwidth because it
`depends on the prompt transmission of messages going both ways between set-top boxes and
`remote servers. It is practicable now due to modern cable network infrastructure, which has
`significantly improved on the latency and bandwidth constraints of older networks like those
`that existed in 1998 (see Dkt. Nos. 150-26 ¶¶ 73–74, 77; 148-3 at 7–8).
`Comcast describes the ’595 patent as an outdated solution to an outdated problem in
`light of modern advances in cable network infrastructure, citing its own X1 platform as the
`proof, and moves for summary judgment of non-infringement and invalidity based on
`obviousness. OpenTV insists that the invention described in the ’595 patent nevertheless
`remains a core part of Comcast’s X1 platform and moves for summary judgment of
`infringement. This order follows full briefing on each side’s motion for summary judgment
`(i.e., three rounds of briefing per side) and oral argument.
`ANALYSIS
`
`LEGAL STANDARD.
`1.
`Summary judgment is appropriate when there is no genuine dispute of material fact and
`the moving party is entitled to judgment as a matter of law. F.R.C.P. 56(a). A genuine dispute
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`of material fact is one that “might affect the outcome of the suit under the governing law.”
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). In deciding a motion for
`summary judgment, the court must believe the non-movant’s evidence and draw all justifiable
`inferences in their favor. Id. at 255.
`2.
`NON-INFRINGEMENT (OR INFRINGEMENT).
`Comcast contends it is entitled to summary judgment of non-infringement as to Claim 1
`because the accused set-top boxes do not have two distinct “input ports” that receive two
`distinct signals or “monitor both” signals for requested modules (Dkt. No. 150-4 at 6–19).
`Instead, Comcast claims, the coaxial cable connected to each set-top box is the sole input port
`for a composite signal transmitted to the set-top box. OpenTV disagrees that this feature of the
`accused set-top boxes is dispositive, and theorizes that other circuitry inside the accused set-top
`boxes actually meets each limitation of Claim 1. To determine whether summary judgment of
`non-infringement (or infringement) is warranted, this order must first construe Claim 1 to
`determine its scope and then determine whether the properly-construed Claim 1 reads on
`Comcast’s accused set-top boxes. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d
`1298, 1304 (Fed. Cir. 1999).
`Claim terms “are generally given their ordinary and customary meaning,” i.e., “the
`meaning that the term would have to a person of ordinary skill in the art in question at the time
`of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005). To
`properly construe a claim, a court must examine the claim, the rest of the specification, and, if
`in evidence, the prosecution history. Amgen Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d
`1313, 1324 (Fed. Cir. 2003). When legal “experts” offer views on claim construction that
`conflict with each other or with the patent itself, such conflict does not create a question of fact
`or relieve the court of its obligation to construe the claim according to the tenor of the patent.
`Markman v. Westview Instruments, Inc., 52 F.3d 967, 983 (Fed. Cir. 1995).
`To prove infringement, OpenTV must show that Comcast’s accused set-top boxes meet
`each properly-construed limitation of Claim 1 either literally or under the doctrine of
`equivalents. See Deering Precision Instruments, LLC v. Vector Distribution Sys., Inc., 347 F.3d
`1314, 1324 (Fed. Cir. 2003). To establish literal infringement, all of the elements of the claim,
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`as correctly construed, must be present in the accused system. TechSearch, LLC v. Intel Corp.,
`286 F.3d 1360, 1371 (Fed. Cir. 2002). OpenTV may also establish infringement under the
`doctrine of equivalents by “showing that the difference between the claimed invention and the
`accused product [is] insubstantial,” including “by showing on a limitation by limitation basis
`that the accused product performs substantially the same function in substantially the same way
`with substantially the same result as each claim limitation of the patented product.” Crown
`Packaging Tech., Inc. v. Rexam Beverage Can Co., 559 F.3d 1308, 1312 (Fed. Cir. 2009).
`Here, proper construction of just one disputed term — “input port” — suffices to
`warrant summary judgment of non-infringement in Comcast’s favor. Comcast contends this
`term specifically means “an interface configured to receive a signal that is input to the
`interactive television receiver.” OpenTV contends this term broadly means “an interface for
`receiving signals from one or more signal sources” (see Dkt. No. 148-3 at 10–11). The parties
`dispute (a) whether a single “input port” can receive signals from multiple sources, and (b) what
`limits, if any, restrict where an “input port” can be located.
`The plain language of Claim 1 contemplates two distinct “input ports” — one
`“configured to receive a broadcast signal” and another “configured to receive a second signal”
`distinct from the broadcast signal. In support of its contrary position, OpenTV misleadingly
`quotes a fragment of the specification for the proposition that “an ‘input port’ [i]s a port ‘for
`receiving signals from various signal sources’” (Dkt. No. 148-3 at 11 (quoting Dkt. No. 149-2
`at 5:18–24 with added emphasis)). Actually, the quoted portion of the specification, which
`describes the preferred embodiment of the claimed invention as shown in Figure 2, states, “[The
`tuner] may be replaced by other means, all collectively referred to herein as input ports, for
`receiving signals from various signal sources” (Dkt. No. 149-2 at 5:22–24 (emphasis added)).
`In other words, that portion of the specification refers generally to multiple input ports
`collectively receiving multiple signals from various sources, not to any single input port
`receiving multiple signals from various sources as OpenTV suggests.
`OpenTV further contends there should be no restriction whatsoever on where an “input
`port” can be located because no such restriction is explicit in the plain language of Claim 1
`(Dkt. No. 161-4 at 7–8). Through this proposed construction, OpenTV attempts to validate its
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`infringement theory that unspecified “distinct parts” of the video systems-on-chip inside each
`accused set-top box — rather than the single coaxial cable connected to each set-top box —
`actually constitute the claimed first and second “input ports” because they receive filtered and
`segregated “linear video” and “IP data” signals from the front-end (see id. at 5–6). OpenTV’s
`proposed construction, however, is overbroad and incompatible with the rest of the specification
`and the underlying purpose of the ’595 patent.
`Read as a whole, the ’595 patent does not preclude the possibility that an “input port”
`can be connected to the outside of a set-top box or housed on the inside of the set-top box. For
`example, in describing the preferred embodiment of the invention, the specification
`contemplates that a tuner inside the set-top box might serve as an “input port” for receiving a
`broadcast signal, as shown in Figure 2 (see Dkt. No. 149-2 at 5:19–24):
`
`Both in briefing and during oral argument, OpenTV placed great emphasis on the fact that an
`“input port” does not need to be an interface on the outside of a set-top box. This argument is
`correct as far as it goes, but misses the point. Specifically as to Figure 2, for example, the
`specification explains (id. at 5:19–57 (emphasis added)):
`The broadcast signal is received and fed into tuner 31. Tuner 31
`selects the channel on which the broadcast audio-video-interactive
`signal is transmitted and passes the signal to processing unit 32.
`(Tuner 31 may be replaced by other means, all collectively referred
`to herein as input ports, for receiving signals from various signal
`sources.) Processing unit 32 demultiplexes the packets from the
`broadcast signal if necessary and reconstructs the television
`programs and/or interactive applications embodied in the signal.
`The programs and applications are then decompressed by
`decompression unit 33. The audio and video information
`associated with the television programs embodied in the signal is
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`then conveyed to display unit 34, which may perform further
`processing and conversion of the information into a suitable
`television format . . . . Applications reconstructed from the
`broadcast signal are routed to random access memory (RAM) 37
`and are executed by control system 35. . . . Modem 38 provides
`both a return path by which viewer data can be transmitted to the
`broadcast station and an alternate path by which the broadcast
`station can transmit data to the set-top box.
`In short, the preferred embodiment describes a system where two distinct “input ports”
`receive two distinct signals that are transmitted “to the set-top box” from an external source,
`i.e., the “broadcast station.” (To repeat, this was part of the invention to alleviate the
`restrictions of previous systems that used only one “input port.”) This receipt unambiguously
`occurs before further processing of the signals inside the set-top box itself, including
`demultiplexing, reconstruction, decompression, and ultimate conveyance for television display
`or application execution. This refutes OpenTV’s suggestion that these internal processes
`separately constitute “receipt” of distinct signals at distinct “input ports” inside the set-top box.
`Despite its own reliance on part of the foregoing description, OpenTV protests that
`Comcast cannot use Figure 2 to support its non-infringement argument because “a claim cannot
`be limited to the patent’s preferred embodiment” (Dkt. No. 161-4 at 6–7). True, the mere fact
`that the specification describes only a single embodiment, standing alone, is insufficient to limit
`otherwise broad claim language absent a clear indication in the intrinsic record that the patentee
`intended the claim to be so limited. E.g., Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325,
`1342 (Fed. Cir. 2010); Howmedica Osteonics Corp. v. Wright Med. Tech., Inc., 540 F.3d 1337,
`1345 (Fed. Cir. 2008). Here, however, the specification of the ’595 patent as a whole — not
`just Figure 2 — clearly shows that an “input port” receives a signal when it initially arrives at a
`set-top box from an external source and before it undergoes further processing inside the set-top
`box itself. Phillips, 415 F.3d at 1315 (“[T]he specification is always highly relevant to the
`claim construction analysis. Usually, it is dispositive; it is the single best guide to the meaning
`of a disputed term.” (quotation and citation omitted)).
`For example, the abstract of the ’595 patent describes a “system [that] transmits modules
`from a broadcast station to a plurality of receiving stations through various paths, such as
`broadcast channels and modem channels.” See, e.g., Netcraft Corp. v. eBay, Inc., 549 F.3d
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`1394, 1398–99 (Fed. Cir. 2008) (considering abstract in affirming claim construction). This
`indicates that the “various paths” contemplated by the claimed invention are paths external to
`the set-top box itself (e.g., between a transmitting “broadcast station” and receiving set-top
`boxes), not merely “paths” that the filtered and segregated components of a signal might take
`inside the set-top box after initial receipt and processing. Similarly, the summary of the claimed
`invention explains that “[t]he set-top box monitors the input ports to determine whether a packet
`received at the input port contains module data and, if so, whether the module should be
`processed and stored in the set-top box.” The summary further notes that “[t]he various types of
`packets are generally time multiplexed with each other,” and “[i]f the system determines that
`the module should be stored, the packets corresponding to the module are extracted from the
`interactive television signal” before “the module is processed and made available for execution”
`(Dkt. No. 149-2 at 2:41–51). This, too, indicates that the claimed invention requires a signal to
`be “received at the input port” before any internal processing or storage takes place.
`OpenTV cites another fragment of the specification, again describing the preferred
`embodiment, for the proposition that “the two signals, or ‘module sources,’ can include
`‘processed, e.g. reconstructed and decompressed, signals.’” Based on this fragment, OpenTV
`contends the ’595 patent actually contemplates internal “input ports” that receive signals only
`after they have been processed inside the set-top box (Dkt. No. 161-4 at 9). Actually, the
`quoted portion of the specification states (Dkt. No. 149-2 at 10:4–13 (emphasis added)):
`The module management unit monitors the various module sources
`coupled to the set-top box. As described above, the module
`sources may include broadcast signals, http signals, modem
`communications or other means for supplying input signals to the
`set-top box. (The term “module source” as used herein is broadly
`interpreted to include both transmission sources, such as satellite
`or modem transmissions, and inputs to the module management
`unit which carry processed, e.g., reconstructed and decompressed,
`signals.)
`In an earlier description of the preferred embodiment, the specification also expressly states that
`“[t]he signals transmitted via the broadcast and modem channels may both embody various
`modules. Each of these two channels is therefore considered a ‘module source’ for the purposes
`of this description” (id. at 3:61–66 (emphasis added)). This does not support OpenTV’s
`suggestion that “module sources” includes circuitry inside the set-top box itself that merely
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`splits up a received composite signal for further processing. On the contrary, the specification
`confirms that the only “module sources” contemplated by the ’595 patent are external sources
`that can be “coupled to” the set-top box to “supply[] input signals to the set-top box.”
`Finally, Comcast correctly points out that OpenTV’s proposed construction of “input
`ports” would run afoul of the very purpose of the supposed invention in the ’595 patent. To
`repeat, the module management system and method described in the ’595 patent were supposed
`to alleviate bandwidth, memory, and timing restrictions by shifting transmission of some
`modules to a second signal received over a second input port. Prior art predating this supposed
`invention could already use a single input port to receive a composite signal and then split that
`composite signal, as received, into its various components for further separate processing. The
`supposed invention relieved some of the restrictions associated with these prior systems (e.g.,
`bandwidth restrictions) by adding a separate, second input for some of the transmitted data.
`Now, OpenTV wants to claim ownership over the use of even a single input port to
`receive a composite signal merely because the received signal is then separated into its various
`components. This sleight of hand is firmly rejected. In short, the basic purpose and focus of the
`’595 patent refute OpenTV’s proposed construction. See Gemalto S.A. v. HTC Corp., 754 F.3d
`1364, 1368–69 (Fed. Cir. 2014) (considering “entire purpose of the invention,” as demonstrated
`by the specification, in construing a disputed claim); On Demand Machine Corp. v. Ingram
`Indus., Inc., 442 F.3d 1331, 1340 (Fed. Cir. 2006) (“[T]he role of the specification is to describe
`and enable the invention. In turn, the claims cannot be of broader scope than the invention that
`is set forth in the specification.”). The correct construction of “input port” adopted herein is an
`interface that receives a signal when it initially arrives at a set-top box from an external source
`and before it undergoes further processing inside the set-top box itself. This construction is
`clear from the patent itself and consistent with the prosecution history evidence in the record, to
`the extent that said evidence touches on the subject of “input ports” (see, e.g., Dkt. No. 159-3 at
`23–24 (discussing prosecution history evidence concerning the “monitor both” limitation)).
`Properly construed, the “first input port configured to receive a broadcast signal” and
`“second input port configured to receive a second signal” limitations of Claim 1 are simply not
`met by Comcast’s accused set-top boxes. OpenTV makes no argument that, under this order’s
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`construction of the “input ports” requirement, the accused set-top boxes infringe either literally
`or under the doctrine of equivalents. Indeed, in response to Comcast’s non-infringement
`arguments, OpenTV expressly abandoned its prior theory that the “two sets of tuner banks on
`the front-end [systems-on-chip]” of Comcast’s accused set-top boxes constitute the first and
`second “input ports” required by Claim 1 (Dkt. No. 161-4 at 5 n.2, 8 n.4). OpenTV’s sole
`remaining infringement theory as to the “input ports” requirement is based on the video
`systems-on-chip. As explained, this theory is unavailing. Moreover, inasmuch as Comcast’s
`accused set-top boxes do not have the required “input ports,” they also cannot meet the
`limitation of “a microprocessor coupled to said first input port and said second input port, said
`microprocessor being configured to . . . monitor both said broadcast signal received by said
`first input port and said second signal received by said second input port for said requested
`interactive television application modules” (emphasis added). Comcast is entitled to summary
`judgment of non-infringement on this basis alone. Accordingly, this order does not reach the
`parties’ additional non-infringement (or infringement) or invalidity arguments.
`CONCLUSION
`For the foregoing reasons, plaintiff’s motion for summary judgment is GRANTED as to
`non-infringement and DENIED AS MOOT as to invalidity. The patent owners’ motion for
`summary judgment of infringement is DENIED.
`Because Claim 1 was the patent owners’ best shot at proving infringement, this outcome
`bodes poorly for the remainder of their case. For the time being, no more motions may be filed
`until further order of the Court. The sole exception is that plaintiff may, within FOURTEEN
`CALENDAR DAYS, bring a motion for attorney’s fees under the Patent Act based on the patent
`owners’ wrongful assertion of Claim 1 of the ’595 patent. Any such motion must establish both
`entitlement to and the amount of the fees sought.
`
`IT IS SO ORDERED.
`
`Dated: August 4, 2017.
`
`
`WILLIAM ALSUP
`UNITED STATES DISTRICT JUDGE
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`For the Northern District of California
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`United States District Court
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`