`Tel: 571-272-7822
`
`Paper 10
`Entered: April 26, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`NETFLIX, INC.,
`Petitioner,
`
`v.
`
`AFFINITY LABS OF TEXAS, LLC,
`Patent Owner.
`
`
`
`Case IPR2017-00122
`Patent 9,444,868 B2
`
`Before KEVIN F. TURNER, LYNNE E. PETTIGREW,
`and JON B. TORNQUIST, Administrative Patent Judges.
`
`TORNQUIST, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`I. INTRODUCTION
`Netflix, Inc. (“Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting
`an inter partes review of claims 1–20 of U.S. Patent No. 9,444,868 B2 (Ex.
`1001, “the ’868 patent”). Affinity Labs of Texas, LLC (“Patent Owner”)
`filed a Preliminary Response to the Petition (Paper 8, “Prelim. Resp.”).
`We have authority to determine whether to institute an inter partes
`review. 35 U.S.C. § 314; 37 C.F.R. § 42.4(a). The standard for instituting
`an inter partes review is set forth in 35 U.S.C. § 314(a), which provides that
`an inter partes review may not be instituted “unless the Director determines
`. . . there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.”
`After considering the Petition and the Preliminary Response, we
`determine that Petitioner has demonstrated a reasonable likelihood of
`prevailing with respect to claims 1–20 of the ’868 patent. Accordingly, we
`institute inter partes review with respect to those claims.
`
`A. Related Proceedings
`The parties note that the ’868 patent, as well as related U.S. Patent
`No. 9,094,802 (“the ’802 patent”), are at issue in Affinity Labs of Texas, LLC
`v. Netflix, Inc., 1:15-cv-849-RP (W.D. Tex.). Pet. 3; Paper 7, 1. The parties
`further note that the ’802 patent is at issue in IPR2016-01701. Pet. 3; Paper
`7, 1.
`
`B. The ’868 Patent
`The ’868 patent is directed to a delivery system for digitally stored
`content, including audio, video, and textual information. Ex. 1001, 1:25–27,
`3:20–25. The ’868 patent instructs that information may be “formatted,
`segmented, compressed, modified, etc. for the purpose of providing or
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`communicating” the information to a user. Id. at 3:25–33. In one
`embodiment of the ’868 patent, the selected audio information may be
`wirelessly communicated using a “hybrid of wireless communication rates.”
`Id. at 6:12–22. In this method, “the selected audio information may first be
`transmitted to the electronic device via high-speed communication until
`enough information” is buffered into the memory of a recipient device. Id.
`at 6:15–19. Slower communication speeds may then be used to
`communicate additional selected audio information to the device. Id. at
`6:19–22.
`
`C. Illustrative Claims
`Claims 1 and 2 are illustrative of the challenged claims and are
`reproduced below:
`1. A media system, comprising:
`a plurality of independent segment files, wherein a given
`segment file of the plurality of independent segment files has a
`given format and a different segment of the plurality of
`independent segment files has a different format, further
`wherein the given format facilitates an outputting of
`information in the given segment file at a given rate that is
`different than a rate associated with the different format;
`a playlist that comprises a list, and the list includes a first URL
`for the given segment file and a different URL for the different
`segment file;
`a network-based communication system operable: to distribute
`media content to a remotely located requesting device; to
`receive an HTTP communication from the remotely located
`requesting device that indicates a desire to access the available
`media; to send information representing the playlist to the
`remotely located requesting device; to send information
`representing the given segment file to the remotely located
`requesting device; and, to send information representing the
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`different segment file to the remotely located requesting device;
`and
`a plurality of remote devices configured to request media,
`wherein each of the plurality of remote devices comprises:
`(1) an internal memory system; (2) a collection of instructions
`stored in the internal memory system that is operable when
`executed to utilize information representing the playlist, to
`request a streaming delivery of the information representing the
`given segment file, and to request a streaming delivery of the
`information representing the different segment file; and (3) a
`buffer configured to output the information representing the
`given segment file at the given rate and to output information
`representing the different segment file at the rate, which is
`different than the given rate
`Ex. 1001, 18:56–19:24.
`2. The media system of claim 1, wherein at least one of the
`plurality of remote devices is a portable handheld device having
`a display, and the available media is a video.
`Id. at 19:25–27.
`D. The Asserted Grounds of Unpatentability
`Petitioner contends that claims 1–20 of the ’868 patent are
`unpatentable based on the following grounds (Pet. 12–66):1
`References
`Basis Claims Challenged
`Treyz2 and Fuller3
`§ 103 1–12, 14, 15, and 17–20
`
`Treyz, Fuller, and Glaser4
`
`§ 103 13 and 16
`
`
`1 Petitioner also relies on a declaration from Dr. Nader Mir (Ex. 1007).
`2 U.S. Patent No. 6,678,215 B1, issued Jan. 13, 2004 (Ex. 1015).
`3 U.S. Patent No. 6,711,622 B1, issued Mar. 23, 2004 (Ex. 1016).
`4 U.S. Patent No. 6,985,932 B1, issued Jan. 10, 2006 (Ex. 1017).
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`Petitioner asserts that Treyz, Fuller, and Glaser are prior art under 35
`
`U.S.C. § 102(e). Pet. 6. Patent Owner does not, at this stage of the
`proceeding, challenge the prior art status of any reference.
`
`II. ANALYSIS
`
`A. Claim Construction
`In an inter partes review, “[a] claim in an unexpired patent shall be
`given its broadest reasonable construction in light of the specification of the
`patent in which it appears.” 37 C.F.R. § 42.100(b); Cuozzo Speed Techs.,
`LLC v. Lee, 136 S. Ct. 2131, 2142 (2016) (upholding the use of the broadest
`reasonable interpretation standard). In determining the broadest reasonable
`construction, we presume that claim terms carry their ordinary and
`customary meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257
`(Fed. Cir. 2007). A patentee may define a claim term in a manner that
`differs from its ordinary meaning; however, any special definitions must be
`set forth in the specification with reasonable clarity, deliberateness, and
`precision. See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`Petitioner proposes constructions for the terms “segment files,”
`“cellular telephone,” and “a different segment”/“the given segment.” Pet. 7–
`9. Patent Owner does not contest Petitioner’s proposed constructions in the
`Preliminary Response or propose its own constructions for any additional
`terms.
`Upon review of the parties’ arguments and supporting evidence, we
`determine that only the term “available media” requires express construction
`for purposes of this Decision. See Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (“[O]nly those terms need be
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`construed that are in controversy, and only to the extent necessary to resolve
`the controversy.”).
`
`available media
`Independent claims 1, 7, and 14 require an “available media.” Ex.
`1001, 19:5, 19:49–50, 20:54. In IPR2014-00407 we determined that the
`term “available media” is “not limited to a single file, song, or video,” and is
`broad enough to include, at a minimum, a “collection of audio or video
`files.” See Samsung Electronics Co. v. Affinity Labs of Texas, LLC, Case
`IPR2014-00407, slip. op. at 6 (PTAB July 21, 2014) (Paper 15) (noting that
`dependent claims 12 and 13 of the involved patent define “the available
`media” as a “collection of audio files” and a “collection of video files,”
`respectively). Patent Owner did not subsequently contest this construction.
`See Samsung Electronics Co. v. Affinity Labs of Texas, LLC, Case IPR2014-
`00407, slip op. at 6 (PTAB July 20, 2015) (Paper 48).
`Because the patent at issue in IPR2014-00407 (U.S. Patent No.
`8,359,007 (“the ’007 patent”)) and the ’868 patent each claim benefit to the
`same parent application (U.S. Application No. 09/537,812) through a line of
`continuing applications, we adopt our previous construction of “available
`media” for purposes of this Decision. See NTP, Inc. v. Research in Motion,
`Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (“Because NTP’s patents all
`derive from the same parent application and share many common terms, we
`must interpret the claims consistently across all asserted patents.”).
`
`B. Alleged Failure to Provide Proposed Claim Constructions
`Patent Owner contends that during proceedings before the District
`Court, Petitioner and its declarant, Dr. Mir, asserted that several claim terms
`of the ’868 patent are set forth in means-plus-function format and that
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`several other claim terms, including “segment files” and “independent
`segment files,” are “confusing” and require one to “guess” as to their
`meaning. Prelim. Resp. 12–15. According to Patent Owner, because
`Petitioner must “guess” as to the meaning of limitations in the challenged
`claims, and because Petitioner does not identify corresponding structure for
`the claim terms it alleged before the District Court are in means-plus-
`function format, Petitioner cannot meet its burden to show obviousness in
`this proceeding. Id. at 13 (“[Petitioner] cannot meet its burden to show
`obviousness where it and its expert must speculate in order to construe the
`challenged claims and compare them to the prior art, and the petition should
`be denied.”), 15 (“[Petitioner’s] failure to identify a function and
`corresponding structure . . . requires denial of this petition.”).
`We are not persuaded by these arguments. First, neither party in this
`proceeding contends that any limitations of the ’868 patent are in means-
`plus-function format. Second, even if Petitioner and its declarant could not
`identify the precise contours of certain claim limitations before the District
`Court, they provide detailed citations and arguments in this proceeding
`explaining where they contend each limitation of the challenged claims is
`disclosed in the recited prior art. Pet. 18–66; see also id. at 7–8 (providing a
`proposed definition for “segment files”).
`
`C. Claims 1–12, 14, 15, and 17–20 over Treyz and Fuller
`Petitioner contends that the subject matter of claims 1–12, 14, 15, and
`17–20 would have been obvious over Treyz and Fuller. Pet. 18–62.
`
`1. Treyz
`Treyz is directed to devices that receive and process audio signals.
`Ex. 1015, 1:25–28, 8:28–32. The audio device of Treyz is primarily
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`described as a clock radio. Id. at 8:29–32. Treyz notes, however, that the
`features of the invention may also be applied to “stereos, portable digital
`audio players, automobile personal computers, web appliances, personal
`computers with audio cards and speakers,” and a “handheld computing
`device.” Id. at 8:35–40, 26:60.
`The device of Treyz may have a web browser that allows a user to
`interact with the Internet and review available Internet radio stations. Id. at
`17:29–42, Fig. 9b. A user may select available Internet radio stations “by
`clicking on links for stations that the user is interested in or by otherwise
`selecting the proper Internet addresses for the desired stations.” Id. at 5:31–
`37. The selected stations may then be streamed to the user’s device in real
`time and buffered using local memory to improve audio quality. Id. at 1:56–
`60.
`
`Figure 14 of Treyz is reproduced below:
`
`Figure 14 of Treyz depicts a web page
`used to schedule segments for playback
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`As shown in Figure 14, “a web page or other suitable remote interface may
`be used to allow the user to set up a schedule of content to be played” by the
`device “upon wake-up.” Id. at 21:49–55; Pet. 12–13. Region 234 of the
`web page is used to set the content delivery schedule. Ex. 1015, 22:7–9.
`Clicking on a blank cell in the “content” column allows a user “to select
`from various content options using, for example, a drop-down menu, a pop-
`up list, direct alphanumeric entry, or any other suitable user interface.” Id. at
`22:9–14. The available content for delivery “upon wake-up” includes
`music, Internet radio stations, e-mail, news, stock reports, weather reports,
`etc. Id. at 22:55–63. Treyz notes that “news information,” as well as
`“information from other sources,” “may be in the form of text, audio, and
`video.” Id. at 8:63–9:6; Pet. 13, 35.
`
`Treyz explains that station preference information gathered using web
`page 226 may be stored on a remote server until it is time to deliver content
`to the device or may be provided to the device and stored in memory. Ex.
`1015, 22:19–23, 22:37–39; Pet. 26.
`
`2. Fuller
`Fuller is directed to a system for providing streaming audio and video
`data to multiple users. Ex. 1016, 1:14–17, 2:53–54. In various
`embodiments of Fuller, the audio data is broken “into time periods” and is
`“compressed into various sets of compressed data corresponding to different
`audio rates,” with higher audio rates corresponding to better quality audio
`signals. Id. at 9:14–20. Based on the connection speed selected by the user,
`a Java applet installed on the client machine requests a particular quality of
`audio or video signal. Id. at 8:37–41, 10:48–55, 10:66–11:6. Subsequently,
`if the Java applet determines that the audio or video information is not being
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`received by the client at a sufficient rate, it “can request a different rate of
`transmission.” Id. at 10:11–14. For example, the Java applet may request “a
`lower rate corresponding to a lower audio or video signal that will more
`appropriately match the bandwidth of the client.” Id. at 10:14–17.
`
`3. Analysis
`Petitioner provides detailed analysis, supported by the testimony of
`Dr. Mir, identifying where the subject matter of independent claims 1, 7, and
`14 is disclosed in Treyz and Fuller. Pet. 18–35, 38–46, 52–55. With respect
`to the reason to combine the references, Petitioner contends that both
`references “concern the delivery of streaming multimedia content over an
`Internet-based client/server network” and one of ordinary skill in the art
`would have been motivated to incorporate Fuller’s rate switching method in
`Treyz to prevent the input buffer from running out of data. Id. at 15–16
`(asserting that a person of ordinary skill in the art would have understood
`that “if the client does not receive sufficient data, the input buffer for the
`audio/video decoders may run out of data, and hence the decoders would
`have nothing to output”).
`Patent Owner contends the challenged claims would not have been
`obvious over Treyz and Fuller because the Internet radio links of Treyz do
`“not comprise links or network locations to segments of the same available
`media at different output rates as required by the claims.” Prelim. Resp. 21;
`see also id. at 16 (asserting that independent claims 1, 7, and 14 “each
`require a list or listing that contains a URL or network location for segments
`of an available media, such as a song or video, which is available at different
`output rates”). We are not, on this record, persuaded by Patent Owner’s
`argument.
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`As noted above, the term “an available media” is not limited to a
`single song or video, and may include, at a minimum, a “collection of audio
`or video files.” Moreover, the term “segment,” which is generally defined as
`“[e]ach of the parts into which something is or may be divided,” is, on this
`record, broad enough to encompass an individual song, video, or station
`contained within a broader collection of audio or video files. Ex. 30015; Ex.
`3002; see also Samsung, IPR2014-00407, Paper 15, 6 (concluding that the
`term “portions of an available media” encompasses “songs or stations in a
`playlist or parts of an Internet radio broadcast”). Thus, on this record
`Petitioner demonstrates sufficiently that the links or network locations of
`Treyz are to segments of an available media.
`Petitioner also presents evidence that the segments of an available
`media provided in Treyz and Fuller would be formatted at different rates,
`either before or during transmission to a user. Pet. 19–23. For example,
`Petitioner presents evidence that audio files are typically formatted
`differently than video files and would be output via a buffer at different
`rates. Id. at 23 (citing Ex. 1016, 5:66, 6:28; Ex. 1007 ¶¶ 52, 99 (Dr. Mir
`asserting that video is typically encoded at a higher bitrate than audio); Ex.
`1040 ¶ 33). Petitioner also presents evidence that the device of Treyz may
`receive audio or video data using different technologies, including a cellular
`modem, a digital subscriber line (DSL), or cable modem, and that these
`different methods of transmission will result in songs or video being
`formatted for output at different rates. Id. at 20 (citing Ex. 1015, 2:41–44;
`Ex. 1007 ¶¶ 46–49, 94). Finally, Petitioner presents evidence that the
`
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`5 Segment Definition, OXFORDDICTIONARIES.COM,
`https://en.oxforddictionaries.com/definition/segment.
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`system of Fuller compresses audio information using different compression
`formats, resulting in files that will be output at different rates. Id. at 22–23
`(citing Ex. 1016, 5:63–67, 9:14–30). Thus, Petitioner demonstrates
`sufficiently that the links in Treyz and Fuller are to segments of an available
`media that are available at different output rates.
`As noted above, Petitioner provides detailed arguments explaining
`where it contends the subject matter of independent claims 1, 7, and 14 is
`disclosed in Treyz and Fuller. Petitioner also provides an explanation
`supported by record evidence as to why one of ordinary skill in the art would
`have sought to combine the two references. Accordingly, we determine that
`Petitioner has demonstrated a reasonable likelihood that independent claims
`1, 7, and 14 of the ’868 patent would have been obvious over Treyz and
`Fuller.
`With respect to dependent claims 2, 5, 8, and 9, which require that
`“the available media” is “a video,” 6 Petitioner presents evidence that the
`customized playlist of Treyz (as depicted in Figure 14) may contain URLs or
`network locations for “news,” which Treyz explains may be provided to a
`user in the form of text, audio, or video. Ex. 1001, 19:25–27, 19:37–39,
`20:12–26; Pet. 12–13, 26, 35, 48 (citing Ex. 1015, 8:64–66, 9:4–6, 21:50–
`51, 22:19–24, Fig. 14). Petitioner also provides detailed arguments
`
`
`6 As a general rule, the indefinite article “a” or “an” carries the meaning of
`“one or more” in open-ended “comprising” claims. See Baldwin Graphic
`Sys., Inc. v. Siebert, Inc., 512 F.3d 1338, 1342 (Fed. Cir. 2008). Patent
`Owner may address in its Patent Owner Response whether the language of
`the claims, the specification, or the prosecution history of the ’868 patent
`necessitate a departure from this general rule, such that the term “a video” is
`limited to a single video file. See id. at 1343.
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`identifying where it contends the subject matter of dependent claims 3, 4, 6,
`10–12, 15, and 17–20 is disclosed or suggested in Treyz and Fuller. Pet. 35–
`38, 49–51, 55–62. Patent Owner does not address directly Petitioner’s
`arguments with respect to the dependent claims of the ’868 patent.
`Upon review of Petitioner’s arguments and supporting evidence, we
`determine that Petitioner has demonstrated a reasonable likelihood that the
`subject matter of dependent claims 2–6, 8–12, 15, and 17–20 would have
`been obvious over Treyz and Fuller.
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`4. Conclusion
`For the reasons discussed above, Petitioner has demonstrated a
`reasonable likelihood that the subject matter of claims 1–12, 14, 15, and 17–
`20 of the ’868 patent would have been obvious over Treyz and Fuller.
`
`D. Dependent Claims 13 and 16 over Treyz, Fuller, and Glaser
`Petitioner contends that the subject matter of claims 13 and 16 would
`have been obvious over Treyz, Fuller, and Glaser. Pet. 63–66.
`
`1. Glaser
`Glaser discloses a method for ensuring that the buffers of a CPU are
`“maintained at near maximum capacity without overflowing.” Ex. 1017,
`16:1–5. In one embodiment of Glaser, a first audio data bank contains audio
`data compressed according to a known compression algorithm, whereas a
`second audio data bank contains data compressed according to a lossless
`compression algorithm. Id. at 21:36–51. A switching system allows an
`audio control center to switch alternately between the two audio banks. Id.
`at 21:51–55. When a user’s computer determines that the buffers are near
`maximum capacity, the user’s PC sends a “high quality” signal to the audio
`control center to indicate that high quality data should be sent by the audio
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`control center. Id. at 22:7–13. If the buffers fall beneath a certain
`percentage of maximum capacity, the user’s PC transmits a “normal quality”
`signal indicating that the audio control center should resume transmitting
`data from the normal quality audio bank. Id. at 22:58–64. According to
`Glaser, this process may be repeated multiple times “so that a net overall
`improvement of sound quality results.” Id. at 23:16–19.
`
`2. Analysis
`Claim 13 requires considering the amount of buffer fill within an
`internal buffer before requesting a “different segment file” and claim 16
`requires considering the amount of buffer fill when determining which
`additional media segment files to request. Ex. 1001, 20:44–48, 21:15–20.
`Petitioner asserts that Fuller discloses changing transmission rates
`when the client is not receiving data at a “sufficient rate,” but does not
`disclose “how a client should determine whether it is receiving data at a
`‘sufficient rate.’” Pet. 64. Petitioner further contends that Glaser discloses
`monitoring buffer fill states when determining whether to request high or
`low quality data, as is disclosed in Fuller. Id. at 64–65. According to
`Petitioner, a person of ordinary skill in the art would have sought to
`implement Glaser’s buffer monitoring method in Treyz and Fuller in order to
`successfully “implement the buffering suggestions disclosed in the Treyz-
`Fuller combination.” Id. at 64. Patent owner does not address Petitioner’s
`arguments with respect to claims 13 and 16 of the ’868 patent.
`On this record, Petitioner demonstrates sufficiently that Treyz, Fuller,
`and Glaser disclose the subject matter of claims 13 and 16. Petitioner also
`provides sufficient explanations as to why one of ordinary skill in the art
`would have sought to combine the three references. Accordingly, Petitioner
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`has demonstrated a reasonable likelihood that claims 13 and 16 of the ’868
`patent would have been obvious over Treyz, Fuller, and Glaser.
`
`E. 35 U.S.C. § 325(d)
`Pursuant to 35 U.S.C. § 325(d), “the Director may take into account
`whether, and reject the petition or request because, the same or substantially
`the same prior art or arguments previously were presented to the Office.”
`Patent Owner contends that, because Treyz, Fuller, and the petition and
`supporting declaration testimony from IPR2014-00408 (directed to U.S.
`Patent No. 8,359,007) were before the Examiner during prosecution, we
`should exercise our discretion and reject the Petition under 35 U.S.C.
`§ 325(d). Prelim. Resp. 23–26.
`As noted by Patent Owner in the Preliminary Response, the
`claims of the ’868 patent are distinct from the claims of the ’007
`patent at issue in IPR2014-00408. Compare U.S. Patent No.
`8,359,007, with U.S. Patent No. 9,444,868. And, although Treyz and
`Fuller were both before the Examiner during prosecution, and
`although Petitioner relies upon similar reasoning as to why the two
`references would be combined by one of ordinary skill in the art, we
`are directed to insufficient evidence that the Examiner ever considered
`the “exact same . . . arguments” set forth by Petitioner in this
`proceeding, as Patent Owner contends. Prelim. Resp. 26–27.
`Accordingly, we decline to exercise our discretion to deny institution
`under 35 U.S.C. § 325(d).
`
`III. CONCLUSION
`Upon consideration of the Petition and the Preliminary Response, we
`conclude that Petitioner has demonstrated a reasonable likelihood that claims
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`1–20 of the ’868 patent would have been obvious over the recited prior art.
`Accordingly, we institute inter partes review with respect to these claims as
`set forth in the Order.
`
`IV. ORDER
`
`It is hereby
`ORDERED that, pursuant to 35 U.S.C. § 314, an inter partes review
`is instituted on the following grounds:
`(1) Whether claims 1–12, 14, 15, and 17–20 are unpatentable under 35
`U.S.C. § 103 as having been obvious over Treyz and Fuller; and
`(2) Whether claims 13 and 16 are unpatentable under 35 U.S.C. § 103
`as having been obvious over Treyz, Fuller, and Glaser;
`FURTHER ORDERED that no ground other than those specifically
`granted above are authorized for inter partes review as to the claims of the
`’868 patent.
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`PETITIONER:
`
`Hector Ribera
`David D. Schumann
`MARTON RIBERA SCHUMANN & CHANG LLP
`hector@martonribera.com
`david@martonribera.com
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`
`
`
`
`PATENT OWNER:
`
`Ryan M. Schultz
`Shui Li
`ROBINS KAPLAN LLP
`RSchultz@RobinsKaplan.com
`SLi@RobinsKaplan.com
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