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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
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`COMCAST CABLE COMMUNICATIONS, LLC,
`Petitioner,
`
`v.
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`ROVI GUIDES, INC.,
`Patent Owner.
`____________
`
`Case IPR2017-00217
`Patent 7,996,864 B2
`____________
`
`Record of Oral Hearing
`Held: February 7, 2018
`____________
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`
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`Before: JENNIFER S. BISK, BARBARA A. BENOIT, and TERRENCE
`W. McMILLIN, Administrative Patent Judges.
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`Case IPR2017-00217
`Patent 7,996,864 B2
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
`FREDERIC M. MEEKER, ESQUIRE
`BRADLEY C. WRIGHT, ESQUIRE
`CRAIG W. KRONENTHAL, ESQUIRE
`Banner & Witcoff, Ltd.
`1100 13th Street, N.W.
`Suite 1200
`Washington, D.C. 20005-4051
`
`ON BEHALF OF PATENT OWNER:
`SCOTT A. McKEOWN, ESQUIRE
`JAMES R. BATCHELDER, ESQUIRE
`MARK D. ROWLAND, ESQUIRE
`Ropes & Gray, LLP
`2099 Pennsylvania Avenue, N.W.
`Washington, D.C. 20006-6807
`
`
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`The above-entitled matter came on for hearing on Wednesday,
`February 7, 2018, commencing at 1:04 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2017-00217
`Patent 7,996,864 B2
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`P R O C E E D I N G S
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`JUDGE BENOIT: Good afternoon. We are convened for oral
`argument in IPR2017-00217 which challenges U.S. patent 7,996,864.
`I'm Judge Benoit. With me in Alexandria is Judge Bisk. Appearing by
`video is Judge McMillin.
`Let's start with appearances. Petitioner?
`MR. MEEKER: Your Honor, Fred Meeker with the law firm of
`Banner & Witcoff representing petitioner, Comcast Cable
`Communications, LLC. With me are Brad Wright, who will be doing the
`argument, today, one of my partners. I have Craig Kronenthal and Scott
`Kelly, also two of my partners. And we have a representative from
`Comcast Cable Communications, Seth Kramer, who is counsel with the
`company. I do have two copies of the materials. You may already have
`them printed, but I can hand these up as courtesy copies, if you would
`like.
`
`JUDGE BENOIT: That would be great. Thank you.
`MR. MEEKER: May I approach, Your Honor?
`JUDGE BENOIT: Yes.
`MR. McKEOWN: Good afternoon, Your Honor. Scott
`McKeown of Ropes & Gray. I'm joined today by Mark Rowland and
`James Batchelder as well as Josef Schenker, all of Ropes & Gray. We
`have two representatives of the patent owner, Michael Schwartz and
`Efrain Staino. I will be principally arguing and splitting some time with
`Mr. Batchelder.
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`Patent 7,996,864 B2
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`JUDGE BENOIT: Welcome to everyone. Thank you for
`coming. Each side will have 60 minutes to argue, as reflected in our oral
`hearing order. Petitioner has the ultimate burden of proving
`unpatentability and will argue first and may reserve rebuttal time.
`Petitioner, you may begin when ready.
`MR. WRIGHT: Thank you. Brad Wright with the law firm
`Banner & Witcoff here in Washington on behalf of the petitioner,
`Comcast. I would like to reserve 15 minutes of rebuttal time, please,
`leaving 45 minutes for opening.
`JUDGE BENOIT: If you would just give me a minute to set
`the clock, please. Sorry for the interruption. You may begin when ready.
`MR. WRIGHT: Thank you very much. I'd like to start with the
`big picture, if we could turn to slide 5, please. And I know Judge
`McMillin is remote, so I'll do my best to make sure we are on the correct
`slide, which is 5. So what's shown in slide 5 is Figure 3 of the '864
`patent. As we can see, the patent claims a program guide that's been split
`up into three different areas. There's a first area at the bottom which has
`a plurality of program listings. There's a second area in the upper left
`which is a video window corresponding to one of the programs in the
`guide. And there's a third area in the upper right corner that has a
`detailed description corresponding to one of the selected programs down
`below.
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`This is exactly what the primary reference, Rauch, shows, a
`program guide with three areas having these three functionalities. The
`only difference between what's claimed in the patent and shown here, and
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`the closest reference, Rauch, which is used in our first two combinations,
`is what happens with that second area in the upper left corner. In the
`prior art, as in Rauch, as the user moves through the program listings in
`the first area, the detailed program description in the third area changes to
`correspond to it. And the video also changes to correspond to the
`selected area. The difference between that and what's claimed in the
`independent claims of the '864 patent is that the second area does not
`change in this configuration as the user moves through the guide.
`So the question is, would it have been obvious to change the
`functionality of the second area so that it doesn't change, unlike Rauch?
`And the answer is yes. In fact, we found three references that the patent
`examiner did not rely on that show this. There's Bennington, there's
`Florin and there's Young. And I'll discuss those in more detail shortly.
`If we could turn to slide 6, this is claim 1 of the '864 patent
`which the patent owner has not disputed is representative of all the
`independent claims. And it has two steps. Step 1B, the simultaneously
`displaying -- and it's color-coded to correspond to the three windows. A
`plurality of television program listings in a first area of the screen, a
`currently broadcast television program received by the tuner in a second
`non-overlapping area of the screen and a detailed program description of
`the currently broadcast television program displayed in the second area in
`a third non-overlapping area. That is shown by Rauch. The original
`patent examiner concluded that that was shown by Rauch. And the only
`difference between Rauch and this claim is the second step. And that is
`switching the detailed program description displayed in the third area of
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`the screen in response to a user input without changing the currently
`broadcast television program displayed in the second area. For
`shorthand, I'll refer to this as the without changing limitation, just so we
`are clear on what that is.
`If we could jump ahead to slide 9, please, slide 9 shows
`Figure 2 of Rauch, which is the primary reference that's relied upon for
`the first two grounds. As we can see, it has the exact same three areas of
`a program guide. The first is flipped upside down with relation to the
`Figure 3 of the patent, but the areas are the same. There's a first area that
`has a plurality of program listings, a second area that has a video
`corresponding to the selected programming in the program listings, and
`then it has a third area, and in the third area is a detailed description of
`the selected program. So as the user moves through this grid, moves the
`cursor through the grid, the second area changes to reflect the video of
`the program and the third area also changes to reflect the detailed
`description. So it operates in unison, you might say.
`If we could turn to slide 10, please, the next slide, this is
`Figure 6 of Rauch, the same reference. This figure is what's referred to
`as the change selection routine. And this gets executed whenever the
`user moves to a different grid entry in that first area that we were just
`looking at a minute ago. So when the user moves the cursor in the grid, it
`comes in and executes step 600 which changes the highlighting to the
`new grid area. It displays the text string in step 602. It says "test."
`That's a typo. It should say "text string." And it's not disputed that that
`text string contains a detailed description of the corresponding program,
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`and then it makes a check in step 630 to see whether the selected program
`is on.
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`If we could go back to slide 9 just for a second, you can see in
`slide 9 that the program grid has columns arranged by time, 6:00 p.m.,
`6:30, 7:00 and 7:30. So if the program is currently on and the user is in
`the column corresponding to the current time, then as the user moves up
`and down the channel numbers, it will change the video and it will
`change the third area. But you'll notice that if the user moves forward to
`a time where the program is not yet on, there's nothing to show because
`the program is not currently being broadcast.
`If we go back to slide 10, that's this step 630. So the check is
`made in step 630 to see if the selected program is on. If it's on, then in
`step 602 -- I'm sorry, 612 it displays the program that's currently on in
`that second window and it returns. But if the selected program is not on,
`for example, it's a future time period, then Rauch says you can display a
`bitmap or a blank window. Now, this is critical because the patent
`owner's position is that Rauch requires in all situations synchronization
`between what's going on in the first, second and third windows. And yet
`we can see right here that Rauch has a situation where it doesn't do that.
`And the reason it doesn't do it is, as I said, is because the program isn't on
`yet. If the program is not on, you can't broadcast it. So Rauch says you
`can display a blank window.
`So the question is, would it have been obvious to replace a
`blank window with something more useful? And that brings us to slide
`11, which is the first combination set forth in the petition. This is
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`Rauch-Bennington. So the petition explains how Rauch discloses
`everything in claim 1 which is representative of all the claims except for
`the "without changing" limitation. Bennington, which was never cited by
`the patent examiner, teaches this, as we'll see in a minute. And I'll
`explain the rationale. But Bennington teaches that it's desirable to allow
`the user to move through a program guide to see what's on other channels
`without changing the channel that you are currently watching.
`If we could move to slide 12, this is a quote directly out of
`Bennington. Bennington says, quote, there is a particular need for a
`flexible -- and I emphasize the word "flexible" -- flexible program
`schedule system that allows a user to view selected broadcast programs
`on a portion of the screen while simultaneously viewing program
`schedule information for other channels and/or services on another
`portion of the screen.
`So this is an explicit teaching in Bennington for how you could
`modify Rauch, how you should modify Rauch so that you don't change
`the channel while you are moving through the guide.
`So if we could turn to slide 13, I'm going to explain Bennington
`in a little bit more detail. So Bennington has a number of modes. It has a
`mode called flip mode. And this is explained in column 10 of
`Bennington. And the way the flip mode works, it's the default mode that
`is presented to the user when the system gets turned on. And the way flip
`mode works is as the user moves through the guide, changes the channel,
`the program information at the bottom of the screen changes and the
`channel changes. So it's in sync. It's very similar to Rauch. As the user
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`moves through the different channels, you can see the program
`information for the channel along with the video for that channel.
`But Bennington has a different mode called the browse mode.
`There's a button on the remote control of Bennington, and if the user
`pushes the browse mode button, the functionality switches. The way it
`works is shown in Figures 11 and 12 here. It's not shown that great in the
`patent, but it's explained very clearly in column 11. The way it works is
`if the user is watching a channel on the left side of slide 13, which is
`Figure 11 of Bennington, there's a background program playing that's got
`the silhouettes. That's intended to illustrate the program that's currently
`being broadcast. At the bottom is a program overlay that has schedule
`information including the channel number, the network name, the name
`of the program and the time. In this overlay, it includes a little "I" dot
`there that allows the user to get even more information. And in this
`configuration, if the user pushes an up/down button on the remote
`control, it will change -- at the bottom it will show program information
`for a different channel. So on the right side is Figure 12 from
`Bennington. So the user is looking at the same program in the
`background that he was watching earlier, but he's seeing program
`schedule information for Channel 49 SFSU educational programming for
`a different time period, 5:30 to 6:00 p.m.
`So Bennington gives the user the option of choosing whether or
`not to change the channel as the user goes through the guide, that's the
`flip mode, or when the user pushes the browse button, use the browse
`feature. And the browse feature allows you to keep watching what you
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`are watching and see what's on other channels. So that is the teaching in
`Bennington.
`If we could jump to slide 14, that provides a motivation for
`modifying Rauch to provide this functionality. Now, the petition and our
`expert identified two different ways that Rauch would have been
`modified in view of Bennington to perform that function. But in the
`interest of efficiency, I would like to focus on the second way, which is
`on slide 16. If we could move to slide 16, please. And the reason for
`focusing on this is the first way was only mapped to the independent
`claims. The second way knocks out all the claims. So if we can
`convince you that the second way discloses this, then our position is it
`knocks out all the claims.
`So the teaching from Bennington is that you can have different
`modes allowing the user to pick whether or not to change the channel as
`they move through the program listings. And so what that would inform
`a person of ordinary skill in the art is that you can modify Rauch so that it
`too has a mode that doesn't change the channel as you move through the
`guide.
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`If we could go to slide 17, slide 17 shows the Figure 6 change
`selection routine that we saw earlier from Rauch that has been modified
`to incorporate a browse-like mode. So just to recap, when the user
`changes the channel in the grid, moves to a different grid entry, the
`Figure 6 will execute step 600. It will change the highlight, it will
`change the detailed description, which is the text stream. And if browse
`mode wasn't selected, in other words, it was still just doing what Rauch is
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`doing, it will go down, have a programs on, it'll display the program in
`the graphics window and then it will return. But if the user, after moving
`through the guide, decides to use a browse-like mode, push a browse
`button or otherwise implement a browse-like feature, then it would go
`down the left side. And instead of changing the channel, it would
`continue displaying the previously selected program.
`So this is a straightforward application of Bennington's teaching
`of giving the user the choice as to whether to change the channel when
`we go through the guide or not change the channel.
`If we could go to slide 18, the next few slides discuss some of
`the patent owner's arguments as to why these combinations are improper.
`First of all, the patent owner argues that Rauch teaches away from this
`combination because it discredits this approach. But if you look at it,
`first of all, this panel already rejected that argument in the institution
`decision. There's nothing in Rauch that criticizes, discredits or otherwise
`discourages investigation into the combination. And that's, of course, the
`Federal Circuit's test for teaching away.
`JUDGE BENOIT: Excuse me, counsel. We found, as you
`carefully wrote on your slide, that at least for purposes of the institution
`decision and on that record. So we did not find that there was no
`teaching away.
`MR. WRIGHT: Okay. I accept that. But if you look at what
`the patent owner has pointed to in Rauch as the alleged teaching away,
`there's two things that Rauch criticizes. In column 1 at the bottom of
`Rauch, Rauch criticizes the use of a printed TV guide. That's not at issue
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`here. Nobody is arguing that this combination has anything to do with
`printed TV guides.
`Then at the bottom of column 1, continuing over to the top of
`column 2, Rauch criticizes some other unspecified prior art program
`guide where there's a program guide and an overlay pops up with detailed
`information and then the user has to push a button to remove the overlay.
`We don't know what prior art that is. It wasn't specifically identified.
`None of the prior art in these combinations is even listed on the face of
`Rauch.
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`But it's irrelevant because that is not -- that system and nothing
`like that system is formed by this combination. Nothing in any of these
`combinations involving Rauch has a pop-up window that obscures the
`program guide that has to be removed. So it's really irrelevant. Rauch
`already solves that problem by putting all three separate areas on the
`screen. So there is no need to overlap anything. So this argument and
`our position is this argument completely lacks merit.
`On slide 19 the patent owner says, well, the intended purpose of
`Rauch is that the detailed text description and the video have to work in
`unison; it's a principle of operation of Rauch and it has to be preserved at
`all costs. That argument runs out of steam, however. If we could go
`back to Figure 6 of Rauch, which is on slide 10, again, as we saw, if the
`selected program is not on, there's no video of the program to display,
`and so Rauch says you can display a blank window. So it can't possibly
`be the case that Rauch requires that the text detailed program information
`and the video and the program listing all operate in synchrony.
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`JUDGE BISK: May I ask a quick question. So in this
`combination you are talking about basically combining the two portions
`of two different embodiments in Rauch, the browse mode and then the
`other mode?
`MR. WRIGHT: So Rauch only has one mode. Rauch's mode
`is that all three areas of the screen change in synchronization, at the same
`time. Bennington teaches that you can allow the user to pick whether or
`not the video in the program changes as you move through the guide.
`JUDGE BISK: Okay. So it's Bennington that has the browse
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`mode.
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`MR. WRIGHT: Yes. So if you think about it, Rauch's mode is
`basically Bennington's flip mode. Bennington says when you are in flip
`mode, which is the default mode, you push the button and the channel
`changes. That's exactly how Rauch works. But Bennington says you can
`also give the user the option of pushing this browse button so that the
`user can see what's on other channels without interrupting the channel
`he's currently watching, let him continue to watch the channel.
`JUDGE BISK: But in that one it's not exactly the same because
`it's the whole show in the background and then just a little bit of
`information on the bottom?
`MR. WRIGHT: Well, that's true. One of the patent owner's
`arguments is, well, you would have modified Rauch differently in view
`of Bennington. But they ignore the part that the petition points to which
`is -- there are a lot of teachings in Bennington. There are a lot of other
`modes in Bennington that are not relevant to this combination. What the
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`petition and our expert rely on is Bennington's teaching of giving the user
`the ability to push a button and change the mode of operation of that
`guide so that the program doesn't change. That's the teaching that is
`relied on in the petition.
`JUDGE BISK: So you are not saying that you have to combine
`the two modes at all?
`MR. WRIGHT: No, absolutely not. There's no need to
`consider the other modes in Bennington because they are not relevant to
`this combination.
`So if we go back to slide 19, please, we were talking about the
`intended purpose argument. So nothing in Rauch requires that all of
`these windows be maintained in synchrony. Moreover, the
`Rauch-Bennington combination based on the browse mode function
`retains that function. So the user can choose to keep all three of those
`windows in synchrony if he leaves it in the Rauch mode. If he pushes a
`button and enters a Bennington-like browse mode, then he doesn't
`change. The user has the choice of doing one or the other. So this
`argument falls apart for the additional reason that the synchronization is
`retained at the user's option.
`I would like to, if we could, we have a few slides in here that I
`don't think we need to cover. But if we could jump to slide 23, I do want
`to just hit this argument. A lot of what the patent owner argues is it
`would have been obvious to do it differently and our expert relied on
`improper hindsight in deciding how to put these references together. The
`petition and the declaration rely on the express teachings in Bennington
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`that we just discussed to modify the primary reference. And there's a
`clear rationale for doing that. The patent owner throws up a straw man
`by saying it would have been done differently if they were to be
`combined, it would have been done differently, and here, look over here.
`It's a red herring. As the PTAB has acknowledged in another case, this
`CaptionCall case, for example, is one of many that have this line of
`reasoning. It's irrelevant what the patent owner proposes would have
`been more obvious.
`They attacked our expert in his deposition saying that, well, you
`didn't consider all the different ways that these two references might have
`been combined and then selected the best one. Well, as this panel, I'm
`sure, knows, that's not the standard for obviousness that the Federal
`Circuit uses. And so that's an irrelevant argument to say it would have
`been done differently or it could have been done differently.
`I would like to, if we can, jump ahead to slide 24. I'm going to
`move on to the second combination, which is the Rauch-Florin
`combination. So we've seen what is in Rauch. And Florin provides
`another independent basis, another independent teaching of allowing a
`user to move through a program guide while simultaneously watching a
`program and not changing the program as you go through the guide.
`So on the right-hand side of slide 24 is Figure 12 from Florin.
`And what this does is this happens when the user pushes the list function,
`which is described in column 15 of Florin. I'll explain it first and then I'll
`just take you to column 15. So when the user pushes a list button on the
`remote control in Florin, this display appears in Figure 12. And there's a
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`program guide, the listings that shows you the channel number, the
`station and what's on the program, and there's a picture-in-picture or PIP
`window in the upper right-hand corner showing a baseball game. And
`the way this works is the user can move a cursor through these program
`listings and continue watching the currently watched program without
`changing the channel.
`If we could pull up column 15 of Florin, please, so Judge
`McMillin, I know you can't see this here, but we are on column 15 of
`Florin, and Florin is Exhibit 1004. This is the list function. And it says
`referring to Figure 12, the list function of the present invention will be
`described. If you move down to line 29, it says, In addition, as shown in
`Figure 12, that's the figure that we were just looking at, a
`picture-in-picture window 250 continues to display the currently viewed
`program which the user was last viewing, right around there.
`Accordingly, the user may continue to view the currently selected
`program and the current program/service listings simultaneously.
`So this is an independent teaching as to why a user would want
`to be able to browse through program listings and continue watching a
`currently watched channel. So this is an independent motivation looking
`at Rauch and considering how Rauch could be modified. And again,
`Rauch has a blank window. Not very useful. So Florin says why not
`continue watching the currently watched channel as you move through
`the guide.
`So if we could jump to slide 25, please, so this is the second
`combination Rauch modified in view of Florin. And as we had with the
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`Bennington combination, our expert set forth two different ways that it
`would have been obvious to modify Rauch in view of Florin. As we did
`with the Bennington combination, I would like to jump ahead and focus
`on a second way, which is on slide 26, because again, this knocks out all
`of the claims.
`So again, we have Rauch's change selection routine which is
`Figure 6 from Rauch here on slide 25. When the user changes the
`channel, it changes the highlighting in the grid, it changes the detailed
`text string and then it checks to see if the program is on. If the program
`is on, it does what Rauch always did, which is display the program in the
`picture-in-graphics window and then it returns. But if the selected
`program is not on, then instead of displaying a useless blank window,
`modified steps 614 in the modified flowchart Rauch would continue
`displaying the program that the user was last viewing. And that's based
`on Florin's teaching of not changing the channel as the user moves
`through the guide.
`If there are no questions on the second combination, I am ready
`to move on to the third and final combination, and that is on slide 28.
`This is the Young-Florin-Yoshino combination. What's shown in slide
`28 is Figure 6 of Young. And I would like to spend a minute just
`explaining how this works. So Young has a grid-style program guide
`which you are all probably familiar with because it's been out in the
`world for decades. And it allows the user to take a cursor which is
`currently on Golden Girls. And the reason you know that it's on Golden
`Girls is there's a highlighted black area at the bottom of the cell next to
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`Channel 4. And so when the cursor is in that cell, down below is what
`Young refers to as a program note but it has in it a detailed program
`description corresponding to the grid entry that the user has the cursor on.
`So as the user moves this cursor around the grid, that bottom box changes
`to coincide with the selected cell.
`Now, Young also teaches in the upper left corner that there's a
`currently tuned channel. The tuner is currently tuned to Channel 2. And
`the way this works is as the user moves around the guide, the detailed
`program description at the bottom changes but the tuner doesn't change.
`The channel doesn't change. Now, what's missing from Young in
`relation to the claimed invention is there's no PIP window showing you
`what's on Channel 2. It also has overlapping windows. The overlapping
`program guide, the detailed program description at the bottom overlaps.
`So if we go to slide 29, the next slide, that's where Florin comes
`in. Florin says you should display a PIP window -- you can have a
`program guide as in Figure 12 that takes up most of the TV screen just
`like in Young, but you can have a small PIP window in the upper right
`corner showing you the currently watched program and as you move
`through the program guide, it doesn't change the channel. So if we were
`to -- if we could go briefly to slide 31, if you were to take -- and I'm just
`going to address the Young-Florin combination before discussing
`Yoshino. So what Young teaches us is that you can have two of the three
`claimed windows, a program guide with the grid entries that the user can
`move the cursor around, a detailed program description in the third area.
`It doesn't have the second window that has the currently tuned program.
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`Young in view of Florin teaches adding that PIP window to a small area
`of the real estate on the screen, and that gives you the three claimed
`windows, the first area with the program guide entries, the second area
`with the video and the third area with the detailed program description.
`As you move through the guide, it changes the detailed description but it
`doesn't change the channel. What's missing from that combination is the
`windows are overlapping. So that's where Yoshino comes in.
`If we could jump ahead to slide 33, slide 33 is Figure 1 from
`Yoshino. What Yoshino teaches us is that you should have a television
`screen split up into three different areas. The first area at the top displays
`a video program. The second area in the lower left displays teletext
`information corresponding to that video in the top window. And the third
`window on the right-hand side, bottom right, displays status information
`such as the channel number.
`And I would like to, if we could pull up Yoshino, please,
`column 1 of Yoshino, starting around line 40, and Judge McMillin, this is
`Exhibit 1006, Yoshino column 1, starting around line 40.
`JUDGE McMILLIN: I have it.
`MR. WRIGHT: So what Yoshino says, However, the methods
`described above are defective in that a part of the picture is lost due to
`insertion of the characters and the entire picture cannot be completely
`reproduced. Yoshino is talking about prior art where windows are
`overlapping. Summary of the invention: It is the object of the present
`invention to provide a television receiver in which a single CRT display
`capable of simultaneously displaying multiple video information is used
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`to satisfy the above demand without giving rise to the loss of any one of
`the displayed pictures. So what Yoshino teaches us is that you should
`avoid overlapping windows if you don't want to lose information on the
`screen.
`
`So if we could go back to the slide that had the combination on
`it, slide 31, please, so that combination results in what's at the bottom of
`slide 31. And that combination fully discloses what's in the independent
`claims of the '864 patent. We've got the three different windows. The
`two out of three windows move in synchronization, but the video doesn't
`change as we move through the guide as taught by Florin. And Yoshino
`says by the
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