`571.272.7822
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` Paper No. 41
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`Entered: September 19, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`COMCAST CABLE COMMUNICATIONS, LLC,
`Petitioner,
`
`v.
`
`ROVI GUIDES, INC.,
`Patent Owner.
`
`____________
`
`Case IPR2017-00952
`Patent 8,006,263 B2
`____________
`
`
`
`Before KEVIN F. TURNER, MICHAEL R. ZECHER, and
`JESSICA C. KAISER, Administrative Patent Judges.
`
`ZECHER, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`
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`I. INTRODUCTION
`Petitioner, Comcast Cable Communications, LLC (“Comcast”), filed a
`Petition requesting an inter partes review of claims 1–19 of U.S. Patent No.
`8,006,263 B2 (Ex. 1201, “the ’263 patent”). Paper 2 (“Pet.”). Patent
`Owner, Rovi Guides, Inc. (“Rovi”), filed a Preliminary Response. Paper 6.
`Taking into account the arguments presented in Rovi’s Preliminary
`Response, we determined that the information presented in the Petition
`established that there was a reasonable likelihood that Comcast would
`prevail in challenging claims 1–19 of the ’263 patent as unpatentable under
`35 U.S.C. § 103(a). Pursuant to 35 U.S.C. § 314, we instituted this inter
`partes review on September 20, 2017, as to all of the challenged claims and
`all the grounds presented the Petition. Paper 11 (“Dec. on Inst.”).
`During the course of trial, Rovi filed a Patent Owner Response (Paper
`17, “PO Resp.”), and Comcast filed a Reply to the Patent Owner Response
`(Paper 30, “Pet. Reply”). A consolidated oral hearing with related Cases
`IPR2017-00950, IPR2017-00951, IPR2017-01048, IPR2017-01049,
`IPR2017-01050, IPR2017-01065, IPR2017-01066, and IPR2017-01143 was
`held on June 19, 2018, and a transcript of the hearing is included in the
`record. Paper 40 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This decision is a Final
`Written Decision under 35 U.S.C. § 318(a) as to the patentability of
`claims 1–19 of the ’263 patent. For the reasons discussed below, we hold
`that Comcast has demonstrated by a preponderance of the evidence that
`these claims are unpatentable under § 103(a).
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`A. Related Matters
`The ’263 patent is involved in the following district court cases:
`(1) Rovi Guides, Inc. v. Comcast Corp., No. 2:16-cv-00322 (E.D. Tex.),
`which has been transferred to the U.S. District Court for the Southern
`District of New York and is pending as Rovi Guides, Inc. v. Comcast Corp.,
`No. 1:16-cv-09826 (S.D.N.Y); and (2) Comcast Corp. v. Rovi Corp., No.
`1:16-cv-03852 (S.D.N.Y). Pet. 1–2; Paper 4, 2. The ’263 patent also has
`been asserted against Comcast in a proceeding before the U.S. International
`Trade Commission (“ITC”) styled In re Certain Digital Video Receivers
`and Hardware and Software Components Thereof, No. 337-TA-1001. Pet.
`2; Paper 4, 2.
`In addition to this Petition, Comcast filed two other petitions
`challenging the patentability of claims 1–19 of the ’263 patent (Cases
`IPR2017-00950 and IPR2017-00951). Pet. 3; Paper 4, 2. Comcast also filed
`other petitions challenging the patentability of certain subsets of claims in
`several patents owned by Rovi. Pet. 3.
`B. The ’263 Patent
`The ’263 patent, titled “Interactive Television Program Guide with
`Remote Access,” issued August 23, 2011, from U.S. Patent Application
`No. 11/246,392, filed on October 7, 2005. Ex. 1201, [54], [45], [21], [22].
`The ’263 patent is a continuation of U.S. Patent Application No. 10/927,814,
`filed on August 26, 2004, which, in turn, is a continuation of U.S. Patent
`Application No. 09/354,344, filed on July 16, 1999. Id. at [63]. The ’263
`patent also claims the benefit of U.S. Provisional Application No.
`60/097,527, filed on August 21, 1998, and U.S. Provisional Application No.
`60/093,292, filed on July 17, 1998. Id. at [60].
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`The ’263 patent generally relates to interactive television program
`guide video systems and, in particular, to such systems that provide remote
`access to program guide functionality. Ex. 1201, 1:19–22. The ’263 patent
`discloses that conventional interactive television program guide systems
`typically are implemented on set-top boxes located in the home of a user
`and, as a result, do not permit the user to perform program guide functions
`without the user being physically located in the same room as these systems.
`Id. at 1:37–45. Stated differently, conventional interactive television
`program guide systems require the user to be present in the home to access
`important program guide features, such as program reminders, parental
`controls, and program recording. Id. at 2:19–22. The ’263 patent
`purportedly addresses this and other problems by providing an interactive
`television program guide system that allows a user to access certain features
`of the program guide remotely and establish settings for those features. Id.
`at 2:23–28.
`Figure 1 of the ’263 patent, reproduced below, illustrates a schematic
`block diagram of the system in accordance with the present invention.
`Ex. 1201, 3:45–46, 4:29–30.
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`As shown in Figure 1 reproduced above, system 10 includes main facility 12
`that provides interactive television program guide data from program guide
`data source 14 to interactive television program guide equipment 17 via
`communication link 18. Id. at 4:29–33. Interactive television program
`guide equipment 17 is connected to at least one remote program guide
`access device 24 via remote access link 19. Id. at 4:47–53.
`
`Figure 2a of the ’263 patent, reproduced below, illustrates one
`arrangement involving the interactive television program guide equipment
`17 and remote program guide access device 24 in accordance with the
`principles of the present invention. Ex. 1201, 3:47–50, 4:55–57.
`
`
`As shown in Figure 2a reproduced above, interactive television program
`guide equipment 17 includes program guide distribution equipment 21
`located at television distribution facility 16, which distributes program guide
`data to user television equipment 22 via communications path 20. Id. at
`4:57–67. Remote program guide access device 24 receives the program
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`guide data, as well as any additional data necessary to access various
`functions of the interactive program guide, from user television equipment
`22 via remote access link 19. Id. at 5:29–39.
`In at least one embodiment, the ’263 patent discloses that a remote
`access interactive television program guide implemented on remote program
`guide access device 24 communicates with a local interactive television
`program guide implemented on interactive television program guide
`equipment 17. Ex. 1201, 12:23–29. In one example, the remote access and
`local interactive television program guides may be two different guides that
`communicate with each other. Id. at 12:34–37; see also id. at 22:49–23:6
`(disclosing steps involved with using the remote access interactive television
`program guide to provide program listing information to a user). In another
`example, the remote access and local interactive television program guides
`may be the same guide, but compiled to run on two different platforms. Id.
`at 12:29–32.
`The ’263 patent discloses transferring program guide information and
`settings between remote program guide access device 24 and interactive
`television program guide equipment 17 using any suitable application layer
`protocol. Ex. 1201, 13:7–11. For example, if remote access link 19 is an
`Internet link, program guide functionality may be accessed using Hypertext
`Transfer Protocol. Id. at 13:11–13. Remote program guide access device 24
`and interactive television program guide equipment 17 also may transfer
`program guide information as files using either File Transfer Protocol or
`Trivial File Transfer Protocol running over a Transmission Control
`Protocol/Internet Protocol stack. Id. at 13:13–18. The ’263 patent makes
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`clear that “[a]ny suitable file transfer protocol based on any suitable protocol
`stack may be used.” Id. at 13:18–19.
`C. Illustrative Claim
`Of the challenged claims, claims 1, 5, 8, 11, 14, and 17 are
`
`independent. Independent claims 1, 8, and 14 are each directed to a system
`for selecting television programs over a remote access link that includes an
`Internet communications path for recording, whereas independent claims 5,
`11, and 17 are each directed to a method for performing the same. Claims
`2–4 directly depend from independent claim 1; claims 6 and 7 directly
`depend from independent claim 5; claims 9 and 10 directly depend from
`independent claim 8; claims 12 and 13 directly depend from independent
`claim 11; claims 15 and 16 directly depend from independent claim 14; and
`claims 18 and 19 directly depend from independent claim 17. Independent
`claim 1 is illustrative of the challenged claims and is reproduced below:
`1.
`A system for selecting television programs over a
`remote access link comprising an Internet communications path
`for recording, comprising:
`a local interactive television program guide equipment on
`which a
`local
`interactive
`television program guide
`is
`implemented, wherein the local interactive television program
`guide equipment includes user television equipment located
`within a user’s home and the local interactive television program
`guide generates a display of one or more program listings for
`display on a display device at the user’s home; and
`a remote program guide access device located outside of
`the user’s home on which a remote access interactive television
`program guide is implemented, wherein the remote program
`guide access device is a mobile device, and wherein the remote
`access interactive television program guide:
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`generates a display of a plurality of program listings for
`display on the remote program guide access device, wherein the
`display of the plurality of program listings is generated based on
`a user profile stored at a location remote from the remote
`program guide access device;
`receives a selection of a program listing of the plurality of
`program listings in the display, wherein the selection identifies a
`television program corresponding to the selected program listing
`for recording by the local interactive television program guide;
`and
`
`transmits a communication identifying the television
`program corresponding to the selected program listing from the
`remote access interactive television program guide to the local
`interactive
`television program guide over
`the
`Internet
`communications path;
`wherein the local interactive television program guide
`receives the communication and records the television program
`corresponding to the selected program listing responsive to the
`communication using the local interactive television program
`guide equipment.
`Ex. 1201, 28:27–63.
`
`Exhibit No.
`
`D. Prior Art Relied Upon
`Comcast relies upon the following prior art references:
`Inventor1
`Patent or
`Relevant Dates
`Publication No.
`U.S. Patent No.
`6,163,316
`U.S. Patent No.
`5,805,763
`PCT Int’l Pub. No.
`WO 98/10589
`
`1 For clarity and ease of reference, we only list the first named inventor.
`2 Blake incorporates by reference U.S. Patent No. 4,706,121 B1 (Ex. 1223,
`“Young”).
`
`Killian
`
`Lawler
`
`Blake2
`
`issued Dec. 19, 2000,
`filed Oct. 3, 1997
`issued Sept. 8, 1998,
`filed May 5, 1995
`published Mar. 12, 1998,
`filed Sept. 2, 1997
`
`1208
`
`1209
`
`1222
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`E. Instituted Grounds of Unpatentability
`We instituted a trial based on the asserted grounds of unpatentability
`
`(“grounds”) set forth in the table below. Dec. on Inst. 36.
`References
`Basis
`Challenged Claims
`Blake and Killian
`§ 103(a)
`1, 2, 4–6, 8, 9, 11, 12, 14,
`15, 17, and 18
`3, 7, 10, 13, 16, and 19
`
`Blake, Killian, and Lawler
`
`§ 103(a)
`
`
`
`II. ANALYSIS
`A. Claim Construction
`In an inter partes review, claim terms of an unexpired patent are given
`their broadest reasonable interpretation in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b). Under the broadest
`reasonable interpretation standard, and absent any special definitions, claim
`terms are generally given their ordinary and customary meaning, as would
`be understood by one of ordinary skill in the art, in the context of the entire
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007).
`In the Decision on Institution, we determined that the only claim
`terms requiring construction are “local/remote access interactive television
`program guides,” and only to the extent necessary to resolve whether the
`grounds asserted by Comcast properly accounted for both a “local
`interactive television program guide” and a “remote access interactive
`television program guide.” Dec. on Inst. 9 (citing Vivid Techs., Inc. v. Am.
`Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (explaining that only
`those claim terms that are in controversy need to be construed, and only to
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`the extent necessary to resolve the controversy)). Upon reviewing the
`parties’ preliminary arguments and evidence, we adopted Comcast’s
`proposed construction that an “interactive television program guide” is
`“control software operative at least in part to generate a display of television
`program listings and allow a user to navigate through the listings, make
`selections, and control functions of the software.” Id. at 13. We further
`clarified that the claim terms “local interactive television program guide”
`and “remote access interactive television program guide” are separately
`identifiable elements, and are not construed properly as reading on the same
`interactive television program guide. Id.
`In its Patent Owner Response, Rovi generally agrees with our initial
`determination that the only claim terms requiring construction are
`“local/remote access interactive television program guides.” PO Resp. 8.
`Rovi, however, proposes that the proper constructions for these claims terms
`are the following: (1) “local interactive television program guide” is a
`“guide that allows navigation through television program listings and causes
`display of program information on user television equipment”; and (2)
`“remote access interactive television program guide” is a “guide allowing
`navigation through television program listings using a remote access link.”
`Id. at 9. According to Rovi, its proposed constructions for the claim terms
`“local/remote access interactive television program guides” are consistent
`with the intrinsic evidence, our preliminary finding that these guides must be
`distinct guides, and the findings of the ITC in related proceedings. Id.
`(citing Ex. 1250, 185, 190).
`Rovi further contends that any difference between our constructions
`and the ITC’s constructions of the claim terms “local/remote access
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`interactive television program guides” is not relevant to the grounds at issue
`in this proceeding because, according to Rovi, each of Comcast’s asserted
`grounds fail under Rovi’s broader constructions “that do[] not unnecessarily
`restrict the guides to ‘control software’ that ‘controls functions of the
`software.’” PO Resp. 10. Rovi asserts that, because each of Comcast’s
`asserted grounds fail under broader constructions for these claim terms, we
`need not determine whether the asserted prior art satisfies Comcast’s
`proposed constructions. Id. Rovi then proceeds to explain how our
`preliminary constructions and the ITC’s constructions are consistent in
`certain respects because (1) they both require the guides to be interactive
`(i.e., navigable and selectable); and (2) they both agree that the claims
`require two separate guides, as properly construed. Id. at 10–12.3
`In its Reply, Comcast counters with the following: (1) its arguments
`apply the broadest reasonable interpretation standard; (2) it relies on Rovi’s
`arguments from the related ITC proceeding regarding the proper scope and
`meaning of the claim terms “local/remote access interactive television
`program guides” as evidence of the broadest reasonable interpretation of
`these claims terms in this proceeding; and (3) it disagrees with Rovi’s
`proposed constructions both in this proceeding and in the ITC proceeding.
`Pet. Reply 1 n.1.
`
`
`3 For the first time at the oral hearing, Rovi argued that “remote access
`interactive television program guide” requires “dedicated code at the remote
`device.” See, e.g., Tr. 58:3–7, 60:19–61:14, 66:14–21. We agree with
`Comcast (id. at 96:3–10) that this is a new argument that was not presented
`and developed in Rovi’s briefs and, therefore, we do not consider it. See
`Paper 12, 3 (cautioning Rovi that “any arguments for patentability not raised
`in the response will be deemed waived”).
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`As an initial matter, it is not clear to us whether Rovi actually disputes
`our preliminary construction of the claim term “interactive television
`program guide.” On the one hand, Rovi asserts that the ITC’s constructions
`of local interactive television program guide (i.e., a “guide that allows
`navigation through television program listings and causes display of
`program information on user television equipment”) and remote access
`interactive television program guide (i.e., a “guide allowing navigation
`through television program listings using a remote access link”) are the
`proper constructions. PO Resp. 9. On the other hand, Rovi argues that both
`our constructions and the ITC’s constructions “are consistent with respect to
`the relevant aspects (e.g., navigation and selection)” of a local/remote access
`interactive television program guide. Id. at 9–10. Rovi further contends that
`“[a]ny differences between the Board’s and the ITC’s constructions are not
`relevant to [Comcast’s] failures of proof regarding the asserted prior art and
`[g]rounds at issue in the proceeding.” Id. (emphasis added); see also
`Ex. 2208 ¶ 25 (Rovi’s declarant, Dr. Shamos, testifies that, “regardless of
`which constructions the Board applies, my opinions remain the same. The
`asserted prior art references here fail to disclose the claim limitations . . .
`under either construction.”). These arguments make it difficult to ascertain
`what Rovi actually views as the proper scope and meaning of the claim
`terms “local/remote access interactive television program guides.”
`Nevertheless, we are charged in this proceeding with determining the
`broadest reasonable interpretation of these claim terms.
`Beginning with the intrinsic record, neither party argues, nor could we
`find, an explicit definition for the claim term “interactive television program
`guide” in the specification of the ’263 patent. The specification, however, is
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`replete with descriptions of conventional, local, or remote interactive
`television program guides. For instance, the specification discloses that
`conventional interactive television program guides display “various groups
`of television program [guide] listings . . . in predefined or user-defined
`categories,” and “allow the user to navigate through [the] television program
`listings” and make a selection “using a remote control.” Ex. 1201, 1:31–36.
`For a conventional interactive television program guide, the user must
`physically be located in the same room as the set-top box on which the
`interactive television program guide is implemented to select programs for
`recording or to perform other guide functions. Id. at 1:37–45. In the context
`of discussing the implementation of a remote access interactive television
`program guide, the specification discloses that such a guide works in
`conjunction with a remote device to “provide users with the opportunity to
`remotely access features of the interactive television program guide on the
`interactive television program guide equipment and to remotely set program
`guide settings.” Id. at 2:41–46. The specification goes on to disclose that
`“[a]ny suitable interactive television program guide function or setting may
`be accessed,” including, but not limited to, “remotely select[ing]
`programming for recordings” and “remotely set[ting] and navigat[ing]
`through favorites (e.g., favorite channels, program categories, services,
`etc.).” Id. at 2:47–56.
`Although the aforementioned disclosures provide guidance as to the
`functionality of an “interactive television program guide” (i.e., navigable,
`selectable, and capable of controlling certain functions or settings), neither
`party directs us to, nor can we find, a disclosure in the specification that
`specifically identifies what element or elements constitute a “guide.” Given
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`the lack of disclosure in this regard, we decline to limit the “guide” to a
`single software application. Rather, these disclosures support Comcast’s
`proposed construction that an “interactive television program guide” is
`“control software operative at least in part to generate a display of television
`program listings and allow a user to navigate through the listings, make
`selections, and control functions of the software.”
`We further clarify that, based on the plain language of independent
`claims 1, 5, 8, 11, 14, and 17, they indicate that the claim terms “local
`interactive television program guide” and “remote access interactive
`television program guide” are separately identifiable elements. See Becton,
`Dickinson & Co. v. Tyco Healthcare Grp., LP, 616 F.3d 1249, 1254 (Fed.
`Cir. 2010) (“Where a claim lists elements separately, ‘the clear implication
`of the claim language’ is that those elements are ‘distinct component[s]’ of
`the patented invention.” (alteration in original) (quoting Gaus v. Conair
`Corp., 363 F.3d 1284, 1288 (Fed. Cir. 2004))). Our determination in this
`regard is supported by the specification, which includes various
`embodiments that treat these claim terms as separately identifiable elements
`capable of communicating with each other. See, e.g., Ex. 1201, 12:34–37
`(“In still another suitable approach, the [local interactive television program
`guide and remote access interactive television program guide] may be
`different guides that communicate in a manner or manners discussed . . .
`herein.”), 20:18–23 (“The remote access [interactive television] program
`guide may . . . send audio, graphical, and text messages to the local
`interactive [television] program guide for playing or display by user
`television equipment 22.”). The specification also explains that the “local
`interactive television program guide” and “remote access interactive
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`television program guide” may be the same guide, in which case they are
`separately identifiable elements in that each guide is compiled to run on a
`different platform. See id. at 12:29–32 (“The remote access and local guide
`may, for example, be the same guide but compiled to run on two different
`platforms and to communicate in a manner or manners discussed herein.”).
`We decline to adopt Rovi’s proposed constructions of the claim terms
`“local/remote access interactive television program guides” for two reasons.
`First, we are unable to determine how Rovi’s proposed constructions add
`any clarity to the scope and meaning of an “interactive television program
`guide.” That is, we view each of Rovi’s proposed constructions as circular
`and unhelpful because they define each of the guides as a “guide [that
`allows/allowing] navigation through television program listings.” PO Resp.
`8–9 (emphasis added). Rovi, however, does not actually identify what
`element or elements specifically constitute the “guide.”
`Second, Rovi states that its proposed constructions indicate “where
`the specific guide resides (i.e., on ‘user television equipment’ or over ‘a
`remote access link’),” but readily admits that “these additions merely restate
`the language of the broader claim limitation[s].” PO Resp. 12–13 (emphasis
`omitted) (citing Ex. 1250, 185, 190). It is well settled that the U.S. Court of
`Appeals for the Federal Circuit disfavors any claim interpretation that
`renders a claim term or phrase superfluous. See Apple, Inc. v. Ameranth,
`Inc., 842 F.3d 1229, 1237 (Fed. Cir. 2016) (“The Board was correct to not
`include in its construction of ‘menu’ features of menus that are expressly
`recited in the claims. . . . Construing a claim term to include features of that
`term already recited in the claims would make those expressly recited
`features redundant.”). If we were to adopt the language in Rovi’s proposed
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`constructions pertaining to where each guide resides, it would render
`superfluous the language that is already explicitly recited in independent
`claim 1, and similarly recited in independent claims 5, 8, 11, 14, and 17—
`namely, “over a remote access link” and “a local interactive television
`program guide equipment on which a local interactive television program
`guide is implemented, wherein the local interactive television program guide
`equipment includes user television equipment.”4
`Turning now to the extrinsic evidence, in Dr. Tjaden’s Declaration
`accompanying the Petition, he testifies that “the local [interactive television
`program] guide may be implemented at least in part on a server or other
`device outside the user’s home.” Ex. 1202 ¶ 35. To support this testimony,
`he directs us to Rovi’s interpretation of the claim term “local interactive
`television program guide” in the related ITC proceeding. Id. (citing
`Ex. 1245, 56; Ex. 1246, 43). In Dr. Tjaden’s Declaration accompanying the
`Reply, he elaborates further on his initial position by testifying that “a
`[person of ordinary skill in the art] looking at the ’263 Patent would have
`understood that many different arrangements of the software and hardware
`components comprising an interactive television program guide are possible
`and acceptable in [the] prior art used to show obviousness.” Ex. 1252 ¶ 15.
`To support this testimony, he directs us to the different arrangements of
`
`
`4 During oral argument, in response to a question regarding the ITC’s
`construction of the “local interactive television program guide” being on
`user television equipment and its construction that the “remote access
`television program guide” uses a remote access link, counsel for Rovi stated
`that “I don’t think where [the guides are] implemented is meaningful
`because that’s recited in the claim separately.” Tr. 66:22–67:24.
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`software and hardware in the ’263 patent. Id. (citing Ex. 1201, 4:30–33,
`4:47–49, 4:57–61, 6:48–50, 7:53–60, Figs. 1, 2a–2d).
`Dr. Shamos’s Declaration in the ITC proceeding serves as further
`evidence as to what element or elements constitute a “guide.” Although we
`recognize that the broadest reasonable interpretation standard governs in this
`proceeding, whereas the district court claim construction standard governs in
`an ITC proceeding, Dr. Shamos’s testimony in the ITC proceeding is
`relevant here because it sheds some light on what element or elements he
`believes constitutes a “guide.” In the ITC proceeding, Dr. Shamos testifies
`that the claim term “local interactive television program guide” could be an
`“extensive collection of hardware and software.” Ex. 1254 ¶ 169. He also
`testifies “that the ‘local [interactive television program] guide’ [should not
`be construed as] a single software application that must reside on a device in
`the user’s home,” and “[n]othing in the claims exclude a ‘recording
`application’ from being part of the local [interactive television program]
`guide.” Id. ¶ 371. Dr. Shamos’s testimony in the ITC proceeding is
`consistent with Dr. Tjaden’s testimony in this proceeding because, like Dr.
`Tjaden, Dr. Shamos does not limit a “guide” to a single software application,
`but rather contemplates that the “guide” may constitute different
`arrangements of software and hardware.
`We note that the aforementioned testimony from Dr. Tjaden and Dr.
`Shamos suggests that the “guide” may include both software and hardware.
`Rovi likewise argues that its proposed construction is broader than
`Comcast’s because “it does not unnecessarily restrict the guides to ‘control
`software.’” PO Resp. 10. We do not find support in the intrinsic record that
`the “guide” may include hardware. Rather, the ’263 patent separately refers
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`to the interactive television program guide and the hardware on which it is
`implemented. See, e.g., Ex. 1201, 1:37–38 (“Interactive television program
`guides are typically implemented on set-top boxes . . . .”). The
`aforementioned testimony, however, is consistent with our finding that the
`“guide” may constitute more than just a single software application.
`In summary, upon weighing all the evidence bearing on the
`construction of the claim term “interactive television program guide,” we
`maintain that the broadest reasonable interpretation of this claim term is
`“control software operative at least in part to generate a display of television
`program listings and allow a user to navigate through the listings, make
`selections, and control functions of the software.” We also maintain that the
`claim terms “local interactive television program guide” and “remote access
`interactive television program guide” are separately identifiable elements,
`and are not construed properly as reading on the same interactive television
`program guide.
`B. Obviousness Over the Combined Teachings of Blake and Killian
`Comcast contends that claims 1, 2, 4–6, 8, 9, 11, 12, 14, 15, 17, and
`18 of the ’263 patent are unpatentable under § 103(a) over the combined
`teachings of Blake and Killian. Pet. 23–51. Comcast explains how this
`proffered combination teaches or suggests the subject matter of each
`challenged claim, and provides reasoning as to why one of ordinary skill in
`the art would have been prompted to modify or combine the references’
`respective teachings. Id. Comcast also relies upon the Declaration of Dr.
`Tjaden to support its positions. Ex. 1202 ¶¶ 94–193. In its Patent Owner
`Response, Rovi presents a number of arguments as to why the combined
`teachings of Blake and Killian do not render the limitations of independent
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`claims 1, 5, 8, 11, 14, and 17 obvious. PO Resp. 19–39. Rovi relies upon
`the Declaration of Dr. Shamos to support its positions. Ex. 2208 ¶¶ 165–
`195.
`We begin our analysis with the principles of law that generally apply
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`to a ground based on obviousness, followed by an assessment of the level of
`skill in the art, proceeded by brief overviews of Blake and Killian, and then
`we address the parties’ contentions with respect to the claims at issue in this
`asserted ground.
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`1. Principles of Law
`A claim is unpatentable under § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of skill in
`the art; and (4) when in evidence, objective indicia of non-obviousness
`(i.e., secondary considerations). Graham v. John Deere Co., 383 U.S. 1, 17–
`18 (1966). We analyze this asserted ground based on obviousness with the
`principles identified above in mind.
`2. Level of Skill in the Art
`There is evidence in the record before us that enables us to determine
`the knowledge level of a person of ordinary ski