Trials@uspto.gov
`571-272-7822
`
`
` Paper: 29
`
`Date: December 28, 2020
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`SLING TV L.L.C.,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`IPR2019-01363
`Patent 9,721,273 B2
`____________
`
`
`
`Before KEVIN F. TURNER, JENNIFER S. BISK, and NEIL T. POWELL,
`Administrative Patent Judges.
`
`BISK, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`35 U.S.C § 318(a)
`
`
`
`I. INTRODUCTION
`Sling TV L.L.C. (“Petitioner”) filed a Petition requesting an inter
`partes review of claims 1–3 of U.S. Patent No. 9,721,273 B2 (Ex. 1001, “the
`’273 patent”). Paper 1 (“Pet.”). Uniloc 2017 LLC, identified as the owner
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`of and real party in interest to the ’273 patent (Paper 4), filed a Preliminary
`Response to the Petition. Paper 6 (“Prelim. Resp.”). We instituted this
`review as to all challenged claims. Paper 7 (“Inst. Dec.”).
`Subsequent to institution, Patent Owner filed a Patent Owner
`Response. Paper 13 (“PO Resp.”). Petitioner filed a Reply. Paper 14
`(“Reply”). And Patent Owner filed a Sur-Reply. Paper 15 (“Sur-Reply”).
`An oral hearing was held on October 14, 2020. Paper 28 (“Tr.”). Based on
`discussions at the hearing, the panel authorized, and each party filed,
`additional briefing on claim construction issues. Paper 26 (“Pet. Post-
`Hearing Br.”); Paper 27 (“PO Post-Hearing Br.”).
`This Final Written Decision is entered pursuant to 35 U.S.C. § 318(a).
`For the reasons that follow, Petitioner has not demonstrated by a
`preponderance of the evidence that claims 1–3 of the ’273 patent are
`unpatentable.
`
`II. BACKGROUND
`
`A. Related Matters
`The parties identify several district court cases involving the ’273
`patent. Pet. v; Prelim. Resp. 2. With its Response, Patent Owner filed a
`Markman ruling issued by the Central District of California on March 9,
`2020. Ex. 2001 (Markman ruling in Uniloc 2017 LLC v. Netflix, Inc., 8:18-
`cv-02055) (“Netflix Decision”).
`
`B. The ’273 Patent
`The ’273 patent, titled System and Method for Aggregating and
`Providing Audio and Visual Presentations Via a Computer Network, issued
`August 1, 2017. Ex. 1001, codes (45), (54). It addresses the problem of
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`locating content on the Internet for the purpose of business productivity and
`consumer education and entertainment. Id. at 1:51–55, 2:6–10. In
`particular, the ’273 patent discusses storing and aggregating audio/visual
`presentation data for delivery via a computer network using a common web
`page. Id. at 2:15–3:11.
`Figure 2 is reproduced below.
`
`
`
`Figure 2 “illustrates an electronic document according to an embodiment of
`the present invention.” Id. at 3:22–23. Web page 200 “aggregates audio
`and/or video content for presentation to users of computers 20.” Id. at 5:4–
`6. It displays a row for each of three presentations 265, 270, and 275, each
`row including particular content graphics 230, particular content information
`240, and indicator 235. Id. at 5:16–20. “A user may select such a
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`presentation for display by selecting an individual presentation for streaming
`or downloading, such as by clicking on an indicator . . . .” Id. at 5:20–23.
`The ’273 patent describes an embodiment, process 800, which is
`“suitable for automatically aggregating and linking to presentations housed
`elsewhere in memory so as to be accessible to a [user’s computer] via [a]
`network.” Id. at 10:56–62. According to the ’273 patent, “Really Simple
`Syndication (‘RSS’) is a family of [standardized] Internet feed formats used
`to publish content that may be frequently updated, such as podcasts (RSS
`2.0).” Id. at 10:64–66.
`Figure 8 is reproduced below.
`
`
`Figure 8 shows a flow diagram of process 800. Id. at 10:56–58. After a user
`provides log on information at a client computer (step 805) and a server
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`computer logs the user on (step 810), the logged on user, at step 815,
`requests to link an RSS feed by interacting with a web page. Id. at 11:20–
`30. The server then requests information about the content to be created,
`including title and description (step 820), and the user provides at least a
`portion of the requested information (step 825). Id. at 11:30–41. The
`information provided may be screened, filtered, or verified (step 830) and
`stored (step 850). Id. at 11:41–52. At step 855, the server “may determine if
`new content exists for one or more feeds stored at block 850” using “any of
`a number of conventional manner[s], including periodically checking when
`the feed was last updated.” Id. at 11:63–12:1. Any new or changed content
`may be appended to the data stored in step 850. Id. at 12:1–3.
`
`C. Illustrative Claim
`Claims 1 and 2 are independent, and claim 3 depends from claim 2.
`
`Claim 1 is illustrative of the subject matter at issue and reads as follows:
`1. A method for providing content via a computer network and
`computing system, the method comprising:
`[a] storing presentation data that represents content
`of a first collection of one or more presentations using
`the computer system;
`[b] storing data indicative of the first collection of
`presentations so as to be associated with the presentation
`data;
`
`[c] storing feed data that represents a collection of
`one or more feeds using the computer system, wherein
`each of the feeds identifies a corresponding second
`collection of one or more presentations being accessible
`via the computer network and includes no data
`representing content of the second collection of
`presentations;
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`[d] automatically and periodically accessing each
`of the feeds to identify each of the corresponding second
`collection of presentations, using the computer system;
`[e] storing data associated with a third collection of
`one or more presentations; and
`[f] aggregating each of the first, identified second,
`and third collections of presentations for delivery via the
`computer network using a common web page.
`Ex. 1001, 12:39–59 (bracketed lettering added) (emphasis added to
`disputed limitation). Claim 2—and, therefore, all challenged
`claims—contains a limitation identical to that emphasized above. See
`id. at 13:7–11.
`
`D. Proposed Grounds of Unpatentability
`We instituted inter partes review on the following grounds of
`unpatentability under 35 U.S.C. § 103. Inst. Dec. 11.
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`Claim(s)
`Challenged
` 1–3
` 1–3
`
` 1031
` 103
`
`35 U.S.C. §
`
`
`
`Reference(s)/Basis
`
`Li2, knowledge of a person of skill in the art3
`Li, Motte4
`
`Pet. 2, 19–63. Petitioner also relies on the Declaration of James A. Storer,
`Ph.D. (Ex. 1002).
`
`III. ANALYSIS
`
`A. Level of Skill in the Art
`The level of skill in the art is a factual determination that provides a
`primary guarantee of objectivity in an obviousness analysis. See Al-Site
`Corp. v. VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing Graham
`v. John Deere Co., 383 U.S. 1, 17–18 (1966)). The level of skill in the art
`also informs the claim construction analysis. See Teva Pharm. USA, Inc. v.
`Sandoz, Inc., 574 U.S. 318, 332 (2015) (explaining that claim construction
`seeks the meaning “a skilled artisan would ascribe” to the claim term “in the
`context of the specific patent claim” (emphasis omitted)).
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103, effective March 16,
`2013. Because the application from which the ’273 patent issued was filed
`before this date, the pre-AIA version of § 103 applies.
`2 U.S. Patent Appl. Publication No. 2008/0256443 A1 (filed April 16, 2007;
`published Oct. 16, 2008) (Ex. 1006).
`3 Petitioner states that a person of ordinary skill in the art at the time of the
`’273 patent “would have knowledge of the webpage, Internet, and feed
`technology” discussed in Section V of the Petition. Pet. 8 (referring to
`Pet. 2–4).
`4 U.S. Patent Appl. Publication No. 2008/0071929 A1 (filed Sept. 18, 2006;
`published March 20, 2008) (Ex. 1007).
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`
`Petitioner asserts that
`A POSA as of the August 21, 2008 priority date would
`have had a bachelor’s degree in electrical engineering, computer
`science, or a similar field with at least two years of experience in
`web page and Internet technology or . . . a master’s degree in
`electrical engineering, computer science, or a similar field with a
`specialization in web page and Internet technology. A person
`with less education but more relevant practical experience may
`also meet this standard.
`Pet. 13 (citing Ex. 1002 ¶ 49). Patent Owner “does not offer a competing
`definition for purposes of this proceeding.” PO Resp. 10.
`Because we find Petitioner’s proposed definition generally consistent
`with the subject matter of the ’273 patent and cited references, we adopt it
`for purposes of this analysis.
`
`B. Summary of the Case
`To understand this Decision, it is helpful to begin with a summary of
`how the proceedings have developed. In particular, at the oral hearing it
`became apparent that our Institution Decision was based on a misreading of
`the Petition. See, e.g., Tr. 6:5–25. Patent Owner also appears to have based
`its initial briefing (the Preliminary Response and the Patent Owner
`Response) on a similar misreading. The misunderstanding centers on what
`Petitioner relies upon in Li as disclosing the feed recited in limitation 1[c].
`We understood Petitioner to be relying on Li’s link to an RSS channel as the
`claimed feed. However, as described in more detail below, Petitioner’s
`actual position relies on Li’s link to an RSS channel as the claimed feed data
`and the RSS channel, itself, as the claimed feed. As also will be addressed
`in more detail below, Petitioner’s actual position requires a certain claim
`construction—that metadata are encompassed by “no data representing
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`content”—for limitation 1[c], which is not addressed in the Petition. This
`claim construction is also not explicitly addressed in the Reply brief.
`Instead, like Petitioner’s position on what disclosure of Li was relied upon
`for the recited feed, Petitioner’s position on claim construction only became
`clear at the hearing.
`The Petition asserts that Li discloses limitation 1[c] by first stating
`that a person of ordinary skill in the art “would understand this limitation to
`encompass storing data for accessing an RSS feed (e.g., RSS feed address)
`from which a second collection of one or more presentations can be
`identified.” Pet. 28. We understood, from this statement, Petitioner’s
`position to be that Li’s link to an RSS channel is equivalent to the claimed
`feed. This understanding was not altered by the rest of the Petition’s
`discussion of limitation 1[c], which mainly focuses on Li’s disclosure of
`links. For example, the Petition states that a person of ordinary skill in the
`art “would understand that a link, such as a URL address, allows for
`accessing content via a network.” Id. at 31. More importantly, in the
`subsection explaining that Li discloses “no data representing content,” as
`recited in limitation 1[c], the Petition states that “links to RSS channels
`provide no data representing content of the items” and these links “are not
`specific to any particular item, but instead provide a means for identifying
`items that may change over time.” Id. at 32. Because the claim language is
`“wherein each of the feeds identifies a second collection . . . and includes no
`data representing content . . .” the Petition’s language implies that the
`claimed feed is a link to an RSS channel. Nothing in this section of the
`Petition discusses metadata. See id. at 28–32.
`Upon reflection, we see that this section of the Petition also states that
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`“Li discloses feed data, such as the addresses of RSS feeds” (id. at 29), “Li
`discloses storing feed data (addresses of RSS feeds) that represents a
`collection of one or more feeds (the user’s subscribed feeds)” (id. at 30), and
`“RSS feeds include RSS channels (i.e., feeds) and items (i.e., second
`collection of presentations)” (id. at 32). These statements are indications of
`Petitioner’s actual position that the claimed feed data in limitation 1[c] is the
`link to the RSS channel and the claimed feed is the RSS channel itself.
`Unfortunately, the importance of this language did not become apparent
`until after institution. In fact, we did not fully comprehend this to be
`Petitioner’s position until the hearing.
`In discussing the claim construction of limitation 1[c], the Petition
`asserts that a person of ordinary skill in the art would understand the entire
`limitation to “encompass storing data for accessing an RSS feed (e.g., RSS
`feed address) from which a second collection of one or more presentations
`can be identified.” Pet. 18. The rest of the claim construction section points
`out that the ’273 patent discusses the RSS standard and its embodiments
`“link to an RSS feed in a ‘conventional manner.’” Id. at 19. Nothing in the
`claim construction section discusses the phrase “no data representing
`content” or whether or not it applies to metadata. Id. at 18–19. In fact, as
`will be discussed in the claim construction section below, the only portion of
`the Petition to explicitly discuss data that represent content implies that
`metadata do represent content. Id. at 23–24 (discussing limitation 1[a]).
`Patent Owner appears to have misread the Petition in the same manner
`we did. For example, in the Preliminary Response, Patent Owner argues that
`Li does not disclose the claimed feed including “no data representing
`content,” as recited in claims 1 and 2. Prelim. Resp. 5–6. Specifically,
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`based on the Petition’s statement that “links to RSS channels provide no data
`representing content of items,” Patent Owner argues that “links to RSS
`channels are not what Li teaches constitutes the ‘feed.’” Id. at 5 (quoting
`Pet. 32). Patent Owner also states that “Petitioner arbitrarily designates at
`most a portion of the feed (or its address) as the feed itself to attempt to
`shoehorn Li’s teachings into the claim.” Id. Consistent with these
`statements and with our understanding of the Petition, the Preliminary
`Response does not address Li’s RSS channel as the claimed feed or the fact
`that Li’s RSS channel includes metadata. Id. at 5–6.
`In the Institution Decision, we did not agree with Patent Owner’s
`position that “in Li, the feed is the content” (Prelim. Resp. 5). Inst. Dec. 9–
`10. Instead, we were persuaded that “a person of ordinary skill in the art
`would understand Li to at least suggest using an RSS feed comprised solely
`of a link to an RSS channel,” and that link would qualify as not including
`“data representing content.” Id. at 10. Based on our current understanding
`of Petitioner’s position, this statement is not relevant to whether Li discloses
`limitation 1[c]. Because Petitioner relies on the link to an RSS channel as
`the feed data, it is immaterial that a link does not include “data representing
`content.” Instead, the outcome of this case depends on whether the RSS
`channel itself includes “data representing content.” Because Petitioner
`agrees that Li’s RSS channel includes a title or description of content—also
`called metadata—the outcome turns on whether metadata qualifies as “data
`representing content.” See, e.g., Tr. 6:22–25 (“So, that feed data is the link
`to the RSS feed. Within—you know, if you were to access that link and
`look what’s inside the RSS feed itself, what you would find would be a
`couple things. One is either a title or description of some piece of content.”).
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`
`The importance of this claim construction to the outcome of this case
`began to emerge for the first time in the Reply Brief. Although the Reply
`Brief’s claim construction section does not expand upon the Petition’s
`construction for limitation 1[c], in its analysis of limitation 1[c], Petitioner
`makes statements revealing that this construction is required for Petitioner’s
`position to prevail. Reply Br. 3–4, 6–16. First, Petitioner states that “the
`RSS feed found at the RSS feed address contains only URL links to the
`underlying audio/video content to be presented, and the meta data regarding
`that content, rather than containing the content itself.” Id. at 6. This
`statement reveals that Petitioner understands Li’s RSS channel to include
`both links to content and metadata. However, Petitioner continues to assert
`that because Li’s RSS channel retrieves content of a feed through a link
`rather than obtaining the content directly from the feed, Li discloses a feed
`that includes “no data representing content.” Id. at 7; see also id. at 8–9
`(stating “Li’s disclosure of a standard RSS structure conveying audio/video
`data . . . does not include the underlying content, only a link thereto, together
`with certain meta data about that content.”), 10 (“The links to underlying
`content (e.g., URLs, item addresses) obtained from the feed in Li do not
`‘represent content.’”); 11 (“Because Li discloses that the RSS feed does not
`itself contain the underlying content, but only meta data regarding and link
`to that underlying content, Li’s feed satisfies the claim limitation: ‘includes
`no data representing content of the second collection of presentations.’”).
`Later, Petitioner asserts that RSS feeds necessarily result in feeds that
`include no data representing content, explaining that “[i]n the RSS standard,
`the item element includes certain meta data regarding the item of content,”
`which “cannot be considered ‘data representing the content.’” Id. at 13–14.
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`
`In addition to the oblique discussion of claim construction, the Reply
`continues to confuse the issue of what Petitioner is relying on for the
`claimed feed. For example, the Reply, in responding to Patent Owner’s
`argument that the Petition only considered part of Li’s feed, states that “the
`Petition considers both the feed (link to an RSS channel accessed via the feed
`address) and the information provided from the feed (a link to underlying
`content and certain meta data about that content).” Id. at 11 (emphasis
`added). This statement suggests that Li’s link to an RSS channel, and not
`the RSS channel itself, is being relied upon for the claimed feed. We note
`that at no point in the Reply Brief, or at any other point in this case, did
`Petitioner point out our misreading of the Petition in our Institution
`Decision.
`Based on the content of the Reply, one of our first questions at the
`hearing was a request that Petitioner clarify what it relies on in Li for the
`claimed feed. Tr. 6:6–10. At this point, it became clear that Petitioner
`(1) relies on the RSS channel, not a link to that channel, as the claimed feed,
`and (2) requires a claim construction of “no data representing content” that
`encompasses metadata.
`As discussed in more detail below, the Petition did not sufficiently
`clarify its claim construction position or, for that matter, what disclosure in
`Li it was relying upon to show obviousness. Patent Owner, therefore, did
`not have notice and fair opportunity to present arguments and evidence
`rebutting Petitioner’s theory. For this reason, we find that Petitioner has not
`demonstrated by a preponderance of the evidence that claims 1–3 of the ’273
`patent are unpatentable.
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`
`C. Claim Construction
`For petitions filed on or after November 13, 2018, such as the one in
`this case, we interpret claims in the same manner used in a civil action under
`35 U.S.C. § 282(b), “including construing the claim in accordance with the
`ordinary and customary meaning of such claim as understood by one of
`ordinary skill in the art and the prosecution history pertaining to the patent.”
`37 C.F.R. § 42.100(b) (2019). Only terms that are in controversy need to be
`construed, and then only to the extent necessary to resolve the controversy.
`Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d 1013,
`1017 (Fed. Cir. 2017).
`The Petition proposes constructions for several claim terms. Pet. 13–
`19. In the Preliminary Response, Patent Owner states that it is unnecessary
`to expressly construe any claim term. Prelim. Resp. 4. In the Institution
`Decision, we discussed the construction of the “wherein each of the feeds
`identifies a corresponding second collection of one or more presentations
`being accessible via the computer network and includes no data representing
`content of the second collection of presentations” (“the wherein limitation”)
`portion of limitation 1[c]. Inst. Dec. 7–8. In particular, for purposes of
`institution, we construed the wherein limitation to “encompass links to RSS
`channels” and to “allow storing of data representing content of the second
`collection of presentations, as long as those data are not included in a feed.”
`Id. We note that neither party disputes this interpretation. However, as
`summarized above and discussed in detail below, the parties disagree over
`other aspects of the scope of the wherein limitation.
`In the Response, Patent Owner continues to assert that “the Board
`need not expressly construe any claim term in a particular manner” and
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`“Patent Owner does not propose a comprehensive construction, as it would
`not be necessary to resolve the controversy and deny the Petition.” PO
`Resp. 12. With its Response, Patent Owner files, but does not address, the
`contents of the Netflix Decision issued on March 9, 2020, after the Petition
`was filed. Id. at 10 (citing Ex. 2001). Relevant to this Decision, the Netflix
`Decision expressly construed together two terms—“presentation data that
`represents content of a first collection of . . . presentations” (a portion of
`limitation 1[a]) and “data representing content of the second collection of
`presentations” (a portion of limitation 1[c]) (we refer to these two terms as
`“the data representing content limitations”)—as recited by claims 1 and 2.
`Ex. 2001, 18–19. The parties did not appear to argue, nor did the District
`Court appear to contemplate, that the two data representing content
`limitations may have different definitions. Id. at 18–20.
`According to the District Court, the parties in the case before it
`disputed “whether the phrase ‘data representing content’ is limited to the
`content itself or also describes a broader category of data such as ‘particular
`content information 240.’” Id. at 19. In particular, Netflix argued that
`construing the term broadly as proposed by Uniloc would render the
`limitation “storing data indicative of the first collection of presentations so
`as to be associated with the presentation data”—claim 1[e]—superfluous.
`Id. at 19–20. Netflix also emphasized the phrase “presentation data” in the
`phrase “data indicative of the first collection of presentations so as to be
`associated with the presentation data” would lose meaning if the
`presentation data could simply refer to the content itself. Id. Uniloc, on the
`other hand, argued that the data representing content terms and “data
`indicative of the first collection of presentations” do not have exactly the
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`same meaning, but simply overlap, even if both are construed to cover
`particular content information. Id. According to Uniloc, the data
`representing content terms might include “MPAA ratings” and “data
`indicative of the first collection of presentations” “might include file
`information, url, and content ID,” and that all three terms may include “the
`title, description, content graphics, and content itself.” Id.
`The District Court agreed with Netflix, stating it would be improper to
`interpret the data representing content terms as proposed by Uniloc because
`that would “render the next phrase in the same claim entirely redundant and
`superfluous” and “would undercut the plain language itself and ignore the
`full import of the phrase ‘presentation data.’” Id. at 20. Thus, the district
`court construed the data representing content terms as “the data, or a portion
`of the data, of the audiovisual content itself within the first / second
`collection of presentations.” Id. at 21.
`In the Reply Brief, Petitioner again does not explicitly propose that
`any particular claim term requires construction. See Reply 3–5; see also id.
`at 16 (stating “[t]o the extent that the Board uses the Netflix Court’s
`construction,” without suggesting we do so). However, in showing that Li
`discloses the wherein limitation, Petitioner implies that the wherein
`limitation must be construed such that metadata are not encompassed by data
`representing content. Id. at 11 (“Because Li discloses that the RSS feed does
`not itself contain the underlying content, but only meta data regarding and a
`link to that underlying content, Li’s feed satisfies the claim limitation:
`‘includes no data representing content of the second collection of
`presentations.’”).
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`Further, in the Reply, Petitioner argues that RSS feeds, such as those
`disclosed in Li, necessarily result in feeds that include no data representing
`content. Reply 12–13; see also Pet. 32 (“[A] POSA would understand that
`the feature of ‘no data representing content’ is inherent to an RSS feed, such
`as that disclosed by Li.”) (citing Ex. 1002 ¶ 143). According to Petitioner,
`RSS feeds must not include “data representing content” because “[i]n the
`RSS standard, the item element includes certain meta data regarding the item
`of a content.” Reply 13. According to Petitioner, because the ’273 patent
`discusses RSS as “the preferred (and only) embodiment of a data feed,” if
`the metadata obtained by an RSS feed are considered “data representing
`content,” the claims would improperly exclude the preferred embodiment.
`Id. at 14. Thus, according to Petitioner, because Li also discusses RSS
`feeds, it must also disclose “no data representing content.” Id.
`We do not find this argument by Petitioner persuasive. First,
`Petitioner does not properly support the assertion that RSS feeds necessarily
`include no data representing content. In fact, in the hearing, Petitioner
`concedes that “there is the possibility that you could put an entirety of a text
`story into an RSS feed and that would have data representing the content.
`That would be within the standard.” Tr. 15:20–23. Second, as Patent Owner
`points out (PO Resp. 15–16; PO Post-Hearing Br. 1–2), the ’273 patent does
`not limit its disclosure of feeds to RSS feeds. Ex. 1001, 11:15–19
`(“Embodiments of the present invention will be discussed with regard to
`RSS 2.0 feeds for non-limiting purposes of explanation only. It should be
`recognized that embodiments of the present invention may be suitable for
`use with other types of content (e.g., audio/video) feeds.”). We are,
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`therefore, not persuaded that the ’273 patent’s discussion of RSS feeds leads
`to a conclusion that metadata do not qualify as data representing content.5
`In the hearing and its Post-Hearing Brief, Petitioner’s proposed claim
`construction gets more complicated. Specifically, for the first time at the
`hearing, Petitioner explicitly asserts that the two data representing content
`limitations—“presentation data that represents content of a first collection of
`. . . presentations” and “data representing content of the second collection of
`presentations”—should be construed differently. Tr. 9:19–12:20.
`According to Petitioner, the first term “presentation data that represents
`content” “is in the context of presentation data” and, therefore, may include
`metadata such as a title. Tr. 10:24–11:3; see Pet. (explaining that “Li
`discloses particular content graphics (thumbnails) and particular content
`information (titles) representing the data files (e.g., videos) of the first
`collection”). In contrast, Petitioner explains that “data representing content”
`in element 1(c) “is in the context of trying to understand what is this feed all
`about” and, therefore, does not include metadata such as a title. Id. Such
`differing definitions for the two terms would not be consistent with the
`Netflix Decision, which did not distinguish between the two data
`representing content limitations. Ex. 2001, 18–21; Tr. 14:4–6.
`
`
`5 In the Institution Decision, we appear to agree with Petitioner’s assertion
`that RSS feeds inherently teach “no data representing content.” Inst. Dec. 7–
`8. This conclusion, however, was based on our misunderstanding that the
`Petition was relying on a feed made up solely of a link to an RSS channel.
`See Inst. Dec. 7–8 (“We understand Petitioner [in asserting that ‘no data
`representing content’ is inherent to an RSS feed] to be asserting that a link to
`an RSS channel is encompassed by the wherein limitation. We find this
`assertion reasonable . . . and do not understand Patent Owner to dispute this
`assertion.”).
`
`18
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`IPR2019-01363
`Patent 9,721,273 B2
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`
`In its Post-Hearing Brief, Petitioner continues to propose this reading
`of the claim terms. Pet. Post-Hearing Br. 1–3. Petitioner purports to be
`asserting this argument in response to Patent Owner arguing “for the first
`time” in its Sur-Reply that the two data representing content limitations
`should have the same meaning. Id. at 1; Tr. 9:14–17. However, we note
`that although the Petition does not explicitly make this argument, such
`construction must be implicit in the Petition’s analysis of how Li discloses
`the claim limitations. Compare Pet. 23 (“Li discloses ‘presentation data that
`represents content of a first collection of one or more presentations’ in the
`form of thumbnails and titles that represent content of the data files.”)
`(emphasis added), with Pet. 32 (“Li discloses ‘each of the feeds . . . includes
`no data representing content of the second collection of presentations.’”)
`(emphasis added). Although the Petition does not explicitly state that
`metadata such as titles are not “data representing content,” this is simply
`because the Petition does not clearly spell out that it is Li’s RSS channel, as
`opposed to the link to the RSS channel, that is being relied upon for the
`claimed data feed. See Pet. 32 (“The links to the RSS channels provide no
`data representing content of the items.”). We see nowhere in the Petition
`that explicitly addresses the metadata included in an RSS channel in the
`context of the wherein limitation. See Pet. 28–33. However, in the hearing,
`Petitioner clarifies that the Petition is relying on Li’s RSS channel, which
`includes metadata, for the claimed data feed. Tr. 6:18–26.
`Crediting Petitioner’s explanation at the hearing of the meaning of the
`Petition leads to a conclusion that the Petition implicitly construes the two
`data representing content limitations differently. As we have mentioned,
`however, the Petition does not explicitly mention this issue. To the contrary,
`
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`IPR2019-01363
`Patent 9,721,273 B2
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`in the claim construction section that specifically addresses limitation 1(c),
`the Petition discusses only that data feeds must include RSS feeds and
`implies that no other aspect of the limitation need be construed. See Pet. 18–
`19.
`
`Finally, in its Post-Hearing Brief, Petitioner asks that “[t]o the extent
`that the Board concludes that the same meaning applies to both terms and
`believes an express construction is necessary,” that we “adopt the Netflix
`Court’s construction.” Pet. Post-Hearing Br. 9–10.
`Patent Owner disagrees with the district court’s construction and
`argues that metadata “describing the content to a user represents the content
`to a user” and, thus, is included in “data representing content.” Sur-Reply 1;
`PO Post-H