Transcript of Hearing
`
`Date: July 21, 2023
`Case: Netflix, Inc. -v- DivX, LLC (PTAB)
`
`Planet Depos
`Phone: 888.433.3767
`Email: transcripts@planetdepos.com
`www.planetdepos.com
`
`WORLDWIDE COURT REPORTING & LITIGATION TECHNOLOGY
`
`Netflix, Inc. - Ex. 1035, Page 000001
`IPR2020-00511 (Netflix, Inc. v. DivX, LLC)
`
`
`
`Date: July 21, 2023
`Case: Netflix, Inc. -v- DivX, LLC (PTAB)
`
`Planet Depos
`Phone: 888.433.3767
`Email: transcripts@planetdepos.com
`www.planetdepos.com
`
`WORLDWIDE COURT REPORTING & LITIGATION TECHNOLOGY
`
`Netflix, Inc. - Ex. 1035, Page 000001
`IPR2020-00511 (Netflix, Inc. v. DivX, LLC)
`
`
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` _________________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` _________________
` NETFLIX INC. and HULU, LLC,
` Petitioner
` v.
` DIVX, LLC,
` Patent Owner.
` __________________
` IPR2020-00511
` Patent 9,184,920
` __________________
`
`Before BART A. GERSTENBLITH and IFTIKHAR AHMED,
`Administrative Patent Judges
`
` REPORTER'S TRANSCRIPT OF HEARING
` FRIDAY, JULY 21, 2023
` Conference Call
`
`Job No.: 499757
`Pages: 1 - 31
`
`Stenographically Reported By:
`Heather Pitvorec, RDR
`CSR NO. 10551
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`Netflix, Inc. - Ex. 1035, Page 000002
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`2
`
`APPEARANCES OF COUNSEL:
`
`ON BEHALF OF THE PETITIONER:
`
` SHEPPARD, MULLIN, RICHTER & HAMPTON, LLP
` By: HARPER BATTS, Esquire
` JEFFREY LIANG, Esquire
` 1540 El Camino Real, Suite 120
` Menlo Park, CA 94025
` 650.815.2600
` hbatts@sheppardmullin.com
` jliang@sheppardmullin.com
`
`ON BEHALF OF THE PATENT OWNER:
`
` LOWENSTEIN & WEATHERWAX LLP
` By: KENNETH WEATHERWAX, Esquire
` 1016 Pico Boulevard
` Santa Monica, California 90405
` 310.307.4500
` weatherwax@lowensteinweatherwax.com
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`Netflix, Inc. - Ex. 1035, Page 000003
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`3
`
` P R O C E E D I N G S
`
` THE COURT: Good morning. This is Judge
`Gerstenblith and with me is Judge Ahmed.
` Who is on line for the Petitioner, please?
` MR. BATTS: Good afternoon, Judge
`Gerstenblith. This is Harper Batts on behalf of the
`Petitioner. And with me is Jeffrey Liang from Shepherd
`Mullin.
` THE COURT: Good afternoon, Mr. Batts and
`Mr. Liang.
` And who do we have on for the Patent Owner,
`please?
` MR. WEATHERWAX: Your Honor, can you hear me
`okay?
` THE COURT: I can.
` MR. WEATHERWAX: This is Kenneth Weatherwax for
`the Patent Owner. I would point out I'm hearing a
`clicking on the line. If you can hear it, I can
`redial. But if it's okay with you, I will leave it as
`is.
` THE COURT: I do not personally hear a
`clicking. Does anyone else hear a clicking?
` MR. BATTS: This is Harper Batts. I don't
`hear it either.
`
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`Netflix, Inc. - Ex. 1035, Page 000004
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`4
`
` THE COURT: Mr. Weatherwax, if you want to
`hang up and reconnect, we're happy to wait for you.
` MR. WEATHERWAX: That's all right. I wanted
`to make sure it wasn't going to disrupt you. It's fine
`with me. Thank you very much.
` THE COURT: No problem. I understand the
`parties, Mr. Batts, you tell me, did the Petitioner
`arrange for a court reporter?
` MR. BATTS: Your Honor, it sounds like both
`parties arranged for one. We'll just allow our court
`reporter to handle it and allow DivX's court reporter
`to drop off.
` THE COURT: Okay. So was that already
`arranged or are you saying you're proposing that now,
`Mr. Batts?
` MR. BATTS: I proposed it and the court
`reporter just wanted confirmation from her attorneys
`before she dropped off.
` LAURA RUTHERFORD: Good morning. This is
`Laura Rutherford, reporter on behalf of Mr. Weatherwax.
`So I would like confirmation he does not need me,
`please.
` MR. WEATHERWAX: That's fine with me as long
`as it's being recorded, we don't need you. Thank you
`very much.
`
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`Netflix, Inc. - Ex. 1035, Page 000005
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`5
`
` LAURA RUTHERFORD: Thank you very much. I'm
`logging off. Thank you.
` THE COURT: So, Mr. Batts, thank you to both
`sides for arranging a court reporter. Of course, just,
`you know, without -- I don't think I need to say this,
`but message each other, in the future let each other
`know who's doing it. Also, let me just see here, there
`was something else I was going to mention early on.
` Oh, yes. So when the transcript is ready,
`Mr. Batts please share it with Mr. Weatherwax as long
`as nobody has any edits or anything, then just get it
`on file as soon as you can in the case. And put it as
`an exhibit. And I think that should take care of
`things for the transcript.
` We're here today because we have a remand in
`the case. We had a Federal Circuit decision, walking
`through the final written decision, and we had some
`instructions from the Court on what we're supposed to
`do on remand.
` And I must confess that I was surprised to see
`the way the Federal Circuit addressed the final written
`decision. And I found the oral argument -- I hear some
`noise there, but I found the oral argument very
`interesting. The appellate argument to the panel in
`the Federal Circuit, it seemed very clear that there
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`Netflix, Inc. - Ex. 1035, Page 000006
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`6
`
`was -- well, I don't want to -- I'll just say it. It
`seemed to me there was some confusion from the Federal
`Circuit panel as to what the arguments that were made
`and the decision in how the Board handled those
`arguments, whether each issue was addressed fully or
`whether there was something omitted in the discussion.
` So I am not going to -- I was debating how
`much to talk about it on the call today. Because I am
`looking at a decision that tells us to -- the Board
`erred by failing to adequately assess Grab-333 were the
`complications of combining Chen with Grab-333, and the
`Federal Circuit said I'm turning to DivX's assertions,
`Netflix did not invoke Grab-333 solely for its teaching
`on partial encryption, and then they had to the
`contrary and they list out several points from the
`petition, and also pointing to the Board's decision and
`I'm reading from the slip opinion from the Federal
`Circuit of page 12, under Section 3.
` When I look at the petition, and as I look
`back at it, wondering, okay, what did we miss from the
`Board here, I'm a little bit confused as to where in
`the petition that Petitioner relies on something from
`Grab specifically in the combination, and this is the
`part that I personally believe the Federal Circuit may
`have had a different impression of, and I'll say it
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`Netflix, Inc. - Ex. 1035, Page 000007
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`7
`
`that way. What specifically from Grab-333 was relied
`on in the combination as opposed to just statements
`about what it teaches.
` So I am feeling like -- and I'm being very
`honest with everybody here -- that I am left with
`needing to address an issue that I don't see addressed
`in the brief, in the Petition. So I'm a little bit
`confused as to how to do that. I saw the email where
`both sides suggested their approaches.
` This seems to me that we're in kind of a gray
`area in terms of where the SOP 9 advises and suggests
`sort of a default type or likely procedure to use.
`We're somewhere in between, perhaps three different
`topics; failure to consider the evidence, inadequate
`explanation by the Board, improper consideration of the
`argument, somewhere in that -- between those three
`potential remand reasons or instructions.
` The other thing that the Federal Circuit
`clearly thought the issue was briefed because they
`cited in the briefs and the petition and the reply and
`the comment in the final decision, and so it does not
`seem to me that this is something that the Federal
`Circuit thought required briefing. However, as I
`pointed out, I am at a loss as to understand how to
`address what we are instructed to do on remand when I
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`Netflix, Inc. - Ex. 1035, Page 000008
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`
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`Transcript of Hearing
`Conducted on July 21, 2023
`
`8
`
`cannot easily draw out an answer from the Petition as
`to what the Federal Circuit is telling us to do.
` So I don't mean to sit here and ramble on. I
`just wanted everybody to know the position that I am
`coming from, in looking at this case, and trying to
`figure out what to do now that we are back here, and
`with instructions to do things that are, in all
`honestly, confusing as to how to address with what we
`currently have.
` So I'll give each of you a chance to say
`something because you're here, but my inclination, and
`I am always pretty upfront, I will just tell you up
`front what I'm inclined to do so you can respond to it.
`But I'm inclined to give short brief -- apologies.
`Hold on for one second, please. Apologies.
` I am inclined to give each side a brief and
`each side a response. However, that brief, you have to
`be extremely -- the first brief has to be extremely
`tight in the sense that every single thing that is said
`must be cited to a paper already in the case and must
`either use basically the same language and perhaps some
`additional explanation, if necessary, to explain how to
`answer the question that the Federal Circuit has given
`us, which is particularly that we are supposed to
`assess, and this is on page 13 of the split decision.
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`Netflix, Inc. - Ex. 1035, Page 000009
`
`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`9
`
`They say: The instructions are that we are supposed to
`determine whether Chen in combination with Grab-333
`teaches or suggests obtaining encrypted content at the
`frame level.
` So that is the issue that -- that is the
`primary issue that we are looking to address that the
`Federal Circuit spoke to. Of course, there are other
`arguments and other issues that come after that, and I
`would definitely appreciate the parties identifying
`those to the extent necessary. But we do have the
`briefs. But it's completely fine, but not have to be
`written out in, you know, long explanation.
` It could be literally a bullet point, you
`know, this issue, page whatever, this issue, page
`whatever. I don't need a full rehashing of that
`argument. We're going to rely on the original briefs
`in the case. All of that I'm talking about after this
`particular issue that I just mentioned were the other
`issues is justifying how many there are, where they
`are, and I guess it would usually -- we can figure this
`out on our own, but to the extent either side thinks it
`would be helpful, I'm also happy to know things like
`Hey, if you find for, you know, one side on Issue 2,
`you don't need to address Issue 3, or however that may
`pan out. Don't feel compelled to do that. We can
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`Netflix, Inc. - Ex. 1035, Page 000010
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`
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`Transcript of Hearing
`Conducted on July 21, 2023
`
`10
`
`figure that out, usually, on our own.
` The hard part is the description on page 13 of
`the slip op that first issued the remand, that is where
`I'm hoping to have some help from the parties, and for
`Petitioner, you know, I'm going to be really direct
`here. I need to know where in the Petition Petitioner
`is telling us that they're using something other than
`partial frame encryption or frame encryption teachings,
`which I understand to be the same thing, but maybe I'm
`wrong. Something that's discussed in the Petition
`about doing something from Grab that's not the partial
`encryption teaching or maybe Grab and something we
`missed about.
` Because that's what I see in the motivation
`section, and that's what I see throughout the Petition.
`That's what I see in the discussion of Limitation 1A,
`which segues to similar language that is in 1B, which
`is where we focused the final written decision. And so
`that's where I am.
` I can't guarantee that we won't -- that I
`won't need another phone call with everybody. I may
`need to have a call to discuss the briefs after they
`come in when I'm trying to figure out what to say
`because this is a really confusing posture, and I don't
`recall being in this position before when I'm being
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`Netflix, Inc. - Ex. 1035, Page 000011
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`
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`Transcript of Hearing
`Conducted on July 21, 2023
`
`11
`
`instructed to consider an issue that I don't think was
`actually raised in the case.
` So with that, I'm going to be quiet, and I'm
`going to go to Mr. Batts, and then I'm going to go to
`Mr. Weatherwax and when you talk about, whatever you
`want to tell me, don't feel like you have to answer any
`of this now or say anything more.
` I would like to also know also how many pages
`you think you need for the opening brief and the
`responsive brief and what the timing would be that
`would be preferred for you.
` And I'm going to turn it over to Mr. Batts.
` MR. BATTS: Thank you, Judge. I think as an
`initial matter, the question is what remains needs to
`be addressed on remand. As you pointed out on pages 12
`and 13 of the Federal Circuit decision, there is the
`question of the combination -- whether the combination
`of Chen and Grab-333 reach the limitations for Claim 1.
`And then there is the question of whether skilled art
`would have been motivation to teach Chen and Grab with
`a reasonable expectation of success.
` Those are the two issues that were laid out by
`the Federal Circuit that fully needs to be addressed,
`the Board has not properly considered.
` And beyond those issues there is also the
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`Netflix, Inc. - Ex. 1035, Page 000012
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`12
`
`issues of whether Chen and Grab keep the remaining
`limitations of the independent claim. There is also
`Ground 2, which dealt with Independent Claim 2, which
`were not reached because of the decision on Limitation
`1C, and then, lastly, there is Ground 4 on independent
`Claims 5 and 14. So to us, those are the issues that
`need to be addressed by the Board, and that would be
`the second final decision.
` This is now the third remand proceedings
`between the parties that we've had to deal with on
`Federal Circuit. And so our 15-day proposal was
`consistent with what we did in the previous two IPR
`remand proceedings in which we addressed issues
`specifically raised by the Federal Circuit decision as
`well as the remaining issues that needed to be
`addressed by the Board in the timely decision.
` So if you're not interested in us providing
`briefing on the remaining issues, and only limit our
`briefing to the specific issues from pages 12 and 13 of
`the Federal Circuit decision, then I think we would
`reduce our request for the page limit down to 10 pages.
`But the other issues we would like 12 pages to brief,
`and they maybe useful for us to provide the full set of
`issues that remained open and alive for briefing.
` In terms of your explanation of the SOP-9
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`Netflix, Inc. - Ex. 1035, Page 000013
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`
`
`Transcript of Hearing
`Conducted on July 21, 2023
`
`13
`
`procedures and what bucket we fall under, I agree that
`we kind of fall under the -- certainly, the failure to
`consider, but the other two buckets as well. I do
`think briefing would be useful here. I think other
`panels for info in the AMC v. Fall Line decision,
`IPR2019-00610; Val. Corp vs. Iron Bird, (PHONETIC)
`IPR2013-01928. Both have 10 pages of briefing and 15
`pages of briefing. Those are after the SOP-9 and
`consistent with what we would be asking for here.
` I do think, however, that the Federal Circuit
`has made clear in pages 12 and 13 that the arguments
`were referenced in the decision. The question isn't
`whether the arguments were present in the decision.
`The question is whether we proceed with those arguments
`and whether there is an issue combined.
` But I certainly think we can go with other IPR
`remand proceedings as we pointed to very specific
`citations to where we address something in the opening
`papers and the proceedings.
` But I think it's there. The question is
`basically that the Federal Circuit left the Board on
`page 13, in light of those arguments, how does the
`Board come out on these arguments? And how the Federal
`Circuit has determined those arguments for present.
` THE COURT: Okay. Mr. Batts, did you have
`
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`Netflix, Inc. - Ex. 1035, Page 000014
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`
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`Transcript of Hearing
`Conducted on July 21, 2023
`
`14
`
`anything else? It sounded like you stopped. I don't
`know if you got cut off.
` MR. BATTS: No, I think that's -- I can
`certainly talk, you know, specifics of their position,
`but I think that's argued on how to proceed here. So
`I'm certainly available to answer any questions you
`have on the position I provide.
` THE COURT: So I think you said maybe
`something between 10 and 15 pages, is that where you
`were kind of coming up?
` MR. BATTS: I think our proposal of 15 pages
`makes sense. If the Panel wants to include the three
`other issues, the other remaining issues that I
`mentioned about Claim 1 overall, Ground 2, and Ground
`4. If the Panel decides you only want to have the
`briefing on the specific issues from the remand, but
`not the other issues that still need to be addressed,
`then I think we would with 10 to 12 pages.
` THE COURT: Okay. I see. And what would the
`timing be for that, for you guys? What's your best
`timing? And when I say "best," I don't mean like
`massive. I mean, we are in the summer. I hope people
`are taking vacation. So, you know, don't feel like you
`have to tell me one week or something.
` MR. BATTS: I don't think the timing needs to
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`
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`Transcript of Hearing
`Conducted on July 21, 2023
`
`15
`
`be addressed here, your Honor, I guess what we were
`contemplating, probably given where we are in the
`summer, probably three weeks after the conference call
`for the opening brief, and then another two to three
`weeks for the responsive briefs.
` I think the last point I'll make is I do think
`you were asking about the Grab teachings in the
`Petition. And I don't have my Petition copy here
`available to go look at all the specifics cites for
`today, but we certainly pointed to how Grab teaches how
`you take a frame and encrypt parts of it, and that's
`what the Federal Circuit pointed to as the teachings.
` When you look at DivX's arguments, that what's
`happening in air about, Hey, you only have these
`teachings that are not about frames and partial
`encryption frame, we included explanations of Chen,
`Grab teachings about how you encrypt frames.
` So for Grab-333 basically we explained what
`was directed to the lower level partial encryption
`techniques, including how the mechanisms and how you
`encrypt portions of frame, and then embedding them into
`the video.
` I think I'll leave that argument or
`explanation for a later date for more details. I think
`that was kind of clear you had that. I didn't want to
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`Transcript of Hearing
`Conducted on July 21, 2023
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`16
`
`leave it unaddressed.
` THE COURT: Okay. I appreciate that. And
`that is really what I'm talking about is I really want
`to understand the precise aspects that are being relied
`on from the different references to match the claim
`language and not just what was disclosed in each, but
`where in the Petition it explains what parts are being
`relied on in the combination, if that makes sense. In
`order to assess whether the combination does this, we
`need to know which parts of each reference are being
`relied on for that.
` MR. BATTS: That makes perfect sense, your
`Honor.
` THE COURT: Okay. Great. And let me just
`clarify. For the other issues, I have no problem with
`either side, you know, saying a little bit about them,
`the additional issues that need to be addressed.
` The critical -- the critical thing is, like I
`was saying, that all the argument, you know, is from
`the prior briefing. So I'm not looking for new
`argument, but I have no problem if someone wants to
`spend time in this paper saying, and we also have
`dependent Claims 2 and 11, the critical issue is this.
`We address this on the stages, you know, you can
`certainly write that out in whatever language you want
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`Netflix, Inc. - Ex. 1035, Page 000017
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`to write it out. And when we get to dig down deep into
`those other issues, like I said, we may reach back out
`to the parties to have some type of discussion, or if
`we need any additional information on those, we can
`bother you guys again, if necessary.
` Let me go to Mr. Weatherwax to see -- I
`understand Patent Owner's position of no briefing, but
`do you have any other comments about anything? Even
`that initial position as well. Anything about what's
`been discussed today.
` MR. WEATHERWAX: Can you hear me? I want to
`make sure I had it turned off the mute.
` THE COURT: Okay. We can now.
` MR. WEATHERWAX: Thank you. Sorry about that.
`This is Ken Weatherwax.
` Your Honor, it's up to the Board, of course,
`to decide whether it needs further briefing beyond what
`it already has from trial. We understand that. We
`think a few points can be made.
` We shared your overall take on this decision.
`I'll tell you the way we came out on what we understood
`it to mean.
` As you know, the Board is required to make an
`explanation of its decision that can be sufficiently
`ascertained on Appeal, and if the Court feels that it
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`Netflix, Inc. - Ex. 1035, Page 000018
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`Transcript of Hearing
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`can trace the Board's reasoning with sufficient
`confidence, then that is enough.
` As I understood this decision, the Court was
`not sufficiently confident that the Court -- that the
`Board had addressed Grab with respect to Petition 1C.
` As you point out, that this is a very simple
`remand in the following sense. Netflix made three
`arguments on appeal that this Panel had made things
`erroneously.
` And the Court rejected the lead argument and
`the second argument. They've got correct claim
`construction. They've got a correct understanding of
`Chen. It's only the very last where they found any
`error. And I think the error that they were perceiving
`was that they didn't see a sufficient explanation of
`the implications of Grab. Whether you had addressed
`sufficiently Grab as brought up in the Petition, the
`Board is not supposed to help the parties make
`arguments they didn't make in the Petition, and the
`Court did not order the Board to do that.
` The question is the combination of Chen and
`Grab and the Panel wasn't given a menu of choices, but
`just to consider the one question, which we understand
`to be whether the Grab together were shown, the
`teaching suggests Limitation 1C, and that is in the
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`Netflix, Inc. - Ex. 1035, Page 000019
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`Transcript of Hearing
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`context of the obviousness argument.
` We just, if you read page 13 together with
`page 14, the argument here is about whether the
`limitation is sufficiently shown to be part as
`suggested.
` There is nothing saying that the Board made a
`pervasive error of its test or anything like that.
`There's not a roster of things left for the Board to
`do.
` If it doesn't say that Netflix sufficiently
`explained its combination as to each limitation so that
`you should rule in Netflix's favor. It didn't say that
`you should sufficiently explain or sufficiently explain
`how to modify it to work together or show reasonable
`explanation of success. And the patent doesn't need
`the parties help on remand to make this determination.
`It knows how to do that because that's what it does.
`So.
` So to me, the reason for briefing is to help
`alleviate the confusion that the Board just expressed.
`We're happy to do what the Board asks, but we think
`that to the extent there is a reason for briefing,
`that's it.
` I will point out Netflix chose to raise other
`cases that are not before this Court, which are the
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`Netflix, Inc. - Ex. 1035, Page 000020
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`Transcript of Hearing
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`other two cases before the parties.
` Going back to the last one, there are 15 pages
`of briefing ordered, I would point out that if you read
`that opinion, which is not this case's opinion, the
`remand was more complicated. The error was said to be
`pervasive. The word "pervasive" was used. There were
`several things where it was left to the Board to make
`up its mind what to do. We think this is a simpler
`remand, even though it engendered confusion.
` So we think that it was remanded to chiefly
`form a better explanation to show that the Board did
`address what was raised. It was never stated that the
`Board said something that was false. It just didn't
`say enough, as we understood it.
` And we agree that there is no real reason to
`address the other argument because there's no
`indication by the Court there was insufficient briefing
`on something. Or that something was sprung on the
`parties. In fact, the lead argument on appeal was that
`the panel sprung a sua sponte new construction on the
`final decision. That argument was rejected.
` So I would want to point out that it was also
`found on appeal in this case that Netflix was
`making a new argument that it did not give to the
`Board. So we think it's very important to try, because
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`Netflix, Inc. - Ex. 1035, Page 000021
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`Transcript of Hearing
`Conducted on July 21, 2023
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`that's already law of the case, that that's happened.
`That we not continue doing that. I will say no more
`about that.
` I will say a couple of other things. As far
`as if we need briefing, I don't think we'll need much.
`I think five pages for the first brief would be fine.
` Three pages more the next one. If you want
`more, obviously, you can order more. But we think that
`would be more than sufficient for this very limited
`remand. We also think that we don't need three weeks.
`Three weeks would actually be more difficult from our
`perspective in our schedule. We would prefer one week
`and one week, obviously, the Board can rule on their
`questions, but we can't carry on with this too long.
` And we assume that everyone agrees that there
`should be no new evidence. We also think that we
`should take to heart what you said, Judge, first about
`citing papers, and that there should be no citation to
`evidence not already cited. That's our view.
` So as far as the case set aside, now we are
`not familiar with that case, of course. But we would
`note that the SOP-9 includes a citation to PPC
`Broadband on page 11 of Appendix 2 of SOP-9, which
`denied requests for additional briefing and evidence
`and decided the issues on remand based on the arguments
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`Netflix, Inc. - Ex. 1035, Page 000022
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`Transcript of Hearing
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`and evidence only of record.
` Now why was that? Because the Board was able
`to consider the briefing arguments of record and found
`that was enough. Now I recognize there was confusion
`in that case, but to me, that does not mean we should
`err on the side of more briefing. We think we should
`err -- if anything, it should or be less briefing as
`indicated. If you have any questions, I would be happy
`to answer them.
` THE COURT: Thank you, Mr. Weatherwax. I will
`just start with the notion, just to remind everybody,
`that Standard Operating Procedure 9 has stuff that is
`for exemplary dies only. I appreciate that we're
`talking about it because it is important and we do want
`to be consist with other Panels, but ultimately we have
`to decide this based on what we're looking at in this
`particular case.
` I also hear what you're saying about what the
`Federal Circuit said and what explanation is in the
`final written decision about it. And I will, again, be
`fairly blunt. If we miss something, we miss something.
`And Petitioner will explain how we missed it in
`whatever briefing comes next. But I will be very blunt
`in saying that I regret not being more explicit in the
`final written decision about what arguments we
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`Netflix, Inc. - Ex. 1035, Page 000023
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`Transcript of Hearing
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`understood were directed to the different limitations
`of the claim, and exactly what was being proposed in
`the combination. Of course, hindsight is 20-20. The
`final written decision seemed clear to us, but it
`clearly was not. It did not give that same message to
`the Federal Circuit panel.
` I appreciate your comments on that,
`Mr. Weatherwax, because I was feeling the exact same
`thing in listening to the argument and in seeing the
`decision, there was a question asked about there was an
`opportunity about the argument, a question asked about what
`was being combined or how do we understand the combination
`or something to that effect, but there should have been a
`little bit more in the final written decision to explain or
`put some explanation on how we were understanding the use
`of Grab-333 as opposed to just repeating the arguments that
`were in the Petition and leaving it as is.
` So I take responsibility for that. I also look at
`the record and I look at what was argued during our oral
`argument here and the issues that were discussed in the
`briefs.
` So, anyway, I will stop talking about that, but I
`appreciate what you said, and I understand what you said
`about decisions needed to be very clear and giving an
`explanation as to what was being considered.
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`Netflix, Inc. - Ex. 1035, Page 000024
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` That being said, we are -- I don't believe what we
`do on remand can say, hey, Petitioner did not rely on
`Grab-333 for what the Federal Circuit is saying they did
`rely on Grab for. So that cannot be -- at least it cannot
`be the only statement in the final written decision.
` We have specific instructions that Federal Circuit
`says Petitioner relied on it and cites
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