Case: 22-2147 Document: 39 Page: 1 Filed: 04/12/2024
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`AVAGO TECHNOLOGIES INTERNATIONAL SALES
`PTE. LIMITED,
`Appellant
`
`v.
`
`NETFLIX, INC.,
`Appellee
`______________________
`
`2022-2147
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2021-
`00303.
`
`______________________
`
`Decided: April 12, 2024
`______________________
`
`DAN YOUNG, Quarles & Brady LLP, Littleton, CO, ar-
`gued for appellant. Also represented by KENT DALLOW;
`CHAD KING, King IAM LLC, Lone Tree, CO.
`
` HARPER BATTS, Sheppard Mullin Richter & Hampton
`LLP, Menlo Park, CA, argued for appellee. Also repre-
`sented by JEFFREY LIANG, CHRISTOPHER SCOTT PONDER.
`______________________
`
`
`

`

`Case: 22-2147 Document: 39 Page: 2 Filed: 04/12/2024
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`2
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`AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LTD. v.
`NETFLIX, INC.
`
`Before TARANTO, STOLL, and STARK, Circuit Judges.
`TARANTO, Circuit Judge.
`In December 2020, Netflix, Inc. filed a petition seeking
`an inter partes review (IPR) of claims 1–14 and 16–19 of
`U.S. Patent No. 8,270,992, which is undisputedly owned by
`Avago Technologies International Sales Pte. Ltd. as as-
`signee. Upon institution and conduct of the IPR, the Pa-
`tent Trial and Appeal Board issued a final written decision
`holding claims 1–13 and 16–18 unpatentable for obvious-
`ness under 35 U.S.C. § 103. Netflix, Inc. v. Avago Technol-
`ogies International Sales Pte. Ltd., No. IPR2021-00303,
`2022 WL 2190436 (P.T.A.B. June 17, 2022) (Decision).
`Avago, which asserts the ’992 patent in a pending suit
`against Netflix, appeals the Board’s decision. We have ju-
`risdiction under 28 U.S.C. § 1295(a)(4)(A). We affirm.
`The ’992 patent teaches methods and systems for
`switching sources and, relatedly, network connections that
`are furnishing content to a user. In particular, if a user is
`receiving digital media content from a first source, the pa-
`tent calls for the user to instead receive that content from
`a second source when the network connection with the sec-
`ond source enables furnishing that content at a “higher
`quality level” to the user. See ’992 patent, col. 1, line 58,
`through col. 2, line 44. Claim 1 is representative:
`1. In a portable system, a method for providing a
`digital media service to a user, the method compris-
`ing:
`delivering digital media content having a
`current quality level to a user;
`determining that a network connection
`with a second system is available and is
`characterized by a communication band-
`width that is high enough to provide the
`digital media content to the user at a
`
`

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`Case: 22-2147 Document: 39 Page: 3 Filed: 04/12/2024
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`AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LTD. v.
`NETFLIX, INC.
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`3
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`quality level higher than the current quality
`level;
`using the network connection to obtain the
`digital media content at the higher quality
`level from the second system; and
`delivering the digital media content at the
`higher quality level to the user instead of
`the digital media content at the current
`quality level.
`Id., col. 26, lines 29–43 (emphases added).
`This appeal involves the meaning of the quality-level
`claim terms, in phrases that refer to delivering, providing,
`or obtaining digital media content having or at a “current
`quality level” or a “higher quality level.” Explaining,
`among other things, that “the claim language itself de-
`scribes the digital media content’s quality level in terms of
`its delivery,” the Board rejected Avago’s contention that
`the quality-level terms are “limited to the quality of the
`digital media content independent of any network consid-
`erations.” Decision, at *5. Avago challenges the Board’s
`claim-construction determination, asserting that the
`claimed quality levels refer only to the quality level of the
`digital media content at the source, before and independent
`of any transmission-related degradation in quality due to
`network-based effects. See Avago Opening Br. at 33–34,
`37. The Board’s claim construction rested solely on the
`claim language and other intrinsic evidence, so we review
`it de novo. See Polaris Innovations Ltd. v. Brent, 48 F.4th
`1365, 1372 (Fed. Cir. 2022).
`We agree with the Board that the quality-level terms
`concern quality level as the content is delivered to the user,
`which may well be affected by transmission properties, and
`we affirm on that basis. First, the claim language specifies
`(1) digital media content “having a current quality level”
`during the step of “delivering” that content “to a user,” (2)
`
`

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`Case: 22-2147 Document: 39 Page: 4 Filed: 04/12/2024
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`4
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`AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LTD. v.
`NETFLIX, INC.
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`high enough bandwidth “to provide the digital media con-
`tent to the user at a quality level higher than the current
`quality level,” (3) “obtain[ing]” digital media content “at the
`higher quality level,” and (4) “delivering the digital media
`content at the higher quality level to the user.” ’992 patent,
`col. 26, lines 29–43 (emphases added). That language is
`concerned with the quality level of the content as received
`by the user, not merely with the content quality as stored
`at the source. Second, the claim language encompasses
`digital media services that stream content for real-time
`consumption by a user. See id., col. 3, lines 15–24 (defining
`a “service” as, among other things, comprising “an audio
`output service” or “a video output service”); see also J.A.
`495–96, col. 1, line 17, through col. 3, line 44 (providing
`background information on streaming services). And the
`claim’s reference to high-enough bandwidth confirms that
`network-transmission properties may affect the content
`quality level as that content is consumed by a user in real
`time. See ’992 patent, col. 6, lines 19–30 (stating that de-
`livery-related issues can render what would otherwise be
`“high quality information” of “little value” when “access . . .
`over a communication network . . . is slow or unreliable”);
`cf. id., col. 4, lines 31–38 (listing the “rate at which such
`information may be accessed” as one metric by which the
`quality level of a digital media service might be deter-
`mined). Overall, the claim language focuses on the as-re-
`ceived quality of the content, and that focus implies that
`the claimed quality levels need not be independent of any
`transmission- or delivery-related effects.
`With respect to other intrinsic evidence, Avago relies
`principally on the prosecution history. Avago Opening Br.
`at 39–48. (It relies also on passages from the specification,
`id. at 48–53, but the passages do not go beyond reciting
`non-limiting examples.) We agree with the Board that the
`prosecution history, see J.A. 168–76, does not justify the
`construction Avago urges.
`
`

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`Case: 22-2147 Document: 39 Page: 5 Filed: 04/12/2024
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`AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LTD. v.
`NETFLIX, INC.
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`5
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`In the prosecution history, the examiner-cited prior art
`was distinguished by reference to the absence of a “second
`system” in that prior art (which taught changing links to
`an unchanged source), with the applicant arguing that the
`lack of such a second system meant that the prior art
`“necessar[ily]” failed to disclose “delivering the digital me-
`dia content at the higher quality level to the user” from that
`second system. J.A. 175 (emphasis added). Claim lan-
`guage was changed to require such a “second system.” J.A.
`168. That change exhausts the ultimate significance of the
`prosecution history, and Avago does not contend that the
`“second system” language calls for its proposed construc-
`tion. Rather, Avago relies on another change in the claim
`language—replacement of references in the body (but not
`the preamble) to a digital media “service” with references
`to digital media “content.” J.A. 168–73. But we, like the
`Board, find that change not to call for adoption of the qual-
`ity-level constraint that Avago now seeks to impose, be-
`cause that constraint is not fairly found in the resulting
`claim language and the argument that Avago made to the
`examiner does not require that constraint. See Decision, at
`*5 (concluding that “neither the amendment nor the re-
`lated arguments exclude network-related effects on the
`quality levels of delivered digital media content”).
`Avago’s additional arguments depend on its claim-con-
`struction position. Having rejected that position, we affirm
`the Board’s decision.
`
`AFFIRMED
`
`