Hulu, LLCv.Intertainer, Inc.

Patent Trial and Appeal Board

Jun 12, 2015

13495884 (P.T.A.B. Jun. 12, 2015)

Trials@uspto.gov Paper 35
571-272-7822 Entered: June 12, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

HULU, LLC,
Petitioner,

v.

INTERTAINER, INC.,
Patent Owner.

Case CBM2014-00052
Patent 8,479,246

Before MICHAEL W. KIM, BRIAN P. MURPHY,
and JENNIFER M. MEYER, Administrative Patent Judges.

MEYER, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 328(a) and 37 C.F.R. § 42.73
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I. INTRODUCTION
We have jurisdiction to hear this covered business method patent
review under 35 U.S.C. § 6(c). This Final Written Decision is issued
pursuant to 35 U.S.C. § 328(a) and 37 C.F.R. § 42.73. For the reasons
discussed herein, we determine that Petitioner has shown, by a
preponderance of the evidence, that claims 1–3, 5, 8, 10, 11, and 13–15 of
U.S. Patent No. 8,479,246 (Ex. 1001, “the ’246 patent”) are unpatentable.
A. Procedural History
Hulu, LLC (“Petitioner”) filed a Petition (Paper 8, “Pet.”) seeking a
covered business method patent review of claims 1–30 (“the challenged
claims”) of the ’246 patent pursuant to § 18(a) of the Leahy-Smith America
Invents Act (“AIA”).
1
Petitioner included a Declaration of V. Michael
Bove, Jr. (Ex. 1008, “Bove Declaration”) to support its positions.
On June 23, 2014, we instituted a covered business method patent
review of some of the challenged claims on the following grounds of
unpatentability: claims 1–3, 5, 8, 10, 11, 13, 14, 16–21, 23, 25, 27, and 29
as unpatentable under 35 U.S.C. § 102(b) as anticipated by Chen;
2
and
claims 15 and 28 as unpatentable under 35 U.S.C. § 103 as obvious over
Chen and Hartanto.
3
Paper 10 (“Inst. Dec.”).

1
Pub. L. 112-29, 125 Stat. 284, 329 (2011).
2
EP 0 840 241 A1, published May 6, 1998 (Ex. 1003).
3
Felix Hartanto & Harsha Sirisena, Hybrid Error Control Mechanism for
Video Transmission in the Wireless IP Networks, PROCEEDINGS OF THE IEEE
TENTH WORKSHOP ON LOCAL AND METROPOLITAN AREA NETWORKS
(Nov. 1999) (Ex. 1010).
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Subsequent to institution, Intertainer, Inc. (“Patent Owner”) filed a
Patent Owner Response (Paper 19, “PO Resp.”), and Petitioner filed a Reply
(Paper 22, “Pet. Reply”) thereto.
Patent Owner also has filed with the Office a statutory disclaimer
under 37 U.S.C. § 1.321(a) with respect to claims 16–21, 23, 25, and 27–29.
PO Resp. 3; Ex. 2003. As a result, only claims 1–3, 5, 8, 10, 11, and 13–15
(“the reviewed claims”) remain under review in this proceeding. See
37 C.F.R. § 42.207(e).
Also before us is Petitioner’s Motion to Exclude (Paper 25, “Mot. to
Excl.”), Patent Owner’s Opposition to the Motion (Paper 29), and
Petitioner’s Reply (Paper 30).
An oral hearing was held on February 3, 2015. A transcript of the
hearing is included in the record. Paper 34 (“Tr.”).
B. Related Proceeding
Patent Owner has asserted the ’246 patent against Petitioner in
Intertainer, Inc. v. Hulu, LLC, No. 2:13-cv-05499 (C.D. Cal.). Pet. 4.
C. The ’246 Patent
The ’246 patent, titled “System and Method for Interactive Video
Content Programming,” issued on July 2, 2013. The ’246 patent relates to a
method for creating an interactive video, which includes one or more
interface links associated with video content being displayed. Ex. 1001,
1:59–60, 2:27–28. When a user interacts with an interface link, the video
content is paused, and the user is able to view ancillary content linked to the
interface link over a network. Id. at 2:27–48, 6:59–7:22. When the user
elects to continue viewing the video content, the video is un-paused. Id. at
7:22–26.
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D. Illustrative Claim
Of the reviewed claims, claim 1 is independent, and each of claims
2, 3, 5, 8, 10, 11, and 13–15 depends directly from claim 1. Claim 1 of
the ’246 patent, reproduced below, is illustrative of the reviewed claims:
1. A method for creating an interactive video, the method
comprising:
encoding and storing the video onto a remote storage
medium at a first site;
creating a link program adapted to both:
(a) interrupt streaming of the video at the remote
storage medium to prevent streaming of the video over an
Internet Protocol (IP)-based network to a second site; and
(b) access ancillary content accessible over the
network with a universal resource locator (URL) to a
remote site where the ancillary content is stored, the link
program linking the ancillary content and the video to a
point in time when the streaming of the video from the
remote storage medium is interrupted;
associating the link program with the video;
streaming the video over the network for display;
providing the link program over the network;
receiving an indication of an interaction with the link
program;
interrupting, at the first site, the streaming of the video in
response to receiving the indication of the interaction with the
link program; and
continuing the streaming of the video over the network
from the point in time when the streaming of the video was
interrupted.
Ex. 1001, 9:45–10:3.
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II. ANALYSIS
A. Covered Business Method Patent
In order to be eligible for a covered business method patent review, a
patent must “claim[] a method or corresponding apparatus for performing
data processing or other operations used in the practice, administration, or
management of a financial product or service, except that the term does not
include patents for technological inventions.” AIA § 18(d)(1); see 37 C.F.R.
§ 42.301(a). In the Decision on Institution, we determined that the ’246
patent includes at least one claim directed to a covered business method and,
thus, is eligible for a covered business method patent review. See Inst.
Dec. 9–12. Patent Owner did not contest this determination in its Patent
Owner Response. Further, we discern no reason based on the complete
record developed during trial to alter this determination.
B. Claim Construction
In a covered business method patent review, a “claim in an unexpired
patent shall be given its broadest reasonable construction in light of the
specification of the patent in which it appears.” 37 C.F.R. § 42.300(b); see
In re Cuozzo Speed Techs., LLC, 778 F.3d 1271, 1278–82 (Fed. Cir. 2015).
Under this standard, we construe claim terms using “the broadest reasonable
meaning of the words in their ordinary usage as they would be understood
by one of ordinary skill in the art, taking into account whatever
enlightenment by way of definitions or otherwise that may be afforded by
the written description contained in the applicant’s specification.” In re
Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
We presume that claim terms have their ordinary and customary
meaning. See In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
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2007). This presumption, however, may be rebutted when the patentee acts
as his own lexicographer, giving the term a particular meaning in the
specification with “reasonable clarity, deliberateness, and precision.” In re
Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
We construed the following claim terms as part of our Decision on
Institution. Inst. Dec. 6–9.
Claim Term Construction in Decision on Institution
link program a set of instructions that tells the computer
what to do when a link is selected
providing to make available; to supply
ancillary content any content or page of content linked to the
primary content or content linked therefrom
Based on the complete record before us as developed during trial, we
see no reason to change the interpretations of “providing” or “ancillary
content,” set forth above. Based on the dispute, however, as to whether the
correct interpretation of “link program” has been applied in this proceeding,
we analyze that claim limitation below. We also construe “providing the
link program over the network” and “associating the link program with the
video.”
1. “link program”
Independent claim 1 recites “creating a link program adapted to both:
(a) interrupt streaming of the video . . . and (b) access ancillary content.”
Ex. 1001, 9:49–54. The Specification of the ’246 patent does not explicitly
define “link program.” The Specification, however, describes how the “link
program” operates when a link is selected, namely “to interrupt the delivery
of video to a visual display and provide access to ancillary content
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accessible over a network.” Ex. 1001, 2:44–48; see id. at 5:19–6:32; 6:59–
7:26. These functions, however, are explicitly recited in claim 1 and, thus,
need not be included in our construction of “link program.” Id. at 9:49–59.
We rely on a Merriam-Webster’s Online Dictionary definition of “program”
as “a set of instructions that tell a computer what to do,”
4
and the clear
language of the claims (e.g., the term “link” is merely an adjective
modifying the term “program”), to conclude the broadest reasonable
interpretation is “a set of instructions that tells the computer what to do when
a link is selected.”
Patent Owner disagrees with our construction, and contends that this
claim language requires a “single ‘link program’ that is adapted to perform
two functions: (a) interrupt streaming of the video and (b) access ancillary
content.” PO Resp. 9 (emphasis added); see also id. at 11 (arguing that
“[w]hile it may be true that computers do not perform tasks without a
program providing instructions, it does not mean that all of the tasks
performed by the computer . . . are accomplished by the same program”)
(emphasis added).
We disagree with Patent Owner that the plain language of the claims,
in view of the Specification of the ’246 patent, requires the link program be
limited to a single program. The claim language itself does not indicate a
single program is required. Further, we see no language in the Specification,
and Patent Owner has not pointed us to any such language, that indicates
clearly or persuades us that the claims should be limited as such. The only

4
MERRIAM-WEBSTER’S ONLINE DICTIONARY, http://www.merriam-
webster.com/dictionary/program (last visited May 20, 2014).
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portion of the Specification to which Patent Owner specifically points
merely “mimics the claim language.” Tr. 25:1–6 (citing Ex. 1001, 2:45–48).
Further still, our construction is supported by arguments made by
Patent Owner during prosecution of the application that matured into
the ’246 patent.
5
“[T]he prosecution history, while not literally within the
patent document, serves as intrinsic evidence for purposes of claim
construction. This remains true in construing patent claims before the PTO.”
Tempo Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973, 977–78 (Fed. Cir. 2014)
(citing In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997)); see also Laitram
Corp. v. Morehouse Indus., Inc., 143 F.3d 1456, 1462 (Fed. Cir. 1998)
(“[A]rguments made during prosecution shed light on what the applicant
meant by its various terms . . . .”).
As noted by Petitioner in its Reply, during prosecution, in response to
a rejection of claim 1 (among others) under 35 U.S.C. § 112, first paragraph,
“Patent Owner argued ‘link program’ include[s] any collection of computer
instructions.” Pet. Reply 3 (citing Ex. 1002, 59
6
(brackets added)). In
arguing the claims had written description support in the Specification,
“Patent Owner summarized the meaning of link program as follows: ‘the
fact that [a] computer performs the disclosed functions when a user interacts
with an interface link necessarily requires that there is a link program . . . .’”

5
U.S. Appl. No. 13/495,884 (“the ’884 application”). Patent Owner was the
assignee of the ’884 application during prosecution of the application.
See Ex. 1002, 292 (Terminal Disclaimer); id. at 6 (Issue Fee Transmittal).
6
Exhibit 1002 includes the entire prosecution history of the ’884
application. Unless otherwise noted, citations to Exhibit 1002 herein are to
the Response to Final Office Action, dated March 22, 2013, and the included
Declaration under 37 C.F.R. § 1.132 of Dr. Gareth Loy.
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Id. at 3–4 (citing Ex. 1002, 60, 83 (emphasis and brackets added by
Petitioner)). Patent Owner further argued that
The plain meaning of the term “program” is an organized list of
instructions that, when executed, causes a computer to behave
in a predetermined manner. . . . [A]nytime a computer does
anything meaningful, it is pursuant to an instruction
commanding it to perform the meaningful function. The
compilation of those instructions constitutes a program.
Ex. 1002, 59, 82–83. These arguments made by Patent Owner during
prosecution of the ’884 application further support our conclusion that there
was no intention to limit the claimed “link program” to a single program.
Instead, as argued by Patent Owner during prosecution of the ’884
application, the claims merely require the computer to function in a
particular manner when a link is selected (due to the presence of the “link
program”).
As discussed, Patent Owner does not point us to persuasive evidence
that the term “link program” should be limited to a single program, as
argued. Accordingly, we maintain our previous construction for the term
“link program”—“a set of instructions that tells the computer what to do
when a link is selected.”
2. “providing the link program over the network” /
“associating the link program with the video”
In response to Patent Owner’s arguments regarding the application of
Chen to the claims, Petitioner argues that the claim limitations “providing
the link program over the network” and “associating the link program with
the video” do not require that the entire link program be provided over the
network, or that the entire link program be associated with the video. Pet.
Reply 9–11 (citing DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc.,
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469 F.3d 1005, 1014–15 (Fed. Cir. 2006) (construing the claim term “screw
head is ‘pressed against’ the ‘hollow spherically-shaped portion’” to include
the case where “[the screw head] presses against all or any part of that
portion,” because “the claim language does not indicate . . . how much of the
hollow spherically-shaped portion must be ‘pressed against’ the screw
head”) (emphasis added)). The claim language itself does not indicate that
the entire link program be provided over the network, or that the entire link
program be associated with the video. Further, we see no language in the
Specification that indicates clearly or persuades us that the claims should be
limited as such.
This construction is supported also by arguments made by Patent
Owner during prosecution of the ’884 application. See Ex. 1002, 164–65
(Response to Office Action, dated August 22, 2012) (citing Ex. 1001, 6:2–4,
9–11) (relying on disclosure of providing and associating interface links as
specification support for the “providing the link program over the network”
and “associating the link program with the video” limitations, respectively,
in response to a rejection under 35 U.S.C. § 112, first paragraph); see also
Ex. 1002, 60, 82 (“[I]t would be clear to a person of ordinary skill in the art
that interface links are elements of the interface link program.”) (emphases
added).
Based on the foregoing, we agree with Petitioner, and determine that
the claim limitations “providing the link program over the network” and
“associating the link program with the video” do not require that the entire
link program be provided over the network, or that the entire link program
be associated with the video.
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C. Anticipation by Chen
Petitioner contends that claims 1–3, 5, 8, 10, 11, 13, and 14 of the
’246 patent are unpatentable under 35 U.S.C. § 102(b) as anticipated by
Chen. Pet. 15–23. In support of the asserted grounds of unpatentability,
Petitioner sets forth teachings of Chen, and provides detailed claim charts
explaining how each claim limitation is disclosed in the cited reference.
1. Chen
Chen discloses a method for indicating a location of time dependent
hot-link regions in a video. Ex. 1003, Abstract. The video can be streamed
from a URL and displayed on a computer monitor. Id. at 3:30–41, 4:29–34.
The streaming video is encoded with embedded hot-links, which point to
various URLs connected to a computer network. Id. at 4:4–10. When a user
clicks on a hot-link, the video is paused and the selected hot-link data is
displayed on the computer monitor. Id. at 4:20–35. The user may resume
the video by clicking on the play button. Id. at 4:38–40.
2. Petitioner’s Arguments and Evidence
After considering the entire record, we are persuaded by Petitioner’s
analysis of how each of the elements of claims 1–3, 5, 8, 10, 11, 13, and 14
of the ’246 patent, arranged as in the claims, is disclosed in Chen. Pet. 15–
23.
For example, with respect to independent claim 1, we are persuaded
that Chen discloses converting video to “hot” video, containing “hot-links,”
corresponding to the claimed “method for creating an interactive video.”
Pet. 16 (citing Ex. 1003, 6:16–21; Ex. 1008 ¶ 17).
We are persuaded further that Chen’s disclosure of an MPEG encoded
video, streamed from a URL for display on a computer connected to a
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network, corresponds to the claimed steps of “encoding and storing the
video onto a remote storage medium at a first site” and “streaming the video
over the network for display.” Pet. 16, 18 (citing Ex. 1003, 3:36–41, 4:5–19,
4:28–34, 5:55–6:1; Ex. 1008 ¶ 17). Petitioner provides testimony that “[o]ne
of ordinary skill in the art would understand that streaming video to one site
would inherently disclose that the video is stored in a storage medium at a
remote site and is streamed to the viewing device.” Ex. 1008 ¶ 17. Patent
Owner has not pointed us to any evidence contesting this testimony.
We are persuaded also that Chen’s disclosure of pausing the video and
displaying the linked page on the computer, in response to clicking a hot-
link, discloses the claimed “creating a link program adapted to both:
(a) interrupt streaming of the video at the remote storage medium . . . and
(b) access ancillary content . . . .” Pet. 16–17 (citing Ex. 1003, 4:5–10,
4:21–25, 4:28–40, 7:30–33; Ex. 1008 ¶ 16); see also Ex. 1003, 2:11–17
(“The [HyperVideo Authoring] tool allows one to prepare video clips with
the hot-link information and then to link them with other types of media.”);
id. at 5:55–6:26 (discussing “[c]reation of hot video content”). As discussed
above, Patent Owner admitted, during prosecution of the ’884 application,
“the fact that [a] computer performs the disclosed functions when a user
interacts with an interface link necessarily requires that there is a link
program.” Ex. 1002, 60, 83 (emphases added).
We are persuaded additionally that Chen’s disclosure of encoding the
embedded hyperlinks in the video (e.g., inserting the hot-link information
into frames in the video), and identifying incoming data as a “hot” video
such that a hot video decoder may display the “hot” video, including the
video, audio, and hot-link information, corresponds to the claimed steps of
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“associating the link program with the video” and “providing the link
program over the network.” Pet. 17–19 (citing Ex. 1003, 4:4–10, 5:56–6:39,
6:48–7:2; Ex. 1008 ¶ 18).
We are persuaded further that Chen’s disclosure of transmitting a
signal to the URL, from which the video is being streamed, to request
delivery of a linked html file (containing instructions to display text or
multimedia content), in response to a user clicking on a hot-link,
corresponds to the claimed step of “receiving an indication of an interaction
with the link program.” Pet. 19 (citing Ex. 1003, 4:20–25; Ex. 1008 ¶ 19).
We are persuaded also that Chen’s disclosure of having the URL, from
which the video is being streamed, pause the video, in response to a user
clicking on a hot-link, while the text or multimedia content is being
displayed, corresponds to the claimed step of “interrupting, at the first site,
the streaming of the video in response to receiving the indication of the
interaction with the link program.” Pet. 19 (citing Ex. 1003, 4:28–34;
Ex. 1008 ¶ 16). We are persuaded additionally that Chen’s disclosure of
allowing the user to resume the video corresponds to the claimed step of
“continuing the streaming of the video over the network from the point in
time when the streaming of the video was interrupted.” Pet. 19 (citing
Ex. 1003, 4:38–40; Ex. 1008 ¶ 20).
We are persuaded similarly by Petitioner’s contentions and supporting
evidence concerning claims 2–3, 5, 8, 10, 11, 13, and 14. Pet. 19–23.
3. Patent Owner’s Arguments and Evidence
Patent Owner argues that Chen does not disclose several features of
claim 1, as well as of dependent claims 8 and 11. PO Resp. 8–33. Patent
Owner also presents arguments regarding the reliability of Dr. Bove’s
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testimony. PO Resp. 12–23. We address each of Patent Owner’s arguments
in turn.
“link program adapted to both: (a) interrupt streaming of the
video . . . and (b) access ancillary content”
Patent Owner contends that Chen does not disclose a “link program
adapted to both: (a) interrupt streaming of the video . . . and (b) access
ancillary content” as recited in claim 1. PO Resp. 8–27. The majority of
Patent Owner’s arguments in this regard are premised on its proposed
construction that a single link program that performs both functions is
required. For the reasons discussed above, we are not persuaded that the
claims are limited in this manner. See supra, Section II.B.1.
Patent Owner further argues that Chen does not disclose the claimed
“link program,” because Chen “is ambiguous regarding how pausing is
accomplished,” indicating that it is unclear “what program (e.g., list of
instructions that the computer performs) does the pausing of the video” and
“given the limited and ambiguous disclosure of Chen [ ] with regard to
pausing, the pausing discussed could be accomplished by the ‘instructions
which the computer executes’ contained in the linked html file, i.e., the
ancillary content.” PO Resp. 24–26. Petitioner argues in its Reply that
“[t]he ‘link program’ need not ‘control the pausing’ as Patent Owner
contends,” and that “[t]he claim language establishes that the ‘link program’
need not ‘control’ the stream interruption.” Pet. Reply 4–5. We are
persuaded by Petitioner’s assertion and analysis that “[n]othing in the claim
requires that the link program created in the ‘creating’ step performs the
[later recited] ‘interrupting’ step.” Id. at 5; see id. at 4–7.
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Accordingly, Patent Owner’s arguments regarding Chen’s lack of a
“link program” are not persuasive.
“providing the link program over the network” / “associating the link
program with the video”
Patent Owner contends that Chen does not disclose the claimed steps
of “providing the link program over the network” or “associating the link
program with the video.” PO Resp. 27–31. For each of these claim terms,
Patent Owner’s arguments are premised on the presumption that Chen’s
video encoder, which Patent Owner argues is not necessarily provided over
the network or associated with the video, controls the pausing of the video,
and, thus, must be part of the claimed “link program.” See id. As noted in
Petitioner’s Reply, this argument ignores Petitioner’s position that Chen’s
hot-link stream in the video, by itself, may constitute the claimed “link
program.” Pet. Reply 7–9. Petitioner also argues that these claim
limitations do not require that the entire link program be provided over the
network, or that the entire link program be associated with the video. Pet.
Reply 9–11.
Based on our construction of these claim limitations (see supra,
Section II.B.2.), and for purposes of this Decision, we need not determine
whether the hot-link stream in the video of Chen, by itself, or the hot-link
stream and the video encoder, constitutes the claimed link program. As
Patent Owner’s above arguments are directed to the decoder, Patent Owner
does not contest that Chen’s hot-link stream is both associated with the
video and provided over the network. See, e.g., Tr. 27:13–15 (“[I]f the
position is that the claim can include multiple programs, then Chen fails to
anticipate because the decoder is neither associated with the video nor
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provided over the network.”) (emphasis added); id. at 28:21–24. The hot-
link stream is sufficient, under our construction, to meet the claim
limitations that the link program is provided over the network and is
associated with the video.
We, thus, find the disclosure of Chen to be sufficient under either
application of Chen to correspond properly to the claimed “link program”
being both provided over the network, and associated with the video.
Accordingly, Patent Owner’s arguments that Chen does not disclose the
claimed steps of “providing the link program over the network” or
“associating the link program with the video” are not persuasive.
Dependent Claims 8 and 11
Patent Owner provides additional arguments with respect to
dependent claims 8 and 11. PO Resp. 31–32. Claim 8 recites that “the link
program is provided simultaneously with the streaming of the video over the
internet.” Ex. 1001, 10:21–23. Claim 11 recites that “the associating of the
link program includes encoding the link program with the video onto the
storage medium.” Id. at 10:29–31. Patent Owner’s arguments in this regard
are similar to the arguments discussed above, that Chen’s video encoder is
not necessarily provided over the network or associated with the video, and,
thus, cannot disclose the recited features. See PO Resp. 31–32. For the
same reasons discussed above with respect to claim 1, Patent Owner’s
arguments are not persuasive.
Dependent Claims 2–3, 5, 10, 13, and 14
Patent Owner does not argue specifically the patentability of claims
2–3, 5, 10, 13, and 14 based on any limitations other than those discussed
above with respect to independent claim 1. See PO Resp. 33. As indicated
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above, after reviewing the entire record, we are persuaded by Petitioner’s
arguments and evidence in connection with the limitations introduced in
each of these dependent claims.
Reliability of Dr. Bove’s Testimony
Patent Owner argues that Dr. Bove’s testimony regarding how Chen
discloses a “link program” should be disregarded, particularly because Dr.
Bove’s testimony allegedly is inconsistent with previous testimony in an
Inter Partes Reexamination of Patent Owner’s U.S. Patent No. 7,870,592
(“the ’592 reexamination”), and that his “inconsistent testimony is likely
caused by pecuniary interests.” PO Resp. 12–24.
We note, as a general matter, that although the claims in the ’592
reexamination may be similar, they are not identical to the claims of the ’246
patent. Further, Patent Owner has not filed a Motion to Exclude Dr. Bove’s
testimony. In any case, the Board, sitting as a non-jury tribunal with
administrative expertise, is well-positioned to determine and assign
appropriate weight to evidence presented. See Gnosis S.p.A. v. S. Alabama
Med. Sci. Found., Case IPR2013-00118, slip op. at 43 (PTAB June 20,
2014) (Paper 64); see also Donnelly Garment Co. v. NLRB, 123 F.2d 215,
224 (8th Cir. 1941) (“One who is capable of ruling accurately upon the
admissibility of evidence is equally capable of sifting it accurately after it
has been received.”). In rendering our decision, we have assigned weight to
the evidence as appropriate in view of the entire record before us.
4. Conclusion
For the reasons discussed, Petitioner has demonstrated, by a
preponderance of the evidence, that claims 1–3, 5, 8, 10, 11, 13, and 14 of
the ’246 patent are unpatentable as anticipated by Chen.
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D. Obviousness in View of Chen and Hartanto
Petitioner contends that claim 15 of the ’246 patent is unpatentable
under 35 U.S.C. § 103 as obvious based on Chen and Hartanto. Pet. 28–30.
Claim 15 recites that the network includes a wireless network. Ex. 1001,
10:43–44. Petitioner contends that use of wireless networks as a mechanism
for the transmission of videos was well known in the art prior to the filing
date of the ’246 patent, and provides declaration evidence that one of skill in
the art would have understood the network for data transfer could be a
wireless network. Pet. 28–29; Ex. 1008 ¶ 24. Petitioner cites Hartanto as an
example of disclosure of wireless networks used with video transmission.
Id. Petitioner further contends that the combination of using a wireless
network connection as the network in Chen would have yielded a predictable
result. Pet. 29–30; Ex. 1008 ¶ 24. We determine that Petitioner’s analysis
and evidence is persuasive.
Patent Owner does not argue specifically the patentability of claim 15
based on any limitations other than those discussed above with respect to
independent claim 1. See PO Resp. 33. After reviewing the entire record,
we are persuaded that Petitioner has demonstrated by a preponderance of the
evidence that claim 15 of the ’246 patent would have been obvious to a
person of ordinary skill in the art
7
over Chen and Hartanto.

7
According to Petitioner, a person of ordinary skill in the art would have a
“Bachelor of Science (B.S.) degree in computer science, or a similar amount
of computer science coursework” and “at least two years of experience in
working with interactive media, including storing and streaming media on a
network.” Pet. 12–13 (citing Ex. 1008 ¶ 4).
CBM2014-00052
Patent 8,479,246

19
E. Motion to Exclude
Petitioner’s Motion to Exclude seeks to exclude Exhibit 2007.
8
Mot.
to Excl. 1. Patent Owner relies on ¶ 15 of Exhibit 2007 as evidence that
“‘the embedded hot links’ of the Chen reference ‘do not perform the pause
operation.’” Id. at 2; PO Resp. 15. As discussed above, we have determined
that the claims do not require the claimed link program to perform the
claimed interrupting step. See supra Section II.C.3. We, thus, have no need
to consider or rely on the cited portions of Exhibit 2007 in rendering our
decision. Accordingly, Petitioner’s Motion to Exclude is dismissed as moot.
III. CONCLUSION
Based on the evidence and arguments, Petitioner has demonstrated, by
a preponderance of the evidence, that claims 1–3, 5, 8, 10, 11, and 13–15 of
the ’246 patent are unpatentable.
IV. ORDER
Accordingly, it is
ORDERED that claims 1–3, 5, 8, 10, 11, and 13–15 of U.S. Patent
No. 8,479,246 are unpatentable; and
FURTHER ORDERED that Petitioner’s Motion to Exclude is
dismissed.
This is a final written decision. Parties to the proceeding seeking
judicial review of the decision must comply with the notice and service
requirements of 37 C.F.R. § 90.2.

8
Exhibit 2007 is a Declaration of Dr. Gareth Loy Under 37 C.F.R. § 1.132,
submitted in the ’592 reexamination.
CBM2014-00052
Patent 8,479,246

20
PETITIONER:
Eliot Williams
Harper Batts
BAKER BOTTS LLP
eliot.williams@bakerbotts.com
harper.batts@bakerbotts.com
PATENT OWNER:
Amedeo F. Ferraro
Thomas H. Martin
Wesley C. Meinerding
Brent D. Martin
MARTIN & FERRARO, LLP
aferraro@martinferraro.com
tmartin@martinferraro.com
wmeinerding@martinferraro.com
bmartin@martinferraro.com
docketing@martinferraro.com