Ibex PT Holdings Co., Ltd.

Patent Trials and Appeals Board

Aug 27, 2020

IPR2018-00093 (P.T.A.B. Aug. 27, 2020)

Trials@uspto.gov Paper 33
571-272-7822 Date: August 27, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

SAMSUNG ELECTRONICS CO., LTD.,
Petitioner,

v.

IBEX PT HOLDINGS CO., LTD.,
Patent Owner.
____________

IPR2018-00011 (Patent No. 8,654,855 B2)
IPR2018-00092 (Patent No. 9,025,668 B2)
IPR2018-00093 (Patent No 8,774,279 B2)
____________

Before LYNNE E. PETTIGREW, BARBARA A. PARVIS, and
KIMBERLY McGRAW, Administrative Patent Judges.

McGRAW, Administrative Patent Judge.

DECISION
Denying Patent Owner’s Request for Rehearing
37 C.F.R. § 42.71

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I. INTRODUCTION
Ibex PT Holdings Co., Ltd. (“Patent Owner”) filed a Request for
Rehearing (“Request” or “Req. Reh’g”, Paper 321) of our Final Written
Decision in each of IPR2018-00011 (“Decision” or “Dec.,” Paper 31),
IPR2018-00092, and IPR2018-00093, finding that the challenged claims were
unpatentable over references including WD5.2 For the reasons given below,
we deny the Requests.
II. ANALYSIS
The party challenging a decision in a request for rehearing bears the
burden of showing the decision should be modified. 37 C.F.R. § 42.71(d). A
request for rehearing “must specifically identify all matters the party believes
the Board misapprehended or overlooked, and the place where each matter was
previously addressed.” Id.
In each of our Decisions, we determined Petitioner had shown by a
preponderance of the evidence that WD5, a reference that was asserted against
all challenged claims, qualifies as a printed publication under pre-AIA § 102(a)
and that all challenged claims were unpatentable over the asserted art. See
Dec. 25–31, 50. WD5 is a fifth version of a working draft of a “next
generation” High Efficiency Video Coding (“HEVC”) standard (H.265),
developed by the standard setting organization JCT-VC (i.e., the Joint

1 Unless otherwise indicated, citations are to papers filed in IPR2018-00011.
Similar papers, however, were filed in each proceeding.
2 Benjamin Bross et al., WD5: Working Draft 5 of High-Efficiency Video
Coding, JCTVC-G1103 (version 3) (uploaded Dec. 30, 2011) (“WD5”,
Ex. 1029).
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Collaborative Team on Video Coding3), intended to replace the then current
standard (H.264), which had “become the primary format in use for essentially
all video applications.” See Ex. 1007, 1. We explained that WD5 was sent in
an email dated December 30, 2011 to the “JCT-VC reflector,” which is the
email listserv used by the JCT-VC. Dec. 27. Every member of the JCT-VC,
which includes the at least 284 members of the JCT-VC that attended the
seventh JCT-VC meeting in Geneva in November 2011, as well other
individuals that had opted in to the listserv, were subscribed to the JCT-VC
reflector listserv. See id. at 28 (citing Ex. 1002 (Original Mr. Bross
Declaration) ¶ 184; Ex. 1058 (Seventh JCT-VC Meeting Report-Geneva), 1,

3 The JCT-VC is a standards organization created in 2010 under the auspices
of (1) the International Organization for Standardization (“ISO”) and (2) the
International Telecommunication Union (“ITU”), which is the United Nations
(“UN”) specialized agency for information and communication technologies.
See Ex. 1041, 2. Members of the JCT-VC include video coding personnel
from its two parent organizations: (1) the Video Coding Experts Group
(“VCEG”), also referred to as the ITU-T Study Group or the Study Group 16
of ITU-T, the Telecommunication Standardization Sector of the ITU and
(2) the Moving Pictures Experts Group (“MPEG”), also referred to as ISO/IEC
JTC 1/SC 29/WG11 or the Working Group 11 (WG 11) of SC 29, a
subcommittee under Joint Technical Committee (JTC) 1 of the International
Organization for Standardization (ISO) and the International Electrotechnical
Commission (IEC). See Ex. 1002 ¶ 173 & n.26, n.27 (citing Exs. 1045–1046,
1050); see also Ex. 1042, 1 (stating “ITU membership represents a cross-
section of the global ICT [information and communication technologies]
sector, from the world’s largest manufacturers and telecoms carriers to small,
innovative players working with new and emerging technologies, along with
leading R&D institutions and academia”); Ex. 1043 (stating the “ITU-T has
driven a contribution-led, consensus-based approach to standards development
in which all countries and companies, no matter how large or small, are
afforded equal rights to influence the development of ITU-T
Recommendations”).
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302–305 (identifying the 284 participants of the seventh meeting of the JCT-
VC and their associated companies or organizations)). We also found that the
email disseminating WD5 was sent without any requirement or expectation of
confidentiality. See id. at 29 (citing Ex. 1065 (email); Ex. 1041 (Terms of
Reference of the JCT-VC), 2 (stating that “all input and output documents of
the JCT will be public (including the drafts of the coding specification,
reference software, and conformance test data”)); Ex. 1002 ¶ 178).
We also found that members of the JCT-VC are persons interested and
skilled in the art and that any interested member of the public could have
subscribed to the JCT-VC reflector. See id. at 28–29 (citing Ex. 1002 ¶ 184;
Ex. 1058, 2; Ex. 2008 (Bross Deposition Transcript), 83:23–84:3; Paper 30
(Transcript of Oral Hearing, “Tr.”) 49:7–11). Based, inter alia, on our findings
that WD5 was emailed to the JCT-VC reflector listserv without any restrictions
on confidentiality, that the reflector included at least 284 JCT-VC members
who attended the seventh JCT-VC meeting4 as well as any member of the
public who had requested and received access to the listserv, and that any
member of the public could have joined the listserv, we determined WD5
qualified as a printed publication. See id. at 29–31.
In its each of its Requests for Rehearing, Patent Owner contends that we
erred in finding that WD5 qualifies as a printed publication. See Req. Reh’g
1–10. In particular, Patent Owner contends (1) we overlooked the issue of
whether “the number of individuals were members of the JCT-VC reflector
represented a significant portion of those interested and skilled in the art (or if

4 The meeting “was open to those qualified to participate either in ITU-T
WP3/16 or ISO/IEC JTC 1/SC 29/WG.” Ex. 1058, 6.
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they were a small fraction),” (2) we misapprehended the credibility of
Mr. Bross as a fact witness, (3) we misapprehended the supplemental
evidence,5 and (4) our findings of fact in the Final Decision are inconsistent
with other panels’ findings on the same evidence and issues of fact. See id.
For the following reasons, Patent Owner’s Requests do not persuade us
that our Decisions determining that WD5 qualifies as a printed publication
should be modified.
A. Must the Members of the JCT-VC Reflector Constitute a “Significant
Portion of Those Interested and Skilled in the Art” in order for WD5
to Constitute a Printed Publication?
Patent Owner argues each of the Decisions failed to “determine whether
the 284 JCT-[VC] members were a significant portion or a small fraction of
persons of ordinary skill in the art.” Req. Reh’g 3 (citing Dec. 28–31). Patent
Owner contends that because our determination that WD5 is a printed
publication relies on evidence that WD5 was disseminated to at least 284
members of the JCT-VC reflector, we should have considered whether those
“284 JCT-VC individuals represented a significant portion of those interested
and skilled in the art.” See id. at 1, 3.
Contrary to Patent Owner’s argument, however, the law does not require
that a reference must be disseminated to a significant portion of the relevant
public in order to constitute a printed publication. Indeed, Patent Owner’s
arguments mirror the same arguments that were rejected by the Federal Circuit

5 Petitioner sought, and was authorized, to file supplemental information
(Exs. 1106–1118) related to the public availability of WD5. See Paper 9
(Motion to Submit Supplemental Information); Paper 15 (Order granting
Petitioner’s Motion to Submit Supplemental Information).
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in a decision that issued after Patent Owner filed its rehearing request. See
Samsung Electronics Co., v. Infobridge Pte. Ltd., 929 F.3d 1363, 1374 (Fed.
Cir. 2019); see also Mass. Inst. of Tech. v. AB Fortia, 774 F.2d 1104 (Fed. Cir.
1985) (distribution to six conference attendees made work publicly accessible).
In Infobridge, the Federal Circuit vacated two Board final written
decisions6 that had determined an earlier working draft of the HEVC standard
(i.e., WD4), emailed in October 2011 to at least 254 subscribers of the JCT-VC
reflector listserv, was not a printed publication. See Infobridge, 929 F.3d at
1365, 1373. The Board had determined the email to the JCT-VC reflector
“was, at best, a limited distribution . . . to a select group, the members of the
JCT-VC and perhaps others who may have opted into the reflector” and had
“faulted Samsung for failing to show that the email recipients ‘represented a
significant portion of those interested and skilled in the art.’” Id. at 1374
(citing Samsung Electronics Co., v. Infobridge Pte. Ltd., IPR2017-00099,
Paper 32 at 26 (PTAB Apr. 23, 2018)).7
The Federal Circuit stated the “Board’s decision to reject Samsung’s
evidence because it did not establish that enough interested and ordinarily
skilled artisans actually obtained the WD4 reference was . . . erroneous.” Id.
The Federal Circuit explained that “the standard for public accessibility is
whether a person of ordinary skill in the art could, after exercising reasonable
diligence, access a reference” and that the Board “departed from this well-

6 Samsung Elec. Co., Ltd. v. Infobridge Pte. Ltd., IPR2017-00099, Paper 32
(PTAB Apr. 23, 2018), and Samsung Elec. Co., Ltd. v. Infobridge Pte. Ltd.,
IPR2017-00100, Paper 30 (PTAB Apr. 23, 2018).
7 Cited by the Federal Circuit as “Final Written Decision, 2018 WL 19040480
at *9.”
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established principle by repeatedly faulting Samsung for not proving that the
WD4 reference was ‘generally’ or ‘widely’ disseminated.” Id. Rather than
requiring Samsung to prove that persons of ordinary skill actually received the
listserv email, the Federal Circuit stated the Board should have considered
whether Samsung’s evidence established that an ordinarily skilled artisan could
have accessed the WD4 reference, after exercising reasonable diligence, based
on the listserv email. See id. at 1374–75.
Thus, Patent Owner’s argument, that the Board overlooked whether the
at least 284 recipients of WD5 represented a significant portion of those
interested and skilled in the art, is not persuasive for the same reasons stated by
the Federal Circuit in Infobridge.
Moreover, the guidance set forth in Infobridge supports our
determination that WD5 is a printed publication. See Dec. 20–31. The Federal
Circuit states that, in determining whether an earlier working draft of the
HEVC working standard (i.e., WD4) sent via email to the JCT-VC listserv is a
printed publication, the Board should consider whether an ordinarily skilled
artisan could have accessed the WD4 reference, after exercising reasonable
diligence, based on the listserv. Infobridge, 929 F.3d at 1374–75. This may
include examining whether a person of ordinary skill would have joined the
listserv. Id. at 1375. It may also include considering the circumstances of the
email itself, for example why the email was sent and whether it was covered by
an expectation of confidentiality. Id. Application of these factors set forth in
Infobridge to the evidence of record in the present proceedings, supports our
determination that an ordinarily skilled artisan could have accessed the WD5
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reference, after exercising reasonable diligence, based on the JCT-VC reflector
listserv and that WD5 is a printed publication.
For example, with regard to considering whether a person of ordinary
skill would have joined the listserv, we found that persons of ordinary skill in
the art did join the listserv. See Dec. 28–30 (citing Ex. 1002 ¶¶184–185; Ex.
1058, 1–2, 302–305; Ex. 2008, 83:23–84:3; Tr. 49:7–11); see also id. at 29
(stating “WD5 was disseminated at least to members of the JCT-VC, who are
persons interested and ordinarily skilled in the relevant art, and that any
member of the public could have requested and received access to the JCT-VC
reflector”); Ex. 2008, 40:17–41:3 (Mr. Bross testifying that the JCT-VC’s
efforts to develop a new standard were well known and that “almost every
company that matters in . . . industry and academia and institutes were
participating in the JCT-VC”); Ex. 1116, 27 (article discussing how “more than
1000 technologies were published at the 7th JCT-VC confidence” and that
“such a large number of contributions demonstrate successful HEVC
standardization activities”). We credited Mr. Bross’s testimony that people
from both companies and academia asked to join, and did join, the listserv.
See Dec. at 28–29 (citing Ex. 2008, 83:23–84:3 (Mr. Bross stating “I have
personal knowledge and recollection that people subscribed to that list from
academia, from companies have been approved as subscription request by the
moderator”)). We also credited Mr. Bross’s testimony that the number of
people subscribed to the JCT-VC listserv was greater than the 284 JCT-VC
members who had attended the seventh JCT-VC meeting. See id. at 28 (citing
Ex. 1002 ¶¶ 184–185; Ex. 1058, 1, 302–305).
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That a person of ordinary skill and interested in the art would have
joined the listserv is further supported by the testimony and supporting
evidence that one skilled in the art would have been interested in following the
JCT-VC’s well-known efforts to develop a new generation high efficiency
video coding standard to replace the standard that had been used in “essentially
all video applications” with an updated new standard. See, e.g., Ex. 1002
¶¶ 172– 185 (discussing the JCT-VC); Ex. 1106 (Bross Supplemental
Declaration) ¶¶ 3–13 (discussing, inter alia, the prominence of the JCT-VC in
the video coding industry and citing Ex. 1007 (IEEE editorial)); see also
Ex. 1007, 3, 7 (discussing the importance of the video compression standard to
the development of products and services); id. at 3 (stating “each international
video coding standard” has “enabled an expanding array of product offerings
and design improvements”), id. at 7 (stating “at this point of development it is
still unclear which specific elements the final HEVC standard will contain, the
selection of the papers in the Special Section was made such that together they
would cover most of the promising tools and technologies that seem likely to
be included in the standard”); see also Dec. 20–21 (stating the JCT–VC was
created by two parent organizations, the VCEG (Video Coding Experts
Group), which is a group under the auspices ITU-T, a United Nations
specialized agency) and the MPEG (Moving Picture Experts Group), which is
a group under the auspices of the International Organization for
Standardization (citing Ex. 1002 ¶ 173 & n. 26; Exs. 1040–1044, 1047–1049).
We are persuaded by Petitioner’s evidence, including Mr. Bross’s
testimony, that the JCT-VC’s efforts to develop a new standard were well
known and that “almost every company that matters in . . . industry and
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academia and institutes were participating in the JCT-VC.” Reply 14–15
(quoting Ex. 2008, 40:17–41:3); see also id. at Reply 12 (citing, inter alia,
Ex. 1002 ¶ 173 n.26–27; Ex. 1106 ¶¶ 12–13; Ex. 1007, 3; Ex. 1058, 1, 302–
305); see also Ex. 1106 ¶ 8 (stating those experienced and interested in video
coding technologies knew the “document best representing the current status
and details of the JEVC standardization process was the working draft”); id.
¶ 9 (stating those “experienced and interested in video coding technologies
understood and appreciated that the ‘working drafts’ of the HEVC Standard
were the documents that would have provided a comprehensive understanding
of the JCT-VC efforts in video coding at that time”); id. ¶ 10 (stating persons
skilled in the art were tracking the JCT-VC’s development of a video coding
standard “to ensure that products and services they were developing were
consistent with the HEVC Standard under development”) id. ¶ 12 (discussing
prominence of the JCT-VC in the video coding industry); id. ¶ 13 (stating
“representatives in the video coding industry, university professors, and
research institutions that were either developing, researching, and reviewing
products and technologies related to video coding were aware of the
developments of the HEVC Standard”).
Moreover, Mr. Bross’s testimony that “almost every company that
matters in . . . industry and academia and institutes were participating in the
JCT-VC” (Ex. 2008, 40:17–41:3) is further supported by reports from the JCT-
VC quarterly meetings, beginning April 2010, showing the meetings were
attended by hundreds of employee members and their affiliated world-wide
organizations, including numerous companies, institutes, and universities. See
Ex. 1053, 2, 56–57 (first meeting report-188 attendees); Ex. 1054, 1–2, 70–72
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(second meeting report-221 attendees); Ex. 1055, 1–2, (third meeting report-
244 attendees); Ex. 1052, 1–2, 171–173 (fourth meeting report-248 attendees);
Ex. 1056, 2, 208–211 (fifth meeting report-226 attendees); Ex. 1057, 1–2, 8,
254–257 (sixth meeting report-254 attendees); Ex. 1058, 2 (seventh meeting
report-284 attendees). For example, representatives from the following
companies attended the seventh JCT-VC meeting: AMD, Apple, Broadcom,
Canon, Cisco Systems Norway, Dolby Laboratories, Ericsson AB, Fujitsu,
Harmonic, Huawei, Intel, InterDigital Communications, JCV Kenwood,
Kodak, LG Electronics, MediaTek, Microsoft Corporation, Mitsubishi Electric,
Motorola, NEC, Nokia, Panasonic, Polycom, Qualcomm, Samsung, Sharp,
Seimans AG, Sharp, SK Telecom, Skype, Sony Electronics Inc.,
STMicroelectronics, Technical, Texas Instruments, Vidyo, and ZTE. See
Ex. 1058, 302–305. Representatives from numerous other universities and
institutions also attended. See id.
Petitioner has also provided persuasive evidence to show that interested
artisans who were not members of the JCT-VC would have known about and
been interested in following the JCT-VC’s efforts to develop a new generation
HEVC coding standard. See, e.g., Ex. 1106 ¶¶ 10–13. For example, Mr. Bross
testified that “given the prominence of the JCT-VC in the video coding
industry . . . persons experienced and skilled, and interested, in video coding
technologies were tracking the developments of the last video coding standard”
to “ensure that products and services they were developing were consistent
with the HEVC Standard under development.” Ex. 1106 ¶ 10; see also
Ex. 1002 ¶ 178 (stating “persons interested in tracking the developments of the
latest video coding standard would regularly visit the JCT-VC site to ensure
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that products and services they were developing were consistent with the
HEVC Standard under development”). We also credit Mr. Bross’s testimony
that video coding personnel who were not actively contributing to the JCT-VC
had inquired about when the next update to the working draft of the HEVC
Standard would be circulated on the JCT-VC listserv. See Ex. 1106 ¶ 11
(describing conversations with video coding personnel regarding impact of
new HEVC standard on company products).
Mr. Bross’s testimony is also supported by Dr. Vetro, who was involved
with MPEG, a parent body of the JCT-VC, and who testified that during the
2011 timeframe, “entities such as companies, universities and research
institutions of the MPEG members, would distribute documents so that
individuals affiliated with such entities could keep up with the latest
developments in the video standardization process(es), e.g., to ensure that
products and services they were working on were compliant with the video
coding standard(s).” Ex. 1035 (Declaration of Dr. Anthony Vetro) ¶¶ 7–8, 23;
see also Ex. 1002 ¶ 182 (stating that JCT-VC documents would be mirrored, or
uploaded, onto both the JCT-VC and MPEG document management sites).
The evidence of record that any member of the public could have
subscribed to the JCT-VC listserv also supports our finding that WD5 is a
printed publication. See Dec. 28. We are persuaded by Mr. Bross’s testimony
that any person could subscribe to the JCT-VC reflector by requesting a
subscription at the JCT-VC reflector management site and that, in practice,
anyone with a valid email address requesting a subscription typically was
approved. Ex. 1002 ¶ 184; see also Ex. 1058, 2 (providing a link for
subscription to the listserv); Ex. 1058, 8 (stating membership of the reflector is
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not limited to qualified JCT-VC participants); Ex. 2008, 83:23–84:3
(Mr. Bross stating “I have personal knowledge and recollection that people
subscribed to that list from academia, from companies have been approved as
subscription request by the moderator”).
Mr. Bross’s testimony that those interested and skilled the art, who were
not members of the JCT-VC, could have joined the JCT-VC reflector listserv is
further supported by each of the JCT-VC meeting reports, beginning with the
first meeting report, that provide instructions on how to subscribe to the
reflector. See Ex. 1053, 2 (first meeting report stating “[f]or subscription to
this list, see http://mailman.rwth-aachen.de/mailman/listinfo/jct-vc”); see also
Ex. 1054, 1–2 (second meeting report); Ex. 1055, 2 (third meeting report);
Ex. 1052, 2 (fourth meeting report); Ex. 1056, 2 (fifth meeting report);
Ex. 1057, 2 (sixth meeting report); Ex. 1058, 2 (seventh meeting report).
Additionally, the sixth and seventh meeting reports clarified that membership
of the reflector is not limited to members of the JCT-VC. See, e.g., Ex. 1057, 8
(stating “membership of the reflector is not limited to qualified JCT-VC
participants”); Ex. 1058, 8 (same).
That those skilled in the art would have been aware of how to subscribe
to the JCT-VC reflector listserv is also supported by a December 2010 editorial
titled “Special Section on the Joint Call for Proposals on High Efficiency
Video Coding (HEVC) Standardization” and other articles in a journal titled
“IEEE Transactions on Circuits and Systems for Video Technology.” See
Ex. 1007 (Table of Contents and editorial-Vol. 20, No. 12 IEEE journal-Dec.
2010); see also Ex. 1106 ¶ 12 (citing Ex. 1007; Ex. 1002 ¶¶ 43, 48). We credit
Mr. Bross’s testimony, and Patent Owner does not dispute, that this journal
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was one of the most influential technical journals in the video coding field in
the 2011–2012 time frame. See Ex. 1106 ¶ 12.
The editorial describes the importance of the HEVC standard to product
offerings and design improvements and that the HEVC standard (H.264) had
“become the primary format for use in essentially all video applications.”
Ex. 1007, 3. The editorial also describes the JCT-VC’s efforts to develop the
next generation HEVC standard, discusses the JCT-VC’s first meeting, held in
April 2010, states the JCT-VC meeting report and other JCT-VC documents
are “publicly available for further study,” and provides a website where the
public could access those documents. See Ex. 1007, 6; see also id. at 6 n.8
(identifying the first meeting report of the JCT-VC). Thus, one skilled in the
art interested in video coding technology would have had reason to review the
JCT-VC meeting report as suggested in the editorial and would have had
reason to follow the instructions contained therein on how to join the JCT-VC
reflector listserv.
Other articles and patent documents submitted by Petitioner as
supplemental evidence further support Petitioner’s argument that those skilled
in the art would have been aware of and interested in following the JCT-VC
and its efforts to develop a new HEVC standard. See Paper 9 (Motion to
Submit Supplemental Information), 3 (citing Exs. 1106–1118 to show public
availability of WD5); see also Paper 21 (Petitioner’s Reply to Patent Owner
Response), 19–22 (discussing Exs. 1106–1118); see also Ex. 1116, 27 (article
discussing how “more than 1000 technologies were published at the 7th JCT-
VC conference” and that “such a large number of contributions demonstrate
successful HEVC standardization activities”); Ex. 1117, 1, 9 (Report
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discussing the “state of the standardization discussions regarding HEVC” and
stating that it “is expected that a new standard that can be widely applied to
various applications will ultimately be issued”).
The circumstances of the email itself further support a finding that WD5
qualifies as a printed publication. The email was sent without any expectation
of confidentiality. See Dec. 28 (citing Ex. 1065). Rather, the purpose of the
email was, inter alia, to inform subscribers to the JCT-VC reflector that a “new
version” of the fifth working draft (i.e. WD5) was uploaded and available for
viewing and to seek “comments and improvements related to the WD [working
draft.]” See Ex. 1065, 1–2 (stating “Please feel free to contact the editors if
you have any comments and improvements related to the WD”). It would be
reasonable for the recipients of the email, including those sent to attend the
JCT-VC meeting by their employers, to forward the email to others in their
corporations to keep them advised as to proposed changes to the HEVC coding
standard to ensure that company products and services were consistent with the
proposed draft and to seek comments on the proposed draft standard. See Ex.
1065, 1–2; see also Ex. 1002 ¶ 178 (Mr. Bross testifying that “persons
interested in tracking the developments of the latest video coding standard
would regularly visit the JCT-VC site to ensure that products and services they
were developing were consistent with the HEVC Standard under
development”).
Indeed, the primary purpose of the JCT-VC was to develop a new
generation HEVC standard that would apply to products worldwide. See
Ex. 1002 ¶ 173; see also Ex. 1045, 1 (“International Standards make things
work. They give world-class specifications for products, services and systems,
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to ensure quality, safety and efficiency. They are instrumental in facilitating
international trade. . . . ISO International Standards impact everyone,
everywhere.”). This purpose made it crucial that documents, including drafts
of the new standard, be made public. See Ex. 1041, 2 (stating that in “order to
facilitate cross-organi[z]ational communication, all input and output
documents of the JCT will be public (including the drafts of the coding
specification”)).
Accordingly, Petitioner shows persuasively that interested members of
the relevant public, including ordinary artisans within world-wide companies,
universities, and research institutions, both members and non-members of JCT-
VC (including MPEG parent members), would have been interested in joining
and would have been able to join the listserv, and would have been able to
access the international HEVC standards document WD5, either by joining the
listserv directly or by receiving a forwarded version of the email. See also
Kyocera Wireless Corp. v. International Trade Comm’n, 545 F.3d 1340, 1350–
51 (Fed. Cir. 2008) (determining that standard documents, drafted within
technical subcommittees of a standards drafting organization which did not
impose restrictions on members, were sufficiently accessible to the public
interested in the art to be considered publicly available).
B. Credibility of Declarant
Next, Patent Owner contends we misapprehended the credibility of
Mr. Bross as a fact witness when we credited Mr. Bross’s testimony that “in
2011–2012 every JCT-VC member was subscribed to the JCT-VC reflector,”
that “any person could subscribe to the JCT-VC reflector by requesting a
subscription at the JCT-VC reflector management site,” and that “in practice,
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anyone with a valid email address requesting subscription was typically
approved.” See Req. Reh’g 4–6 (citing Dec. 28; Ex. 1002 ¶¶ 182, 184;
Ex. 1058, 2; Ex. 2008, 83:23–84:3). In particular, Patent Owner contends
(1) Mr. Bross offered no basis for his testimony regarding the JCT-VC
reflector and (2) there is no evidence of record “sufficient to support a finding
that [Mr. Bross] has personal knowledge of the matter” as required by Fed. R.
Evid. 602.8 See Req. Reh’g 5 (citing PO Resp. 39; Ex. 2008, 82:2–84:12).
Specifically, Patent Owner states Mr. Bross was never an administrator
of the JCT-VC reflector listserv and criticizes Mr. Bross for not recalling the
name of any moderator of the listserv. See id. at 5–6 (citing PO Resp. 38–44;
Ex. 2008, 80:11–84:12). Patent Owner also states Mr. Bross never testified
that he personally knew of anyone outside of the JCT-VC that had requested
access and was subsequently added to the reflector, and thus “typically was
approved.” Id. at 7 (citing Ex. 1002 ¶ 184). Patent Owner also asserts
Mr. Bross “struggled to testify regarding his memory and recollections without
referring to his declarations.” Req. Reh’g 6 (citing PO Resp. 39, 43–44).
We disagree with Patent Owner’s arguments that we misapprehended
Mr. Bross’s credibility and that the evidence of record is not “sufficient to
support a finding that [Mr. Bross] has personal knowledge of the matter.” Req.
Reh’g 4–6.
“Evidence to prove personal knowledge may consist of the witness’s

8 Although Patent Owner did object to the admissibility of Mr. Bross’s
supplemental declaration (Ex. 1106) under Fed. R. Evid. 602 (see Paper 16, 1–
3), Patent Owner did not seek to exclude Mr. Bross’s supplemental declaration
under 37 C.F.R. § 42.64(c), which provides that a “motion to exclude evidence
must be filed to preserve any objection” to the admissibility of the evidence.
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own testimony.” Fed. R. Evid. 602. We credit Mr. Bross’s testimony that he
has “personal knowledge and recollection that people subscribed to that list
from academia, from companies have been approved by the moderator.” Dec.
28–29 (citing Ex. 2008, 83:53–84:3; Ex. 1002 ¶ 184; Ex. 1058, 2). Mr. Bross
testified that, as co-chair and lead author of the Working Drafts of the JCT-VC,
he was familiar with the procedures for making JCT-VC documents publicly
available, including through the JCT-VC reflector listserv (see Ex. 1002 ¶ 177)
and that based on his knowledge and recollection, all communications between
members related to the development of the HEVC standard were to be
conducted via the JCT-VC reflector (jct-vc@lists.rwth-aachen.de) (see
Ex. 1002 ¶ 184). See also Ex. 1058, 2 (stating the JCT-VC “reflector [is] to be
used for discussions by the JCT-VC and all its AHGs [Ad Hoc Groups]”); id.
at 228–229.
We also credit Mr. Bross’s testimony that he recalls receiving inquiries
from video coding personnel regarding when the next update to the working
draft of the HEVC Standard would be circulated on the JCT-VC listserv and
that at least some of the inquiries in the 2011–2012 time frame came from
persons who were not actively contributing to the JCT-VC but who monitored
the development of the HEVC Standard for potential impact on their respective
companies’ future products. See Ex. 1106 ¶ 11.
We also disagree with Patent Owner’s argument that we should have
discounted Mr. Bross’s testimony because he was not an administrator of the
JCT-VC listserv and because he did not recall the name of any moderator of
the listserv. Req. Reh’g 5–6 (citing PO Resp. 38–44; Ex. 2008, 80:11–84:12).
Mr. Bross provided persuasive testimony as to how one skilled in the art could
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have joined the listserv, including identifying the website for subscribing to the
listserv (i.e., https://mailman.rwth-aachen.de/mailman/listinfo/jct-vc). See
Ex. 1002 ¶ 184. This testimony is further supported by the meeting reports
that identify the same website for subscribing to the reflector and that also state
individuals, other than members of the JCT-VC, may subscribe to the reflector.
See Ex. 1058, 2 (stating “[f]or subscription to this list, see http://mailman.rwth-
aachen.de/mailman/listinfo/jct-vc”), 8 (stating “membership of the reflector is
not limited to qualified JCT-VC participants”); see also Ex. 1053, 2 (first
meeting report); Ex. 1054, 1–2 (second meeting report); Ex. 1055, 2 (third
meeting report); Ex. 1052, 2 (fourth meeting report); Ex. 1056, 2 (fifth meeting
report); Ex. 1057, 2, 8 (sixth meeting report).
Patent Owner also contends that because Mr. Bross never testified that
he personally knew of anyone outside the JCT-VC that had requested access
and was subsequently admitted to the reflector, his testimony that anyone
could have joined the listserv is unsupported. See Req. Reh’g 6 (citing
Ex. 1002 ¶ 184; PO Res. 38–44). We disagree with this contention as
Mr. Bross testified in his deposition that he has “personal knowledge that
people subscribed to that list from academia, from companies have been
approved as subscription request by the moderator.” Ex. 2008, 83:21–3.
Mr. Bross was not questioned about this statement during his deposition. See
generally id.
Based on the totality of the evidence, we find Mr. Bross’s testimony to
be credible and supported by the evidence of record. Patent Owner has not
shown that the Board misapprehended or overlooked the relevant evidence
when assessing the credibility of Mr. Bross.
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C. Supplemental Evidence
In its Request for Rehearing, Patent Owner contends the Board
misapprehended the supplemental evidence. See Req. Reh’g 9–10.
First, Patent Owner argues that because the JCT-VC is a closed group,
the Board’s finding that anyone could join the JCT-VC group “is irrelevant.”
See Req. Reh’g 9 (citing Dec. 28). Specifically, Patent Owner states:
The FWD appears to rely on how anyone can join the
JCT-VC group. FWD, 28. However, the group is still closed,
and how a closed group is formed is irrelevant. See Medtronic,
Inc. v. Barry, 891 F.3d 1368, 1382 (Fed. Cir. 2018) (“As a
threshold matter, the Board did not address the potentially-
critical difference between the SDSG meeting in Arizona and
the programs in Colorado Springs and St. Louis, which were
not limited to members of the SDSG but instead were attended
by at least 75 other surgeons, collectively.”) (emphasis added).

Id. 9
We disagree with Patent Owner that “how a closed group is formed is
irrelevant” to the printed publication analysis in the present proceeding. Patent
Owner does not persuasively explain its argument that “how a closed group is
formed is irrelevant” to the printed publication analysis at issue here. See id.
As quoted above, Patent Owner relies on a statement in Medtronic that there is
a “potentially critical difference” “between the SDSG meeting in Arizona and
the programs in Colorado Springs and St. Louis, which were not limited to

9 Although Patent Owner presents this argument under the heading
“D. Misapprehension of the Supplemental Evidence,” Patent Owner does not
specifically identify what supplemental evidence the Board allegedly
misapprehended when it found that any member of the public could have
subscribed to the JCT-VC listserv. See Req. Reh’g 9.
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members of the SDSG but instead were attended by at least 75 other surgeons,
collectively.” See Req. Reh’g 9 (citing Medtronic, 891 F.3d at 1382).
However, unlike the membership of the SDSG group in Medtronic, which was
described as “relatively exclusive” (see 891 F.3d at 1382), here, membership in
the JCT-VC itself was not relatively exclusive. As explained above, “almost
every company that matters in . . . industry and academia and institutes were
participating in the JCT-VC.” Ex. 2008, 40:17–41:3.
In addition, subscription to the JCT-VC listserv was not limited to
JCT-VC members, but rather, was open to any interested member of the
public. See Dec. 28–29 (citing Ex. 1002 ¶ 184; Ex. 1058, 2; Ex. 2008, 82:23–
84:3); see also Ex. 1058, 8 (stating “membership of the reflector is not limited
to qualified JCT-VC participants”). Thus, we disagree with Patent Owner’s
contention that participation in the JCT-VC group is akin to attendance at the
“relatively exclusive” SDSG meeting of Medtronic.
Moreover, Medtronic states that even if the reference was only
distributed to SDSG members at the SDSG meeting, “this factor alone is not
dispositive of the inquiry” of whether the distributed reference qualifies as a
printed publication. See Medtronic, 891 F.3d at 1382. Other factors to
consider, besides the “relatively exclusive nature of the SDSG membership,”
may include “the purpose of the meetings” and “whether the SDSG members
were expected to maintain the confidentiality of received materials or would be
permitted to share or even publicize the insights gained and the materials
collected at the meetings.” Id. at 1383.
Here, as explained above, the purpose of the JCT-VC was to promulgate
a new generation HEVC standard to replace the standard that was used in
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essentially all video applications. See Ex. 1007, 3; Ex. 1041, 1. The purpose
of the JCT-VC listserv was to, inter alia, disseminate the most recent drafts of
the proposed HEVC standard to the listserv, without any confidentiality
restrictions or limitations on dissemination, in order to get input on the drafts.
Because of the significant impact that a new coding standard may have on
company products, it is expected company personnel would share the working
drafts with others at their company in order to provide information about, and
solicit feedback on, the working drafts of the standard. See, e.g., Ex. 1106 ¶ 11
(Mr. Bross describing conversations with video coding personnel regarding
impact of new HEVC standard on their companies’ products); see also
Ex. 1002 ¶ 175 (Mr. Bross testifying that he proposed technical contributions
to the HEVC Standard on behalf of his employer).
Thus, even if the JCT-VC reflector were a “closed group,” distribution
of the latest working draft of the HEVC standard (i.e., WD5) to this group,
who were under no expectation of confidentiality and who would be expected
to further disseminate and share the working draft with others in order to
provide information about, and solicit feedback on, the working draft, renders
WD5 a printed publication. See Graham v. John Deere Co., 383 U.S. 1, 6
(1966) (stating “Congress may not authorize the issuance of patents whose
effects are to remove existent knowledge from the public domain, or to restrict
free access to materials already available”); Oil States Energy Services, LLC. v.
Greene’s Energy Group, LLC, 138 S. Ct. 1365, 1374 (stating the statutory
requirements of Title 35 prevent the “issuance of patents whose effects are to
remove existent knowledge from the public domain”); In re Wyer, 655 F.2d
221, 226 (CCPA 1981) (stating the “printed publication provision was
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designed to prevent withdrawal by an inventor, as the subject matter of a
patent, of that which was already in the possession of the public”).
Second, Patent Owner criticizes the Board’s finding that there was no
expectation of confidentiality, stating, inter alia, (1) “there is no evidence to
support disclosure outside the JCT-VC group” and (2) “the Board never
determined that WD5 was actually publicly accessible (meaningfully indexed)
and thus could be downloaded by any POSA outside the JCT-VC group.” Id.
at 10 (citing Dec. 29–30 (which cited Ex. 1002 ¶ 178; Ex. 1041, 2; Ex. 1112;
Ex. 1113)).
This argument is not persuasive because a finding that there was no
expectation of confidentiality does not require evidence that any non-
confidential information was actually disclosed to another. For the reasons set
forth in the Decision, and further described above, the email to the JCT-VC
reflector listserv disseminating WD5 was not subject to any expectation of
confidentiality. See Dec. 29–30. Moreover, based on the evidence of record, it
is reasonable to assume that recipients of a non-confidential email, which
provided a link to the latest version of a draft working standard and sought
comments on that draft, would have shared the email with others within their
organization in order to inform others about the current draft of a standard that
could impact company products and to seek feedback on that draft standard.
Finally, Patent Owner argues that it “is unclear” how the Board’s
citation to a patent and its file history that cited WD5 on an information
disclosure statement “demonstrates there is an alleged expectation of no
confidentiality.” See Req. Reh’g 10 (citing Ex. 1112 (Patent No. 8,693,793 B2
(“the ’793 patent”) and Ex. 1113 (’793 patent file history)). This argument is
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not persuasive because the listing of WD5 on an Information Disclosure
Statement (“IDS”) indicates an intent to make public the IDS and the list of
references recited therein.
Moreover, Jie Zhao and Sachin G. Deshpande are listed as inventors on
the ’793 patent. See Ex. 1112, code (75). They, however, are not listed as
attendees of the seventh JCT-VC meeting and are therefore not among the
identified 284 subscribers to the JCT-VC reflector listserv. See Ex. 1054, 6,
302–305 (identifying 284 individuals as attendees of the seventh meeting).
Thus, for this additional reason, Exhibits 1112 and 1113, which was submitted
as supplemental evidence, corroborates Petitioner’s assertions that interested
members of the public, other than the 284 specifically identified subscribers to
the listserv, were aware of WD5 prior to the critical date. See Paper 9
(Petitioner’s Motion to Submit Supplemental Information), 1, 3–7 (seeking
authorization to submit Exhibits 1106–1118 as supplemental information
relating to the public availability of WD5); Paper 15 (Order Granting
Petitioner’s Motion to Submit Supplemental Information).
Accordingly, for the foregoing reasons, we disagree with Patent Owner’s
arguments that the Board misapprehended the supplemental evidence when we
found that any member of the public could have subscribed to the JCT-VC
listserv or that subscribers to the JCT-VC listserv were under no obligation, or
expectation, of confidentiality.
D. Panel Findings are not Inconsistent
Patent Owner also contends our findings are inconsistent with the
Board’s findings in Samsung Electronics Co. v. Infobridge Pte. Ltd., IPR2017-
00099 and IPR2017-00100 (collectively the “Infobridge IPR proceedings”)
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that, according to Patent Owner, determined a reference (i.e., WD4) sent via
email to the JCT-VC reflector was not a printed publication based “on the
same evidence and issues of fact.” Req. Reh’g 7–9 (citing Ex. 2002 (Samsung
Electronics Co., v. Infobridge Pte. Ltd., IPR2017-00099, Paper 32 at 16, 24–26
(PTAB Apr. 23, 2018)). Patent Owner contends the panels of the Infobridge
IPR proceedings “found Mr. Bross’s testimony was factually insufficient to
find the email to the reflector constituted dissemination” and that there “was no
evidence to determine whether the 254 individuals were a significant portion or
a small fraction of POSA’s.” Req. Reh’g 9 (citing Ex. 2002, 26). Patent
Owner requests that, due to the inconsistencies, the Board revisit the arguments
offered by the parties and conclude WD5 is not a printed publication. See id.
at 1–2.
We are not persuaded by this argument. As discussed above in Section
II.A, the Board’s determination in the Infobridge IPR proceedings that WD4
was not a printed publication was vacated by the Federal Circuit because the
determination was based on, inter alia, the application of an erroneous legal
standard. See Infobridge, 929 F.3d at 1374. As explained in Infobridge, it was
error to require a showing “that enough interested and ordinarily skilled
artisans actually obtained the WD4 reference.” Id.
Moreover, the record here involves different evidence and different
arguments than the Infobridge IPR proceedings, including a supplemental
declaration by Mr. Bross discussing, inter alia, efforts by those skilled in the
art to follow the efforts of the JCT-VC to ensure that their products and
services were consistent with the HEVC Standard under development. See
generally Ex. 1106; see also Tr. 9:7–15 (counsel for Petitioner stating that
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although certain evidence may have been in the record of the Infobridge IPR
proceedings, the focus and level of discussion about the evidence differed); Tr.
50:16–51:14 (counsel for Patent Owner discussing some of the similarities and
differences between the present proceeding and the Infobridge IPR
proceedings); see also Paper 9 (Petitioner’s Motion to Submit Supplemental
Information), 1, 3–7 (seeking authorization to submit Exhibits 1106–1118 as
supplemental information relating to the public availability of WD5); Paper 15
(Order Granting Petitioner’s Motion to Submit Supplemental Information). It
is not inconsistent for different panels to reach different conclusions about the
weight to be afforded to testimony, or the printed publication status of different
asserted prior art references, when the panels consider different evidence and
argument.
Therefore, for the above reasons, we are not persuaded that any alleged
inconsistencies between the present proceeding and the Infobridge IPR
proceedings require “the Board to revisit” arguments and “conclude that
[Petitioner] has not proven that claims 1–5 are unpatentable because WD5 is
not a ‘printed publication.’” See Req. Reh’g at 2.
III. CONCLUSION
After considering Patent Owner’s arguments for rehearing, we determine
Patent Owner has not carried its burden of showing that we misapprehended or
overlooked any matter.
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Final Outcome of Final Written Decision after Rehearing IPR2018-00011
(Patent No. 8,654,855 B2):
Claims 35 U.S.C § Reference(s)/Basis Claims
Shown
Unpatentable
Claims Not
Shown
Unpatentable
1–5 103(a) WD5, Lin 1–5
Overall
Outcome
1–5

Final Outcome of Final Written Decision after Rehearing IPR2018-00092
(Patent No. 9,025,668 B2):
Claims 35 U.S.C § Reference(s)/Basis Claims Shown
Unpatentable
Claims Not
Shown
Unpatentable
1–3 103(a) WD5, Lin 1–3
Overall
Outcome
1–3

Final Outcome of Final Written Decision after Rehearing IPR2018-00093
(Patent No 8,774,279 B2):
Claims 35 U.S.C § Reference(s)/Basis Claims
Shown
Unpatentable
Claims Not
Shown
Unpatentable
1–5 103(a) WD5, Lin 1–5
Overall
Outcome
1–5

IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that Patent Owner’s Requests for Rehearing are denied.
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PETITIONER:
Naveen Modi
Joseph E. Palys
Quadeer A. Ahmed
Daniel Zeilberger
PAUL HASTINGS LLP
naveenmodi@paulhastings.com
josephpalys@paulhastings.com
quadeerahmed@paulhastings.com
danielzeilberger@paulhastings.com
PH-Samsung-Ibex-IPR@paulhastings.com

PATENT OWNER:
Eugene T. Perez
David A. Bilodeau
Lynde F. Herzbach
Michael T. Smith
BIRCH, STEWART, KOLASCH & BIRCH, LLP
etp@bskb.com
dab@bskb.com
lynde.herzbach@bskb.com
michael.t.smith@bskb.com