NOTE: This disposition is nonprecedential.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, argued 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 represented by JEFFREY LIANG, CHRISTOPHER SCOTT PONDER. 

______________________ 

Case: 22-2147 Document: 39 Page: 1 Filed: 04/12/2024
AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LTD. v.

NETFLIX, INC. 

2

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 assignee. Upon institution and conduct of the IPR, the Patent Trial and Appeal Board issued a final written decision 

holding claims 1–13 and 16–18 unpatentable for obviousness under 35 U.S.C. § 103. Netflix, Inc. v. Avago Technologies 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 jurisdiction 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 patent calls for the user to instead receive that content from 

a second source when the network connection with the second 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 comprising:

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 bandwidth that is high enough to provide the 

digital media content to the user at a 

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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 describes 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 considerations.” 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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high enough bandwidth “to provide the digital media content 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 delivery-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 determined). Overall, the claim language focuses on the as-received 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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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 media content at the higher quality level to the user” from that 

second system. J.A. 175 (emphasis added). Claim language 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 construction. 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 quality-level constraint that Avago now seeks to impose, because 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 related arguments exclude network-related effects on the 

quality levels of delivered digital media content”).

Avago’s additional arguments depend on its claim-construction position. Having rejected that position, we affirm 

the Board’s decision.

AFFIRMED

Case: 22-2147 Document: 39 Page: 5 Filed: 04/12/2024