N OTE : This disposition is nonprecedential.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

______________________ D AN Y OUNG , Quarles & Brady LLP, Littleton, CO, argued for appellant. Also represented by K ENT D ALLOW ; C HAD K ING , King IAM LLC, Lone Tree, CO.

H ARPER B ATTS , Sheppard Mullin Richter & HamptonLLP, Menlo Park, CA, argued for appellee. Also represented by J EFFREY L IANG , C HRISTOPHER S COTT P ONDER

.

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

. LTD

. v. NETFLIX , INC

. 2

Before T ARANTO , S TOLL , and S TARK , Circuit Judges

. T ARANTO , 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, t he 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 Tech nologies International Sales Pte. Ltd. , No. IPR2021

- 00303, 2 022 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 method s an d 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 p ortable system, a method for providing adigital 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 chara cterized by a communication bandwidth that is high enough to provide the digital media content to the user at a Case: 22-2147 Document: 39 Page: 2 Filed: 04/12/2024AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE

. LTD

. v. NETFLIX , INC

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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 leve l 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 (emphas e s added). This appeal involves the meaning of th e 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 t he digital media content’s quality level in terms of its delivery,” t he Board rejected Avago’s contention that th e quality

- level terms are “limited to the quality of thedigital media content independent of any network considerations.” Decision , at *5. Avago challenges th e 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, t he claim language specifies (1) digital media content “having a current quality level” during the step of “delivering” that content “ to a user,” (2) Case: 22-2147 Document: 39 Page: 3 Filed: 04/12/2024AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE

. LTD

. v. NETFLIX , INC

. 4

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 qualit y 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 re ference 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 w hat 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 w hich thequality 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 d elivery- 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 , bu t the passages do n ot go beyond reciting

non
- limiting examples

. ) W e agree with the Board that the prosecution history , see J.A. 168

– 76 , does not justify the construction Avago urges. Case: 22-2147 Document: 39 Page: 4 Filed: 04/12/2024AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE

. LTD

. v. NETFLIX , INC

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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 ult imate significance of the prosecution history, and Avago does not contend that the “second system” language call s for its proposed construction

. Rather, Avago relies on an o ther change in the claim language

— replacement of references in the body (but not th e 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