NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

SLING TV, L.L.C.,

Appellant

v.

UNILOC 2017 LLC,

Appellee

______________________ 

2021-1651

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. IPR2019-

01363.

______________________ 

Decided: February 2, 2022

______________________ 

ELIOT DAMON WILLIAMS, Baker Botts LLP, Palo Alto, 

CA, argued for appellant. Also represented by GEORGE 

HOPKINS GUY, III; ALI DHANANI, Houston, TX, KURT M.

PANKRATZ, Dallas, TX.

 NATHAN K. CUMMINGS, Etheridge Law Group, Southlake, TX, argued for appellee. Also represented by JAMES 

ETHERIDGE, BRIAN MATTHEW KOIDE, RYAN S. LOVELESS,

BRETT MANGRUM. 

 ______________________ 

Case: 21-1651 Document: 35 Page: 1 Filed: 02/02/2022
2 SLING TV, L.L.C. v. UNILOC 2017 LLC

Before LOURIE, DYK, and REYNA, Circuit Judges.

DYK, Circuit Judge

Sling TV, L.L.C. (“Sling”) appeals an inter partes review decision of the Patent Trial and Appeal Board 

(“Board”) concluding that Sling had not shown claims 1–3 

of U.S. Patent No. 9,721,273 (“the ’273 patent”) to be unpatentable. We vacate and remand. 

BACKGROUND

The ’273 patent relates to providing “audio/visual 

presentations via a computer network.” ’273 patent, col. 1, 

ll. 36–37. The ’273 patent describes the use of Really Simple Syndication (“RSS”), a standardized data format “used 

to publish [Internet] content that may be frequently updated.” Id. at col. 10, ll. 64–67. An RSS feed has a single 

“channel.” J.A. 722. The channel contains information 

about the feed itself (such as title, link, and description), as 

well as any number of “item” elements. J.A. 722, 725. Each

item element “may represent a ‘story’—much like a story 

in a newspaper or magazine”—and contains metadata elements with information about the item, such as title, link, 

description, author, and category, with title or description 

being mandatory. J.A. 725 (“All elements of an item are 

optional, however at least one of title or description must 

be present.”).

Claim 1 of the ’273 patent recites the following:

A method for providing content via a computer network and computing system, the method comprising:

storing presentation data that represents 

content of a first collection of one or more 

presentations using the computer system;

Case: 21-1651 Document: 35 Page: 2 Filed: 02/02/2022
SLING TV, L.L.C. v. UNILOC 2017 LLC 3

storing data indicative of the first collection 

of presentations so as to be associated with 

the presentation data;

storing feed data that represents a collection of one or more feeds using the computer system, wherein each of the feeds 

identifies a corresponding second collection 

of one or more presentations being accessible via the computer network and includes 

no data representing content of the second 

collection of presentations;

automatically and periodically accessing 

each of the feeds to identify each of the corresponding second collection of presentations, using the computer system;

storing data associated with a third collection of one or more presentations; and

aggregating each of the first, identified second, and third collections of presentations 

for delivery via the computer network using a common web page.

’273 patent, col. 12, ll. 39–59. Claims 2 and 3 are dependent claims that were not separately addressed by the 

Board. We are concerned here with the limitation “storing 

feed data that represents a collection of one or more feeds 

using the computer system, wherein each of the feeds identifies a corresponding second collection of one or more 

presentations being accessible via the computer network 

and includes no data representing content of the second collection of presentations” (hereinafter “the feed limitation”). 

Id. at col. 12, ll. 46–51.

Sling petitioned the Board for inter partes review of 

claims 1–3 of the ’273 patent, asserting that the claims 

were obvious over U.S. Patent Application Publication No. 

2008/0256443 (“Li”) as well as Li in combination with U.S. 

Case: 21-1651 Document: 35 Page: 3 Filed: 02/02/2022
4 SLING TV, L.L.C. v. UNILOC 2017 LLC

Patent Application Publication No. 2008/071929 (“Motte”). 

J.A. 56. In its petition, Sling argued that Li discloses the 

feed limitation via its use of RSS. J.A. 82–89.

In its Final Written Decision, the Board stated that in 

its institution decision, it had “misread” the petition and 

“understood [Sling] to be relying on Li’s link to an RSS 

channel as the claimed feed” rather than Sling’s actual position, which relies on “Li’s link to an RSS channel as the 

claimed feed data and the RSS channel, itself, as the 

claimed feed.” J.A. 8. The Board found that Sling’s actual 

position requires a claim construction of “no data representing content” in the feed limitation to encompass 

metadata, and stated that Sling’s “position on claim construction only became clear at the hearing.” J.A. 8–9. The 

Board determined that the “[p]atent [o]wner . . . did not 

have notice and fair opportunity to present arguments and 

evidence rebutting [Sling]’s theory [and f]or this reason, 

[found] that [Sling] ha[d] not demonstrated by a preponderance of the evidence that claims 1–3 of the ’273 patent 

are unpatentable.” J.A. 13. Nonetheless, the Board addressed the merits. The Board “credit[ed] [Sling’s] statement that the [p]etition relies on Li’s RSS channel” but 

declined to “adopt [Sling’s] belated clarification of its claim 

construction position asserting that metadata do not qualify as data representing content.” J.A. 24. The Board determined that because Li’s RSS channel includes 

metadata, it does not disclose the feed limitation, which requires that the feed “includes no data representing content.” J.A. 24–25. Because both grounds relied on Li, the 

Board concluded that Sling had not shown obviousness of 

the challenged claims. Sling appeals. We have jurisdiction 

under 28 U.S.C. § 1295(a)(4)(A).

DISCUSSION

Claim construction is a question of law that may involve underlying factual inquiries. Teva Pharms. USA, 

Inc. v. Sandoz, Inc., 574 U.S. 318, 325–26 (2015). We 

Case: 21-1651 Document: 35 Page: 4 Filed: 02/02/2022
SLING TV, L.L.C. v. UNILOC 2017 LLC 5

review claim constructions based solely on intrinsic evidence de novo and factual findings as to extrinsic evidence 

for substantial evidence. Jazz Pharms., Inc. v. Amneal 

Pharms., LLC, 895 F.3d 1347, 1360 (Fed. Cir. 2018).

To the extent the Board’s decision rested on the theory 

that Sling “did not sufficiently clarify its claim construction 

position” in its petition, J.A. 13, that is not correct. Sling’s 

petition contained an explicit mapping of the relevant elements in the feed limitation. The petition identifies, multiple times, links to RSS feeds disclosed by Li as the “feed

data” and the RSS feeds themselves as the feed:

Li discloses feed data, such as addresses of RSS 

feeds. . . . Li describes that the user performs a “registration act” that sends portal server 10 an RSS 

feed’s URL address (i.e., feed data). . . . Thus, Li 

discloses storing feed data (addresses of RSS feeds) 

that represents a collection of one or more feeds 

(the user’s subscribed feeds) using the computer 

system (portal server 10).

J.A. 83–84. The petition also argued:

The only specific example of a feed disclosed by the 

’273 Patent is a feed based on an RSS standard. 

Thus, a POSA would understand that the feature 

of ‘no data representing content’ is inherent to an 

RSS feed, such as that disclosed by Li.

J.A. 86 (citation omitted). 

On the merits, the Board’s decision is difficult to understand. The Board expressed that “the outcome turns on 

whether metadata qualifies as ‘data representing content.’” 

J.A. 11. In rejecting Sling’s arguments, the Board was “not 

persuaded that . . . metadata do not qualify as data representing content,” J.A. 17–18, and it “decline[d] to adopt 

[Sling’s] asserted construction that metadata do not qualify 

as ‘data representing content,’” J.A. 20. To the extent that 

the Board suggested that Li’s use of RSS does not disclose 

Case: 21-1651 Document: 35 Page: 5 Filed: 02/02/2022
6 SLING TV, L.L.C. v. UNILOC 2017 LLC

the feed limitation because it includes metadata, that cannot be correct. The specification makes clear that RSS with 

metadata would be within the claim limitation. The specification discusses embodiments in detail “with regard to 

RSS 2.0 feeds,” and it mentions that the invention “may be 

suitable for use with other types of content (e.g., audio/video) feeds.” ’273 patent, col. 11, ll. 14–19. The specification describes the use of standard RSS in conventional 

ways. Id. at col. 10, ll. 66–67 (“RSS utilizes a standardized 

format.”), col. 11, ll. 27–28 (“[T]he logged on user requests 

to link an RSS feed, e.g., by interacting in a conventional 

manner with web page 200.”), col. 11, ll. 64–65 (Determining if new content exists “may be accomplished in any of a 

number of conventional manner[s]”). The conventional 

RSS standard requires including metadata, specifically either title or description, for each item in the feed. J.A. 725. 

At oral argument, Uniloc’s counsel could not identify anywhere in the ’273 patent specification disclosing an RSS 

feed without metadata. Oral Arg. 16:30–17:50. 

Under the Board’s interpretation of “no data representing content,” the preferred RSS embodiment would fall outside the scope of claim 1 because standard RSS feeds 

contain metadata. “A claim construction that ‘excludes the 

preferred embodiment is rarely, if ever, correct and would 

require highly persuasive evidentiary support.’” SynQor, 

Inc. v. Artesyn Techs., Inc., 709 F.3d 1365, 1378–79 (Fed. 

Cir. 2013) (quoting Adams Respiratory Therapeutics, Inc. 

v. Perrigo Co., 616 F.3d 1283, 1290 (Fed. Cir. 2010)). Because the Board’s claim construction excludes a preferred 

embodiment and is inconsistent with the specification’s description of the invention, it is incorrect. 1 

1 The Board suggested an apparent tension between 

the construction of “presentation data that represents content” earlier in claim 1 and “no data representing content” 

in the feed limitation. J.A. 20–22. We think that the 

Case: 21-1651 Document: 35 Page: 6 Filed: 02/02/2022
SLING TV, L.L.C. v. UNILOC 2017 LLC 7

We think that the correct claim construction of the feed 

limitation encompasses RSS feeds containing metadata, 

but would exclude, for example, RSS feeds containing “the 

entirety of a text story,” which the Board noted would be 

within the RSS standard but outside the scope of the limitation, J.A. 17. On remand, the Board should determine 

whether the challenged claims in the ’273 patent would 

have been obvious over Li or the combination of Li and 

Motte in light of the correct construction of the feed limitation.

CONCLUSION

We vacate and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

COSTS 

Costs to Sling TV, L.L.C.

language of the two limitations does not require the same 

construction, and we further note that Sling’s petition relied on Li’s disclosure of a “content library,” not Li’s use of 

RSS feeds, to satisfy the “presentation data” limitation. 

J.A. 78 (“Li describes storing the presentation data (thumbnails and titles) in a ‘content library’ of database 11 and/or 

a ‘cache memory’ of portal server 10.”).

Case: 21-1651 Document: 35 Page: 7 Filed: 02/02/2022