Trials@uspto.gov
`571-272-7822
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` Paper 7
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`Entered: November 4, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`BLACK HILLS MEDIA, LLC,
`Patent Owner.
`
`
`
`
`Case IPR2014-00723
`Patent 8,214,873 B2
`
`
`
`Before BRIAN J. McNAMARA, PETER P. CHEN, and
`FRANCES L. IPPOLITO, Administrative Patent Judges.
`
`CHEN, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
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`
`
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` Paper 7
`
`Entered: November 4, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`BLACK HILLS MEDIA, LLC,
`Patent Owner.
`
`
`
`
`Case IPR2014-00723
`Patent 8,214,873 B2
`
`
`
`Before BRIAN J. McNAMARA, PETER P. CHEN, and
`FRANCES L. IPPOLITO, Administrative Patent Judges.
`
`CHEN, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2014-00723
`Patent 8,214,873 B2
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`
`I. INTRODUCTION
`Samsung Electronics Co., Ltd., Samsung Electronics America, Inc.,
`and Samsung Telecommunications America, LLC (collectively,
`“Petitioner”) filed a Petition requesting an inter partes review of claims 1, 2,
`5–8, 15–19, 22, 23, 25–27, 30–31, 34–37, and 44–46 of U.S. Patent No.
`8,214,873 B2 (Ex. 1001, “the ’873 patent”). Paper 1 (“Pet.”). Black Hills
`Media, LLC (“Patent Owner”) filed a Preliminary Response. Paper 6
`(“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314.
`The standard for instituting an inter partes review is set forth in
`35 U.S.C. § 314(a), which provides as follows:
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
`
`Upon consideration of the Petition and the Preliminary Response, we
`are persuaded the information presented by Petitioner has shown a
`reasonable likelihood that Petitioner would prevail in showing the
`unpatentability of claims 1, 2, 5-8, 15-19, 22, 23, 25–27, 30–31, 34–37, and
`44-46 of the ’873 patent. Accordingly, we authorize institution of an inter
`partes review of these claims.
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`A. Related Proceedings
`Patent Owner has sued Petitioner for alleged infringement of the ’873
`patent in the U.S. District Court for the Eastern District of Texas. Black
`Hills Media, LLC v. Samsung Elecs. Co., No. 2:13-cv-00379 (E.D. Tex.).
`Pet. 1.
`The Patent Owner also initiated a Section 337 action in the U.S.
`International Trade Commission against LG, Sharp, Toshiba, Panasonic, and
`Samsung alleging, inter alia, infringement of the ’873 patent. See Certain
`Digital Media Devices, Including Televisions, Blu-Ray Disc Players, Home
`Theater Systems, Tablets and Mobile Phones, Components Thereof and
`Associated Software, Inv. No. 337-TA-882 (USITC) (the “882 ITC
`Investigation”); Pet. 1.1
`We instituted an inter partes review of claims 1, 2, 6–13, 15–31, 35–
`42, and 44–46 of the ’873 patent in Yamaha Corporation of America v.
`Black Hills Media LLC, Case IPR2013-00598 (PTAB Mar. 20, 2014).
`
`B. Real Party-in-Interest
`
`Patent Owner asserts that Petitioner fails to identify all real parties-in-
`interest and requests the Petition be dismissed for noncompliance with
`35 U.S.C. § 312(a) and 37 C.F.R. § 42.8(b). Prelim. Resp. 1–7. In
`
`1 The ITC issued an Initial Determination holding the ’873 patent invalid
`under 35 U.S.C. § 112, ¶ 1. Certain Digital Media Devices, Including
`Televisions, Blu-Ray Disc Players, Home Theater Systems, Tablets and
`Mobile Phones, Components Thereof and Associated Software, Inv. No.
`337-TA-882 (July 14, 2014) (Initial Determination).
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`particular, Patent Owner argues that Google, Inc. (“Google”) should have
`been identified in the Petition as a real party-in-interest. Id. at 2. Patent
`Owner first contends that a recently discovered agreement, titled Mobile
`Application Distribution Agreement (“MADA”), requires Google to
`“defend, or at its option settle, any third party lawsuit or proceeding brought
`against [Petitioner]” and arising out of any claim that Google products and
`services used in Petitioner’s products infringe any patent. Prelim. Resp. 3–4.
`Patent Owner states that “under the MADA, Google has full control of the
`defense and settlement of any third-party infringement action implicating
`Google’s products and services, including any proceeding, such as this
`Petition.” Id. Although the Petition is not an infringement action, Patent
`Owner appears to argue that the Petition arose from the 882 ITC
`Investigation filed by Patent Owner against Petitioner.
`Patent Owner next contends that Google sought to intervene in the
`ITC Investigation, and that in its motion papers Google asserted “a
`compelling interest” in the investigation. Prelim. Resp. 5.
`On this record, we are not persuaded Google is a real party-in-interest
`in this matter. A determination as to whether a non-party to an inter partes
`review is a real party-in-interest is a “highly fact-dependent question,” based
`on whether the non-party “exercised or could have exercised control over a
`party’s participation in a proceeding,” and the degree to which a non-party
`funds, directs, and controls the proceeding. Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, 48,759–60 (Aug. 14, 2012). Thus, the issue is
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`whether there is a non-party “at whose behest the petition has been filed,” or
`a relationship “sufficient to justify applying conventional principles of
`estoppel and preclusion.” Id.
`The existence of the MADA and Google’s motion to intervene in the
`882 ITC Investigation are not persuasive evidence that Google is in a
`position to exercise control over Petitioner’s involvement in this proceeding.
`Google’s indemnification of Petitioner for infringement claims brought by
`third parties, such as contemplated in the MADA, does not, by itself, mean
`that Google may exercise control over Petitioner’s actions in this
`proceeding. In addition, Google’s expression of interest in the 882 ITC
`Investigation does not mean it has the same interests as those of Petitioner.
`We, therefore, do not deny the Petition for failure to comply with 35 U.S.C.
`§ 312(a) and 37 C.F.R. § 42.8(b)(1).
`The Patent Owner Preliminary Response includes an informal request
`for discovery concerning Google’s role in this proceeding. Prelim. Resp. 8.
`The Preliminary Response is not a vehicle for requesting additional
`discovery. 37 C.F.R. § 42.107. See 37 C.F.R. § 42.51. In IPR2014-00717
`(Paper 17) and IPR2014-00735 (Paper 17), we granted in part Patent
`Owner’s authorized motion for additional discovery in those proceedings.
`
`C. The ’873 Patent
`The subject matter of the challenged claims of the ’873 patent relates
`generally to a system and method for media sharing between electronic
`devices, by using a first device to provide remote control of playing of
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`media items (e.g., songs or videos) on a second device, such as a stereo or
`television. Ex. 1001, Abstract, 9:8-14. The first device receives a playlist
`and selects the second device, and a user selects the media items to be
`played on the second device, without user input via the second device. Pet.
`7; Prelim. Resp. 6; Ex. 1001, Abstract; 2:28-40, 52-68. As stated in the ’873
`patent, the claimed system is a “fully integrated plug and play technology
`platform that delivers secure anytime, anywhere, on-demand multimedia
`content for digital home systems.” Id. at 7:12-15, cf. Prelim. Resp. 9.
`Figure 1 of the ’873 patent is reproduced below.
`
`
`Figure 1 depicts an embodiment of the invention wherein a playlist is
`communicated from playlist server 11 via Internet 12 to first device 13 or
`second device 14. Ex. 1001, 8:51-56. First device 13 comprises a remote
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`control for second device 14, which may comprise a music rendering device
`such as a stereo, television, or home computer. Id. at 9:27-32, 55-63.
`
`D. Illustrative Claim
`Claims 1, 2, 5–8, 15–19, 22, 23, 25–27, 30–31, 34–37, and 44–46 are
`the subject of the Petition. Claims 1, 17, 23, 25–27, 30, and 46 are
`independent claims. Independent claim 1 is illustrative and is reproduced as
`follows.
`1. A method for facilitating the presentation of media, the
`method comprising:
`
`displaying, on a first device, at least one device identifier
`identifying a second device;
`
`receiving user first input selecting the at least one device
`identifier;
`
`receiving, on the first device, a playlist, the received playlist
`comprising a plurality of media item identifiers;
`
`receiving user second input selecting at least one media item
`identifier from the received playlist; and
`
`directing, from the first device, the second device to receive a
`media item identified by the at least one media item identifier
`from a content server, without user input via the second device.
`
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`E. Prior Art Relied Upon
`Petitioner relies upon the following two prior art references.
`
`Reference
`
`Title
`
`Date
`
`Ex. No.
`
`Weast
`
`US 7,454,511 B2 Nov. 18, 2008
`
`Ex. 1004
`
`Encarnacion US 7,668,939 B2 Feb. 23, 2010
`
`Ex. 1005
`
`
`
`F. The Asserted Ground
`Petitioner contends the challenged claims are unpatentable based on
`
`the following single ground.
`
`References
`
`Basis
`
`Claims Challenged
`
`Weast and Encarnacion
`
`§ 103
`
`1, 2, 5–8, 15–19, 22–23, 25–27, 30–
`31, 34–37, and 44–46
`
`II. ANALYSIS
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`Office Patent Trial Practice Guide, 77 Fed. Reg. at 48,766. There is a
`“heavy presumption” that a claim term carries its ordinary and customary
`meaning. CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d 1359, 1366 (Fed.
`Cir. 2002). However, a “claim term will not receive its ordinary meaning if
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`the patentee acted as his own lexicographer and clearly set forth a definition
`of the disputed claim term in either the specification or prosecution history.”
`Id.
`
`Petitioner proposes that the term, “playlist,” means “a list of media
`items.” Pet. 4–6. The Specification states that:
`
`This play list is a list of songs containing at least one song that the
`
`listener would like to hear.
` The listener selects at least one song from the received playlist,
`as shown in block 35. Either a single song may be selected, or a
`plurality of songs may be selected.
`
`Ex. 1001, 11:25–29. Patent Owner’s Preliminary Response and
`accompanying exhibits, including the declaration of Gareth Loy (Ex. 2006),2
`argue in support of its proposal that a “playlist” is “a list referencing media
`items arranged to be played in a sequence.” Prelim. Resp. 19–24. The
`Specification, however, states that “selected songs may be played in the
`order selected, in random order, or in any other order. The order can
`preferably be changed at any time.” Ex. 1001, 3:23–24, 11:42–44. The
`construction proposed by Patent Owner is too narrow and would exclude the
`embodiment described in the Specification. For purposes of this Decision,
`
`
`2 The Loy declaration was filed previously in IPR2013-00598 as Exhibit
`2011.
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`we determine that the broadest reasonable interpretation of the term
`“playlist” consistent with the Specification is “a list of media selections.”3
`
`B.
`
`Claims 1, 2, 5–8, 15–19, 22, 23, 25–27, 30–31, 34–37, and 44–46 –
`Obviousness over Weast and Encarnacion
`Petitioner contends claims 1, 2, 5–8, 15–19, 22, 23, 25–27, 30–31,
`34–37, and 44–46 are unpatentable under 35 U.S.C. § 103(a) as obvious
`over Weast and Encarnacion. Pet. 17–60.
`
`Weast (Exhibit 1004)
`Weast is titled “Visibility of UPnP Media Renderers and Initiating
`Rendering Via File System User Interface.” Petitioner contends Weast
`discloses a user interface for a computing device operating in a Universal
`Plug and Play (“UPnP”) network. Pet. 12. Weast is directed to a user
`friendly technique to employ and control a UPnP media renderer to render
`media content available from a UPnP media server. Ex. 1004, 2:44–47.
`
`
`3 “Playlist” was construed in the same manner in our decision instituting
`inter partes review of U.S. Patent No. 8,230,099 in Yamaha Corporation of
`America v. Black Hills Media LLC, IPR2013-00597, slip op. at 9 (PTAB
`Mar. 20, 2014) (Paper 15).
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`Figure 1 of Weast is reproduced below.
`
`
`In Figure 1, operating environment 100 has UPnP control point device
`102, UPnP media servers 104, and UPnP media renderers 106. Id. at 3:15–
`18. UPnP media servers 104 may provide media contents 132 to media
`renderers 106 to render, at control point 102. Id. at 3:10–22. “Media
`contents 132 may be audio, video, textual, graphical, pictorial, and/or other
`contents.” Id. at 3:26–28.
`Weast describes a protocol for interactions between control point 102,
`media servers 104, and media renderers 106. Ex. 1004, 2:4–7, 5:59–64.
`
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`Figure 3b of Weast is reproduced below.
`
`
`
`
`As depicted in Figure 3b, at operation 312, control point device 102
`discovers the presence of media renderers 106. Ex. 1004, 5:58–59. At
`operation 314, media renderers 106 respond to control point device 102. Id.
`at 5:65. At operation 316, control point device 102 then requests
`identification and description documents that may include renderer type. Id.
`at 6:1–4. Control point device 102 makes this information visible through a
`user interface of the file system of control point device 102. Id. at 6:7–11.
`Description information provided by renderers 106 at operation 318 may
`include renderer type. Id. at 6:12–13. Once a user selects media content to
`render, at operation 320, control point device 102 instructs applicable media
`renderers 106 to “receive/pull and render” provided media contents 132
`from media servers 104, without user input at the renderer. Id. at 6:19–23,
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`7:29–40, 8:34–43.
`The located resources can be displayed on the control point. Id. at
`Figs. 4a–4c, 5a–5b, 6a–6b. Figures 4a–4c of Weast illustrate user interface
`screen shots showing media contents 132 and media renderers 106 available
`to a user of control point device 102. Ex. 1004, 6:24–28. Figure 4a shows
`an entry for each media content 132 available from UPnP server 104. Id. at
`6:29–33. Figure 4b shows entries for each media renderer 106 discovered
`by control point device 102. Id. at 6:53–54. Figure 4c shows a tree structure
`making visible the media contents available from the media servers and
`media renderers. Id. at 7:6–15. The list of available media content allows
`the user to select content to be played back on the selected media renderer
`without user input at the media renderer. Id. at 7:65–8:2; 8:44–52.
`Encarnacion (Ex. 1005)
`
`
`Encarnacion is titled “Routing of Resource Information in a
`Network.” Encarnacion discloses a UPnP network configured to allow
`media from a server device to be played on a rendering device. See, e.g., Ex.
`1005, 1:20–24; 3:4–16; 14:31–47. In the UPnP network of Encarnacion, a
`“control point” device, for example a personal digital assistant, is configured
`to control the other devices on the network. Id. at 8:14–28. The UPnP
`network of Encarnacion also includes a “media rendering device,” such as a
`“stereo system, speakers, TVs, hand-held audio players, and so on,” (id. at
`8:6–8) which can play back the media, and a “media server,” such as a
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`personal computer, which stores the media (e.g., music, videos) for
`transmission to other devices on-demand. Id. at 7:65–8:13.
`Figure 3 of Encarnacion is reproduced below.
`
`
`
`Figure 3 depicts an exemplary UPnP network architecture 300 of
`Encarnacion. Ex. 1005, 7:65–8:67. Control point devices 316 and 318
`control other devices on UPnP network 314. Id. at 8:14–28. Media
`rendering devices 304–312, such as computers, stereos, and televisions, play
`back media and media server 302, e.g., a personal computer, stores media
`for on-demand transmission to other devices. Id. at 3:9–13, 8:4–8. A user
`of control point device 316 can send a browse/search request 324 to media
`server 302 for available media resources. Id. at 8:55–62. Media server 302
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`stores media resources hierarchically in a resource store, with individual
`media items organized into “resource containers” (id. at 20:17–32, 20:44–
`58, 21:42–60), which in turn may include a “music” resource container,
`which includes all music items, and a “music/album” resource container that
`includes albums of music, with each album represented by its own container.
`Id. at 21:47–54.
`In response to a browse request, media server 302 returns to the user
`resource metadata 326, including resource locators that identify media
`responsive to the request. Id. at 12:38–40, 13:5–14, 14:8–19. A “resource
`locator” can refer to various forms of media that can be identified on the
`network, including an individual song, a collection of songs, or a “playlist”
`of songs. Id. at 13:62–14:7, 14:14–21, 25:39–43. The user then selects a
`resource identifier, and control point 316 commands media rendering device
`306 to request the resource from media server 302, and server 302 presents
`the resource to media rendering device 306, which plays the media without
`any user input at the media rendering device. Id. at 8:62–65, 14:31–55,
`25:46–50, 51:1–22.
`Analysis
`Petitioner provides detailed explanations of how the subject matter of
`each claim is taught or suggested by Weast and Encarnacion. Pet. 17–60.
`Patent Owner argues that for the independent claims 1, 17, 23, 25–27, 30,
`and 46, Weast fails to disclose a playlist, or a first device receiving a
`playlist, or the selection of at least one media item identifier from the
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`received playlist. Prelim. Resp. 37. Petitioner’s evidence cites Weast’s
`“identifications of media contents” that are provided to the control point
`device, which instructs media renderers to “receive/pull and render provided
`media contents” from the media servers. Pet. 21–22 (citing Ex. 1004, 5:29–
`39, 7:65–8:7, 8:25–30).
`Given the broadest reasonable construction of playlist for purposes of
`this Decision, as set forth in Section II.A., we are persuaded by Petitioner’s
`evidence that the limitations disputed by Patent Owner are taught or
`suggested by Weast, and also by Encarnacion, which expressly uses the term
`“playlist” as “a list of songs” retrieved by the media server. Pet. 21-22
`(citing Ex. 1005, 14:14–21). For example, on independent method claim 1,
`we are persuaded by Petitioner’s evidence that Weast and Encarnacion
`disclose: (i) display on a first device (control point) of at least one device
`identifier identifying a second device (Pet. 20-21 (citing Ex. 1004, 6:24–28;
`Ex. 1005, 8:62–65)); (ii) receipt of user input selecting the at least one
`device identifier (Pet. 21 (citing Ex. 1004, 7:65–8:2; Ex. 1005, 14:31–35));
`(iii) receipt on the first device of a playlist comprising a plurality of media
`item identifiers (Pet. 21-22 (citing Ex. 1004, 5:29–39; Ex. 1005, 14:14–21,
`25:36–43)); (iv) receipt of second user input selecting at least one media
`item identifier from the received playlist (Pet. 22 (citing Ex. 1004, 6:19–23;
`Ex. 1005, 25:44–50)); and (v) the first device directing the second device to
`receive from a content server, a media item identified by the at least one
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`media item identifier, without user input via the second device (Pet. 22-23
`(citing Ex. 1004, 6:19–23; Ex. 1005, 14:36–47, 25:44–50)).
`As to the remaining limitations of the other challenged independent
`claims 17, 23, 25–27, 30, and 46, and dependent claims 2, 5–8, 15, 16, 18,
`19, 22, 31, 34–37, 44, and 45, we have reviewed Petitioner’s supporting
`evidence, and the Preliminary Response and accompanying exhibits, and
`similarly are persuaded that Weast and Encarnacion teach or suggest the
`claimed limitations.
`Patent Owner also contends Petitioner has not adequately articulated
`why one of ordinary skill in the art would have combined Weast and
`Encarnacion. Prelim. Resp. 35–37, 41–44. Petitioner states:
`
`
`Both references describe aspects of the capabilities of devices
`
`in a UPnP network, including control points, media rendering devices,
`
`and media servers. Whereas Weast includes a detailed disclosure of
`
`the user interface for a control point device, Encarnacion describes the
`
`exchange of communications among the control point, media
`
`rendering device, and media server. A [person of ordinary skill in the
`
`art] would understand that the user interface for a UPnP control point
`
`that is disclosed in Weast could be used in the context of a UPnP
`
`system that involves the exchange of communications described in
`
`Encarnacion. (citing Ex. 1008 (Almeroth Decl.), ¶ 44.)
`
`
`
`
`
`One reason to combine the references is that [one of ordinary
`
`skill in the art] implementing a UPnP system would need to
`
`implement both a user interface for a control point device and a set of
`
`communications for the various devices in the system to exchange
`
`with one another. The [person of ordinary skill in the art] would
`
`consider references that taught these distinct portions of the UPnP
`
`system, and would find that combining the teachings of Weast and
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`Encarnacion would yield no more than predictable results from the
`combination of known prior art devices and methods. (citing Ex. 1008
`¶¶ 45–46). . . . The teachings of Weast and Encarnacion are therefore
`complementary and could readily be combined with predictable
`results (citing Ex. 1008 ¶ 46).
`
`Pet. 18–19. At this stage of the proceeding, we determine that Petitioner has
`articulated reasons with rational underpinning for the combination of Weast
`and Encarnacion. Pet. 18–20 (citing Almeroth Decl. ¶¶ 38, 42, 44–46). We
`are persuaded there is a reasonable likelihood of Petitioner prevailing in
`establishing the unpatentability of claims 1, 2, 5–8, 15–19, 22, 23, 25–27,
`30–31, 34–37, and 44–46 of the ’873 patent as obvious over Weast and
`Encarnacion.
`
`III. CONCLUSION
`For the foregoing reasons, we are persuaded the information presented
`in the Petition shows a reasonable likelihood that Petitioner would prevail in
`establishing unpatentability of claims 1, 2, 5–8, 15–19, 22, 23, 25–27, 30–
`31, 34–37, and 44–46 of the ’873 patent as obvious over Weast and
`Encarnacion.
`The Board has not made a final determination on the patentability of
`any challenged claims.
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`IV. ORDER
`
`Accordingly, it is
`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes
`review is hereby instituted as to the following claims and
`ground: Claims 1, 2, 5–8, 15–19, 22, 23, 25–27, 30–31, 34–37,
`and 44–46 of the ’873 patent are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over Weast and Encarnacion;
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial; the trial
`commences on the entry date of this decision; and
`FURTHER ORDERED that an Initial Conference Call is scheduled
`for Thursday, November 20, 2014, at 4:00 p.m. Eastern time. The parties
`should be prepared to discuss whether and how to coordinate the final
`hearings, if necessary, for the inter partes review proceedings initiated by
`Petitioner against Patent Owner. After the Initial Conference Call, the Board
`will issue a Scheduling Order in due course.
`
`
`
`
`
`
`
`
`
`19
`
`
`
`
`
`IPR2014-00723
`Patent 8,214,873 B2
`
`PETITIONER:
`Andrea Reister
`areister@cov.com
`
`Gregory Discher
`gdischer@cov.com
`
`PATENT OWNER:
`Lana Gladstein
`gladsteinl@pepperlaw.com
`
`Thomas Engellenner
`engellennert@pepperlaw.com
`
`Christopher Horgan
`chris.horgan@concerttechnology.com
`
`
`
`
`
`
`
`20
`
`
`
`
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