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` UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`HULU, LLC,
`AMAZON.COM, INC., and
`NETFLIX, INC.,
`Petitioners,
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`v.
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`REALTIME ADAPTIVE STREAMING LLC,
`Patent Owner.
`____________________
`
`Case IPR2018-01187
`Patent No. 9,769,477
`____________________
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`PATENT OWNER’S PRELIMINARY RESPONSE
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`Case IPR2018-01187
`PATENT OWNER’S PRELIMINARY RESPONSE
`TABLE OF CONTENTS
`Introduction ..................................................................................................... 1 
`I. 
`Background of the ’477 patent and challenged claims ................................... 2 
`II. 
`Petitioners’ proposed claim constructions ...................................................... 6 
`III. 
`IV.  Ground 1 fails to explain what would be the “first asymmetric data
`encoder” and what would constitute the “second asymmetric data
`compression encoder” ..................................................................................... 6 
`V.  Ground 1 does not show that Imai discloses or suggests “a first
`asymmetric data compression encoder . . . configured to compress
`data blocks containing video or image data at a higher data
`compression rate than a second asymmetric data compression
`encoder” ........................................................................................................ 11 
`A. 
`Limitation 1[B] requires two asymmetric data compression
`encoders, with the first encoder being configured to compress
`video or image data faster than the second encoder .......................... 11 
`The Petition’s allegations do not even attempt to show one
`encoder that is “configured to” compress at a higher rate than
`another encoder, and thus cannot demonstrate obviousness .............. 15 
`Petitioners’ argument that limitation 1[B] would be met by chance reads
`1. 
`“configured to” out of the limitation ......................................................... 16 
`The Petition’s argument that Imai teaches “different asymmetric data
`compression encoders” that have “different data compression rates” is
`both inadequate and unsupported.............................................................. 18 
`The Petition’s suggested modification runs contrary to Imai’s goal of
`ensuring that audio data can be reproduced in real time ........................... 22 
`VI.  Ground 2 fails to show that Pauls teaches or suggests “a first
`asymmetric data compression encoder . . . configured to compress
`. . . at a higher data compression rate than a second asymmetric data
`compression encoder” as required by Claim 1 ............................................. 25 
`A.  Ground 2 fails to identify what would constitute the “first
`asymmetric data encoder” and what would constitute the
`“second asymmetric data compression encoder” ............................... 26 
`Ground 2 points to no disclosure or discussion of compression
`rates of any encoder ............................................................................ 26 
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`B. 
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`2. 
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`3. 
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`B. 
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`C. 
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` Case IPR2018-01187
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`PATENT OWNER’S PRELIMINARY RESPONSE
`Ground 2 further fails because it also fails to meet the
`“configured to” requirement of Claim 1 ............................................ 28 
`VII.  Ground 3 fails to explain why a POSITA would make its alleged
`modifications ................................................................................................ 29 
`VIII.  Ground 3 further fails because it does not purport to address any of
`the flaws in Grounds 1 and 2 ........................................................................ 37 
`IX.  Ground 3 and 4 do not explain how a POSITA would combine the
`references ...................................................................................................... 39 
`X.  Ground 4 does not address the tradeoffs inherent in its motivation to
`combine ......................................................................................................... 42 
`XI.  Ground 4 further fails because it does not purport to address any of
`the flaws in Grounds 1- 3 or additional limitations of Independent
`Claim 20 ........................................................................................................ 45 
`XII.  The expert declaration cannot cure the Petition’s deficiencies .................... 47 
`XIII.  Petitioners’ analysis of the dependent claims also fails because the
`Petition relies on its flawed analysis of the independent claims for the
`shared limitations .......................................................................................... 48 
`XIV.  Conclusion .................................................................................................... 49 
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` Case IPR2018-01187
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`PATENT OWNER’S PRELIMINARY RESPONSE
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`EXHIBIT LIST
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`
`Description
`Declaration of Kayvan B. Noroozi in Support of Motion for
`Admission Pro Hac Vice.
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`Exhibit No.
`2001
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`I.
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`Case IPR2018-01187
`PATENT OWNER’S PRELIMINARY RESPONSE
`
`Introduction
`Despite presenting four grounds, the Petition fails to show that the prior
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`art—alone or combined—meets the plain language of Claims 1 and 20. Claim 1
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`requires a specific “first” encoder and a specific “second” encoder that are
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`deliberately “configured” or designed such that the “first” encoder compresses data
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`a higher “rate” (i.e., speed) than the “second” encoder. Section V.A, infra. But the
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`Petition never identifies any specific “first” or “second” encoder for purposes of its
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`theories, and certainly never shows that any given encoder was “configured to”
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`compress at a faster speed than another any other encoder, as Claim 1 requires.
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`Sections IV, V.B, VI.A, VI.C, IX, infra. To the contrary, the Petition actually
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`alleges that any encoder in the prior art references could have been faster than any
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`other encoder—thus admitting that the prior art does not meet Claim 1. Sections
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`V.B.1, VI.B.C, infra.
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`The Petition suffers even further with respect to the only other challenged
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`independent claim, Claim 20. In addition to failing to identify a “first” and
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`“second” encoder, and the “configured to” requirement of the claim, the Petition
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`simply overlooks and ignores the distinct limitations of Claim 20 that do not match
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`Claim 1, and instead simply tries to incorporate its Claim 1 allegations by
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`reference.
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`PATENT OWNER’S PRELIMINARY RESPONSE
`And as this Preliminary Response details, the Petition fails for numerous
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`additional reasons with respect to each challenged claim and each Ground. On this
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`record, the Petition cannot prevail, and institution should be denied.
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`II. Background of the ’477 patent and challenged claims
`Petitioners challenge Claims 1-6, 9-14, 20-22, and 25-27 of U.S. Patent No.
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`9,769,477. The Petition’s challenge is based on the following Grounds:
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`Ground
`Ground 1
`Ground 2
`Ground 3
`Ground 4
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`Challenged Claims
`Basis
`References
`Obviousness (§103) 1, 3-5, 12-14
`Imai
`Obviousness (§103) 1, 3-6, 9-14
`Pauls
`Imai and Pauls Obviousness (§103) 1, 3-6, 9-14
`Imai, Pauls, and
`Obviousness (§103) 2, 11, 20-22, 25-27
`Chao
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`The ’477 patent “is directed to a system and method for compressing and
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`decompressing based on the actual or expected throughput (bandwidth) of a system
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`employing data compression . . . . ” Ex. 1001 at 7:66-8:3. The invention seeks to
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`“provide[] a desired balance between execution speed (rate of compression) and
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`efficiency (compression ratio).” Id. at 8:24-27. For example, where the speed of
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`the encoder causes a “bottleneck” because “the compression system cannot
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`maintain the required or requested data rates,” “then the controller will command
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`the data compression system to utilize a compression routine providing faster
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`compression . . . so as to mitigate or eliminate the bottleneck.” Id. at 14:14-24.
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`PATENT OWNER’S PRELIMINARY RESPONSE
`Claim 1 is directed to a system that selects among “asymmetric data
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`compression encoders” where “a first asymmetric data compression encoder . . . is
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`configured to compress . . . at a higher data compression rate than a second
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`asymmetric data compression.” Claim 1 of the ’477 patent recites:
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`Element Claim 1
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`1[PR]
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`1[A]
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`A system, comprising:
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`a plurality of different asymmetric data compression encoders,
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`wherein each asymmetric data compression encoder of the
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`plurality of different asymmetric data compression encoders is
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`configured to utilize one or more data compression algorithms,
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`and
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`1[B]
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`wherein a first asymmetric data compression encoder of the
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`plurality of different asymmetric data compression encoders is
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`configured to compress data blocks containing video or image
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`data at a higher data compression rate than a second asymmetric
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`data compression encoder of
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`the plurality of different
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`asymmetric data compression encoders; and
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`1[C]
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`one or more processors configured to:
`determine one or more data parameters, at least one
`of the determined one or more data parameters
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`PATENT OWNER’S PRELIMINARY RESPONSE
`relating to a throughput of a communications
`channel measured in bits per second; and
`select one or more asymmetric data compression
`encoders from among the plurality of different
`asymmetric data compression encoders based upon,
`at least in part, the determined one or more data
`parameters.
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`1[D]
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`The specification of the ‘477 patent makes clear that “data compression rate”
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`refers to the “execution speed of the algorithm.” Id. at 1:63-67. Thus, Claim 1 and
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`its dependents require a “first asymmetric data compression encoder” that is
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`“configured to compress” at a higher execution speed than a “second asymmetric
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`data compression encoder.”
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`Independent Claim 20, by contrast, requires “a first video data compression
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`encoder . . . configured to compress at a higher compression ratio than a second
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`data compression encoder.” Thus, unlike Claim 1, which recites a compression
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`rate (i.e., speed), Claim 20 recites compression ratio (i.e., size of the compressed
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`data compared to the uncompressed data). Claim 20 further requires “at least one
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`of the video data compression encoders” to be “configured to utilize an arithmetic
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`data compression algorithm.” Claim 20 recites:
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`Element Claim 20
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`20[PR]
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`A system comprising;
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`20[A]
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`20[B]
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`20[C]
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`20[D]
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`20[E]
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`20[F]
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`a plurality of video data compression encoders;
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`wherein at least one of the plurality of video data
`compression encoders
`is configured
`to utilize an
`asymmetric data compression algorithm, and
`wherein at least one of the plurality of video data
`compression encoders is configured to utilize an
`arithmetic data compression algorithm,
`wherein a first video data compression encoder of
`the plurality of video data compression encoders is
`configured to compress at a higher compression
`ratio than a second data compression encoder of the
`plurality of data compression encoders; and
`one or more processors configured to:
`determine one or more data parameters, at least one
`of the determined one or more data parameters
`relating to a throughput of a communications
`channel; and
`select one or more video data compression encoders
`from among the plurality of video data compression
`encoders based upon, at least in part, the determined
`one or more data parameters.
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`PATENT OWNER’S PRELIMINARY RESPONSE
`III. Petitioners’ proposed claim constructions
`The Board does not construe claim terms unnecessary to resolve the
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`controversy. Shenzhen Liown Electronics Co. v. Disney Enterprises, Inc.,
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`IPR2015-01656, Paper 7 at 10 (Feb. 8, 2016) (citing Vivid Techs., Inc. v. Am. Sci.
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`& Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
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`Petitioners have proposed constructions for the terms “asymmetric data
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`compression encoder[s]” and “data blocks.” Pet. 7-9. These terms do not require
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`construction in order to resolve the parties’ dispute. Rather, as this Preliminary
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`Response demonstrates, the Board should deny institution in full regardless of
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`Petitioners’ proposed constructions of “asymmetric data compression encoder[s]”
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`or “data blocks.” Accordingly, the Board need not construe “asymmetric data
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`compression encoder[s]” or “data blocks.”
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`IV. Ground 1 fails to explain what would be the “first asymmetric data
`encoder” and what would constitute the “second asymmetric data
`compression encoder”
`A Petition cannot establish unpatentability, based on anticipation or
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`obviousness, where it fails to articulate how the prior art teaches a particular claim
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`limitation. See, e.g., Comcast Cable Commc’ns, LLC v. Rovi Guides, Inc.,
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`IPR2017-00956, 2017 WL 4102214, at *6 (Sept. 15, 2017) (“Comcast does not
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`explain how this disclosure meets the claim limitation of control circuitry on a
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`mobile device processing data ‘to identify content’ of television programming ‘to
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`PATENT OWNER’S PRELIMINARY RESPONSE
`generate a first graphical user interface.’”); Arris Int’l Plc v. Sony Corp., IPR2016-
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`00827, 2016 WL 6594910 (Sept. 28, 2016); Cao Grp., Inc. v. The Proctor &
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`Gamble Company, IPR2014-00797, 2014 WL 6706553, at *5 (Nov. 26, 2014)
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`(“Patent Owner contends that the Petitioner has not established anticipation of
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`every element of the claims because Petitioner does not adequately explain how
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`Gaglio discloses either the pressure limitation or the viscosity and tackiness
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`limitation that is required by each of the claims. We agree.”).
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`Where a Petition relies on a combining elements of the prior art, it must
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`explain “how any specific combination would operate or read on” the claims.
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`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc., 694 F.3d 1312, 1327-28
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`(Fed. Cir. 2012). In other words, it is not enough for the Petition to simply point to
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`some aspect of the prior art and allege that it teaches or suggests given limitation in
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`the challenged claim; the Petition fails unless it further explains how the cited
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`aspect of the prior art in fact teaches the limitation in question. Conclusory or
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`vague assertions will not do. KSR Intern. Co v. Teleflex Inc., 550 U.S. 398, 418
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`(2007) (“Rejections on obviousness grounds cannot be sustained by mere
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`conclusory statements.”); Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd., 821
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`F.3d 1359, 1369 (Fed. Cir. 2016) (“It is of the utmost importance that petitioners in
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`the IPR proceedings adhere to the requirement that the initial petition identify
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`PATENT OWNER’S PRELIMINARY RESPONSE
`‘with particularity’ the ‘evidence that supports the grounds for the challenge to
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`each claim.’”) (emphasis added) (quoting 35 U.S.C. § 312(a)(3)).
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`Thus in Harmonic Inc. v. Avid Tech., Inc., the Federal Circuit affirmed the
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`Board’s finding that the Petition’s mere reference to certain teachings in the prior
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`art, without an explanation as to how those teachings met the elements of the
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`challenged claim, were fatally conclusory:
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`Harmonic relies on the presence of a demultiplexer in Haskell together
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`with the ability of its encoders to control the bit rate of bit-streams
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`destined to its decoders. But Harmonic’s discussion of these features of
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`Haskell is conclusory. Harmonic does not relate what appears to be
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`generic multiplexing and bit rate adjustment to what is recited in claim
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`11. Specifically, Harmonic does not explain how Haskell’s control of
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`bit rate teaches the specific claim limitation of commanding the input
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`switch to provide video data to a second decompression array a prior
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`defined period of time after a first decompression array begins
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`receiving data. Harmonic’s expert testimony in support of this theory is
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`equally unavailing, adding nothing beyond the conclusory statements
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`in Harmonic’s petition.
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`815 F.3d 1356, 1363 (Fed. Cir. 2016) (emphasis added).
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`To the same effect, the Federal Circuit made clear in Magnum Oil Tools
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`Int’l, Ltd. that “[t]o satisfy its burden of proving obviousness, a petitioner cannot
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`employ mere conclusory statements.” 829 F.3d 1364, 1380 (Fed. Cir. 2016). “The
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`petitioner must instead articulate specific reasoning, based on evidence of record,
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`to support the legal conclusion of obviousness.” Id. (emphasis added).
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`The Board has therefore not hesitated to reject a petition’s allegations where
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`they are found to be conclusory, and the Federal Circuit has routinely affirmed
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`such Board decisions. Harmonic, 815 F.3d at 1363; Wasica Fin. GmbH v. Cont’l
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`Auto. Sys., Inc., 853 F.3d 1272, 1286 (Fed. Cir. 2017); Securus Techs., Inc. v.
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`Glob. Tel*Link Corp., 701 F. App’x 971, 976–77 (Fed. Cir. 2017); Duke Univ. v.
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`BioMarin Pharm. Inc., 685 F. App’x 967, 978–79 (Fed. Cir. 2017).
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`Here, limitation 1[B] requires specifying which of at least two encoders is
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`the “first asymmetric data compression encoder” that is “configured to compress
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`. . . video or image data” and which is the “second asymmetric data compression
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`encoder” that is configured to likewise compress video or image data. Ex. 1001 at
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`Cl. 1[B]. Moreover, the two recited encoders cannot simply be interchanged
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`because they have differing characteristics. Namely, the “fist asymmetric data
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`compression encoder” must be “configured to compress . . . video or image data at
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`a higher data compression rate than a second asymmetric data compression
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`encoder.” Id. (emphasis added).
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`But the Petition never even attempts to specify any encoder that would
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`constitute the “first” encoder for purposes of the claims, or any encoder that would
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`constitute the “second” encoder. Instead, the Petition simply proposes
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`“incorporating video encoders” into Imai’s otherwise audio-encoding-only system.
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`Pet. 18-20. Those allegations are inadequate because they fail to specify a “first”
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`encoder and a “second” encoder, as the claims require.
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`Ground 1 should thus be rejected for the simple reason that the Petition does
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`not even identify the requisite encoders. See, e.g., Comcast Cable Commc’ns, LLC
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`v. Rovi Guides, Inc., IPR2017-00956, 2017 WL 4102214, at *6 (Sept. 15, 2017);
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`Arris Int’l Plc v. Sony Corp., IPR2016-00827, 2016 WL 6594910 (Sept. 28, 2016);
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`Cao Grp., Inc. v. The Proctor & Gamble Company, IPR2014-00797, 2014 WL
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`6706553, at *5 (Nov. 26, 2014); ActiveVideo v. Verizon, 694 F.3d 1312, 1327-28
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`(Fed. Cir. 2012) (a party asserting obviousness must “explain . . . how any specific
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`combination would operate or read on the asserted claims”).
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`V. Ground 1 does not show that Imai discloses or suggests “a first
`asymmetric data compression encoder . . . configured to compress
`data blocks containing video or image data at a higher data
`compression rate than a second asymmetric data compression
`encoder”
`A. Limitation 1[B] requires two asymmetric data compression
`encoders, with the first encoder being configured to compress
`video or image data faster than the second encoder
`Claim 1 further requires that its “first asymmetric data compression
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`encoder” be configured to compress data “at a higher data compression rate” than
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`the “second asymmetric data compression encoder.” See Ex. 1001 at Cl. 1[B] (“a
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`first asymmetric data compression encoder . . . configured to compress . . . at a
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`higher data compression rate than a second asymmetric data compression
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`encoder”). Petitioners define “data compression rate” as “the execution or
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`algorithmic speed of a compression encoder.” Pet. 20 (citing Ex. 1001 at 2:63– 67;
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`8:10–18; 14:11–38; Ex. 1003 at 124). They further contend that “it is the
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`throughput of the asymmetric data compression encoder measured by the amount
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`of input data that it can compress per unit of time at a given compression
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`ratio.” Id. at 21 (emphasis added). Thus, under Petitioners’ definition of “data
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`compression rate,” Claim 1 requires “a first asymmetric data compression encoder”
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`that is configured to compress more input data per unit of time at a given
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`compression ratio than a “second asymmetric data compression encoder.”
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`Moreover, the requirement that the “first asymmetric data compression
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`encoder” is “configured to compress . . . at a higher data compression rate than a
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`second asymmetric data compression encoder” means the relationship between the
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`first and second encoders’ compression rates cannot arise by mere happenstance.
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`Rather, the claim’s recitation of “configured” requires that the “first encoder”
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`must, by design, compress at a higher rate than the “second encoder.”
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`To that effect, the Federal Circuit has distinguished “configured to” as
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`narrower than “capable of” or “suited to.” For instance, in Apex Eyewear, the court
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`distinguished “configured to” from the broader terms “capable of” or “suitable
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`for.” See Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335, 1349
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`(Fed. Cir. 2012) (construing “adapted to” in the narrower sense of “configured to,”
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`“made to,” or “designed to,” rather than in the “broader sense” of “capable of” or
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`“suitable for.”). It thus concluded that an apparatus or method that “simply . . . can
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`be made to serve [the] purpose” recited in the claim is not a method that is
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`“configured to accomplish the specified objective” of the claim. Id. (emphasis
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`added).
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`The Federal Circuit has likewise contrasted “configured to” and “capable of”
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`or “suited for” in other decisions. See In re Man Mach. Interface Techs. LLC, 822
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`F.3d 1282, 1286 (Fed. Cir. 2016) (distinguishing between “configured to” and
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`“capable of” or “suited for”) (citing Apex); In re Giannelli, 739 F.3d 1375, 1379
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`(Fed. Cir. 2014) (same).
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`And district courts have also construed “configured to” in a manner that
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`requires purposeful design and excludes a happenstance arrangement or capability.
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`See, e.g., Intellectual Ventures I LLC v. Altera Corp., No. CV 10-1065-LPS, 2013
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`WL 3913646, at *7 (D. Del. July 26, 2013) (construing “configured to” as “to set
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`up for operation especially in a particular way”); SIPCO, LLC v. Abb, Inc.; No.
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`6:11-CV-0048 LED-JDL, 2012 WL 3112302, at *7 (E.D. Tex. July 30, 2012)
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`(construing “configured to” as “actually programmed or equipped with hardware
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`or software to”).
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`Here too, the meaning of “configured to” requires that the “first asymmetric
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`data compression encoder” be designed to accomplish the specified objective of
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`“compress[ing] . . . at a higher data compression rate than a second asymmetric
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`data compression encoder.”
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`That understanding is further supported by the specification of the ’477
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`patent itself, which uses “configured to” to convey a purposeful design rather than
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`an accidental arrangement. For example, the specification describes design features
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`that can more efficiently use space on a disk, followed by the statement: “In this
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`way, a system can be configured to achieve greater speed, while not sacrificing
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`disk space.” Ex. 1001 at 18:26-41. Similarly, the specification describes a
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`“programmable logic device” being “configured for its environment.” Id. at 16:37-
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`40. A “programmable” device is not “configured for its environment” on accident,
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`but rather is intentionally programmed to operate in a specific and consistent
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`manner with that environment in mind. Thus, in both these instances, the
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`“configuring” is an intentional design choice through programmed logic rather
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`than mere happenstance.
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`Moreover, the “configured to” limitation cannot be met by an accidental
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`difference in compression rates because the invention relies on the predictable
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`relationship between the compression rates of the “first asymmetric data
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`compression encoder” and the “second asymmetric data compression encoder.”
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`The invention would not function if the relationship were reversed. Specifically,
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`the specification describes switching from an encoder having a relatively slow
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`compression rate to one having a “faster rate of compression” when the
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`“throughput falls below a predetermined threshold” “so as to increase the
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`throughput.” Ex. 1001 at 8:12-18. If the arrangement or configuration of the
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`encoders were reversed, the opposite would occur: the system would switch from
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`the relatively fast encoder to the relatively slow encoder, reducing the throughput
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`and exacerbating the bottleneck it was seeking to alleviate. Thus, the
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`specification’s description of the invention makes clear that the predictable
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`arrangement of the encoders is crucial, and that a happenstance difference in two
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`encoders’ compression rates would not suffice for the “first asymmetric data
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`compression encoder” and the “second asymmetric data compression encoder” to
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`serve their purposes.
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`Accordingly, limitation 1[B] requires (1) “a first asymmetric data
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`compression encoder” that is (2) designed to (3) compress more input data per unit
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`of time than (4) “a second asymmetric data compression encoder.”
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`B.
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`The Petition’s allegations do not even attempt to show one
`encoder that is “configured to” compress at a higher rate than
`another encoder, and thus cannot demonstrate obviousness
`Limitation 1[B] specifically requires compressing “video or image data.”
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`The Petition implicitly recognizes that Imai contains no such teaching. So the
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`Petition proposes to modify Imai to include video encoders. Pet. 19-20, 24.
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`By contrast, however, the Petition never even attempts to demonstrate that
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`Imai—either unmodified or modified—would meet the requirement of having a
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`specific “first” encoder that is configured to compress the video or image data at a
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`higher rate than a specific “second” encoder. Instead, the Petition alleges that Imai
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`might sometimes compress data at a higher rate with one encoder than another one
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`if Imai were to use at least two encoders. Pet. 21. As demonstrated below, that
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`theory fails to meet the claim. The Petition thus cannot prevail as to Claim 1.
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`Petitioners’ argument that limitation 1[B] would be met by
`chance reads “configured to” out of the limitation
`Rather than showing how Imai teaches or suggests limitation 1[B], the
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`1.
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`Petition argues if Imai were to use at least two encoders, it is likely that one of
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`them would be faster than another by mere happenstance. See Pet. 21 (“A POSITA
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`would have understood that it is only a remote possibility that any two different
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`asymmetric data compression encoders would have the same execution speed, and
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`therefore the obvious result of including two or more different asymmetric
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`compression encoders is that one encoder would have a higher data compression
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`rate than another encoder.”).
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`But as explained above, caselaw from the Federal Circuit and district courts,
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`and the patent’s specification confirm that “configured to” is used to show
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`purposeful design rather than chance arrangements. See supra at Section V.A.
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`Thus, a system that includes two asymmetric data compression encoders that
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`happen to compress at different rates would not have a “first asymmetric data
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`compression encoder” that is “configured to compress . . . at a higher data
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`compression rate than a second asymmetric data compression encoder” as required
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`by limitation 1[B].
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`Indeed, by stating that either of Imai’s encoders could compress at a faster
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`rate than the other one, the Petition actually concedes than Imai cannot meet
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`Claim 1.
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`The Board’s decision in Commvault v. Realtime Data, IPR2017-02178, is
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`instructive. There, the Board addressed the obviousness of a system claim which,
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`under the Board’s construction, recited a processor configured to make a “binary
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`choice between compressing a given data block using the single data compression
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`encoder and compressing that data block using the one or more content-dependent
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`data compression encoders.” Paper 13 at 4-5 (July 19, 2018). The petition offered
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`an example of a circumstance where the reference would choose only one of the
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`two types of encoders to compress a data block—a page of either text or image
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`data. Id. The Board rejected the theory because “[e]ven if Petitioner is correct that
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`it is possible, under the right circumstances, for the [asserted reference] to operate
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`in a way that results in compressing an entire page of text or in compressing an
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`entire page of non-text data, [the reference] does not teach or suggest the required
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`binary choice between those two outcomes because its system is capable of
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`compressing portions of a page using one method and other portions of the same
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`page using a different method.” Id. at 5-6 (emphasis added).
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`Here too, the mere possibility that Imai might sometimes operate with one
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`encoder that operates at a higher compression rate than another encoder (and at
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`other times operate with the other encoder operating at a higher rate) does not
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`teach or suggest a “first asymmetric data compression encoder” that is “configured
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`to compress . . . at a higher data compression rate than a second asymmetric data
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`compression encoder.”
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` The Board should thus find that the Petition cannot meet Claim 1 because
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`the Petition fails to meet the requirement of a first encoder that is configured to
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`compress at a higher rate than a second encoder.
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`2.
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`The Petition’s argument that Imai teaches “different
`asymmetric data compression encoders” that have
`“different data compression rates” is both inadequate and
`unsupported
`The Petition further argues that a POSITA “would have appreciated from
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`Imai’s various teachings that the different asymmetric data compression encoders
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`have different data compression rates, with some encoders having higher rates than
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`others.” Pet. 22.
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`As a threshold matter, that allegation is again inadequate: it does not
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`demonstrate that Imai has a specific first encoder that is configured to compress at
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`a higher rate than a specific second encoder, as Claim 1 requires. See supra at
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`Section V.B.1.
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`Moreover, none of the Petition’s citations in support of its allegation that
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`Imai teaches “asymmetric compression encoders that have different execution
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`speeds,” Pet. 21, actually contain such a teaching. In fact, the Petition points to no
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`teaching in Imai regarding compression rate according to their own definition, i.e.,
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`speed of compression measured by input data compressed per unit of time. See
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`supra at Section V.A.
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`Instead, the Petition obfuscates and misdirects with a specious quotation
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`from Imai that uses the term “compression rate” but not in the way the ‘477 patent
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`does. Specifically, the Petition states that Imai “compares and contrasts different
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`asymmetric data compression encoders in terms of their ‘compression rate,’ and
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`identifies several asymmetric data compression algorithms that ‘provide[] a high
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`compression rate,’ referring to MPEG layer 3 and ATRAC 2 as ‘example[s].’” Pet.
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`21 (citing Ex. 1005 at [0068]). On that basis it concludes that Imai teaches “a first
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`encoder that uses an asymmetric compression algorithm (MPEG layer 3) and is
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`configured to compress data at a higher compression rate than a second encoder
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`using another asymmetric algorithm (ATRAC 2).” Id. at 22.
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`But the full quoted sentence reads: “Furthermore, example of the coding
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`method, which provides a relatively less bit rate of the resulting coded data (i.e.,
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`which provides a