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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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`NETFLIX, INC.,
`Petitioner,
`
`v.
`
`GOTV STREAMING, LLC,
`Patent Owner.
`____________________
`
`Case IPR2023-00757
`Patent No. 8,989,715
`____________________
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`PETITIONER’S REPLY IN SUPPORT
`OF ITS MOTION TO EXCLUDE EXHIBITS 2023-2027
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`IPR2023-00757
`Patent 8,989,715
`
`In its opposition to Petitioner’s motion to exclude Exhibits 2023-2027,
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`Patent Owner does not seriously dispute the substantive proposition that dictionary
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`definitions that are not contemporary with the challenged patent are not proper
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`extrinsic evidence for purposes of claim construction. See, e.g., Inverness Med.
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`Switzerland GmbH v. Princeton Biomeditech Corp., 309 F.3d 1365, 1370 (Fed.
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`Cir. 2002). Each of Exhibits 2023-2027 presents a definition that is nearly a
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`decade removed from the date of the ’715 patent. Given that fact, the exhibits are
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`simply not relevant and should be excluded.
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`Patent Owner’s suggestion that it did not rely on Exhibits 2023-2027
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`directly, but instead relied on the declaration of Mr. Lipoff (who in turn relied on
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`the exhibits) is unavailing. See Paper 32 at 1. First, the Patent Owner Response
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`cites Exhibit 2025 directly, rather than citing Mr. Lipoff’s testimony regarding that
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`exhibit. POR, 29. Second, although Mr. Lipoff claimed his analysis was “as of the
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`effective priority date” of the ’715 patent, he did not account for the temporal
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`distance between the dates of the exhibits and the date of the ’715 patent. EX2022,
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`¶¶ 41, 116–17, 121. In short, Mr. Lipoff’s declaration functions as a vehicle to
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`allow Patent Owner to rely on otherwise inadmissible evidence.
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`Patent Owner also misleadingly suggests that “the PTAB often cites modern
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`dictionaries when construing claim terms from older patents.” Paper 32 at 2. That
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`assertion ignores, however, that the Board’s reliance on dictionary evidence was
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`IPR2023-00757
`Patent 8,989,715
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`not seriously disputed in any case cited by Patent Owner. See, e.g., Amazon.com,
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`Inc. v. Swarm Tech. LLC, IPR2022-00633, Paper 36 at 15 (P.T.A.B. Aug. 28,
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`2023); LinkedIn Corp. v. eBuddy Techs. B.V., IPR2022-00165, Paper 40 at 12
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`(P.T.A.B. June 30, 2023); Packers Plus Energy Servs. Inc. v. Baker Hughes
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`Oilfield Ops., Inc., IPR2016-01099, Paper 30 at 13-14 (P.T.A.B. Dec. 12, 2019);
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`Vivint, Inc. v. SB IP Holdings LLC, IPR2022-01365, Paper 8 at 13 (P.T.A.B. Apr.
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`26, 2023). Here, on the other hand, Petitioner objects to the use of non-
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`contemporary dictionary evidence, and Patent Owner has provided no basis to
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`believe that evidence is relevant to the construction of any claim term as of the date
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`of the ’715 patent.
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`Moreover, Patent Owner’s sweeping assertion that Federal Rule of Evidence
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`403 is “not applicable here” is incorrect. Paper 32 at 5. Although “the risk of unfair
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`prejudice is diminished” when the Board acts as fact-finder, see Trend Micro Inc.
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`v. Cupp Computing AS, IPR2019-00765, Paper 30 at 4–5 (P.T.A.B. Aug. 25,
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`2020), the Board has never adopted a blanket rule prohibiting the application of
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`Rule 403. At its core, Rule 403 presents a balancing test, requiring the Board to
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`determine whether the “probative value” of evidence “is substantially outweighed
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`by a danger of one or more of the following: unfair prejudice, confusing the issues,
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`misleading the jury, undue delay, wasting time, or needlessly presenting
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`cumulative evidence.” F.R.E. 403. Petitioner’s position is that Exhibits 2023-2027
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`IPR2023-00757
`Patent 8,989,715
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`are not relevant, i.e., they have no probative value. To the extent the Board
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`concludes that the exhibits have some minimal probative value, that probative
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`value is outweighed by any unfair prejudice that would inure to Petitioner from
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`relying on evidence that is not contemporary with the ’715 patent.
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`For the reasons explained in Petitioner’s Motion to Exclude (Paper 31),
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`Exhibits 2023-2027 are not relevant because they are non-contemporary dictionary
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`definitions used to support Patent Owner’s faulty claim construction positions.
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`Accordingly, the Board should exclude those exhibits under Rules 401, 402, and
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`403. Should the Board admit any of Exhibits 2023-2027, Petitioner maintains its
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`position that the exhibits lack any probative value regarding a fact of consequence
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`in this proceeding.
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`
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`Dated: July 30, 2024
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`
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`By:
`
`/ Aliza George Carrano /
`Aliza George Carrano
`PTO Reg. No. 70,637
`Counsel for Petitioner
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`IPR2023-00757
`Patent 8,989,715
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6, the undersigned certifies that on July 30, 2024,
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`a copy of the foregoing document was served by email directed to the following
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`counsel of record and distribution list:
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`Joshua S. Wyde
`jwyde@aatriallaw.com
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`Steven T. Jugle
`sjugle@aatriallaw.com
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`IPR2023-00757@aatriallaw.com
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` / Aliza George Carrano /
` Aliza George Carrano
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