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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,
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`v.
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`GOTV STREAMING, LLC,
`Patent Owner.
`____________________
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`Case IPR2023-00758
`Patent No. 8,478,245
`____________________
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`PETITIONER’S MOTION TO EXCLUDE EXHIBITS 2023-2028
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`IPR2023-00758
`Patent 8,478,245
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`Pursuant to 37 C.F.R. § 42.64(c), Petitioner Netflix, Inc., files this motion to
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`exclude Exhibits 2023, 2024, 2025, 2026, 2027, and 2028. Consistent with its
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`obligations under 37 C.F.R. § 42.64(b)(1), Netflix filed timely objections to those
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`exhibits. Paper 22 at 3-4. In short, Exhibits 2023-2028 are inadmissible because
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`they are not relevant; that is, they do not have any tendency to make a fact of
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`consequence in this proceeding more or less probable. See Fed. R. Evid. 401, 402.
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`To the extent the exhibits have some minimal probative value, they should also be
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`excluded under Federal Rule of Evidence 403 due to the risk of unfair prejudice
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`and confusion of the issues. See Fed. R. Evid. 403.
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`Exhibits 2023-2028 are screenshots of dictionary entries obtained from
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`various online sources. See Exs. 2023-2028. Patent Owner attempts to rely on these
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`definitions as extrinsic evidence in support of its claim construction positions.
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`Paper 21 at 20, 32-33, 54. However, the definitions in those exhibits reflect, at
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`best, what a POSITA would understand those terms to mean today, not at the time
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`of the ’245 patent. As the Federal Circuit has made clear, dictionary definitions are
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`relevant only to the extent that they reflect a POSITA’s understanding of the term
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`at the time of the patent. See, e.g., Inverness Med. Switzerland GmbH v. Princeton
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`Biomeditech Corp., 309 F.3d 1365, 1370 (Fed. Cir. 2002) (considering dictionary
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`definition “as of the date the patents issued”); Texas Digital Sys., Inc. v. Telegenix,
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`Inc., 308 F.3d 1193, 1202-03 (Fed. Cir. 2002) (“Dictionaries, encyclopedias and
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` 1
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`IPR2023-00758
`Patent 8,478,245
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`treatises, publicly available at the time the patent is issued, are objective resources
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`that serve as reliable sources of information on the established meanings that
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`would have been attributed to the terms of the claims by those of skill in the art”).1
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`A simple examination of the exhibits confirms Netflix’s position. Exhibit
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`2023 states on its face that the captured page was “[u]pdated” on November 22,
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`2023. Ex. 2023. Exhibit 2024 lists on its face a copyright date of “2023.” Ex.
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`2024. Exhibits 2025, 2026, and 2028 do not expressly provide any date, but
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`navigating to the URLs2 listed in those three exhibits reveals a copyright date of
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`1 Additional Federal Circuit case law suggests that the relevant date is the filing
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`date, not the issue date of the patent. See Inverness, 309 F.3d at 1370 n.1 (citing
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`Schering Corp. v. Amgen Inc., 222 F.3d 1347, 1353 (Fed. Cir. 2000)). In any event,
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`the application that led to the ’245 patent was filed on August 1, 2007, and the
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`patent issued on July 2, 2013. Regardless of which date is chosen, Exhibits 2023-
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`2028 lack relevance with respect to a POSITA’s understanding of the claim terms
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`at that time.
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`2 https://www.merriam-webster.com/dictionary/from; https://www.merriam-
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`webster.com/dictionary/customized; https://www.merriam-
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`webster.com/dictionary/ticker.
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` 2
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`IPR2023-00758
`Patent 8,478,245
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`2024 in each instance. Finally, Exhibit 2027 states on its face that it “was last
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`edited on 3 January 2023.” Ex. 2027. Put simply, these exhibits all provide
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`purported definitions of certain terms as of no earlier than 2023. They cannot be
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`credible evidence of how a POSITA would have understood those terms as of
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`nearly a decade prior, when the ’245 patent was filed and issued.
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`Although Exhibits 2023 and 2024 recite other dates purportedly from before
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`the issuance of the ’245 patent, they have not been authenticated in any respect
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`(e.g., via the Wayback Machine); they appear to be merely screenshots or PDF
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`print-outs of webpages taken prior to the filing of the POR. Patent Owner has
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`failed to establish when, and to what extent, the webpages in those exhibits may
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`have last been updated—and the more recent dates listed on those webpages are
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`strong evidence that they may have been modified as recently as 2023.
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`More importantly, even if the dictionary definitions in Exhibits 2023-2028
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`were contemporaneous with the ’245 patent, they have minimal probative value on
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`the ultimate issues of invalidity. For example, Patent Owner relies on Exhibit 2025
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`to refute the Board’s Institution Decision discussion of the word “from,” which
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`appears in the claim limitation “generated in part from.” Paper 21 at 32-33 (citing
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`Paper 10 at 70). The word “from” is sufficiently clear on its face that the Board did
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`not and does not need extrinsic evidence to understand its meaning. The same
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`generally applies to the other definitions on which Patent Owner relies.
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` 3
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`IPR2023-00758
`Patent 8,478,245
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`Finally, even if the Board finds that Exhibits 2023-2028 have some minimal
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`probative value as to how a POSITA would understand the claims of the ’245
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`patent, the Board should exclude those exhibits under Rule 403 because any
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`minimal probative value that the exhibits may have is “substantially outweighed”
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`by the unfair prejudice and potential confusion of the issues that may occur if the
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`exhibits are allowed to remain in evidence. See Fed. R. Evid. 403.
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`For the reasons set forth above, Exhibits 2023-2028 should be excluded.
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`Should the Board admit Exhibits 2023-2028, they should be ascribed substantially
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`less weight as they are non-contemporary sources of extrinsic evidence.
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`Dated: July 16, 2024
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`By:
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`/ Aliza George Carrano /
`Aliza George Carrano
`PTO Reg. No. 70,637
`Counsel for Petitioner
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`IPR2023-00758
`Patent 8,478,245
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`CERTIFICATE OF SERVICE
`Pursuant to 37 C.F.R. § 42.6, the undersigned certifies that on July 16, 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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`IPR2023-00758@aatriallaw.com
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` / Aliza George Carrano /
` Aliza George Carrano
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