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`UNITED STATES COURT OF APPEALS FOR THE FEDERALCIRCUIT
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`NOTICE OF ENTRY OF
`JUDGMENT ACCOMPANIED BYOPINION
`
`OPINION FILED AND JUDGMENT ENTERED: 09/26/2016
`
`The attached opinion announcing the judgmentof the court in your case wasfiled and judgment was entered on
`the date indicated above. The mandatewill be issued in due course.
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`notice to remove them. (The clerk deems a reasonable time to be 15 days from the datethefinal mandateis issued.)
`
`FOR THE COURT
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`cc: Harper Batts
`Joel Lance Thollander
`Dirk D. Thomas
`Eliot Damon Williams
`
`15-2065- Intertainer, Inc. v. Hulu, LLC
`United States Patent and Trademark Office, Case No. CBM2014-00052
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`

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`Case: 15-2065
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`Document: 33-2
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`Page:1
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`Filed: 09/26/2016
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`(2 of 18)
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`NoTE: This disposition is nonprecedential.
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`Anited States Court of Appeals
`for the Federal Circuit
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`INTERTAINER, INC.,
`Appellant
`
`Vv.
`
`HULU, LLC,
`Appellee
`
`2015-2065
`
`Appealfrom the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. CBM2014-
`00052.
`
`Decided: September 26, 2016
`
`DiIrK D. THOMAS, McKool Smith, P.C., Washington,
`DC, argued for appellant. Also represented by JOEL
`LANCE THOLLANDER, Austin, TX.
`
`ELIOT DAMON WILLIAMS, Baker Botts LLP, Palo Alto,
`CA, argued for appellee. Also represented by HARPER
`BATTS.
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`

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`INTERTAINER,INC. v. HULU, LLC
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`Before Prost, Chief Judge, CHEN and STOLL, Circuit
`Judges.
`
`PRosT, Chief Judge.
`Intertainer, Inc. (‘Intertainer”) appeals from the Pa-
`tent Trial and Appeal Board’s (“Board”) Final Written
`Decision in a covered business method (“CBM”) review
`finding that U.S. Patent No. 8,479,246 (246 patent”) is
`anticipated under 35 U.S.C. § 102. For the reasons stated
`below, we affirm.
`
`BACKGROUND
`
`Intertainer owns the 246 patent, which was filed on
`June 13, 2012 and is titled “System and Method for
`Interactive Video Content Programming.”
`The °246
`patent relates to creating and distributing videos with
`clickable links.
`’246 patent col. 11. 58-col. 21. 15. When
`a user clicks on a link, the video is paused andthe useris
`directed to a web page with “ancillary content.” Jd. at col.
`2 ll. 8-10, col. 6 1. 61-col. 7 1. 2, col. 8 ll. 4-10, col. 9 Hl. 27—
`30. After the user is done viewing the “ancillary content,”
`the user can click on a link to return to the original video
`and resume play.
`Id. at col. 7 ll. 22-26, col. 8 ll. 48-50.
`Figure 5 of the 246 patent provides an example that
`illustrates this process:
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`3
`
`500
`CLICK ON MARKER WHICH
`INDICATES INTERACTIVITY
`
` BACK TO
`PRIMARY CONTENT
`
`
`
`
`
`SELECT "BUY NOW" LINK
`FROM SPAWNED WINDOW
`
` 502
`
`504
`BUY MERCHANDISE
`
`FIG, 5
`
`links must be “pro-
`To make the videos clickable,
`grammed” such that they are coordinated with the video
`itself.
`Id. at col. 5 ll. 23-26 (explaining that “interface
`links are programmed according to the intended method
`of presentation and associated with a piece of video con-
`tent”). For example, links may be embedded in the video
`such that the video and links are streamed over the
`internet as a whole. Id. at col. 5 ll. 27-30. Alternatively,
`
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`INTERTAINER, INC. v. HULU, LLC
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`links may be delivered as a separate stream and overlaid
`on top of the video. Id. at col. 5 1. 63—col. 61. 4.
`In addition, all of the asserted claims recite the use of
`a “link program” that helps manage the interplay between
`the video and the links. The specification provides no
`information about how the “link program” is programmed.
`It does, however, disclose that the “interface link pro-
`gram” can be delivered over a network, and that “delivery
`of the interface link program. need not be simultaneously
`delivered with the video to the user since the interface
`link program would already be at the user’s visual dis-
`play.” Id. at col. 6 ll. 24-27.
`Independent claim 1 and dependentclaims 2, 3, 5, 8,
`10, 11, and 13-15 (“the challenged claims”) are at issue.1
`Claim 1 is representative:
`1. A method for creating an interactive video, the
`method comprising:
`
`encoding and storing the video onto a remote stor-
`age medium ata first site;
`creating a link program adaptedto both:
`(a) interrupt streaming of the video at the remote
`storage medium to prevent streaming of the video
`over an Internet Protocol (IP)-based network to a
`second site; and
`(b) access ancillary content accessible over the net-
`work with a universal resource locator (URL) to a
`remote site where the ancillary content is stored,
`the link program linking the ancillary content and
`the video to a point in time whenthe streamingof
`
` 1
`
`These are the only remaining claims in the ’246
`patent. Intertainer hasfiled a statutory disclaimer under
`37 U.S.C. § 1.321(a) disclaiming all others.
`
`

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`the video from the remote storage medium is inter-
`rupted;
`associating the link program with the video;
`streaming the video over the networkfor display;
`providing the link program overthe network;
`receiving an indication of an interaction with the
`link program;
`interrupting, at the first site, the streaming of the
`video in response to receiving the indication of the
`interaction with the link program; and
`continuing the streaming of the video over the
`network from the point in time when the stream-
`ing of the video was interrupted.
`Id. at col. 9 1. 45-col. 10 1. 3 (emphases added).
`On December 20, 2013, Hulu filed a petition with the
`Board seeking CBM review of the ’246 patent. The Board
`instituted review of the ’246 patent, in part, on the ground
`of anticipation in view of EP 0 840 241 to Chen (“Chen”).
`In its Institution Decision, the Board construed the claim
`term “link program” as “a set of instructions thattells the
`computer what to do whenalink is selected.” J.A. 122.
`In its Patent Owner Response, Intertainer did not explic-
`itly challenge this construction, but instead argued direct-
`ly that Chen did not disclose a “link program” because it
`did not disclose a single program that both (1) interrupted
`the streaming video and(2) accessed ancillary content.
`On June 12, 2015, the Board issued a Final Written
`Decision finding that the challenged claims of the ’246
`patent were anticipated by Chen.
`It reaffirmed its con-
`struction and clarified that, under its construction, the
`‘link program” did not need to be limited to a single
`program.
`It then concluded that Chen anticipated the
`"246 patent because, in relevant part, “Chen's disclosure
`
`

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`INTERTAINER, INC. v. HULU, LLC
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`of pausing the video and displaying the linked page on the
`computer, in responseto clicking a hot-link” disclosed the
`“creating a link program adapted to both: (a) interrupt
`streaming of the video at the remote storage medium .. .
`and (b) access ancillary content ...” limitation.
`J.A. 12.
`It also construed the terms “associating the link program
`with the video” and “providing the link program over the
`network” as not requiring that the entire link program be
`“provid[ed]” with the video or “associat[ed]” over
`the
`network and concluded that Chen disclosed these limita-
`tions. J.A. 9-10, 15-16.
`Intertainer appeals from the Board’s decision. We
`have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
`
`DISCUSSION
`
`Wereview the Board’s legal conclusions de novo and
`its findings of fact for substantial evidence.
`In re Gart-
`side, 203 F.3d 1305, 1316 (Fed. Cir. 2000). We review the
`Board’s claim construction under the standard set forth in
`Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S.
`Ct. 831, 841 (2015).
`In this appeal, Intertainer challenges the Board’s con-
`struction of
`three claim terms:
`(1) “link program,”
`(2) “associating the link program with the video,” and
`(3) “providing the link program over the network.” We
`address each in turn.
`
`I
`
`First, Intertainer argues that the Board erred in con-
`struing “link program” because its construction does not
`require that a “single” “program” perform both functions
`of “interrupt[ing] streaming of the video at the remote
`storage medium .. .” and “access{ing] ancillary content
`accessible over the network... .” Hulu counters that
`Intertainer waived its ability to challenge the Board's
`construction, and that in any event the Board’s construc-
`tion is correct.
`
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`A
`
`Waiveris a doctrine that is limited in application. In-
`teractive Gift Exp., Inc. v. Compuserve Inc., 256 F.3d. 1323,
`1346 (Fed. Cir. 2001).
`In the context of claim construc-
`tion, “the doctrine has been applied to preclude a party
`from adopting a new claim construction position on ap-
`peal.” Id. However, waiver “has not been invoked .. . to
`prevent a party from clarifying or defending the original
`scope of its claim construction, or from supporting its
`existing claim construction position with new citations to
`the specification.” Id.
`Hulu contends that Intertainer waived its ability to
`challenge the Board’s construction because its Patent
`Owner Response neither explicitly challenged the Board’s
`construction of “link program,” nor proposed an alternate
`construction.
`Intertainer does not disagree with these
`facts but argues that it preserved its challenge because it
`asserts the same position that it took in its Patent Owner
`Response.
`Weagree with Intertainer. Although Intertainer did
`not explicitly challenge the Board’s construction of “link
`program” in its Patent Owner Response (indeed,
`it ap-
`pears to cite to it approvingly, see J.A. 147), it took the
`same position that it raises on appeal: that the claims
`require that the “link program”is a single program that
`performs both “interrupt[ing] .
`.
`.” and “access[ing] .. .”
`functions. See J.A. 150-52. The only difference is that,
`before the Board, Intertainer did not integrate this posi-
`tion into a proposed construction of “link program;” in-
`stead, it argued that the plain language of the claims
`required this interpretation, drawing a distinction from
`Chen.
`Id.
`In effect, the locus of the dispute has shifted,
`but the dispute itself has not. This shift is understanda-
`ble, as it was not until the Final Written Decision that the
`Board clarified that its construction of “link program” (“a
`set of instructions that tells the computer what to do
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`whenalink is selected,” J.A. 122) did not require the
`“interrupt{ing] .. .” and “access[ing] ...” functions to be
`embodied in the same program. Accordingly, because its
`arguments are consistent with the original scope of Inter-
`tainer’s claim construction position, Intertainer has not
`waived its ability to challenge the Board’s construction.
`See Interactive Gift, 256 F.3d at 1346.
`
`B
`
`Turning to the merits, in a CBM review claims are
`given their “broadest reasonable construction in light of
`the specification of the patent in which [they] appear[].”
`37 C.F.R. § 42.300(b); see also Cuozzo Speed Techs., LLC
`uv. Lee, 136 S. Ct. 2131, 2142-45 (2016). “The protocol of
`giving claims their broadest reasonable interpretation. .
`.
`does not include giving claims a legally incorrect interpre-
`tation.” Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292,
`1298 (Fed. Cir. 2015) (quoting In re Skvorecz, 580 F.3d
`1262, 1267 (Fed. Cir. 2009)). Accordingly, the Board’s
`construction “cannot be divorced from the specification
`and the record evidence and must be consistent with the
`one that those skilled in the art would reach.” Id. (inter-
`nal quotation marks omitted).
`In addition, “[t]he [Board]
`should also consult the patent’s prosecution history in
`proceedings in which the patent has been brought back to
`the agency for a second review.” Id.
`Intertainer argues that the Board’s construction of
`“link program,” as clarified in its Final Written Decision,
`is incorrect because it does not require that the “inter-
`rupt[ing] .
`.
`.” and “access[ing] .
`.
`.” functions be performed
`by a “single” “program.” Its primary argument rests on
`the language of the claims: according to Inlertainer, the
`claims recite that the “link program” is “adapted to both”
`functions, so it should be construed to be a single program
`whosecorpusofinstructions fully executes both functions.
`In technical
`terms, Intertainer argues that
`the “link
`program” must be “a single compilation of instructions”
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`such that the main program andall sub-routines accessi-
`ble to it (i.e., present at compile-time) are sufficient to
`accomplish both “interrupt[ing] .
`.
`.” and “access[ing] .
`.
`.”
`functions. Opening Br. 30 & n.2; see also Oral Argument
`at
`2:35-3:38,
`available
`at http://oralarguments.cafc.
`uscourts.gov/default.aspx?fl=2015-2065.mp3.
`Hulu counters that Intertainer reads the claims too
`narrowly. According to Hulu, the claims and the specifi-
`cation only describe “link program” in functional terms
`and are silent as to whether the “interrupt[ing] .. .” and
`“access[ing] .. .” functions must be structured as one “link
`program” or several. Hulu also argucs that only this
`position is consistent with the prosecution history because
`arguments that Intertainer made to overcome written
`description and anticipation rejections require that “link
`program” be broad enough to cover any computer imple-
`mentation (i.e., one program or several) of the claimed
`functions.
`The parties’ dispute here rests not with what a link
`program does, but what a link program is; specifically,
`whether the “interrupt{ing] .
`.
`.” and “access[ing]
`.
`.
`.”
`functions require a single “link program.” On this nar-
`rower question, we agree with Hulu that the claims, given
`their broadest reasonable interpretation in light of the
`specification and prosecution history,
`impose no such
`requirement.
`,
`First, the claim language is silent on this question.
`The claims require that “a link program”is “adapted to”
`‘“Interrupt[ing] .
`.
`.” and “access[ing] .
`.
`.” functions, but
`impose no limits on how these two functions must be
`programmed. Thestep of “crealing a link program” could
`involve creating two separate executables that are in-
`voked serially, or a single executable that only need be
`called once. It could also involve creating a single exccut-
`able with multiple parameters such that the executable
`can be invoked once with one set of arguments to perform
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`the “interrupt[ing] ...” function and invoked a second
`time with another set of arguments to perform the “ac-
`cess[ing] ...” function. Further, the claims only require
`that the “link program” be “adapted to” perform these
`functions, so it could also be programmedsuchthatit only
`helps initiate these functions, as opposed to performing
`these functionsitself.
`The specification also imposes no restriction on how a
`“link program” must be structured, as it describes the
`“interrupt[ing] .
`.
`.” and “access[ing] .
`.
`.” operations in
`only functional terms. See, e.g., 246 patent col. 2 ll. 32-—
`37, col. 7 ll. 1-12, col. 8 Il. 8-11, 37-50, col. 9 11. 27-36. In
`fact,
`its sole discussion of the “interface link program”
`appears in a single paragraph andis primarily concerned
`with how the program can be delivered to a client com-
`puter. See id. at col. 6 ll. 21-32. There is no discussion of
`how a “link program” should be programmed.
`the
`Finally,
`the prosecution history confirms that
`“link program” cannot be limited to certain programmatic
`implementations.
`During prosecution,
`the examiner
`rejected claimsreciting “link program”for lack of written
`description under 35 U.S.C. § 112, { 1, in part because
`she believed the specification only disclosed delivering a
`stream of links over a network, as opposed to an entire
`“link program.” J.A. 409. According to the examiner, this
`was
`insufficient written description support
`for
`the
`“providing the link program over the network”limitation.
`Id. To overcome this rejection, Intertainer argued that
`the specification did in fact disclose delivery of an entire
`“link program” because disclosure of “link program”
`functionality meant that an entire “link program” was
`necessarily present:
`[T]he fact that the computer performs the dis-
`closed functions when a user interacts with an in-
`terface link necessarily requires that there is a
`link program instructing the computer to perform
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`those functions. As such, one having ordinary
`skill in the art would appreciate that the claimed
`‘link program’ is merely the list of instructions
`that perform the disclosed functions.
`
`J.A. 339.
`
`In addition, the examiner also rejected the claims as
`anticipated under § 102 by U.S. Patent No. 7,139,813 to
`Wallenius (“Wallenius”). J.A. 408. Intertainer attempted
`to swear behind Wallenius by claimingpriority to a “GAP
`Demo” embodiment which it had previously released,? but
`the examinerrejected this attempt because she believed
`that the “GAP Demo”also only delivered a stream of links
`over a network, not an entire “link program.” To over-
`come this rejection, Intertainer repeated this same ra-
`tionale:
`[T]he fact that the computer performs the dis-
`closed functions when a user interacts with an in-
`terface link necessarily requires that there is a
`link program instructing the computer to perform
`those functions. As such, one having ordinary
`skill in the art would appreciate that the claimed
`‘link program’ is merely the list of instructions
`that perform the disclosed functions.
`
`J.A. 349-50.
`
`In both contexts, Intertainer’s argument to the exam-
`iner advances a conception of “link program” that is broad
`enough to cover any implementation (1.e., one program or
`
` 2
`
`The “GAP Demo” was an interactive video show-
`ing dancers wearing GAP clothing. J.A. 609. A user could
`click on certain clothing items, such as a pair of khaki
`pants that a dancer was wearing, and be directed to a web
`page with details and purchasing information. J.A. 609-
`10.
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`several). This is because it assumes that, as long as there
`is a computer performing the “link program” functions
`(i.e., “interruptling] .. .” and “access[ing] .. .”), a “link
`program” exists.
`Indeed, had the examiner operated
`under a narrower construction of “link program” that
`required a certain programmatic structure (1e., one
`executable program),
`it is unclear whether Intertainer
`would have been able to overcome the § 112 and § 102
`rejections because the specification does not disclose
`details about how the “link program” is structured and
`the § 1.131 declarations that Intertainer submitted on its
`“GAP Demo” do not identify a “link program” that is a
`single executable.3 Accordingly, prosecution proceeded
`based on a structure-independent interpretation of “link
`program” and the Board correctly concluded that
`its
`broadest reasonable interpretation must be at least as
`broad.
`
`For these reasons, the Board did not err in construing
`“link program”to not require that the “interrupt[ing] .. .”
`and “access[ing]. .
`.” functions be performed by a “single”
`“program.”
`
`II
`
`Intertainer also challenges the Board’s construction of
`the terms “associating the link program with the video”
`and “providing the link program over the network.” The
`
`3 Instead, the GAP Demorelied onalibrary of re-
`
`mote methods to deliver compressed streams of hyper-
`linked video to devices running PersonalJava.
`J.A. 350,
`612-15, 643-48, 651-52, 692.
`Intertainer identified a
`remote method that initiated a command to interrupt
`streaming from Intertainer’s remote databascs as per-
`forming the “interrupt[ing] ...” step and a separate (but
`unspecified) command to access a URL as performing the
`“access[ing] ...” step. J.A. 614-15.
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`Board did not construe these terms in its Institution
`Decision, see J.A. 7-9, but clarified in its Final Written
`Decision that neither of these phrases requires that the
`entire link program be provided over the network or
`associated with the video, J.A. 9-10. Instead, in its view,
`providing and associating a stream of links was sufficient.
`J.A. 15-16.
`On appeal, Intertainer argues that the Board’s con-
`structions contradict the plain language of the claims,
`which require that “the link program”is “provid[ed]” and
`“associat[ed].”
`It also presses that the specification and
`the prosecution history are consistent with this position
`because the specification never discloses “providing” or
`“associating” only part of the “link program,” and that
`arguments that it made during prosecution are consistent
`with interpreting the “link program” as a single, multi-
`element program.
`Hulu counters that Intertainer’s position runs afoul of
`the prosecution history because,
`in order to overcome
`written description and anticipation rejections, it relied
`on
`interpretations
`of
`these
`limitations
`that
`only
`“provid[ed]” and “associate{ed]” interface links, not an
`entire link program.
`We agree with Hulu. As discussed above, during
`prosecution, the examinerrejected Intertainer’s claims for
`lack of written description because she believed the
`specification did not disclose “providing the link program
`over the network.” J.A. 409.
`Intertainer disagreed and
`argued that, because the specification disclosed providing
`a stream of links over the network and associating the
`links with video content,
`it necessarily disclosed the
`“providing” and “associating” steps. J.A. 339 (“[I]t would
`be clear to a person of ordinary skill in the art that inter-
`face links are elements of the interface link program, that
`the interface link program is the same as the link pro-
`gram, and that the link program is delivered to client
`
`

`

`Case: 15-2065
`
`Document: 33-2
`
`Page:14
`
`Filed: 09/26/2016
`
`(15 of 18)
`
`14
`
`INTERTAINER,INC. v. HULU, LLC
`
`software in the manner described by the ’884 applica-
`tion.”); see also Oral Argument at 9:14-33 (citing this
`passage and summarizing that “when you're providing the
`interface links, you’re necessarily providing the link
`program”). Intertainer did not identify any portion of the
`specification that disclosed that the remaining aspects of
`the link program (such as “interrupt[ing]
`...” or “ac-
`cess[ing] .
`. .”) were provided over the network or associat-
`ed with a video;
`instead,
`in its view, providing and
`associating “elements” of the link program wassufficient.
`Accordingly, Intertainer conceded during prosecution that
`the steps of “providing the link program over the network”
`and “associating the link program with the video” can be
`satisfied when only a portion (e.g., a stream of links) of a
`link program is “provid[ed]” and “associat[ed].”
`Arguments that Intertainer made with respect to the
`examiner's
`anticipation rejections
`also support
`the
`Board’s constructions. As discussed above, Intertainer
`used its “GAP Demo” embodiment to swear behind Walle-
`nius, the examiner’s anticipation reference. J.A. 349-51.
`However, as the examiner found,
`the GAP Demo only
`transmitted “hypervideo streams” and “additional data
`streams” (e.g., supporting metadata) over the network.
`See J.A. 408, 648.
`Indeed, in mapping the “GAP Demo”
`onto the particular elements of the claim, Intertainer
`argued that the “providing” step was disclosed because
`“current prototypes use RMI to deliver compressed hy-
`pervideo streams’ over the network.” J.A. 615. The GAP
`Demo did not transmit or associate other aspects of the
`“link program,” such as code to “interrupt streaming of
`the video at the remote storage medium.” So here too
`Intertainer conceded that the claims do not require that
`an entire link program is “provid[ed]” or “associat[ed].”
`In sum, the Board’s constructions correctly capture
`the positions that Intertainer took during prosecution to
`obtain allowance. It did not err in construing these terms.
`
`

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`Case: 15-2065
`
`Document: 33-2
`
`Page:15
`
`Filed: 09/26/2016
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`(16 of 18)
`
`INTERTAINER,INC. v. HULU, LLC
`
`15
`
`lil
`
`Intertainer does not dispute that, under the Board’s
`constructions, Chen anticipates the ’246 patent. Accord-
`ingly, because we affirm the Board’s constructions, we
`affirm the Board’s decision that the ’246 patent is invalid
`under § 102. We need not reach Hulu’s alternative
`groundsfor affirmance.
`AFFIRMED
`
`

`

`Filed: 09/26/2016
`Page:1
`Document: 33-3
`Case: 15-2065
`UNITED STATES COURT OF APPEALS
`FOR THE FEDERAL CIRCUIT
`
`(17 of 18)
`
`Questions and Answers
`
`Petitions for Panel Rehearing (Fed. Cir. R. 40)
`and
`Petitions for Hearing or Rehearing En Banc (Fed. Cir. R. 35)
`NTNU
`
`merits panel has followed circuit precedent, which the party
`seeks to have overruled by the court en banc.
`
`Q. Howfrequently are petitions for panel rehearing granted
`by merits panels or petitions for rehearing en banc granted
`by the court?
`
`A. The data regarding petitions for panel rehearing since
`1982 shows that merits panels granted somereliefin only
`three percent of the petitions filed. The relief granted usually
`involved only minor corrections of factual misstatements,
`rarely resulting in a change of outcomein the decision.
`
`En bancpetitions have been granted less frequently.
`Historically, the court has initiated en banc review in a few’
`of the appeals decided en banc since 1982.
`
`Q. Is it necessary to have filed either of these petitions
`before filing a petition for certiorari in the U.S. Supreme
`Court?
`
`A. No. All that is neededis a final judgment of the Court of
`Appeals.
`
`Q. Whenis a petition for panel rehearing appropriate?
`
`A. Petitions for panel rehearing are rarely considered
`meritorious. Consequently, it is easiestto first answer when
`a petition for panel rehearing is not appropriate. A petition
`for panel rehearing should not be used to reargue issues
`already briefed and orally argued. If a party failed to
`persuade the court on an issuein the first instance, they do
`not get a second chance.This is especially so when the
`court has entered a judgmentof affirmance without opinion
`under Fed. Cir. R. 36, as a disposition of this nature is used
`only when the appellant/petitioner hasutterly failed to raise
`anyissuesin the appeal that require an opinion to be
`written in support of the court's judgmentof affirmance.
`
`Thus, as a usual prerequisite, the court must havefiled
`an opinion in support of its judgmentfor a petition for panel
`rehearing to be appropriate. Counsel seeking panel
`rehearing mustbe able to identify in the court's opinion a
`material errors of fact or law, the correction of which would
`require a different judgment on appeal.
`
`Q. Whenis a petition for rehearing en banc appropriate?
`
`A. En bancdecisions are extraordinary occurrences. To
`properly answer the question, one mustfirst understand the
`responsibility of a three-judge merits panel of the court. The
`panelis charged with deciding individual appeals according
`to the law ofthe circuit as established in the court’s
`precedential opinions. While each merits panelis
`empoweredto enter precedential opinions,the ultimate duty
`of the court en bancis to set forth the law of the Federal
`Circuit, which merits panels are obliged to follow.
`
`Thus, as a usual prerequisite, a merits panel of the court
`must have entered a precedential opinion in support ofits
`judgmentfor a petition for rehearing en bancto be
`appropriate. In addition, the party seeking rehearing en
`banc must show thateither the merits panel has failed to
`follow decisions of the Supreme Court of the United States
`or Federal Circuit precedential opinions, or that the
`
`

`

`Case: 15-2065
`
`Document: 33-4
`
`Page:1
`
`Filed: 09/26/2016
`
`(18 of 18)
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
`
`INFORMATION SHEET
`
`FILING A PETITION FOR A WRIT OF CERTIORARI
`
`There is no automatic right ofappeal to the Supreme Court of the United States from judgments
`of the Federal Circuit. You must file a petition for a writ of certiorari which the Supreme Court
`will grant only when there are compelling reasons. (See Rule 10 ofthe Rules ofthe Supreme
`Court of the United States, hereinafter called Rules.)
`
`Time. The petition must be filed in the Supreme Court ofthe United States within 90 days of
`the entry ofjudgmentin this Court or within 90 days ofthe denial of a timely petition for
`rehearing. Thejudgmentis entered on the day the Federal Circuit issues a final decision in your
`case. [The time does not run from the issuance ofthe mandate, which has no effect on the right
`to petition.] (See Rule 13 ofthe Rules.)
`
`Fees. Either the $300 docketing fee or a motion for leave to proceed in forma pauperis with an
`affidavit in support thereofmust accompanythepetition. (See Rules 38 and 39.)
`
`Authorized Filer. The petition must be filed by a memberofthe bar ofthe Supreme Court of
`the United States or by the petitioner representing himself or herself.
`
`Formatof a Petition. The Rules are very specific about the order ofthe required information
`and should be consulted before you start drafting your petition. (See Rule 14.) Rules 33 and 34
`should be consulted regarding type size and font, paper size, paper weight, margins, page limits,
`cover, etc.
`
`Number ofCopies. Forty copies ofa petition must be filed unless thepetitioner is proceeding in
`forma pauperis, in which case an original and ten copies ofthe petition for writ ofcertiorari and
`ofthe motion for leave to proceed in forma pauperis. (See Rule 12.)
`
`Whereto File. You must file your documents at the Supreme Court.
`
`Clerk
`Supreme Court of the United States
`1 First Street, NE
`Washington, DC 20543
`(202) 479-3000
`
`No documents are filed at the Federal Circuit and the Federal Circuit provides no information to
`the Supreme Court unless the Supreme Court asks for the information.
`Access to the Rules. The current rules can be found in Title 28 ofthe United States Code
`Annotated and other legal publications available in many public libraries.
`
`Revised December 16, 1999
`
`‘<rrtTERAnSESNTNSTTSSSTNNN
`
`

`

`Case: 15-2065 Page:1_Filed: 11/02/2016Document:34
`
`
`UNITED STATES COURT OF APPEALS FOR THE FEDERALCIRCUIT
`
`15-2065
`
`INTERTAINER,INC.,
`Appellant
`
`HULU, LLC,
`Appellee
`
`Appealfrom the United States Patent and TrademarkOffice, Patent Trial and Appeal Board in No.
`CBM2014-00052
`
`In accordance with the judgmentof this Court; entered September 26, 2016, and pursuantto Rule
`41(a) of the Federal Rules of Appellate Procedure, the formal mandateis hereby issued.
`
`MANDATE
`
`FOR THE COURT
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`cc: Harper Batts
`Joel Lance Thollander
`Dirk D. Thomas
`United States Patent and Trademark Office
`Eliot Damon Williams
`
`