Wag Acquisition, LLC v. Webpower, Inc., Friendfinder Networks Inc., Streamray Inc., Wmm, LLC, Wmm Holdings,…

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WAG ACQUISITION, LLC,
Appellant
v.
WEBPOWER, INC., FRIENDFINDER NETWORKS
INC., STREAMRAY INC., WMM, LLC, WMM
HOLDINGS, LLC, MULTI MEDIA, LLC, DUODECAD
IT SERVICES LUXEMBOURG S.A.R.L., ACCRETIVE
TECHNOLOGY GROUP, INC., ICF TECHNOLOGY,
INC., RISER APPS LLC, STREAMME, INC., FKA
VUBEOLOGY, INC.,
Appellees
______________________
2018-1617
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2016-
01238.
______________________
Decided: August 26, 2019
______________________
RONALD ABRAMSON, Liston Abramson LLP, New York,
NY, argued for appellant. Also represented by ARI J ASON
J AFFESS .

-- 1 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 2
J ONATHAN L. F ALKLER, Venable LLP, Washington, DC,
argued for all appellees. Appellees WebPower, Inc.,
FriendFinder Networks Inc., Streamray Inc., WMM, LLC,
WMM Holdings, LLC, Multi Media, LLC also represented
by F RANK M. G ASPARO, T ODD M. N OSHER, New York, NY.
K EVIN MICHAEL O'BRIEN, Baker & McKenzie LLP,
Washington, DC, for appellee Duodecad IT Services Lux-
embourg S.A.R.L.
BRIAN G. BODINE, Lane Powell PC, Seattle, WA, for ap-
pellees Accretive Technology Group, Inc., ICF Technology,
Inc., Riser Apps LLC, StreamMe, Inc. Also represented by
ALAN D. MINSK.
______________________
Before N EWMAN, CHEN, and STOLL , Circuit Judges.
STOLL , Circuit Judge.
WebPower, Inc. sought inter partes review of claims 1–
28 of U.S. Patent No. 8,122,141 (the ’141 patent) before the
U.S. Patent and Trademark Office’s Patent Trial and Ap-
peal Board.1 The Board instituted review of claims 10–23
of the ’141 patent and, in its final written decision, found
all of these claims unpatentable. WAG Acquisition, LLC,
owner of the ’141 patent, appeals the Board’s decision as to
claims 10–18. Because the Board’s validity analysis rests
on an incorrect claim construction, we vacate the decision
1 FriendFinder Networks Inc., Steamray Inc.,
WWM, LLC, WWM Holdings, LLC, Multi Media, LLC, Du-
odecad IT Services Luxembourg S.A.R.L., Accretive Tech-
nology Group, Inc., ICF Technology, Inc., Riser Apps LLC,
and StreamMe, Inc. joined as parties to the proceeding on
June 5, 2017.

-- 2 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 3
as to the appealed claims and remand for further proceed-
ings consistent with this opinion.
BACKGROUND
I
The ’141 patent discloses a buffering system for
streaming media, such as audio/video, on the Internet.
’141 patent col. 1 ll. 30–33. At the time of the invention,
users attempting to stream media over the Internet expe-
rienced persistent interruptions in playback due to poor
connection quality, degradation of bandwidth, or conges-
tion. Id. at col. 2 ll. 10–30. Prior art solutions to this issue
incorporated a user buffer, which would store audio and/or
video data in the user’s computer so that playback could
continue in the event of an interruption in the data trans-
mission. Id. at col. 2 ll. 35–38. With this prior art buffer,
playback would not begin until the buffer was filled to a
specified level and, if the buffer became fully depleted,
playback would pause until the buffer could be refilled. Id.
at col. 2 l. 64–col. 3 l. 7. As noted in the specification,
“[b]ecause transmission of the data to the user takes place
at the rate it is played out, the user’s buffer level can never
be increased or replenished while it is playing.” Id. at col. 2
l. 65–col. 3 l. 1. Users thus experienced both a delayed
start to viewing streamed content and a higher likelihood
of interruptions as the buffer could not be refilled during
playback.
The ’141 patent specification describes two solutions to
this problem. The first involves maintaining both a server-
side buffer and a user-side buffer, with the server-side
buffer storing a certain amount of data elements for trans-
mission to the user. Id. at col. 4 ll. 58–66. When a user
initiates streaming, the server sends the stored data “at the
highest rate that the data connection between the server
and user computer will support until the predetermined
amount of data that had been stored in the server buffer
has been transferred to the user’s computer.” Id. at col. 5

-- 3 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 4
ll. 57–61. The user’s buffer “is built up while the audio is
playing, and can be restored if diminished by data trans-
mission interruptions.” Id. at col. 9 ll. 47–49. This is be-
cause, if a user buffer is not full, “data is transmitted from
the server more rapidly than it is played out by the user
system,” restoring the buffer to a full state. Id. at col. 9
ll. 51–54. The server keeps track of the last data element
that has been sent to each user by way of a software
“pointer” that alerts the server when a data transmission
has been interrupted and identifies the last data element
that had been sent to that user when the interruption oc-
curred. Id. at col 7 ll. 15–27.
Like the first solution, the second solution incorporates
a server-side buffer that stores sequentially numbered me-
dia data elements for transmission to a user buffer. Id.
at col. 8 ll. 35–38. Instead of using a pointer, however, “the
user computer, not the server, maintains the record of the
highest data element number stored in the user computer
buffer.” Id. at col. 8 ll. 50–52. Using “standard data com-
munications protocol techniques such as TCP, the user
computer transmits a request to the server to send one or
more data elements, specifying the serial numbers of the
data elements.” Id. at col. 8 ll. 42–46. The requested data
“will be transmitted to the user computer as fast as the
data connection between the user computer and the server
will allow.” Id. at col. 8 ll. 52–55.
On appeal, WAG focuses on claims 10 and 15, which
recite as follows:
10. A server for distributing streaming media via a
data communications medium such as the Internet
to at least one user system of at least one user, the
streaming media comprising a plurality of sequen-
tial media data elements for a digitally encoded au-
dio or video program, said user system being
assumed to have a media player for receiving and
playing the streaming media on said user system,

-- 4 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 5
which is operable to obtain media data elements
from said server by transmitting requests to said
server to send one or more specified media data el-
ements, said server comprising
at least one data storage device, memory
for storing machine-readable executable
routines and for providing a working
memory area for routines executing on the
server, a central processing unit for execut-
ing the machine-readable executable rou-
tines, an operating system, at least one
connection to the communications medium,
and a communications system providing a
set of communications protocols for com-
municating through said at least one con-
nection;
a machine-readable, executable routine
containing instructions to cause the server
to assign serial identifiers to the sequential
media data elements comprising the pro-
gram;
a machine-readable, executable routine
containing instructions to cause the server
to receive requests from the user system for
one or more media data elements specify-
ing the identifiers of the requested data el-
ements; and
a machine-readable, executable routine
containing instructions to cause the server
to send media data elements to the user sys-
tem responsive to said requests, at a rate
more rapid than the rate at which said
streaming media is played back by a user.

-- 5 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 6
15. The server of claim 10, wherein said server does
not maintain a pointer into a buffer established
within said server, for each said user.
Id. at col. 13 l. 63–col. 14 l. 28, col. 14 ll. 38–40 (emphases
on disputed claim limitations).
II
On January 4, 2017, the Board instituted review of
claims 10–11 and 13–18 of the ’141 patent on the ground
that these claims were anticipated by U.S. Patent
No. 6,389,473 (“Carmel”).2 The Board also instituted re-
view of claim 12 on the ground that it would have been ob-
vious over Carmel in view of International Standard
ISO/IEC 11172.3
Carmel discloses a method for streaming live or prere-
corded media from a server to multiple client computers
over the Internet. See Carmel at Abstract. Carmel dis-
closes dividing content into “slices,” each containing a seg-
ment of video and/or audio data. Id. at col. 7 ll. 22–26. The
slices are labeled based on time interval, mapped to an in-
dex, and uploaded to the server. Id. at col. 7 ll. 27–34.
When a user connects to the data stream, the user com-
puter downloads the index file to identify the point in the
stream at which to begin. Id. at col. 8 ll. 1–5. The user can
choose to join the stream in substantially real time or,
2 The Board also instituted review of claims 19–23
on multiple grounds. WAG has not challenged the Board’s
unpatentability determinations with respect to these
claims.
3 International Standard ISO/IEC 11172-1, -2, -3, In-
formation Technology—Coding of moving pictures and as-
sociated audio for digital storage media at up to about 1,5
Mbit/s (ISO/IEC, August 1993).

-- 6 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 7
alternatively, start the stream at an earlier point in the
broadcast. Id. at col. 8 ll. 5–8.
Carmel teaches several methods for recovering from
lag caused by interruptions in the data stream. First, the
data transmission rate can be increased by altering the size
of each data slice sent from the server to the user computer.
Id. at col. 7 ll. 39–44. Second, the compression level of the
data can be adjusted to reflect any change in available
bandwidth. Id. at col. 7 ll. 44–49. Finally, the client can
open additional links with the server in the event of lag “in
order to increase the overall data rate.” Id. at col. 10 ll. 55–
63.
The parties’ dispute before the Board centered primar-
ily on whether Carmel discloses “instructions to cause the
server to send media data elements to the user system re-
sponsive to said requests, at a rate more rapid than the rate
at which said streaming media is played back by a user” in
independent claim 10. ’141 patent col. 14 ll. 24–28.
WebPower argued that Carmel’s description of the respon-
sive adjustments made to accommodate the detection of lag
includes sending media data elements at a rate more rapid
than the playback rate. Specifically, WebPower argued
that Carmel discloses using multiple links to increase the
overall data rate, and that it expresses an objective of send-
ing multimedia data at a rate “generally equal to or faster”
than the playback rate. See Carmel col. 2 ll. 56–59. In re-
sponse, WAG argued that the data rate referred to in Car-
mel is the overall data rate, rather than the rate at which
individual data slices are sent as required by claim 10.
The Board first addressed what it viewed as WAG’s im-
plicit claim construction argument that the “rate” in
claim 10 refers to “the rate at which data elements are sent
on an individual link to the user system” as opposed to the
“overall rate achieved with multiple links to the user sys-
tem.” WebPower, Inc. v. WAG Acquisition, LLC, No.
IPR1016-01238, 2017 WL 6597962, at *4 (P.T.A.B. Dec. 26,

-- 7 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 8
2017) (emphases in original). The Board found that “noth-
ing in the express language of the claim, nor in the Specifi-
cation of the ’141 patent . . . compels a construction of ‘rate’
limited to the rate at which data are sent over an individ-
ual link.” Id. While the Board agreed with WAG that Car-
mel describes “transmission on individual links . . . below
the generation rate,” it found that Carmel’s disclosure of an
overall transmission rate across multiple links that was
faster than the playback rate was sufficient to disclose the
limitation at issue in claim 10. Id. at *7–8.
The parties also disputed whether Carmel anticipates
claim 15 of the ’141 patent. Claim 15 depends from
claim 10 and recites the negative limitation that “said
server does not maintain a pointer into a buffer established
within said server, for each said user.” ’141 patent col. 14
ll. 38–40. The Board rejected WAG’s argument that use of
a server-side pointer was inherent in Carmel, finding that
“features of Carmel, including disclosure of client-side con-
trol, a lack of specialized server software, and similar
pointerless protocols as used in the ’141 patent, meet the
claim limitation.” WebPower, 2017 WL 6597962 at *11.
The Board thus held that Carmel anticipates claim 15.
The Board similarly concluded that dependent
claims 11–14 and 16–18 were unpatentable, noting that
WAG did not argue the patentability of these claims sepa-
rately from claim 10. WAG appeals. We have jurisdiction
under 28 U.S.C. § 1295(a)(4)(A).
D ISCUSSION
WAG makes two primary arguments on appeal:
(1) that the Board erred in its construction of claim 10 and
hence its determination that Carmel discloses the “rate”
limitation in claim 10; and (2) that the Board erred in its
determination that Carmel discloses the negative pointer
limitation in claim 15. We address these issues in turn.

-- 8 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 9
I
We first address the Board’s finding that Carmel antic-
ipates claim 10, and in particular that Carmel discloses the
“rate” limitation at issue. The Board premised its findings
on its construction of the term “rate” in this limitation. The
Board construed “rate” in light of the disclosures in Car-
mel, concluding that “nothing in the express language of
the claim, nor in the [s]pecification of the ’141 patent . . .
compels a construction of ‘rate’ limited to the rate at which
data are sent over an individual link.” WebPower, 2017 WL
6597962, at *4. Accordingly, the Board found that Car-
mel’s description of using multiple links to achieve an over-
all data rate that is at times more rapid than the playback
rate discloses claim 10’s “rate” limitation. We disagree.
We review the Board’s construction of a claim term de
novo, reviewing any underlying fact findings for substan-
tial evidence. Teva Pharm. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831, 841 (2015); Praxair Distrib., Inc. v.
Mallinckrodt Hosp. Prods. IP Ltd., 890 F.3d 1024, 1031
(Fed. Cir. 2018) (citing HTC Corp. v. Cellular Commc’ns
Equip., LLC, 877 F.3d 1361, 1367 (Fed. Cir. 2017)). While
the words of a claim “are generally given their ordinary and
customary meaning,” a claim term is read “not only in the
context of the particular claim in which the disputed term
appears, but in the context of the entire patent, including
the specification.” Phillips v. AWH Corp., 415 F.3d 1303,
1312–13 (Fed. Cir. 2005) (en banc) (quoting Vitronics Corp.
v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996)).
During an inter partes review, claims are given the “broad-
est reasonable interpretation” consistent with the specifi-
cation.4 Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,
2146 (2016).
4 This standard has recently changed. For petitions
filed on or after November 13, 2018, the Board will apply

-- 9 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 10
In our view, the “rate” in claim 10 refers to the rate at
which each requested media data element is transmitted
from the server to the user computer. This construction
stems from the plain language of the claim, which requires
the server “to send media data elements to the user system
responsive to said requests” at a rate more rapid than the
playback rate. ’141 patent col. 14 ll. 24–28 (emphasis
added). The antecedent basis for “said requests” is con-
tained in the prior limitation, which identifies “requests
from the user system for one or more media data elements
specifying the identifiers of the requested data elements.”
Id. at col. 14 ll. 21–23 (emphases added). The rate limita-
tion in claim 10 therefore refers to the rate at which re-
quested media data elements are sent, not the overall rate
at which data is transmitted from the server to the user
computer.
Our conclusion is further supported by the patent spec-
ification, which discloses that:
[T]he user computer transmits a request to the
server to send one or more data elements, specify-
ing the serial numbers of the data elements. The
server responds by sending the requested data ele-
ments. . . . The media data will be transmitted to
the user computer as fast as the data connection
between the user computer and the server will al-
low.
Id. at col. 8 ll. 42–55. Construing the claimed “rate” as the
rate at which each requested data element is transmitted
from the server to the user computer is consistent with the
the Phillips claim construction standard. See Changes to
the Claim Construction Standard for Interpreting Claims
in Trial Proceedings Before the Patent Trial and Appeal
Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018) (to be codified at
37 C.F.R. pt. 42).

-- 10 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 11
specification and the operational intent of the invention de-
scribed in the specification.
We thus disagree with the Board’s conclusion that
“nothing in the express language of the claim, nor in the
Specification of the ’141 patent . . . compels a construction
of ‘rate’ limited to the rate at which data are sent over an
individual link.” WebPower, 2017 WL 6597962, at *4. We
note that WAG’s patent specification does not even use the
terminology “individual link” or “multiple links.” This ter-
minology comes from the prior art Carmel reference. Ra-
ther, the claims and patent specification consistently refer
to the rate at which each requested data element is trans-
mitted from the server to the user computer. We thus con-
strue the claim term “rate” accordingly.
WAG argues that, under this construction, Carmel
does not disclose the claimed “rate.” For its part,
WebPower argues that, even under this construction, Car-
mel teaches the claimed “rate.”5 Because the Board did not
consider Carmel’s disclosures under the proper construc-
tion, we remand to the Board for it to resolve this factual
dispute in the first instance.
II
WAG also appeals the Board’s finding that Carmel an-
ticipates claim 15 of the ’141 patent. While claim 15
5 WebPower also asserts that WAG waived its claim
construction argument by not raising it before the Board.
We are not convinced. The Board concluded that the claim
term required construction in order to resolve the factual
dispute of anticipation, WAG raised its construction at oral
argument when answering questions regarding anticipa-
tion, and WAG’s proffered construction derives from the
plain meaning of the claim terms. Under these particular
circumstances, we conclude that WAG did not waive its po-
sition on claim construction.

-- 11 of 12 --

WAG ACQUISITION, LLC v. WEBPOWER, INC. 12
depends from claim 10—issues about which we have re-
manded for further fact findings—we nonetheless address
this dispute for purposes of judicial efficiency.
WAG argues that Carmel either expressly or inher-
ently discloses the use of a pointer, and thus fails to dis-
close the negative limitation that the “server does not
maintain a pointer into a buffer.” ’141 patent col. 14 ll. 38–
40. Contrary to the Board’s findings, WAG argues that
Carmel does not disclose sufficient client-side control to
render the use of a pointer unnecessary. In order to antic-
ipate a claim, a prior art reference must “disclose all ele-
ments of the claim within the four corners of the
document.” Microsoft Corp. v. Biscotti, Inc., 878 F.3d 1052,
1068 (Fed. Cir. 2017) (quoting Net MoneyIN, Inc. v. Ver-
iSign, Inc., 545 F.3d 1369, 1369 (Fed. Cir. 2008)). Antici-
pation is a question of fact, reviewed for substantial
evidence. Id. We are not convinced by WAG’s arguments.
A reasonable fact finder could find that Carmel does not
require use of a pointer for the reasons stated by the Board:
Carmel emphasizes client control, lacks specialized server
software, and uses pointerless protocols. While Carmel
does not specify that a pointer is not used, nothing in the
record suggests that a pointer must be used. The Board’s
findings are therefore supported by substantial evidence.
CONCLUSION
For the foregoing reasons, we vacate the decision of the
Board and remand for further proceedings consistent with
this opinion.
VACATED AND REMANDED
COSTS
Costs to appellant.

-- 12 of 12 --