Divx, LLC v. Unified Patents, LLC

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DIVX, LLC,
Appellant
v.
UNIFIED PATENTS, LLC,
Appellee
______________________
2023-1699
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2021-
01476.
______________________
Decided: June 24, 2025
______________________
P ARHAM HENDIFAR, Lowenstein & Weatherwax LLP,
Santa Monica, CA, argued for appellant. Also represented
by N ATHAN N OBU L OWENSTEIN, K ENNETH J. WEATHERWAX ,
COLETTE WOO.
ANGELA M. O LIVER, Haynes and Boone, LLP, Washing-
ton, DC, argued for appellee. Also represented by ADAM
L LOYD ERICKSON; D EBRA J ANECE MCC OMAS , D AVID L.
MCCOMBS , Dallas, TX; ROSHAN MANSINGHANI, J ESSICA
Case: 23-1699 Document: 43 Page: 1 Filed: 06/24/2025

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DIVX , LLC v. UNIFIED PATENTS, LLC 2
L EANN ANDERSEN M ARKS , Unified Patents, LLC, Chevy
Chase, MD.
______________________
Before L OURIE, D YK, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
DivX, LLC (DivX) appeals a final written decision of
the Patent Trial and Appeal Board (Board), which con-
cluded that the two independent claims in U.S. Patent
No. 10,326,987 (’987 patent) were unpatentable under 35
U.S.C. § 103. Unified Pats., LLC v. DivX, LLC,
No. IPR2021-01476, 2023 WL 1077109 (P.T.A.B. Jan. 20,
2023) (Decision). We affirm.
D ISCUSSION
DivX’s ’987 patent “generally relates to adaptive bi-
trate streaming” of media in playback devices.1 ’987 patent
col. 1 ll. 22–24. The ’987 patent acknowledges that the
prior art already taught playback devices capable of adap-
tive bitrate streaming. See id. col. 1 ll. 36–46. The patent
claims a playback device which uses two adaptive bitrate
streaming methods—one adaptive bitrate method applies
“during an initial startup period” of playback, whereas a
second, different adaptive bitrate scheme applies during
playback after “a minimum buffer level criterion is satis-
fied.” Id. at claim 1. Notably, the first adaptive bitrate
scheme in the claimed playback device does not consider
the state of the buffer, whereas the second adaptive bitrate
scheme does. See id.
Unified Patents, LLC (Unified) petitioned for inter
partes review. The Board instituted review and concluded
1 Playback devices receive media content from an ex-
ternal source and play the content back to the user. Exam-
ples include personal computers, mobile phones, and
televisions. See ’987 patent col. 7, ll. 28–35.
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DIVX , LLC v. UNIFIED PATENTS, LLC 3
that claims 1 and 10 were unpatentable as obvious over a
combination of Biderman2 and Gigliotti.3
The Board found that Biderman disclosed, among other
things, the first adaptive bitrate scheme—what the
claimed playback device uses “during an initial startup pe-
riod.” Decision, 2023 WL 1077109, at *6–8. The Board also
found that Biderman in combination with Gigliotti taught
the second adaptive bitrate scheme—what the claimed
playback device uses “when a minimum buffer criterion
level is satisfied.” Id. at *8–15. Finally, the Board found
that a skilled artisan would have been motivated to com-
bine Gigliotti with Biderman because Gigliotti, which
teaches a skilled artisan to consider the state of a buffer as
part of its adaptive bitrate switching scheme, can help mit-
igate some shortcomings in Biderman’s adaptive bitrate
streaming method. Id. at *15–18. DivX appeals. We have
jurisdiction under 28 U.S.C. § 1295(a)(4)(A).
DivX does not challenge the Board’s finding that a
skilled artisan would be motivated to combine the teach-
ings of Gigliotti with Biderman. Instead, on appeal, DivX
primarily argues that such a reference combination would
only teach a playback device that incorporates Gigliotti’s
teachings—consideration of the state of Biderman’s
buffer—for the entire playback process, whereas the claim
requires consideration of the state of the buffer only after
the initial startup period of playback. Additionally, DivX
contends that Unified did not show that the very idea of
using two different stream selection methods during play-
back existed in the prior art. We reject both contentions.
As to DivX’s first argument, DivX does not challenge
the Board’s finding that a skilled artisan would leverage
2 WIPO Patent Appl. Publ’n No. WO 2010/078281
(J.A 897–1023).
3 U.S. Patent Appl. Publ’n No. 2009/0307367 (J.A.
1024–42).
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DIVX , LLC v. UNIFIED PATENTS, LLC 4
Gigliotti’s teachings to improve Biderman’s method. Nor
does DivX dispute that adding Gigliotti’s adaptive bitrate
scheme during Biderman’s playback process necessarily
would improve Biderman for that part of the process. The
Board’s conclusion that a skilled artisan would adopt Gi-
gliotti’s teachings for only a portion of the playback, accord-
ing to DivX, still leaves “Biderman’s flawed methodology”
in the picture for some parts of the playback. Appellant
Br. 3. But “[i]t’s not necessary to show that a combination
is the best option, only that it be a suitable option.” Intel
Corp. v. PACT XPP Schweiz AG, 61 F.4th 1373, 1380 (Fed.
Cir. 2023) (alteration in original) (citation omitted).
DivX’s second argument contradicts the record because
Gigliotti itself teaches a playback device that embodies two
different stream selection methods. The Board found that
Gigliotti’s playback device, at the beginning of playback,
“may stream media at a first bit rate to fill an initial buffer
residing on the client” and subsequently outputs this
stream to the user. Decision, 2023 WL 1077109, at *5 (cit-
ing J.A. 1036–37 ¶¶36–39). During this initial playback
period, the device might select “a relatively low bit rate
value to ensure uninterrupted . . . streaming of media.”
J.A. 1036 ¶ 36. But as playback continues, Gigliotti’s play-
back device then begins to fill a separate buffer and transi-
tions to an adaptive bitrate scheme. See Decision, 2023 WL
1077109, at *5 (discussing J.A. 1027 FIG. 3); see also J.A.
1027 FIG. 3 (flowchart showing that Gigliotti’s adaptive
switching scheme, steps 310–316, kicks in after some con-
tent has already been outputted to the user, step 306). The
Board’s finding is supported by substantial evidence.
We have considered DivX’s remaining arguments but
find them persuasive. We therefore affirm.
AFFIRMED
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