Avago Technologies International Sales Pte. Limited v. NETFLIX, INC., Cross-Appellant 2023-1817, 2023-1836 Appeals from the United States…

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AVAGO TECHNOLOGIES INTERNATIONAL SALES
PTE. LIMITED,
Appellant
v.
NETFLIX, INC.,
Cross-Appellant
______________________
2023-1817, 2023-1836
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2021-
01343.
______________________
Decided: June 18, 2025
______________________
DAN Y OUNG, Quarles & Brady LLP, Highlands Ranch,
CO, argued for appellant. Also represented by KENT
DALLOW , MATTHEW C HRISTIAN HOLOHAN.
CHRISTOPHER SCOTT P ONDER , Sheppard Mullin Richter
& Hampton LLP, Menlo Park, CA, argued for cross-appel-
lant. Also represented by HARPER BATTS, JEFFREY L IANG .
______________________
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Before P ROST, REYNA , and TARANTO, Circuit Judges.
P ROST, Circuit Judge.
Avago Technologies International Sales Pte. Ltd.
(“Avago”) appeals from a final written decision of the Pa-
tent Trial and Appeal Board (“PTAB”) in an inter partes
review (“IPR”) determining that claims 1, 3–5, 7, 9–10, 12,
14–16, and 18–20 of U.S. Patent No. 8,646,014 (“the ’014
patent”) are unpatentable and dependent claims 6, 8, 11,
and 17 are not unpatentable. J.A. 1–32. We affirm the
Board as to the claims it determined are unpatentable. As
to the claims the Board determined are not unpatentable,
we vacate and remand for further proceedings consistent
with this opinion.
B ACKGROUND
The ’014 patent is titled “Multistream Video Commu-
nication With Staggered Access Points.” ’014 patent Title
(capitalization normalized). The ’014 patent concerns “a
system and method that provide reduced latency in a video
signal processing system.” Id. at col. 1 ll. 63–65. According
to the ’014 patent, latency is the “time between when a user
makes a request for particular video information and when
the system presents the requested video information to the
user.” Id. at col. 1 ll. 36–39. Claim 1 recites:
[1a] A method in a video receiving system for re-
ceiving video information, the method comprising:
[1b] receiving, by a receiver, a request by a
user for a unit of video information;
[1c] receiving, by the receiver, a plurality of
video information streams, each of which
represents the requested unit of video infor-
mation;
[1d] identifying, by the receiver, which of
the plurality of video information streams,
when processed, is expected to result in a
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lower latency in presenting the unit of video
information; and
[1e] processing, by the receiver, the identi-
fied video information stream to present
the unit of video information.
Id. at claim 1 (emphasis and bracketed labels added).
The main prior-art references relevant to this appeal
are Baldwin1 and Cooper.2 Baldwin is titled “Fast Start-
up for Digital Video Streams” and was filed on June 13,
2003. Baldwin teaches “reduc[ing] the effective start-up
delay in the presentation of the first frames of the video
content that occurs when a system tunes into a video
stream.” Baldwin col. 4 ll. 60–64. “To further minimize the
start-up delay, the exemplary fast start-up system may ac-
count for the randomness at which a user tunes into a
video-stream channel by employing multiple alternative,
[random access point (“RAP”)] phase-staggered video-
stream transmissions.” Id. at col. 9 ll. 3–7. Cooper is titled
“Robust Mode Staggercasting Fast Channel Change” and
was filed on January 23, 2004. Cooper teaches “a method
and apparatus for staggercasting a plurality of content rep-
resentative signals.” Cooper col. 2 ll. 54–59. Content rep-
resentative signals may include “a video image signal,
audio sound image, program data, or any combination of
these.” Id. at col. 3 ll. 52–54. “A composite signal is gener-
ated comprising the plurality of first and second . . . sig-
nals,” in which “each respective second . . . signal is delayed
with respect to the corresponding first . . . signal.” Id. at
Abstract.
Netflix, Inc. (“Netflix”) petitioned for IPR of claims 1,
3–12, and 14–20 of the ’014 patent. The Board found Bald-
win alone would have rendered obvious claims 1, 3–5, 7, 9–
1 U.S. Patent No. 7,603,689 (“Baldwin”).
2 U.S. Patent No. 7,810,124 (“Cooper”).
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10, 12, 14–16, and 18–20 of the ’014 patent. The Board also
found that Cooper alone and the combination of Cooper and
Baldwin would not have rendered obvious claims 6, 8, 11,
and 17.
Avago timely appealed the Board’s final written deci-
sion as to claims 1, 3–5, 7, 9–10, 12, 14–16, and 18–20. Net-
flix timely cross-appealed the Board’s final written decision
as to claims 6, 8, 11, and 17. We have jurisdiction under
28 U.S.C. § 1295(a)(4)(A).
DISCUSSION
Obviousness is a question of law based on underlying
findings of fact. Novartis AG v. Torrent Pharms. Ltd., 853
F.3d 1316, 1327 (Fed. Cir. 2017). “What the prior art
teaches [and] whether a person of ordinary skill in the art
would have been motivated to combine references . . . are
questions of fact.” Meiresonne v. Google, Inc., 849 F.3d
1379, 1382 (Fed. Cir. 2017). These “subsidiary factual find-
ings are reviewed for substantial evidence.” Novartis, 853
F.3d at 1327. “Substantial[-]evidence review asks whether
a reasonable fact finder could have arrived at the agency’s
decision and requires examination of the record as a whole,
taking into account evidence that both justifies and de-
tracts from an agency’s decision.” Intelligent Bio-Sys., Inc.
v. Illumina Cambridge Ltd., 821 F.3d 1359, 1366 (Fed. Cir.
2016) (cleaned up). “Where two different conclusions may
be warranted based on the evidence of record, the Board’s
decision to favor one conclusion over the other is the type
of decision that must be sustained by this court as sup-
ported by substantial evidence.” In re Chudik, 851 F.3d
1365, 1371 (Fed. Cir. 2017) (quoting In re Bayer Aktieng-
esellschaft, 488 F.3d 960, 970 (Fed. Cir. 2007)).
Avago raises two main issues on appeal: (1) that the
Board’s findings that Baldwin teaches limitations [1c] and
[1d] are not supported by substantial evidence; and (2) that
the Board erred by refusing to decide whether claim 1 re-
quires limitation [1c] to be performed before limitation
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[1d]. Netflix’s cross-appeal challenges the Board’s findings
that claims 6, 8, 11, and 17 were not shown to be unpatent-
able and that Netflix failed to demonstrate a motivation to
combine Cooper and Baldwin. We address each argument
in turn.
I
Avago’s main argument is that the Board’s findings
that Baldwin teaches limitations [1c] and [1d] are not sup-
ported by substantial evidence. We disagree.
Limitations [1c] and [1d] are reproduced below:
[1c] receiving, by the receiver, a plurality of
video information streams, each of which
represents the requested unit of video in-
formation;
[1d] identifying, by the receiver, which of
the plurality of video information streams,
when processed, is expected to result in a
lower latency in presenting the unit of
video information.
’014 patent claim 1. The Board found that Baldwin teaches
“that its receiver can concurrently receive a plurality of
streams and select one of those streams to reduce latency
of presentation.” J.A. 18 (citing Baldwin col. 6 ll. 25–33).
On appeal, Avago primarily disputes the Board’s fac-
tual findings that Baldwin discloses that the receiver re-
ceives a plurality of streams and identifies which of the
plurality of streams is expected to result in lower latency,
i.e., limitations [1c] and [1d]. For example, Avago argues
that “[i]n Baldwin’s multicast system, the server transmits
multiple streams, but a specific receiver only receives a sin-
gle stream.” Appellant’s Br. 46. Avago also argues that
Baldwin teaches that the server, not the receiver, selects
the lower-latency stream. See Appellant’s Br. 55–56; see
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also Appellant’s Reply Br. 23–25. The Board’s reading of
Baldwin is supported by substantial evidence.
Relevant to Avago’s argument that Baldwin does not
disclose the receiver receiving a plurality of streams, Bald-
win states: “By sending multiple different streams, tuning
time is improved because the receiver may select one of the
lead-in streams to play. The one selected will typically be
the one which will be ready to be presented the quickest
after the time at which the user tunes.” Baldwin col. 9 ll.
24–28 (emphasis added). Thus, according to the Board,
“Baldwin provides a straightforward, express disclosure of
‘sending multiple streams’ to a receiver and allowing the
receiver to select from those streams.” J.A. 19; see also J.A.
18–19 (citing Baldwin col. 9 ll. 24–28). The Board also
found that Baldwin’s disclosure that the “alternative trans-
missions ‘need not be sent concurrently to a particular re-
ceiver’” further supports its finding that Baldwin teaches
sending multiple streams to the receiver. J.A. 19 (quoting
Baldwin col. 9 ll. 29–33 (emphasis added)). The Board rea-
soned that “by stating that the streams do not have to be
sent concurrently, Baldwin further teaches or reasonably
suggests that alternative streams can be sent concurrently
to a receiver.” J.A. 19 (emphasis in original). Avago has
not demonstrated that these findings lack substantial evi-
dence.
As to Avago’s argument that Baldwin does not disclose
the receiver identifying which of the plurality of streams is
expected to result in lower latency, Avago maintains that
Baldwin’s Figures 5 and 6 “establish that Baldwin’s server
identifies the lower latency stream, not the receiver.” Ap-
pellant’s Br. 55. The Board also rejected this argument. It
found that “the fact[] that Baldwin might also teach that a
server can select a stream and transmit only one stream
does not negate the plain teachings of Baldwin.” J.A. 19.
The Board also found that “Baldwin expressly teaches
sending multiple streams of the same content with stag-
gered RAPs so that the receiver can receive the multiple
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streams and identify the stream that is expected to result
in reduced latency.” J.A. 19. Thus, Avago has not shown
that the Board’s findings are not supported by substantial
evidence.
II
Next, we address Avago’s argument that the Board
erred by refusing to decide whether claim 1 requires limi-
tation [1c] to be performed before limitation [1d].
The Board found that there was no need to reach
Avago’s proposed sequential-order construction for two
main reasons. First, the Board determined that Avago did
“not sufficiently explain why the claim should be inter-
preted in this way,” i.e., that claim 1 requires limitation
[1c] to be performed and completed before limitation [1d].
Second, the Board found that “we need not decide this [se-
quential-order construction] issue because we determine
Baldwin teaches or reasonably suggests performing the
steps in [Avago’s] proposed order.” J.A. 19 n.6.
Because we determine that substantial evidence sup-
ports the Board’s finding that Baldwin teaches limitations
[1c] and [1d] performed in Avago’s proposed order, we see
no error in the Board’s decision to not reach Avago’s se-
quential-order construction.
We have considered Avago’s remaining arguments and
find them unpersuasive. For the foregoing reasons, we af-
firm the Board’s findings that claims 1, 3–5, 7, 9–10, 12,
14–16, and 18–20 are unpatentable.3
3 Avago does not advance separate arguments for
claims 3–5, 7, 9–10, 12, 14–16, and 18–20, which the Board
found unpatentable as obvious. Thus, because we affirm
the Board’s finding that claim 1 is unpatentable, we also
affirm the Board’s findings that claims 3–5, 7, 9–10, 12, 14–
16, and 18–20 are unpatentable.
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III
Last, we address Netflix’s cross-appeal. Netflix argues
that the Board’s finding as to dependent claims 6, 8, 11,
and 17 should be vacated and remanded for the Board to
address Netflix’s motivation-to-combine arguments con-
cerning the combination of Cooper and Baldwin. We agree.
In its petition, Netflix argued that a person of ordinary
skill in the art would have been motivated to combine
Cooper and Baldwin, J.A. 70–75, and relied on Cooper to
teach the additional limitations found in dependent claims
6, 8, 11, and 17, see J.A. 106–16, 121–22. The Board found
that Cooper alone teaches all the limitations of claim 1, ex-
cept for limitation [1d]. J.A. 13–16. Specifically, it found
that “Cooper does not teach that its receiver identifies
which of two streams is expected to result in a lower la-
tency, as required by limitation [1d].” J.A. 13. The Board
also found that it was “not persuaded” by Netflix’s “argu-
ment that a person of ordinary skill in the art would have
been motivated to combine Cooper and Baldwin to yield the
subject matter recited by the challenged claims.” J.A. 9.
The Board explained that “it is not clear how or where [Net-
flix] relies on the proposed combination to satisfy any spe-
cific claim limitations.” J.A. 9. As a result, the Board found
that because Netflix “has not shown that [the] independent
claims . . . are unpatentable in view of Cooper alone or
based on the combined teachings of Cooper and Baldwin,
[Netflix] has not shown that [the] dependent claims [6, 8,
11, and 17] are unpatentable in view of Cooper alone or
based on the combined teachings of Cooper and Baldwin.”
See J.A. 25; see also J.A. 27, 30.
The problem with the Board’s conclusion is that it fails
to reach or provide any substantive analysis of Netflix’s
motivation-to-combine arguments. In its petition, Netflix
provided a detailed explanation of why a person of ordinary
skill in the art would have been motivated to combine
Cooper’s receiver teachings with Baldwin’s teachings of
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providing alternative streams with staggered access points
and selecting the stream with the next available access
point. See J.A. 70–75. Netflix explained that a person of
ordinary skill in the art would have combined the two
prior-art references according to known methods to yield
predictable results “because both teach video receivers that
receive alternative streams representing content selected
by a viewer.” J.A. 72; see also J.A. 71. Netflix also argued
that combining these two prior-art references is a “‘simple
substitution of one known element’ (e.g., Baldwin’s teach-
ing of identifying which stream has the next available ac-
cess point) for another (e.g., Cooper’s teaching of
identifying which stream is more readily available) to ob-
tain predictable results.” J.A. 73. Last, Netflix explained
that “[i]mplementing Baldwin’s teaching of identifying
which stream has the next available access point repre-
sents a choice from a finite number of identified predictable
solutions with a reasonable expectation of success.” J.A.
74. Despite Netflix raising these motivation-to-combine ar-
guments, the Board did not substantively address Netflix’s
arguments or provide any explanation as to why a person
of ordinary skill in the art would not have been motivated
to combine Cooper and Baldwin. See J.A. 8–10.
We also disagree with the Board that “it is not clear
how or where [Netflix] relies on the proposed combination
to satisfy any specific claim limitations.” J.A. 9. Netflix’s
petition clearly argued that the combination of Cooper and
Baldwin is necessary to meet limitation [1d] should the
Board find that Cooper does not teach limitation [1d]. Net-
flix’s petition stated:
To the extent that [Avago] argues that the forego-
ing teachings of Cooper relating to a receiver that
identifies which of the multiplexed packet streams
is not time-delayed does not render limitation [1d]
obvious, then a [person of ordinary skill in the art]
would have found it obvious for Cooper and
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Baldwin to teach this limitation based on Baldwin’s
teachings.
J.A. 89. Accordingly, we vacate the Board’s determination
as to claims 6, 8, 11, and 17 and remand for the Board to
address (1) Netflix’s motivation-to-combine arguments for
the combination of Cooper and Baldwin in view of the
Board’s finding that Cooper does not teach limitation [1d];
and (2) whether Cooper teaches the additional limitations
found in dependent claims 6, 8, 11, and 17. See Cross-Ap-
pellant’s Br. 52, 63.
C ONCLUSION
For the foregoing reasons, we affirm the Board’s deter-
mination as to claims 1, 3–5, 7, 9–10, 12, 14–16, and 18–20
of the ’014 patent. We vacate and remand the Board’s de-
termination as to claims 6, 8, 11, and 17 of the ’014 patent
for further proceedings consistent with this opinion.
AFFIRMED AS TO THE MAIN APPEAL; VACATED
AND REMANDED AS TO THE CROSS-APPEAL
C OSTS
Costs to Netflix.
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