Avago Technologies International Sales Pte. Limited v. Netflix, Inc.

N OTE: This disposition is nonprecedential.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.,
Appellee
______________________
2022-2147
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2021-
00303.
______________________
Decided: April 12, 2024
______________________
D AN YOUNG, Quarles & Brady LLP, Littleton, CO, ar-
gued for appellant. Also represented by K ENT D ALLOW ;
CHAD K ING, King IAM LLC, Lone Tree, CO.
HARPER BATTS , Sheppard Mullin Richter & Hampton
LLP, Menlo Park, CA, argued for appellee. Also repre-
sented by J EFFREY L IANG, CHRISTOPHER SCOTT P ONDER.
______________________
Case: 22-2147 Document: 39 Page: 1 Filed: 04/12/2024

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AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LTD. v.
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Before T ARANTO, STOLL , and STARK, Circuit Judges.
T ARANTO, Circuit Judge.
In December 2020, Netflix, Inc. filed a petition seeking
an inter partes review (IPR) of claims 1–14 and 16–19 of
U.S. Patent No. 8,270,992, which is undisputedly owned by
Avago Technologies International Sales Pte. Ltd. as as-
signee. Upon institution and conduct of the IPR, the Pa-
tent Trial and Appeal Board issued a final written decision
holding claims 1–13 and 16–18 unpatentable for obvious-
ness under 35 U.S.C. § 103. Netflix, Inc. v. Avago Technol-
ogies International Sales Pte. Ltd., No. IPR2021-00303,
2022 WL 2190436 (P.T.A.B. June 17, 2022) (Decision).
Avago, which asserts the ’992 patent in a pending suit
against Netflix, appeals the Board’s decision. We have ju-
risdiction under 28 U.S.C. § 1295(a)(4)(A). We affirm.
The ’992 patent teaches methods and systems for
switching sources and, relatedly, network connections that
are furnishing content to a user. In particular, if a user is
receiving digital media content from a first source, the pa-
tent calls for the user to instead receive that content from
a second source when the network connection with the sec-
ond source enables furnishing that content at a “higher
quality level” to the user. See ’992 patent, col. 1, line 58,
through col. 2, line 44. Claim 1 is representative:
1. In a portable system, a method for providing a
digital media service to a user, the method compris-
ing:
delivering digital media content having a
current quality level to a user;
determining that a network connection
with a second system is available and is
characterized by a communication band-
width that is high enough to provide the
digital media content to the user at a
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AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LTD. v.
NETFLIX , INC.
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quality level higher than the current quality
level;
using the network connection to obtain the
digital media content at the higher quality
level from the second system; and
delivering the digital media content at the
higher quality level to the user instead of
the digital media content at the current
quality level.
Id., col. 26, lines 29–43 (emphases added).
This appeal involves the meaning of the quality-level
claim terms, in phrases that refer to delivering, providing,
or obtaining digital media content having or at a “current
quality level” or a “higher quality level.” Explaining,
among other things, that “the claim language itself de-
scribes the digital media content’s quality level in terms of
its delivery,” the Board rejected Avago’s contention that
the quality-level terms are “limited to the quality of the
digital media content independent of any network consid-
erations.” Decision, at *5. Avago challenges the Board’s
claim-construction determination, asserting that the
claimed quality levels refer only to the quality level of the
digital media content at the source, before and independent
of any transmission-related degradation in quality due to
network-based effects. See Avago Opening Br. at 33–34,
37. The Board’s claim construction rested solely on the
claim language and other intrinsic evidence, so we review
it de novo. See Polaris Innovations Ltd. v. Brent, 48 F.4th
1365, 1372 (Fed. Cir. 2022).
We agree with the Board that the quality-level terms
concern quality level as the content is delivered to the user,
which may well be affected by transmission properties, and
we affirm on that basis. First, the claim language specifies
(1) digital media content “having a current quality level”
during the step of “delivering” that content “to a user,” (2)
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high enough bandwidth “to provide the digital media con-
tent to the user at a quality level higher than the current
quality level,” (3) “obtain[ing]” digital media content “at the
higher quality level,” and (4) “delivering the digital media
content at the higher quality level to the user.” ’992 patent,
col. 26, lines 29–43 (emphases added). That language is
concerned with the quality level of the content as received
by the user, not merely with the content quality as stored
at the source. Second, the claim language encompasses
digital media services that stream content for real-time
consumption by a user. See id., col. 3, lines 15–24 (defining
a “service” as, among other things, comprising “an audio
output service” or “a video output service”); see also J.A.
495–96, col. 1, line 17, through col. 3, line 44 (providing
background information on streaming services). And the
claim’s reference to high-enough bandwidth confirms that
network-transmission properties may affect the content
quality level as that content is consumed by a user in real
time. See ’992 patent, col. 6, lines 19–30 (stating that de-
livery-related issues can render what would otherwise be
“high quality information” of “little value” when “access . . .
over a communication network . . . is slow or unreliable”);
cf. id., col. 4, lines 31–38 (listing the “rate at which such
information may be accessed” as one metric by which the
quality level of a digital media service might be deter-
mined). Overall, the claim language focuses on the as-re-
ceived quality of the content, and that focus implies that
the claimed quality levels need not be independent of any
transmission- or delivery-related effects.
With respect to other intrinsic evidence, Avago relies
principally on the prosecution history. Avago Opening Br.
at 39–48. (It relies also on passages from the specification,
id. at 48–53, but the passages do not go beyond reciting
non-limiting examples.) We agree with the Board that the
prosecution history, see J.A. 168–76, does not justify the
construction Avago urges.
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In the prosecution history, the examiner-cited prior art
was distinguished by reference to the absence of a “second
system” in that prior art (which taught changing links to
an unchanged source), with the applicant arguing that the
lack of such a second system meant that the prior art
“necessar[ily]” failed to disclose “delivering the digital me-
dia content at the higher quality level to the user” from that
second system. J.A. 175 (emphasis added). Claim lan-
guage was changed to require such a “second system.” J.A.
168. That change exhausts the ultimate significance of the
prosecution history, and Avago does not contend that the
“second system” language calls for its proposed construc-
tion. Rather, Avago relies on another change in the claim
language—replacement of references in the body (but not
the preamble) to a digital media “service” with references
to digital media “content.” J.A. 168–73. But we, like the
Board, find that change not to call for adoption of the qual-
ity-level constraint that Avago now seeks to impose, be-
cause that constraint is not fairly found in the resulting
claim language and the argument that Avago made to the
examiner does not require that constraint. See Decision, at
*5 (concluding that “neither the amendment nor the re-
lated arguments exclude network-related effects on the
quality levels of delivered digital media content”).
Avago’s additional arguments depend on its claim-con-
struction position. Having rejected that position, we affirm
the Board’s decision.
AFFIRMED
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