- Kia Corp. / Toyota Motor Corp. v. Emerging Automotive LLCSome claims unpatentablePTAB · Jan 26, 2026 · IPR2024-01167 · APJ Georgianna W Braden · IPR · Final written decision
Claims 1–5 and 7–21 are unpatentable over Kleve-based grounds; claim 6 was not shown unpatentable because the record did not support obviousness of key sharing.
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“Here, Petitioner asserts a person of ordinary skill in the art would have “had at least a four-year undergraduate degree in electrical engineering, automotive engineering, or a closely related field and at least two years of experience in the field of access control systems, vehicle electronics, and/or cryptography.” Pet. 8–9 (citing Ex. 1004 ¶ 85). Dr. Almeroth supports Petitioner’s position and further testifies that “[a]dditional education could substitute for professional experience and vice versa.” Ex. 1004 ¶ 85. Patent Owner does not assert a different level of skill in the art at the time of the alleged invention and appears to apply Petitioner’s proposed level of skill. See PO Resp. Patent Owner’s declarant, Dr. Malek, explicitly adopts Dr. Almeroth’s level of skill in the art but states that his opinions would be applicable under any reasonable definition for an ordinarily skilled artisan at the critical time. See Ex. 2021 ¶ 38. For the purposes of this Decision, we too adopt Petitioner’s level of ordinary skill in the art because it appears consistent with the problems addressed in the ’659 patent and the prior art of record.” slip op. at 12
- Expert testimonyPetitioner expert creditedPatent owner expert discountedMixed
“We do not agree with Patent Owner’s argument that Dr. Almeroth’s declaration testimony contradicts Kleve. See PO Resp. 27–29. Rather, as discussed previously, we find that Kleve’s vehicle owner can set a restriction, such as the rental start period, prior to step 214 in Kleve’s Figure 2 and that such restrictions can be associated with the e-key. We also do not agree with Patent Owner’s argument that (1) Dr. Almeroth’s declaration testimony contradicts his deposition testimony or that (2) Dr. Almeroth “admitted his testimony was wrong.” See PO Sur-Reply 7 (citing PO Resp. 47–48 (citing Ex. 2022, 27:5–10, 27:21–28:1; Ex. 2021 ¶ 96)). In a particular embodiment to which Dr. Almeroth was citing, he noted that the e-key is always generated after the rental agreement. See Ex. 2022, 26:14– 20. Then the following exchange occurs: Q. So you use typically and always. So always does not refer to all of the embodiments of Kleve, is that fair? A. I think a person of skill in the art could read Kleve and understand that there are probably multiple ways in which the flow of actions among the parties could occur. And I think thinking about a real world scenario, in most cases you have an agreement before you would generate an eKey, but maybe, maybe not. I don’t -- I don’t know that the real world is necessarily cut and dry. So reading -- a person reading Kleve would understand it’s describing embodiments where it’s scenario, but I don’t know that it would necessarily be a hard and fast rule in every embodiment or in the understanding a person of skill in the art would have. Id. at 28:3–20. There is nothing in the deposition testimony by Dr. Almeroth that appears inconsistent with his declaration testimony nor does there appear to be the kind of admission touted by Patent Owner. Instead, it is Dr. Malek who takes an overly narrow view of Kleve that appears inconsistent with Kleve’s disclosure when read as a whole. See, e.g., Ex. 2021 ¶¶ 82–88. Therefore, we do not credit or agree with Dr. Malek’s testimony that Kleve fails to teach the concept of a virtual key created with the agreed-upon rental period as a restriction. See id. ¶ 57. Thus, based on the entire trial record, we find that Petitioner has” slip op. at 33
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundReasonable expectation foundDecided for petitioner
“After review of the arguments and evidence, we agree with Petitioner’s position. Specifically, we agree that (1) both Kleve and Hatton are directed to use of electronic key systems for vehicles (see Ex. 1005 ¶¶ 7– 9, 39, 63; Ex. 1008, 1:48–52, 1:61–2:2, 5:25–34) and (2) encrypted communications would have been understood to be effective in preventing unauthorized access to the vehicle, something that is taught explicitly by Hatton (see Ex. 1008, 9:50–63). Given these disclosures by Kleve and Hatton, we find that a person of ordinary skill in the art would have had a at the challenged claims. Accordingly, we find that a person of ordinary skill in the art at the critical time would have had a reason to combine the teachings of Kleve with that of Hatton.” slip op. at 36
- Obviousness (§103) › Motivation to combine / reasonable expectation of success › HindsightNot shown unpatentableNot shown unpatentable
“We agree with Patent Owner. Petitioner’s argument appears to be purely hindsight analysis based on the teachings of the ’659 patent and the limitations of challenged claim 6 because there is insufficient evidence or teachings in the cited prior art to suggest the sharing of virtual keys. Petitioner’s argument that having “rental microbusiness” implemented as a “smart phone application” that enables sharing virtual keys is insufficient to show obviousness, because, as noted by Patent Owner, certain embodiments in Kleve appear to discourage or even hinder the sharing of virtual keys. These embodiments require the use of credentials associated with the virtual key, where the credentials can be “facial recognition, voice print recognition, matrix barcode (ex. two-dimensional code), code word or phrase for speech recognition, temporary mobile web login IDs and password, or other types service.” See Ex. 1005 ¶ 37. Dr. Almeroth testifies that multiple people could be authorized on the same vehicle if they collectively rent a vehicle and that a person of ordinary skill in the art would “have been motivated to enable each user to share the virtual key with other authorized users associated with the same rental request.” Ex. 1004 ¶ 55. But given Kleve’s disclosure that the system handles key generation and distribution (Ex. 1005 ¶ 39), the evidence does not show that a person of ordinary skill in the art would have wanted to give this control to each authorized user who has received an e-key. “It is impermissible to use the claimed invention as an instruction manual or ‘template’ to piece together the teachings of the prior art so that the claimed invention is rendered obvious.” Fritch, 972 F.2d 1260, 1266 (Fed. Cir. 1992) (citing In re Gorman, 933 F.2d 982, 987 (Fed. Cir. 1991)). Kleve’s teachings undermine Petitioner’s position, and do not support a finding of obviousness. Accordingly, we determine that Petitioner has not demonstrated by a preponderance of the evidence that Kleve alone or in combination with Hatton would have rendered dependent claim 6 obvious to a person of ordinary skill in the art at the critical time.” slip op. at 39
Patent outcomesUS 11,738,659 mixed§ 103 obviousnesscites Phillips · GrahamPatents in suitUS 11,738,659 - PTAB · Jan 14, 2026 · IPR2025-00632 · APJ Mitchell G Weatherly · IPR · Remand
On remand, the Board reinstituted review of all challenged claims on all grounds after finding Petitioner sufficiently explained its differing claim-construction positions.
RulingsRemand decision- PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)InstitutedInstituted
“Id. The Director neither addressed the merits of Petitioner’s challenges nor found that our prior consideration of those merits was faulty. Accordingly, we understand that we need not reconsider our conclusion that Petitioner had demonstrated a reasonable likelihood of proving that claims 1, 2, 7–9, 11, 12, and 20–24 were unpatentable or that the merits of patentability set forth in the Petition warranted institution of inter partes review.” slip op. at 5
- BurdenDecided for petitioner
“The question before us, therefore, is whether the Petitioner’s proffered explanation that it has proposed a different claim interpretation before the Board because the District Court may decline to adopt the narrower claim interpretations it advocates there is sufficient. We find that Petitioner’s explanation is sufficient because it follows the Director’s exemplary logic. Whether a district court has already or might in the future decline to adopt constructions that a petitioner proposes in related district court litigation merely reflects the timing of when a dispute over claim interpretation will be resolved. The Director and Patent Owner both recognize that, to resolve the dispute over claim interpretation that exists here, a decision-maker must determine “a single claim construction that best captures the true meaning of the patent claim.” Remand 4; PO Remand Br. 3. Based on the record presented by the parties to date in this proceeding, no dispute exists that the disputed claim terms mean what Patent Owner says they mean in the Litigation. Accordingly, we find that, at this stage of the proceeding, it is undisputed that Patent Owner’s interpretations of the claim terms represent the “single claim construction that best captures the true meaning of the patent claim.”8 Under that claim interpretation, we” slip op. at 8
NonePatents in suitUS 11,835,421 - Boe Technology Group Co., Ltd. v. Optronic Sciences LLCAdverse judgmentPTAB · Jan 12, 2026 · IPR2024-01134 · APJ Thu A Dang · IPR · Adverse judgment
The Board denied Patent Owner’s termination request and granted adverse judgment after it disclaimed the entire patent, leaving no claims in the trial.
RulingsAdverse judgment- Adverse judgmentAdverse judgmentGranted
“C.F.R. § 42.73(b), a party may request judgment against itself at any time during a proceeding. “Actions construed to be a request for adverse judgment include: . . . [c]ancellation or disclaimer of a claim such that the party has no remaining claim in the trial.” 37 C.F.R. § 42.73(b)(2). “The application of the [adverse judgment] rule on its face does not turn on the patentee’s characterization of its own request.” Arthrex, Inc. v. Smith & Nephew, Inc., 880 F.3d 1345, 1349 (Fed. Cir. 2018). In this case, Patent Owner’s disclaimer of the entire term of the ’733 patent leaves no claims remaining in the trial. Although Patent Owner argues that entry of adverse judgment “has negative effects that would discourage Patent Owner from making efforts to streamline the issues” (PO Sur-reply 1–2), we deem such argument not a persuasive reason as to why we should not apply § 42.73(b)(2), or why termination is more appropriate. Therefore, pursuant to 37 C.F.R. § 42.73(b)(2), we construe Patent Owner’s disclaimer as a request for adverse judgment, which we grant.” slip op. at 3
NonePatents in suitUS 9,406,733 - Boe Technology Group Co., Ltd. v. Optronic Sciences LLCAdverse judgmentPTAB · Jan 12, 2026 · IPR2024-01315 · APJ Kevin W Cherry · IPR · Adverse judgment
The Board denied Patent Owner’s termination request and entered adverse judgment after Patent Owner disclaimed all challenged claims, leaving no claims in the trial.
RulingsAdverse judgment- Adverse judgmentAdverse judgmentGranted
“C.F.R. § 42.73(b), a party may request judgment against itself at any time during a proceeding. “Actions construed to be a request for adverse judgment include: . . . [c]ancellation or disclaimer of a claim such that the party has no remaining claim in the trial.” 37 C.F.R. § 42.73(b)(2). “The application of the [adverse judgment] rule on its face does not turn on the patentee’s characterization of its own request.” Arthrex, Inc. v. Smith & Nephew, Inc., 880 F.3d 1345, 1349 (Fed. Cir. 2018). In this case, Patent Owner’s disclaimer of claims 1 and 3 of the ’477 patent leaves no claims remaining in the trial. Although Patent Owner argues that entry of adverse judgment “has negative effects that would discourage Patent Owner from making efforts to streamline the issues” (PO Sur-reply 1–2), we deem such argument not a persuasive reason as to why we should not apply § 42.73(b)(2), or why termination is more appropriate. Therefore, pursuant to 37 C.F.R. § 42.73(b)(2), we construe Patent Owner’s disclaimer as a request for adverse judgment, which we grant.” slip op. at 3
NonePatents in suitUS 8,158,477 - Arashi Vision (U.S.) LLC (D/B/A Insta360) v. Gopro, Inc.No claims unpatentablePTAB · Dec 10, 2025 · IPR2024-01186 · APJ Brian D Range · IPR · Final written decision
Claims 1–20 were not shown unpatentable because Kwatra does not teach or suggest minimizing rotational velocity and acceleration as required by the claims.
RulingsFinal written decision- Skill levelSkill level petitioner adoptedDecided for petitioner
“Petitioner contends that a person of ordinary skill in the art (POSITA) would have the following characteristics: “a bachelor’s degree in engineering or computer science, or equivalent field, and two years of experience working on image or video processing or digital cameras.” Pet. 6 (citing Ex. 1002 ¶¶ 36–37). Petitioner states that, “[a]lternatively, a POSITA would have four years of experience working on image or video processing 6 Patent Owner asserts objective evidence of nonobviousness. Prelim. Resp. 19–27. or digital cameras.” Id. Petitioner further contends “[a]n advanced graduate degree in the disciplines cited above may make up for the work experience indicated above.” Id. Patent Owner does not dispute the level of ordinary skill in the art. Prelim Resp. 14–15. For purposes of this Decision, we adopt Petitioner’s proposal as reasonable and consistent with the ’894 patent specification and the prior art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (the prior art may reflect an appropriate level of skill in the art).” slip op. at 10
- Claim Construction › Threshold & procedure › Whether a term needs construction (O2 Micro)No construction neededDecided for patent owner
“Petitioner “does not believe any terms require a formal construction.” Pet. 6. Patent Owner agrees “no claim terms presently require construction to resolve any current dispute between the parties.” PO Resp. 15. We do not discern a need to construe explicitly any claim language at this juncture because doing so would have no effect on our analyses below of Petitioner’s asserted grounds and will not assist in resolving the present controversy between the parties. See Realtime Data, LLC v. Iancu, 912 F.3d 1368, 1375 (Fed. Cir. 2019) (“The Board is required to construe ‘only those terms . . . that are in controversy, and only to the extent necessary to resolve the controversy.’”) (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).” slip op. at 11
- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)Not shown unpatentableNot shown unpatentable
“Kwatra teaches, at Equation 7, minimizing velocity and acceleration of a function representing camera path (P). FF ¶¶ 6, 8–9. Kwatra does not state that this camera path function considers rotation. Rather, the words “camera path” suggest x, y, z movement of the camera rather than rotation of the camera. Dr. Foroosh’s testimony that Kwatra’s minimization of a smoothed camera path does not result in minimizing rotational velocity and acceleration is credible because this testimony is consistent with Kwatra as a whole and consistent with the other evidence of record. Id. ¶ 10. Kwatra recognizes that image rotation angle (“θ”) may not remain smooth. Id. ¶ 12. But rather than attempting to minimize velocity and acceleration of rotation of the camera housing, Kwatra states that applying a smoothness constraint on rotation angle “may be non-linear.” Id. ¶ 13. Consistent with Kwatra, Dr. Foroosh credibly explains the difficulty of applying linear techniques to rotation. Id. Thus, Kwatra proposes instead constraining the sine and cosine of theta. Id. ¶ 14. The Kwatra provisional application is part of the Kwatra reference (id. ¶ 15), and it similarly opts for simpler schemes rather than estimating all parameters for all frames jointly. Id. ¶ 16. The provisional explains that the rotational component is relatively small such that non-linear computations minimizing velocity and rotation can be avoided. Id. ¶¶ 17–18. The testimony of Patent Owner’s witness, Dr. Foroosh, explaining the provisional is credible (Ex. 2018 ¶ 72) because it is consistent with Kwatra’s complete disclosure. Dr. Foroosh’s testimony is more credible than the testimony of Petitioner’s witness, Dr. Katsaggelos, because Dr. Katsaggelos did not review the Kwatra provisional application and, thus, did not review the entire disclosure of Kwatra. Id. ¶ 19; see also In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc) (obviousness analysis considers whether “the claimed inventions are rendered obvious by the teachings of the prior art as a whole” (emphasis added)).” slip op. at 28
- Expert testimonyPatent owner expert creditedPetitioner expert discountedDecided for patent owner
“(id. ¶ 15), and it similarly opts for simpler schemes rather than estimating all parameters for all frames jointly. Id. ¶ 16. The provisional explains that the rotational component is relatively small such that non-linear computations minimizing velocity and rotation can be avoided. Id. ¶¶ 17–18. The testimony of Patent Owner’s witness, Dr. Foroosh, explaining the provisional is credible (Ex. 2018 ¶ 72) because it is consistent with Kwatra’s complete disclosure. Dr. Foroosh’s testimony is more credible than the testimony of Petitioner’s witness, Dr. Katsaggelos, because Dr. Katsaggelos did not review the Kwatra provisional application and, thus, did not review the entire disclosure of Kwatra. Id. ¶ 19; see also In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en banc) (obviousness analysis considers whether “the claimed inventions are rendered obvious by the teachings of the prior art as a whole” (emphasis added)).” slip op. at 28
Patent outcomesUS 10,574,894 not shown unpatentableClaim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 10,574,894 - PTAB · Dec 9, 2025 · IPR2025-00756 · APJ Thu A Dang · IPR · Institution
The Board instituted IPR on claims 1, 2, 5–8, 11, and 12 on three §103 grounds, finding a reasonable likelihood of unpatentability over the asserted combinations.
RulingsInstitution decision- PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)InstitutedInstituted
“III. CONCLUSION Because we determine that Petitioner has demonstrated a reasonable likelihood that it would prevail in showing at least one of the challenged claims is unpatentable, we institute inter partes review as to all challenged claims and grounds presented in the Petition. At this stage of the proceeding, we have not made a final determination as to the patentability of any of these challenged claims. ORDER For the reasons given, it is ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review is instituted as to claims 1, 2, 5–8, 11, and 12 of the ’803 patent to determine whether: 1) claims 1, 5–7, 11, and 12 are unpatentable under 35 U.S.C. § 103 as obvious over TS 36.300, TS 36.321, and TS 36.331; 2) claims 1, 2, 5–8, 11, and 12 are unpatentable under 35 U.S.C. § 103 as obvious over Ericsson and TS 25.331; and 3) claims 5, 6, 11, and 12 are unpatentable under 35 U.S.C. § 103 as obvious over Ericsson, TS 25.331, and Sebire; and” slip op. at 27
- Claim Construction › Intrinsic evidence (Phillips canons) › Plain and ordinary meaning to a POSITATerm construed board ownDecided for petitioner
“ordinary meaning, “primary” and “non-primary” cells are all cells that the WTRU is connected to (PO Resp. 16), the plain language in claim 1, and similarly in claim 7, does not require a “primary” node or “non-primary” cell to have a connection to the WTRU. See Ex. 1001, 10:38−56; 11:11–26. We find unavailing Patent Owner’s contention that the claims require that the WTRU “be connected to more than one cell,” wherein cells that are “associated with a wireless network node,” but are not connected to the WTRU “at the same time” cannot be “primary” or “non-primary” cells. PO Resp. 16. In the ’803 patent, nothing in the Specification clearly limits “primary” and “non-primary” cells as Patent Owner proposes. Prelim. Resp. 16. Patent Owner points to the Specification of the ’803 patent to show that, for softer handover, the WTRU is connected “with more than one cell [] which are controlled by the same Node-B,” and “[o]ne of the[se] cells 808 may be designated as a primary cell 808a, while other cells are designated as a non-primary cells 808b.” Id. (alterations in original) (citing Ex. 1001, 8:44–46, 9:4–6, Figs. 8A–B). However, this portion of the Specification (describing a softer handover embodiment in which a cell “may be designated” as a primary while other as non-primary) does not provide a clear definition to warrant interpreting the “primary” and “non-primary” cells as requiring “connection” to the WTRU “at the same time.” Id. That is, nothing in the Specification clearly precludes “primary” and “non-primary” cells from being “source” and “target” cell, as Patent Owner contends. PO Resp. 16. and the Specification, we determine that the terms “primary” and “non-primary” recited in claims 1 and 7 are not limited to cells connected to a WRTU at the same time. We determine no further explicit construction of this term is necessary to resolve the controversy. See Vivid Techs., 200 F.3d at 803.” slip op. at 8
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundInstituted
“f) Motivation to combine Ericsson and TS 25.331 Petitioner contends that a “POSITA would have been motivated to combine Ericsson and TS 25.331 because they are directed to similar technologies and a skilled artisan would have understood the benefits of combining these two references,” and “would have understood that there was a high likelihood of success in making the combination.” Pet. 34 (citing Ex. 1003 ¶¶ 156–157). In particular, the references “are both reasonably pertinent to the problem faced by the inventor, namely protocols for handover in a telecommunications system.” Id. (citing Ex. 1003 ¶ 158). According to Petitioner, the combination “involves the predictable use of interchangeable prior art elements according to their established functions” more than routine engineering.” Id. at 37 (citing Ex. 1003 ¶ 174). At this stage of the proceeding, Patent Owner does not present arguments in the Preliminary Response addressing the specific merits of Petitioner’s contentions with respect to the motivation to combine Ericsson and TS 25.331. See generally Prelim. Resp. 15–18. We find availing Petitioner’s contention that Ericsson and TS25.331 are “directed to similar technologies,” and that a “skilled artisan would have understood the benefits of combining these two references.” Pet. 34. On this preliminary record, we are persuaded that Petitioner has made a sufficient showing that a POSITA would have had a reason to combine the teachings of Ericsson and TS 25.331.” slip op. at 20
- Skill levelSkill level petitioner adoptedDecided for petitioner
“Petitioner, relying on the testimony of Dr. Kakaes, contends that a person of ordinary skill in the art (POSITA) “would have had a B.S. in Electrical Engineering or a related field with at least three years of experience designing, developing, and/or testing telecommunication systems,” and “would also have familiarity with the wireless standards and well-known protocols for accessing wireless networks existing at the relevant time,” wherein “[m]ore education may supplement practical experience or vice versa.” Pet. 12–13. At this stage in the proceeding, Patent Owner does not contest Petitioner’s proposal or offer an alternative. On this record, we are persuaded that Petitioner’s proposal is consistent with the technology described in the Specification and the cited prior art. For purposes of this Decision, we adopt Petitioner’s proposed level of skill.” slip op. at 10
Claim construction§ 103 obviousnesscites KSR · GrahamPatents in suitUS 10,764,803 - Fubotv Media Inc. / Yanka Industries, Inc. et al. v. DISH Technologies L.L.C.All claims unpatentablePTAB · Dec 5, 2025 · IPR2025-00348 · APJ Karl D Easthom · IPR · Final written decision
Claims 1–21 are unpatentable: claims 1–16 and 18–21 as obvious over Leaning, and claims 2 and 9 as obvious over Leaning and Gamble.
RulingsFinal written decision- Obviousness (§103) › Motivation to combine / reasonable expectation of successUnpatentableMotivation foundUnpatentable
“This argument is misplaced. Petitioner does not propose modifying any of Leaning’s teachings. Rather, Petitioner relies on Leaning’s alternative embodiment (i.e., “employ[ing] a criterion which anticipates underflow and avoids it”). See Ex. 1004, 15:3–6; Pet. 38 (citing and quoting same). Patent Owner acknowledges this fact. See PO Sur-reply 12 (“Leaning proposes an alternative embodiment.”) (citing Ex. 1004, 14:25–15:8)). Accordingly, Petitioner need not show a reasonable expectation of success for implementing an alternative embodiment expressly disclosed in Leaning.10” slip op. at 28
- Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia no nexusDecided for petitioner
“Accordingly, we accord Patent Owner’s evidence little to no weight. v. Unexpected Results Patent Owner argues that the MOVE Media Player “achieved what” slip op. at 65
- ExcludeMotion to exclude, deniedDenied
Patent outcomesUS 8,868,772 unpatentable§ 103 obviousnesscites KSR · GrahamPatents in suitUS 8,868,772 - Fubotv Media Inc. / Yanka Industries, Inc. et al. v. DISH Technologies L.L.C.All claims unpatentablePTAB · Dec 5, 2025 · IPR2025-00347 · APJ Karl D Easthom · IPR · Final written decision
Claims 1–16 are unpatentable as obvious over Leaning or Leaning and Gamble, because Petitioner proved the asserted grounds by a preponderance of the evidence.
RulingsFinal written decision- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundReasonable expectation foundUnpatentable
“argue, that a POSITA would have had a reasonable expectation of success in implementing any of its proposed modifications.” PO Sur-reply 9. This argument is misplaced. Petitioner does not propose modifying any of Leaning’s teachings. Rather, Petitioner relies on Leaning’s alternative embodiment (i.e., “employ[ing] a criterion which anticipates underflow and avoids it”). See Ex. 1004, 15:3–6; Pet. 35–36 (citing same). Patent Owner acknowledges this fact. See PO Sur-reply 11 (“Leaning proposes an alternative embodiment.”) (citing Ex. 1004, 15:3–6). Accordingly,” slip op. at 26
- Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia no nexusDecided for petitioner
“Accordingly, we accord Patent Owner’s evidence little to no weight. v. Unexpected Results Patent Owner argues that the MOVE Media Player “achieved what” slip op. at 58
- Strike new argumentNew argument consideredDenied
“E. Summary on Motion to Strike For the foregoing reasons, we determine that the Motion is partly” slip op. at 107
Patent outcomesUS 9,407,564 unpatentable§ 103 obviousnesscites KSR · GrahamPatents in suitUS 9,407,564 - Fubotv Media Inc. / Yanka Industries, Inc. et al. v. DISH Technologies L.L.C.All claims unpatentablePTAB · Dec 5, 2025 · IPR2024-00919 · APJ Karl D Easthom · IPR · Final written decision
Claims 1–21 are unpatentable as obvious over Leaning, with claims 2 and 9 also obvious over Leaning and Gamble.
RulingsFinal written decision- Obviousness (§103) › Motivation to combine / reasonable expectation of successUnpatentableMotivation foundUnpatentable
“This argument is misplaced. Petitioner does not propose modifying any of Leaning’s teachings. Rather, Petitioner relies on Leaning’s alternative embodiment (i.e., “employ[ing] a criterion which anticipates underflow and avoids it”). See Ex. 1004, 15:3–6; Pet. 38 (citing and quoting same). Patent Owner acknowledges this fact. See PO Sur-reply 12 (“Leaning proposes an alternative embodiment.”) (citing Ex. 1004, 14:25–15:8)). Accordingly, Petitioner need not show a reasonable expectation of success for implementing an alternative embodiment expressly disclosed in Leaning.10” slip op. at 28
- Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia no nexusDecided for petitioner
“proposed combination of Leaning and Gamble teaches all limitations of claims 2 and 9. I find that the added analysis for these claims based on Gamble overcomes the deficiencies in the other ground, including those of the base claim from which they depend. I also differ from my colleagues in how I view secondary considerations of nonobviousness. I find that the developed record of this case does not support that multiple TCP connections or multiple, parallel/simultaneous TCP connections are critical, unclaimed features of the ’772 patent. Indeed, Petitioner does not argue as much, and all challenged claims at least recite multiple TCP connections. Notwithstanding, I would reach the same conclusion as my colleagues that Patent Owner is not entitled to a presumption of nexus. I am persuaded by Petitioner’s argument (Pet. Reply 21–22) that Patent Owner cannot credibly maintain that it is entitled to a presumption of nexus to the same products— the MOVE Media Player and “Sling TV”—across nine patents and 120 claims having different scope while citing to substantially the same alleged evidence of secondary considerations. The MOVE Media Player and “Sling TV” cannot be coextensive with the challenged claims here under these circumstances. In addition, Patent Owner’s own cited evidence suggests that MOVE’s plug-in is a “key” feature of its technology, particularly to ensure “fluidity of playback” (PO Resp. 51–52 (quoting Ex. 2048) (emphasis omitted)), but the claims do not recite a plug-in. This also undermines Patent Owner’s assertions of coextensiveness for claims that all recite “continuous playback.” Otherwise, I agree with my colleagues’ finding that Patent Owner has not adduced significant evidence of direct nexus. Accordingly, I join in my colleagues’ finding that Patent Owner has failed to establish a nexus between the asserted evidence of secondary considerations and the challenged claims. I also agree that Patent Owner’s evidence of secondary considerations is entitled to insignificant weight, or little to no weight, and that it does not outweigh Petitioner’s persuasive obviousness showing under the other Graham factors. Thus, I join in my colleagues’ determination that Petitioner has shown, by a preponderance of the evidence, that claims 2 and 9 would have been obvious over the combination of Leaning and Gamble.” slip op. at 101
- Strike new argumentNew argument disregardedNew argument consideredGranted in part
“E. Summary on Motion to Strike For the foregoing reasons, we determine that the Motion is partly moot and in the remaining part, Patent Owner fails to meet its burden to show that Petitioner improperly switched its theories in the Reply. 31 This raises a different claim construction issue that is unnecessary to decide. F. Order on Motion to Strike The Motion is dismissed in part and denied in remaining parts.” slip op. at 96
Patent outcomesUS 8,868,772 unpatentable§ 103 obviousnesscites KSR · GrahamPatents in suitUS 8,868,772 - Fubotv Media Inc. / Yanka Industries, Inc. et al. v. DISH Technologies L.L.C.All claims unpatentablePTAB · Dec 5, 2025 · IPR2024-00918 · APJ Karl D Easthom · IPR · Final written decision
Claims 1–16 are unpatentable as obvious over Leaning alone or, for claims 9 and 11, over Leaning and Gamble.
RulingsFinal written decision- Obviousness (§103) › Graham factors (scope of art, differences, level of skill)UnpatentableUnpatentable
“argue, that a POSITA would have had a reasonable expectation of success in implementing any of its proposed modifications.” PO Sur-reply 9. This argument is misplaced. Petitioner does not propose modifying any of Leaning’s teachings. Rather, Petitioner relies on Leaning’s alternative embodiment (i.e., “employ[ing] a criterion which anticipates underflow and avoids it”). See Ex. 1004, 15:3–6; Pet. 35–36 (citing same). Patent Owner acknowledges this fact. See PO Sur-reply 11 (“Leaning proposes an alternative embodiment.”) (citing Ex. 1004, 15:3–6). Accordingly,” slip op. at 26
- Obviousness (§103) › Motivation to combine / reasonable expectation of successMotivation foundUnpatentable
“argue, that a POSITA would have had a reasonable expectation of success in implementing any of its proposed modifications.” PO Sur-reply 9. This argument is misplaced. Petitioner does not propose modifying any of Leaning’s teachings. Rather, Petitioner relies on Leaning’s alternative embodiment (i.e., “employ[ing] a criterion which anticipates underflow and avoids it”). See Ex. 1004, 15:3–6; Pet. 35–36 (citing same). Patent Owner acknowledges this fact. See PO Sur-reply 11 (“Leaning proposes an alternative embodiment.”) (citing Ex. 1004, 15:3–6). Accordingly,” slip op. at 26
- Obviousness (§103) › Objective indicia / secondary considerations › NexusObjective indicia no nexusDecided for petitioner
“connections or multiple, parallel/simultaneous TCP connections are critical, unclaimed features of the ’564 patent. Indeed, Petitioner does not argue as much, and claims 2, 9, and 11 all at least recite multiple TCP connections. Notwithstanding, I would reach the same conclusion as my colleagues that Patent Owner is not entitled to a presumption of nexus. I am persuaded by Petitioner’s argument (Pet. Reply 22–23) that Patent Owner cannot credibly maintain that it is entitled to a presumption of nexus to the same products— the MOVE Media Player and “Sling TV”—across nine patents and 120 claims having different scope while citing to substantially the same alleged evidence of secondary considerations. The MOVE Media Player and “Sling TV” cannot be coextensive with the challenged claims here under these circumstances. In addition, Patent Owner’s own cited evidence suggests that MOVE’s plug-in is a “key” feature of its technology, particularly to ensure “fluidity of playback” (PO Resp. 50 (quoting Ex. 2048) (emphasis omitted)), but the claims do not recite a plug-in. This also undermines Patent Owner’s assertions of coextensiveness for claims that all recite “continuous playback.” Otherwise, I agree with my colleagues’ finding that Patent Owner has not adduced significant evidence of direct nexus. Accordingly, I join in my colleagues’ finding that Patent Owner has failed to establish a nexus between the asserted evidence of secondary considerations and the challenged claims. I also agree that Patent Owner’s evidence of secondary considerations is entitled to insignificant weight, or little to no weight, and that it does not outweigh Petitioner’s persuasive obviousness showing under the other Graham factors. Thus, I join in my colleagues’ determination that” slip op. at 111
- Strike new argumentNew argument disregardedNew argument consideredMixed
“E. Summary on Motion to Strike For the foregoing reasons, we determine that the Motion is partly” slip op. at 107
Patent outcomesUS 9,407,564 unpatentable§ 103 obviousnesscites KSR · GrahamPatents in suitUS 9,407,564
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