Before the Patent Trial and Appeal Board

UNITED STATES PATENT AND TRADEMARK OFFICE

______

BEFORE THE PATENT TRIAL AND APPEAL BOARD

______

GOOGLE LLC Petitioner

PERSONALIZED MEDIA COMMUNICATIONS, LLC Patent Owner

______

Case No. IPR2020-00725 U.S. Patent No. 9,674,560

______

PERSONALIZED MEDIA COMMUNICATIONS, LLC’S RESPONSE TO PETITION PURSUANT TO 37 C.F.R. § 42.120

Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

TABLE OF CONTENTS

I. INTRODUCTION ...... 1

II. THE ’560 PATENT AND ITS PROSECUTION HISTORY ...... 1

III. PERSON OF ORDINARY SKILL IN THE ART ...... 5

IV. OVERVIEW OF CITED REFERENCES ...... 6

A. Torpey ...... 6

B. Cox ’645 ...... 7

C. Cox ’404 ...... 9

V. CLAIM CONSTRUCTION ...... 12

VI. INDEPENDENT CLAIM 4 IS PATENTABLE IN VIEW OF TORPEY-COX ’645 ...... 13

A. Introduction ...... 13

C. The Torpey-Cox ’645 Combination Does Not Disclose “A method of communicating . . . , said network including . . . at least one intermediate transmission station, and at least one subscriber station” ...... 18

D. The Torpey-Cox ’645 Combination Does Not Disclose “effecting said at least one intermediate transmission station to control a computer to select a receiver” ...... 20

E. The Torpey-Cox ’645 Combination Does Not Disclose “transmitting said information transmission containing

ii Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

said control signal from said at least one programming origination station to said at least one intermediate transmission station.” ...... 24

VII. COX ’645 IN VIEW OF COX ’404 DOES NOT RENDER CLAIMS 5-10 OBVIOUS ...... 25

A. A POSITA Would Not Combine the Teachings of Cox ’645 and Cox ’404 ...... 25

C. The Cox ’645-Cox ’404 Combination Does Not Disclose, Teach, or Suggest claims 6-8 ...... 35

VIII. THE PETITION SHOULD BE DISMISSED ON CONSTITUTIONAL GROUNDS ...... 38

IX. CONCLUSION ...... 40

iii Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

TABLE OF AUTHORITIES

Cases Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355 (Fed. Cir. 2016) ...... 34 Arthrex, Inc. v. Smith & Nephew, Inc. et al., 941 F.3d 1320 (Fed. Cir. 2019) ...... 39 DSS Tech. Mgmt., Inc. v. Apple Inc., 885 F.3d 1367 (Fed. Cir. 2018) ...... 34 Edmond v. United States, 520 U.S. 651, 117 S. Ct. 1573 (1997) ...... 39 Freytag v. Commissioner, 501 U.S. 868 (1991) ...... 40 K/S HIMPP v. Hear-Wear Techs., LLC, 751 F.3d 1362 (Fed. Cir. 2014) ...... 34 Mintz v. Dietz & Watson, Inc., 679 F.3d 1372 (Fed. Cir. 2012) ...... 35 Morrison, Independent Counsel v. Olsen, 487 U.S. 654 (1988) ...... 40 Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298 (Fed. Cir. 1999) ...... 14 Southwire Co. v. Cerro Wire LLC, 870 F.3d 1306 (Fed. Cir. 2017) ...... 34 United States v. Arthrex Inc., 208 L.Ed.2d 173 (2020) ...... 41

Statutes

35 U.S.C. § 316(a)(8) ...... 1 Other Authorities

Claims in Trial Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018) ...... 12 Regulations

iv Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

37 C.F.R. § 42.120 ...... 1

v Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

I. INTRODUCTION

Pursuant to 35 U.S.C. § 316(a)(8) and 37 C.F.R. § 42.120, Patent Owner

Personalized Media Communications, LLC (“PMC” or “Patent Owner”), respectfully submits this response to Google LLC’s (“Google” or “Petitioner”) petition for Inter Partes Review (“Petition”). As demonstrated below, Petitioner has not established obviousness of the challenged claims. Accordingly, Patent

Owner respectfully asks the Board to find each of the challenged claims patentable.

II. THE ’560 PATENT AND ITS PROSECUTION HISTORY

The ’560 Patent is entitled “Signal Processing Apparatus and Methods” and discloses various embodiments of “[a] unified system of programming communication” to facilitate “user specific mass media.” ’560 Patent, Ex. 1001 at

Abstract. The ’560 Patent discloses “simultaneous generation of user specific information at a plurality of subscriber stations.” Id., col. 6:56-57. With reference to FIG. 1, the ’560 Patent discloses various components of the receiver station.

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Id., FIG. 1. With reference to this figure, the ’560 Patent discloses:

FIG. 1 shows a video/computer combined medium subscriber station. Via conventional antenna, the station receives a conventional television broadcast transmission at television tuner, 215 … The video transmission is inputted to video transmission divider, 4, which is a conventional divider that splits the transmission into two paths. One is inputted continuously to TV signal decoder, 203, and the other to microcomputer, 205. TV signal decoder, 203 … has capacity for receiving a composite video transmission [and] detecting digital information embedded therein … Microcomputer, 205, is a conventional microcomputer system with disk drives that is adapted to have capacity for receiving signals from

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decoder, 203; for generating computer graphic information; for receiving a composite video transmission; for combining said graphic information onto the video information of said transmission by graphic overlay techniques, … and for outputting the resulting combined information to a TV monitor, 202M, in a composite video transmission.

Id., col. 10:51-11:15. Challenged independent claim 4 recites:

4. A method of communicating image programming and computer programming to at least one subscriber in a network, said network including at least one programming origination station, at least one intermediate transmission station, and at least one subscriber station, said method comprising the steps of:

originating an information transmission containing a control signal from said at least one programming origination station designating at least a portion of a programming presentation, which is effective to accomplish:

effecting said at least one intermediate transmission station to control a computer to select a receiver and communicate said at least a portion of said programming presentation to a transmitter, and transmit to said at least

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one subscriber station a signal including said at least a portion of a programming presentation; and

transmitting said information transmission containing said control signal from said at least one programming origination station to said at least one intermediate transmission station.

Id., col. 291:6-26.

Challenged independent claim 5 recites:

5. A method of controlling the display of television programming at a receiver station, wherein said receiver station includes a monitor for displaying television programming, a receiver operatively connected to said monitor, and a processor operatively connected to at least one of said monitor and said receiver, said method comprising the steps of: receiving an information transmission containing a control signal from said origination station at said intermediate transmission station; detecting said control signal at said intermediate transmission station and passing said control signal to a computer; and controlling said intermediate transmission station based on said control signal to: select a portion of said units of programming based on operating records stored at said intermediate transmission station;

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receive said units of programming at said intermediate transmission station; communicate said selected a portion of said-units of programming to a storage location; store said selected a portion of said units of programming at said storage location; and alter said operating records stored at said intermediate transmission station to indicate at least one of reception and storage of said selected a portion of units of programming; and subsequently transmitting said selected a portion of said-units of programming to said at least one subscriber station.

The ’560 Patent, Ex. 1001, col. 291:27 - 292:18.

III. PERSON OF ORDINARY SKILL IN THE ART

The ’560 Patent is addressed to a person with at least a bachelor’s degree (or equivalent) in digital electronics, electrical engineering, computer engineering or a related technical degree, and two to five years of post-degree experience in a similar field. Weaver Decl., Ex. 2001, ¶ 35.

The Board determined (for the purposes of the institution decision) that a person of ordinary skill in the art at the time of the claimed invention would have had a bachelor’s degree in electrical engineering or computer engineering (or equivalent), and at least two years of work experience in the field of television broadcasting systems, computer systems or television electronics, and/or multimedia or real-time video systems. Institution Decision (Paper 13) at 17. The

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Board further determined that with more education, for example, postgraduate degrees and/or study, less experience is needed to attain an ordinary level of skill in the art. Similarly, more experience can substitute for formal education. Id. at

18.

The analysis would be the same under either of these two POSITA levels.

Weaver Decl., Ex. 2001, ¶ 37.

IV. OVERVIEW OF CITED REFERENCES

A. Torpey Torpey discloses a “design of the computer-driven automation package” installed at a broadcasting studio (Torpey, Ex. 1005 at 1):

Id., Fig. 3. Traditionally, a “Preset/Take switcher … allowed the operator to preset a video source on a preview bus, and then by operating a TAKE button, to put this source on air.” Id. at 1. The “operation of this button could be put under automatic control,” automating the operator’s “manual operation of the TAKE

6 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 pushbutton.” Id. “Some of the earlier automated systems used projection readouts for display of video/audio on air, reviews, presets, and also clock time” but

“[t]hese systems were plagued with lamp burn out and large space requirements …

[and] also required a rather elaborate and strange-looking control panel.” Id.

Torpey’s “automated television system can be broken into basic subsystems:

(1) the video/audio switcher with a conventional Manual Control Panel; and (2) the automated control system which operates the switcher, when there is no one to operate the Manual Control Panel.” Id. at 2.

The system of Torpey has a “Card Reader … designed to read standard 80- column punch cards as a means of event entry to the memory.” Torpey goes on to explore “[b]riefly, the potential for expansion of this system approach to performance of more than just video switching including: … Remote

Programming” in which “program scheduling and preparation of each station’s program log can be performed at one central office, and then loaded into each individual computer via data lines.” Id. at 4.

As further explained below, Torpey individually, and in combination, differ significantly from the challenged claims and do not render them obvious.

B. Cox ’645 Cox ’645 discloses a system for transmitting teletext pages from a satellite:

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Cox ’645, Ex. 1006, Fig. 1. In Cox ’645, the satellite transmits teletext pages in

“. . . the vertical blanking interval of a broadcast television signal . . .” to a cable head-end. Id., col. 1:15-16. The satellite data includes several pieces of information embedded in certain rows (not displayed on the TV screen) of a television signal transmitted to the head-end, such as the memory address at which to store the teletext page, and a time interval during which the page can be retransmitted to end users:

The memory page address byte identifies the memory page of the multi-page memory of decoder 22 at which the subsequent teletext page is to be stored while the time-on and time-off codes identify a selected time interval during which it is desired to rebroadcast the stored page from the cable head end facility 12 to the subscriber receivers 16.

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Cox ’645, Ex. 1006, col. 4:25-32. Upon receiving a teletext page, the head-end stores the page in the memory location specified in the transmission. Id.

As Petitioner acknowledges, Cox ’645 does not describe how the teletext page is stored in the page memory at the decoder, stating only that storage occurs

“in a conventional manner.” Id., 5:40–45. Petitioner further suggests that a

POSITA would have turned to knowledge in the art, such as Cox ’404’s disclosure of storing a teletext page in a page memory at a decoder, Cox ’404, Ex. 1007,

5:44–51, 6:4–30, to implement Cox ’645’s teachings.

C. Cox ’404 Cox ’404 discloses “[a] teletext communications system includ[ing] a transmitter cyclically transmitting a plurality of conventional teletext encoded data rows together with one or more teletext encoded special services data rows” (Cox

’404, Ex. 1007 at Abstract):

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Id., Fig. 1. In Cox ’404, “a conventional television signal transmitter … transmit[s] a teletext signal in the vertical blanking interval of a broadcast television signal.” Id., col. 3:22-25.

Cox ’404 disclose the organization of teletext, specifically that teletext is transmitted in pages, each page having 24 rows and each row having 40 characters, and 100 pages are referred to as a magazine.

. . . twenty four rows comprising a page of information with each group of one hundred pages representing a magazine. Each row of information, which represents up to 40 characters of text or graphics data, . . .

Cox ’404, Ex. 1007, col. 1:27-31.

Cox ’404 further discloses that every row in a page contains the magazine and row numbers, but only the first row (row 0) also contains the page number.

Cox ’404, Ex. 1007, Fig. 2.

The user inputs the desired magazine and page codes for acquisition.

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. . . keyboard 42 is operated by the viewer for coupling the selected page number code, together with the magazine number code identifying the magazine in which the desired page is located . . .

Cox ’404, Ex. 1007, col. 5:7-11.

The data acquisition circuit acquires the data selected by the user on the keyboard.

Data acquisition circuit 44, under the control of timing signals received from time base circuit 48 via a conductor 54, acquires or grabs the transmitted data page selected on the keyboard and couples the encoded character Bytes representing the page for storage in page memory 46.

Id., col. 5:12-17.

The system of Cox ’404 then stores the desired teletext data in page memory of a television receiver using row and column address codes:

Page memory 46 contains sufficient memory capacity to store one complete page of acquired teletext data. Thus, the memory, which typically comprises a 1K Byte RAM, can be viewed as a 24 row by 40 column matrix of individually addressable 8 bit memory locations. Each character Byte of a data row acquired by data acquisition circuit 44 is coupled to page memory 46 by a data line 56 and written into a corresponding memory location thereof

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in accordance with the address signals developed on an address bus 58, the address signals being formed by the row address code transmitted with the data row and an internally generated column address code which is incremented in response to each character Byte of the acquired data row.

Id., col. 6:4-17.

* * *

As further explained below, Cox ’404 individually, or in combination with

Cox ‘645, differs significantly from the challenged claims and does not render them obvious.

V. CLAIM CONSTRUCTION

The Board construes these terms “using the same claim construction standard that is used to construe the claim in a civil action in federal district court” and “any prior claim construction determination concerning a term of the claim in a civil action … proceeding will be considered.” 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). The terms appearing in the challenged claims have been construed by the Board in its 2016

Appeal Decision and by the District Court for the Eastern District of Texas

(“District Court”) in an action involving the ’560 Patent between the parties. See

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Claim Construction Order, Ex. 1013; File History of the ’560 Patent, Ex 1002 at

74-90.

The District Court’s construction of the terms appearing in the challenged claims of the ’560 Patent are summarized as follows:

Term Court’s Construction “programming,” as a noun “everything that is transmitted electronically to entertain, instruct, or inform, including television, radio, broadcast print, and computer programming as well as combined medium programming, at least a portion designed for multiple recipients” “programming,” as a verb “providing operating instructions” “units of programming” plain and ordinary meaning, subject to the construction of “programming” “programming origination stations” plain and ordinary meaning “intermediate transmission station” “station that can receive and retransmit broadcast transmissions” “control signal” plain and ordinary meaning “storage location[s]” no construction necessary Claim Construction Order , Ex. 1013 at 87-93.

VI. INDEPENDENT CLAIM 4 IS PATENTABLE IN VIEW OF TORPEY-COX ’645

A. Introduction The Board determined that “Petitioner fails to present sufficient evidence to establish a reasonable likelihood it will prevail in showing that claim 4 would have

13 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 been obvious in view of Torpey and Cox ’645 under 35 U.S.C. § 103.” Institution

Decision, Paper 13, at 40. Unable to establish a reasonable likelihood of prevailing in showing claim 4 would be obvious, on this record, Petitioner did not establish obviousness under a more stringent standard required to render a claim invalid.

Patent Owner restates its arguments with respect to claim 4 from the Preliminary

Response.

B. The Torpey-Cox ’645 Combination Does Not Disclose “A method of communicating image programming and computer programming to at least one subscriber in a network, said network including . . . at least one intermediate transmission station, and at least one subscriber station” As an initial matter, the preamble of claim 4 is limiting. “If the claim preamble, when read in the context of the entire claim, recites limitations of the claim, or, if the claim preamble is ‘necessary to give life, meaning, and vitality’ to the claim, then the claim preamble should be construed as if in the balance of the claim.” Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51

USPQ2d 1161, 1165-66 (Fed. Cir. 1999). Here, the preamble provides antecedent basis for, and recites, several claim limitations that appear in the rest of claim 4, such as “origination station,” “intermediate transmission station,” and subscriber station.” This is not merely a statement of “purpose or intended use for the

14 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 invention,” rather the preamble recites essential structure of the communication method.

Turning to the cited references, neither Torpey nor Cox ’645 disclose “[a] method of communicating image programming and computer programming to at least one subscriber in a network.” In fact, when read carefully, the Petition does not actually allege that either of the references discloses communicating “computer programming” to a subscriber. Instead, the Petition argues that “it would have been obvious to a POSA to use the proposed combination to communicate

‘computer programming.’” Petition at 29. Not so. When discussing the combination in earnest, the Petition itself does not allege that either reference discloses communication of “computer programming” to a subscriber.

Specifically, as shown in the diagrams authored by Petitioner, neither

Torpey’s “Program log” (transmitted from the Central Office to the Network

Television Station) nor Cox ’645’s teletext “Control Data” (transmitted from the

Satellite to the Head End) are received by the subscriber station (e.g., “Subscriber” in Torpey and “Subscriber Receiver” in Cox ’645).

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Petition at 22-23 (emphasis added showing Program log and Control Data are NOT received by the Subscriber [Receiver]). As illustrated by the Petition, only the

“television program” of Torpey and a standard NTSC television signal representative (Cox ’645, Ex. 1006, col. 2:5-14) of the “Stored teletext page” of

Cox ’645 are sent to the subscriber receiver. Thus, by Petitioner’s own arguments, no computer programming makes its way to the subscriber receiver.

The above is also consistent with the Board’s prior discussion of Cox ’645, where the Board relied not on the disclosure of Cox ’645, but on a different reference (Seth-Smith) to find “computer programming executed at a subscriber.”

See File History of the ’560 Patent, Ex. 1002 at 139 (Decision on Appeal).

For the above reasons, neither Torpey nor Cox ’645 disclose “[a] method of communicating image programming and computer programming to at least one subscriber in a network.”

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“station that can receive and retransmit broadcast transmissions.”1 With reference to “broadcast,” the Court stated that “intermediate transmission station” is “defined in the [’560 Patent] with this [point-to-multipoint over-the-air transmission] capability.” Claim Construction Order, Ex. 1013 at 28.

To the extent the Board agrees with the District Court’s claim construction, the cited art further fails to disclose the “intermediate transmitter station” of claim

4. For example, the Petition argues that:

. . . Torpey’s network television station receives and retransmits transmissions of television programs sent

1 For clarity, the District Court held that Google’s proposed construction did not apply to “intermediate transmitter station” which has its plain and ordinary meaning. Claim Construction Order, Ex. 1013 at 30-31 and 88. Accordingly,

Patent Owner’s arguments presented herein do not apply to other Patent Owner patents that may recite an “intermediate transmitter station” in the claims and apply only to the challenged claims of the ’560 Patent, under the Court’s construction of

“intermediate transmission station.”

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over-the-air from one location, Cox ’645’s satellite, to many locations, Torpey’s network television stations (Torpey envisions multiple network television stations, Ex. 1005 at Abstract.).

Petition at 30-31. There is, however, no disclosure of a satellite receiving and retransmitting broadcast transmissions in Torpey. In fact, Petitioner’s own illustration of Torpey’s system, reproduced above, does not show a “station that can receive and retransmit broadcast transmissions.”

As to Cox ’645, the disclosed cable head end is not capable of

“retransmit[ting] broadcast transmissions.” As stated in Cox ’645, and adopted by the Petitioner, Cox ’645 discloses the cable head end facility 12 uses cable 14 to unidirectionally communicate to a plurality of subscriber television receivers 16.

Cox ’645, Ex.1006, col. 3:25-27. Cox ’645 does not show or suggest that the cable head end facility 12 transmits using over-the-air transmission of programming.

In view of the above, neither Torpey nor Cox ’645 disclose “[a] method of communicating . . . , said network including . . . at least one intermediate transmission station, and at least one subscriber station.”

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D. The Torpey-Cox ’645 Combination Does Not Disclose “effecting said at least one intermediate transmission station to control a computer to select a receiver” Neither Torpey nor Cox ’645 disclose “effecting said at least one intermediate transmission station to control a computer to select a receiver.”

Petition argues that “Torpey teaches that the network television station controls the automated control system, based on the program log, to select an input through which a television program is received and communicate the television program to a transmitter.” Petition at 34. In other words, Petitioner points to Torpey’s selection of an input at the network television station for disclosing “select[ing] a receiver.” Id.

However, it cannot be said that Torpey’s input at the intermediate transmission station is selecting a receiver. Torpey’s “video/audio switcher” facilitates connecting video/audio inputs to outputs, such as “one for the Moncton transmitter, one for the ongoing French-language network to Nova Scotia, [] a third for the English network … [and] a preview bus … .”:

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Torpey, Ex. 1005, Fig. 1. This is distinguishable from selecting a receiver and subsequently coordinating the desired input-output connection to the selected output. In the ’560 Patent, “[e]ach receiver/modulator/input apparatus, 53 through

62, transfers its received transmissions into the station by hard-wire to a [] conventional matrix switch, 75, well known in the art, that outputs to one or more recorder/players, 76 and 78, and/or to apparatus that outputs said transmissions over various channels to the cable system's field distribution system, 93 …” (’560

Patent, Ex. 1001, col. 170:1-7):

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Id., Fig. 6A. The matrix switch does not select a receiver, it only makes input to output connections just like the video/audio switcher in Torpey. However, the

’560 Patent’s “control processors (71) and computers (73) [] selectively automate connection and operation of receivers (53), recorder/players (76), computers (73), generators (82), strippers (81) …” Id., Abstract (emphasis added)). For example, computer (73) may “cause their associated earth station receivers, 50, amplifiers,

51, and TV receivers, 53, to tune to a particular satellite transmission”. Id., col.

197:14-16. Receiver 53 is specifically selected, tuned, and its output used, when the head end has a plurality of receivers 53-62 shown in Fig. 6A. Torpey is silent

22 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 as to any ability to select a receiver. Torpey merely receives all received signals and uses the matrix to select a signal to “TAKE.”

As to Cox ’645, the Board has already held that Cox ’645 does not disclose

“select[ing] a receiver” and reversed a rejection of claim 4 (then pending claim 65) based on Cox ’645:

Claim [4] recites two distinct phrases: "transmit to said at least one subscriber station" and "select a receiver." In context, reciting "select a receiver" (emphasis added) and "transmit to said at least one subscriber station" implies the selection of a single receiver instead of, as the Examiner reasons, selecting a set of receivers each located "at least one subscriber station." Furthermore, Cox does not specify clearly whether or not the decoder selects subscriber receivers at the cited passages, contrary to the Examiner's finding. See Cox 3:54-62; Ans. 11-12.

File History of the ‘560 Patent, Ex. 1002 at 96-97.

As a result, Petition fails to show how Torpey or Cox ’645 disclose

“select[ing] a receiver.” In fact, Petitioner cannot because neither Torpey nor Cox

’645 disclose “select[ing] a receiver.”

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E. The Torpey-Cox ’645 Combination Does Not Disclose “transmitting said information transmission containing said control signal from said at least one programming origination station to said at least one intermediate transmission station.” The “remote programing” feature of Torpey does not disclose “transmitting said information transmission containing said control signal from said at least one programming origination station to said at least one intermediate transmission station” but rather sends program logs from a “central office” via “data lines.”

Torpey, Ex. 1005 at 4. A central office is not a programming origination station.

A central office does not originate the transmission of image programming as the programming origination station of the ’560 Patent would. See ’560 Patent, Ex.

1001, col. 11:42-44 (“a studio or station that originates the broadcast transmission of programming is called the ‘program originating studio.’”). Therefore, Torpey is silent as to the control instructions being transmitted from a programming origination station.

For the above reasons, neither Torpey nor Cox ’645 disclose “transmitting said information transmission containing said control signal from said at least one programming origination station to said at least one intermediate transmission station.”

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VII. COX ’645 IN VIEW OF COX ’404 DOES NOT RENDER CLAIMS 5-10 OBVIOUS

A. A POSITA Would Not Combine the Teachings of Cox ’645 and Cox ’404 Petitioner uses Cox ’404’s column address code as one of the “operating records” to meet the requirement of “alter said operating records stored at said intermediate transmission station.” Petition at 62. The column address code in

Cox ’404 is for addressing the page memory 46, shown in Fig. 3, which illustrates a subscriber station, not an intermediate transmission station, as required by the claims. Weaver Decl., Ex. 2001, ¶ 49. Cox ’645 is silent as to any addressable column address or column address code, and the page memories 38a to 38c in Fig.

4 of Cox ’645 are accessed using time base circuit 32 address inputs. Id. Cox ’645 only discloses the time base circuit 32 with reference to row address bytes. See

Cox ’645, Ex. 1006, col. 6:60-64, according to Weaver Decl., Ex. 2001, ¶ 49. A

POSITA would not be motivated to implement a multi-page storage of Cox ’645 with the system and methods of a single page storage of Cox ’404. Weaver Decl.,

Ex. 2001, ¶ 49. Cox ’645 discusses acquiring and storing rows, not characters, thus rendering the column address code unnecessary.

Data acquisition circuit 30 is initially enabled for processing the pseudo page header row which conditions the data acquisition circuit for acquiring subsequently transmitted row 24. Row 24 is therefore acquired by data

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acquisition circuit 30 and coupled therefrom to the input of a signal distribution control circuit 36 and also to the data inputs of a plurality of identical page memories 38a- 38c.

Cox ’645, Ex. 1006, col. 5:18-25. The disclosure would suggest to a POSITA that the page memories 38a to 38c are row-addressable and that Cox ’645 head-end initializes an internal clock when a new row is addressed to advance to the next storage location, absent any column address. Id.

B. The Cox ’645-Cox ’404 Combination Does Not Disclose, Teach, or Suggest claim element 5[h]“alter said operating records . . . to indicate at least one of reception and storage of said selected a portion of units of programming” When discussing claim element 5[d] “ . . . select a portion of said units of programming based on operating records . . .,” Petitioner identifies the “operating records” in the Cox ’645-Cox ’404 combination as being “Cox ’404’s column address code and magazine and page number codes of Cox ’645 and Cox ’404.”

Petition at p. 53, and Lipoff Decl., Ex. 1003, ¶ 175. In other words, Petitioner and

Mr. Lipoff identify two operating records: First, the magazine and page numbers supplied by the user through the keyboard. Second, the column address code that increments as the characters of the teletext page are written into the page memory.

Weaver Decl., Ex. 2001, ¶ 50. As explained in further detail below, neither of

26 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 these two specific items are “alter[ed] . . . to indicate at least one of reception and storage of said selected a portion of units of programming.”

As an initial matter, column address code is not an “operating record.” Id., ¶

51. The column address code in Cox ’404 is an internally generated control signal for addressing the page memory 46, shown in Fig. 3.

[A]n internally generated column address code which is incremented in response to each character Byte of the acquired data row.

Cox ’404, Ex. 1007 at col. 6:15-17. Weaver Decl., Ex. 2001, ¶ 51. The column address code is simply advanced by an internal clock so that the next byte will be written in the next column address and will be reset when a new row address is input. Id.

In other words, the row address code transmitted with each data row will cause the character Bytes of that row to be stored in the corresponding memory address row of page memory 46 while a clock internal of data acquisition circuit 44 will increment the column address for each character Byte of the row. In this manner, page memory 46 is loaded for storing an entire page of teletext data; at row address 0, columns 9-40, the 32 character Bytes of the page-header row, at row address 1, columns 1-40, the character Bytes of row 1, and so on.”

27 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

Cox ’404, Ex. 1007 at col. 6:17-27 (emphasis added). Weaver Decl., Ex. 2001,

¶ 51. The column address code is not a record and is never used as a record. Id.

And the Cox ’645-Cox ’404 combination does not render claim 5 obvious for this reason alone. But even if the column address code is considered an operating record, the “operating records” identified by Petitioner are not “altered . . . to indicate at least one of reception and storage of said selected a portion of units of programming,” as required by the claim. Id.

Turning to the magazine and page numbers supplied by the user through the keyboard, the alteration of these records does not indicate that the corresponding teletext page has been, at least one of, received and stored. Weaver Decl., Ex.

2001, ¶ 52. Petitioner and Mr. Lipoff argue that the user entering new magazine and page number codes using the keyboard indicates the reception and storage of the magazine page corresponding to the previously user-inputted magazine-page number codes.

In my opinion, a POSA would have understood from Cox ’645 and Cox ’404 that, because the acquisition process is triggered by a match between the magazine and page number codes and the page-header row stored upon entry at the keyboard, terminating the data acquisition process of that page would be effected by altering the stored magazine and page number codes, either to indicate

28 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

another magazine and page number code entered by the user or to indicate nothing. In my opinion, insofar as the altering of this stored magazine and page number codes indicates that the teletext page having that magazine and page number code has been fully received and stored, this altering indicates receipt and storage of that teletext page.

Petition at p. 65, Lipoff Decl., Ex. 1003 ¶ 181. (emphasis added).

This reading of Cox ’645 and Cox ’404 is incorrect. Weaver Decl., Ex.

2001, ¶ 53. The user may input new magazine and page number codes at any time.

Id. This new input does not indicate that the teletext page corresponding to the previously selected magazine and page number codes has been received or stored.

Id. In fact, Cox ’404 is replete with discussions about the acquisition time (i.e., wait time) to receive the teletext page after the user enters the desired magazine and page at the keyboard. Id. (citing Cox ’404, Ex. 1007 at cols. 1:34-37, 1:65-2:3,

2:19-24, 4:7-19). Accordingly, the user entered magazine and page at the keyboard cannot “indicate at least one of reception and storage” as claimed. Id.

Furthermore, this user entry is never “altered” as a result of the selected magazine and page teletext data being received or stored, as required by the claims. Id.

Indeed, Cox ’645 and Cox ’404 have no disclosure in any way tying the keyboard input to the complete reception or storage of the previously selected

29 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 teletext magazine page. Id., ¶ 54. A user can input new magazine and page codes

(a) before the previously selected page is received or stored, (b) during the reception or storage, or (c) after the reception or storage. Moreover, given the cyclical nature of teletext, “after” the current reception is the same as “before” the next reception of the same teletext magazine page. Id. The user inputting the new magazine and page number codes has no bearing on the reception and storage of the previously selected magazine page. Id.

Not only do these references have no disclosure or suggestion of such a relationship, but it would also not have occurred to a POSITA. Id. A POSITA would understand Cox ’645 and Cox ’404 as allowing to change the magazine and page number codes at any time, without regard to the receipt and storage of the previously selected magazine page. Id ¶ 55. Limiting the time when the user may change the magazine and page number codes would significantly complicate the system, while also being completely unnecessary. Id. Once the user decides to change the magazine and page number codes, whether the previously selected magazine page was received or stored (and how many times) is immaterial. Id.

The logic and circuitry to ensure the reception and storage would introduce unnecessary complexity and therefore such a modification of the Cox ’645-Cox

’404 combination would not be obvious to a POSITA. Id.

30 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

Furthermore, once a user enters the desired magazine and page number codes, the claimed “operating record” representing the user’s entry does not change unless the user enters the new desired magazine and page number codes.

Id. ¶ 56. In this situation, this “operating record” does not change to indicate reception or storage of the received teletext information transmission. Id. In this case, the magazine and page number codes entered by a user at a keyboard only define the teletext page to be displayed next; this action is unrelated to the success or failure of any previous magazine and page number input from the user. Id.

Turning to the column address code, the petition relies on Mr. Lipoff’s conclusion that “[b]ecause the column address code is thus incremented each time a character byte of the teletext page is stored in the page memory, Cox ’404 teaches that incrementing of the column address code indicates storage of each character byte of the teletext page.” Petition at p. 64, Lipoff Decl., Ex. 1003 ¶ 179.

This conclusion is incorrect. Id., ¶ 57.

Mr. Lipoff’s selective quoting distorts the disclosure of Cox ’404. Id., ¶ 58.

Specifically, Mr. Lipoff improperly implies that Cox ’404 discloses incrementing column address only after the corresponding teletext character has been stored in memory, therefore indicating the storing, as the claim requires. Id. Mr. Lipoff strings together the following quotes from Cox ’404 to support his opinion. Id.

First Mr. Lipoff’s properly cites to Cox ’404 for the proposition that the column

31 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 address code is “internally generated” and “incremented in response to each character Byte of the acquired data row.” Id. But then, Mr. Lipoff states:

As “the character Bytes of [each] row [are] stored in the corresponding memory address row of page memory 46 … data acquisition circuit 44 will increment the column address for each character Byte of the row.” Id., 6:17–23.

Lipoff Decl., Ex. 1003 ¶ 178. With the proposition stated above, Mr. Lipoff creates his own teaching of a causal relationship between the storage of a teletext character in the memory page and the incrementing of the column address code, which is not in Cox ’404. Weaver Decl., Ex. 2001, ¶ 58. And this made-up causal connection allows Mr. Lipoff to conclude that:

Because the column address code is thus incremented each time a character byte of the teletext page is stored in the page memory, Cox ’404 teaches that incrementing of the column address code indicates storage of each character byte of the teletext page.

Lipoff Decl., Ex. 1003 ¶ 178 (emphasis added).

This conclusion is incorrect because it is derived from an improper implication based on selective and misleading quoting from Cox ’404. Weaver

Decl., Ex. 2001, ¶ 59. Cox ’404 actually states:

In other words, the row address code transmitted with

32 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

each data row will cause the character Bytes of that row to be stored in the corresponding memory address row of page memory 46 while a clock internal of data acquisition circuit 44 will increment the column address for each character Byte of the row.

Cox ’404 at col 6:17-23 (emphasis added).

What Cox ’404 actually discloses is that characters are being stored while the column address code is incremented, not as an indication of storage, as Mr.

Lipoff states. Weaver Decl., Ex. 2001, ¶ 60. In other words, Cox ’404 discloses the two operations (storage and incrementing) being performed concurrently. Id.

And, therefore, the incrementing of the column address cannot possibly indicate that the previous teletext character has been stored. Id. The column address code cannot possibly be incremented as an indication of storage. Id. In fact, as discussed below, the column address code is simply a counter that is advanced by a clock regardless of any determination about reception or storage, which determination Cox ’404 does not even disclose or suggest. Id.

Additionally, Cox ’404 actually discloses the operation that cuts against Mr.

Lipoff’s opinions. Weaver Decl., Ex. 2001, ¶ 61. At the time of the ’560 Patent, it would be impractical to increment the column address code as an indication of a character storage because that would require a read operation, to make sure the write was successful, immediately after the write operation. Id. As the teletext

33 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 characters arrive rapidly, the computer program that stores the teletext characters would not perform this additional step of reading, to make sure that storage occurred. Id. In other words, if some failure during the write operation of a particular character occurs, the column address code is still incremented. Id.

Therefore, the incrementing of the column address code is not an indication of a successful character storage. Id.

It is axiomatic that, to support an obviousness determination, the party challenging the validity of a claim must present evidence that each limitation of the claimed combination is found within the prior art. Southwire Co. v. Cerro Wire

LLC, 870 F.3d 1306 (Fed. Cir. 2017). The absence of proof that all limitations of the claim are disclosed in the prior art completely obviates a finding of obviousness. DSS Tech. Mgmt., Inc. v. Apple Inc., 885 F.3d 1367 (Fed. Cir.

2018); Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355 (Fed. Cir. 2016); K/S HIMPP v. Hear-Wear Techs., LLC, 751 F.3d 1362 (Fed. Cir. 2014), Mintz v. Dietz &

Watson, Inc., 679 F.3d 1372 (Fed. Cir. 2012). Thus, in the present case, the cited prior art, in any combination, fails to obviate the claims of the ’560 Patent because any disclosure of the claim element identified above is missing from both the

Petition and Institution decisions.

34 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

C. The Cox ’645-Cox ’404 Combination Does Not Disclose, Teach, or Suggest claims 6-8 As noted above, Cox ’645 and Cox ’404, separately or in combination, do not disclose, teach, or suggest all elements of claim 5, and since claims 6-8 depend on claim 5, the cited references also do not render claims 6-8 obvious.

D. The Cox ’645-Cox ’404 Combination Does Not Disclose, Teach, or Suggest claim 9 “The method of claim 5, further comprising the step of storing predetermined characteristics that specify one of a source of input to a selective transmission device and a device that receives output from a selective transmission device.” As noted above, Cox ’645 and Cox ’404, separately or in combination, do not disclose, teach, or suggest all elements of claim 5, and since claim 9 depends on claim 5, the cited references also do not render claim 9 obvious. Moreover, this combination of references lacks another element of claim 9.

Petitioner and Mr. Lipoff identify “predetermined mapping between each of the page memory addresses and its respective physical page memory in Cox ’645” as the claimed “predetermined characteristics” required to be “stor[ed.]” Petition at p. 71, Lipoff Decl., Ex. 1003 ¶ 201. Petitioner and Mr. Lipoff state that Cox

’645’s page memory select decoder 60 is a selective transmission device. Petition at p. 73, and Lipoff Decl., Ex. 1003, ¶ 204. Cox ’645 provides the following description of page memory select decoder 60:

Latch 58 consequently passes the row 24 memory page

35 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

address byte to a decoder 60 which, in turn, develops a first output identifying the selected memory page and a second output enabling the “write” input of the selected page memory.

Cox ’645 at cols. 6:67-7:3 (emphasis added). In other words, memory select decoder 60 selects a page memory based on information in teletext row 24.

Petitioner and Mr. Lipoff then conclude:

Because Cox ’645 and Cox ’404 thus teach programming the decoder with a predetermined mapping between the memory page addresses and the page memories that specifies the page memories that receive output from the page memory select decoder and/or a predetermined channel on which a television signal including teletext data is transmitted, in my opinion Cox ’645 and Cox ’404 teach “storing predetermined characteristics that specify one of a source of input to a selective transmission device and a device that receives output from a selective transmission device.”

Petition at p. 75, Lipoff Decl., Ex. 1003 ¶ 206. This conclusion is incorrect.

Weaver Decl., Ex. 2001, ¶ 62. Petitioner’s and Mr. Lipoff’s conclusion that “Cox

’645 and Cox ’404 teach ‘storing predetermined characteristics . . .’” does not follow from the statement that these references teach programming inputs and outputs of the memory select decoder 60. Id. In fact, as discussed above and

36 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 acknowledged by Mr. Lipoff, decoder 60 “develops” this mapping. Id. The statement about “develop[ing]” in Cox ’645 is not the disclosure of any “storing” required by the claim. Weaver Decl., Ex. 2001, ¶ 62. And a POSITA would not understand “develop” to mean “storage.” Id. Cox ’645 discloses memory select decoder 60 “develops” (i.e., generates) the input/output mapping, but it is not stored anywhere because it is needed only while the teletext page is written into the selected memory, and Cox ’645 neither discloses such “storage” nor suggests it to a POSITA. Id.

E. The Cox ’645-Cox ’404 Combination Does Not Disclose, Teach, or Suggest claim 10 “The method of claim 5, wherein said intermediate transmission station is controlled on a basis of predetermined characteristics, said method further comprising the step of storing said predetermined characteristics.” As noted above, Cox ’645 and Cox ’404, separately or in combination, do not disclose, teach, or suggest all elements of claim 5, and since claim 10 depends on claim 5, the cited references also do not render claim 10 obvious. Moreover, this combination of references lacks another element of claim 10.

Petitioner and Mr. Lipoff present no arguments as to “the step of storing said predetermined characteristics” other than:

Because Cox ’645 and Cox ’404 thus teach that the head end is controlled on the basis of the page memory addresses, in my opinion Cox ’645 and Cox ’404 teach

37 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

“wherein said intermediate transmission station is controlled on a basis of predetermined characteristics, said method further comprising the step of storing said predetermined characteristics.”

Petition at p. 77, Lipoff Decl., Ex. 1003, ¶ 210.

Petitioner and Mr. Lipoff rely on the analysis of the “storing” step in claim

9. The analysis that the Cox ’645-Cox ’404 combination does not disclose, teach, or suggest this step is the same as for claim 9 above. Weaver Decl., Ex. 2001, ¶

64.

VIII. THE PETITION SHOULD BE DISMISSED ON CONSTITUTIONAL GROUNDS

Patent Owner respectfully submits that this proceeding is unconstitutional and violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. See Arthrex,

Inc. v. Smith & Nephew, Inc. et al., 941 F.3d 1320 (Fed. Cir. 2019) (rehearing en banc denied). The Federal Circuit has held that PTAB judges, although not appointed by the President and, thus Inferior Officers, were acting as Principal

Officers based on the factors set forth by the Supreme Court in Edmond v. United

States, 520 U.S. 651, 662-63, 117 S. Ct. 1573, 137 L. Ed. 2d 917 (1997). See

Arthrex, 941 F.3d at 1329-35. The Federal Circuit further held that the degree of supervision exercised over APJ’s by the Director of the Patent Trademark Office and the Secretary of Commerce did not cure the constitutional violation created by

38 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560 their expansive duties. While the Federal Circuit panel attempted to cure the constitutional violation by eliminating tenure protections afforded to PTAB judges by the statute, this purported remedy by itself simply fails to cure the violation.

In Edmond, the Supreme Court considered three elements in whether the supervision exercised by the Principal Officers is sufficient to properly limit the power and discretion of the Inferior Officer initially deciding an issue only properly made by a Principal Officer: (1) whether an appointed Principal Officer has the power to review and reverse the Inferior Officers’ decision; (2) the level of supervision and oversight the Principal Officer has over the Inferior Officers; and

(3) the Principal Officer’s power to remove the Inferior Officers. None of these alone was considered dispositive. The removal power alone does not allow sufficient direct supervision of the APJ’s decision to meet the requirements of

Edmond and other Supreme Court precedent on this issue. See, Freytag v.

Commissioner, 501 U.S. 868 (1991) Compare, Morrison, Independent Counsel v.

Olsen, 487 U.S. 654 (1988). For this reason, this proceeding should be dismissed.

In its Petition for a Writ of Certiorari to the Supreme Court, Arthrex raised the issue of whether that remedy was adequate. The Government filed a Cross-

Petition (See Ex. 2004), contending that APJ’s were constitutionally appointed as they were acting under adequate supervision by a principal officer and that Arthrex had waived its right to contest the issue. The Supreme Court granted, in part, the

39 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

Government’s Petition respecting the constitutionality of the appointment APJ’s.

The Court limited the questions it would consider to (1) whether the PTAB judges were constitutionally appointed and (2), if not, whether the Federal Circuit’s ordered remedy was correct.

As this issue is presently before the Supreme Court for decision, the Patent

Owner believes no extensive briefing on the issue is required and that the Board should conclude that the Patent Owner has properly preserved its right to argue that this proceeding is unconstitutional and violates the Appointments Clause, U.S.

Const., art. II, § 2, cl. 2, dependent on the outcome of the pending Supreme Court matter, United States v. Arthrex Inc., No. 19-1434 (U.S. filed June 25, 2020), including based on arguments presented by Arthrex Inc. to the Supreme Court (See

Ex. 2005, Brief for Arthrex).

IX. CONCLUSION

As noted above, the cited references, individually or in combination, fail to disclose all elements of the challenged claims. Accordingly, the challenged claims are patentable and Petitioner has failed to establish that any of the challenged claims are invalid.

40 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

Respectfully submitted,

Date: December 24, 2020 /Dmitry Kheyfits/ 57,244 Dmitry Kheyfits Reg. No. [email protected] Kheyfits Belenky LLP 1140 Avenue of the Americas, 9th Fl. New York, New York 10036 Phone: 212-203-5399 Fax: 212-203-6445

Andrey Belenky (Reg. No. 59,194) [email protected] Kheyfits Belenky LLP 1140 Avenue of the Americas, 9th Fl. New York, New York 10036 Phone: 212-203-5399 Fax: 212-203-6445

Brandon Moore (Reg. No. 77,885) [email protected] Kheyfits Belenky LLP 108 Wild Basin Road, Suite 250 Austin, TX 78746 Phone: 737-228-1838 Fax: 737-228-1843

Customer No. 107284

Attorneys for Patent Owner Personalized Media Communications, LLC

41 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

CERTIFICATE OF COMPLIANCE

Pursuant to 37 C.F.R. §§ 42.24(a)(1)(i) and (b)(2), the undersigned hereby certifies that the foregoing Response to Petition for Inter Partes Review of U.S.

Patent No. 9,674,560 contains 7,452 words, excluding parts of this Petition exempted under § 42.24(a), as measured by the word-processing system used to prepare this paper.

Respectfully submitted,

Date: December 24, 2020 /Dmitry Kheyfits/ 57,244 Dmitry Kheyfits Reg. No. Kheyfits Belenky LLP 1140 Avenue of the Americas, 9th Floor New York, NY 10036 (212) 203-5399

Customer No. 107284

Attorneys for Patent Owner Personalized Media Communications, LLC

42 Case No.: IPR2020-00725 Patent Owner’s Response Patent No: 9,674,560

CERTIFICATE OF SERVICE

I hereby certify that on December 24, 2020, a true and correct copy of

Personalized Media Communications, LLC’s above Response to Petition for Inter

Partes Review of U.S. Patent No. 9,674,560 was served via e-mail upon Erika H.

Arner, Daniel C. Cooley, Joshua L. Goldberg, Cory C. Bell, Sydney R. Kestle, and

A. Grace Mills at [email protected], [email protected], [email protected], [email protected], [email protected], and [email protected].

Respectfully submitted,

Date: December 24, 2020 /Dmitry Kheyfits/ 57,244 Dmitry Kheyfits Reg. No. Kheyfits Belenky LLP 1140 Avenue of the Americas, 9th Floor New York, NY 10036 (212) 203-5399

Customer No. 107284

Attorneys for Patent Owner Personalized Media Communications, LLC