NO. 19-__ In the Supreme Court of the United States COMCAST CORPORATION, ET AL., Petitioners, V. INTERNATIONAL TRADE COMMISSION, ET AL., Respondents. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT APPENDIX VOLUME II OF III DONALD B. VERRILLI, JR. DAVID J. LISSON Counsel of Record DAVIS POLK & WARDWELL GINGER D. ANDERS LLP MUNGER, TOLLES & OLSON LLP 1600 El Camino Real 1155 F Street NW 7th Floor Menlo Park, CA 94025 Washington, D.C. 20004 (202) 220-1100 [email protected] BRIAN J. SPRINGER MUNGER, TOLLES & OLSON LLP 350 S. Grand Ave., 50th Floor Los Angeles, CA 90071 Counsel for the Comcast petitioners (Additional counsel listed on inside cover) PAUL M. BARTKOWSKI MITCHELL G. STOCKWELL ADDUCI, MASTRIANI & MICHAEL J. TURTON SCHAUMBERG LLP JOSHUA H. LEE 1133 Connecticut Ave. NW, KILPATRICK TOWNSEND & 12th Floor STOCKTON LLP Washington, D.C. 20036 1100 Peachtree St. NE, Ste. 2800 Counsel for the Technicolor Atlanta, GA 30309 Petitioners JOSHUA B. POND KILPATRICK TOWNSEND & STOCKTON LLP 607 14th St NW, Ste. 900 Washington, D.C. 20005 Counsel for the ARRIS Petitioners TABLE OF CONTENTS Volume I Appendix A: Opinion of the United States Court of Appeals for the Federal Circuit (March 2, 2020) ......................................................... 1a Appendix B: Opinion of the United States International Trade Commission (December 6, 2017) ................................................. 18a Appendix C: Initial Determination of the United States International Trade Commission (May 26, 2017) ................................... 75a Volume II Appendix C: Initial Determination of the United States International Trade Commission (May 26, 2017) (continued) .............. 343a Volume III Appendix C: Initial Determination of the United States International Trade Commission (May 26, 2017) (continued) .............. 693a Appendix D: Relevant Cease and Desist and Limited Exclusion Orders of the United States International Trade Commission ........................ 950a Appendix E: Statutory Provisions ...................... 1016a 343a bidirectional remote access link.” The construction comports with the plain purpose of the “remote . device” and also accounts for the additional words (e.g., interactive television) in this term. See CAE Screenplates, 224 F.3d at 1317 (“In the absence of any evidence to the contrary, we must presume that the use of these different terms in the claims connotes different meanings.”). (6) User television equipment This term appears in claims 1, 2, 6, 9, 12, 15, and 18, and it is used many times in the specification. See generally JX-0002. The parties have proposed the following constructions: Rovi’s Proposed Comcast’s Proposed Construction Construction any equipment capable of Comcast does not clearly use by a user to display present a construction in program listings and to its post-hearing brief. record television programs See Rovi Br. at 49; Resps. Br. at 81-82. Rovi’s opening argument for this term follows: One of ordinary skill in the art would agree with Rovi’s proposed construction—“any equipment capable of use by a user to display program listings and to record television programs.” CX- 0002C (Shamos WS) at Q/A 112. The specifications make clear that “user television equipment” is a broad term. Id.; JX-0002 (’263 Patent) at col. 6, ln. 64 344a - col. 7, ln. 1. Further, Figs. 3 and 4 of the ’263 Patent show the user television equipment as including a television 36, remote control 40, secondary storage device 32, set-top box 28, digital storage device 31, user interface 46, digital storage device 49, secondary storage device 47, communications device 51 and display device 45. JX-0002 (’263 Patent) at Figs. 3-4. In the Patents, the recited purpose of the “user television equipment” is to display program listing and record television programs. CX- 0002C (Shamos WS) at Q/A 112. What records television programs thus falls within the scope of “television equipment.” CX-1901C (Shamos RWS) at Q/A 37 (discussing additional intrinsic evidence in support of Rovi’s construction). Rovi Br. at 49. Comcast’s argument for this term follows: The party’s [sic] proposed construction [sic] of “user television equipment” are provided in RDX-0842. Comcast’s proposed construction is consistent with the plain and ordinary meaning of this limitation to one of ordinary skill in the art in light of the intrinsic evidence. RX- 0007C at Q/A 174. There are two problems with Rovi’s construction. First, it is overbroad because it would read the word “television” out of the claims. For 345a example, Rovi’s construction would cover a personal computer, which is capable of being configured to display program listings and record television programs but is inarguably not a “television” as a POSITA would understood. RX-0007C at Q/A 175. Second, Rovi’s construction leads to the absurd result that the agreed construction for “user site” would no longer be limited to the site of the user when Rovi’s construction of “user television equipment” is combined with the other agreed constructions. Because “user television equipment” would no longer be limited to a television in Rovi’s construction, the equipment would not need to be in the user’s home. But the parties have agreed that “user site” means “location of the user equipment” and that “user equipment” means “user television equipment.” Thus, “user site” means “location of the [user television equipment].” Under Rovi’s overbroad construction of “user television equipment” this would mean that “user site” is no longer limited to a fixed point, like the user’s home. This would render the “user site” limitation meaningless. This problem is averted by adopting Comcast’s construction which would lead to a “user site” construction of “location of the television equipment associated with the user.” This construction makes sense and is consistent with the plain and ordinary meaning. 346a Rovi criticizes Comcast’s construction by arguing that “associated with a user” is unclear. See CX-0002C (Shamos WS) at Q/A 113. Dr. Shamos’s hypothetical where a television could potentially be associated with users A, B, and C does not present a problem. It would not be difficult for a POSITA to determine that the television equipment is associated with a single subscriber whether or not it is available to multiple individuals within that household. See RX-0007C at Q/A 179. Resps. Br. at 81-82. Rovi replies: Respondents misrepresent the scope of the inventions and the specifications, stating: “Rovi’s construction [of user television equipment] would cover a personal computer, which is capable of being configured to display program listings and record television programs but is inarguably not a ‘television’ as a POSITA would understood [sic].” Resps. Br. at 81. The specifications of the Asserted Patents explicitly state that “user television equipment” includes a personal computer: “[o]ther suitable types of user television equipment may be based on personal computer televisions (PC/TVs). .” JX-0003 (’801 Patent) at 4:17-20, 11:59-62, 31:61-65. Thus, Respondents’ argument is unpersuasive. 347a Rovi Reply at 32. The administrative law judge construes the term “user television equipment” to mean “equipment for displaying television program listings information and other program guide data using a local interactive television program guide.” See JX-0002 at 7:61-64 (“Each user has user television equipment 22 for displaying the television program listings information and other program guide data using a local interactive television program guide.”). Further, this construction is consistent with the specification, and it also allows for other uses such as the display of programming (e.g., watching television shows). Rovi’s construction is overly broad to the extent it seeks to encompass “any equipment.” Conversely, Rovi’s construction is overly narrow to the extent it requires the user television equipment “to record.” While the preamble of claim 1 indicates that the claimed system is “for recording,” the body of the claim indicates that “the local interactive television program guide . records the television program . using the local interactive television program guide equipment.” See JX-0002 at 28:59-63. (7) Generates[/ing] . a display Claim 1 of the ’263 Patent utilizes the term “generates a display” twice. See JX-0002 at 28:35, 28:44 (“Generates a display” only appears in claims 5, 8, 11, 14, and 17. It does not appear in the specification). The parties have proposed the following constructions: 348a Rovi’s Proposed Comcast’s Proposed Construction Construction Generates[/ing] data Comcast does not clearly representing a display present a construction in its post-hearing brief. Rovi Br. at 49; Resps. Br. at 82-83. Rovi’s opening argument for this phrase follows: One of ordinary skill in the art would agree with Rovi’s construction— “generates[/ing] data representing a display.” CX-0002C (Shamos WS) at Q/A 114. This straightforward construction explains what generating a display means and is consistent with the disclosure in the specifications. See JX- 0002 (’263 Patent) at col. 6, lns. 1-8, col. 9, lns. 15-19, col. 14, lns. 2-19, col. 20, lns. 1-5. Respondents’ proposed construction requires that what does the “generating” also “create[s] data sufficient to provide a display” and “provide[s] that data to a display device.” Resps. P.H. Br. at 199- 200. As with the “local interactive television program guide” term, this is another attempt by Respondents to limit the local guide to equipment within the user’s home that must—under Respondents’ construction—“create data sufficient to provide a display” and “provide that data to a display device.” If something other than the television 349a equipment in the user’s home “creates the data,” then, under Respondents’ construction, that would be excluded from the scope of the claims. However, and as discussed previously, the specifications contemplate a client- server based program guide where the program guide server generates program guide display screens as digital frames and distributes the frames to user television equipment 22 of Figure 2d.