United States Court of Appeals for the Federal Circuit ______________________

NETFLIX, INC., Appellant

v.

DIVX, LLC, Appellee ______________________

2022-1203, 2022-1204 ______________________

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. IPR2020- 00647, IPR2020-00648. ______________________

Decided: October 25, 2023 ______________________

THOMAS SAUNDERS, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, argued for appellant. Also rep- resented by ROBERT STILLER; MARK CHRISTOPHER FLEMING, SARAH R. FRAZIER, MELISSA N. MOREL, Boston, MA.

MICHAEL GREGORY PATTILLO, JR., MoloLamken LLP, Washington, DC, argued for appellee. Also represented by RAYINER HASHEM, JEFFREY A. LAMKEN; JONATHAN E. BARBEE, NATHANIEL RUBIN, New York, NY; NATHAN NOBU LOWENSTEIN, KENNETH J. WEATHERWAX, Lowenstein & Weatherwax LLP, Santa Monica, CA. Case: 22-1203 Document: 43 Page: 2 Filed: 10/25/2023

2 NETFLIX, INC. v. DIVX, LLC

______________________

Before DYK, LINN, and CHEN, Circuit Judges. Opinion for the court filed by Circuit Judge CHEN. Dissenting opinion filed by Circuit Judge DYK. CHEN, Circuit Judge Netflix, Inc. (Netflix) appeals two final written deci- sions of the Patent Trial and Appeal Board (Board) deter- mining Netflix did not meet its burden of proving claims 1– 5 and 12 of U.S. Patent No. 9,270,720 (’720 patent) and claims 1–6, 8–10, 13–14, 16–17, and 19 of U.S. Patent No. 9,998,515 (’515 patent) unpatentable under 35 U.S.C. § 103. See Hulu, LLC v. DivX, LLC, No. IPR2020-00647, 2021 WL 4859625 (P.T.A.B. Sept. 27, 2021) (’720 Patent De- cision); Netflix, Inc. v. DivX, LLC, No. IPR 2021-00648, 2021 WL 4859708 (P.T.A.B. Sept. 27, 2021) (’515 Patent De- cision). Each Board decision in these inter partes reviews (IPR) is lengthy, with the Board closely analyzing the ar- guments and evidence presented by Netflix and the patent owner DivX, LLC (DivX). Netflix’s appeal does not chal- lenge any of the Board’s substantive analysis. It instead makes a purely procedural argument, accusing the Board of falling down on the job by failing to address several ar- guments purportedly raised in Netflix’s petitions. After marching through the relevant papers below, we see no er- ror in how the Board understood Netflix’s petition argu- ments. Because all of Netflix’s arguments on appeal were not raised below, they are forfeited. We affirm. BACKGROUND A. The Challenged Patents The ’720 and ’515 patents, assigned to DivX, relate to a method for adaptive bitrate streaming of content on a play- back device, such as a mobile phone or personal computer. “Adaptive bit rate streaming involves detecting the present Case: 22-1203 Document: 43 Page: 3 Filed: 10/25/2023

NETFLIX, INC. v. DIVX, LLC 3

streaming conditions (e.g., the playback device’s network bandwidth and video decoding capacity) in real time and adjusting the quality of the streamed media accordingly.” ’720 patent col 1 ll. 30–34. 1 To accomplish this adjustment, the method creates an index file that points to alternate source media streams (what the claim refers to as “assets”), where each stream contains video and audio data. ’720 pa- tent col. 1 ll. 57–60. Each alternate source stream can en- code media at different maximum bitrates, and the playback device may switch between the alternate streams. ’720 patent col. 7 ll. 29–42. The ’720 patent and ’515 patent both generally claim a method for receiving a request for content from a playback device, retr