Scorpcast LLC

Patent Trials and Appeals Board

Aug 16, 2021

IPR2021-00514 (P.T.A.B. Aug. 16, 2021)

Trials@uspto.gov Paper 15
571-272-7822 Entered: August 16, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

MG FREESITES LTD.,
Petitioner,
v.
SCORPCAST, LLC,
Patent Owner.

IPR2021-00514
Patent 10,205,987 B2

Before MEREDITH C. PETRAVICK, HYUN J. JUNG, and
ARTHUR M. PESLAK, Administrative Patent Judges.
PETRAVICK, Administrative Patent Judge.
DECISION
Denying Institution of Inter Partes Review
35 U.S.C. § 314, 37 C.F.R. § 42.4

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I. INTRODUCTION
Petitioner MG FreeSites Ltd. filed a Petition (Paper 1, “Pet.”)
requesting inter partes review of claims 1–5, 7, 11, 12, 15–20, 23–27, and
30 of U.S. Patent No. 10,205,987 B2 (Ex. 1001, “the ’987 patent”). Patent
Owner Scorpcast, LLC filed a Preliminary Response (Paper 7, “Prelim.
Resp.”).
With our authorization (Paper 10), Petitioner filed a Reply to the
Preliminary Response (Paper 13) to address the factors set forth in Apple
Inc. v. Fintiv, Inc., IPR2020-00019, Paper 11, 5–6 (PTAB Mar. 20, 2020)
(precedential) that inform our exercise of discretion under 35 U.S.C. §
314(a). Patent Owner filed a Sur-Reply, stating that in light of recent
developments in related litigation, Patent Owner no longer asserts that the
factors of Apple Inc. v. Fintiv, Inc. favor discretionary denial. Paper 14, 1.
We, thus, consider moot Patent Owner’s request for discretionary denial
(Prelim. Resp. 25–29).
Under 35 U.S.C. § 314(a), an inter partes review may not be instituted
unless the information presented in the Petition and any response thereto
shows “there is a reasonable likelihood that the petitioner would prevail with
respect to at least 1 of the claims challenged in the petition.” Taking into
account the Petition, the arguments presented in the Preliminary Response,
as well as all supporting evidence, we determine that Petitioner has failed to
show a reasonable likelihood that at least one of the challenged claims is
unpatentable. Accordingly, we do not institute inter partes review.

A. Related Matters
The parties state that the ’987 patent was asserted in Scorpcast, LLC
dba HaulStars v. MG Freesites Ltd., Case No. 6-20-cv-00877 (W.D. Tex.).
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Pet. xxvii; Paper 4, 2. On June 21, 2021, the District Judge transferred this
case to the District of Delaware, Scorpcast, LLC dba HaulStars v. MG
Freesites Ltd, Case No. 1:21-cv-00887. Paper 12, 1–2; Paper 14, 1.
Patent Owner also states that a decision in this proceeding would
affect or be affected by numerous other inter partes reviews and District
Court proceedings. Paper 4, 2–4. The ’987 patent is the subject of
IPR2021-00515.

B. The ’987 Patent
The ’987 patent is titled “Interactive Video Distribution System and
Video Player Utilizing a Client Server Architecture” and issued on February
12, 2019. Ex. 1001, codes (45), (54). The ’987 patent claims priority
through a chain of related U.S. Patent Applications to April 19, 2012. Id. at
code (63).
The ’987 patent describes a website receiving and storing user-
uploaded videos, for example, product reviews. Id. at 20:41–44, 23:29–33.
The website also receives and stores a product tag, associated with a
reviewed product, and the tag includes pictures. Id. at 21:32–55. The tags
are displayed during video playback. Id. at 12:19–26. The tags are
displayed at various locations within the video player, such as part of the
video playback scrubber or embedded into the video (id. at 8:42–43, 21:48–
50), and are selectable by the user (id. at 24:31–36).

C. Challenged Claims
Petitioner challenges claims 1–5, 7, 11, 12, 15–20, 23–27, and 30.
Claims 1, 20, and 26 are independent claims. Claims 2–5, 11, 12, and 15–19
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depend from claim 1. Claims 23–25 depend from claim 20. Claims 27 and
30 depend from claim 26.
Claim 1 is illustrative and reproduced, as corrected by the May 2019
Certificate of Correction, below:1
[1.P] 1. A video system, comprising:
[1.1] a network interface;
[1.2] at least one processing device;
[1.3] non-transitory memory storing programmatic code that
when executed by the at least one processing device, cause the
video system to:
[1.4] provide to a first user terminal of a first user interface that
enables the first user to upload a first video or provide a link to
the first video;
[1.5] receive over a network using the network interface, from
the first user terminal of the first user, an upload of a first video
or a link thereto;
[1.6] provide over the network, using the network interface, to
the first user terminal a second user interface that enables the first
user to:
provide at least one of an upload or a link to an image,
add text to be associated with the image,
add a link to be associated with the image;
[1.7] receive via the second user interface:
an upload of or a link to a first image;

1 Claim 1 is reproduced with Petitioner’s labels. Pet. xiv–xvi.
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a first item of text; and
a first link, comprising a first destination Uniform
Resource Locator (URL);
[1.8] store the upload of or a link to the first image, the first item
of text, and the first link;
[1.9] use a content player displayed on the first user terminal to
display the first video in association with a scrubber bar;
[1.10] enable the first user to define, using the scrubber bar and
a first control, when the first image is to be displayed as an
overlay when the first video is played back;
[1.11] receive from the first user a definition as to when the first
image is to be displayed as an overlay when the first video is
played back;
[1.12] store the definition as to when the first image is to be
displayed when the first video is played back;
[1.13] receive via the second user interface:
an upload of or a link to a second image;
a second item of text; and
a second link, comprising a second destination Uniform
Resource Locator (URL);
[1.14] store the upload of or a link to the second image, the
second item of text, and the second link;
[1.15] enable the first user to define, using the scrubber bar and
the first control, when the second image is to be displayed as an
overlay when the first video is played back;
[1.16] receive from the first user a definition as to when the
second image is to be displayed as an overlay when the first video
is played back;
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[1.17] store the definition as to when the second image is to be
displayed when the first video is played back;
[1.18] provide a video player for display on a second user
terminal of a second user;
[1.19] enable the video player to play the first video, and display:
the first image as an overlay in accordance with the
definition as to when the first image is to be displayed
when the first video is played back;
the second image as an overlay in accordance with the
definition as to when the second image is to be
displayed when the first video is played back;
[1.20] wherein in response to detecting that the second user has
selected the first or the second image, a respective link,
comprising a respective destination URL is activated, and a
respective network destination corresponding to the respective
destination URL is accessed by the second user terminal.
Ex. 1001, 57:6–58:6, Certificate of Correction.

D. Alleged Grounds of Unpatentability
Petitioner asserts the following grounds of unpatentability:
Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
1, 2, 11, 12, 15–18,
20, 23, 25, 26, 30 102(a),(b),(e) Lanza
2
3 103(a) Lanza, Juan3
4, 19 103(a) Lanza, Sterner4

2 Lanza et al., U.S. Patent No. 7,735,101 B2, issued Jun. 8, 2010 (Ex.
1006)(“Lanza”)
3 Juan et al., U.S. Patent Application Publication No. 2012/0166532A1,
published Jun. 28, 2010 (Ex. 1011) (“Juan”).
4 Sterner et al., U.S. Patent Application Publication No. 2007/0263984 A1,
published Nov. 15, 2007 (Ex. 1008) (“Sterner”).
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Claim(s) Challenged 35 U.S.C. § Reference(s)/Basis
5 103(a) Lanza, Lerman5
7 103(a) Lanza, Miller6
24 103(a) Lanza, Kilar7
27 103(a) Lanza, Lerman, Sterner
Pet. 1–2. In addition to the references listed above, Petitioner relies on the
Declaration of Dr. Adam Porter (Ex. 1002).

II. ANALYSIS
A. Principles of Law
A petition must show how the construed claims are unpatentable
under the statutory grounds it identifies. 37 C.F.R. § 42.104(b)(4).
Petitioner bears the burden of demonstrating a reasonable likelihood that it
would prevail with respect to at least one challenged claim for a petition to
be granted. 35 U.S.C. § 314(a).
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987). The elements must be arranged as required by the
claim, but this is not an ipsissimis verbis test, i.e., identity of terminology is
not required. In re Bond, 910 F.2d 831 (Fed. Cir. 1990).

5 Lerman et al., U.S. Patent No. 7,809,802 B2, issued Oct. 5, 2010 (Ex.
1013) (“Lerman”).
6 Michael Miller, YouTube for Business: Online Video Marketing for Any
Business, second edition, Jan. 2011 (Ex. 1010) (“Miller”).
7 Kilar et al., U.S. Patent Application Publication No. 2013/0004138 A1,
published Jan. 3, 2013 (Ex. 1012) (“Kilar”).
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A claim is unpatentable under § 103(a) if the differences between the
claimed subject matter and the prior art are such that the subject matter, as a
whole, would have been obvious at the time the invention was made to a
person having ordinary skill in the art to which said subject matter pertains.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
obviousness is resolved on the basis of underlying factual determinations,
including (1) the scope and content of the prior art; (2) any differences
between the claimed subject matter and the prior art; (3) the level of skill in
the art; and (4) when in evidence, objective indicia of non-obviousness
(i.e., secondary considerations). Graham v. John Deere Co., 383 U.S. 1,
17–18 (1966).
We analyze the asserted grounds with these principles in mind.

B. Level of Ordinary Skill in the Art
In determining the level of skill in the art, we consider the type of
problems encountered in the art, the prior art solutions to those problems, the
rapidity with which innovations are made, the sophistication of the
technology, and the educational level of active workers in the field. Custom
Accessories, Inc. v. Jeffrey-Allan Indus. Inc., 807 F.2d 955, 962 (Fed. Cir.
1986); Orthopedic Equip. Co. v. U.S., 702 F.2d 1005, 1011 (Fed. Cir. 1983).
Petitioner contends that a person of ordinary skill in the art at the time
of the invention of the ’987 patent would have had the following education
and experience: “a Bachelor’s degree in Electrical Engineering, Computer
Engineering, or Computer Science (or the equivalent degree) plus
approximately two years of work experience with technologies relating to
content annotation and/or content sharing among multiple users.” Pet. 17.
Petitioner adds that “[m]ore education can supplement work experience and
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vice versa.” Id. (citing Ex. 1002 ¶¶ 1–21). Patent Owner does not dispute
this level of skill. Prelim. Resp. 6.
For purposes of this Decision, we adopt Petitioner’s proposal as
reasonable and consistent with 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).

C. Claim Construction
For petitions filed on or after November 13, 2018, the “broadest
reasonable interpretation” standard has been replaced with the federal court
claim construction standard that is used to construe a claim in a civil action
under 35 U.S.C. § 282(b). This is the same claim construction standard
articulated in Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en
banc), and its progeny.
Neither Petitioner nor Patent Owner provides any explicit construction
of any claim terms. We determine that for the purposes of this Decision, it is
unnecessary to expressly construe any claim terms. See Vivid Techs., Inc. v.
Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (Only terms in
controversy must be construed and “only to the extent necessary to resolve
the controversy”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs in the
context of an inter partes review).

D. Alleged Anticipation by Lanza
Petitioner contends that claims 1, 2, 11, 12, 15–18, 20, 23, 25, 26, and
30 are anticipated by Lanza. Pet. 29–68. Patent Owner disputes Petitioner’s
contentions. Prelim. Resp. 6–23.
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1. Summary of Lanza
Lanza, a U.S. patent that issued on June 8, 2010, is titled “System
Allowing Users to Embed Comments at Specific Points in Time Into Media
Presentation.” Ex. 1006, codes (45), (54).
Lanza describes a system and method for allowing a user to insert
comments into a video. Id. at 2:46–3:12. The comments can include text,
graphics, and web links. Id. at 3:7–9.
Lanza describes user 155, using client 150 and “software known for
browsing the Internet (such as, Internet Explorer, Netscape Navigator,
Mozilla, Firefox),” surfs the Internet looking for content of interest, such as
a media presentation or video.” Id. at 9:13–18. A web server 120 provides a
chosen video to client 150, along with any prior comments that have been
added. Id. at 9:19–10:3. Using user interface 200, client 150 displays the
video and associated comments. Id. at 10:4–14. User interface 200 has a
“FULL” display mode, in which comments are displayed beneath the bottom
of a video, and a “COMPACT” display mode in which they overlay the
video. Id. at 6:22–48; Figs. 2, 3.
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Lanza’s Figure 2 is reproduced below.

Figure 2 depicts user interface 200 in “FULL” display mode. Id. at 2:21–22,
5:23–25. User interface 200 includes video controls 230. Id. at 5:34–52.
Lanza states:
Generally, the video controls 230 include the software buttons
play, pause, step back, and step forward. A video position scroll
bar, a time index display, and a sound control are also provided.
. . . The video position scroll bar gives the user 155 a visual,
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relative indication, of how far they have progressed through the
video 113.
Id. at 5:37–48.
User interface 200 also includes a set of controls 240 and a scrolling
comment panel 250. Id. at 5:28–31. A user may add a comment by clicking
a button (e.g., “ADD COMMENT” or “+COMMENT”) in controls 240. Id.
at 7:34–59; Fig. 6. A comment window is then displayed in which the user
can enter the comment and submit it to the server. Id. at 7:39–53. Figure 6
of Lanza is reproduced below.

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Figure 6 depicts user interface 200 when a comment is added. Id. at 2:29–
30, 7:35–53. The comment window includes an area that displays time
index 253. Id. at 7:39–42. Lanza states:
The start time is based on the point in time that the video 113 was
at when the user 155 selected the “ADD COMMENT” button.
The end time is a predefined length, such as 20 seconds, or at a
selected elapsed time from the video 113. The user 155 enters
the blurb 257 and can change the start time and end time of the
time index 253, such as by moving start and end markers on a
time scroll bar. Other ways to edit or change start and end times
include selecting up/down rockers or buttons to
increase/decrease the time and to pause the video at a desired
start/stop time.
Id. at 7:42–51.
2. Independent Claim 1
Petitioner contends that Lanza describes all the elements of
independent claim 1. Pet. 29–53. Patent Owner disagrees and, in particular,
disputes that Lanza describes elements 1.4 and 1.10 of claim 1. Prelim.
Resp. 6–15.
[1.4] provide to a first user terminal of [sic]8 a first user interface
that enables the first user to upload a first video or provide a link to the first
video
To meet the claimed first user interface, Petitioner points to Lanza’s
description of a user surfing the Internet using a web browser interface. Pet.

8 Patent Owner explains: “The word ‘of’ after ‘terminal’ is a remnant of a
certificate of correction that removed a repeated term, ‘a first user’ but did
not properly remove the leftover term ‘of’ from the claim.” Prelim. Resp. 6,
n.2.
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35–36; see also Ex. 1002 ¶¶ 61–63 (corresponding testimony of Dr. Porter).
Petitioner states:
Lanza describes the system providing a first user interface
to the user terminal (e.g., client 150) because at step 911, the user
“surfs the Internet looking for content of interest, such as a media
presentation or video” using a web browser interface. Id., 9:12-
21. The web browser enables the user to provide a link to the
video to a remote system (e.g., web server 120) because after
locating the video, at step 913 the client requests the video,
thereby providing a link to the video to the remote system. Id.,
9:12-22, 4:45-47 (embodiments in which media shown “without
a surrounding web page), 10:15-20 (“video file can be stored
anywhere on the Internet” and “user simply needs to insert the
proper URL for the video”).
Id.
Patent Owner argues that Lanza’s web browser interface cannot meet
the claimed first user interface because Lanza’s web browser interface was
not provided by Lanza’s video server, CLICK.TV server, and/or Web server
(i.e., the claimed processing device of element 1.2). Prelim. Resp. 7.
We agree with Patent Owner. Claim 1’s element 1.4 is a function of
the programmatic code recited by element 1.3. Element 1.3 recites “non-
transitory memory storing programmatic code that when executed by the at
least one processing device, cause the video system to: . . . .” Ex. 1001,
57:9–11. Thus, claim 1 requires that the first user interface is provided by
the processing device.
Petitioner equates the claimed processing device to Lanza’s video
server 110, CLICK.TV server 130, and web server 120 and equates Lanza’s
web browser interface to the claimed first user interface. Pet. 32, 35–36.
Lanza, however, does not describe video server 110, CLICK.TV server 130,
and/or web server 120 providing the web browser interface to a first user
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terminal. See, e.g., Ex. 1006, 4:45-47, 9:12–22, 10:15–20. To the contrary,
Lanza describes the web browser interface as software known for browsing
the Internet, such as Internet Explorer, Netscape, etc. Id. at 9:16–18.
Petitioner, thus, fails to show that Lanza describes element 1.4 of
claim 1.
[1.10] enable the first user to define, using the scrubber bar and a
first control, when the first image is to be displayed as an overlay when the
first video is played back
To meet the claimed scrubber bar, Petitioner points to an alleged
“time scroll bar” depicted as part of user interface 200 in Lanza’s Figure 6.
Pet. 42–43; see also Ex. 1002 ¶ 71 (corresponding testimony of Dr. Porter).
Lanza’s Figure 6, with annotations added by Petitioner, is reproduced below.

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Pet. 43. Annotated Figure 6 depicts the alleged time scroll bar in solid lines.
Id.
Petitioner states:
Lanza describes the system enabling the user to define
when the first image is to be displayed as an overlay when the
first video is played back, as using the user interface shown in
Figure 6, the user can add a comment (which, as discussed above,
can include images) that has a start time “based on the point in
time that the video 113 was at when the user 155 selected the
“ADD COMMENT” button” and an end time that “is a
predefined length, such as 20 seconds, or at a selected elapsed
time from the video 113.” Ex. 1006, 7:35-45, 6:47-48 (“comment
… can include any combination of text, pictures, and
hyperlinks”). Furthermore, because the user can “change the start
time and end time of the time index 253 such as by moving start
and end markers on a time scroll bar.” Id., 7:45-47; Fig. 6.
Pet. 43–44.
Patent Owner responds: “Although Petitioner refers to the outlined
box as a ‘time scroll bar,’ the scroll bar outlined by Petitioner in its markup
of Fig. 6 is actually the ‘video position scroll bar’ first introduced with
respect to Fig. 2 of Lanza.” Prelim. Resp. 11 (citing Ex. 1006, 5:39–40,
5:45–50). Patent Owner contends that Lanza does not describe the video
position scroll bar as a scrubber bar9 and that a first user uses the video
position scroll bar to define when the first image is to be displayed as an
overlap when the first video is played back. Prelim. Resp. 12–13.
We agree with Patent Owner. In the Petition, Petitioner highlights the
video position scroll bar of video controls 230 and equates the video position
scroll bar to the claimed scrubber bar. See Pet. 42–43; Ex. 1006, 5:34–52.

9 The ’987 patent describes a scrubber bar as control allows a user to scrub
or navigate through the video using the bar. See Ex. 1001, 6:15–17, 8:49–
53, 44:31–32.
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Lanza describes the video positon scroll bar as “giv[ing] the user 155 a
visual, relative indication, of how far they have progressed through the video
113.” Id. at 5:46–48. Lanza, however, does not describe using the video
position scroll bar to scrub the video or define when the first image is to be
displayed as an overlap when the first video is played back. See generally,
id. Lanza describes defining the start time based on the point in time that the
video 113 was at when the user 155 selected the “ADD COMMENT” button
and an end time that “is a predefined length, such as 20 seconds, or at a
selected elapsed time from the video 113.” Ex. 1006, 7:43–46.
As Petitioner points out (Pet. 44), Lanza does describe that a user can
“change the start time and end time of the time index 253” by “moving start
and end markers on a time scroll” or by “selecting up/down rockers or
buttons to increase/decrease the time.” Id. at 7:46–51. Lanza, however,
does not describe that the time scroll used to change the start and end time of
the time index is the video position scroll bar of video controls 230, depicted
in Figure 6. See generally, id. We note that, to the contrary, Lanza, in
Figure 6, depicts up and down areas adjacent to a comment time and
separate from the video position scroll bar. Id. at Fig. 6. Lanza also depicts
a time scroll bar that is separate from the video positon scroll bar in Figure
8. Id. at 8:48–50, Fig. 8; see Prelim. Resp. 13–15.
Petitioner, thus, fails to show that Lanza describes element 1.10 of
claim 1.
Petitioner, thus, fails to show a reasonable likelihood that claim 1 is
anticipated by Lanza.

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3. Independent Claims 20 and 26
Independent claims 20 and 26 recite similar elements to claim 1’s
elements 1.4 and 1.10. See Ex. 1001, 59:38–40, 59:56–61, 61:6–8, 61:21–
25. Both parties refer us to the same arguments provided for claim 1’s
elements 1.4 and 1.10. Pet. 59–60, 64, 66; Prelim. Resp. 19, 20.
Petitioner does not provide any further explanation or citations to
evidence. See Pet. 59–60, 64, 66. For the same reasons above, Petitioner
fails to show that Lanza discloses all the limitations of independent claims
20 and 26. Petitioner, thus, fails to show a reasonable likelihood that claims
20 and 26 are anticipated by Lanza.

4. Dependent Claims 2, 11, 12, 15–18, 23, 25, and 30
Petitioner argues that Lanza anticipates dependent claims 2, 11, 12,
15–18, 23, 25, and 30. Pet. 53–58, 65–64, 68. Patent Owner responds that
Petitioner fails to show the limitations of these dependent claims. Prelim.
Resp. 17–19, 21, 23. Petitioner’s arguments for these claims do not remedy
the deficiencies discussed above for the challenged independent claims.
Petitioner fails to show that Lanza describes all the limitations of these
challenged dependent claims. Petitioner, thus, fails to show a reasonable
likelihood that claims 2, 11, 12, 15–18, 23, 25, and 30 are anticipated by
Lanza.

E. Remaining Grounds Based on Lanza
Petitioner challenges claim 3 as unpatentable over Lanza and Juan.
Pet. 68–71. Petitioner challenges claims 4 and 19 as unpatentable over
Lanza and Sterner. Id. at 71–75. Petitioner challenges claim 5 as
unpatentable over Lanza and Lerman. Id. at 75–77. Petitioner also
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challenges claim 7 as unpatentable over Lanza and Miller. Id. at 77–79.
Petitioner further challenges claim 24 as unpatentable over Lanza and Kilar.
Id. at 79–81. Petitioner additionally challenges claims 27 as unpatentable
over Lanza, Lerman, and Sterner. Id. at 82–86.
Patent Owner responds that the addition of Juan, Sterner, Lerman,
Miller and Kilar do not remedy the deficiencies of Lanza with respect to the
independent claims and the “Petition does not so assert.” Prelim. Resp. 23–
25.
For the reasons discussed above with respect to the challenged
independent claims, Petitioner fails to show that Lanza discloses all the
limitations of these challenged dependent claims. See In re Fritch, 972 F.2d
1260, 1266 (Fed. Cir. 1992) (“[D]ependent claims are nonobvious if the
independent claims from which they depend are nonobvious.”). Petitioner,
thus, fails to show a reasonable likelihood that claims 3, 4, 5, 7, 19, 24, and
27 are unpatentable over Lanza and these additional references.

III. CONCLUSION
Petitioner does not show that there is a reasonable likelihood that it
would prevail with respect to at least one of the challenged claims.

IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that the Petition is denied, and no inter partes review is
instituted.

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FOR PETITIONER:
Frank M. Gasparo
Jonathan M. Sharret
Stephen K. Yam
VENABLE LLP
fmgasparo@venable.com
jsharret@venable.com
syam@venable.com

FOR PATENT OWNER:
Todd E. Landis
John Wittenzellner
Adam B. Livingston
WILLIAMS SIMONS & LANDIS PLLC
tlandis@wsltrial.com
johnw@wsltrial.com
alivingston@wsltrial.com