Federal Circuit disposition — 24-1971

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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IN RE WAG ACQUISITION, LLC,
Appellant
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2024-1971
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Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 90/014,833.
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Decided: August 7, 2026
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RONALD A BRAMSON, Liston Abramson LLP, New York,
NY, for appellant. Also represented by ARI J ASON J AFFESS .
BRIAN RACILLA, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, for appellee
John A. Squires. Also represented by M ONICA B ARNES
L ATEEF .
______________________
Before D YK, REYNA, and STARK, Circuit Judges.
S TARK, Circuit Judge.
WAG Acquisition, LLC (“WAG”) appeals from a final
written decision of the Patent Trial and Appeal Board
(“Board”) finding claims 1 and 4 of its U.S. Patent No.
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IN RE WAG ACQUISITION, LLC 2
8,327,011 (the “’011 patent”) unpatentable as anticipated
by U.S. Patent No. 6,005,600 (“Hill”). We affirm.
I
WAG owns the ’011 patent, which is entitled “Stream-
ing Media Buffering System.” J.A. 235. The ’011 patent
purports to allow electronic devices to engage in “buffer-
ing,” a process by which the user of a device can enjoy audio
or visual content while that content is still being down-
loaded from a media source, including via the internet. Id.
(’011 pat. at Abstract). In general, “buffering” is achieved
by ensuring that data is transmitted from the media source
more rapidly than it is played to the user.
Independent claim 1 and dependent claim 4 are at is-
sue on this appeal. They recite:
[1.pre] A media player for receiving an audio or
video program, the program comprising media data
elements, from a media data source over an Inter-
net protocol network, and playing the program for
a user of the media player, wherein each of the me-
dia data elements is associated with a serial num-
ber, comprising
[1.a] a processor;
[1.b] a memory;
[1.c] a connection to the network; and
[1.d] media player software comprising
[1.e] instructions to cause the me-
dia player to request from the me-
dia source a predetermined
number of data elements;
[1.f] instructions to cause the me-
dia player to receive media data el-
ements sent to the media player by
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IN RE WAG ACQUISITION, LLC 3
the media source and store the me-
dia data elements in the memory;
[1.g] instructions to implement a
player buffer manager, for manag-
ing a player buffer established in
the memory, operable to maintain
a record of the serial number of the
last media data element that has
been received and stored in the
player buffer;
[1.h] instructions to cause the me-
dia player to play media data ele-
ments sequentially from the player
buffer; and
[1.i] [1.i.1] instructions to cause the
media player to transmit to the me-
dia source a request to send one or
more media data elements, each
identified by a serial number,
[1.i.2] and to repeat transmitting
the requests to the media source for
sequential media data elements so
as to maintain the pre-determined
number of media data elements in
the player buffer until the last me-
dia data element comprising the
program has been received.
4. The media player of claim 1, wherein the instruc-
tions for causing the media player to request from
the media source a predetermined number of me-
dia data elements further causes the media player
to receive the predetermined number of media data
elements at a rate more rapid than the rate at which
the media data elements are to be played out by the
media player.
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IN RE WAG ACQUISITION, LLC 4
J.A. 247 (’011 pat. at 13:13-14:26) (emphasis and brack-
eted numerals added).
In August 2021, Friendfinder Networks Inc. and
Steamray Inc. (together, “Petitioners”) petitioned for reex-
amination of claims 1 and 4. In July 2022, an examiner
issued final rejections of both claims. On review, the Board
affirmed the examiner’s final determinations. After the
Board denied WAG’s request for reconsideration in July
2024, this timely appeal followed. The Board had jurisdic-
tion under 35 U.S.C. §§ 134(b), 305. We have jurisdiction
under 28 U.S.C. § 1295(a)(4)(A).
II
We review any claim construction of the Board de novo
and any subsidiary factual findings regarding extrinsic ev-
idence for substantial evidence. See Personalized Media
Commc’ns, LLC v. Apple Inc., 952 F.3d 1336, 1339 (Fed.
Cir. 2020). Claims are generally construed according to
their plain and customary meaning as understood by a per-
son having ordinary skill in the art after reviewing the
claim term in the context of the patent. See Phillips
v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005)
(en banc); see also In re CBS-Sys. Int’l, Inc., 832 F.3d 1335,
1341 (Fed. Cir. 2016) (applying Phillips standard in case
such as this involving reexamination of expired patent).
“A claim is anticipated if each and every element as set
forth in the claim is found, either expressly or inherently,
in a single prior art reference.” Arbutus Biopharma Corp.
v. ModernaTX, Inc., 65 F.4th 656, 662 (Fed. Cir. 2023).
“Anticipation is a question of fact reviewed for substantial
evidence.” Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853
F.3d 1272, 1278 (Fed. Cir. 2017). Substantial evidence is
“such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Consol. Edison Co.
of New York v. Nat’l Lab. Rels. Bd., 305 U.S. 197, 229
(1938).
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IN RE WAG ACQUISITION, LLC 5
III
WAG argues that the Board erred by determining that
Hill anticipates limitations [1.i.1] and [1.g], in independent
claim 1, as well as dependent claim 4. We address each
argument in turn.
A
Limitation [1.i.1] requires “[a] media player for receiv-
ing an audio or video program . . . from a media source over
an Internet protocol network . . . comprising . . . instruc-
tions to cause the media player to transmit to the media
source a request to send one or more media data elements,
each identified by serial number.” J.A. 247 (’011 pat. at
13:13-14:10). The Board found that Hill’s prefetch protocol,
shown in Hill Figure 1 (reproduced below), anticipated this
limitation.
It reasoned that “(i) [Hill’s] buffer manager 118 sends
requests for new frames to the cliplist manager 116 to re-
ceive frames from the appropriate source 122; and (ii) the
frame request from cliplist manager 116 includes a global
frame number.” J.A. 10. Hill’s retrieval protocol, in the
Board’s view, met the requirement of “instructions to cause
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IN RE WAG ACQUISITION, LLC 6
the media player to transmit” a request over the internet,
and Hill’s use of the global frame number met the require-
ment that each request identify media data elements by
“serial number.” The Board also pointed to Hill’s state-
ment that “‘[e]ach source 122 may be any type of digital
memory, and may be accessed either locally or via a net-
work server,’ or ‘a source may be a site on the Internet.’”
J.A. 8 (quoting J.A. 242 (’011 pat. at 3:49-56)). Figures 1
(above) and 3 (below) of Hill and the portions of Hill’s spec-
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IN RE WAG ACQUISITION, LLC 7
ification describing them, and relied on by the Board, con-
stitute substantial evidence to support the Board’s finding
that Hill anticipates limitation [1.i.1].
WAG argues the Board implicitly construed the claims
of the ’011 patent as so broad as to include a transmission
request sent over non-Internet sources when, instead, the
claims should be understood as limited to transmission
over the Internet. We need not decide if the Board implic-
itly construed any claim term – or, if it did, whether its im-
plicit construction was correct – because the Board found
Hill discloses this “transmit limitation” even under WAG’s
preferred understanding of the claims, and substantial ev-
idence supports this finding. J.A. 8 (relying on Hill’s dis-
closure that “[e]ach source 122 may be any type of digital
memory, and may be accessed either locally or via a net-
work server,” and that “a source may be a site on the Inter-
net.”) (quoting J.A. 428 (Hill at 3:49-56)).
WAG also reiterates two arguments it made to the
Board in requesting rehearing. Neither persuades us.
First, WAG argues the Board erred by reading Hill’s com-
munications between components internal to the work-
station as also covering the claimed communications with
sources external to the user workstation. But, in denying
rehearing, the Board clarified that its interpretation of the
“transmit” limitation “is broad enough to encompass
cliplist manager 116 of Hill, which requests frames from a
particular [external] source 122 (e.g., [a] network server or
Internet site) via the appropriate source manager 120.”
J.A. 23 (quoting J.A. 428 (Hill at 4:27-28)). Hill Figure 3
and the related portions of Hill’s specification provide sub-
stantial evidence for this finding.
Second, WAG contests the Board’s reading of Hill’s
global frame number as anticipating identification of re-
quests that identify each media data element by serial
number. We are satisfied by the Board’s explanation that
“the limitation ‘one or more media data elements, each
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IN RE WAG ACQUISITION, LLC 8
identified by a serial number’ is broad enough to encom-
pass the functionality of cliplist manager 116 of Hill, which
request frames, such that the request also includes a global
frame number.” J.A. 24.
B
WAG next challenges the Board’s finding that Hill an-
ticipates limitation [1.g]. Limitation [1.g] requires “in-
struction[s] to implement a player buffer manager, for
managing a player buffer established in the memory, oper-
able to maintain a record of the serial number of the last
media data element that has been received and stored in the
player buffer.” J.A. 247 (’011 pat. at 14:1-5) (emphasis
added). WAG faults the Board for reading Hill to disclose
this limitation by “plainly equat[ing] the last element re-
quested with the (claimed) last element received.” Open.
Br. at 45. Again, we disagree.
The Board identified two independent grounds for find-
ing limitation [1.g] to be disclosed in Hill and substantial
evidence supports both. First, when Hill’s buffer manager
checks the record of stored frames in order to request new
ones, it checks the global frame number (i.e., serial num-
ber) of the last frame that was stored in the player buffer
and then adds one to the global frame number to determine
the next frame needed in the playback sequence. Second,
once the next frame from the media source is added to the
buffer, the buffer manager stores that global frame number
for use in determining which frame to request next.
In finding this limitation anticipated, the Board relied
primarily on Hill’s specification, which explains that
“buffer manager 118 receives a frame request from cliplist
manager 116” and that “buffer manager 118 uses the global
frame number last requested as the starting point for de-
termining which frames to request next.” J.A. 12 (citing
J.A. 431 (Hill at 10:4-6)). It was reasonable for the Board
to conclude that, in order to use the last requested frame
as the starting point for the next request, Hill must store
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IN RE WAG ACQUISITION, LLC 9
the global frame number of last received frame in a
memory. That the ’011 system can receive media data ele-
ments out of order, as WAG emphasizes does nothing to
undermine the Board’s finding that Hill discloses storage
of the serial number of the frame most recently received.
C
Finally, we turn to the Board’s finding of anticipation
with respect to dependent claim 4. WAG insists that Hill
does not disclose claim 4’s requirement “wherein the in-
structions . . . further cause[] the media player to receive
the predetermined number of media data elements at a
rate more rapid than the rate at which the media data ele-
ments are to be played out by the media player.” In finding
claim 4 anticipated, the Board relied on Hill’s Figure 4A
(below) and particularly step 420.1
Hill’s specification describes that “[i]n step 420, the
buffer manager 118 determines by how many frames the
request threshold exceeds the fill level.” J.A. 14 (quoting
J.A. 430 (Hill at 7:11-12)). Hill adds that in a preferred
embodiment, “if the play rate is 24 frames per second, the
sources will not be asked to supply more than 48 frames
per second.” J.A. 14-15 (quoting J.A. 430 (Hill at 7:17-22)).
In finding claim 4 anticipated by Hill, the Board reasoned
that in this embodiment “source 122 supplies 48 frames per
second when the play rate is 24 frames per second,” and in
this way Hill discloses a system in which the aggregate rate
at which the source supply frames exceeds the playback
speed, meeting the limitation of dependent claim 4. See
J.A. 15.
1 The Board referred to a step 480, when it clearly (and
indisputably) meant step 420.
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IN RE WAG ACQUISITION, LLC 10
In WAG’s view, dependent claim 4 demands that each
individual frame be provided at a rate faster than the play-
back speed. No intrinsic evidence supports WAG’s overly
narrow interpretation of dependent claim 4. The claims
are written using broad language that does not speak to, or
limit, the rate at which individual media data elements are
sent, provided that the overall rate of receipt is more rapid
than the playback rate. Even if WAG is correct that its
claims can be practiced by having each media data element
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IN RE WAG ACQUISITION, LLC 11
be sent at a rate faster than the playback speed, this does
not mean its claims are limited to such embodiments.2
Under the Board’s correct, broader understanding of
the scope of claim 4, substantial evidence supports the
Board’s reading of Hill. Hill provides that under normal
operation, when the buffer manager determines that the
fill level is more than one frame below the request thresh-
old, the buffer manager will request two frames, and ask
the media source to supply those two frames at a rate no
faster than twice the playback speed. From this, the Board
found Hill teaches that the predetermined number of
frames under normal operating conditions is two, and that
the rate can be as high as twice the playback speed. WAG
has demonstrated no error by the Board.
IV
We have considered WAG’s remaining arguments and
find them unpersuasive. The judgment of the Board is af-
firmed.
AFFIRMED
2 In its final written decision, the Board discussed an
IPR proceeding with respect to U.S. Patent No. 8,122,141
(the “’141 patent”), a parent of the ’011 patent at issue here.
WAG contends that the Board improperly relied on its
analysis in the ’141 patent IPR to reach its construction in
connection with claim 4 of the ’011 patent. But there is no
indication that the Board placed dispositive weight – or any
weight at all – on its analysis of the ’141 patent. The Board
only referred to the ’141 patent in connection with rejecting
WAG’s argument that the ’141 construction supported its
proposed construction here.
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