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Netflix appeals from a Final Written Decision finding
DivX counters that not only did the Board correctly construe the claim limitations of the '920 patent, but that Netflix also waived any right to argue that the Board erred in construing the claim term. According to DivX, Netflix was on notice of the Board's understanding of the claims following the Board's institution, and that Netflix failed to assert its alternative claim-construction theories throughout the Board proceedings. Even if the argument were not waived, DivX argues that the construction was appropriate because the phrase "the content" refers to the "encrypted content" "obtain[ed]" by the playback device, thus limiting "encrypted content" to necessarily "include[] frames of video." DivX further argues that Netflix improperly attempts to construe the claim term "at least a portion of a plurality of frames of video are encrypted" to encompass obtaining "portions of frames." DivX argues that the term "portion" in this context refers to a "portion" of the frame being encrypted, not obtaining content that includes only "portions" of complete video frames. In response to Netflix's argument regarding the prior-art reference's disclosure of whole frames, DivX asserts that the prior art never mentions the use of "frames," contrary to Netflix's contention that a "scrambled broadcast signal" discloses whole encrypted frames.
Respondents
The ITC, on the other hand, asserts that the Commission properly found that the Respondents induced its customers to infringe the asserted claims because the Federal Circuit's Suprema case established that a section 1337 violation could be based on importation of an article that induced direct infringement after importation. The ITC further asserts that the Respondents' own briefing in the proceeding recognized that the "articles that . . . infringe" requirement of section 1337(a)(1)(B) extends to induced infringement and that the Respondents incorrectly suggest that induced infringement of an apparatus claim is an improper "expansion" of Federal Circuit precedent. Finally, the ITC counters that the Respondents' "nexus" requirement has no support in either ITC or Federal Circuit precedent, and that the concept of a "nexus" is irrelevant to whether an article has been imported.
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