Case: 21-1931 Document: 40 Page: 1 Filed: 06/27/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NETFLIX, INC., HULU, LLC,
Appellants
v.
DIVX, LLC,
Appellee
______________________
2021-1931
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2020-
00052.
______________________
Decided: June 27, 2022
______________________
HARPER BATTS, Sheppard Mullin Richter & Hampton
LLP, Menlo Park, CA, argued for appellants. Also repre-
sented by JEFFREY LIANG, CHRISTOPHER SCOTT PONDER;
MATTHEW G. HALGREN, San Diego, CA.
KENNETH J. WEATHERWAX, Lowenstein & Weatherwax
LLP, Santa Monica, CA, argued for appellee. Also
represented by PARHAM HENDIFAR, NATHAN NOBU
LOWENSTEIN.
______________________
Case: 21-1931 Document: 40 Page: 2 Filed: 06/27/2022
2 NETFLIX, INC. v. DIVX, LLC
Before LOURIE, BRYSON, and HUGHES, Circuit Judges.
BRYSON, Circuit Judge.
Appellants Netflix, Inc., and Hulu, LLC, (collectively,
“petitioners”) petitioned for inter partes review of U.S. Pa-
tent No. 8,139,651 (“the ’651 patent”), which is owned by
appellee DivX, LLC. The Patent Trial and Appeal Board
instituted an inter partes review, and in its Final Written
Decision, the Board held that none of the challenged claims
were unpatentable based on the grounds asserted in the
petition. We affirm in part, vacate in part, and remand.
I
A
The ’651 patent is directed to “methods of deblocking
compressed video.” ’651 patent, col. 1, ll. 15–16. In gen-
eral, digital videos consist of a series of frames, each of
which contains numerous pixels. Id. at col. 1, ll. 17–19.
Although digital video files in their native form are typi-
cally very large, the file size of a video can be reduced using
“compression schemes” that “achieve significant reductions
in the amount of digital data required to encode a video se-
quence.” Id. at col. 1, ll. 19–24.
Some compression schemes, such as that used by the
well-known “MPEG-4” encoding standard, divide each
frame of a video into separately encoded blocks of pixels.
Id. at col. 1, ll. 25–29. When a video frame is reconstructed
from the separately encoded blocks, however, “artifacts”
that reduce the overall quality of the image can appear at
the boundaries between the blocks. Id. at col. 1, ll. 29–34.
In their opening brief, petitioners illustrate that phenome-
non with a photograph made up of a large number of blocks
of pixels, each block consisting of a small square with de-
fined edges. See Appellants’ Br. 5. Those edges are the
“artifacts” described in the specification of the ’651 patent.
The ’651 patent discloses that a deblocking filter can be
Case: 21-1931 Document: 40 Page: 3 Filed: 06/27/2022
NETFLIX, INC. v. DIVX, LLC 3
applied to “smooth out [the] edges” created by the squares
in the photograph. Id. at 5–6.
Claim 1 is the only independent claim of the ’651 pa-
tent. It recites:
1. A method of deblocking a reconstructed video
frame, comprising:
identifying a boundary between two blocks
of the reconstructed video frame;
determining the level of detail of the recon-
structed video frame across a region in
which the block boundary is located,
wherein the region includes pixels from
multiple rows and multiple columns of the
reconstructed video frame that encompass
pixels immediately adjacent to at least two
sides of the block boundary and includes at
least one pixel that is not immediately ad-
jacent to the block boundary;
selecting a filter to apply to predetermined
pixels on either side of the block boundary
based upon the determined level of detail.
’651 patent, claim 1.
The dispute in this appeal relates to the second method
step, which requires “determining the level of detail of the
reconstructed video frame.” Id. The specification discloses
the following formula for calculating the level of detail in
several of the embodiments of the ’651 patent:
where i is the number of rows in the region and j is the
number of columns in the region. Id. at col. 3, ll. 46–57.
Case: 21-1931 Document: 40 Page: 4 Filed: 06/27/2022
4 NETFLIX, INC. v. DIVX, LLC
That calculation is commonly referred to as the “sum of ab-
solute differences” or “SAD” calculation. See id. at col. 8,
ll. 61–63. As applied to a particular region having a hori-
zontal block boundary, the SAD calculation would require
determining the absolute difference between each pair of
vertically adjacent pixels and summing those differences. 1
Id. at col. 9, ll. 6–10. What results is a measure that ap-
proximates the level of variation among pairs of adjacent
pixels within the region of interest.
The SAD calculation is explicitly recited in dependent
claims 2 and 4 of the ’651 patent. Those claims recite:
2. The method of claim 1, wherein the determina-
tion of the level of detail of the reconstructed video
frame in a region in which the block boundary is
located further comprises taking the sum of the ab-
solute difference of at least some of the pixels
within a set of pixels surrounding the block bound-
ary.
4. The method of claim 2, wherein the set of pixels
is an 8x8 block that is evenly divided by the hori-
zontal block boundary.
B
The petition for inter partes review of the ’651 patent
raised three grounds of invalidity. First, petitioners as-
serted that claims 1, 17, and 18 of the ’651 patent were an-
ticipated by
U.S. Patent No. 6,504,873 (“Vehviläinen”) and
were therefore unpatentable under
35 U.S.C. § 102. Sec-
ond, petitioners asserted that claims 1 and 17–19 of the
’651 patent would have been obvious in view of Vehviläinen
1 The numerical value that corresponds to each pixel
typically represents either the “chrominance” or the “lumi-
nance” of the pixel. See ’651 patent, col. 3, line 56;
id. at
col. 4, line 1.
Case: 21-1931 Document: 40 Page: 5 Filed: 06/27/2022
NETFLIX, INC. v. DIVX, LLC 5
and were therefore unpatentable under
35 U.S.C. § 103.
Third, petitioners asserted that claims 1, 2, 4, and 17–19 of
the ’651 patent would have been obvious in view of the com-
bination of Vehviläinen and U.S. Patent Pub. No.
2004/0076237 (“Kadono”) and were therefore unpatentable
under section 103.
Like the ’651 patent, the Vehviläinen reference dis-
closes methods for deblocking compressed video files. The
specification of Vehviläinen teaches that the choice of filter
to be applied at a particular block boundary should be
“based on the measurement of both edge variance [i.e., var-
iance among a set of pixels closest to the block boundary]
and variance inside the block [i.e., variance among a larger
region of pixels within the block]. ” Vehviläinen, col. 9, ll.
8–10.
Vehviläinen discloses two methods for calculating the
variance across a region of pixels. First, Vehviläinen dis-
closes a traditional formula for calculating variance:
Id. at col. 10, line 35. In that equation, N refers to the num-
ber of pixels in the region, 𝑥𝑥𝑖𝑖 refers to the numerical value
of a given pixel in the region, and 𝑥𝑥̅ refers to the mean nu-
merical value of all the pixels in the region.
Id. at col. 10,
ll. 40–43. The variance calculation compares the value of
each individual pixel in the region with the average value
of all the pixels in the region.
Vehviläinen notes that performing the “[n]ormal vari-
ance calculation is an exhausting operation,” and therefore
as an alternative it discloses the “min-max approximation,”
which it asserts is a simpler method for estimating the var-
iance.
Id. at col. 10, ll. 32, 43–45. The min-max approxi-
mation is defined by the following equation:
Case: 21-1931 Document: 40 Page: 6 Filed: 06/27/2022
6 NETFLIX, INC. v. DIVX, LLC
Id. at col. 10, line 47. In that calculation, 𝑥𝑥𝑚𝑚𝑚𝑚𝑚𝑚 refers to the
highest numerical value of all the pixels in the given re-
gion, and 𝑥𝑥𝑚𝑚𝑚𝑚𝑚𝑚 refers to the lowest numerical value of all
the pixels in the region.
Id. at col. 10, ll. 52–55. That ver-
sion of the variance calculation thus compares only the two
pixels in the region that have the largest and smallest nu-
merical values.
Kadono also discloses methods for deblocking com-
pressed video files. In one embodiment, Kadono discloses
comparing a series of pixels using “the sum of the absolute
values of the difference[s]” between the pixels to determine
whether to apply a “deblocking operation,” and if so, which
deblocking operation to apply. Kadono, ¶¶ 203–07.
In addition to disclosing the use of the SAD calculation,
Kadono discloses an “omega threshold,” which is a thresh-
old that is used to determine whether a stronger filter can
be applied once it is determined that a region is smooth.
Id. at ¶ 125 (“[I]f the pixel difference is small . . . Ω is there-
fore preferably set so that a stronger filter . . . is applied
based on whether the pixel difference is extremely low (less
than Ω) . . . .”).
C
In its Institution Decision, the Board construed the
claim term “level of detail” to mean “level of variation in
visual elements across adjacent pixels”; the Board reaf-
firmed that construction in its Final Written Decision. Net-
flix Inc. v. DivX, LLC, No. IPR2020-00052,
2021 WL
1582150, at *5 (P.T.A.B. Apr. 22, 2021). In adopting that
construction, the Board relied upon a statement in the
specification of the ’651 patent indicating that that the
term “detail” refers to “visual elements of a video frame
Case: 21-1931 Document: 40 Page: 7 Filed: 06/27/2022
NETFLIX, INC. v. DIVX, LLC 7
that vary significantly across adjacent pixels.”
Id. (quoting
’651 patent, col. 1, ll. 55–57).
Applying that construction, the Board found that Ve-
hviläinen did not anticipate claim 1 of the ’651 patent be-
cause Vehviläinen did not disclose the “determining the
level of detail” step of the claim. The Board reasoned that
the variance calculation disclosed in Vehviläinen does not
determine “the level of variation in visual elements across
adjacent pixels.”
Id. at *9. In the Board’s view, to conclude
that Vehviläinen discloses that limitation would “elimi-
nate[] the requirement that detail be calculated across ad-
jacent pixels, improperly broadening the limitation to a
determination of variation in visual elements across the en-
tire claimed region.”
Id.
The Board also found that there was no motivation to
combine Vehviläinen with Kadono. The Board noted that
“select[ing] a filter based on the differences between adja-
cent pixels [as in Kadono] rather than variance across the
region would have been understood by an ordinarily skilled
artisan as changing the basic principle of Vehviläinen’s op-
eration.”
Id. at *14. The Board reached that conclusion by
relying upon language in the specification of Vehviläinen
stating that “adjacent video pixels as such are not filtered
in comparison with each other.”
Id. (quoting Vehviläinen,
col. 2, ll. 41–45) (emphasis omitted). The Board did not ad-
dress petitioners’ separate argument that the omega
threshold disclosed in Kadono could be combined with Ve-
hviläinen. See J.A. 129–36.
II
On appeal, petitioners raise three issues: (1) whether
the Board properly construed the term “level of detail”; (2)
whether substantial evidence supports the Board’s finding
that Vehviläinen does not disclose the “determining the
level of detail” step of claim 1; and (3) whether the Board
erred in finding that a skilled artisan would not have been
motivated to combine Vehviläinen with Kadono.
Case: 21-1931 Document: 40 Page: 8 Filed: 06/27/2022
8 NETFLIX, INC. v. DIVX, LLC
We review the Board’s claim construction de novo and
the Board’s factual findings regarding anticipation and
motivation to combine for substantial evidence. See Accel-
eration Bay, LLC v. Activision Blizzard Inc.,
908 F.3d 765,
769 (Fed. Cir. 2018).
With regard to the claim construction issue, petitioners
argue that the Board applied an unduly narrow construc-
tion of the claim term “level of detail.” Specifically, peti-
tioners allege that in its analysis of Vehviläinen the Board
construed “level of detail” to require calculation of the var-
iation between adjacent pixels rather than across adjacent
pixels. According to petitioners, the Board’s construction
had the effect of narrowing the method of determining
“level of detail” to include only calculations based on the
sum of absolute differences in the values between adjacent
pixels.
We agree with petitioners that in construing the claim
limitation “determining the level of detail . . . across a re-
gion in which the block boundary is located” the Board held
that the method of claim 1 of the ’651 patent required com-
parison of values between pairs of adjacent pixels. The
Board’s construction excluded Vehviläinen’s calculation
method because that method does not directly compare the
value of any particular pixel to the value of an adjacent
pixel. An examination of the language of claim 1 and the
specification of the ’651 patent leads us to conclude that
claim 1 is not limited in that fashion.
By its terms, claim 1 is quite broad. The language of
the claim is not specific as to the methodology to be used in
the level-of-detail calculation, nor does it specify what type
of filter should be applied based upon the determined level
of detail. See ’651 patent, claim 1. Rather, claim 1 simply
provides that the level of detail is calculated “across a re-
gion in which the block boundary is located.”
Id.
Principles of claim differentiation indicate that the
term “level of detail,” as used in claim 1, encompasses more
Case: 21-1931 Document: 40 Page: 9 Filed: 06/27/2022
NETFLIX, INC. v. DIVX, LLC 9
than just the SAD calculation. The SAD calculation is re-
cited in dependent claim 2 (and, by extension, in several
other claims that depend from claim 2), which is strong ev-
idence that claim 1 necessarily encompasses more subject
matter than claim 2. See Littelfuse, Inc. v. Mersen USA EP
Corp.,
29 F.4th 1376, 1380 (Fed. Cir. 2022) (“By definition,
an independent claim is broader than a claim that depends
from it . . . .”); Intamin Ltd. v. Magnetar Techs., Corp.,
483
F.3d 1328, 1335 (Fed. Cir. 2007) (“An independent claim
impliedly embraces more subject matter than its narrower
dependent claim.”).
DivX suggested to the Board that claim differentiation
does not apply in this case because there could be other
methods for determining the level of variation between
pairs of immediately adjacent pixels that do not use the
SAD calculation. J.A. 3423. For instance, one might sum
the squares of the differences between adjacent pixels or
compute the sum of differences without taking the absolute
value of those differences (as the SAD calculation requires).
See
id.
Both of those alternative calculation methods would
appear to fall within the scope of claim 1 even under the
Board’s narrow interpretation of the scope of that claim.
For that reason, DivX’s argument demonstrates that claim
differentiation does not fully resolve the claim construction
issue. Nevertheless, the difference between claims 1 and 2
provides guidance as to the scope of claim 1 because claim
2 prescribes a specific methodology for determining the
level of detail across a region of a video frame, while claim
1 does not.
The specification provides further insight into the
meaning of the term “level of detail” as used in claim 1 of
the ’651 patent. It explains that “detail” refers to “visual
elements of a video frame that vary significantly across ad-
jacent pixels.”
Id. at col. 1, ll. 55–57. The specification of-
fers that description in contrast to the term “smooth,”
Case: 21-1931 Document: 40 Page: 10 Filed: 06/27/2022
10 NETFLIX, INC. v. DIVX, LLC
which refers to “a region of a video frame where the [pixel
values] either do not vary or vary gradually across adjacent
pixels.”
Id. at col. 1, ll. 53–55.
Nothing in the specification indicates that the term
“detail” was intended to require that the level-of-detail cal-
culation involve a direct comparison between the values of
immediately adjacent pixels. In light of the reference in
claim 1 to determining the level of detail “across a region,”
the use of the phrase “across adjacent pixels” in the speci-
fication is best understood to refer to the degree of varia-
tion in pixel values across a region of contiguous pixels (i.e.,
a region in which each pixel is adjacent to at least one other
pixel in the region), rather than being limited to a determi-
nation of variation based on direct comparisons of value be-
tween adjacent pairs of pixels.
The specification’s use of the phrase “vary gradually
across adjacent pixels” is instructive in this regard, as it
suggests that determining whether a region is “smooth” or
“detailed” depends on the degree of variation across a re-
gion of contiguous pixels. There is no reason that a system
that does not rely on direct comparison of individual adja-
cent pixels, but instead compares the pixels in the region
to some other reference point (e.g., the mean pixel value),
would not be at least as capable of determining whether
pixel values vary gradually across a region of contiguous
pixels as a system that relies on an aggregation of the dif-
ferences in value between individual adjacent pixels.
In light of the breadth of claim 1 and the discussion of
the terms “detail” and “smooth” in the specification, we con-
strue the claim term “level of detail” to mean “level of var-
iation in visual elements across a region of pixels.” Because
the Board’s construction of claim 1 was limited to a method
that depended on determining the differences in value be-
tween pairs of adjacent pixels, we hold that the Board’s in-
terpretation of claim 1 was too narrow. We therefore
vacate the Board’s ruling on the validity of claim 1 and
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NETFLIX, INC. v. DIVX, LLC 11
remand this case for the Board to consider whether Ve-
hviläinen discloses the “determining the level of detail”
step of claim 1 under the proper construction of that step.
III
Petitioners also challenge the Board’s finding that a
skilled artisan would not have been motivated to combine
Vehviläinen with the SAD calculation disclosed in Kadono.
We hold that the Board’s finding is supported by substan-
tial evidence, and we therefore affirm the Board’s decision
on that issue.
Petitioners raise several objections to the Board’s rul-
ing on the motivation-to-combine issue. First, petitioners
argue that the Board violated the Administrative Proce-
dure Act (“APA”) by relying on an argument not raised in
the briefs. Second, they argue that the Board’s finding that
applying Kadono’s SAD calculation would change the prin-
ciple of operation of Vehviläinen is unsupported by sub-
stantial evidence. Third, they argue that the Board erred
in excluding its arguments regarding “SIMD instructions.”
Fourth, they argue that the Board failed to address the pe-
titioners’ argument regarding Kadono’s omega threshold.
A
In their APA argument, petitioners object to the
Board’s statement that using Kadono’s SAD calculation
would “chang[e] the basic principle of Vehviläinen’s opera-
tion.” Netflix,
2021 WL 1582150, at *14. Petitioners argue
that the principle-of-operation line of reasoning was raised
for the first time in the Board’s Final Written Decision, and
that they were denied an opportunity to respond to it. See
Appellants’ Br. 52–54.
Petitioners’ argument focuses too narrowly on the
Board’s choice of language, and in particular the Board’s
use of the phrase “principle of operation.” In its Patent
Owner Response, DivX argued that there would be no mo-
tivation to combine Kadono with Vehviläinen, in part
Case: 21-1931 Document: 40 Page: 12 Filed: 06/27/2022
12 NETFLIX, INC. v. DIVX, LLC
because “Vehviläinen expressly seeks to avoid even the
general type of filtering (low pass filtering) that both the
[’651] Patent and Kadono utilize.” J.A. 1779. DivX’s ex-
pert, Dr. Chandrajit Bajaj, echoed that argument in his re-
port, in which he noted that “Vehviläinen’s filter
application decision process matches its filter application
process, and also does not analyze adjacent pixels in com-
parison with their adjacent pixels.” J.A. 2100, ¶ 62. Those
arguments are consistent with the Board’s reasoning; the
only difference is that they do not use the phrase “principle
of operation.” Accordingly, we reject petitioners’ argument
that the Board’s conclusions represent a new argument to
which they were denied an opportunity to respond.
B
Petitioners next argue that the Board’s finding that
Kadono would change Vehviläinen’s principle of operation
is unsupported by substantial evidence. Petitioners argue
that “the only portion of the evidentiary record that even
discusses or references the principle of operation for the
‘level of detail’” is the testimony of their expert, Dr. Victor
Michael Bove, in which he stated that replacing Ve-
hviläinen’s variance calculation with Kadono’s SAD calcu-
lation “would not have changed the principle of operation
for either reference.” Appellants’ Br. 54–55 (quoting J.A.
1131–32, ¶ 144). The Board, however, found that testi-
mony “unpersuasive” due to “the inconsistencies between
Dr. Bove’s testimony and the teachings of Vehviläinen.”
Netflix,
2021 WL 1582150, at *15.
More generally, petitioners’ argument suffers from the
same flaw as their APA argument, which is that it focuses
too narrowly on the specific phrase “principle of operation.”
Dr. Bajaj’s report provides support for the Board’s finding,
as he notes that the filter selection approach in Ve-
hviläinen (which relies on the variance calculation) is “ex-
actly contrary” to the SAD calculation. J.A. 2100–2101, ¶
62. We therefore hold that the Board’s finding that
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NETFLIX, INC. v. DIVX, LLC 13
Kadono’s SAD calculation would have changed the princi-
ple of operation of Vehviläinen is supported by substantial
evidence.
C
Petitioners next argue that the Board improperly
deemed their arguments regarding “single instruction mul-
tiple data” (“SIMD”) instructions to be forfeited. Petition-
ers argued in their petition that “Kadono teaches
performance optimizations to accelerate SAD calculations
. . . on SIMD . . . processors.” J.A. 128. In petitioners’ view,
a skilled artisan therefore “would have been motivated to
apply Kadono’s teaching to improve Vehviläinen[] . . . par-
ticularly for use on SIMD computer platforms.”
Id. Peti-
tioners added in their reply brief before the Board that
“[t]here are certain SIMD instruction sets that explicitly
can calculate [SAD] in parallel on multiple pixels at on[c]e.”
J.A. 2670.
In its Final Written Decision, the Board held that
DivX’s arguments regarding SIMD instruction sets were
forfeited because they were raised for the first time in re-
ply. Netflix,
2021 WL 1582150, at *15 n.11. The Board did
not hold that petitioners’ arguments regarding SIMD pro-
cessors in general were forfeited, as those arguments were
raised in the petition. See
id. at *15. We therefore do not
agree with petitioners that the Board improperly excluded
their specific arguments regarding SIMD instructions.
In any event, the Board held that “[e]ven if not for-
feited, we are not persuaded that the use of [SIMD] instruc-
tions support a motivation to combine given our
determination that use of Kadono’s SAD calculation would
change Vehviläinen’s basic principle of operation.”
Id. at
*15 n.11. As noted above, the Board’s finding regarding
Vehviläinen’s principle of operation is supported by sub-
stantial evidence. In their briefing on appeal, petitioners
have offered no reason to believe that the use of SIMD pro-
cessors or instructions is enough to overcome the fact that
Case: 21-1931 Document: 40 Page: 14 Filed: 06/27/2022
14 NETFLIX, INC. v. DIVX, LLC
Kadono’s SAD calculation method would significantly
change the operation of Vehviläinen. See Appellants’ Br.
61–62 (offering no argument other than that the Board’s
conclusion relies on the principle-of-operation analysis that
petitioners allege was erroneous). Accordingly, the Board
did not err in its treatment of petitioners’ arguments re-
garding SIMD instructions.
D
Petitioners’ final argument is that the Board failed to
consider their alternative argument regarding the omega
threshold disclosed in Kadono. In addition to their argu-
ments regarding Kadono’s SAD calculation, petitioners ar-
gue that Kadono’s omega threshold could be used to
provide additional filtering in very smooth regions as part
of Vehviläinen’s filter selection process. Petitioners cor-
rectly point out that the Board did not address their omega-
threshold argument in its Final Written Decision. See Net-
flix,
2021 WL 1582150, at *14–16. The Board mentioned
Kadono’s omega threshold argument in its Final Written
Decision, but only as part of its summary of petitioners’ ar-
guments.
Id. at *12.
Petitioners’ argument regarding Kadono’s omega
threshold, however, is different on appeal from the argu-
ment they raised before the Board. In their opening brief
on appeal, petitioners argue that a skilled artisan could ap-
ply “Kadono’s omega threshold, paired with Kadono’s filter,
to Vehviläinen Step 80 [of Figure 6] without altering Ve-
hviläinen’s other filters or detail calculations.” Appellants’
Br. 65. That argument is different from the argument pe-
titioners made before the Board, where they argued that
the proposed combination of Kadono and Vehviläinen “does
not use Kadono’s filters; it applies Kadono’s selection teach-
ings ([omega] threshold and SAD).” J.A. 2672. That dis-
tinction is important given the Board’s reliance on the fact
that Vehviläinen’s variance calculation is closely tied to its
choice of filter. Netflix,
2021 WL 1582150, at *14. The
Case: 21-1931 Document: 40 Page: 15 Filed: 06/27/2022
NETFLIX, INC. v. DIVX, LLC 15
suggestion that Kadono’s filter might be used in a way that
maintains Vehviläinen’s primary principle of operation
could change the motivation-to-combine analysis, but that
argument was raised for the first time on appeal and is
therefore forfeited.
Petitioners’ arguments regarding the motivation to
combine Kadono with Vehviläinen are unpersuasive. Be-
cause the petition challenged claims 2 and 4 only on the
ground of obviousness in view of Vehviläinen and Kadono,
we uphold the Board’s decision rejecting petitioners’ argu-
ment that those two claims are unpatentable.
IV
In summary, because the Board applied an improperly
narrow construction of the term “level of detail” in claim 1
of the ’651 patent, we vacate the Board’s construction of
that term along with its findings regarding whether Ve-
hviläinen discloses the level-of-detail step of claim 1. Be-
cause the Board’s finding that a skilled artisan would not
be motivated to combine Vehviläinen with Kadono is sup-
ported by substantial evidence, we affirm the Board’s deci-
sion as to dependent claims 2 and 4.
On remand, should the Board find that Vehviläinen
discloses the level-of-detail step of claim 1 under the proper
construction, it should address DivX’s remaining argu-
ments for finding that claim 1 is not unpatentable. See Ap-
pellee’s Br. 65–66.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.
