       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

   DRAGON INTELLECTUAL PROPERTY, LLC,
                Appellant

                           v.

  DISH NETWORK LLC, SIRIUS XM RADIO INC.,
                   Appellees
            ______________________

                 2016-2468, 2016-2492
                ______________________

   Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2015-00499, IPR2015-01735.
                ______________________

              Decided: November 1, 2017
               ______________________

    LEI MEI, Mei & Mark LLP, Washington, DC, argued
for appellant.   Also represented by LAURENCE M.
SANDELL.

    ELIOT DAMON WILLIAMS, Baker Botts LLP, Palo Alto,
CA, argued for appellee DISH Network LLC. Also repre-
sented by GEORGE HOPKINS GUY, III; JAMIE ROY LYNN,
Washington, DC.
2      DRAGON INTELLECTUAL PROPERTY    v. DISH NETWORK LLC



   MARK BAGHDASSARIAN, Kramer Levin Naftalis &
Frankel LLP, New York, NY, argued for appellee Sirius
XM Radio Inc. Also represented by SHANNON H. HEDVAT.
               ______________________

      Before MOORE, MAYER, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
    Appellees Dish Network LLC and Sirius XM Radio
Inc. (collectively, “Dish”) sought inter partes review of
claims 1–4, 7–10, 13, and 14 of U.S. Patent No. 5,930,444
before the U.S. Patent and Trademark Office’s Patent
Trial and Appeal Board. The Board instituted review
and, in its final written decision, found all of the chal-
lenged claims obvious over the prior art. Dragon Intellec-
tual Property, owner of the ’444 patent, appeals the
Board’s decision. We affirm.
                        BACKGROUND
    The ’444 patent discloses a “simultaneous recording
and playback apparatus.” ’444 patent col. 1 ll. 1–2. The
patent explains that the apparatus allows a user who
missed a portion of a live broadcast due to a brief inter-
ruption (e.g., a telephone call) to record the missed por-
tion. At the end of the interruption, the user can then
immediately watch the missed portion without having to
either “watch the recorded interrupted portion of the
programming after having watched the end of the pro-
gramming” or skip watching the recording altogether due
to its diminished value after having seen the end of the
programming. Id. at col. 1 ll. 56–58. Dragon explains
that this feature is similar to the “live pause” function of
many digital video recorder devices available today.
DRAGON INTELLECTUAL PROPERTY    v. DISH NETWORK LLC        3



    The independent claims at issue are claims 1 and 14. 1
Claim 1 recites:
    1. A recording and playback apparatus for the
    substantially immediate and seamless resumption
    of interrupted perception of broadcast program in-
    formation based upon audio or video signals, or
    both, without missing the program information
    presented during the interruption, comprising:
    means for powering the apparatus;
    a keyboard having a record key and a playback
    key;
    a control circuit coupled responsively to said key-
    board;
    a memory unit coupled responsively to said con-
    trol circuit, said memory unit having a medium
    for storage of information, said storage medium
    having structure which enables substantially ran-
    dom access to information stored in said medium
    for retrieval of the stored information from said
    storage medium;
    at least one input, said input being connected to a
    user’s audio/video program signal source and also
    being coupled to said memory unit so as to enable
    program information presented by the signal
    source to be transferred to and stored in said
    memory unit; and
    at least one output, said output being connected to
    a user’s audio or video display device or both, said
    output further being connected to said memory
    unit so as to enable the transfer of program in-



    1   As relevant to this appeal, claim 1 is representa-
tive.
4      DRAGON INTELLECTUAL PROPERTY    v. DISH NETWORK LLC



    formation from said memory unit to the user’s
    display device,
    said control circuit being configured so that sub-
    stantially simultaneous recording and playback of
    program information is achieved when
      said record key is first actuated to begin a
      recording by initiating storage of the broad-
      cast program information in said memory
      unit, and
      said playback key is subsequently and solely
      actuated to begin time delay playback of the
      recording from the beginning thereof by ini-
      tiating retrieval of the stored program in-
      formation in said memory unit,
      with the interval of the time delay being the
      same as the time elapsed between the actua-
      tion of said record key and the subsequent
      actuation of said playback key.
Id. at col. 8 ll. 28–64 (emphasis and spacing added to
highlight disputed claim limitation).
    The Board found claims 1, 7–10, and 14 invalid as ob-
vious over U.S. Patent No. 5,241,428 (“Goldwasser”) and
U.S. Patent No. 5,126,982 (“Yifrach”), and claims 2–4 and
13 invalid as obvious over Goldwasser, Yifrach, and
another publication not relevant to this appeal.
    Dragon appeals the Board’s obviousness determina-
tions. We have subject matter jurisdiction pursuant to
28 U.S.C. § 1295(a)(4)(A).
                       DISCUSSION
    Dragon’s argument on appeal centers on a single limi-
tation in the independent claims. In relevant part, claim
1 recites a “control circuit” with a “playback key” that is
“solely actuated” to begin the time-delay playback of a
DRAGON INTELLECTUAL PROPERTY     v. DISH NETWORK LLC        5



specific recording. ’444 patent col. 8 ll. 53–62 (emphasis
added).
    Dragon argues that the Board failed to meaningfully
address the “solely” limitation in its Final Written Deci-
sion, and that the record is devoid of substantial evidence
to support the Board’s finding that the prior art teaches
the “solely” limitation. In response, Dish argues that
Dragon waived its arguments on the “solely” limitation.
We address Dish’s waiver argument first, followed by
Dragon’s non-obviousness arguments.
    Dish argues that by not presenting arguments specific
to the “solely” limitation prior to the oral hearing before
the Board, Dragon abandoned this argument and cannot
raise it on appeal. We disagree. While the “solely” limita-
tion was not the only focus of Dragon’s arguments prior to
oral hearing, the limitation was raised as part of Dragon’s
broader arguments directed to the “control circuit” and
the “playback key.” For example, Dragon argued in its
Patent Owner’s Response before the Board that the
Goldwasser/Yifrach combination fails to teach or suggest
the “control circuit” of claim 1, which, “[i]n particular,” is
“configured to achieve ‘substantially simultaneous record-
ing and playback’ when . . . the ‘playback key is subse-
quently and solely actuated to begin time delay playback
of the recording from the beginning thereof.’” J.A. 1167
(emphasis added). Also, when Dragon presented argu-
ments specific to the “solely” limitation during oral hear-
ing before the Board, neither the Board nor Dish treated
the argument as a new argument. Indeed, Dish did not
argue waiver; nor did the Board find waiver. Moreover,
the Board decided the issue on the merits in its decision.
For these reasons, we reject Dish’s waiver argument. 2



    2   We deny Dish’s motion for sanctions under Rule
38 for the same reasons.
6      DRAGON INTELLECTUAL PROPERTY    v. DISH NETWORK LLC



     We next consider Dragon’s arguments challenging the
Board’s obviousness determination. Obviousness under
§ 103 is a mixed question of law and fact. Harmonic Inc.
v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016).
We review the Board’s ultimate obviousness determina-
tion de novo and underlying factual findings for substan-
tial evidence. Id. “Substantial evidence is something less
than the weight of the evidence but more than a mere
scintilla of evidence,” meaning that “[i]t is such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” In re NuVasive, Inc., 842 F.3d
1376, 1379–80 (Fed. Cir. 2016) (internal quotation marks
and citations omitted).
    Dragon argues that the record lacks sufficient sub-
stantial evidence “to find [the ‘solely’ limitation] satis-
fied.” Appellant Br. 19. Specifically, Dragon argues that
Goldwasser alone does not teach the “solely” limitation,
and that the Board and Dish did not rely on Yifrach for
the “solely” limitation.
     We agree with Dragon that Goldwasser alone does not
teach the “solely” limitation. Goldwasser teaches a simul-
taneous recording and playback device that addresses the
scenario in which a viewer watching a program “must
temporarily cease watching it” to, for example, “take a
telephone call or the like,” and would like to “record the
program from that point forward, complete the telephone
call,” and then “watch the remainder delayed by the
length of time of the interruption.” Goldwasser at col. 1
ll. 43–53. Although Goldwasser teaches a user control
panel to control its recording and playback functions,
Goldwasser does not describe the control panel in detail
and therefore does not teach whether a playback key is
“solely” depressed to enable playback.
    Goldwasser as modified by Yifrach, however, renders
the “solely” limitation obvious. Yifrach teaches a radio
receiver and buffer system that “enables the listener not
DRAGON INTELLECTUAL PROPERTY     v. DISH NETWORK LLC         7



only to hear the radio broadcasts in a real-time manner,
but also to freeze a portion of the broadcast for later
playback whenever desired.” Yifrach at col. 4 ll. 15–18.
The Yifrach system includes a logic circuit “controlled by
two depressible buttons”—a Freeze button and a Playback
button. Id. at col. 4 ll. 27–29. Depressing the Freeze
button starts a recording, while depressing the Playback
button causes playback of the recording that had been
“‘frozen’ by depressing the Freeze button.” Id. at col. 4
ll. 63–68. In teaching the use of only one button to “select
the Playback Mode,” id., Yifrach teaches that the Play-
back button is “solely” depressed to begin playback of the
recording.
    We disagree with Dragon’s contention that the Board
and Dish did not rely on Yifrach in their analysis of
whether the prior art teaches the “solely” limitation.
Contrary to Dragon’s contention, the Board specifically
found that the “solely” limitation was taught by the
combination of Goldwasser and Yifrach. See, e.g., Dish
Network L.L.C., No. IPR2015-00499, 2016 WL 3268756, at
*8 (PTAB June 15, 2016). Indeed, the Board stated:
    Goldwasser’s address controller, when viewed in
    light of Yifrach’s two-button interface and
    Goldwasser’s user control panel, would have
    taught one of ordinary skill in the art a control
    circuit configured to allow for simultaneous re-
    cording when the record key is actuated to begin a
    recording and playback when the playback key is
    subsequently and solely actuated to begin play-
    back.
Id. (emphases added). Similarly, Dish relied on Yifrach in
its petition when addressing the “solely” limitation. See,
e.g., J.A. 88–90 (citing Yifrach at col. 4 l. 46 – col. 5 l. 6,
and Figure 2); J.A. 91 (concluding that “[implementing]
Goldwasser’s control panel 50 as ‘a keyboard having a
record key and a playback key’” would be obvious based in
8       DRAGON INTELLECTUAL PROPERTY   v. DISH NETWORK LLC



part on the assertion that “Yifrach discloses a keyboard
with a separate key to record and playback recorded
program information”).
    Dragon also argues that the Board failed to meaning-
fully address the “solely” limitation in its obviousness
analysis. We disagree. The Board in several instances
explained that Goldwasser in view of Yifrach teaches the
claimed playback key or two-button interface. In doing
so, the Board used the term “playback key” as shorthand
to refer to an entire claim element, which includes the
“solely” term, and states: “said playback key is subse-
quently and solely actuated to begin time delay playback
of the recording from the beginning thereof by initiating
retrieval of the stored program information in said
memory unit.” ’444 patent col. 8 ll. 57–61. Therefore, in
addressing the “playback key,” the Board also addressed
the “solely” limitation. 3 See, e.g., Dish, 2016 WL 3268756,
at *6 (finding that in Yifrach, recorded material may be
“played back when the user depresses the playback but-
ton” and “Yifrach’s playback and freeze keys combined
with Goldwasser’s simultaneous recording and playback
would have taught one of ordinary skill in the art the
claimed ‘keyboard having a record key and a playback
key’”).
    We also read the Board’s discussion of Yifrach’s two-
button interface as addressing the “solely” limitation,
since depressing Yifrach’s freeze button starts a recording
and depressing Yifrach’s playback button starts playback
of that recording. See, e.g., id. (“Yifrach is a reference


    3   The Board’s treatment of the “solely” limitation as
part of the “playback key” limitation is consistent with
Dragon’s own treatment of the limitation. See J.A. 1163–
72 (discussing the “solely” limitation only as a part of its
arguments on “control circuit” and “keyboard having a
record key and a playback key”).
DRAGON INTELLECTUAL PROPERTY   v. DISH NETWORK LLC       9



that uses such a two-button interface.”); id. at *8 (“We
find that Goldwasser’s address controller, when viewed in
light of Yifrach’s two-button interface and Goldwasser’s
user control panel, would have taught one of ordinary
skill in the art a control circuit configured to allow for
simultaneous recording when the record key is actuated
to begin a recording and playback when the playback key
is subsequently and solely actuated to begin playback.”);
id. (“Petitioner’s ground is directed to implementing
Goldwasser’s user control panel with a two-button user
interface as described in Yifrach.”). For these reasons, we
reject Dragon’s argument that the Board failed to mean-
ingfully address the “solely” limitation.
                       CONCLUSION
    We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons stated
above, we affirm the Board’s obviousness determinations
as to claims 1–4, 7–10, 13, and 14.
                      AFFIRMED
                          COSTS
   No costs.
