  United States Court of Appeals
      for the Federal Circuit
               ______________________

             PERSONAL AUDIO, LLC,
                   Appellant

                          v.

     ELECTRONIC FRONTIER FOUNDATION,
                   Appellee
            ______________________

                     2016-1123
               ______________________

    Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2014-
00070.
                 ______________________

               Decided: August 7, 2017
               ______________________

   JEREMY SETH PITCOCK, The Pitcock Law Group, New
York, NY, argued for appellant. Also represented by
PAPOOL SUBHASH CHAUDHARI, Chaudhari Law, PLLC,
Wylie, TX.

   NICHOLAS A. BROWN, Greenberg Traurig LLP, San
Francisco, CA, argued for appellee.

    JAMES R. BARNEY, Finnegan, Henderson, Farabow,
Garrett & Dunner, LLP, Washington, DC, for amicus
curiae Unified Patents Inc. Also represented by DAVID
MROZ, PHILIP ANDREW RILEY; JONATHAN RUDOLPH
2   PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION



KOMINEK STROUD, KEVIN JAKEL, Unified Patents Inc.,
Washington, DC.

    KEVIN J. CULLIGAN, Maynard, Cooper & Gale, PC,
New York, NY, for amicus curiae Askeladden, L.L.C. Also
represented by JOHN P. HANISH; BRIAN TIMOTHY BURGESS,
Goodwin Procter LLP, Washington, DC.
                ______________________

    Before NEWMAN, CLEVENGER, and O’MALLEY, Circuit
                       Judges.
NEWMAN, Circuit Judge.
    Personal Audio, LLC appeals the decision of the Pa-
tent Trial and Appeal Board (PTAB or “Board”) in inter
partes review (IPR) of United States Patent No. 8,112,504
(“the ’504 Patent”). This IPR was instituted on petition of
the Electronic Frontier Foundation (“EFF”), described as
a non-profit organization that advocates in the public
interest of consumers of digital technology. The PTAB
held claims 31–35 of the ’504 Patent unpatentable as
anticipated under 35 U.S.C. § 102 and/or obvious under
35 U.S.C. § 103, leading to this appeal. 1 On the merits of
the appeal, we affirm the judgment of unpatentability.
                      BACKGROUND
    The ’504 Patent, entitled “System for Disseminating
Media Content Representing Episodes in a Serialized
Sequence,” is directed to a system and apparatus for
storing and distributing episodic media files. Personal
Audio describes the ’504 Patent as directed to podcast
technology. A podcast is a digital media file made availa-



    1   Electronic Frontier Foundation v. Personal Audio,
LLC, No. IPR2014-00070, 2014 WL 8584938 (P.T.A.B.
April 10, 2014) (“PTAB Op.”).
PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION 3



ble through web syndication, in which new installments
or “episodes” are automatically received by subscribers.
    The ’504 Patent claims an apparatus whose compo-
nents receive and control playback of the episodes. Claim
31 was agreed to be representative:
   31. Apparatus for disseminating a series of epi-
   sodes represented by media files via the Internet
   as said episodes become available, said apparatus
   comprising:
       one or more data storage servers,
       one or more communication interfaces
       connected to the Internet for receiving re-
       quests received from remotely located cli-
       ent devices, and for responding to each
       given one of said requests by downloading
       a data file identified by a URL specified by
       said given one of said requests to the re-
       questing client device,
       one or more processors coupled to said one
       or more data storage servers and to said
       one or more communications interfaces
       for:
       storing one or more media files represent-
       ing each episode as said one or more me-
       dia files become available, each of said one
       or more media files being stored at a stor-
       age location specified by a unique episode
       URL;
       from time to time, as new episodes repre-
       sented in said series of episodes become
       available, storing an updated version of a
       compilation file in one of said one or more
       data storage servers at a storage location
       identified by a predetermined URL, said
4   PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION



        updated version of said compilation file
        containing attribute data describing cur-
        rently available episodes in said series of
        episodes, said attribute data for each giv-
        en one of said currently available episodes
        including displayable text describing said
        given one of said currently available epi-
        sodes and one or more episode URLs speci-
        fying the storage locations of one or more
        corresponding media files representing
        said given one of said episodes; and
        employing one of said one or more com-
        munication interfaces to:
        (a) receive a request from a requesting cli-
        ent device for the updated version of said
        compilation file located at said predeter-
        mined URL;
        (b) download said updated version of said
        compilation file to said requesting client
        device; and
        (c) thereafter receive and respond to a re-
        quest from said requesting client device
        for one or more media files identified by
        one or more corresponding episode URLs
        included in the attribute data contained in
        said updated version of said compilation
        files.
EFF requested inter partes review of claims 31–35, on the
ground, first, that the claims are anticipated by Andrew
S. Patrick et al., CBC Radio on the Internet: An Experi-
ment in Convergence, 21 Can. J. of Commc’n 125 (1996),
available at http://www.cjconline.ca/indexphp/journal/
article/view/926/832 (“Patrick/CBC”) (pagination infra is
to online version). Patrick/CBC describes an experi-
mental trial conducted in 1996 to determine if there was
PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION 5



demand for regular radio programming distributed as
digital audio files over the Internet. In that trial “the
Quirks & Quarks science magazine show was recorded
each week, broken down into its component parts, and
made available on the server.” Patrick/CBC at 3. The
components, or “segments,” were described in accompany-
ing text available as part of a menu. Id. at 7.
    EFF also requested inter partes review on the ground
that claims 31–35 were invalid for obviousness, in view of
a thesis of Charles L. Compton entitled Internet CNN
NEWSROOM: The Design of a Digital Video News Maga-
zine (May 12, 1995) (B.S. and M.E. Thesis, Massachusetts
Institute of Technology) (“Compton/CNN”). The thesis
describes a searchable digital video library based on the
CNN NEWSROOM program, wherein each fifteen-minute
video program is broken into individual news stories or
segments, then converted to digital video files presented
in a Table of Contents along with a short text summary,
and made available at a URL containing the date of the
broadcast. Id. at 14. Compton/CNN states that the
system can be used for “any other program for which
users might want to be able to see past episodes (i.e.,
other news programs, sitcoms, soap operas . . .).” Id. at
29. Granting EFF’s Petition, the PTAB instituted review
on the grounds of anticipation in view of Patrick/CBC and
obviousness in view of Compton/CNN.
    The PTAB construed “episode” as “a program seg-
ment, represented by one or more media files, which is
part of a series of related segments, e.g., a radio show or a
newscast.” PTAB Op. at *5. The PTAB construed “compi-
lation file” as “a file that contains episode information.”
Id. at *6. Based on the constructions of these terms, the
PTAB held that the challenged claims are anticipated by
CBC/Patrick and obvious over CNN/Compton.
                              I
   “Standing” of Electronic Frontier Foundation
6   PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION



    We asked the parties to brief the question of whether
EFF has standing to participate in this appeal, in view of
the court’s holding in Consumer Watchdog v. Wisconsin
Alumni Research Foundation, 753 F.3d 1258 (Fed. Cir.
2014), that a PTAB petitioner that does not meet the
Article III case-or-controversy requirement does not have
standing to invoke judicial power, and thus does not have
standing to appeal to this court from a PTAB decision on
inter partes reexamination.      The court in Consumer
Watchdog stated that “although Article III standing is not
necessarily a requirement to appear before an adminis-
trative agency, once a party seeks review in a federal
court, ‘the constitutional requirement that it have stand-
ing kicks in.’” Id. at 1261 (quoting Sierra Club v. E.P.A.,
292 F.3d 895, 899 (D.C. Cir. 2002)). Thus the court held
that Consumer Watchdog, a non-profit organization
described as representing the public interest, did not have
standing to appeal to the Federal Circuit from the PTAB
decision that sustained the validity of the patent Con-
sumer Watchdog had challenged.
    35 U.S.C. § 141(c) provides the right of appeal to the
Federal Circuit for “[a] party to an inter partes review or
a post-grant review who is dissatisfied with the final
written decision of the Patent Trial and Appeal Board.”
Consumer Watchdog raises no question as to whether
EFF has standing to appear in this court to defend the
judgment of the PTAB, for EFF is not the appellant. The
Court explained in ASARCO Inc. v. Kadish, 490 U.S. 605
(1989), in an appeal from the Arizona Supreme Court to
the United States Supreme Court, that standing to appeal
is measured for the party “seek[ing] entry to the federal
courts for the first time in the lawsuit”:
    Although respondents would not have had stand-
    ing to commence suit in federal court based on the
    allegations in the complaint, they are not the par-
    ty attempting to invoke the federal judicial power.
    Instead it is petitioners, the defendants in the
PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION 7



    case and the losing parties below, who bring the
    case here and thus seek entry to the federal courts
    for the first time in the lawsuit. We determine
    that petitioners have standing to invoke the au-
    thority of a federal court and that this dispute
    now presents a justiciable case or controversy for
    resolution here.
Id. at 618. The following year, in U.S. Department of
Labor v. Triplett, 494 U.S. 715, 732 (1990), Justice Mar-
shall explained in concurrence that: “Because respondent
has not invoked the authority of any federal court, then,
federal standing principles are simply inapplicable to
him.”
     Here, the party invoking judicial review is Personal
Audio; it is apparent that Personal Audio, on cancellation
of its patent claims by the PTAB, has experienced an
alteration of “tangible legal rights . . . that is sufficiently
‘distinct and palpable’ to confer standing under Article
III.” Virginia v. Hicks, 539 U.S. 113, 121 (2003) (internal
citations omitted). With Article III satisfied as to the
appellant, EFF is not constitutionally excluded from
appearing in court to defend the PTAB decision in its
favor.
                              II
                   Claim Construction
    Personal Audio argues that the PTAB misconstrued
several claim terms and misapplied the references, erring
in law and fact.
    Claim construction is a matter of law, and determina-
tion of the meaning and scope of claim terms receives
plenary review on appeal. If issues of claim construction
require subsidiary factual findings based on evidence
extrinsic to the patent prosecution record, such findings
are reviewed for support by substantial evidence. Mi-
8   PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION



crosoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1297 (Fed.
Cir. 2015).
    The PTAB is authorized to construe the claims in ac-
cordance with their broadest reasonable interpretation,
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2146
(2016), recognizing that the claims cannot be divorced
from the specification and the prosecution history, as
perceived by persons in the field of the invention. Mi-
crosoft, 789 F.3d at 1298.
                          “Episode”
    Before the PTAB, Personal Audio argued that “epi-
sode” should be construed as “a program, represented by
one or more media files, that is part of a series.” PTAB
Op. at *4. Personal Audio also argued that “episodes” are
“a complete thing of the same theme,” and that a “series
of episodes” would be “related to one another with a
common theme.” Record of Oral Hearing at 23. Citing
the ’504 Patent specification and the testimony of EFF’s
expert Dr. Schmandt, the PTAB construed “episode” as “a
program segment, represented by one or more media files,
which is part of a series of related segments, e.g., a radio
show or a newscast.” PTAB Op. at *5.
    Personal Audio now argues that the PTAB’s construc-
tion of “episode” improperly excludes the temporal limita-
tion that episodes in the series issue over time, as the
claims require. Personal Audio states that the PTAB’s
construction, which encompasses subparts of a single
program, i.e., “program segments,” reads out other claim
limitations referring to new episodes “becom[ing] availa-
ble.”
     EFF responds that the PTAB’s construction is con-
sistent with the specification, pointing out that the speci-
fication describes an “episode” as a “program segment”
and that the specification uses news stories as examples
of “program segments.”
PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION 9



     We conclude that the PTAB’s construction of “episode”
is in accord with the specification, and is correct. The
specification states that “[a] given program segment may
represent an episode in a series.” ’504 Patent, col. 19, ll.
36–38. As used in the ’504 Patent, “program segment”
refers to a subpart of individually selectable content. For
example, the specification teaches that a user can “easily
move from program segment to program segment, skip-
ping segments in a forward or reverse direction, or to
jump to a particular segment.” ’504 Patent, col. 8, l. 65–
col. 9, l. 2. The specification describes an embodiment in
which a compilation file of “episodes” is composed of “four
news subjects [world news, national news, local news,
computer trade news],” each of which is composed of
“structured program segments.” ’504 Patent, col. 30, ll.
18–28.
    The PTAB also correctly held that the “temporal limi-
tations” that Personal Audio states modify “episodes” do
not restrict the application to episodes produced at differ-
ent times. Claim 31 states that “from time to time, as
new episodes represented in said series of episodes be-
come available,” an updated version of the compilation file
may be created with “currently available episodes.” The
terms “become available” and “currently available” do not
restrict or define the timing of the creation of the epi-
sodes, past or present; they refer only to the availability of
episodes to clients. And these terms do not describe the
production of episodes, but instead refer to the conditions
under which an updated version of a compilation file is
produced.
    Personal Audio’s assertion that episodes must issue
over time is not a distinction from the cited references.
The ’504 specification explains that “episode segments”
are “serialized program segments” that can be download-
ed “at one time or separately when necessary to conserve
space or to handle sequential presentations which evolve
in real time.” ’504 Patent, col. 39, ll. 36–40. Sequential
10 PERSONAL AUDIO, LLC v. ELECTRONIC FRONTIER FOUNDATION



presentation is an option, but not a requirement of epi-
sodes in a series.
    We affirm the PTAB’s construction of “episode” as “a
program segment, represented by one or more media files,
which is part of a series of related segments, e.g., a radio
show or a newscast.” Further, the PTAB’s findings that
both Compton/CNN and Patrick/CBC disclose “episodes”
are supported by substantial evidence. Figure 1 of
CNN/Compton illustrates news stories or “episodes,” and
the science news stories described in Patrick/CNN are
correctly described as “episodes.”
       “Updated Version of a Compilation File”
     Personal Audio also disputes the PTAB’s construction
of “an updated version of a compilation file,” in each of the
challenged claims. The PTAB construed “compilation file”
as “a file that contains episode information,” and held
that “updated version” did not require construction.
PTAB Op. at *5–6. The PTAB found that the claims do
not require an “updated version of a compilation file” to be
created only by amending a previously existing compila-
tion file, and applied this construction to hold that Comp-
ton/CNN and Patrick/CBC both disclose an “updated
version of a compilation file.”
    Personal Audio argues that the “updated version of a
compilation file must contain attribute data for ‘currently
available episodes in said series of episodes.’” Personal
Audio Br. 25 (emphasis omitted). Personal Audio states
that an updated version of a compilation file must be
updated by dynamically distributing previously available
and newly available episodes together, and that an “over-
written” updated version that contains information about
episodes issued on a single day does not meet the claim
limitation.
    Claim 31 of the ’504 Patent includes the requirement:
PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION 11



   from time to time, as new episodes represented in
   said series of episodes become available, storing
   an updated version of a compilation file in one of
   said one or more data storage servers at a storage
   location identified by a predetermined URL, said
   updated version of said compilation file containing
   attribute data describing currently available epi-
   sodes in said series of episodes, said attribute data
   for each given one of said currently available epi-
   sodes . . . .
This provision describes the contents of the updated
version of the compilation file as containing information
about “currently available episodes.” The ’504 specifica-
tion does not require the updated version of the compila-
tion file to be created from a previously existing
compilation file, and “currently available” does not re-
quire or imply a temporal limitation. The claims are
directed to the content of the compilation file, not how the
compilation file is created.
    The PTAB found that Compton/CNN’s disclosure of
automatically generating and storing a new version of the
“contents.html” file with the day’s news stories is an
“updated version of a compilation file.” PTAB Op. at *9–
10. The PTAB also found that Patrick/CBC’s disclosure of
making episodes of Quirks & Quarks available each week,
along with accompanying text, satisfied the claim limita-
tion. Id. at *13–14. We discern no error in the PTAB’s
determination that these references disclose an “updated
version of a compilation file.”
               “Back-end Configuration”
    The ’504 Patent claims require “one or more proces-
sors” coupled to “one or more data storage servers” and
“one or more communications interfaces.” The parties
refer to these components as the “back-end configuration.”
The only depiction of this “back-end configuration” in the
’504 Patent describes the claimed hardware components
12 PERSONAL AUDIO, LLC v. ELECTRONIC FRONTIER FOUNDATION



as part of a single “host computer” with a single processor.
Figure 1 of the ’504 Patent depicts communications inter-
faces 125, 127, and 129 within host server 101.
    The PTAB found that the “communications interface”
in the ’504 Patent is part of the host server computer.
’504 Patent, col. 5, ll. 57–66; col. 6, l. 60–col. 7, l. 9. The
PTAB credited the testimony of EFF’s expert Dr.
Schmandt that the hardware components related to this
configuration would be “trivial to the person of ordinary
skill in the art,” and that disclosure of a host server
“necessarily would have included processors and a com-
munications interface.” PTAB Op. at *11.
    Personal Audio argues that the PTAB erred in holding
that CNN/Compton disclosed the ’504 Patent’s “back-end
configuration” of processors and servers. Personal Audio
states that this claim limitation would only be taught if a
reference shows two processors, because data storage
servers necessarily include a processor. Personal Audio
argues that the disclosure of a web server, without stating
how the server is configured, does not teach this limita-
tion.
    EFF responds that Personal Audio’s “two processors”
argument excludes a preferred embodiment in the ’504
Patent and moreover, that Compton/CNN discloses two
processors. The PTAB found that the Compton/CNN
reference discloses “one or more processors coupled to said
one or more data storage servers and to said one or more
communications interfaces,” as recited in claim 31.
Compton/CNN discloses the “NMIS Internet server” and
the “encoding station,” which is hardware performing a
conversion function. Compton/CNN, Fig. 3. Because the
encoding station in Compton/CNN is physically separate
from the NMIS Internet server, it reasonably must con-
tain a separate processor. We conclude that substantial
evidence supports the PTAB’s findings on this issue.
PERSONAL AUDIO, LLC   v. ELECTRONIC FRONTIER FOUNDATION 13



    We have considered all of Personal Audio’s argu-
ments, and affirm the PTAB’s conclusion that the chal-
lenged claims are anticipated by the Patrick/CBC
reference, and alternatively that the claims are invalid as
obvious in view of the Compton/CNN reference.
                        CONCLUSION
    The decision of the PTAB, holding claims 31–35 of the
’504 Patent unpatentable, is affirmed.
                        AFFIRMED
