Insufficient Arguing Below Causes Forfeited Review Above

Absent exceptional circumstances, the Federal Circuit will generally not consider arguments that a party failed to present in the tribunal under review. In Netflix, Inc. v. DivX, LLC, the Federal Circuit held that IPR petitioner Netflix waived its claim construction arguments because it did not sufficiently raise them before the Patent Trial and Appeal Board ("PTAB"). No. 22-1043 (Fed. Cir. Apr. 27, 2023).

DivX owns U.S. Patent No. 9,184,920 ("the '920 patent"), which is directed to playback devices and methods of decoding encrypted content using a playback device. The challenged claims of the '920 patent require that the encrypted content includes video frames. DivX sued Netflix for infringement of the '920 patent, and Netflix responded by filing an IPR petition against the asserted patent. The PTAB instituted IPR but held in its final written decision that Netflix had not proven the unpatentability of the challenged claims by a preponderance of the evidence.