Trials@uspto.gov
`571-272-7822
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`Paper 9
`Entered: February 24, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioners,
`
`v.
`
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01331
`Patent 6,640,248 B1
`
`
`
`
`Before BRIAN J. MCNAMARA, DAVID C. MCKONE, and
`BETH Z. SHAW, Administrative Patent Judges.
`
`SHAW, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`
`
`
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`
`
`Paper 9
`Entered: February 24, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioners,
`
`v.
`
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01331
`Patent 6,640,248 B1
`
`
`
`
`Before BRIAN J. MCNAMARA, DAVID C. MCKONE, and
`BETH Z. SHAW, Administrative Patent Judges.
`
`SHAW, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2014-01331
`Patent 6,640,248 B1
`
`
`I. INTRODUCTION
`
`Ericsson Inc. and Telefonaktiebolaget LM Ericsson (collectively,
`
`“Petitioner”) filed a Petition (“Pet.”) to institute an inter partes review of
`
`claims 1–20 of Patent 6,640,248 B1 (“the ’248 patent”) pursuant to
`
`35 U.S.C. § 311–319. Paper 2. Patent Owner Intellectual Ventures I LLC
`
`(“Patent Owner”) filed a Preliminary Response (“Prelim. Resp.”) to the
`
`Petition. We have jurisdiction under 35 U.S.C. § 314, which provides that
`
`an inter partes review may not be instituted “unless . . . there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of the
`
`claims challenged in the petition.” 35 U.S.C. § 314(a).
`
`After considering the Petition and Preliminary Response, we
`
`determine that Petitioner has not established a reasonable likelihood of
`
`prevailing on any of the claims challenged in the Petition. Accordingly, we
`
`do not institute an inter partes review.
`
`
`
`A. The ’248 Patent (Ex. 1001)
`
`The ’248 patent is entitled “Application-Aware, Quality of Service
`
`(QoS) Sensitive, Media Access Control (MAC) Layer.” Ex. 1001, Title.
`
`According to the ’248 patent, delivering data in a reliable and timely manner
`
`depends on the nature of the traffic being delivered. Id. at 12:41–44. For
`
`example, poor quality in streaming multimedia applications can result from
`
`high jitter or large variations in latency. Id. at 12:28–35. The ’248 patent
`
`describes a mechanism that is application-specific rather than circuit-
`
`specific, to conserve wireless bandwidth so that bandwidth is allocated
`
`where needed. Id. at 22:8–12.
`
`
`
`
`2
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`
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`IPR2014-01331
`Patent 6,640,248 B1
`
`
`The ’248 patent describes using a MAC layer that provides an
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`application switching function in an IP-centric wireless environment. Id. at
`
`22:16–19. The ’248 patent describes a resource allocator in the MAC layer
`
`that allocates resources (e.g., bandwidth) for communication on a packet-
`
`switched network. Id. at Abstract, 3:34–51. The MAC layer allocates
`
`bandwidth to an IP flow associated with a software application based on the
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`IP QoS requirements of the software application so that the IP flows of each
`
`application can be switched to appropriate destinations in a proper priority
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`order. Id. at 22:20–24.
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`In some cases, “application-level information about the nature of the
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`application can be used by the system to assign appropriate QoS mechanism
`
`parameters to the IP stream,” while in others, “information about the IP
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`streams for use in configuring the appropriate QoS mechanism parameters
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`can be extracted from packet headers.” Id. at 22:27–32. In particular, the
`
`’248 patent explains that packet header information—such as IP header
`
`fields, including source and destination IP addresses—can be used to
`
`identify IP flows and the QoS requirements of the IP flows. Id. at 53:18–27.
`
`The ’248 patent states that these header fields are helpful in providing
`
`“application aware” resource allocation. Id. The application information is
`
`communicated vertically in the protocol stack model from the application
`
`layer to the MAC layer for bandwidth reservation and application switching
`
`purposes. Id. at 22:32–37.
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`
`
`3
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`
`
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`
`
`IPR2014-01331
`Patent 6,640,248 B1
`
`
`B. Illustrative Claims
`
`Independent claims 1 and 20 of the ’248 patent are illustrative and
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`recite:
`
`1.
`An application aware, quality of service (QoS) sensitive,
`media access control (MAC) layer comprising:
`an application-aware resource allocator at the MAC
`layer, wherein said resource allocator allocates bandwidth
`resource to an internet protocol (IP) flow associated with a
`software application of a user based on IP QoS requirements of
`said software application, wherein said resource allocator
`allocates said bandwidth resource in a packet centric manner
`that is not circuit-centric and does not use asynchronous
`transfer mode (ATM).
`
`20. An application-aware media access control (MAC) layer
`for optimizing end user application internet protocol (IP)
`quality of service (QoS) to IP flows comprising:
`identifying means for identifying an application type of a
`software application associated with an IP flow; and
`allocating means for allocating resources to said IP flow,
`responsive to said identifying means, so as to optimize end user
`application IP QoS requirements of said software application,
`wherein said resource allocating means allocates resources in a
`packet-centric manner that is not circuit-centric and does not
`use asynchronous transfer mode (ATM).
`
`
`C. The Prior Art
`
`Petitioner relies on the following prior art references as its basis for
`
`challenging claims 1–20 of the ’248 patent.1
`
`Reference
`Ganz et al.
`Haddock et al.
`
`
`Exhibit
`Patent
`US Patent 6,049,549 Ex. 1004 (“Ganz”)
`US Patent 6,104,700 Ex. 1005 (“Haddock”)
`
`
`1 Petitioner also proffers the Declaration of Mark R. Lanning. See Ex. 1003.
`
`
`
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`4
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`
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`IPR2014-01331
`Patent 6,640,248 B1
`
`
`D. The Asserted Grounds of Unpatentability
`
`Petitioner contends that the challenged claims are unpatentable under
`
`35 U.S.C. §§ 102 and/or 103 based on the following grounds (Pet. 4):
`
`Statutory Ground
`§ 102(e)
`§ 103
`§ 103
`
`Basis
`
`Ganz
`Ganz
`Ganz and Haddock
`
`Challenged Claims
`1–7, 9–14, 16, 17, and 20
`1–7, 9–14, 16, 17, and 20
`1–20
`
`
`
`E. Claim Interpretation
`
`Consistent with the statute and legislative history of the America
`
`Invents Act (AIA), the Board interprets claims using the “broadest
`
`reasonable construction in light of the specification of the patent in which
`
`[they] appear[].” 37 C.F.R. § 42.100(b); see also Office Patent Trial
`
`Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
`
`Neither Petitioner nor Patent Owner proposes a claim construction for
`
`any specific claim terms of independent claim 1. Accordingly, for purposes
`
`of this decision, we construe the claims using the broadest reasonable
`
`construction in light of the specification of the ’248 patent.
`
`
`
`II. ANALYSIS
`
`We turn now to Petitioner’s asserted grounds of unpatentability and
`
`Patent Owner’s arguments in its Preliminary Response to determine whether
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`Petitioner has met the threshold standard of 35 U.S.C. § 314(a).
`
`
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`A. Independent Claim 20
`
`Petitioner argues, and Patent Owner does not dispute, that claim 20
`
`recites limitations with “means-plus-function” language. Pet. 8; Prelim.
`
`
`
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`5
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`
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`IPR2014-01331
`Patent 6,640,248 B1
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`Resp. 7–11. Thus, claim 20 is to be construed to cover the corresponding
`
`structure described in the specification and equivalents. See 35 U.S.C.
`
`§ 112, ¶ 6.2 By rule, Petitioner is required to identify the corresponding
`
`structure in its Petition. See 37 C.F.R. § 42.104(b)(3) (“Where the claim to
`
`be construed contains a means-plus-function or step-plus-function limitation
`
`. . . the construction of the claim must identify the specific portions of the
`
`specification that describe the structure, material, or acts corresponding to
`
`each claimed function.”) (emphasis added).
`
`Patent Owner asserts that Petitioner fails to identify the corresponding
`
`structure for the “identifying means” limitation of claim 20, as required by
`
`37 C.F.R. § 42.104(b)(3). In particular, Patent Owner asserts that Petitioner
`
`states that the specification of the ’248 patent “does not disclose an
`
`algorithm for the Claim 20 ‘identifying means’ . . . as required for these
`
`computer-implemented means-plus-function limitations.” Prelim. Resp. 12
`
`(citing Pet. 9).
`
`We agree with Patent Owner that Petitioner states that the ’248 patent
`
`does not disclose an algorithm for the identifying means. Pet. 9. As such,
`
`Petitioner fails to identify corresponding structure for the identifying means,
`
`
`2 Section 4(c) of the AIA re-designated 35 U.S.C. § 112, ¶ 6, as 35 U.S.C.
`§ 112(f). Because the ’248 patent has a filing date before September 16,
`2012 (effective date of the statute), we will refer to the pre-AIA version of
`35 U.S.C. § 112.
`
`
`
`
`6
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`
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`IPR2014-01331
`Patent 6,640,248 B1
`
`and therefore fails to comply with 37 C.F.R. § 42.104(b)(3). Accordingly,
`
`the Petition as to claim 20 is denied.3
`
`
`
`B. Anticipation Based on Ganz (Ex. 1004)
`
`Petitioner challenges claims 1–7, 9–14, 16, 17, and 204 as anticipated
`
`by Ganz. Pet. 11. Petitioner does not propose a specific claim construction
`
`for the “application-aware resource allocator at the MAC layer,” as recited
`
`in claim 1. Pet. 7.
`
`With respect to the application-aware resource allocator at the MAC
`
`layer, required by claims 1–7, 9–14, 16, and 17, Petitioner points to Ganz’s
`
`disclosure of “providing support for QoS requirements at the MAC layer,
`
`and a resource manager that allocates network resources to support
`
`sessions.” Pet. 16. Petitioner also points to language in Ganz stating:
`
`Support for QoS requirements is more easily provided at the
`MAC layer than at higher layers or the protocols. In particular,
`an adaptive MAC polling approach in combination with a
`resource manager provide efficient use of limited and time
`varying communication resources while satisfying QoS
`requirements, if possible.
`
`Pet. 11–12 (emphasis by Petitioner) (quoting Ex. 1004, col. 2, ll. 2–7).
`
`According to Petitioner, Ganz “discloses that the resource manager of an
`
`
`3 Although Petitioner also alleges that dependent claim 17 recites limitations
`with means-plus-function language (see Pet. 8–9), which Patent Owner
`disputes (see Prelim. Resp. 8–10), we do not reach this issue with respect to
`claim 17 because, as discussed in more detail below, the Petition is denied as
`to independent claim 1, from which claim 17 depends.
`4 As discussed above, the Petition as to independent claim 20 is denied.
`Therefore, we do not discuss claim 20 further in this Decision.
`
`
`
`
`7
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`
`
`IPR2014-01331
`Patent 6,640,248 B1
`
`arbiter station provides admission control and bandwidth allocation based in
`
`part on whether a session is a QoS session or a non-QoS session.” Pet. 18.
`
`Figure 3 of Ganz is reproduced below:
`
`
`
`Figure 3 depicts software modules that execute on a wireless station.
`
`Ex. 1004, 3:48–49.
`
`Petitioner identifies resource manager 322 as “said resource
`
`allocator.” Pet. 12. Neither Petitioner, nor the testimony of Mr. Lanning
`
`that Petitioner points to, however, explains anything more about how the
`
`cited portions of Ganz disclose how the resource manager of Ganz is “at the
`
`MAC layer,” as required by claim 1. Pet. 16; Ex. 1003 ¶ 48. For example,
`
`
`
`
`8
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`
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`IPR2014-01331
`Patent 6,640,248 B1
`
`the portion of Mr. Lanning’s Declaration identified by Petitioner states “the
`
`MAC layer, which is responsible for allocation of resources along with other
`
`media control modules” (Pet. 16; Ex. 1003 ¶ 48) (emphasis added), also
`
`does not explain how resource manager 322 of Ganz, which is shown as part
`
`of “media control modules 222” in Figure 3, and separate from MAC 320, is
`
`“at the MAC layer.”
`
`
`
`Moreover, the testimony of Mr. Lanning states that the “media
`
`control modules [which include MAC layer 320] are able to differentiate
`
`between QoS and non-QoS sessions.” Ex. 1003 ¶ 75 (emphasis and brackets
`
`in original); Ex. 1003, Appendix 2 at 7 & 12. Here, Mr. Lanning identifies
`
`MAC 320 out of the plurality of components in media control modules 222
`
`as the MAC layer. Thus, the testimony of Mr. Lanning illustrates that he
`
`considers MAC 320 of Ganz, rather than the media control modules
`
`(including resource manager 322) more generally, to be a MAC layer. In
`
`contrast, neither the Petition, nor the testimony of Mr. Lanning, explains
`
`how the resource manager of Ganz is at this MAC layer.
`
`Patent Owner asserts Petitioner does not identify any disclosure of
`
`Ganz to explain, or even suggest, that the resource manager of Ganz is in the
`
`MAC layer. Prelim. Resp. 19–20. We agree with Patent Owner that
`
`Petitioner also at times refers to Ganz’s MAC 320 as the MAC layer.
`
`Prelim. Resp. 21. We also agree with Patent Owner that Figure 3 of Ganz
`
`shows that resource manager 322 is separate and distinct from MAC 320.
`
`Id.
`
`We are not persuaded that Petitioner has identified or explained
`
`sufficiently how the portions of Ganz relied upon by Petitioner disclose that
`
`resource manager 322 is at MAC 320, or at any MAC layer. Rather,
`
`
`
`
`9
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`
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`IPR2014-01331
`Patent 6,640,248 B1
`
`Figure 3 of Ganz simply depicts that resource manager 322 is part of media
`
`control modules 222. Petitioner, however, has not explained persuasively
`
`how resource manager 322 or media control modules 222 reside at the MAC
`
`layer.
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`Nor does Petitioner point to persuasive testimony from Mr. Lanning
`
`explaining that resource manager 322 of Ganz is at the MAC layer. Further,
`
`Petitioner does not point to persuasive evidence that such a limitation is
`
`inherently disclosed by Ganz. Thus, we deny Petitioner’s challenge that
`
`Ganz anticipates claim 1, or dependent claims 2–7, 9–14, 16, and 17.
`
`
`
`C. Obviousness over Ganz Alone
`
`Petitioner also challenges claims 1–7, 9–14, 16, and 17 as obvious
`
`over Ganz. Pet. 11. Petitioner does not provide additional evidence or
`
`explanation, beyond its discussion with respect to the asserted anticipation of
`
`claim 1 by Ganz, as to why claim 1 is obvious over Ganz. For essentially
`
`the same reasons discussed above with respect to anticipation, we determine
`
`that there is not a reasonable likelihood that Petitioner will prevail in
`
`showing that claims 1–7, 9–14, 16, and 17 would have been obvious over
`
`Ganz.
`
`
`
`D. Obviousness over Ganz and Haddock (Ex. 1005)
`
`Petitioner challenges claims 1–19 as unpatentable over Ganz and
`
`Haddock. Pet. 38. Petitioner refers to “Ground 1, Claim 1 chart above,
`
`referring to Ex. 1004 [Ganz]” as disclosing the “application-aware resource
`
`allocator at the MAC layer.” Pet. 39. Accordingly, Petitioner does not
`
`allege that Haddock remedies the deficiencies of Ganz with respect to the
`
`
`
`
`10
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`
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`IPR2014-01331
`Patent 6,640,248 B1
`
`“application-aware resource allocator at the MAC layer” requirement of
`
`claim 1 discussed above. Therefore, Petitioner has not demonstrated that
`
`there is a reasonable likelihood that Petitioner will prevail in showing that
`
`claims 1–19 of the ’248 patent are unpatentable as obvious over Ganz and
`
`Haddock.
`
`
`
`III. CONCLUSION
`
`For the foregoing reasons, we determine that Petitioner has not shown
`
`a reasonable likelihood that it would prevail in demonstrating that any of the
`
`challenged claims of the ’248 patent are unpatentable on at least one
`
`challenged ground.
`
`
`
`IV. ORDER
`
`ORDERED that an inter partes review of U.S. Patent No. 6,640,248 is
`
`not instituted based on this Petition.
`
`
`
`
`
`
`11
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`
`
`IPR2014-01331
`Patent 6,640,248 B1
`
`PETITIONER:
`
`J. Robert Brown, Jr.
`Charles J. Rogers
`Amy LaValle
`rbrown@dfw.conleyrose.com
`crogers@conleyrose.com
`alavalle@dfw.conleyrose.com
`
`
`PATENT OWNER:
`
`Herbert Hart
`David Petty
`James Hietala
`Tim Seeley
`Andrew Karp
`hhart@mcandrews-ip.com
`deptty@mcandrews-ip.com
`jhietala@intven.com
`tim@intven.com
`akarp@mcandrews-ip.com
`
`
`
`
`
`
`
`12
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`
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