Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 29
`Entered: February 15, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ERICSSON INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`_______________
`
`Case IPR2015-01872
`Patent 7,385,994 B2
`_______________
`
`
`
`Before BRYAN F. MOORE, BRIAN J. MCNAMARA,
`and DAVID C. MCKONE, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 29
`Entered: February 15, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ERICSSON INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`_______________
`
`Case IPR2015-01872
`Patent 7,385,994 B2
`_______________
`
`
`
`Before BRYAN F. MOORE, BRIAN J. MCNAMARA,
`and DAVID C. MCKONE, Administrative Patent Judges.
`
`MCKONE, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
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`IPR2015-01872
`Patent 7,385,994 B2
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`A. Background
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`I. INTRODUCTION
`
`Ericsson Inc. and Telefonaktiebolaget LM Ericsson (collectively
`
`“Petitioner”) filed a Petition (Paper 2, “Pet.”) to institute an inter partes
`
`review of claims 1–25 of U.S. Patent No. 7,385,994 B2 (Ex. 1001, “the ’994
`
`patent”). Intellectual Ventures II LLC (“Patent Owner”) filed a Preliminary
`
`Response (Paper 6, “Prelim. Resp.”). Pursuant to 35 U.S.C. § 314, in our
`
`Decision to Institute (Paper 10, “Dec.”), we instituted this proceeding as to
`
`claims 1–4, 7, 11–14, 17, and 20–25, but not claims 5, 6, 8–10, 15, 16, 18,
`
`and 19.
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`Patent Owner filed a Patent Owner’s Response (Paper 18, “PO
`
`Resp.”), and Petitioner filed a Reply to the Patent Owner’s Response
`
`(Paper 21, “Reply”).
`
`Petitioner relies on the testimony of Mark R. Lanning (Ex. 1006,
`
`“Lanning Decl.”). Patent Owner relies on the testimony of Tim A.
`
`Williams, Ph.D. (Ex. 2013, “Williams Decl.”).
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`An oral argument was held on December 8, 2016 (Paper 28, “Tr.”).
`
`We have jurisdiction under 35 U.S.C. § 6. This Decision is a final
`
`written decision under 35 U.S.C. § 318(a) as to the patentability of the
`
`challenged claims. Based on the record before us, Petitioner has not
`
`demonstrated, by a preponderance of the evidence, that any claim of the
`
`’994 patent is unpatentable.
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`B. Related Matters
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`The ’994 patent is the subject of several lawsuits in the United States
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`District Court for the District of Delaware. Pet. 1; Paper 5, 1–2.
`
`The ’994 patent also was the subject of Ericsson Inc. v. Intellectual
`
`Ventures II LLC, Case IPR2014-01170 (PTAB). In that proceeding, the
`
`Board declined to institute an inter partes review. Ex. 1005.
`
`
`
`C. References Relied Upon
`
`U.S. Patent No. 6,480,911 B1, issued Nov. 12, 2002 (Ex. 1002, “Lu”);
`
`and
`
`U.S. Publication No. 2002/0183066 A1, published Dec. 5, 2002
`
`(Ex. 1003, “Pankaj”).
`
`
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`D. The Instituted Grounds
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`We instituted inter partes review based on the following specific
`
`grounds (Dec. 40–41):
`
`Reference(s)
`
`Lu
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`Lu and Pankaj
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`
`
`E. The ’994 Patent
`
`Basis
`
`Claim(s) Challenged
`
`§ 103(a)
`
`§ 103(a)
`
`1–4, 7, 11–14, 17, 20,
`21, 23, and 24,
`22 and 25
`
`The ’994 patent describes gateway queuing algorithms in packet
`
`networks. Ex. 1001, 1:5–9. The data packets are queued according to tiers
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`and a communication resource is made available on a tier-by-tier basis.
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`Id. at Abstract. Figure 2, reproduced below, illustrates an example:
`
`Figure 2 is a block diagram of a wireless communication system. Id. at 5:8–
`
`
`
`10.
`
`
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`The following acronyms are helpful in understanding the description
`
`of Figure 2, as well as other portions of this discussion:
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`3GPP - Third Generation Partnership Project;
`CDMA - code division multiple access;
`ETSI - European Telecommunication Standards Institute;
`GGSN - gateway GPRS support node;
`GPRS - General Packet Radio Service;
`GSM - Global System for Mobile Communication;
`MS - mobile station;
`MSC - mobile switching centre;
`PSTN - public switched telephone network;
`RNC - radio network controller;
`TDMA - time-division multiple access;
`UE - user equipment;
`UMTS - universal mobile telecommunication system;
`UTRAN - UMTS Terrestrial Radio Access Network;
`WCDMA - Wideband CDMA.
`
`Cellular-based telecommunication system 200 is described in terms of
`
`a UMTS system, in particular a system that complies with the 3GPP
`
`specification for WCDMA. Id. at 5:21–30. As shown in Figure 2, system
`
`200 includes a plurality of subscriber terminals (e.g., cellular telephones,
`
`also referred to as MS or UE) 212, 214, 216 communicating over radio links
`
`218, 219, 220 with base transceiver stations (also called Node-Bs) 222, 224,
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`226, 228, 230. Id. at 31–37. The Node-Bs are connected to external
`
`network 234 (e.g., the Internet), through base station controllers (also called
`
`RNCs) 236, 238, 240 and, in turn through MSC 242 and SGSN 244. Id. at
`
`5:61–67.
`
`RNCs 236, 238, 240 include processing elements 248 adapted to
`
`facilitate packet data queuing and scheduling. Id. at 6:14–18. RNCs 236,
`
`238, 240 implement an algorithm to schedule queued packet data
`
`transmissions. Id. at 6:18–22. Allocation of a shared resource is made at
`
`certain time intervals, or rounds. Id. at 6:29–32. In one example, users
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`compete to send 1 kbit data packets over a 10 Mbps link in 10 msec rounds,
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`in which 100 packets are allocated each round. Id. at 6:32–37. The resource
`
`is allocated in tiers. In a two-tier system, for example, 75 percent of the
`
`resource might be allocated to a higher tier while 25 percent is allocated to
`
`the lower tier. Id. at 6:46–55. The relative proportions of system bandwidth
`
`can be allocated using weights defined for each tier. Id. at 6:59–63.
`
`Bandwidth can be allocated on a user-by-user basis. Figure 3,
`
`reproduced below, illustrates an example:
`
`
`
`Figure 3 is a flowchart/functional block diagram of packet data processing
`
`operation 300. Id. at 5:11–13.
`
`Each user can be provided with an identification code, which
`
`identifies the user and indicates the amount of data the user wishes to
`
`transfer. Id. at 7:26–28. When the user enters into the packet data scheme,
`
`the user’s ID is placed at the tail of the queue corresponding to the user’s tier
`
`of service. Id. at 7:29–32. For example, the user’s ID can be placed at tail
`
`355 of the ith queue or tail 350 of the lowest tier queue. Id. The packets of
`
`user data are stored separately from the user ID queues. Id. at 7:32.
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`Within each tier, packets are allocated in a round-robin fashion, in
`
`which a number γ of packets is assigned to the user corresponding to the first
`
`ID in the queue for that tier (e.g., the ID at head 375 of the ith tier queue).
`
`Id. at 7:52–54. Once that user has transmitted γ packets, the user’s ID is
`
`placed at the tail of the queue (location 355) and the remaining user IDs are
`
`moved up in the queue (e.g., from location 355, through intermediate
`
`location 365, to head location 375 of the ith queue). Id. at 7:60–65. This
`
`process is repeated until a total number of packets allocated to this tier for
`
`this round has been allocated to users. Id. at 8:65–67. This process is then
`
`repeated for each of the other tiers, down to the lowest tier, and started anew
`
`the next round. Id. at 8:1–19.
`
`
`
`Claim 1, reproduced below (bracketed letters added to track the
`
`parties’ designations of claim elements), is illustrative of the claimed subject
`
`matter:
`
`1. A method of processing queued data packets in a packet
`data communication system, the method comprising:
`
`[a] allocating a tier of service for each of a plurality of
`individual packet data queues, wherein allocating a
`tier of service comprises:
`
`[b] determining a total number of data packets that can use
`an available communication resource;
`
`[c] allocating different weights to each tier of service
`based on a number of users requiring access to the
`available communication resource;
`
`[d] allocating a proportion of said total number of data
`packets to a number of the tiers of service to allow
`individual packet data queues on a number of tiers
`to share a communication resource; and
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`[e] providing said communication resource to queued
`packet data users on a tier-by-tier basis, such that
`said communication resource is made available to a
`number of tiers.
`
`
`
`II. ANALYSIS
`
`A. Claim Construction
`
`We interpret claims of an unexpired patent using the broadest
`
`reasonable construction in light of the specification of the patent in which
`
`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee,
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`136 S. Ct. 2131, 2155–56 (2016). Claim terms generally are given their
`
`ordinary and customary meaning, as would be understood by one of ordinary
`
`skill in the art in the context of the entire disclosure. See In re Translogic
`
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
`
`
`
`1. Means-plus-function Terms
`
`Claims 11–14 and 17 recite several terms in means-plus-function
`
`format. Claim 24 recites several terms in the form of “logic for” performing
`
`the functions of parallel terms recited in claim 11. In the Institution
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`Decision, we adopted Petitioner’s proposed constructions, set forth at pages
`
`10–15 of the Petition, as our constructions for the means-plus-function terms
`
`of claims 11–14 and 17. Dec. 17–18. We also determined to treat the “logic
`
`for” terms of claim 24 as means-plus-function terms, see Williamson v.
`
`Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015), and adopted
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`Petitioner’s statement of the structure corresponding to the “logic for” terms
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`(Pet. 10–13). Id. at 18. Patent Owner does not dispute these constructions.
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`PO Resp. 8. On the complete record, we maintain these constructions.
`
`
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`2. “queued packet data users”
`
`Claim 1 recites “providing said communication resource to queued
`
`packet data users on a tier-by-tier basis, such that said communication
`
`resource is made available to a number of tiers.” Claim 11 recites
`
`“scheduling means to provide said communication resource to queued
`
`packet data users on a tier-by-tier basis, such that said resource is made
`
`available to all tiers.” Claim 24 recites “scheduling logic for providing said
`
`communication resource to queued packet data users on a tier-by-tier, such
`
`that said resource is made available to all tiers.” Neither party proposes an
`
`express construction of “queued packet data users.” Nevertheless, the
`
`parties’ respective applications of this term make clear that its meaning is in
`
`dispute. Tr. 5:7–10, 41:1–4.
`
`Petitioner contends that Lu’s description of placing packets into
`
`queues teaches this limitation. Pet. 34; Reply 8–9. In other words,
`
`Petitioner contends that “queued” modifies “packet data” and that the
`
`“users” are users of queued packet data. Tr. 17:13–15, 50:19–51:6. Patent
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`Owner, on the other hand, argues that Lu does not teach queuing users. PO
`
`Resp. 23–24. According to Patent Owner, “[t]he term ‘queued’ plainly
`
`modifies the term ‘packet data users’ in claim 1, not merely the term ‘packet
`
`data.’ That is, the users are users of packet data, and the users are queued.”
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`Id. at 24.
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`The term “queued packet data users,” by itself, reasonably can be read
`
`as “users of queued packet data,” as proposed by Petitioner, and “queued
`
`users of packet data,” as proposed by Patent Owner. Thus, the language of
`
`the term itself does not plainly support either party.
`
`The parties each proffer additional language in the claims to support
`
`their respective positions. As the Federal Circuit has stated, “the context in
`
`which a term is used in the asserted claim can be highly instructive.”
`
`Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005) (en banc). At
`
`the oral argument, Petitioner argued that the preamble of each independent
`
`claim supports its position. Tr. 50:19–51:6. Specifically, claim 1 recites
`
`“[a] method of processing queued data packets,” which suggests that the
`
`later recitation of “queued packet data users” means users of queued packet
`
`data, rather than queued users of packet data. Similarly, claim 11 recites
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`“[a] packet data scheduler queuing data packets” and claim 24 recites “[a]
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`packet data communication system operable for processing queued data
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`packets.”
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`For its part, Patent Owner argues that “queued packet data users” must
`
`mean queued users of packet data if claim 1 is to be reconciled with its
`
`dependent claims 5 and 7. PO Resp. 24, 26–27. Claim 5 recites “providing
`
`a packet data user with an identification code to assist in the tier allocation.”
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`Patent Owner argues that the recitation “a packet data user” in claim 5
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`supports the notion that users are queued.1 Id. at 24. At the oral hearing,
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`Petitioner countered that, per the doctrine of claim differentiation, claim 1
`
`must be broader than claim 5 and, thus, claim 1 does not require queuing an
`
`identification code. Tr. 18:4–13, 20:1–8. Claim 5 continues, however,
`
`“wherein, the identification code provides at least one of the group
`
`consisting of: an identifier for the user and an indication of a number of data
`
`packets that the user wishes to transfer.” Thus, a presumption of claim
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`differentiation is not appropriate because, even if claim 1 requires queuing
`
`an identification code, claim 5 still would be narrower.
`
`Claim 7 adds to claim 1 “placing a user at a tail of an allocated queue,
`
`depending on the user[’]s tier of service when said user provides data
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`packets for queuing.” This is a positive recitation of queuing users, rather
`
`than data packets. We note that claim 8 also provides relevant context. It
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`depends from claim 1 and recites “allocating data packets to a user at a head
`
`of the tier queue” and “moving said user at said head of the tier queue to the
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`tail of the queue when the user’s data packets have been sent.” These
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`recitations further support the notion that claim 1 is directed to queueing
`
`users. Indeed, the most logical reading of the claims together is that claim 1
`
`refers to users of packet data that are queued (e.g., by virtue of queued user
`
`identifications, per claim 5) and that users at the head of a queue are
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`allocated data packets (claim 8) and are moved to the tail of the queue after
`
`
`1 By queueing users, we mean queuing some indication of a user, for
`example the “identification code” recited in claim 5 and recited in the
`Specification, and we understand Patent Owner to be arguing the same.
`Ex. 1001, 7:26–32; see also Ex. 1017 (Williams Dep.), 91:16–19.
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`the allocated data packets are sent (claims 7 and 8). Claims 7 and 8, in
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`particular, make little sense if claim 1 recites queuing the data packets
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`themselves, rather than the users of those packet data.
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`Although it does not use the precise term “queued packet data users”
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`(and, thus, does not expressly define the term), in this case, the Specification
`
`points to the correct reading of the term and reconciles the recitations of
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`claims 1, 5, 7, and 8. As the Federal Circuit has stated, “the specification is
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`always highly relevant to the claim construction analysis. Usually, it is
`
`dispositive; it is the single best guide to the meaning of a disputed term.”
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`Phillips, 415 F.3d at 1315 (internal quotation marks omitted). That is the
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`case here.
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`Patent Owner points us to the Specification’s description of Figure 3,
`
`summarized above. PO Resp. 5–8, 24. Consistent with Patent Owner’s
`
`position, the Specification describes:
`
`Preferably, each user is provided with an identification
`(ID) code, which provides an identifier for the user and an
`indication of the amount of the data the user wishes to transfer.
`When a user is entered onto the packet data scheme, the user’s
`ID is placed at the tail of the appropriate queue, depending on the
`tier of service, for example tail 355 of the ith tier, or tail 350 of
`the lowest tier. Note that the user data is stored separately.
`
`Ex. 1001, 7:26–32. Similarly, the Specification states:
`
`Within each tier, packets are then allocated in a round-
`robin fashion in the following manner. γ packets are allocated to
`the user whose ID is at the head 375 of the tier queue. γ is
`selected offline as a value that defines the number of packets that
`can be allocated to a user when at the head of the tier queue. . . .
`
`When these γ packets have been allocated the user ID at
`the head of the tier queue 375 is sent to the tail of the queue 355,
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`and the queue moved along. Hence, the users move from the tail
`of the queue at location 355, through an intermediate location at
`365 to the head of the queue at location 375, and then back to the
`tail of the queue at location 355. This process is repeated until a
`total of θ packets 345 have been allocated in this tier.
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`Id. at 7:52–67. The Specification refers to this as “an improved packet data
`
`queuing algorithm.” Id. at 9:3.
`
`In this example, identification codes corresponding to users of packet
`
`data are queued in a set of queues according to a tier assigned to the user.
`
`The packets themselves are stored elsewhere. Within a particular queue,
`
`when the identifier for a particular user is at the head of the queue, a number
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`of packets are transferred from the separate storage on behalf of the user.
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`This is consistent with “providing a packet data user with an identification
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`code to assist in the tier allocation” as recited in claim 5. It is also consistent
`
`with “allocating data packets to a user at a head of the tier queue,” as recited
`
`in claim 8. After the number of packets are transmitted, the user’s ID is
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`moved to the tail of the queue. This is consistent with “placing a user at a
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`tail of an allocated queue, depending on the user[’]s tier of service when said
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`user provides data packets for queueing,” as recited in claim 7.
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`In short, the examples in the Specification are consistent with a
`
`technique in which user identifications are stored in queues according to the
`
`tiers that have been assigned to the respective users. Although the
`
`Specification describes the invention broadly as a packet data queuing
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`algorithm, the packets themselves are stored elsewhere in a manner that is
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`not described in detail. Rather, the packets are queued, if at all, by virtue of
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`their associations with the user identifications, which are stored in the
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`queues specifically described in the Specification.
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`Petitioner points to no disclosure in the Specification of queueing
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`packets. Petitioner concedes that the embodiment of Figure 3 is described as
`
`storing user IDs, rather than the corresponding packets, in the queues.
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`Tr. 19:7–10 (“I think in that particular example in Figure 3 they are
`
`queueing -- you are correct, they are queueing the user identification, and the
`
`data itself is referenced and stored separate in memory in that particular
`
`example.”). Nevertheless, Petitioner argues that the Specification, at column
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`7, lines 45–49, describes queueing packets. Id. at 19:11–16. The passage
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`cited by Petitioner reads: “The total number of data packets that can be
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`allocated in a single round, β310, can then be determined. Assuming that
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`there are L tiers we define the number of packets allocated to each tier; θ1
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`. . . θL.” Ex. 1001, 7:45–49. This example describes how a total number of
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`packets are proportioned among several tiers, not whether or where those
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`packets are queued. Immediately following, the Specification makes clear
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`that, in this example, user IDs, not packets, are queued: “[w]ithin each tier,
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`packets are then allocated in a round-robin fashion in the following manner.
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`γ packets are allocated to the user whose ID is at the head 375 of the tier
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`queue.” Id. at 7:52–54.
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`Read in light of the Specification, “providing said communication
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`resource to queued packet data users on a tier-by-tier basis,” as recited in
`
`claim 1, means providing the communication resource to queued users of
`
`packet data on a tier-by-tier basis. We are persuaded by Patent Owner that
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`this is the only reasonable reading that is consistent with the Specification.
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`Petitioner provides no examples in the Specification consistent with its
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`reading. Although the preamble of claim 1 recites a “method of processing
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`queued data packets,” this is consistent with the Specification’s general
`
`statement that the invention pertains to “an improved packet data queueing
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`algorithm,” Ex. 1001, 9:3. We do not read this general statement in the
`
`preamble of claim 1 (or the similar preamble recitations in claims 11 and 24)
`
`to provide a basis for construing more specific language in the body of the
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`claim in a manner inconsistent with the description in the Specification.
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`In sum, the only reasonable reading of “queued packet data users,” in
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`the context of the dependent claims, and in light of consistent description in
`
`the Specification, is queued users of packet data, not users of queued packet
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`data.
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`B. Asserted Grounds of Unpatentability
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`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
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`between the claimed subject matter and the prior art are “such that the
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`subject matter as a whole would have been obvious at the time the invention
`
`was made to a person having ordinary skill in the art to which said subject
`
`matter pertains.” We resolve the question of obviousness on the basis of
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`underlying factual determinations, including: (1) the scope and content of
`
`the prior art; (2) any differences between the claimed subject matter and the
`
`prior art; (3) the level of skill in the art; and (4) objective evidence of
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`nonobviousness, i.e., secondary considerations.2 See Graham v. John Deere
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`Co., 383 U.S. 1, 17–18 (1966).
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`In an obviousness analysis, some reason must be shown as to why a
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`person of ordinary skill would have combined or modified the prior art to
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`achieve the patented invention. See Innogenetics, N.V. v. Abbott Labs., 512
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`F.3d 1363, 1374 (Fed. Cir. 2008). A reason to combine or modify the prior
`
`art may be found explicitly or implicitly in market forces; design incentives;
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`the “interrelated teachings of multiple patents”; “any need or problem
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`known in the field of endeavor at the time of invention and addressed by the
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`patent”; and the background knowledge, creativity, and common sense of
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`the person of ordinary skill. Perfect Web Techs., Inc. v. InfoUSA, Inc., 587
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`F.3d 1324, 1328–29 (Fed. Cir. 2009) (quoting KSR Int’l Co. v. Teleflex Inc.,
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`550 U.S. 398, 418–21 (2007)).
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`1. Level of Ordinary Skill in the Art
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`Neither party proposes a level of ordinary skill in the art. We
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`determine that no express finding is necessary, on this record, and that the
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`level of ordinary skill in the art is reflected by the prior art of record.
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`See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re
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`GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86,
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`91 (CCPA 1978).
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`2 Patent Owner does not argue that secondary considerations evidence
`nonobviousness, and the complete record does not include such evidence.
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`IPR2015-01872
`Patent 7,385,994 B2
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`2. Scope and Content of the Prior Art
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`a. Overview of Lu
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`Lu describes a class queuing system in a network. Ex. 1002, 1:21–25.
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`The class queuing system processes data transmitted by subscribers based on
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`a class subscribed to by the subscriber (e.g., high, medium, or low classes)
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`relative to a network characteristic (e.g., bandwidth, quality of service, or
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`end-to-end transmission delay). Id. at 2:37–46.
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`An example network is depicted in Figure 2 of Lu, reproduced below:
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`Figure 2 is a block diagram of a communication network. Id. at 2:15–16.
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`Network 102 includes several network units 202, 204, 206, for example,
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`routers, connected to one another via communication links 212–15. Id. at
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`3:11–15, 3:47–53. End users 104, 106, 108 communicate with one another
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`by transmitting data packets through network 102. Id. at 3:56–67. Data
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`packets from multiple users received by a network unit (e.g., network unit
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`202, received over links 208, 210, 212, 214) are placed into input queues and
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`switched to output queues that correspond to links to destinations (e.g., links
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`209, 211, 213, 215). Id. at 3:61–4:9, 4:10–16, Figure 4.
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`Figure 5 of Lu, reproduced below, illustrates a more detailed example
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`of an output queue, including a hierarchy of class queues for organizing data
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`packets for transmission via link 209:
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`Figure 5 is a block diagram of a queue organization that supports high,
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`medium, and low classes. Id. at 2:19, 4:40–42. Data packets received from
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`a user into an input queue are switched to a destination input queue (e.g.,
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`with reference to Figure 4, packets received into input queue 302 can be
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`switched to destination input queue 320, also shown in Figure 5). Id. at
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`18
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`IPR2015-01872
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`4:23–29. The destination input queues form level zero queues. Id. at 4:44–
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`45. The data packets in destination input queue 320 can be organized into
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`separate level one queues corresponding to low 416, medium 418, and high
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`420 classes. Id. at 4:48–51. Data is treated similarly for destination input
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`queues 322, 324, 326.
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`Weight sets can be used to regulate the movement of packets from
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`queues at one level to queues at the next level. Id. at 3:17–19. “In this way,
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`data from different class subscribers may be controlled to partition a
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`bandwidth of the output port to support the minimum bounds of the
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`subscriber classes.” Id. at 3:19–22. The weight sets can be based on such
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`network parameters as subscriber volume, end-to-end delay, video quality,
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`or error rate. Id. at 3:23–29, 8:30–45.
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`An example packet is shown in Figure 7, reproduced below:
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`Figure 7 is a block diagram of a data packet. Id. at 2:21. Data packet 620
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`includes header portion 622 and data portion 624. Id. at 5:57–58. Header
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`portion 622 can include “information relating to control and identification of
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`20
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`IPR2015-01872
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`the data packet 620 such as an identification field, a length field, a class
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`field, a cyclical redundancy code (CRC) field and a link field.” Id. at 5:58–
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`62. According to Lu, “[t]he class field may indicate the class of the data
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`packet 620 and the link field may indicate the address of the next data packet
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`of the same class. Thus, the data packets are linked together in the order of
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`arrival at each of the destination input queues 320–326.” Id. at 5:62–67.
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`
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`a. Overview of Pankaj
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`Pankaj describes various techniques for scheduling transmission of
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`data packets in wireless communications systems (such as CDMA and
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`TDMA cellular systems). Ex. 1003 ¶¶ 6–7, 10. Pankaj describes a system
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`“with application to multiple classes of users” that “incorporates a
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`generalized scheduler” that “accommodates a variety of different scheduling
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`priorities.” Id. ¶ 65.
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`b. Independent claims 1, 11, and 24
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`Petitioner contends that claims 1, 11, and 24 would have been obvious
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`over Lu.3 Pet. 18–37. Whereas claim 1 recites a “method of processing
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`queued data packets,” claim 11 recites a “packet data scheduler queuing data
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`packets” and claim 24 recites a “packet data communication system operable
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`for processing queued data packets.” The “means for” and “logic for”
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`3 Petitioner argued, in the alternative, that claims 1, 11, and 24 would have
`been obvious over Lu and Pankaj. Pet. 16–18. In the Institution Decision,
`however, we determined that Petitioner did not establish a reasonable
`likelihood that it would prevail on that ground as to claims 1, 11, and 24, and
`declined to institute on that ground. Dec. 33–35.
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`limitations of claims 11 and 24, respectively, largely track the method steps
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`of claim 1. Petitioner refers back to its evidence and argument for claim 1 in
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`its presentations for claims 11 and 24. Pet. 35–37. We treat claim 1 as
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`representative.
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`Regarding claim element 1[a],4 Petitioner contends that Lu’s queues,
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`such as initial class queues 416–438, organized into high, medium, and low
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`classes, are “a plurality of individual packet data queues.” Pet. 19–20. As to
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`claim element 1[b], “determining a total number of data packets that can use
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`an available communication resource,” Petitioner points to Lu’s description
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`of using a weight-based scheduling scheme to transfer packets from one
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`level queue to another. Id. at 23–24. Petitioner identifies the transmission
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`capacity of the output link (e.g., 209) as the “available communication
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`resource,” and contends that such weighted transfer during a cycle includes
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`determining a total number of data packets that can be transferred for a
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`cycle.5 Id. at 24. Petitioner further contends that Lu’s description of using
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`subscriber weights based on subscriber volumes for particular classes
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`teaches “allocating different weights to each tier of service based on a
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`number of users requiring access to the available communication resource,”
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`as recited in claim element 1[c]. Id. at 28–30. Regarding claim element
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`1[d], Petitioner argues that “[b]ecause the weights of Lu vary with the
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`4 We refer the claim elements 1[a]–1[e] as identified in Section I.E, above.
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`5 Patent Owner contends that Lu does not teach claim element 1[b]. PO
`Resp. 12–23. Because we decide that Petitioner has not shown that Lu
`teaches claim element 1[e], as detailed below, we do not decide whether
`Petitioner has shown that Lu teaches claim element 1[b].
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`available capacity (which in turn would affect the ‘total number of data
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`packets that can use an available communication resource’), the weights of
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`Lu consistently indicate how much (i.e., ‘proportion’) of the capacity (‘total
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`number of data packets’) each class (i.e., ‘tier of service’) will receive.”
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`Id. at 32.
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`The parties dispute whether Lu teaches claim element 1[e], “providing
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`said communication resource to queued packet data users on a tier-by-tier
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`basis, such that said communication resource is made available to a number
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`of tiers.”
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`Petitioner contends that Lu describes end users 104–08 sending
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`packets through network 102 and that, when those data packets are received
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`by network 102, they are placed into queues, such as low, medium, and high
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`class queues 400, 402, 404 (shown in Figure 8 of Lu). Pet. 34; Reply 8–9.
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`Petitioner argues that “when network resources become available, Lu’s
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`network 102 provides these resources to subscribers (i.e., ‘queued data
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`packet users’) in each class (i.e., ‘on a tier-by-tier basis’), such that the
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`resources are allocated to low, medium, and high classes (i.e., ‘the network
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`resource is made available to a number of tiers’).” Pet. 34; accord Reply 9.
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`We have considered the testimony of Mr. Lanning on this claim element.
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`Ex. 1006 ¶¶ 73–74. That testimony, however, simply repeats the argument
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`in the Petition without adding to it materially.
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`Patent Owner responds that, although Lu describes queueing packet
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`data, Petitioner has not shown that Lu teaches queuing users of packet data.
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`PO Resp. 23–25. Thus, Patent Owner argues, Lu does not teach providing
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`communication resources to “queued packet data users,” as recited in
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`23
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`claim 1. Id. at 24–25. According to Patent Owner, “[m]erely disclosing
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`queued packets does not, without more, teach or suggest queued users.”
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`Id. at 25. Patent Owner relies on the testimony of Dr. Williams. Id. (citing
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`Ex. 2013 ¶¶ 54–55). According to Dr. Williams, in Lu, once packets are
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`placed in class queues, on a first-in
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