Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 10
`Entered: March 14, 2016
`
`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.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper 10
`Entered: March 14, 2016
`
`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.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
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`IPR2015-01872
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`I. INTRODUCTION
`
`A. Background
`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.”). Upon consideration of the Petition and
`Preliminary Response, we conclude, under 35 U.S.C. § 314(a), that
`Petitioner has established a reasonable likelihood that it would prevail with
`respect to claims 1–4, 7, 11–14, 17, and 20–25, but not claims 5, 6, 8–10, 15,
`16, 18, and 19. Accordingly, we institute an inter partes review of claims 1–
`4, 7, 11–14, 17, and 20–25 of the ’994 patent.
`
`B. Related Matters
`The ’994 patent is the subject of several lawsuits in the United States
`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. The Asserted Grounds
`In its statement of the statutory grounds for its challenges, Petitioner
`contends that claims 1–25 are unpatentable as obvious, under 35 U.S.C.
`§ 103(a), over Lu (US 6,480,911 B1, issued Nov. 12, 2002, Ex. 1002), alone
`or in view of Pankaj (US 2002/0183066 A1, published Dec. 5, 2002,
`Ex. 1003). Pet. 9, 16. Nevertheless, in its detailed contentions, Petitioner
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`does not present evidence to show that Lu alone teaches claims 22 and 25.
`Pet. 57–60. Thus, Petitioner is contending that claims 1–21, 23, and 24
`would have been obvious over Lu alone and that claims 1–25 would have
`been obvious over Lu and Pankaj.
`
`D. The ’994 Patent
`The ’994 patent describes gateway queuing algorithms for processing
`queued data packets in packet networks. Ex. 1001, 1:5–9. The data packets
`are queued according to tiers and a communication resource is made
`available on a tier-by-tier basis. Id. at Abstract. Figure 2, reproduced
`below, illustrates an example:
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`Figure 2 is a block diagram of a wireless communication system. Id. at 5:8–
`10.
`The following acronyms are helpful in understanding the description
`
`of Figure 2, as well as other portions of this discussion:
`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;
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`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,
`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
`compete to send 1 kbit data packets over a 10 Mbps link in 10 msec rounds,
`in which 100 packets are allocated each round. Id. at 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
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`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 also can be allocated on a user-by-user basis. For
`example, 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. 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. Id. at 7:52–54. Once
`that user has transmitted γ packets, the user’s ID is placed at the tail of the
`queue and the remaining user IDs are moved up in the queue. Id. at 7:65.
`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;
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`[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
`[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
`Patent Owner argues that the Petition is barred by 35 U.S.C. §§ 315(a)
`and 315(b) or, in the alternative, that we should exercise our discretion to
`deny the petition under 35 U.S.C. § 325(b). We address and reject these
`arguments in turn. We then address Petitioner’s obviousness contentions.
`
`A. Patent Owner’s Arguments Regarding 35 U.S.C. § 315
`On October 7, 2013, more than one year before the September 8,
`2015, filing date of the Petition, Patent Owner filed a complaint against
`AT&T Mobility LLC, AT&T Mobility II LLC (collectively, “AT&T”), and
`Cingular Wireless Services, Inc., alleging, inter alia, infringement of the
`’994 patent. Ex. 2001 (Complaint in Intellectual Ventures I LLC v. AT&T
`Mobility LLC, Case 1:13-cv-01668-LPS (D. Del.)). On April 29, 2014,
`Petitioner filed a motion to intervene (Ex. 2002) in the Delaware District
`Court case as a defendant, along with an Answer in Intervention (Ex. 2003)
`raising, inter alia, an affirmative defense of invalidity of the ’994 patent. In
`the Motion to Intervene, Petitioner alleged that it was the manufacturer of
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`the products accused of infringement and that it might not be adequately
`represented by AT&T because AT&T “lack[ed] [Petitioner’s] knowledge
`and expertise concerning the design and manufacture of the accused
`Ericsson components and, therefore, may not assert, or adequately support,
`all defenses applicable to Ericsson’s products.” Ex. 2002, 3.
`On September 8, 2014, the Delaware Court granted the Motion to
`Intervene and also granted a motion to sever the ’994 patent into a separate
`action (Case No. 14-1229 (LPS) (D. Del.)). Ex. 2004. Petitioner filed an
`Answer in Intervention in the second (severed) action, again raising an
`affirmative defense of invalidity of the ’994 patent. Ex. 2005.
`
`
`1. Section 315(a) Bar
`Patent Owner contends that the Petition is barred under 35 U.S.C.
`§ 315(a). Prelim. Resp. 14. Section 315(a) provides:
`(a) Infringer’s Civil Action.—
`(1) Inter partes review barred by civil action.—
`An inter partes review may not be instituted if, before the date on
`which the petition for such a review is filed, the petitioner or real
`party in interest filed a civil action challenging the validity of a
`claim of the patent.
`
`* * *
`(3) Treatment of counterclaim.—
`A counterclaim challenging the validity of a claim of a patent
`does not constitute a civil action challenging the validity of a
`claim of a patent for purposes of this subsection.
`Patent Owner alleges that Petitioner’s Answer in Intervention (either
`submitted with the Motion to Intervene or filed in the severed case) is a civil
`action filed by Petitioner challenging the validity of a claim of the ’994
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`patent. Prelim. Resp. 15–16. Patent Owner characterizes the Answer in
`Intervention as “initiating a new dispute” between Petitioner and Patent
`Owner and argues that Petitioner, by intervening, “fired the first shot by
`initiating a civil action between itself and [Patent Owner] when none existed
`beforehand.” Id. According to Patent Owner, filing the Petition after
`intervening in Delaware constitutes the type of harassment of patent owners
`that Section 315(a) sought to prevent. Id. at 15. Patent Owner makes
`general reference to statements in the legislative history of the America
`Invents Act to the effect that our proceedings should be fast and cost
`effective and that challengers should be prevented from harassing patent
`owners. Id. at 14–15 (citing 157 Cong. Rec. S951–52 (daily ed. Feb. 28,
`2011)).
`We disagree that an Answer filed in intervention raising an
`affirmative defense of invalidity constitutes a civil action challenging the
`validity of a claim of a patent. Although not precedential, the reasoning in
`Ariosa Diagnostics v. Isis Innovation Limited, Case IPR2012-00022, 2013
`WL 2181162 (PTAB Feb. 12, 2013) (Paper 20), is applicable here. In
`Ariosa, the petitioner had filed a declaratory judgment complaint alleging
`noninfringement. In response, the patent owner counterclaimed for
`infringement and the petitioner answered by raising an affirmative defense
`of invalidity. Id. at *1. A panel of this Board concluded that the affirmative
`defense of invalidity did not implicate Section 315(a). Id. at *6.
`In reaching its conclusion, the Ariosa panel reasoned that, in light of
`the Federal Rules of Civil Procedure, Section 315(a)’s reference to filing a
`civil action refers to the filing of a compliant to commence a civil action, not
`an answer. Id. at *3 (citing Fed. R. Civ. P. 2, 3, 12; Baldwin Cnty Welcome
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`Ctr v. Brown, 466 U.S. 147, 149 (1984)). Citing Supreme Court precedent,
`the panel explained that “there is a fundamental difference between an
`affirmative defense of invalidity and a counterclaim of invalidity.” Id. at *4
`(citing Cardinal Chem. Co. v. Morton Int’l, Inc., 508 U.S. 83 (1993)). In
`light of this difference, the Ariosa panel concluded that “asserting an
`affirmative defense of invalidity is treated differently than a counterclaim for
`invalidity, and thus for the purposes of 315(a)(1) cannot be considered a
`filing of a civil action for invalidity.” Id. at *5. The Ariosa panel noted the
`consistency of its reasoning with the legislative history of Section 315(a).
`Id. (citing 157 Cong. Rec. S5429 (daily ed. Sept. 8, 2011) (statement of
`Sen. Kyl)).
`We agree with the reasoning of the Ariosa panel. Aside from its
`general references in the legislative history to preventing the harassment of
`patent owners, Patent Owner does not point to persuasive authority that an
`answer in intervention should be treated differently than an answer
`responding to infringement counterclaims. We conclude that the Petition is
`not barred by Section 315(a).
`
`
`2. Section 315(b) Bar
`Patent Owner contends that, because of the District Court cases
`against AT&T (we refer to the two cases collectively as the AT&T case), and
`Petitioner’s intervention therein, the Petition is barred by 35 U.S.C.
`§ 315(b). Section 315(b) provides:
`(b) Patent Owner’s Action.—
`An inter partes review may not be instituted if the petition
`requesting the proceeding is filed more than 1 year after the date
`on which the petitioner, real party in interest, or privy of the
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`petitioner is served with a complaint alleging infringement of the
`patent. . . .
`Patent Owner argues that AT&T was served with a complaint alleging
`infringement of the ’994 patent and that Petitioner is in privity with AT&T.
`Prelim. Resp. 10.
`According to Patent Office guidance, “[w]hether a party who is not a
`named participant in a given proceeding nonetheless constitutes a ‘real
`party-in interest’ or ‘privy’ to that proceeding is a highly fact-dependent
`question” that “will be handled by the Office on a case-by-case basis taking
`into consideration how courts have viewed the terms ‘real party-in-interest’
`and ‘privy.’” Office Trial Practice Guide, 77 Fed. Reg. 48,756, 48,759
`(Aug. 14, 2012). “A common consideration is whether the non-party
`exercised or could have exercised control over a party’s participation in a
`proceeding.” Id. “Additionally, many of the same considerations that apply
`in the context of ‘res judicata’ will likely apply in the ‘real party-in-interest’
`or ‘privy’ contexts.” Id. at 48,759–60.
`Petitioner, which manufactures the products accused of infringement
`in the AT&T case, argued that it was entitled to intervene in that case
`because of the risk that its products would be found to have infringed and
`because it believed its interests would not be adequately protected by the
`existing defendants, who lacked detailed knowledge of Petitioner’s products.
`Ex. 2002, 3. Patent Owner alleges that these facts show that “a sufficiently
`close relationship exists between [Petitioner] and AT&T—who was served
`with a complaint asserting infringement of the ’994 patent more than one
`year before [Petitioner] filed the Petition—to warrant a finding of privity
`between them.” Prelim. Resp. 12–13. Patent Owner further argues that,
`because of Petitioner’s intervention in the AT&T case, it “made itself subject
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`to any res judicata (claim preclusion) that results from the Second AT&T
`Action involving the ’994 patent.” Id. at 13–14.
`We authorized the parties to submit additional briefing on whether
`Petitioner’s intervention in the AT&T case gave rise to privity. Ex. 2010,
`15:16–16:8. In a Reply, Petitioner argues that Patent Owner misstates the
`relationship between privity and res judicata. Paper 8, 2. According to
`Petitioner, it will be subjected to res judicata, if at all, because it is a
`defendant in the same lawsuit as AT&T. Id. at 3–4. In contrast, Petitioner
`argues, a privity inquiry asks whether a non-party to a suit nevertheless
`would be subject to res judicata because of its relationship to a party to that
`suit. Id. at 4.
`In a Sur Reply, Patent Owner clarifies its position that it is not res
`judicata that gives rise to privity in this case. Rather, Patent Owner
`contends that the admissions Petitioner made in seeking to intervene show
`the type of close relationship between parties that gives rise to privity. Paper
`9, 2–3. According to Patent Owner, “[w]hat matters for purposes of Section
`315(b) is that [Petitioner] has a direct interest in the underlying suit as the
`manufacturer of accused devices based on a pre-existing relationship with
`AT&T.” Id. at 4–5.
`As to that argument, Petitioner contends that it was a lack of privity
`that led Petitioner to seek to intervene, as the existing parties to the AT&T
`case would not have represented its interests adequately. Paper 8, 5–7. The
`Board has found a similar argument persuasive in the context of determining
`whether a party failed to name an intervenor in district court as a real party
`in interest in a petition. Cf. Caterpillar Inc. v. Esco Corp., Case IPR2015-
`00409, 2015 WL 3826661, at *7 (PTAB June 18, 2015) (Paper 9) (“Raptor
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`sought to intervene based on the belief that Petitioner could not adequately
`represent Raptor’s interests. That Raptor believed that its interests were not
`adequately represented by Petitioner in the district court suggests Raptor and
`Petitioner are not so closely linked to justify a finding that Raptor is a real
`party in interest here.”).
`We agree with Petitioner. The issue is not whether Petitioner now
`will be bound to the AT&T case result by virtue of its intervention. Rather,
`one consideration in a privity analysis is whether, absent Petitioner’s
`intervention, its relationship with AT&T would have been such that
`Petitioner would have been bound by the outcome of the AT&T case.
`See Trial Practice Guide, 77 Fed. Reg. at 48,759 (“Ultimately, that analysis
`seeks to determine whether the relationship between the purported ‘privy’
`and the relevant other party is sufficiently close such that both should be
`bound by the trial outcome and related estoppels.”). Cf. Aruze Gaming
`Macau, Ltd., Petitioner, Case IPR2014-01288, 2015 WL 780607, at *8
`(PTAB Feb. 20, 2015) (Paper 13) (“[T]he focus of our privity inquiry is on
`the relationship between the parties during the prior lawsuit. In other words,
`we ask whether the instant petitioner and the prior litigant’s relationship--as
`it relates to the lawsuit--is sufficiently close that it can be fairly said that the
`petitioner has a full and fair opportunity to litigate the validity of the patent
`in the lawsuit. In this sense, our privity inquiry will typically fall into
`Taylor’s fourth category of nonparty preclusion, which applies to situations
`in which the petitioner ‘has had the opportunity to present proofs and
`argument’ such that it can be said to have ‘assumed control’ over the action.
`Our Practice Guide reflects this, noting that control is a ‘common
`consideration’ in the privity inquiry.” (quoting Taylor v. Sturgell, 553 U.S.
`
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`880, 895 (2008); Trial Practice Guide, 77 Fed, Reg, at 48,759)). Patent
`Owner has not alleged that Petitioner would have been bound by the AT&T
`case result absent intervention. Thus, Patent Owner’s arguments regarding
`res judicata are unpersuasive.
`The facts alleged by Patent Owner—a customer/supplier relationship;
`that the outcome of the AT&T case might affect Petitioner; that Petitioner is
`more knowledgeable about its products than AT&T; that AT&T’s alleged
`infringement is based in part on Petitioner’s products—are insufficient to
`suggest privity between Petitioner and AT&T. See Transclean Corp. v. Jiffy
`Lube Int’l, Inc., 474 F.3d 1298, 1306 (Fed. Cir. 2007) (“[A] manufacturer or
`seller of a product who is sued for patent infringement typically is not in
`privity with a party, otherwise unrelated, who does no more than purchase
`and use the product.”); Nestle USA, Inc. v. Steuben Foods, Inc., Case
`IPR2015-00195, 2015 WL 4036033, at *6 (PTAB June 29, 2015) (Paper 51)
`(rejecting Patent Owner’s privity claim that was “primarily based on
`Petitioner’s purchase of allegedly infringing equipment from GEA, and is
`not based on any other type of corporate relationship or joint ownership as to
`the entities.”); Petroleum Geo-Servs. Inc. v. Westerngeco LLC, Case
`IPR2014-00688, 2014 WL 7187162, at *10 (PTAB Dec. 15, 2014) (Paper
`33) (“The nature of shared interests in invalidating the ’607 patent,
`undertaking a joint defense, and assertion of a common interest privilege
`does not, without more, indicate privity.”). Patent Owner has not alleged
`other facts, such as facts that would suggest control.
`On this record, we conclude that the Petition is not barred by Section
`315(b).
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`B. Discretion Under 35 U.S.C. § 325(d)
`In Ericsson Inc. v. Intellectual Ventures II LLC, Case IPR2014-01170
`(PTAB), we considered a challenge to the same claims of the ’994 patent
`that are raised in the Petition here and declined to institute an inter partes
`review. In that proceeding, we rejected challenges based on prior art
`references not at issue in the current proceeding. Petitioner argues that the
`art and arguments raised in the current proceeding are substantially different
`from those raised in IPR2014-01170 and that the currently raised evidence
`expressly discloses those aspects of the challenged claims that were found
`missing in the art asserted in IPR2014-01170. Pet. 6–7.
`Patent Owner contends that we should exercise our discretion under
`Section 325(d) and deny the Petition in light of our denial of the petition in
`IPR2014-01170. Prelim. Resp. 16–22. In so contending, Patent Owner
`makes two contradictory arguments. First, Patent Owner argues that the
`prior art raised in the current Petition is substantially the same as that raised
`in IPR2014-01170, with the same failings vis-à-vis the challenged claims.
`Id. at 17–19. Second, Patent Owner argues that Petitioner’s use of our
`institution decision in IPR2014-01170 as a “roadmap or a how-to guide” to
`fix the deficiencies of the earlier petition constitutes an impermissible
`“second bite[] at the apple” and risks harassment of Patent Owner. Id. at
`20–21.
`We are not persuaded by Patent Owner’s arguments. It is our view
`that the art and arguments raised in the current Petition are substantially
`different from those raised in IPR2014-01170. As explained below, in
`contrast to Petitioner’s showing in IPR2014-01170, we are persuaded that
`Petitioner is reasonably likely to show that several of the claims would have
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`been obvious over Petitioner’s new art. Specifically, we are persuaded that
`Petitioner is reasonably likely to show teachings of the aspects of the claims
`we found lacking in the art raised in IPR2014-01170.
`As to Petitioner’s use of our Institution Decision in IPR2014-01170 as
`a “roadmap” in drafting the current Petition, failing to do so would have
`risked a petition that runs afoul of Patent Owner’s first complaint, i.e., a
`petition raising substantially the same challenges failing for the same
`reasons. Patent Owner does not explain persuasively how filing a second
`petition addressing the deficiencies of an earlier petition, without more,
`constitutes harassment. We do not read the Board decisions cited by Patent
`Owner to prohibit such a second petition, as those decisions considered a
`variety of other factors in exercising discretion to deny petitions.
`In light of the foregoing, we exercise our discretion to consider the
`current Petition.
`
`C. 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); In re Cuozzo Speed Techs., LLC,
`793 F.3d 1268, 1278 (Fed. Cir. 2015), cert. granted sub nom. Cuozzo Speed
`Techs., LLC v. Lee, 136 S. Ct. 890 (mem.) (2016). In applying a broadest
`reasonable construction, 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).
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`Claims 11–19 recite several terms in means-plus-function format.
`“An element in a claim for a combination may be expressed as a means . . .
`for performing a specified function without the recital of structure, material,
`or acts in support thereof, and such claim shall be construed to cover the
`corresponding structure, material, or acts described in the specification and
`equivalents thereof.” 35 U.S.C. § 112, ¶ 6.1 The United States Court of
`Appeals for the Federal Circuit stated: “Section 112, ¶ 6 recites a mandatory
`procedure for interpreting the meaning of a means- or step-plus-function
`claim element. These claim limitations ‘shall be construed to cover the
`corresponding structure, material, or acts described in the specification and
`equivalents thereof.’” Al-Site Corp. v. VSI Int’l, Inc., 174 F.3d 1308, 1320
`(Fed. Cir. 1999); see also In re Donaldson Co., Inc., 16 F.3d 1189, 1193–94
`(Fed. Cir. 1994) (“[P]aragraph six applies regardless of the context in which
`the interpretation of means-plus-function language arises, i.e., whether as
`part of a patentability determination in the PTO or as part of a validity or
`infringement determination in a court.”). We construe such a limitation by
`determining what the claimed function is and identifying the structure or
`materials disclosed in the specification that correspond to the means for
`performing that function. See Kemco Sales, Inc. v. Control Papers Co., Inc.,
`208 F.3d 1352, 1360 (Fed. Cir. 2000).
`For computer-implemented inventions, this corresponding structure
`must be more than a general purpose computer or microprocessor.
`See Aristocrat Techs. Australia Pty Ltd. v. Int’l Game Tech., 521 F.3d 1328,
`1333 (Fed. Cir. 2008). Rather, “[w]hen dealing with a ‘special purpose
`
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`1 Now recodified as 35 U.S.C. § 112(f).
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`computer-implemented means-plus-function limitation,’ . . . the specification
`[must] disclose the algorithm for performing the function.” Function Media,
`L.L.C. v. Google, Inc., 708 F.3d 1310, 1318 (Fed. Cir. 2013); accord
`Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1384 (Fed. Cir.
`2009) (“[W]hen a computer is referenced as support for a function in a
`means-plus-function claim, there must be some explanation of how the
`computer performs the claimed function.”).
`Claim 24 recites several terms in the form of “logic for” performing
`the functions of parallel terms recited in claim 11. Petitioner contends that
`the “logic for” terms of claim 24 should be treated as “means-plus-function”
`terms, under 35 U.S.C. § 112, sixth paragraph. Pet. 10 (citing Williamson v.
`Citrix Online, LLC, 792 F.3d 1339, 1349 (Fed. Cir. 2015)). Patent Owner
`does not challenge this assertion. Prelim. Resp. 22.
`Petitioner proposes corresponding structure for the “means for” and
`“logic for” terms of claims 11–19 and 24. Pet. 10–15. Patent Owner does
`not dispute these identifications of structure. Prelim. Resp. 22. We have
`reviewed Petitioner contentions, and on the current record, agree with
`Petitioner’s proposed constructions, set forth in the Petition, at pages 10–15.
`The parties do not propose additional terms for construction. For
`purposes of this Decision, it is not necessary to construe any other terms
`expressly.
`
`
`D. Asserted Grounds of Unpatentability
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`between the claimed subject matter and the prior art are “such that the
`subject matter as a whole would have been obvious at the time the invention
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`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
`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
`nonobviousness, i.e., secondary considerations. See Graham v. John Deere
`Co., 383 U.S. 1, 17–18 (1966).
`In an obviousness analysis, some reason must be shown as to why a
`person of ordinary skill would have combined or modified the prior art to
`achieve the patented invention. See Innogenetics, N.V. v. Abbott Labs., 512
`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;
`the “‘interrelated teachings of multiple patents’”; “‘any need or problem
`known in the field of endeavor at the time of invention and addressed by the
`patent’”; and the background knowledge, creativity, and common sense of
`the person of ordinary skill. Perfect Web Techs., Inc. v. InfoUSA, Inc., 587
`F.3d 1324, 1328–29 (Fed. Cir. 2009) (quoting KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398, 418–21 (2007)).
`
`
`1. Obviousness over Lu
`a. Overview of Lu
`Lu describes a class queuing system in a network. Ex. 1002, 1:21–25.
`The class queuing system processes data transmitted by subscribers based on
`a class subscribed to by the subscriber (e.g., high, medium, or low classes)
`relative to a network characteristic (e.g., bandwidth, quality of service, or
`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.
`Network 102 includes several network units 202, 204, 206, for example,
`routers, connected to one another via communication links 212–215. Id. at
`3:11–15, 3:47–53. End users 104, 106, 108 communicate with one another
`by transmitting data packets through network 102. Id. at 3:56–67. Data
`packets from multiple users received by a network unit (e.g., network unit
`202, received over links 208, 210, 212, 214) are placed into input queues and
`switched to output queues that correspond to links (e.g., links 209, 211, 213,
`215) to destinations. Id. at 3:61–4:9, 4:10–16, Figure 4.
`Figure 5 of Lu, reproduced below, illustrates a more detailed example
`of an output queue, including a hierarchy of class queues for organizing data
`packets for transmission via link 209:
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`Figure 5 is a block diagram of a queue organization that supports high,
`medium, and low classes. Id. at 2:19, 4:40–42. Data packets received from
`a user into an input queue are switched to a destination input queue (e.g.,
`with reference to Figure 4, packets received into input queue 302 can be
`switched to destination input queue 320, also shown in Figure 5). Id. at
`4:23–29. The destination input queues form level zero queues. Id. at 4:44–
`45. The data packets in destination input queue 320 can be organized into
`separate level one queues corresponding to low 416, medium 418, and high
`420 classes. Id. at 48–51. Data is treated similarly for destination input
`queues 322, 324, 326.
`Weight sets can be used to regulate the movement of packets from
`queues at one level to queues at the next level. Id. at 3:17–19. “In this way,
`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
`subscriber classes.” Id. at 3:19–22. The weight sets can be based on such
`network parameters as subscriber volume, end-to-end delay, video quality,
`or error rate. Id. at 3:23–29, 8:30–45.
`In one example, the class queuing system moves data packets from
`level one
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