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` Paper 9
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`Entered: February 17, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`
`ERICSSON INC. AND
`TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioners,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`
`
`
`Case IPR2014-01170
`Patent 7,385,994 B2
`
`
`
`Before BRYAN F. MOORE, BRIAN J. MCNAMARA, and
`DAVID C. MCKONE, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
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`
`
`Case IPR2014-01170
`Patent 7,385,994 B2
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`
`I.
`
`INTRODUCTION
`
`Ericsson Inc. and Telefonaktiebolaget LM Ericsson (“Petitioners”)
`filed a Corrected Petition requesting an inter partes review of claims 125
`(“challenged claims”) of U.S. Patent No. 7,385,994 B2 (Ex. 1001, “the ’944
`patent”). Paper 1 (“Pet.”). Intellectual Ventures II LLC (“Patent Owner”)
`filed a Preliminary Response. Paper 6 (“Prelim. Resp”). We have
`jurisdiction under 35 U.S.C. § 314.
`Petitioners challenge claims 125 as being obvious (35 U.S.C. § 103).
`For the reasons to be discussed, Petitioners have not established a reasonable
`likelihood that it would prevail on its challenge of claims 1–25 of the ʼ944
`patent. Accordingly, we do not institute inter partes review of any claim.
`Petitioners indicate that the ’944 patent is involved in the following
`co-pending civil actions in the United States District Court for the District of
`Delaware: Intellectual Ventures II LLC v. AT&T Mobility LLC et al., 1:13-
`cv-01668-UNA; Intellectual Ventures II LLC v. Leap Wireless International
`Inc. et al., 1:13-cv-01669-UNA; Intellectual Ventures II LLC v. Nextel
`Operations Inc. et al., 1:13-cv-01670-UNA; Intellectual Ventures II LLC v.
`T-Mobile USA Inc. et al., 1:13-cv-01671-UNA; Intellectual Ventures II LLC
`v. United States Cellular Corporation, 1:13-cv-01672-UNA. Pet. 1.
`
`2
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`Case IPR2014-01170
`Patent 7,385,994 B2
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`
`A. The ’994 Patent
`
`The ʼ994 patent is directed to “to gateway queuing algorithms in
`packet networks. The invention is applicable to, but not limited to, gateway
`queuing algorithms in packet data transmissions, for example for use in the
`universal mobile telecommunication standard.” Ex. 1001, 1:5–9. In an
`embodiment of the invention of the ’994 patent, “one or more processing
`elements 248 contained with one or more RNCs [Radio Network
`Controllers] 236–240 have been adapted, to facilitate packet data queuing
`and scheduling in accordance with the preferred embodiment of the present
`invention.” Id. at 6:14–19. The ’994 patent recognizes that in embodiments
`“any elements managing packet data transmission, queuing, scheduling
`and/or routing may be controlled, implemented in full or implemented in
`part by adapting any other suitable part of the communication system 200.”
`Id. at 7:8–12.
`The exemplary packet data queuing algorithm “is based around the
`concept of employing different tiers of service. In particular, each tier, of a
`number of tiers of service, is configured to provide users with a commitment
`that a proportion of the entire system bandwidth will be allocated to users
`operating on that particular tier.” Id. at 6:47–51. The ’994 patent provides
`an example: “if we assume two tiers of service with a single user in each
`tier, we might allocate 75% of the entire system resource to the user of the
`higher tier and 25% of the entire resource to the user of the lower tier.”
`Id. at 6:52–55.
`The ’994 patent explains that, in an embodiment, the “tier of service
`for each user is determined when the session for each user begins.” Id. at
`
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`7:22–23. In this exemplary embodiment, “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.” Id. at 7:26–
`28. When a user is entered onto the exemplary packet data scheme, the
`user’s ID is placed at the tail of the appropriate queue. 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.” Id. at 7:62–65. This process “is repeated for all
`tiers, in the pre-allocated proportions for each tier. Within each lower tier,
`packets are also allocated in a round-robin fashion.” Id. at 8:1–3.
`
`
`B. Illustrative Claim
`Of the challenged claims, 1, 11, and 24 are independent. Claim 1 is
`illustrative of the claimed subject matter of the ’994 patent and is reproduced
`below:
`
`1. A method of processing queued data packets in a packet
`data communication system, the method comprising:
`allocating a tier of service for each of a plurality of
`individual packet data queues, wherein allocating a tier of
`service comprises:
`determining a total number of data packets that can use
`an available communication resource;
`allocating different weights to each tier of service based
`on a number of users requiring access to the available
`communication resource;
`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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`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.
`Ex. 1001, 9:1228.
`
`C. Prior Art Relied Upon
`
`Petitioners rely upon the following prior art references (Pet. 5):
`
`Applicant
`Patent No.
`Effective
`Exhibit
`Date
`Number
`Jan. 16,
`Ex. 1002
`2001
`July 27,
`1993
`Oct. 21,
`1999
`May 24,
`2001
`April 17,
`1997
`
`Mäkelä, et al.
`(“Mäkelä”)
`Hluchyj , et. al.
`(“Hluchyj”)
`Tzeng (“Tzeng”)
`
`Yamamoto
`(“Yamamoto”)
`Giroux, et al.
`(“Giroux”)
`
`
`
`
`US 7,336,661 B2
`
`US 5,231,633
`
`US 6,438,135 B1
`
`US 6,993,041 B2
`
`WO97/14240
`
`Ex. 1004
`
`Ex. 1005
`
`Ex. 1006
`
`Ex. 1003
`
`D.
`
`The Asserted Grounds
`
`Petitioners assert that the challenged claims are unpatentable based on
`the following grounds (Pet. 7):
`Reference[s]
`Basis
`Mäkelä and Giroux
`§ 103
`
`Claims challenged
`17, 1017, and 2025
`8, 9, 18, and 19
`
`17, 1017, 20, and 2325
`8, 9, 18, and 19
`
`21 and 22
`
`Mäkelä, Giroux, and
`Yamamoto
`Hluchyj and Tzeng
`Hluchyj, Tzeng, and
`Yamamoto
`Hluchyj, Tzeng, and
`Mäkelä
`
`§ 103
`
`§ 103
`§ 103
`
`§ 103
`
`5
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`Case IPR2014-01170
`Patent 7,385,994 B2
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`Hluchyj and Giroux
`Hluchyj, Giroux, and
`Yamamoto
`Hluchyj, Giroux, and
`Mäkelä
`
`§ 103
`§ 103
`
`§ 103
`
`17, 1017, 20, and 2325
`8, 9, 18, and 19
`
`21 and 22
`
`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. See 37 C.F.R. § 42.100(b); see also, In re
`Cuozzo Speed Tech, No. 2014–130, 2015 WL 448667 (Fed. Cir. February
`04, 2015). Under the broadest reasonable construction standard, claim terms
`“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. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007) (quoting Philllips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir.
`2005) (en banc)). Any special definition for a claim term must be set forth
`in the specification with “reasonable clarity, deliberateness, and precision.”
`In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`Petitioners recognize that claims 11231 contain limitations written in
`means-plus-function format and that, as such, they are presumed to be
`governed by § 112, ¶ 6. On the present record, we determine that § 112, ¶ 6
`
`
`1 Claims 20–23 depend ultimately from claim 11 and incorporate the means-
`plus-function limitations of claim 11.
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`governs the limitations, as they use the word “means,” and no rebuttal has
`been presented. Thus, pursuant to the statute, they are to be construed to
`cover the corresponding structure described in the specification and
`equivalents. See 35 U.S.C. § 112, ¶ 6.
`Claim 24 of the ’994 patent recites limitations that include the term
`“logic for.” The claim does not include the term “means,” which creates a
`rebuttable presumption that the claim is not written in means-plus-function
`format under 35 U.S.C. §112, ¶ 6. See Lighting World, Inc. v. Birchwood
`Lighting, Inc., 382 F.3d 1354, 1359 (Fed. Cir. 2004). However, this
`presumption may be overcome if the claim limitation “fails to ‘recite
`sufficiently definite structure’” or recites a “‘function without reciting
`sufficient structure for performing that function.’” Id. at 1358 (quoting
`Watts v. XL Sys., Inc., 232 F.3d 877, 880 (Fed.Cir.2000)). We conclude that
`the term “logic” would not be recognized by one of ordinary skill in the art
`as providing sufficiently definite structure for performing the claimed
`function. Pet. 8 (citing Ex. 1015, ¶ 40). Because Claim 24 fails to recite
`sufficiently definite structure, the presumption that the claim is not written in
`means-plus-function format is rebutted. Accordingly, we interpret claim 24
`under 35 U.S.C. § 112, ¶ 6.
`Petitioners contend that the only possible structure that could be relied
`upon for the recited function is disclosed in two sentences of the ’994
`specification. Pet. 9 (citing Ex. 1015 (“Lanning Dec.”) ¶ 41). However,
`neither Petitioners nor Patent Owner points to any algorithm for performing
`the functions contained in the limitations of claims 11–19 and 24. Pet. 9; see
`also Function Media, LLC v. Google, Inc., 708 F.3d 1310, 1318 (Fed. Cir.
`2013) (holding that a computer-implemented means-plus-function limitation
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`is indefinite because the specification failed to disclose the specific
`algorithm used by the computer to perform the recited function). Thus,
`Petitioners fail to demonstrate a reasonable likelihood of prevailing in its
`challenge to claims 1124 and the Petition as to those claims is denied.
`See Blackberry Corp. v. MobileMedia Ideas, LLC, IPR2013-00036, Paper
`No. 65 (Mar. 7, 2014) (terminating inter partes review proceeding because
`specification did not disclose specific algorithm to perform recited function
`of a computer-implemented means plus-function term).
`
`B. Claims 17, 10, and 25—Obviousness over Mäkelä (Ex. 1002) and
`Giroux (Ex. 1003)
`
`Petitioners argue that claims 17, 10, and 25 are unpatentable under
`35 U.S.C. § 103(a) over Mäkelä and Giroux. Pet. 1027.2 Mäkelä is
`directed to packet data queuing and scheduling systems in which data
`packets are queued based on priority and the queues are weighted relative to
`other queues according to priority. Ex. 1002, Abstract. Giroux is also
`directed to packet processing and queuing, specifically utilizing fair queue
`servicing using dynamic weights. Ex. 1003, 2:58, 3:18–21.
`Below we discuss independent claim 1. Claim 1 recites “allocating a
`proportion of said total number of data packets [that can use an available
`communication resource] to a number of the tiers of service to allow
`
`
`2 We denied institution of claims 1117 and 2024, which are included in
`this ground, based on a failure to cite to an algorithm. Thus, we will not
`discuss those claims in this section of the decision.
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`individual packet data queues on a number of tiers to share a communication
`resource.” Petitioners assert that Giroux teaches this limitation. For
`example, Petitioners assert that “Figure 1 discloses that ‘Timescale [Ts] = ~
`100 cell units,’ which is the number of cells that can be sent in a given
`time.” Pet. 13 (citing Ex. 1003, Fig. 1). We note that “[Ts]” does not appear
`in Figure 1 but was added by Petitioners. See Prelim. Resp. 21. Petitioners
`assume, for purpose of the challenge, that a cell is a data packet of
`fixed-length. Pet. 13 (citing Ex. 1015 ¶ 58; Ex. 1016, 134, 509; Ex. 1001,
`6:3537). Petitioners assert that Figure 3 discloses a service weight (Wi)
`which is the “number of cells to be served in [Ts] for output queue i.” Id.
`(quoting Ex. 1003, Fig. 3). Petitioners state “[t]he relationship between
`these elements is shown by ‘Wi =μi·Ts,’ which indicates that the service
`weight (Wi) is a proportion of the total number of cells that can be sent in a
`given time.” Id. (citing Ex. 1003, 5:206:3). Petitioners, thus, argue that
`Giroux determines that 100 cell units are available to be allocated in a
`sampling interval Ts and further determines a service weight (Wi) for each
`queue representing the portion of those 100 cell units allocated to each
`queue. Id. (citing Ex. 1015 ¶ 58).
`Patent Owner asserts that there is no disclosure in Giroux tying
`“Timescale” to Ts. Prelim. Resp. 21. Additionally, Ts is described as the
`number of cell slots in a sampling interval. Id. Thus, Petitioners have not
`explained sufficiently how Timescale or Ts represents the total number of
`data packets that can use an available communication resource.
`Additionally, Petitioners have not explained how Timescale or Ts relate to
`the total number of cell slots for the entire communication resource as
`opposed to one particular tier and how the allocation of that total to a
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`particular tier is determined. Thus, on the record before us, Petitioners have
`not shown sufficiently that Giroux teaches or suggests this limitation.
`Thus, upon review of Petitioners’ analysis and supporting evidence,
`we determine that Petitioners have not demonstrated that there is a
`reasonable likelihood that it would prevail with respect to claim 1 and claims
`27, 10, and 25 that ultimately depend from claim 1.
`
`C. Claims 1–7, 10, and 25 – Obviousness over Hluchyj (Ex. 1004) and
`Tzeng (Ex. 1005)
`
`Petitioners argue that claims 1–7, 10, and 25 are unpatentable under
`35 U.S.C. § 103(a) over Hluchyj and Tzeng.3 Pet. 30-43. Hluchyj is
`directed to packet data queuing and scheduling systems in which data
`packets are queued based on priority and the queues are weighted relative to
`other queues according to priority. Ex. 1004, Abstract, Fig. 2, 2:123;
`4:1417). Tzeng also is directed to packet processing and queuing,
`specifically utilizing fair queue servicing using dynamic weights. Ex. 1005,
`Abstract, 5:27–37.
`Below we discuss independent claim 1. Claim 1 recites “allocating
`different weights to each tier of service based on a number of users requiring
`access to the available communication resource.” Petitioners assert that
`Hluchyj discloses that “packets are queued into multiple queues, for
`example, CBO traffic is queued in queues 507–509 and data traffic is queued
`
`3 We denied institution of claims 11-17, 20, 23, and 24, that are included in
`this ground, based on a failure to cite to an algorithm. Thus, we will not
`discuss those claims in this section of the decision.
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`into queues 511–513 based on the requirements of the source of the traffic
`and that the system separates out packets from different sources into more
`than one queue.” Pet. 46 (citing Ex. 1004, 5:43–63). Petitioners further
`assert that the “weighted round-robin (WRR) packet selector serves each of
`the queues proportional to its weight.” Id. (citing Ex. 1004, 7:17–31).
`Petitioners also rely on the statement in Tzeng that when setting weights of
`the queues, “if the administrator is aware of a condition which may change
`network usage, such as the addition of a new network user or other network
`pattern change, then appropriate changes to service the EIDs and weights
`can also be made.” Pet. 31 (quoting Ex. 1005, 7:1–15).
`Patent Owner argues, as to Hluchyj, that the evidence cited by
`Petitioners does not explain how any individual weight is assigned but only
`states that queues are assigned to different sources of data and those queues
`may have different weights. Prelim Resp. 34. We are persuaded by this
`argument. Petitioners’ argument assumes that a source of traffic is a “user”
`as recited in claim 1. Pet. 31. Even if this is so, Hluchyj does not disclose
`that the number of sources of traffic (“users”) affects the allocation of
`weight to a particular queue.
`Patent Owner argues, as to Tzeng, that the statement relied on by
`Petitioners does not state that the number of users is the basis for allocating
`different weights to the queues. Prelim Resp. 35–36. We are persuaded by
`this argument. The statement from Tzeng simply notes that “appropriate”
`changes to weights may be made when a user is added without discussing or
`explaining what changes would be made. The statement does not suggest
`that different weights are allocated to each queue based on the number of
`users requiring access to the communication resource as recited in the claim.
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`Neither Petitioners nor its declarant Dr. Lanning relies on the knowledge of
`one of skill in the art to teach this limitation; rather they state specifically
`that Tzeng teaches this limitation. Pet. 31; Ex. 1015 ¶ 116. We are not
`persuaded that Tzeng so teaches. Thus, Petitioners have not shown
`sufficiently that the combination of Hluchyj and Tzeng teaches or suggests
`this limitation.
`Thus, upon review of Petitioners’ analysis and supporting evidence,
`we determine that Petitioners have not demonstrated that there is a
`reasonable likelihood that it would prevail with respect to claim 1 and claims
`2–7, 10, and 25 that ultimately depend from claim 1.
`
`D. Claims 8 and 9 – Obviousness over Mäkelä, Giroux, and Yamamoto
`
`Petitioners argue that claims 8 and 9 are unpatentable under 35 U.S.C.
`§ 103(a) over Mäkelä, Giroux, and Yamamoto.4 Pet. 27–30. Claims 8 and 9
`depend ultimately from claim 1. As discussed above in Section II.B.,
`Petitioners have not shown sufficiently that Mäkelä or Giroux discloses
`“allocating a proportion of said total number of data packets [that can use an
`available communication resource] to a number of the tiers of service to
`allow individual packet data queues on a number of tiers to share a
`communication resource,” as is required by independent claim 1.
`Additionally, Petitioners do not argue that Yamamoto makes up for this
`
`
`4 We denied institution of claims 18 and 19, which are included in this
`ground, based on a failure to cite to an algorithm. Thus, we will not discuss
`those claims in this section of the decision.
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`deficiency. Thus, upon review of Petitioners’ analysis and supporting
`evidence, we determine that Petitioners have not demonstrated that there is a
`reasonable likelihood that it would prevail with respect to the ground that
`claims 8 and 9 are unpatentable over Mäkelä or Giroux and Yamamoto.
`
`E. Claims 8 and 9 – Obviousness over Hluchyj, Tzeng, and Yamamoto
`
`Petitioners argue that independent claims 8 and 9 are unpatentable
`under 35 U.S.C. § 103(a) over Hluchyj, Tzeng, and Yamamoto.5 Pet. 43–44.
`Claims 8 and 9 depend ultimately from claim 1. As discussed above in
`Section II.C., Petitioners have not shown sufficiently that Hluchyj and Tzeng
`discloses “allocating different weights to each tier of service based on a
`number of users requiring access to the available communication resource,”
`as is required by each of independent claim 1. Additionally, Petitioners do
`not argue that Yamamoto makes up for this deficiency. Thus, upon review
`of Petitioners’ analysis and supporting evidence, we determine that
`Petitioners have not demonstrated that there is a reasonable likelihood that it
`would prevail with respect to the ground that claims 8 and 9 are unpatentable
`over Hluchyj, Tzeng, and Yamamoto.
`
`F. Claims 21 and 22 – Obviousness over Hluchyj, Tzeng, and Mäkelä
`
`Petitioners argue that independent claims 8 and 9 are unpatentable
`under 35 U.S.C. § 103(a) over Hluchyj, Tzeng, and Mäkelä. Pet. 44–45.
`
`5 We denied institution of claims 18 and 19, which are included in this
`ground, based on a failure to cite to an algorithm and will not discuss those
`claims in this section of the decision.
`
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`We denied institution of claims 21 and 22, each of the claims included in
`this ground, in Section II.A. above, based on a failure to cite to an algorithm.
`Therefore, this challenge is denied.
`
`G. Claims 1–7, 10, and 25 – Obviousness over Hluchyj and Giroux
`
`Petitioners argue that independent claims 1–7, 10, and 25 are
`unpatentable under 35 U.S.C. § 103(a) over Hluchyj and Giroux.6 As
`discussed above, Petitioners have not shown sufficiently that Giroux
`discloses “allocating a proportion of said total number of data packets [that
`can use an available communication resource] to a number of the tiers of
`service to allow individual packet data queues on a number of tiers to share a
`communication resource,” as is required by independent claim 1.
`Additionally, for this ground, Petitioners do not rely on Hluchyj to teach or
`suggest this limitation. Thus, upon review of Petitioners’ analysis and
`supporting evidence, we determine that Petitioners have not demonstrated
`that there is a reasonable likelihood that it would prevail with respect to the
`ground that claim 1 and claims 2–7, 10, and 25 are unpatentable over
`Hluchyj and Giroux.
`
`
`6 We denied institution of claims 11–17, 20, 23, and 24, which are included
`in this ground, based on a failure to cite to an algorithm. Thus, we will not
`discuss those claims in this section of the decision.
`
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`H. Claims 8 and 9 – Obviousness over Hluchyj, Giroux, and Yamamoto
`
`Petitioners argue that independent claims 8 and 9 are unpatentable
`under 35 U.S.C. § 103(a) over Hluchyj, Giroux, and Yamamoto.7 As
`discussed above, Petitioners have not shown sufficiently that Giroux
`discloses “allocating a proportion of said total number of data packets [that
`can use an available communication resource] to a number of the tiers of
`service to allow individual packet data queues on a number of tiers to share a
`communication resource,” as is required by each of independent claim 1.
`Additionally, for this ground, Petitioners do not rely on Hluchyj or
`Yamamoto to teach or suggest this limitation. Additionally, Petitioners do
`not argue that Yamamoto makes up for this deficiency. Thus, upon review
`of Petitioners’ analysis and supporting evidence, we determine that
`Petitioners have not demonstrated that there is a reasonable likelihood that it
`would prevail with respect to the ground that claims 8 and 9 are unpatentable
`over Hluchyj, Giroux, and Yamamoto.
`
`I. Claims 21 and 22 – Obviousness over Hluchyj, Giroux, and Mäkelä
`
`Petitioners argue that independent claims 21 and 22 are unpatentable
`under 35 U.S.C. § 103(a) over Hluchyj, Giroux, and Mäkelä. We denied
`institution of claims 21 and 22, each of the claims included in this ground, in
`
`
`7 We denied institution of claims 18 and 19, which are included in this
`ground, based on a failure to cite to an algorithm. Thus, we will not discuss
`those claims in this section of the decision.
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`Section II.A. above, based on a failure to cite to an algorithm. Therefore,
`this challenge is denied.
`
`III. CONCLUSION
`The information presented does not show that there is a reasonable
`likelihood that Petitioners would prevail at trial with respect to at least one
`claim of the ’994 patent, based on any ground presented in the petition. On
`this record, we deny the petition for inter partes review of claims 1–25.
`
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that that the petition is denied as to all challenged claims,
`and no trial is instituted.
`
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`PETITIONERS:
`
`J. Robert Brown, Jr.
`Charles J. Rogers
`Amy E. LaValle
`CONLEY ROSE, P.C.
`rbrown@dfw.conleyrose.com
`crogers@conleyrose.com
`alavalle@dfw.conleyrose.com
`
`
`PATENT OWNER:
`
`Lori A. Gordon
`Michael D. Specht
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`lgordon-PTAB@skgf.com
`mspecht-PTAB@skgf.com
`
`Donald J. Coulrnan
`INTELLECTUAL VENTURES
`dcoulrnan@intven.com
`
`
`
`17