Trials@uspto.gov
`571-272-7822
`
`
`
`
`
` Paper 12
` Entered: April 5, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioners,
`
`v.
`
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01873
`Patent 6,640,248 B1
`
`
`
`Before KRISTEN L. DROESCH, BRIAN J. McNAMARA, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`
`DROESCH, Administrative Patent Judge.
`
`
`
`DECISION
`
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
` Paper 12
` Entered: April 5, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioners,
`
`v.
`
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01873
`Patent 6,640,248 B1
`
`
`
`Before KRISTEN L. DROESCH, BRIAN J. McNAMARA, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`
`DROESCH, Administrative Patent Judge.
`
`
`
`DECISION
`
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`
`IPR2015-01873
`Patent 6,640,248 B1
`
`I. INTRODUCTION
`
`A. Background
`
`
`
`Ericsson Inc. and Telefonaktiebolaget LM Ericsson (“Petitioner”)
`
`filed a Petition (Paper 1, “Pet.”) for inter partes review of claims 1–20 (“the
`
`challenged claims”) of U.S. Patent No. 6,640,248 B1 (“the ’248 Patent”).
`
`See 35 U.S.C. §§ 311–312. Intellectual Ventures I LLC (“Patent Owner”)
`
`timely filed a Preliminary Response (Paper 6, “Prelim. Resp.”). See
`
`35 U.S.C § 313. We have statutory authority under 35 U.S.C. § 314, which
`
`provides that inter partes review may not be instituted unless it is
`
`determined that “the information presented in the petition filed under section
`
`311 and any response filed under section 313 shows that there is a
`
`reasonable likelihood that the petitioner would prevail with respect to at least
`
`1 of the claims challenged in the petition.” 35 U.S.C. § 314(a).
`
`
`
`After considering the Petition and Preliminary Response, for the
`
`reasons provided below, we determine there is not a reasonable likelihood
`
`Petitioner would prevail in showing the challenged claims are unpatentable.
`
`B. Related Proceedings
`
` The ’248 Patent was the subject of an earlier petition for inter partes
`
`review filed by Petitioner in Ericsson Inc. v. Intellectual Ventures I LLC,
`
`Case IPR2014-01331, which was denied. Pet. 1; Paper 5, 2. The ’248
`
`Patent is also the subject of ten district court proceedings. Pet. 1; Paper 5, 1.
`
`C. The ’248 Patent (Ex. 1001)
`
`
`
`The ’248 Patent is entitled “Application-Aware, Quality of Service
`
`(QoS) Sensitive, Media Access Control (MAC) Layer.” The ’248 Patent
`
`discloses that it is desirable to minimize or eliminate problems resulting
`
`from poor quality in wireless streaming multimedia applications. Ex. 1001,
`
`11:46–12:39. By providing a QoS mechanism that is application-specific
`
`2
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`IPR2015-01873
`Patent 6,640,248 B1
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`rather than circuit specific, bandwidth can be conserved and dynamically
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`allocated where needed by the QoS mechanism associated with each
`
`application type. Id. at 22:8–12. Media access control (MAC) layer
`
`includes an allocator that allocates bandwidth to an Internet Protocol (IP)
`
`flow associated with a software application based on the IP QoS
`
`requirements of the software application so that the IP flows of each
`
`application can be switched to appropriate destinations in a proper priority
`
`order. Id. at Abstract, 22:20–24. In some cases, “application-level
`
`information about the nature of the application can be used by the system to
`
`assign appropriate QoS mechanism parameters to the IP stream,” while in
`
`other cases, “information about the IP streams for use in configuring the
`
`appropriate QoS mechanism parameters can be extracted from packet
`
`headers.” Id. at 22:27–32. In particular, IP header fields can be used to
`
`identify IP flows and the QoS requirements of the IP flows, which are
`
`helpful for providing “application aware” resource allocation. Id. at 53:18–
`
`27. Application information is communicated vertically in the protocol
`
`stack model from the application layer to the MAC layer for bandwidth
`
`reservation and application switching purposes. Id. at 22:32–37.
`
`D. Illustrative Claim
`
`
`
`Claims 1 and 20 are independent, and claims 2–19 depend ultimately
`
`from claim 1. Claim 1 is illustrative:
`
`1.
`An application aware, quality of service (QoS) sensitive,
`media access control (MAC) layer comprising:
`
`an application-aware resource allocator at the MAC
`layer, wherein said resource allocator allocates bandwidth
`resource to an internet protocol (IP) flow associated with a
`software application of a user based on IP QoS requirements of
`said software application, wherein said resource allocator
`allocates said bandwidth resource in a packet centric manner
`
`3
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`IPR2015-01873
`Patent 6,640,248 B1
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`that is not circuit-centric and does not use asynchronous
`transfer mode (ATM).
`
`E. Asserted Grounds of Unpatentability
`
`
`
`Petitioner challenges claims 1–20 as unpatentable under 35 U.S.C.
`
`§ 103(a) over Naghshineh1 and Bianchi.2 Petitioner also challenges claims
`
`1–20 as unpatentable under 35 U.S.C. § 103(a) over Drake3 and Bianchi.
`
`II. ANALYSIS
`
`A. Bar Under 35 U.S.C. § 315(a) and (b)
`
`
`
`Patent Owner argues institution of inter partes review is barred
`
`because Petitioner and Petitioner’s privy were served with a complaint
`
`alleging infringement of the ’248 Patent more than one year before the filing
`
`of this Petition. Prelim. Resp. 2, 5–11; see 35 U.S.C. § 315(b). Patent
`
`Owner also argues that institution of inter partes review is barred because
`
`Petitioner challenged the validity of the ’248 patent by moving to intervene
`
`in a civil action challenging the validity of the ’248 Patent. Prelim. Resp. 2,
`
`11–12; see 35 U.S.C. § 315(a). The parties filed additional briefing
`
`regarding whether Petitioner was served with a complaint alleging
`
`infringement of the ’248 Patent more than one year before the filing of this
`
`Petition. Papers 9, 11. The parties also filed as exhibits their additional
`
`briefing from Ericsson Inc. v. Intellectual Ventures II LLC, Case IPR2015-
`
`
`
`1 Ex. 1006, Mahmoud Naghshineh & Marc Willebeek-LeMair, End-to-End
`QoS Provisioning in Multimedia Wireless/Mobile Networks Using an
`Adaptive Framework, IEEE COMM. MAG., Nov. 1997, at 72 (“Naghshineh”).
`2 Ex. 1005, Giuseppe Bianchi et al., On Utility-Fair Adaptive Services in
`Wireless Networks, 1998 SIXTH INT’L WORKSHOP ON QUALITY SERV.
`(IWQOS ’98) 256 (“Bianchi”).
`3 Ex. 1004, Drake, Jr., et al., U.S. Patent No. 5,461,611, issued Oct. 24, 1995
`(“Drake”).
`
`4
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`IPR2015-01873
`Patent 6,640,248 B1
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`01872, addressing issues identical to the remaining § 315(a) and (b) issues
`
`before us. Ex. 1017; Ex. 2014. In the analysis that follows, we determine
`
`there is not a reasonable likelihood Petitioner would prevail in showing the
`
`challenged claims are unpatentable. Accordingly, we need not address
`
`Patent Owner’s assertions that inter partes review is barred under 35 U.S.C.
`
`§ 315 (a) and (b).
`
`B. Claim Construction
`
`
`
`Claims of an unexpired patent are interpreted using the broadest
`
`reasonable interpretation in light of the specification. See 37 C.F.R.
`
`§ 42.100(b); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed.
`
`Cir. 2015), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 136 S.
`
`Ct. 890 (2016) (mem.). Claim terms also 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).
`
`
`
`In accordance with 37 C.F.R. § 42.104(b)(3), Petitioner provides a
`
`claim chart purporting to identify corresponding structures and functions for
`
`certain means-plus-function limitations recited in claim 20. Pet. 11–12.
`
`Petitioner and Patent Owner do not provide explicit claim constructions for
`
`any remaining claim term or phrase. See id. at 11; Prelim. Resp. 18–21.
`
`
`
`For the purpose of this decision, we need not construe explicitly any
`
`claim term or phrase.
`
`C. Grounds of Unpatentability
`
`1. Claims 1–20 over Naghshineh and Bianchi
`
`a. Naghshineh (Ex. 1006)
`
`
`
`Naghshineh is entitled “End-to-End QoS Provisioning in Multimedia
`
`Wireless/Mobile Networks Using an Adaptive Framework.” Naghshineh
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`5
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`IPR2015-01873
`Patent 6,640,248 B1
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`discloses “multimedia applications [that] need to be adaptive and network-
`
`aware, and networks [that] must provide application-aware services.”
`
`Ex. 1006, 73, cols. 1–2. The responsibility of end-to-end quality of service
`
`(QoS) provisioning “is shared between the application and the network to
`
`deliver multimedia content to a mobile/wireless terminal in the most
`
`acceptable form given the resource availability in the network at any time.”
`
`Id. at 73, col. 2. An application presents multimedia content to a network as
`
`a multiresolution stream, thereby the multimedia streams are adaptable to
`
`satisfy different network and terminal characteristics. Id. at 73, col. 2–76,
`
`col. 1. The adaptive network provides a media scaling function based on the
`
`resource availability conditions in the fixed and wireless network. Id. at 76,
`
`col. 1. The requirements of the adaptive network include a transport service
`
`layer, routing, wireless link, and wireless medium. Id. at 76 § Adaptive
`
`Network. In discussing the wireless link requirement of the adaptive
`
`network, Naghshineh discloses:
`
`The immense differences between wired and wireless links in
`terms of BER [(bit error rate)] and bandwidth result in access
`points being very critical elements of mobile and wireless
`networks. The interface between the wired and wireless link at
`an access point must ensure that the packet-level QoS of a
`substream is met according to its predefined priority, dictated
`by the application. The challenge here is to use an appropriate
`medium access control (MAC) protocol to maintain some
`availability of the shared wireless resource and to provide
`added protection on the transmission of packets over the
`wireless medium to mitigate packet loss due to fading of the
`medium.
`
`Id. at 76 § Wireless Link. The transport layer in the transmitting station
`
`provides a service layer between the application and the network that allows
`
`the application to identify its substreams and its layers to the network
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`IPR2015-01873
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`(intermediate switching and access points), for example, by providing packet
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`“tagging.” Id. at 76 § Transport Service Layer; see id. at 77 § Multilayered
`
`Service Contract and Adaptive Transport (describing substream
`
`identification (SSI) tag). The required components of an adaptive mobile
`
`and wireless network include a multilayered service contract, a mobile
`
`multicast routing protocol, substream filters, substream schedulers and error
`
`control functions, and proactive resource reservation, call admission, and
`
`signaling functions. Id. at 76 § Adaptive Network Components to 78, col. 2.
`
`Substream scheduler (SSS) is used in mobile stations, access points or base
`
`stations to schedule the transmission of packets on the wireless medium
`
`according to their substream identification (SSI). Id. at 77 § Substream
`
`Scheduling and Error Control. “[T]he reason behind a ‘substream-aware’
`
`transport is to enable elements within the network to take advantage of the
`
`fact that all data within a connection does not have the same level of QoS
`
`requirement.” Id. Central to the adaptive end-to-end QoS architecture is the
`
`ability of the application, transport, and network to be aware of each other’s
`
`capabilities and requirements. Id. at 81 § Conclusion.
`
`b. Bianchi (Ex. 1005)
`
`
`
`Bianchi is entitled “On Utility-Fair Adaptive Services in Wireless
`
`Networks. Bianchi discloses “[a] quality of service adaptive data link
`
`control model . . . that accounts for application specific adaptation dynamics
`
`that include adaptation time-scales and adaptation policies.” Ex. 1005,
`
`Abstract. “A centralized adaptation controller [at wireless network access
`
`point] employs a utility-fair allocation scheme that supports the dynamic
`
`bandwidth needs of adaptive flows over a range of operating conditions.”
`
`Id.; accord id. at 257 § 1 para. 5. “[T]he design of the utility-fair bandwidth
`
`allocation scheme and the interaction between the centralized adaptation
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`IPR2015-01873
`Patent 6,640,248 B1
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`controller and a set of distributed adaptation handlers . . . play a key role in
`
`intelligently responding to time-varying channel capacity experienced over
`
`the air-interface.” Id.; accord id. at 257 § 1 para. 5. “Due to the fast time
`
`scale dynamics associated with wireless channels, resource allocation and
`
`adaptation techniques need to be explicitly supported not only at the
`
`transport and network layers but also at the data link controller.” Id. at 257
`
`§ 1 para. 5. Bianchi’s Figure 2 is reproduced below:
`
`
`
`Bianchi’s Figure 2 above depicts an adaptation controller, a utility-fair
`
`bandwidth allocator, a scheduler, and a downlink handler at the access point,
`
`and an uplink adaptation handler at the mobile device. Figure 2 further
`
`depicts an “[u]pper layer adaptive service” located above “[d]atalink layer
`
`bearer service + adaptation support.” “A signaling interface (S-MAC)
`
`provides an in-band channel between the mobile device and access point
`
`supporting various signaling features, e.g., flow setup, adaptation control,
`
`scheduler polling.” Id. at 258 § 2.2 para. 3. Figure 2 also depicts “MAC-
`
`TX,” “MAC protocol” and “PHY” below “S-MAC” and “Signalling MAC
`
`interface.”
`
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`IPR2015-01873
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`c. Claims 1–20
`
`
`
`Petitioner asserts “an application-aware resource allocator at the MAC
`
`layer,” as recited in claim 1, and an “application-aware media access control
`
`(MAC) layer . . . comprising . . . allocating means,” as recited in
`
`independent claim 20, are taught by Naghshineh’s substream scheduler
`
`(SSS). Pet. 16 (citing Ex. 1006, 76, 77; Ex. 1003 ¶ 65); id. at 36–37.
`
`Specifically, Petitioner alleges:
`
`[B]ecause available bandwidth widely fluctuates (see Ex. 1006,
`p. 72), Naghshineh advocates using “an appropriate medium
`access control (MAC) protocol to maintain some availability of
`the shared wireless resource and to provide added protection on
`the transmission of packets over the wireless medium.” (Id. at
`76) A POSA would have known that Naghshineh’s SSS (i.e.,
`resource allocator) is at the MAC layer in order “to maintain
`some availability of the shared wireless resource” medium and
`“to mitigate packet loss due to the fading of the medium.”
`(Ex. 1003, ¶ 66).
`
`Pet. 16–17.
`
`
`
`Patent Owner argues Petitioner’s assertions are supported only by
`
`conclusory testimony of Petitioner’s expert Mark R. Lanning that only
`
`quotes one sentence from Naghshineh discussing the MAC protocol.
`
`Prelim. Resp. 32 (quoting Pet. 17; Ex. 1006, 76) (citing Ex. 1003 ¶ 66);
`
`see id. at 35. Patent Owner asserts that the quoted disclosure from
`
`Naghshineh discussing the MAC protocol does not mention substreams or
`
`scheduling substreams, and Naghshineh never discloses the SSS is part of
`
`the MAC layer. Id. at 32–33. Lastly, Patent Owner argues Petitioner’s
`
`assertions are contradicted by Bianchi’s characterization of Naghshineh as
`
`addressing adaptive quality of service techniques at the transport and
`
`network layers of wireless networks, which Patent Owner asserts is
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`Patent 6,640,248 B1
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`consistent with Naghshineh’s disclosure. Id. at 33–34 (citing Ex. 1005, 256;
`
`Ex. 1006, 73). Patent Owner further argues that the transport and network
`
`layers are both located above, and distinct from, the MAC layer. Id. (citing
`
`Ex. 1001, 42:42–44; Ex. 2011, 430).
`
`
`
`We agree the citation to Naghshineh’s discussion of MAC protocol
`
`does not mention substreams or scheduling substreams, and further agree
`
`Naghshineh does not disclose the SSS is part of the MAC layer.
`
`See Ex. 1006, 76 § Wireless Link, 77 § Substream Scheduling and Error
`
`Control. We also agree Naghshineh discloses adaptive quality of service
`
`techniques at the transport and network layers of wireless networks, which
`
`are distinct from a MAC layer. See Ex. 1005, 256 § 1 para. 2; Ex. 1006, 73,
`
`cols. 1–2, 76, col. 1 § Transport Service Layer, 77 § Substream Scheduling
`
`and Error Control; Ex. 1001, 42:42–44; Ex. 2011, 430. Lastly, Petitioner’s
`
`assertion that a person of ordinary skill would have known Naghshineh’s
`
`SSS is at the MAC layer is not supported by a sufficient factual basis. We
`
`give little weight to Mr. Lanning’s opinion (see Ex. 1003 ¶ 66) because it is
`
`not supported by underlying fact. See 37 C.F.R. § 42.65. Mr. Lanning’s
`
`testimony is only supported by selected out-of-context quotation of
`
`Naghshineh. It is not readily apparent, and Mr. Lanning does not explain,
`
`why one with ordinary skill in the art would know that Naghshineh’s SSS is
`
`at the MAC layer based on the following full disclosure of Naghshineh:
`
`The interface between the wired and wireless link at an access
`point must ensure that the packet-level QoS of a substream is
`met according to its predefined priority, dictated by the
`application. The challenge here is to use an appropriate
`medium access control (MAC) protocol to maintain some
`availability of the shared wireless resource and to provide
`added protection on the transmission of packets over the
`
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`IPR2015-01873
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`wireless medium to mitigate packet loss due to fading of the
`medium.
`
`Ex. 1006, 76 § Wireless Link; see Ex. 1003 ¶ 66.
`
`
`
`Petitioner further asserts that an application aware resource allocator
`
`at the MAC layer would have been obvious in view of Naghshineh and
`
`Bianchi. Pet. 17, 36–37. Petitioner contends “[i]t would have been obvious
`
`to incorporate Bianchi’s application-aware scheduler into Naghshineh’s
`
`access point so that it is ‘better suited to respond to application specific
`
`adaptation needs.’” Id. at 18 (quoting Ex. 1005, Abstract; Ex. 1003 ¶ 70).
`
`Petitioner further contends “[a] POSA would have been motivated to do so
`
`because ‘an access point must ensure that the packet-level QoS of a
`
`substream is met [as] dictated by the application.’” Id. (second alteration in
`
`original) (quoting Ex. 1006, 76; Ex. 1003 ¶ 70). Petitioner asserts “Bianchi
`
`explains that due to the fast fading in ‘wireless channels, resource
`
`allocation and adaptation techniques need to be explicitly supported . . . at
`
`the data link’ layer.” Id. (quoting Ex. 1005, 257). Petitioner contends “[t]o
`
`address this need, a POSA would have understood to employ an access
`
`point’s scheduler (i.e., ‘resource allocator’) at the MAC protocol layer, as
`
`taught by Bianchi in Fig. 2.” Id. at 18–19 (citing Ex. 1005, 258)
`
`(reproducing Bianchi’s Figure 2 with added annotations).
`
`
`
`Patent Owner rebuts Petitioner’s arguments by asserting that
`
`Petitioner does not explain how its reproduction of Bianchi’s Figure 2 with
`
`added annotations teaches employing the scheduler at the MAC layer.
`
`Prelim. Resp. 38–39. Patent Owner argues that Petitioner’s quotations from
`
`Bianchi merely discuss the data link layer and the S-MAC interface. Id. at
`
`39. Patent Owner contends the MAC layer is a strict subset of the data link
`
`layer, such that the data link layer has components that are not employed at
`
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`IPR2015-01873
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`the MAC layer. Id. (citing Ex. 1003 ¶ 56; Ex. 1001, 42:42–44; Ex. 1005,
`
`Fig. 2; Ex. 1013, 27); see Ex. 2011, 430, Fig. 13. Patent Owner further
`
`argues that Bianchi’s scheduler may interact with the MAC layer to transmit
`
`packets over the interface, but the scheduler is not at the MAC layer.
`
`Prelim. Resp. 40.
`
`
`
`We agree with Patent Owner that the MAC layer is a distinct sublayer
`
`of the data link layer. See Ex. 1013, 27. We further agree that Bianchi’s
`
`disclosure of employing components at the data link layer does not provide
`
`sufficient support for Petitioner’s assertion that the scheduler is at the MAC
`
`layer. See Ex. 1005, Figs. 2, 10; see also id. at 258 § 2.2 (“We propose a
`
`number of enhancements to data link layer architecture to support QoS
`
`adaptation . . . .”), id. at 262 (“data link layer provides a flexible adaptation
`
`interface for service providers and application developers to program related
`
`datalink support”).
`
`
`
`Furthermore, Petitioner’s assertions of obviousness are conclusory,
`
`and supported only by selected out-of-context quoted phrases from Bianchi
`
`and Naghshineh. “[O]bviousness . . . cannot be sustained by mere
`
`conclusory statements; instead, there must be some articulated reasoning
`
`with some rational underpinning to support the legal conclusion of
`
`obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), quoted with
`
`approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
`
`For example, Petitioner does not provide sufficient articulated reasoning
`
`with rational underpinning for incorporating Bianchi’s scheduler into
`
`Naghshineh’s access point based on the following full disclosure of Bianchi:
`
`“In this paper we assess the state-of-the-art in quality of service adaptive
`
`wireless systems and argue for new adaptation techniques that are better
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`suited to respond to application specific adaptation needs.” Ex. 1005,
`
`Abstract (Petitioner’s quoted language underlined); see Pet. 18;
`
`Ex. 1003 ¶ 70. As a further example, Petitioner does not provide sufficient
`
`articulated reasoning with rational underpinning for the proposed
`
`modification based on the following full disclosure of Naghshineh: “The
`
`interface between the wired and wireless link at an access point must ensure
`
`that the packet-level QoS of a substream is met according to its predefined
`
`priority, dictated by the application.” Ex. 1006, 76 § Wireless Link
`
`(Petitioner’s quoted language underlined); see Pet. 18; Ex. 1003 ¶ 70. As a
`
`final example, Petitioner does not provide sufficient articulated reasoning
`
`with rational underpinning for the proposed modification based on the
`
`following full disclosure of Bianchi: “Due to the fast time scale dynamics
`
`associated with wireless channels, resource allocation and adaptation
`
`techniques need to be explicitly supported not only at the transport and
`
`network layers but also at the data link controller.” Ex. 1005, 257, col. 1
`
`(Petitioner’s quoted language underlined); see Pet. 18.
`
`
`
`
`
`Lastly, Petitioner contends “[i]t would have been obvious to employ
`
`Bianchi’s S-MAC interface in Naghshineh’s access point to allocate
`
`resources at the MAC layer because ‘resource allocation and adaptation
`
`techniques need to be explicitly supported not only at the transport and
`
`network layers but also at the data link’ layer.” Pet. 20 (quoting Ex. 1005,
`
`257). Petitioner alleges “[b]y doing so, application ‘[f]lows can be
`
`dynamically programmed at the MAC layer.’” Id. (second alteration in
`
`original) (quoting Ex. 1005, 257) (citing Ex. 1003 ¶¶ 57, 70).
`
`
`
`Patent Owner rebuts Petitioner’s arguments by asserting that
`
`Bianchi’s S-MAC interface does not allocate resources, is not part of the
`
`packet scheduler, adaptation handler, or adaptation controller, and is not at
`
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`the MAC layer. Prelim. Resp. 40. Patent Owner contends Bianchi discloses
`
`the S-MAC interface provides signaling between various components of
`
`Bianchi’s systems. Id. (citing Ex. 1005, 258).
`
`
`
`We agree Bianchi does not teach or suggest that the S-MAC interface
`
`performs resource allocation and is not part of the adaptation controller,
`
`scheduler, or adaptation handler. We further agree Bianchi discloses that the
`
`S-MAC interface provides signaling between components. See Ex. 1005,
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`258 § 2.2 paras. 3, 5, 259 § 3.1 para. 3, 262–63 § 4.3 para. 3, 263 § 4.4
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`para. 3, 265–66 § 5.3 para. 2.
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`Moreover, Petitioner’s assertions of obviousness are conclusory and
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`based on selected out-of-context quoted phrases from Bianchi. See Kahn,
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`441 F.3d at 988. For example, Petitioner does not provide sufficient
`
`articulated reasoning with rational underpinning for employing Bianchi’s S-
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`MAC interface in Naghshineh’s access point based on the following full
`
`disclosures of Bianchi: (1) “Due to the fast time scale dynamics associated
`
`with wireless channels, resource allocation and adaptation techniques need
`
`to be explicitly supported not only at the transport and network layers but
`
`also at the data link controller”; and (2) “sustained rate services (SR) support
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`the minimum bandwidth portion of adaptive flows while attempting to
`
`assure quality of service constraints. Flows can be dynamically programmed
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`at the MAC layer [18] to combine different service classes.”4 Ex. 1005, 257
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`§ 1 para. 5, § 2.1 para. 2 (Petitioner’s quoted language underlined);
`
`see Pet. 20; Ex. 1003 ¶¶ 57, 70.
`
`
`
`4 Bracketed numeral 18 references “G. Bianchi, A. T. Campbell, ‘A
`Programmable MAC’, submitted for publication.” Ex. 1005, 267.
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`14
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`IPR2015-01873
`Patent 6,640,248 B1
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`Accordingly, based on the record before us, there is not a reasonable
`
`likelihood Petitioner would prevail in showing that the challenged claims are
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`unpatentable over Naghshineh and Bianchi.
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`2. Claims 1–20 Over Drake and Bianchi
`
`a. Drake (Ex. 1004)
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`
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`Drake discloses a quality of service (QoS) management system for
`
`routing multimedia packets in local area networks. Ex. 1004, Title,
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`Abstract. Figure 1 of Drake is reproduced below.
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`
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`Figure 1 of Drake above depicts source station 10, target station 29, local
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`area network (LAN) 17, and QoS allocator station 20. Ex. 1004, 4:17–25.
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`Source station 10 includes application 11 requesting a QoS connection to
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`target destination 29 for multimedia transmission. Id. at 4:26–30. QoS
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`requestor manager 12 and QoS protocol machine 13 at source station 10
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`assemble a request to reserve a QoS connection for a multimedia stream on a
`
`15
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`IPR2015-01873
`Patent 6,640,248 B1
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`path through LAN 17 between source station 10 and target station 29. Id. at
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`4:31–36. A request packet is formatted using standard LAN transport
`
`protocol 15, and launched on LAN 17 through MAC entity 16. Id. at 4:36–
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`39. LAN transport protocol 15 and MAC entity 16 are standard parts of all
`
`stations attached to LAN 17. Id. at 4:39–46. QoS allocator station 20
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`receives QoS request from source station 10, examines the resources of LAN
`
`17, and determines if a path exist in LAN 17 between source station 10 and
`
`target station 29 that satisfies the requested QoS level. Id. at 4:49–53. QoS
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`allocator station 20 is attached to LAN 17 and manages the QoS requests for
`
`the entire LAN 17. Id. at 4:66–67. QoS allocator station 20 includes MAC
`
`entity 21 and LAN transport protocol stack 22, which provide the same
`
`functions for QoS allocator station 20 as the similar entities provide for
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`source station 10 and target station 29. Id. at 4:67–5:4.
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`b. Claims 1–20
`
`
`
`Petitioner asserts Drake teaches “an application-aware resource
`
`allocator at the MAC layer,” as recited in claim 1, and an “application-aware
`
`media access control (MAC) layer . . . comprising . . . allocating means,” as
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`recited in independent claim 20. Pet 40–41, 59–60. Specifically, Petitioner
`
`contends Drake “discloses a QoS resource allocator 20 comprising a MAC
`
`entity 21, which is at the MAC layer.” Id. at 40 (citing Ex. 1004, Fig. 1;
`
`Ex. 1003 ¶ 148). Petitioner alleges Drake’s “QoS allocator 20 is at least at
`
`the MAC layer because ‘allocator station 20 includes a Medium Access
`
`Control (MAC) entity 21’ that handles QoS requests using MAC entity 21.”
`
`Id. at 40–41 (emphasis omitted) (quoting Ex. 1004, 5:1–2) (citing Ex. 1004,
`
`5:55–59; Ex. 1003 ¶ 149). Petitioner further contends “Drake’s allocator
`
`station 20 uses . . . Data Stream Descriptors at the MAC layer ‘to control
`
`multimedia data stream entry into a LAN, based on the quality of service
`
`16
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`IPR2015-01873
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`requirements for that particular data stream.’” Id. at 41 (quoting Ex. 1004,
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`2:15–17) (citing Ex. 1004, 4:30–31, 10:3–4; Ex. 1003 ¶ 150). On this basis,
`
`Petitioner concludes “[a] POSA would have understood that Drake discloses
`
`an application-aware allocator 20 at the MAC layer.” Id. (citing Ex. 1003
`
`¶ 150).
`
`
`
`Patent Owner rebuts Petitioner’s contentions by pointing out that
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`Drake discloses: “Like other stations, allocator station 20 includes a
`
`Medium Access Control (MAC) entity 21 and a LAN transport protocol
`
`stack 22 which provide the same function for allocator station 20 as the
`
`similar entities provide for stations 10 and 29.” Prelim. Resp. 49–50
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`(quoting Ex. 1004, 4:67–5:4). Patent Owner further points out Drake
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`discloses that MAC entity 21 of allocator 20 is identical to MAC entities 16
`
`and 28 (of stations 10 and 29), and “describes MAC 16 as a ‘standard part[]
`
`of all stations attached to a LAN’ and expressly states that ‘the details of
`
`which . . .will not be further described here except to note that standard
`
`MAC functions are defined in IEEE standards 802.5 for token ring
`
`networks.’” Id. at 50 (alteration in original) (quoting Ex. 1004, 4:40–45)
`
`(citing Ex. 1004, 4:67–5:4). Patent Owner contends “MAC entity 21 plays
`
`no role in QoS allocation beyond its conventional role as an interface to the
`
`LAN, just as it does with any other station.” Id.; accord id. at 51.
`
`
`
`We agree Drake discloses the MAC entity 21 at QoS allocator station
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`20 provides standard MAC functions, and does not teach or suggest that the
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`QoS allocator station 20 is at the MAC layer. See Ex. 1004, Fig. 1, 4:39–46,
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`4:66–5:4. Petitioner’s assertion that a person of ordinary skill would have
`
`understood that Drake discloses that an application-aware allocator at the
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`MAC layer is not supported by a sufficient factual basis. We give little
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`weight to Mr. Lanning’s opinion (see Ex. 1003 ¶ 150) because it is not
`
`17
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`supported by underlying evidence. See 37 C.F.R. § 42.65. The supporting
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`citations to Drake are silent regarding QoS allocator station 20 using Data
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`Stream Descriptors at the MAC layer. See Ex. 1004, 2:15–17, 4:30–31, 5:5–
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`8, 10:3–4. At best, Drake discloses an allocation request message that
`
`includes fields for the source and destination MAC addresses (hardware
`
`addresses), and a field for Data Stream Descriptors. See id. at 9:64–10:4,
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`Fig. 3. Mr. Lanning’s testimony is supported only by a selected out-of-
`
`context quotation from Drake. It is not readily apparent, and Mr. Lanning
`
`does not explain, why one with ordinary skill in the art would have
`
`understood that Drake discloses an application-aware allocator at the MAC
`
`layer based on the following full disclosure of Drake: “It is extremely
`
`desirable to provide apparatus and a method to control multimedia data
`
`stream entry into a LAN, based on the quality of service requirements for
`
`that particular data stream and the quality of service available in the LAN”
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`(id. at 2:14–18).
`
`
`
`Petitioner also asserts that an application aware resource allocator at
`
`the MAC layer would have been obvious in view of Drake and Bianchi.
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`Pet. 41–45, 59–60. Petitioner contends “[a] POSA would have incorporated
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`an application-aware packet scheduler as taught by Bianchi into Drake’s
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`QoS allocator 20 so that it is ‘better suited to respond to application specific
`
`adaptation needs’” and “may better accommodate applications such as
`
`dynamically ‘increasing the bandwidth for an already existing transmission
`
`path allocation, for example, if the transmission changes [or] where the
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`request for a bandwidth increase is received at the allocator station 20.’”
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`Id. at 43 (second alteration in original) (first quoting Ex. 1005, Abstract; and
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`then quoting Ex. 1004, 12:36–42) (citing Ex. 1003 ¶ 153). Petitioner asserts
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`“implementing Drake’s QoS allocator 20 at the MAC layer would be
`
`18
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`obvious because ‘resource allocation and adaptation techniques need to be
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`explicitly supported . . . at the data link’ layer.” Id. at 43–44 (quoting
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`Ex. 1005, 257). Petitioner contends “a POSA would have understood to
`
`implement an access point comprising a scheduler (i.e., ‘resource allocator’)
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`at the MAC layer as taught by Bianchi.” Id. at 44 (citing Ex. 1005, 258)
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`(reproducing Bianchi’s Figure 2 with added annotations). Petitione
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