Trials@uspto.gov
`571-272-7822
`
`
`
`
` Paper 14
` Entered: June 27, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. and TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioner,
`
`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
`Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`

`
`IPR2015-01873
`Patent 6,640,248 B1
`
`I. INTRODUCTION
`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.”). On April 5,
`2016, we denied institution of inter partes review of the challenged claims.
`Paper 12 (“Decision,” or “Dec.”). Petitioner filed a Request for Rehearing
`(Paper 13, “Req. Reh’g”) of our Decision.
`
`II. STANDARD OF REVIEW
`When rehearing a decision on institution, the Board reviews the
`decision for an abuse of discretion. See 37 C.F.R. § 42.71(c). The burden of
`showing that the Decision should be modified is on Petitioner, the party
`challenging the Decision. See 37 C.F.R. § 42.71(d). In addition, “[t]he
`request must specifically identify all matters the party believes the Board
`misapprehended or overlooked, and the place where each matter was
`previously addressed.” Id.
`
`III. DISCUSSION
`Petitioner requests rehearing of the portion of our Decision denying
`review of the challenged claims on the two proposed grounds of
`unpatentability under 35 U.S.C. § 103 over Naghshineh and Bianchi, and
`over Drake and Bianchi. Req. Reh’g 1. Petitioner contends “the Board
`misapprehended or overlooked reasons why ‘an application-aware resource
`allocator at the MAC layer’ would have been obvious to a person of ordinary
`skill in the art (‘POSA’).” Id.
`
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`IPR2015-01873
`Patent 6,640,248 B1
`Proposed § 103 Unpatentability Ground over Naghshineh and Bianchi
`In our Decision, we determined that the opinion testimony of Mr.
`
`Lanning cited in the Petition to support Petitioner’s assertion that a person of
`ordinary skill would have known Naghshineh’s substream scheduler (SSS) is
`at the MAC layer was not supported by underlying fact. Dec. 10 (citing Ex.
`1003 ¶ 66; 37 C.F.R. § 42.65). We explained that Mr. Lanning’s testimony
`was supported only by selected out-of-context quotations from Naghshineh.
`Id. Paragraph 66 of Mr. Lanning’s Declaration is reproduced below:
`Naghshineh’s disclosure that “an access point must ensure that
`the packet-level QoS of a substream is met” is immediately
`followed by the following sentence: “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.” (Ex. 1006, p. 76 (emphasis added)) This
`teaches or at least suggests to a POSA that the SSS (i.e.,
`resource allocator) used in Naghshineh’s access point is at the
`MAC layer in order to maintain “availability of the shared
`wireless resource” and schedule “the transmission of packets
`over the wireless medium.” For at least these reasons,
`Naghshineh discloses an application-aware resource allocator at
`the MAC layer.
`Ex. 1003 ¶ 66 (quoting Ex. 1006, 76 § Wireless Link). We further explained
`that it was not readily apparent, and Mr. Lanning did not explain, why one
`with ordinary skill in the art would know that Naghshineh’s SSS is at the
`MAC layer based on Naghshineh’s full disclosure at page 76. Id. at 10–11
`(quoting Ex. 1006, 76 § Wireless Link). The aforementioned full disclosure
`from Naghshineh is reproduced below.
`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
`
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`IPR2015-01873
`Patent 6,640,248 B1
`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.
`Ex. 1006, 76 § Wireless Link.
`
`Petitioner contends the Board misapprehended or overlooked
`important evidence in determining to give little weight to Mr. Lanning’s
`opinion. Req. Reh’g 5. Petitioner reproduces Naghshineh’s disclosure at
`page 76 and asserts that the MAC layer plays a major role in ensuring the
`substream’s Quality of Service (QoS) is achieved. Id. at 2–4 (quoting
`Ex. 1006, 76 § Wireless Link; quoting 1003 ¶ 66). Petitioner argues that in
`addressing Naghshineh’s disclosure at page 76, Petitioner asserted “[i]t was
`well known that the ‘MAC protocol’ governs the MAC layer’s attributes,
`e.g., performing error control and arbitrating access to a medium.” Id. at 3
`(citing Pet. 15 (citing Ex. 1003 ¶ 62)). Petitioner reproduces additional
`details from paragraph 62 of Mr. Lanning’s Declaration, in particular, that
`“[i]t was well known at the time of the ’248 Patent that . . . ‘MAC
`procedures include framing/deframing data units, performing error
`checking, and acquiring the right to use the underlying physical
`medium.’” Id. at 3 (quoting Ex. 1003 ¶ 62). Petitioner further contends
`Naghshineh’s disclosure at page 76
`teaches or suggests to a POSA that the SSS used in
`Naghshineh’s access point is at the MAC layer “to maintain
`some availability of the wireless resource” (i.e., govern access
`to the transmission medium) and “provide added protection on
`the transmission of packets over the wireless medium” (i.e.,
`perform error control) because the evidence of record confirms
`that such functions are implemented at the MAC layer.
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`IPR2015-01873
`Patent 6,640,248 B1
`Req. Reh’g 4 (citing Ex. 1003 ¶¶ 62, 66).
`
`Petitioner does not identify where these arguments were presented
`previously in the Petition. See 37 C.F.R. § 42.71(d). Thus, we could not
`have misapprehended or overlooked them. A request for rehearing is not an
`opportunity for Petitioner to introduce new arguments, or bolster insufficient
`arguments presented in the Petition. See id. For example, Petitioner does
`not identify argument in the Petition that Naghshineh’s disclosure teaches
`that the MAC layer plays a major role in ensuring the substream Quality of
`Service (QoS) is achieved. See Req. Reh’g 2–4. Petitioner’s new arguments
`in the Request for Rehearing relying on testimony from paragraph 62 of Mr.
`Lanning’s Declaration are more detailed than arguments in the Petition
`citing the same paragraph without meaningful explanation. Compare Req.
`Reh’g 3–4 with, Pet. 15. A Request for Rehearing is not an opportunity to
`present for the first time an explanation of the significance of the evidence.
`It is the Petition that must include a detailed explanation of the significance
`of the evidence. See 37 C.F.R. § 42.22(a)(2). As yet another example,
`Petitioner does not identify assertions in the Petition that Naghshineh’s
`disclosure of “to maintain some availability of the shared wireless resource”
`should be equated with “governing access to the transmission medium,” and
`that Naghshineh’s disclosure of “to provide added protection on the
`transmission of packets over the wireless medium” should be equated with
`“performing error control.” See Req. Reh’g 4.
`
`In our Decision, we also agreed with Patent Owner that Naghshineh’s
`discussion of MAC protocol does not mention substreams or scheduling
`substreams, and that Naghshineh does not disclose that the SSS is part of the
`MAC layer. Dec. 10 (citing Ex. 1006, 76 § Wireless Link, 77 § Substream
`Scheduling and Error Control). In the Request for Rehearing, Petitioner
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`IPR2015-01873
`Patent 6,640,248 B1
`disagrees, arguing that (1) “Naghshineh’s discussion of the MAC protocol
`clearly pertains to transmission of packet substreams over a wireless
`medium,” and (2) “Naghshineh discloses that a 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).” Req. Reh’g 4–5 (citing Ex. 1006, 76
`§ Wireless Link, 77). Petitioner concludes “[f]or the reasons discussed
`above, it would have been obvious that the SSS used in Naghshineh’s access
`point is at the MAC layer to schedule ‘the transmission of packets over the
`wireless medium to mitigate packet loss due to fading of the medium.’”
`Id. at 5 (citing Ex. 1006, 76 § Wireless Link).
`
`Petitioner’s arguments are not persuasive because Petitioner does not
`direct us to where these arguments were presented in the Petition. See
`37 C.F.R. § 42.71(d). For example, Petitioner does not direct us to argument
`in the Petition that Naghshineh’s discussion of the MAC protocol pertains to
`transmission of packet substreams over a wireless medium. See Req. Reh’g
`4. As another example, Petitioner does not direct us to argument in the
`Petition that it would have been obvious that the SSS used in Naghshineh’s
`access point is at the MAC layer to schedule the transmission of packets
`over the wireless medium to mitigate packet loss due to fading of the
`medium. See Req. Reh’g 5; see also Pet. 17 (presenting different argument
`that “[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.’”).
`In our Decision, we further agreed with Patent Owner that the MAC
`layer is a distinct sublayer of the data link layer, and that Bianchi’s
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`IPR2015-01873
`Patent 6,640,248 B1
`disclosure of employing components at the data link layer does not provide
`sufficient support for Petitioner’s assertion that Bianchi’s scheduler is at the
`MAC layer. Dec. 12 (citing Ex. 1013, 27; Ex. 1005, Figs. 2, 10, 258 § 2.2,
`262). In its Request for Rehearing, Petitioner disagrees, arguing that
`Bianchi’s disclosure focuses only on the MAC layer, ignoring the logical
`link control (LLC) layer, similar to the ’248 Patent disclosure, and alleging
`that a POSA would understand that the scheduler is at the MAC layer.
`Req. Reh’g 5–6 (citing Prelim. Resp. 39; Ex. 1001, 42:42–44). Petitioner
`contends the relevant parts of Bianchi’s disclosure primarily focus on the
`MAC layer and its functions such as controlling access to the underlying
`physical medium e.g., “manage available bandwidth” and governing “the
`distribution of bandwidth among competing flows.” Id. at 6 (citing Ex. 1003
`¶¶ 62, 63, 68).
`Petitioner’s arguments are not persuasive because Petitioner does not
`identify where these arguments were presented in the Petition. See
`37 C.F.R. § 42.71(d). For example, Petitioner does not direct us to argument
`in the Petition that Bianchi’s disclosure focuses primarily, or focuses only,
`on the MAC layer, and ignores the LLC layer. See Req. Reh’g 6. Contrary
`to Petitioner’s new argument, Petitioner argued repeatedly that Bianchi
`teaches “‘resource allocation and adaptation techniques need to be explicitly
`supported . . . at the data link’ layer.” Pet. 14 (quoting Ex. 1005, 257), 18
`(quoting Ex. 1005, 257), 20 (quoting Ex. 1005, 257) (emphasis omitted).
`
`Petitioner further asserts “Bianchi explains that an access point
`includes a scheduler having a bandwidth allocator which is used when the
`access point’s ‘packet scheduler grants uplink and downlink bandwidth to
`flows based on the wireless service class selected.’” Req. Reh’g 7 (citing
`Pet. 18). Petitioner contends that Bianchi’s packet scheduler must be at the
`
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`IPR2015-01873
`Patent 6,640,248 B1
`MAC layer so that it can properly grant bandwidth to the flows because
`“[f]lows can be dynamically programmed at the MAC layer.” Id. (citing
`Pet. 20). Petitioner reasserts Bianchi explicitly depicts the access point’s
`scheduler at the MAC protocol layer. Id. (citing Pet 19). Petitioner alleges
`that “[b]ecause Bianchi’s ‘packet scheduler grants uplink and downlink
`bandwidth’ . . . , a POSA would understand that the ‘packet scheduler
`comprises a utility-fair bandwidth allocator’ (i.e., ‘resource allocator’).” Id.
`(citing Ex. 1003 ¶ 69; Pet. 19, 1–2). Petitioner contends that “Bianchi’s
`explicit depiction of a scheduler (which includes the utility fair bandwidth
`allocator) at the MAC-TX (i.e., MAC layer) in Fig. 2 discloses or at least
`renders obvious a resource allocator at the MAC layer.” Id. at 8
`
`We are not persuaded by Petitioner’s arguments because Petitioner
`does not identify where these arguments were presented in the Petition. See
`37 C.F.R. § 42.71(d). For example, Petitioner does not direct us to argument
`in the Petition that Bianchi’s utility fair bandwidth allocator, now equated to
`the claimed resource allocator, is part of the scheduler. See Req. Reh’g 7.
`Instead, Petitioner argued that the access point’s scheduler itself is
`equivalent to a resource allocator. See Pet. 19 (“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.”). As a further
`example, Petitioner does not direct us to argument in the Petition that
`Bianchi’s packet scheduler must be at the MAC layer based on the isolated
`quote from Bianchi that “[f]lows can be dynamically programmed at the
`MAC layer.” See Req. Reh’g 7; see also Pet 15–16, 20 (presenting different
`arguments relying on the same quote).
`
`In our Decision, we determined that Petitioner’s assertions of
`obviousness were conclusory and supported only by selected out-of-context
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`IPR2015-01873
`Patent 6,640,248 B1
`quoted phrases from Bianchi and Naghshineh. Dec. 12. In particular, we
`noted that Petitioner did not provide sufficient articulated reasoning with
`rational underpinning for incorporating Bianchi’s scheduler into
`Naghshineh’s access point based on Naghshineh’s following disclosure:
`“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.” Id. at 13 (quoting Ex. 1006,
`76 § Wireless Link, Petitioner’s quoted language underlined).
`
`Petitioner disagrees, arguing “at least one reason for incorporating
`Bianchi’s scheduler [into Naghshineh’s access point] is because Naghshineh
`specifically states ‘an access point must ensure that the packet-level QoS of
`a substream is met [as] dictated by the application.’” Req. Reh’g 8 (citing
`Pet. 18 (quoting Ex. 1006, 76)); see id. at 9–10 (citing Ex. 1006, 76).
`Petitioner alleges “[i]t would have been obvious to incorporate Bianchi’s
`scheduler into Naghshineh’s access point at the MAC layer because
`Bianchi’s scheduler is designed to do just that, i.e., utilize QoS adaptation
`techniques to meet application-specific requirements.” Id. at 8–9 (citing
`Pet. 17–18; Ex. 1003 ¶ 69).
`
`We considered Petitioner’s same argument presented in the Petition
`and rejected it. See Dec. 12–13 (citing Ex. 1006, 76 § Wireless Link). A
`request for rehearing is not an opportunity to reiterate arguments that were
`addressed in the Decision, or to express disagreement with a Decision. In
`addition, Petitioner’s arguments are not persuasive because Petitioner does
`not direct us to argument in the Petition that Bianchi’s scheduler is designed
`to utilize QoS adaptation techniques to meet application specific needs. See
`37 C.F.R. § 42.71(d); see also Pet. 17–18 (presenting different arguments
`
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`IPR2015-01873
`Patent 6,640,248 B1
`regarding Bianchi’s teachings and the obviousness of the claimed subject
`matter).
`
`For all of the foregoing reasons, Petitioner has not persuaded us that
`we misapprehended or overlooked arguments in the Petition presented in
`support of the proposed ground of unpatentability over Naghshineh and
`Bianchi.
`
`Proposed § 103 Unpatentability Ground over Drake and Bianchi
`In our Decision, we determined that Petitioner’s assertion that a
`
`person of ordinary skill would have understood that Drake discloses an
`application-aware allocator at the MAC layer was not supported by
`underlying evidence. Dec. 17–18 (citing Ex. 1003 ¶ 150; 37 C.F.R.
`§ 42.65). We explained that the supporting citations to Drake were silent
`regarding Drake’s QoS allocator station 20 using Data Stream Descriptors at
`the MAC layer. Id. at 18 (citing Ex. 1004, 2:15–17, 4:30–31, 5:5–8, 10:3–
`4). We also explained that Mr. Lanning’s testimony was supported only by
`a selected out-of-context quotation from Drake. Id. We further explained
`that it was not readily apparent, and Mr. Lanning did 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
`disclosure from 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.” Id. (quoting Ex. 1004, 2:14–18).
`
`Petitioner contends the Board misapprehended or overlooked
`important evidence factually supporting why a POSA would have
`understood Drake to disclose an application-aware resource allocator at the
`
`10
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`IPR2015-01873
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`MAC layer based on Drake’s disclosure. Req. Reh’g 10–11. Petitioner
`asserts that “[i]t was well known that that MAC layer is responsible for
`controlling and mediating access of data flows through the LAN.” Id. at 11
`(citing Pet. 38–39 (citing Ex. 1003 ¶ 141)). Petitioner reproduces the
`following portion of paragraph 141 of Mr. Manning’s Declaration:
`See Ex. 1011, p. 6 (“Medium Access Control (sublayer)
`(MAC): The portion of the data station that controls and
`mediates the access to the ring.”); see also Ex. 1013, p. 28
`(“The medium access control (MAC) sublayer contains
`mechanisms to control transmissions on the LAN so that two
`or more stations don’t try to transmit data at the same time,
`logic to control whether a station on the LAN is in transmit,
`repeat, or receive state, and addressing schemes to control the
`routing of data on the LAN.”)).
`Req. Reh’g 11 (quoting Ex. 1003 ¶ 141). Petitioner asserts that Mr.
`Lanning’s citations to Exhibits 1011 and 1013 confirm Mr. Lanning’s
`statement that the MAC layer controls the resources allocated to flows and
`the transmissions of those flows, and asserts that this is the desire disclosed
`by Drake. Id. Petitioner contends that the Board agrees that Drake discloses
`that the MAC entity 21 at QoS allocator station 20 provides standard MAC
`functions, and argues that the evidence of record demonstrates that such
`MAC functions involve the MAC sublayer controlling access and
`transmissions on a LAN. Id. (citing Dec. 17). Petitioner further asserts that
`Drake notes that the standard MAC functions are defined in IEEE standard
`802.5 for token ring networks. Id. (citing Ex. 1004, 4:43–45). Petitioner
`alleges that in view of the IEEE 802.5 standard, a POSA would have
`understood a MAC entity in Drake to be the MAC sublayer “portion of the
`data station that controls and mediates the access to the ring.” Id. at 12
`(citing Ex. 1011, 6). Petitioner further alleges that “it would have been
`
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`IPR2015-01873
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`obvious to a POSA that MAC entity 21 is the entity used by Drake’s QoS
`allocator station 20 at the MAC sublayer ‘to control multimedia data stream
`entry into a LAN.’” Id. (citing Ex. 1004, 2:15).
`
`Petitioner does not identify where these arguments were presented in
`the Petition. See 37 C.F.R. § 42.71(d). Accordingly, we could not have
`overlooked or misapprehended them. As we previously noted, a request for
`rehearing is not an opportunity for Petitioner to introduce new arguments, or
`supplement insufficient arguments presented in the Petition. See id. For
`example, Petitioner does not direct us to argument in the Petition that a
`POSA would have understood a MAC entity in Drake to be the MAC
`sublayer “portion of the data station that controls and mediates the access to
`the ring” in view of the IEEE 802.5 standard. See Req. Reh’g 11–12; see
`also Pet. 37–45 (presenting different arguments regarding the understanding
`of a POSA). As a further example, Petitioner does not direct us to argument
`in the Petition that it would have been obvious that MAC entity 21 is the
`entity used by Drake’s QoS allocator station 20 at the MAC sublayer to
`control multimedia data stream entry into a LAN. See Req. Reh’g 12; see
`also Pet. 37–45 (presenting different arguments regarding the obviousness of
`the claimed subject matter). Petitioner’s new arguments relying on
`testimony from paragraph 141 of Mr. Lanning’s Declaration and Exhibits
`1011 and 1013 are more detailed than the Petition argument citing the same
`paragraph. Compare Req. Reh’g 11–12 with, Pet. 37–38. A Request for
`Rehearing is not an opportunity to present for the first time an explanation of
`the significance of the evidence. It is the Petition that must include a
`detailed explanation of the significance of the evidence. See 37 C.F.R.
`§ 42.22(a)(2).
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`IPR2015-01873
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`
`Petitioner further argues that the evidence of record confirms that a
`POSA would have understood that Drake’s QoS allocator is at the MAC
`layer because the allocator 20 includes a MAC entity. Req. Reh’g 12 (citing
`Pet. 40 (citing Ex. 1003 ¶ 148)). Petitioner explains that Mr. Lanning’s
`testimony cites to the IEEE 802.5 protocol for describing that “a MAC PDU
`exchanged between MAC entities is used to convey information that is used
`by the MAC protocol or management of the MAC sublayer.” Id. (citing Ex.
`(citing Ex. 1003 ¶ 148; quoting Ex. 1011, 6)). Petitioner alleges it would
`have been obvious that “Drake’s QoS allocator 20 employs its constituent
`MAC entity 21 to exchange information between other MAC entities (e.g.
`MAC 16, MAC 28) at the MAC layer.” Id. (citing Ex. 1003 ¶¶ 142, 148–
`150). Petitioner alleges, under the broadest reasonable interpretation
`standard, a POSA would understand that having part of a resource allocator
`at the MAC layer is sufficient to disclose or render obvious a resource
`allocator at the MAC layer. Id. at 12–13. Petitioner contends that because at
`least a part of Drake’s QoS allocator 20 (i.e., MAC entity 21) is at the MAC
`layer, at least part of Drake’s resource allocator 20 is at the MAC layer. Id.
`at 13 (citing Ex. 1003 ¶ 148).
`
`Petitioner’s arguments are not persuasive because Petitioner does not
`identify where these arguments were presented in the Petition. See
`37 C.F.R. § 42.71(d). For example, Petitioner does not direct us to argument
`in the Petition that under the broadest reasonable interpretation of a
`“resource allocator at the MAC layer,” a POSA would understand that
`having part of a resource allocator at the MAC layer is sufficient to disclose
`or render obvious a resource allocator at the MAC layer. See Req. Reh’g
`12–13. Rather, Petitioner asserted that “QoS allocator 20 is at least at the
`MAC layer because ‘allocator station includes a Medium Access Control
`
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`IPR2015-01873
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`(MAC) entity 21’ that handles QoS requests using MAC entity 21.” Pet.
`40–41 (citing Ex. 1004, 5:1–2, 5:55–59; Ex. 1003 ¶ 149). Petitioner’s new
`arguments relying on testimony from paragraph 148 of Mr. Lanning’s
`Declaration and Exhibit 1011 are more detailed than the argument in the
`Petition citing the same paragraph. Compare Req. Reh’g 12–13 with, Pet.
`40. It is the Petition that must include the detailed explanation of the
`significance of the evidence. See 37 C.F.R. § 42.22(a)(2).
`
`In our Decision we also determined that Petitioner did not provide
`sufficient articulated reasoning with rational underpinning for implementing
`Drake’s QoS allocator at the MAC layer based on the following disclosures
`from 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”; and (2) “sustained rate services (SR) support the minimum
`bandwidth portion of adaptive flows while attempting to assure quality of
`service constraints. Flows can be dynamically programmed at the MAC
`layer [18] to combine different service classes.” Dec. 19–20 (quoting
`Ex. 1005, 257 § 1 para. 5, § 2.1 para. 2). Petitioner disagrees, alleging that
`“given the growing demands to support wireless application[s] at the time of
`the ‘248 [P]atent, ‘it would have been obvious to substitute and/or combine
`Drake’s Token Ring LAN with a wireless LAN so that Drake may be
`utilized in a wireless environment.’” Req. Reh’g 14 (citing Pet. 37 (citing
`Ex. 1003 ¶ 136)). Petitioner also alleges “a POSA would look to disclosures
`from a wireless environment, like Bianchi,” and “would have understood
`from Bianchi to provide explicit support for resource allocation at the data
`link layer ‘[d]ue to the fast time scale dynamics associated with wireless
`channels.’” Id. (quoting Ex. 1005, 257 § 1). Petitioner further alleges that
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`IPR2015-01873
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`“[g]iven the fast time scale dynamics associated with channels in wireless
`systems, it would have been obvious to implement Drake’s QoS allocator 20
`at the MAC layer so that “[f]lows can be dynamically programmed at the
`MAC layer.’” Id. at 14–15 (quoting Ex. 1005, 257 § 1; citing Pet. 43–45;
`Ex. 1003 ¶¶ 138, 154); see also id. at 15 (“by employing Drake’s QoS
`allocator 20 at the MAC layer, ‘[f]lows can be dynamically programmed at
`the MAC layer.’”).
`
`We are not persuaded by Petitioner’s arguments because Petitioner
`does not identify where these arguments were presented in the Petition. See
`37 C.F.R. § 42.71(d). For example, Petitioner does not direct us to
`arguments in the Petition that a person of ordinary skill in the art would look
`to disclosures from wireless environments, and that a person of ordinary
`skill in the art would have understood from Bianchi to provide explicit
`support for resource allocation at the data link layer due to fast time scale
`dynamics associated with wireless channels. See Req. Reh’g 14; see also
`Pet. 37–45 (presenting different arguments regarding the understanding of a
`POSA). As a related example, Petitioner does not direct us to argument in
`the Petition that it would have been obvious to implement Drake’s QoS
`allocator 20 at the MAC layer so that flows can be dynamically programmed
`at the MAC layer. See Req. Reh’g 14–15; see also Pet. 39–40, 45
`(presenting a different arguments relying on the isolated quote from Bianchi
`that “[f]lows can be dynamically programmed at the MAC layer.”), Pet. 37–
`45 (presenting different arguments regarding the obviousness of the claimed
`subject matter).
`
`Lastly, Petitioner asserts it was well known at the time of the ’248
`Patent that applications have certain throughput and latency requirements
`that necessitate different quality of service (citing Ex. 1003 ¶ 143), and that
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`
`IPR2015-01873
`Patent 6,640,248 B1
`providing support for such applications is especially challenging in wireless
`systems due issues such as path loss and fast fading (citing Ex. 1005, 256
`§ 1; Ex. 1003 ¶¶ 55–56). Req. Reh’g 15. Petitioner alleges “[i]n view of
`such issues, a POSA would have been motivated to employ Drake’s QoS
`allocator 20 at the MAC layer so that it ‘may easily communicate with
`applications and identify their needs, and thus quickly allocate resources
`based on the quality of service requirements for that particular data stream.’”
`Id. (citing Ex. 1003 ¶ 138). Petitioner’s arguments are not persuasive
`because Petitioner does not identify where these arguments were presented
`in the Petition. See 37 C.F.R. § 42.71(d); see also Pet. 37–45 (presenting
`different arguments regarding the obviousness of the claimed subject
`matter).
`
`For all of the foregoing reasons, Petitioner has not persuaded us that
`we misapprehended or overlooked arguments in the Petition presented in
`support of the proposed ground of unpatentability over Drake and Bianchi.
`
`III. DECISION ON REHEARING
`Petitioner’s request for rehearing is denied.
`
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`16
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`17
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`IPR2015-01873
`Patent 6,640,248 B1
`PETITIONER:
`J. Robert Brown, Jr.
`Charles J. Rogers
`rbrown@dfw.conleyrose.com
`crogers@conleyrose.com
`
`
`
`PATENT OWNER:
`Lori A. Gordon
`Byron L. Pickard
`James R. Hietala
`Tim R. Seeley
`lgordon-PTAB@skgf.com
`bpickard-PTAB@skgf.com
`jhietala@intven.com
`tim@intven.com