Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`
`
`
`
`
`
` Paper 7
`
`
`
` Entered: December 12, 2016
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`WEBPOWER, INC.,
`Petitioner,
`
`v.
`
`WAG ACQUISITION, LLC,
`Patent Owner.
`_______________
`
`Case IPR2016-01162
`Patent No. 8,185,611 B2
`____________
`
`
`
`Before GLENN J. PERRY, TREVOR M. JEFFERSON,
`BRIAN J. McNAMARA Administrative Patent Judges.
`
`
`JEFFERSON, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`
`I.
`
`INTRODUCTION
`
`WebPower, Inc. (“Petitioner”) filed a Petition (Paper 2, “Pet.”) to
`
`institute an inter partes review of claims 1–18 of U.S. Patent No. 8,185,611
`
`B2 (Ex. 1001, “the ’611 patent”) pursuant to 35 U.S.C. § 311 et seq. Patent
`
`Owner, WAG Acquisition, LLC, filed a Preliminary Response to the
`
`Petition. Paper 6 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C.
`
`§ 314(a), which provides that an inter partes review may not be instituted
`
`“unless . . . there is a reasonable likelihood that the petitioner would prevail
`
`with respect to at least 1 of the claims challenged in the petition.” After
`
`considering the Petition, the Preliminary Response, and cited evidence, we
`
`conclude that Petitioner has not demonstrated a reasonable likelihood that it
`
`would prevail in showing unpatentability of any of the challenged claims.
`
`A. Related Proceedings
`
`Petitioner states that WAG has asserted the ’611 patent in eight
`
`pending litigations: WAG Acquisition, LLC v. Webpower, Inc., Case No. 2-
`
`15-cv-03581 (D.N.J.), WAG Acquisition, LLC v. GameLink Int’l Ltd., Case
`
`No. 2-15-cv-03416 (D.N.J.), WAG Acquisition, LLC v. FriendFinder
`
`Networks, Inc., Case No. 2-14-cv-03456 (D.N.J.), WAG Acquisition, LLC v.
`
`Gattyan Group S.à r.l., Case No. 2-14-cv-02832 (D.N.J.), WAG Acquisition,
`
`LLC v. Flying Crocodile, Inc., Case No. 2-14-cv-02674 (D.N.J.), WAG
`
`Acquisition, LLC v. Sobonito Investments. Ltd., Case No. 2-14-cv-01661
`
`(D.N.J.). Pet. 2; Paper 3. The ’611 patent is also pending rehearing in
`
`IPR2015–01035. Pet. 2; Paper 3.
`
`
`
`
`
`2
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`
`B. The ʼ611 Patent
`
`The ’611 patent discloses “systems and methods for delivering
`
`streaming media, such as audio and video, on the Internet.” Ex. 1001, 1:30–
`
`33. The ‘611 patent states that “[t]here is a need for improved systems and
`
`methods for delivering streaming content over the Internet . . . , which
`
`facilitate continuous transmission of streaming content, respond on demand
`
`without objectionable buffering delay, and perform without disruption or
`
`dropouts.” Id. at 3:23–28. The ’611 patent addresses these objectives by
`
`“(a) sending initial streaming media elements to the user system at a sending
`
`rate more rapid than the playback rate, to fill the playback buffer; and (b)
`
`after the user buffer has been filled, sending further streaming media data
`
`elements to the user system at about the playback rate.” Id. at 3:37–42.
`
`Figure 1, below, illustrates one embodiment of the elements of the ’611
`
`patent streaming media buffering system. Id. at 4:1–3.
`
`
`
`3
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`
`
`
`Figure 1 shows that server 12 has server buffer 14, a conventional computer
`
`storage mechanism, for storing data elements for transmission, and buffer
`
`manager 16. Id. at 6:12–20. Data elements may be from live source 26, or a
`
`stored file on sever 12. Id. The ’611 patent discloses that [t]here are a large
`
`number of ways of managing server buffer 14 . . . to implement the systems
`
`and methods described in [the] specification.” Id. at 6:59–61.
`
`C. Illustrative Claim
`
`Claim 1 is illustrative of the claims at issue and is reproduced below:
`
`A method for distributing streaming media via a
`1.
`data communications medium such as the Internet to at
`least one user system of at least one user, the streaming
`media comprising a plurality of sequential media data
`elements for a digitally encoded audio or video program,
`
`
`
`4
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`
`the user system being assumed to have a user buffer for
`receiving media data and facilities to play back the
`streaming media at a playback rate for viewing or listening
`by said at least one user, said method comprising: sending
`initial streaming media elements to the user system at an
`initial sending rate more rapid than the playback rate, to
`fill the user buffer; and configuring the initial streaming
`media elements so that the amount of said initial elements,
`and said initial sending rate, are sufficient for the user
`system to begin playing back the streaming media while
`the user buffer continues to fill;
`and after the user buffer has been filled, sending
`further streaming media data elements to the user system
`at about the playback rate; and wherein the media data
`elements is sent at a rate that matches the constant fill rate
`of a server buffer, and is received at the same rate by the
`user computer if there are no interruptions in the
`transmission of media data between the server and the
`user's computer.
`
`D. Alleged Grounds of Unpatentability
`
`The Petition sets forth proposed grounds of unpatentability of claims
`
`1–18 of the ’611 patent as follows (Pet. 4):
`
`Reference(s)
`
`Basis
`
`Claims Challenged
`
`Zheng1
`
`35 U.S.C. § 102(b)
`
`1–3, 6–11, 14, 15, 17,
`and 18
`
`Chen,2 Chen FH,3 and
`Zheng
`
`35 U.S.C. § 103
`
`1–18
`
`
`1 Bing Zheng & Mohammed Atiquzzaman, Multimedia Over High Speed
`Networks: Reducing Network Requirements with Fast Buffer Fillup, 779–
`784 IEEE GLOBECOM 1988 (1998) (Ex. 1004, “Zheng”).
`2 U.S. Patent No. 5,822, 524, issued Oct. 13, 1998 (Ex. 1005, “Chen”).
`3 File History of U.S. Application No. 08/505,488 which issued as U.S.
`Patent No. 5,822,524 (Ex. 1006, “Chen FH”).
`
`
`
`5
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`
`Reference(s)
`
`Basis
`
`Claims Challenged
`
`Chen, Chen FH, and
`Lin4
`
`35 U.S.C. § 103
`
`1–18
`
`II. ANALYSIS
`
`A. Claim Interpretation
`
`We interpret claims of an unexpired patent using the broadest
`
`reasonable construction in light of the specification of the patent in which
`
`they appear. See 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC,
`
`793 F.3d 1268, 1278 (Fed. Cir. 2015) cert. granted sub nom. Cuozzo Speed
`
`Techs. LLC v. Lee, 136 S. Ct. 890 (mem.) (2016). In applying a broadest
`
`reasonable construction, claim terms generally are given their ordinary and
`
`customary meaning, as would be understood by one of ordinary skill in the
`
`art in the context of the entire disclosure. See In re Translogic Tech., Inc.,
`
`504 F.3d 1249, 1257 (Fed. Cir. 2007). 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).
`
`In prior proceedings for the ’611 patent, we adopted the following
`
`claim constructions in our decision denying institution: “playback rate”
`
`(claims 1, 3, 8, 9, 14, and 5) was construed as “a rate at which the data is
`
`encoded for playback to a user”; “at about playback rate” (claims 1, 8, and
`
`14) was construed as “at approximately the rate at which the media will be
`
`played out”; “configuring the initial streaming media elements so that the
`
`amount of said initial elements, and said initial sending rate, are sufficient
`
`
`4 U.S. Patent No. 6,405,256, filed Mar. 31, 1999, issued Jun. 11, 2002 (Ex.
`1007, “Lin”).
`
`
`
`6
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`for the user system to begin playing back the streaming media while the user
`
`buffer continues to fill” (1, 3-5, 8, 9, 12, and 14–16) was construed as
`
`“sufficient data is sent such that the player can start playback while the
`
`buffer continues to fill”; “constant fill rate of a server buffer” (claims 1, 3–5,
`
`8, 9, 12, and 14–16) was construed as “the constant rate at which media data
`
`elements are transferred to the server buffer”; and “matches the constant fill
`
`rate of a server buffer” (claims 1, 3–5, 8, 9, 12, and 14–16) was construed as
`
`at any given time during uninterrupted transmission, the data rate out of the
`
`server matches the data rate into its buffer.” Duodecad IT Services
`
`Luxembourg S.a.r.l. v. WAG Acquisition, LLC, IPR2015-01035 at 6–10
`
`(PTAB Oct. 23, 2015) (Paper 8).
`
`Petitioner does not challenge the claim constructions from our prior
`
`proceeding. Pet. 13. Instead, Petitioner argues that the preambles of the
`
`challenged claims are not functional or structural limitations, but instead,
`
`merely recite intended uses and should be given no patentable weight. Id. at
`
`13–15. Petitioner argues that under either the prior constructions or the
`
`ordinary and customary meanings of the claim terms, the ’611 patent claims
`
`are invalid. Id. at 15. Patent Owner does not contest the prior constructions
`
`applied to the claims of the ’611 patent. For purposes of this decision, we
`
`adopt the constructions for the ’611 patent provided above for the reasons
`
`discussed in IPR2015-01035.
`
`B. Anticipation by Zheng (Ex. 1004)
`
`Petitioner claims that Zheng anticipates claims 1–3, 6–11, 14, 15, 17,
`
`and 18. Pet. 15–33. Petitioner cites the declaration of Nathaniel Polish,
`
`Ph.D. (Ex. 1003) and provides claim charts and argument in support of its
`
`contentions. Id.
`
`
`
`7
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`
`1. Zheng
`
`Zheng discloses a Fast Buffer Fillup scheme to provide Video on
`
`Demand (“VoD”) over an ATM network that uses Available Bit Rate
`
`service. Ex. 1004, 779 (Abstract, Introduction). Zheng discloses that “[a]
`
`VoD system consists of a video source/server, a client including the video
`
`decoder/display, and the network over which the video is to be transmitted.”
`
`Id. Figure 1 below shows a VoD system.
`
`
`
`Figure 1 shows a VoD system that connects a client with a video
`
`display connected to video source/server. Id. at 779–780. Video is stored in
`
`MPEG-2 compressed format. Id. at 780. “There are buffers at the client and
`
`the server to smooth out fluctuations in the instantaneous data rate of the
`
`compressed video and the available bandwidth from the network.” Id.
`
`Zheng describes that when Fast Buffer Fillup is used to start playing a
`
`video immediately when a Playback mode is selected, maximum negotiated
`
`bandwidth is used to fill a client buffer to the minimum point needed to start
`
`to display video. Id. at 780 (Sections 2.3 and 2.5). After the buffer is filled
`
`to a minimum point, the server buffer continues to fill the client buffer at the
`
`average video playback rate. Id. Zheng further described optimizing the
`
`
`
`8
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`client and server buffer sizes to avoid overflow/underflow at the server
`
`buffer. Id. at 782 (Section 3.3).
`
`2. Analysis
`
`Petitioner presents evidence that Zheng was published and available
`
`as prior art under 35 U.S.C. § 102(b). Pet. 9–10. Petitioner provides claim
`
`charts, argument, and citations to Zheng and declaration testimony that
`
`Zheng discloses the limitations of claim 1 in the system and client buffer
`
`system that uses Peak Cell Rate (PCR), Available Cell Rate (ACR) to send
`
`initial video elements to fillup the client buffer using the maximum available
`
`network bandwidth (PCR). Id. at 16. Petitioner argues that Zheng discloses
`
`that the initial rate fills up the client buffer to allow immediate playback. Id.
`
`at 16–17 (citing Ex. 1004, 780). Petitioner also asserts that the ACR then
`
`matches the constant fill rate limitation, arguing that:
`
`Zheng discloses sending media elements at the fill rate of
`the server buffer (element 1f)—the server buffer size is
`optimized to provide “no overflow/underflow at the server
`buffer” while sending video at ACR the average rate of the
`video). Id. at 782, section 3.3. In other words, the server buffer
`stays at the same size because data is flowing in and out at the
`same rate. Id. (“the long term dynamic variation of the server
`buffer accumulation per [groups of pictures] should be zero”). If
`there are no interruptions, video is received by the user buffer at
`the ACR, the average rate of the video (element 1g). Id. at 779-
`780, 782.
`
`Pet. 17; see Pet. 21–22 (claim chart for element 1f).
`
`Patent Owner argues that the average, constant rate out of the server
`
`buffer that Petitioner identifies in Zheng does not “match” the variable rate
`
`into the server buffer as the claims require. Prelim. Resp. 7. Patent Owner
`
`states that Zheng discloses a variable server fill rate that takes into account
`
`
`
`9
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`the differences between VoD frames and ACR. Id. (citing Ex. 1004, 782
`
`(Section 3.3)). Because of the variation in server fill rate, Patent Owner
`
`argues that Zheng does not disclose “wherein the media data elements is sent
`
`at a rate that matches the constant fill rate of a server buffer, and is received
`
`at the same rate by the user computer if there are no interruptions.” Id. at 7–
`
`8.
`
`Based on the present record, we are not convinced by Petitioner’s
`
`evidence that Zheng discloses “wherein the media data elements is sent at a
`
`rate that matches the constant fill rate of a server buffer, and is received at
`
`the same rate by the user computer if there are no interruptions.”
`
`Petitioner’s evidence supports that Zheng sizes the server buffer to prevent
`
`“overflow/underflow at the server buffer” (Ex. 1004, 782), but fails to
`
`demonstrate that optimizing the server buffer size to meet this condition
`
`means that the fill rate of the server buffer matches the outflow rate. In
`
`other words, Petitioner has not provided sufficient evidence and explanation
`
`that the server buffer size equation that is optimized so that “the long term
`
`dynamic variation of the server buffer accumulation per GoP should be
`
`zero” discloses that the fill rate of the server buffer is matched to the outflow
`
`or send rate (ACR) of the server buffer. In Zheng, the equation to determine
`
`the minimum server buffer size balances the sum of the data contained in the
`
`movie (video) with the sum of data sent by the server to the client. Ex.
`
`1004, 782. This is not indicative of the rate of data into the server buffer
`
`being fixed to the rate of data out of the server buffer. We also note that
`
`Zheng states that there are differences between the ACR and the frame rate
`
`of the video source being transferred into the server buffer. Id. We agree
`
`with Patent Owner that these differences indicate that data rates into the
`
`
`
`10
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`buffer may vary. Petitioner has not provided sufficient evidence establishing
`
`that the server buffer fill rate matches the ACR described as the server send
`
`rate. Pet. 17, 21–22; see Prelim. Resp. 7–9 (arguing that the server buffer
`
`fill rate is variable).
`
`Based on the foregoing, Petitioner has not demonstrated that there is a
`
`reasonable likelihood that it would prevail in showing that Zheng discloses
`
`the limitations of claims 1–18, which all recite the “matches the constant fill
`
`rate of a server buffer” limitation.
`
`With respect to independent claim 3 and related limitations in
`
`independent claims 9 and 15, Petitioner argues that Zheng discloses
`
`“determining if delivery has been interrupted, and, if it has, sending
`
`streaming media elements to the user system at a sending rate more rapid
`
`than the playback rate, to fill the user buffer.” Pet. 26. Petitioner argues that
`
`Zheng discloses smoothing out fluctuations in data received from the server
`
`and detects a substantial interruption in data delivery occurs when the client
`
`buffer level falls below a threshold level and fast fillup mode is used to bring
`
`the client buffer above the threshold. Id. at 26–27. Petitioner argues that
`
`this is the same as interruption detection and response in the ’611 patent. Id.
`
`(citing Ex. 1001, 9:60–67, 15:44–48).
`
`We are not persuaded by Petitioner’s evidence and argument that
`
`Zheng discloses detecting interruptions in transmission as required in
`
`claims 3, 9, and 15. We agree with Patent Owner that Zheng does not
`
`disclose or discuss detection of transmission interruption, and only
`
`discloses entering fast fillup mode during startup, restart, fast forward, and
`
`backward operation. Prelim. Resp. 11 (citing Ex. 1004, 780 (§ 2.2), 785
`
`(§ 5)). Petitioner has not provided sufficient evidence or argument that
`
`
`
`11
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`Zheng addresses interruptions in transmission in the Asynchronous Transfer
`
`Mode (ATM) network or addresses interruption detection at all to trigger
`
`the faster fillup mode. Petitioner has not provided sufficient evidence or
`
`argument that Zheng discloses determining if delivery has been interrupted
`
`or sending streaming media at a more rapid rate than playback if
`
`interruption is detected as required in independent claims 3, 9, and 15, and
`
`dependent claims 6, 7, 10, 11, 17, and 18. See Prelim. Resp. 10–13.
`
`Based on the foregoing, Petitioner has not demonstrated a reasonable
`
`likelihood of establishing that Zheng anticipates claims 1–18.
`
`C. Obviousness based on Chen and Chen FH
`
`Petitioner contends that claims 1–18 are obvious based on Chen and
`
`Chen FH, relying on the declaration of Nathaniel Polish, Ph.D. (Ex. 1003).
`
`Pet. 34–62. Petitioner provides claim charts showing where Chen and Chen
`
`FH teach or suggest the limitations of the challenged claims. Id.
`
`1. Chen (Ex. 1005)
`
`Chen describes a system for the “just-in-time” retrieval of multimedia
`
`files over a computer network. Ex. 1005, [54]. Figure 1 of Chen is
`
`reproduced below.
`
`Figure 1 is a schematic illustration showing a client machine 20 receiving
`
`
`
`12
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`data streamed from a server machine 21 over a network. Data packets are
`
`loaded into a “server control stream buffer” 1 for streaming over a data
`
`channel 6. Streamed packets are accumulated in a “client agent packet
`
`buffer” 30 for playback. Id. at 4:65−5:44.
`
`Chen describes “normal,” “rush,” and “pause” transmission modes for
`
`streaming from a server to a user. Id. at 6:1−15. It describes a “water mark”
`
`model for buffering streaming content and “draws a parallel between the
`
`client agent buffer and a water bucket with a spout at the bottom that brings
`
`water to a person.” Id. at 6:16−19. A bucket has high and low “water
`
`marks.” Id. at 16:28. Water exits the bucket through a spout similar to data
`
`exiting a packet buffer as its content is delivered to a user. See id. at
`
`6:16−54. When water in the bucket is at a level between the water marks,
`
`transmission occurs in the normal mode. Id. at 28–32. The normal mode
`
`carries out frame level pacing, i.e., transmission at the playback rate. Id. at
`
`10:3−4. When the amount of data falls below the low mark, the
`
`transmission mode changes to “rush.” Id. at 6:42−47. In the rush mode,
`
`frame level pacing is ignored and data is transmitted as fast as possible. Id.
`
`at claims 18, 29; Fig. 6.
`
`2. Chen FH (Ex. 1006)
`
`Chen FH, from which issued Chen, the patent applicant submitted a
`
`Declaration in accordance with 37 C.F.R. § 1.131 for the purpose of
`
`predating (“swearing behind”) a cited reference. Ex. 1006, 77−79. The
`
`Declaration references a “Quick Video Server” (“QVS Sever”) exhibit
`
`document alleged by Petitioner to describe a commercial embodiment of
`
`Chen. Id. at 77. The Declaration includes a claim chart mapping the
`
`technical documents provided for the QVS server to the then pending
`
`
`
`13
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`claims. Id. at 112–19. The QVS Server Protocol describes “pause,”
`
`“normal,” and “rush” transmission modes. Rush mode is described as
`
`“transmit data as fast as possible, subject to the Round-Robin sharing with
`
`other active streams.” Id.
`
`For the reasons discussed in Duodecad IT Services Luxembourg
`
`S.A.R.L. v. WAG Acquisition, LLC, IPR 2015-01036 at 14–19 (PTAB Oct.
`
`20, 2016) (Paper 17), we determine that Chen FH is available as prior art.
`
`3. Analysis
`
`Petitioner contends that combination of Chen, Chen FH and Zheng
`
`teach the limitation that “the media data elements is sent at a rate that
`
`matches the constant fill rate of a server buffer” as recited in the challenged
`
`claims. Pet. 28. Specifically, Petitioner contends that “[t]o the extent Chen
`
`does not explicitly describe that, during normal playback, the flow into the
`
`server buffer matches this flow out to the client buffer, it would be obvious
`
`to configure the server buffer in this manner.” Id. Petitioner further argues
`
`that it would have been obvious to use the Zheng teaching of optimizing the
`
`server buffer size and data rate to eliminate overflow/underflow at the server
`
`buffer with the streaming buffer system of Chen. Id.
`
`We are not convinced by Petitioner’s evidence and argument that
`
`Chen and Chen FH teach the “matches” limitation of the challenged claims.
`
`Petitioner has not shown that the transmission scheduler in Chen discloses
`
`that the fill rate of the buffer matches the sending rate from the server buffer
`
`based on the number of frames or packets in the buffer or those sent to the
`
`client. We agree with Patent Owner (Prelim. Resp. 15), that Petitioner has
`
`not provided sufficient evidence that the packet transmission maintained by
`
`the transmission scheduler and number of frames stored in the stream buffer
`
`
`
`14
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`leads to a constant fill rate into and out of the server stream buffer. We are
`
`also not persuaded by Petitioner’s conclusory argument that it would have
`
`been obvious to configure the server buffer in Chen so that these rates into
`
`and out of the buffer matched. Petitioner has provided no evidence to
`
`support this bare contention.
`
`As discussed above in Section II.B.2, Petitioner has not provided
`
`sufficient evidence or argument that Zheng teaches that the server buffer fill
`
`rate matches the ACR described as the server send rate. Pet. 28–39 (citing
`
`Ex. 1003 ¶ 53); see Pet 21–22; Prelim. Resp. 7–9 (arguing that the server
`
`buffer fill rate is variable). For the reasons discussed above, we are not
`
`persuaded that Zheng’s disclosure of optimizing the server buffer size and
`
`data rate so that there is no underflow/overflow teaches that the data rate out
`
`of the buffer, the ACR, matches the data rate into the buffer.
`
`Based on the foregoing, we find Petitioner has not demonstrated that
`
`there is a reasonable likelihood that it would prevail in showing that claims
`
`1–18 are obvious in view of Chen, Chen FH, and Zheng.
`
`D. Chen, Chen FH, and Lin
`
`Petitioner asserts that Chen, Chen FH, and Lin discloses the claim
`
`limitations that “the media data elements [are] sent at a rate that matches the
`
`constant fill rate of a server buffer.” Pet. 63–64. Specifically Petitioner
`
`asserts that:
`
`To the extent they do not explicitly disclose the limitation: “the
`media data elements [are] sent at a rate that matches the constant
`fill rate of a server buffer,” it would have been obvious to
`combine them with the teachings of Lin to achieve this. Lin
`discloses the use of expandable buffers configured such that “in
`a steady state phase [data segments] are continuously streamed .
`. . through the one or more caching servers.” Lin, Ex. 1006 at
`
`
`
`15
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`
`2:65-3:2; FIG 1. Lin describes that the system is configured so
`the fill rate matches the sending rate at the caching servers in the
`steady state: “[a]s the client device depletes the initial data
`segment in its buffer, the client device is replenished with a new
`data segment by the nearest caching server, and the nearest
`caching server is replenished with a new data segment by the
`nearest caching server, and the nearest caching server is
`replenished with a new data segment from the next upstream
`caching server, and so on.” Id. at 3:2-7; see also 8:46-62. Thus,
`just like the ’611 patent, in a steady state, data is entering and
`leaving the server buffers at the same rate.
`
`Pet. 63–64. Petitioner contends that combining Lin’s expandable buffer
`
`with the server buffer of Chen would allow Chen to “adapt to changing input
`
`speeds (in this case, any variation in input to Chen’s server buffer) while,
`
`when in steady state, maintaining an optimally small buffer.” Id. at 64
`
`(citing Ex. 1006, 3:8–28).
`
`We are not persuaded by Petitioner’s argument that the expandable
`
`buffer teaches that the server is filled at the “constant fill rate”, or that this
`
`rate matches the rate at which data is sent from the server. Petitioner’s
`
`citations to Lin discuss increasing and decreasing the data transfer rate into
`
`the server buffers and increasing or decreasing the buffer size based on
`
`network congestion. Ex. 1006, 3:8–28; Pet 64. Thus, Lin expressly
`
`contemplates differing data rates into the various buffers and caches.
`
`Petitioner has not shown that Lin discloses a constant fill rate into the
`
`multiple buffers and caching servers of Lin (Ex. 1006, Fig. 1). Petitioner’s
`
`evidence shows that the client device is replenished with new data segments
`
`from a nearby caching server that is also replenished by data from an
`
`upstream caching server (Pet. 63–64), not that the rate of such replenishing
`
`matches the rate of data into any particular server buffer or to the client. On
`
`
`
`16
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`the present record, Petitioner has not provided sufficient evidence that the
`
`variable buffer size and data rates disclosed in Lin teach a server buffer
`
`being filled at the “constant fill rate” that matches the data rate out of the
`
`server buffer to the client. Because this “matching” limitation appears in
`
`each of the challenged claims 1–18, we find that Petitioner has failed to
`
`demonstrate a likelihood of showing that Chen, Chen FH, and Lin teach the
`
`limitations of claims 1–18.
`
`III. CONCLUSION
`
`For the foregoing reasons, we determine that the information
`
`presented in the Petition does not establish a reasonable likelihood that
`
`Petitioner would prevail in establishing that: (1) Zheng anticipates claims 1–
`
`3, 6–11, 14, 15, 17, and 18 under 35 U.S.C. § 102(b); (2) Chen, Chen FH,
`
`and Zheng render claims 1–18 obvious under 35 U.S.C. § 103; and (3) Chen,
`
`Chen FH, and Lin render claims 1–18 obvious under 35 U.S.C. § 103.
`
`IV. ORDER
`
`Accordingly, it is
`
`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review is
`
`hereby denied as to all grounds raised in the Petition for the reasons stated
`
`above and no trial is instituted.
`
`
`
`
`
`
`
`17
`
`

`
`IPR2016-01162
`Patent 8,185,611 B2
`
`PETITIONER:
`Frank M. Gasparo
`Jonathan Falkler
`Venable LLP
`fmgasparo@venable.com
`JLFalkler@venable.com
`
`
`
`PATENT OWNER:
`Ronald Abramson
`Lewis Baach PLLC
`ronald.abramson@lewisbaach.com
`
`Ernest Buff
`Ernest D. Buff & Associates, L.L.C.
`ebuff@edbuff.com
`
`
`
`
`
`18