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 IPR2018-00758
`U.S. Patent No. RE46,206
`
`__________________
`
`PETITIONERS’ REPLY
`
`

`

`3.
`
`B.
`
`Introduction ...................................................................................................... 1
`The Board Should Reject PO’s Attempt to Rewrite the “Scheduling” Step ... 2
`A. No Construction Is Necessary for Claim 109’s “Scheduling” Step ....... 2
`B.
`PO’s Proposed Construction Is Incorrect ............................................... 3
`1.
`PO’s Conclusory Argument Does Not Warrant Requiring
`“reserving slots” .............................................................................. 3
`2. The ’206 Patent Does Not Support PO’s Requirement of “based
`on the timing requirements of the classified packets” .................... 5
`PO’s Requirement of “based on the timing requirements of the
`classified packets,” at Best, Improperly Imports Embodiments
`from the Specification ..................................................................... 7
`4.
`PO’s “timing requirements” Excludes Embodiments .................... 8
`III. Ground 1: Forslöw Anticipates Claims 109 and 121 ...................................... 9
`A.
`Forslöw Discloses Claim 109’s “Scheduling” Step Under the Plain and
`Ordinary Meaning ................................................................................... 9
`1.
`PO Improperly Rewrites Forslöw’s Disclosures of “scheduling”
`Packets ............................................................................................ 9
`2. The GGSN and SGSN Both Disclose the Claimed “Scheduling”13
`Forslöw Discloses Claim 109’s “Scheduling” Step Under PO’s
`Incorrect Claim Construction ...............................................................15
`C. Claim 121: The Board Should Reject PO’s Unsupported Claim
`Construction ..........................................................................................17
`IV. Ground 2: The Forslöw-Goodman Combination Renders Claim 140 Obvious
` .......................................................................................................................19
`Ground 3: The Forslöw-Goodman-Oliveira Combination Renders Claim 144
`Obvious ..........................................................................................................22
`A.
`PO Relies On an Improper Bodily Incorporation .................................22
`B.
`The Forslöw-Goodman-Oliveira Combination Discloses All
`Limitations of Claim 144 ......................................................................23
`
`I.
`II.
`
`V.
`
`TABLE OF CONTENTS
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`Page
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`Case No. IPR2018-00758
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`VI. Ground 4: The Forslöw-Oliveira Combination Renders CLaims 126 and 146
`Obvious ..........................................................................................................25
`A. Claim 126 ..............................................................................................25
`B. Claim 146 ..............................................................................................25
`VII. Conclusion .....................................................................................................27
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`1001
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`1002
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`1003
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`1004
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`1005
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`1006
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`1007
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`1008
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`1009
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`1010
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`1011
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`1012
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`1013
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`1014
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`EXHIBIT LIST1
`
`U.S. Patent No. RE46,206 to Jorgensen (the “’206 Patent”)
`
`CV of Zygmunt Haas
`
`Expert Declaration of Zygmunt Haas
`
`U.S. Patent No. 6,937,566 (“Forslöw”)
`
`GSM 03.64 V6.0.0
`
`GSM 05.02 V5.0.0
`
`Excerpts from Patent Owner’s Infringement Contentions for the
`‘206 Patent
`
`C. Oliveira, J.B. Kim, and T. Suda, “Quality-of-Service Guarantee
`in High-Speed Multimedia Wireless Networks,” IEEE, pp. 728-34
`(“Oliveira”)
`
`J. Cai and D. Goodman, “General Packet Radio Service in GSM,”
`IEEE Communications Magazine, pp. 122-31 (“Goodman”)
`
`U.S. Provisional No. 60/054469 (“Forslöw Provisional”)
`
`U.S. Provisional No. 60/092,452 (“Jorgensen Provisional”)
`
`Information Disclosure Statement from the prosecution history of
`the ’206 Patent
`
`Declaration of Sylvia Hall-Ellis
`
`C. Yang and J. Huang, “A Multimedia Synchronization Model and
`Its Implementation in Transport Protocols,” IEEE Journal on
`Selected Areas in Communications, pp. 212-215
`
`1 All citations to exhibits are to the native page numbers within the exhibits.
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`1015
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`1016
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`1017
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`1018
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`1019
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`1020
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`1021
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`1022
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`1023
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`1024
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`1025
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`1026
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`1027
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`1028
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`1029
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`1030
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`1031
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`1032
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`1033
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`1034
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`1035
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`U.S. Patent No. 6,295,450 (“Lyer”)
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`GSM 03.60 v.6.0.0 1998-03
`
`U.S. Patent No. 5,674,003
`
`U.S. Patent No. 5,764,634
`
`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Deposition Transcript of Dr. Heidari
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`PO’s Patent Local Rule 4-1 Identification of Terms for Construction
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`iv
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`1036
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`1037
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`1038
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`1039
`
`PO’s Opening Claim Construction Brief in Intellectual Ventures I
`LLC v. T-Mobile USA, Inc., No. 2:17-cv-00577-JRG (E.D. Tex.)
`
`GSM 03.64 (July 1999)
`
`E-mail from PO’s counsel confirming change to POR
`
`Petitioners’ Responsive Claim Construction Brief in Intellectual
`Ventures I LLC v. T-Mobile USA, Inc., No. 2:17-cv-00577-JRG
`(E.D. Tex.)
`
`v
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
`Patent RE46,206
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`I.
`
`Introduction
`Claim 109 functionally recites two broad steps of “classifying” and
`
`“scheduling” spanning eight lines. PO does not dispute that Forslöw discloses the
`
`“classifying” step. PO, however, attempts to avoid the breadth of the “scheduling”
`
`step by rewriting everything in PO’s path.
`
`First, under the “scheduling” step’s plain language, PO seeks to rewrite
`
`Forslöw’s numerous disclosures of “scheduling” packets to refer to “queuing.” That
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`tactic is improper and should be rejected. Even accepting PO’s improper rewriting
`
`of Forslöw, PO ignores Forslöw’s disclosure that the BSS allocates GPRS resources
`
`for the transmission of packets, which further teaches the “scheduling” step.
`
`Second, PO seeks to backdoor a claim amendment by rewriting the entirety
`
`of the “scheduling” step. PO, however, asserted that no construction of this step was
`
`necessary in the district court, and PO’s newfound construction is rife with issues.
`
`For example, PO’s construction uses terms like “the timing requirements” of the
`
`packets that appear nowhere in the specification. PO implicitly proposed this
`
`construction in its POPR, and the Board rightfully rejected it. Even if the Court were
`
`to now adopt PO’s construction, PO ignores Forslöw’s teachings that disclose PO’s
`
`construction, particularly in light of PO’s expert’s deposition admissions.
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`1
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`II.
`
`The Board Should Reject PO’s Attempt to Rewrite the “Scheduling” Step
`PO proposes a construction for Claim 109’s “scheduling” step that seeks to
`
`backdoor a claim amendment by rewriting the entire step under the guise of claim
`
`construction. PO’s attempt to rewrite the “scheduling” step replaces the clear and
`
`unambiguous plain language of the claim with vague and confusing language. PO’s
`
`construction violates well-established claim construction principles and should be
`
`rejected.
`
`No Construction Is Necessary for Claim 109’s “Scheduling” Step
`A.
`Claim 109’s “scheduling” step is clear on its face and does not require
`
`construction. That step recites “scheduling said plurality of packets for
`
`communication in at least one of an upstream direction and a downstream direction
`
`over a shared wireless bandwidth according to a scheduling algorithm.” The terms
`
`in that step are clear and easy to understand. Petroleum Geo-Servcs. Inc. v.
`
`Westergeco LLC, IPR 2014-01478, Paper 72 at 16 (P.T.A.B. July 11, 2016)
`
`(declining to construe claim that was “clear on its face”). IV has not explained why
`
`the Board should deviate from this clear language, particularly where Forslöw
`
`teaches the “scheduling” step under the plain language and PO’s vague construction.
`
`PO’s district court positions confirm that no construction is necessary. PO
`
`asserted in the district court that no construction was needed for any term in the
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`2
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`“scheduling” step, let alone every term in that step, as PO now proposes. EX1035
`
`(“Intellectual Ventures I LLC (‘IV’) hereby provides notice that IV does not propose
`
`any terms for claim construction.”).
`
`PO’s Proposed Construction Is Incorrect
`B.
`PO’s attempted rewrite of the “scheduling” step essentially contains two
`
`additions: (1) “reserving slots;” and (2) “based on the timing requirements of the
`
`classified packets.” The Board’s Institution Decision already declined to construe
`
`the “scheduling” step in the way PO proposes. ID at 15-16. PO’s arguments do not
`
`identify a definition or disavowal compelling its construction, lack specification
`
`support, and violate claim construction principles.
`
`1.
`
`PO’s Conclusory Argument Does Not Warrant Requiring
`“reserving slots”
`The Board’s Institution Decision declined to construe the “scheduling” step
`
`to require “assigning time slots or subframes.” ID at 15-16. The POR does not
`
`provide a reason to depart from that holding. The POR merely presents two
`
`sentences of conclusory argument that the “scheduling” step “requires ‘reserving
`
`slots’” without ever explaining why. POR at 24-25 (emphasis added). Aside from
`
`concluding that “scheduling” requires “reserving slots,” the only other sentence in
`
`PO’s argument merely states a relationship between slots, subframes, and frames,
`
`and that some slots will contain packets. This conclusory argument is insufficient
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`3
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`to deviate from the clear language of the claim and certainly is not enough to explain
`
`why the claim “requires” reserving slots.2
`
`None of PO’s three cited parts of the ’206 Patent specification compels PO’s
`
`construction. POR at 24. 59:6-11 is described in the context of an “exemplary” or
`
`preferred prioritization scheme, but does not define scheduling or disavowal claim
`
`scope in a way that requires “reserving slots.” 50:59-61 merely states that “frame
`
`slots” are the name of the bandwidth allocation and does not even mention
`
`scheduling or reserving slots. “[A]llocating resources” is recited in Claim 121, so
`
`even requiring resource allocation—let alone allocation in the form of “reserving
`
`2 PO improperly incorporates paragraph 76 of its expert’s declaration, where PO’s
`
`expert argues that there is a “definition” of the “scheduling” step in the ’206 Patent.
`
`The Federal Circuit has set a high standard for lexicography: “[A] patentee must
`
`‘clearly set forth a definition of the disputed claim term’” and “‘clearly express an
`
`intent’ to redefine the term.’” Thorner v. Sony Computer Entm’t Am. LLC, 669 F.3d
`
`1362, 1365 (Fed. Cir. 2012) (internal citations omitted). Here, PO’s expert used the
`
`specification “as a sort of dictionary” without even knowing the correct standard for
`
`doing so and without identifying any definition of the “scheduling” step that meets
`
`Thorner’s high standard. EX2005, ¶ 25; EX1034, 48:24-50:3.
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`4
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
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`slots”—is improper in Claim 109. 59:37-40 relates to assigning future slots in the
`
`context of the “exemplary” advanced reservation algorithm of Figure 14. But
`
`importing such an embodiment into the claim would be improper, particularly where
`
`Claim 122 recites “future slots.”
`
`Other claims in the ’206 Patent demonstrate that applicant knew how to claim
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`“reserving slots” in Claim 109 if applicant wanted to do so. See EX1001 at Claim
`
`123 (reciting “reserving a slot); see also Claims 10-11 (reciting “allocating a slot”).
`
`The applicant instead chose to broadly claim “scheduling” in Claim 109 without
`
`requiring “reserving slots.” PO cannot retroactively narrow the applicant’s choice
`
`to use broad and clear claim language in an attempt to avoid anticipatory art. See
`
`Enzo Biochem, Inc. v. Applera Corp., 599 F.3d 1325, 1333 (Fed. Cir. 2010). PO had
`
`the opportunity to amend its claims to include this concept, but opted not to do so,
`
`even on a contingent basis.
`
`2.
`
`The ’206 Patent Does Not Support PO’s Requirement of
`“based on the timing requirements of the classified packets”
`The Board’s Institution Decision declined to construe the “scheduling” step
`
`to require assigning slots based on the “timing requirements” of packets. ID at 15-
`
`16. PO does not present a sufficient reason for departing from that holding. Indeed,
`
`the term “timing requirements” and the phrase “the timing requirements of the
`
`classified packets” appear nowhere in the ’206 Patent. PO spends eleven pages
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`5
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`attempting to justify this part of its construction with most of those pages discussing
`
`how simple queuing is allegedly different than scheduling. POR at 24-35. But
`
`nowhere in those eleven pages does PO cite anything from the ’206 Patent that even
`
`uses these phrases or otherwise describes purported differences between queueing
`
`and scheduling in a way that compels PO’s construction.
`
`The patent’s lack of description of “timing requirements” of the packets
`
`renders the scope of PO’s construction vague. Lexion Med., LLC v. SurgiQuest, Inc.,
`
`IPR2017-00518, Paper 37 at 12 (P.T.A.B. June 29, 2018) (rejecting proposed
`
`construction where a term in the construction was unclear); see also Network
`
`Protection Scis., LLC v. Fortinet, Inc., No. C 12-01106 WHA, 2012 WL 6680155,
`
`at *9 (N.D. Cal. Dec. 21, 2012) (rejecting proposed construction that included a term
`
`that was “ambiguous” as to its scope). Oddly, PO’s own example of “inventive
`
`scheduling” includes red packets that have no timing requirements. EX1034,
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`144:24-145:3. PO’s expert even testified that PO’s construction covers a scenario
`
`where slots are reserved for only packets that do not have timing requirements. Id.,
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`149:12-22, 154:19-155:24. But how can a system “reserv[e] slots based on the
`
`timing requirements of the classified packets” when the packets have no timing
`
`requirements? When confronted about how the timing requirements are determined,
`
`PO’s expert vaguely asserted that the “timing requirements are based on the QoS
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`6
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`requirements” and that the “QoS requirements of the packets [are] assumed already
`
`when you get to the scheduling step.” Id., 169:15-170:6. Those vague assertions
`
`about timing requirements being “based on” assumed QoS requirements do not lead
`
`to certainty over what qualifies as a timing requirement and muddy the waters as to
`
`the differences, if any, between “timing requirements” and “QoS requirements.”
`
`Indeed, PO’s expert was unable to answer basic questions about the scope of PO’s
`
`construction. Id. at 161:2-17, 162:7-20, 168:9-169:12.
`
`3.
`
`PO’s Requirement of “based on the timing requirements of
`the classified packets,” at Best, Improperly Imports
`Embodiments from the Specification
`PO’s arguments at best rely on an improper importation of an embodiment
`
`from the specification. “[I]t is improper to read limitations from a preferred
`
`embodiment described in the specification—even if it is the only embodiment—into
`
`the claims absent a clear indication in the intrinsic record that the patentee intended
`
`the claims to be so limited.” Epos Techs. Ltd. v. Pegasus Techs. Ltd., 766 F.3d 1338,
`
`1341 (Fed. Cir. 2014). Here, the ’206 Patent describes at least three different
`
`embodiments of scheduling. EX1001, 65:13-23. PO roots its argument in one of
`
`those three embodiments: the “advanced reservation algorithm” of Figure 14. POR
`
`at 33 (“Fig. 14 and the corresponding text . . . describe in detail how the flow
`
`schedulers 604 and 634 can perform ‘scheduling’ based on ‘timing requirements.’”).
`
`7
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
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`Indeed, each of PO’s cites relates to the example embodiment of Figure 14. Id. at
`
`33-34 (citing EX1001, 59:32-36, 59:13-18, 59:41-46, 59:46-59).
`
`PO, however, has not identified any “clear indication” that the applicant
`
`intended to limit the claims to the example advanced reservation algorithm of Figure
`
`14. Epos Techs., 766 F.3d at 1341; see also ID at 15-16 (declining to add “timing
`
`requirements” to claim). To the contrary, the specification shows that the applicant
`
`viewed the “advanced reservation algorithm” as one example of scheduling in the
`
`patent: “Downlink flow scheduler 604 . . . schedules the data packets for
`
`transmission over the wireless medium . . . using, e.g., an advanced reservation
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`algorithm.” EX1001, 61:19-23, 58:44-54 (similarly describing the “advanced
`
`reservation algorithm” as “one embodiment”). As a result, even assuming that the
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`cited portions supported PO’s construction (they do not), PO’s construction
`
`improperly imports an embodiment from the specification, and the Board should
`
`follow the reasoning in the Institution Decision declining to add PO’s proposed
`
`“timing requirements.”
`
`PO’s “timing requirements” Excludes Embodiments
`4.
`PO’s construction—which is limited to “timing requirements” of the
`
`classified packets—improperly excludes embodiments. Courts “normally do not
`
`interpret claim terms in a way that excludes disclosed examples in the specification.”
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`8
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
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`Verizon Servs. Corp. v. Vonage Hldgs. Corp., 503 F.3d 1295, 1305 (Fed. Cir. 2007).
`
`Claim 109 broadly recites that “classifying” occurs based on the “QoS requirements”
`
`of the packets. PO tries to support its construction by citing to specification
`
`descriptions that generally refer to “QoS requirements” (POR at 29 (citing EX1001,
`
`21:41-46)), and PO’s expert testified that “timing requirements” are implicit in “QoS
`
`requirements.” EX1034, 76:3-8. But PO’s expert testified that the ’206 Patent
`
`describes “QoS requirements” as broader than “timing requirements.” Id., 76:8-11;
`
`see also id. at 66:25-68:9 (providing examples of QoS requirements that are not
`
`timing requirements). PO has not explained why the “scheduling” step should be
`
`limited to using only “timing requirements” when the specification and the
`
`“classifying” step recite “QoS requirements” that are undisputedly broader than
`
`“timing requirements.” As a result, limiting the “scheduling” step to be based on
`
`only “timing requirements” improperly excludes scheduling based on other QoS
`
`requirements. Verizon Servs., 503 F.3d at 1305.
`
`III. Ground 1: Forslöw Anticipates Claims 109 and 121
`A.
`Forslöw Discloses Claim 109’s “Scheduling” Step Under the Plain
`and Ordinary Meaning
`1.
`PO
`Improperly Rewrites Forslöw’s Disclosures of
`“scheduling” Packets
`PO’s arguments hinge on improperly rewriting Forslöw’s clear and numerous
`
`teachings of “scheduling” packets to refer to “queuing.” In doing so, PO largely
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`9
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`recycles the same argument it presented in the Preliminary Response and that the
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`Board rejected. ID at 14-16. As explained in the Petition, Forslöw describes
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`“schedul[ing] packets in an individual application flow” and even includes a claim
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`that recites “scheduling packets corresponding to each application flow.” Pet. at 23,
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`27. Forslöw teaches that this scheduling can be accomplished using “any number of
`
`known scheduling algorithms.” Id. at 25. Forslöw further explains that the BSS
`
`performs “packet resource assignment” to transfer the individual packets. Id. at 24-
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`25. PO cannot erase these clear teachings of Claim 109’s “scheduling” step by
`
`having its expert state that inventor Jan Forslöw meant “queuing” when he referred
`
`to “scheduling” 27 times in his patent. The Board should again reject PO’s attempt
`
`to rewrite Forslöw.
`
`PO’s argument that “Forslöw only discloses queueing” and the ’206 Patent
`
`sought to go beyond simple queueing also ignores critical teachings in Forslöw.
`
`POR at 43-50. As noted above, the Petition argued that Forslöw taught scheduling
`
`packets by applying scheduling algorithms (e.g., scheduling packets from higher
`
`QoS classes before lower QoS classes) to packets that were queued according to QoS
`
`class and performing “packet resource assignment” to transmit the packets. Pet. at
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`24-27. These teachings are not “only” disclosing “queuing;” Forslöw went two steps
`
`beyond simple queueing by (1) deciding from which QoS class queues to pull
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`10
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
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`packets and (2) assigning physical resources for the transmission of the packets. PO
`
`ignored all of these arguments, which should result in waiver. Paper No. 9 at 6.
`
`PO’s argument that Forslöw merely teaches queueing techniques that the ’206
`
`Patent criticizes is based on a technologically flawed comparison of prior art
`
`queueing techniques with Forslöw’s disclosures. The ’206 Patent and PO both
`
`describe queueing techniques that involve queueing within a single queue, not the
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`four QoS delay classes between which Forslöw’s scheduling algorithms are applied
`
`to determine from which class to schedule packets first. POR at 25-28 (citing
`
`EX1001, 15:26-16:64), 45-50; EX1034, 141:3-23, 142:12-23, 143:19-23 (PO’s
`
`expert conceding this distinction). Indeed, when the ’206 Patent describes priority
`
`queueing, the ’206 Patent refers to reordering packets “in the queue” so that higher
`
`priority packets appear in the “front of the queue.” EX1001, 16:12-15. This flawed
`
`comparison is seen when comparing PO’s illustration of prior art queuing showing
`
`a single queue (shown first below) with Forslöw’s four QoS delay classes (shown
`
`second below):
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`11
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
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`One Queue
`
`Four QoS
`Delay Classes
`
`Forslöw goes beyond queuing within one queue, including by applying
`
`scheduling algorithms to determine from which packet to pull from multiple classes
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`12
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
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`and then assigning resources for the transmission of the packet as in Forslöw.
`
`EX1004, 13:2-6, 12:55-57, 13:43-44. As explained in the paragraph above, PO
`
`ignored these teachings, which were cited in the Petition. Pet. at 22-28.
`
`2.
`
`The GGSN and SGSN Both Disclose
`“Scheduling”
`PO also argues that Forslöw’s scheduling in the GGSN and SGSN cannot be
`
`the Claimed
`
`relied upon to teach the claimed “scheduling” step.3 PO presents two arguments,
`
`and the PTAB should reject them both.
`
`PO’s argument that the GGSN and SGSN cannot be relied upon because they
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`allegedly schedule for transmission over a “wired” link recycles the same argument
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`the PTAB already rejected in the Institution Decision. POR at 40-41; ID at 13-14.
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`But PO argued in the district court that Claim 109 does not even require actual
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`transmission over a wireless link. EX1036 at 25; see also EX1039 at 30
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`(“Defendants do not dispute that the claim requires the packets to be scheduled for
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`communication as opposed to being communicated.”). PO’s district court position
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`is consistent with Petitioner’s argument and the Board’s Institution Decision that
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`Claim 109 merely recites an intended purpose of scheduling (i.e., for transmission
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`3 Forslöw also discloses that the BSS performs the “scheduling” step, so PO’s
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`argument has no practical effect. Pet. at 22-28; ID at 14.
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`13
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`over a shared wireless bandwidth) and does not exclude scheduling packets that
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`ultimately get transmitted wirelessly. Pet. 27 n.15; ID at 14. At best, PO’s argument
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`rests on an implicit and overly narrow construction requiring “for immediate
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`communication” over the wireless bandwidth. Accordingly, the PTAB should reject
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`this argument for the reasons noted in the Institution Decision.
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`PO’s second argument—that the order of the packets resulting from
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`Forslöw’s scheduling at the GGSN and SGSN is different than the order of the
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`packets resulting from scheduling at the BSS—is flawed for at least two reasons.
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`POR at 41-43. First, PO’s argument ignores the breadth of Claim 109. Claim 109
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`broadly recites “scheduling” packets for the ultimate purpose of communicating
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`those packets over the shared wireless interface and does not limit how scheduling
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`is performed. See ID at 13-14. Indeed, nowhere does Claim 109 specify anything
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`about the order in which packets are scheduled. Forslöw teaches that scheduling
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`occurs at both the GGSN and SGSN in the same manner required by Claim 109; a
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`subsequent change in the order in which packets are ultimately transmitted is
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`irrelevant to the explicit teaching of the claim language at each of the GGSN and
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`SGSN. Second, PO’s argument is technologically incorrect, as Forslöw discloses
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`that a “number of known packet . . . scheduling . . . algorithms may be used,” such
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`that the same algorithm may be used at each of the GGSN, SGSN, and BSS. Pet. at
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`14
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`25-26 (citing EX1004, 12:56-57). Forslöw does not foreclose using the same
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`algorithm at each of the GGSN, SGSN, and BSS.
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`B.
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`Forslöw Discloses Claim 109’s “Scheduling” Step Under PO’s
`Incorrect Claim Construction
`As explained above, PO’s rewritten “scheduling” step is based on an incorrect
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`claim construction. If the Board correctly rejects PO’s rewritten claim language,
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`PO’s arguments that Forslöw does not anticipate under that rewritten language are
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`irrelevant and should be rejected.
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`Regardless, Forslöw discloses PO’s rewritten “scheduling” step. The Petition
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`explained that Forslöw “schedules those classified packets for transmission by
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`applying scheduling algorithms that dictate, based on the end user QoS
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`requirements, which packets get sent and on which resources.” Pet. at 24. The
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`Petition further explained that “Forslöw’s scheduling of packets also includes
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`assigning resources for transmission of the packets.” Pet. at 25-26 (citing EX1004,
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`13:43-45 (disclosing that the BSS performs “packet resource assignment”); see also
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`EX1004, 2:18-20 (disclosing that the BSS “manages the allocation and deallocation
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`of radio resources); id. at 4:13-16 (disclosing that the BSS “arbitrates access to the
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`shared physical radio medium”). Dr. Haas explained that “packet resource
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`assignment” includes “determining which physical resources are used to transmit a
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`15
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`packet.” Pet. at 25 (citing EX1003, ¶ 107).4 It is undisputed that the physical
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`resources used to transmit in Forslöw’s GPRS, embodiment are time slots. EX1034
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`at 30:15-20 (“Q: In the GPRS system of Forslöw, the base station uses time slots to
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`transmit packets to the mobile system? A: In the GPRS system of Forslöw, the base
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`station uses time slots to transmit to the mobile station.”); id. at 22:21-24 (“Q: GPRS
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`also uses TDMA frames? A: It uses TDMA frames. Q: And GPRS also uses time
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`slots? A: It does use time slots.”); see also EX1003, ¶ 68, 74-76 (providing a
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`POSITA’s background knowledge of GPRS’s use of time slots). Thus, a POSITA
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`would have understood Forslöw’s disclosure of performing “packet resource
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`assignment,” “manag[ing] the allocation and deallocation of radio resources,” and
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`“arbitrat[ing] access to the shared physical radio medium” for the classified packets
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`in a GPRS system to include assigning time slots for the transmission of the
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`classified packets. Accordingly, Forslöw discloses “reserving slots for the classified
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`packets.”
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`Forslöw also discloses that the “packet resource assignment” was “based on
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`the timing requirements of the classified packets.” PO’s expert testified that the
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`4 PO failed to address these statements in its POR, which should result in waiver of
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`PO’s ability to contest them.
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`16
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`“timing requirements of the classified packets” are accounted for when packets are
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`classified based on QoS requirements. EX1034, 169:18-170:14, 176:3-19, 189:20-
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`190:5, 190:6-10. Forslöw discloses that operation. Forslöw first classifies packets
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`into one of four different QoS delay classes with the higher QoS classes indicating
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`higher transmission priority. Pet. at 16-22, 23; EX1003, ¶ 105 n.11. Indeed, once
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`packets are classified into QoS classes, Forslöw prioritizes the scheduling of the
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`higher QoS classes before the lower QoS classes. Pet. at 23-24; EX1003, ¶ 105 n.11.
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`As a result, consistent with PO’s expert’s testimony, the QoS delay classes into
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`which packets are classified in Forslöw provide the “timing requirements of the
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`classified packets.” Since packets are first classified in the QoS delay classes and
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`the BSS then performs packet resource assignment (i.e., reserves slots) to transmit
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`the classified packets, Forslöw’s “packet resource assignment” is “based on the
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`timing requirements of the classified packets.” Accordingly, Forslöw discloses each
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`limitation of PO’s rewritten “scheduling” step.5
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`C.
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`Claim 121: The Board Should Reject PO’s Unsupported Claim
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`5 If PO argues that its construction requires determining a particular slot from all
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`available slots, PO’s argument is belied by PO’s expert’s testimony that PO’s
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`inventive scheduling encompasses situations where the next available slot is
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`assigned. EX1034, 149:12-22, 154:19-155:24; 156:12-157:12.
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`17
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`Petitioners’ Reply to Patent Owner’s Response
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`Case No. IPR2018-00758
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`Construction
`PO’s arguments are based on an implicit, unsupported construction of
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`“optimizing end-user QoS.”
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` PO contends that those limitations require
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`“differentiating between types of traffic or service type and allocating slots of the
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`shared wireless bandwidth based on the types of traffic or service types.” POR at
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`63. PO’s only “support” for this construction is improperly incorporating by
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`reference paragraph 132 of Dr. Heidari’s declaration. There, Dr. Heidari cites to two
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`parts of the specification that merely mention that different applications have
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`different QoS requirements. EX2005 at ¶ 132 (citing EX1001, 13:30-52, 68:32-37).
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`Those portions, however, do not explain how end-user QoS is optimized or even
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`mention “allocating slots,” let alone anything compelling PO’s construction. PO’s
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`arguments are all based on this improper construction and should be rejected.
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`PO also ignored Forslöw’s teachings that disclose Claim 121 under PO’s
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`construction. Forslöw describes classifying packets into