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`
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ZSCALER, INC.,
`Petitioner,
`
`v.
`
`SYMANTEC CORPORATION,
`Patent Owner.
`____________
`
`Case IPR2018-00929
`Patent 6,285,658 B1
`____________
`
`
`Before JEFFREY S. SMITH, BRYAN F. MOORE, and NEIL T. POWELL,
`Administrative Patent Judges.
`
`SMITH, Administrative Patent Judge.
`
`
`
`
`Trials@uspto.gov Paper 11
`571.272.7822 Entered: November 14, 2018
`
`
`DECISION
`Instituting Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`
`

`

`IPR2018-00929
`Patent 6,285,658 B1
`
`
`I. INTRODUCTION
`Petitioner filed a Petition for inter partes review of claims 1–10, 12, 16, and
`17 of US Patent 6,285,658 B1 (Ex. 1001, the ’658 patent”). Paper 1 (“Pet.”).
`Patent Owner filed a Preliminary Response. Paper 9 (“Prelim. Resp.”). Institution
`of an inter partes review is authorized by statute when “the information presented
`in the petition . . . and any response . . . shows that there is a reasonable likelihood
`that the petitioner would prevail with respect to at least 1 of the claims challenged
`in the petition.” 35 U.S.C. § 314(a).
`Upon consideration of the Petition and the Preliminary Response, we are
`persuaded Petitioner has demonstrated a reasonable likelihood that it would prevail
`in establishing the unpatentability of at least one claim of the ’658 patent.
`Accordingly, we institute an inter partes review on all challenged claims and
`grounds raised in the Petition.
`A. Related Matters
`The ’658 patent, along with several other patents, is the subject of Symantec
`Corporation and Symantec Limited v. Zscaler, Inc., 17-cv-04414 (N.D. Cal.),
`transferred from 17-cv-00806 (D. Del.) filed June 22, 2017. Pet. 2–3; Paper 5
`(Patent Owner’s Mandatory Notice).
`B. The ’658 Patent
`The ’658 patent relates to management of network bandwidth based on
`information ascertainable from multiple layers of Open Systems Interconnection
`(OSI) network model. Ex. 1001, 1:58–60. A method classifies packet network
`flows to determine a policy of a service level, and to enforce the policy by direct
`rate control. Ex. 1001, Abstract. Packet network flows are applied to a
`classification model based on selectable information obtained from a plurality of
`layers of a multi-layered communication protocol. Id. The flow is mapped to
`
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`IPR2018-00929
`Patent 6,285,658 B1
`defined traffic classes assignable by an office manager. Id.
`C. Illustrative Claim
`Claims 1, 6, and 10 of the challenged claims of the ’658 patent are
`independent. Claim 1 is illustrative of the claimed subject matter:
`1. A method for allocating bandwidth in a connection-less network
`system having an arbitrary number of flows of packets, including zero,
`using a classification paradigm, said allocation method comprising the
`steps of:
`parsing a packet into a flow specification, wherein said flow
`specification contains at least one instance of any of the following: a
`protocol family designation, a direction of packet flow designation, a
`protocol type designation, a plurality of hosts, a plurality of ports, in
`http protocol packets, a pointer to a URL; thereupon,
`matching the flow specification of the parsing step to a plurality
`of hierarchically-recognized classes represented by a plurality of nodes,
`each node having a traffic specification and a mask, according to the
`mask; thereupon,
`having found a matching node in the matching step, associating
`said flow specification with one class of said plurality of hierarchically-
`recognized classes represented by a plurality nodes; and
`allocating bandwidth resources according to a policy associated
`with said class.
`Ex. 1001, 19:28–52.
`
`D. References
`Petitioner relies on the following references. Pet. 5–6.
`Ex. 1005 Wakeman, “Implementing Real Time Packet Forwarding
`Policies Using Streams,” 1995 USENIX Technical Conference, New Orleans, LA.
`
`Ex. 1006 Choudhury
` US 5,541,912
`July 30, 1996
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`IPR2018-00929
`Patent 6,285,658 B1
`
`E. Asserted Grounds of Unpatentability
`Petitioner contends that claims 1–10, 12, 16, and 17 of the ’658 patent are
`unpatentable based on the following grounds:
`Challenged Claims
`Reference(s)
`Basis
`Wakeman
`§ 102(b) 1–3, 6–9, and 16
`Wakeman and Choudhury
`§ 103
`4, 5, 10, 12, and 17
`
`
`II. Analysis
`A. Claim Construction
`The parties agree that the ’658 patent has expired, and that the Phillips
`standard applies to claim construction. Pet. 11; Prelim. Resp. 8. “[T]he words of a
`claim ‘are generally given their ordinary and customary meaning’ . . . that the term
`would have to a person of ordinary skill in the art in question at the time of the
`invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en
`banc) (citations omitted). “[T]he person of ordinary skill in the art is deemed to
`read the claim term not only in the context of the particular claim in which [it]
`appears, but in the context of the entire patent, including the specification.”
`Phillips, 415 F.3d at 1313. For example, a “claim construction that excludes [a]
`preferred embodiment [described in the specification] ‘is rarely, if ever, correct and
`would require highly persuasive evidentiary support.’” Adams Respiratory
`Therapeutics, Inc. v. Perrigo Co., 616 F.3d 1283, 1290 (Fed. Cir. 2010) (citation
`omitted). But “a claim construction must not import limitations from the
`specification into the claims.” Douglas Dynamics, LLC v. Buyers Products Co.,
`717 F.3d 1336, 1342 (Fed. Cir. 2013) (citation omitted). Therefore, “it 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.”
`
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`IPR2018-00929
`Patent 6,285,658 B1
`Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1327 (Fed. Cir. 2012) (citation
`omitted).
`Petitioner proposes construction for the terms “excess information rate” and
`“guaranteed information rate” recited in claims 4, 5, 10, 12, 17, “policy” recited in
`all challenged claims, and “speed scaling” recited in claims 5 and 12. Pet. 12–15.
`Patent Owner contends that no construction of any claim term is necessary at this
`preliminary stage. Prelim. Resp. 8.
`For purposes of this decision, we determine no terms need an explicit
`construction to resolve a controversy at this preliminary stage. See Vivid Techs.,
`Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (only those
`terms which are in controversy need to be construed and only to the extent
`necessary to resolve the controversy).
`B. Asserted Anticipation by Wakeman: Claims 1–3, 6–9, and 16
`1. Wakeman (Ex. 1005)
`Wakeman relates to implementing class based queueing (CBQ) mechanisms
`to provide real time policies for packet forwarding. Ex. 1005, Abstract. CBQ
`allows the traffic flows sharing a data link to be guaranteed a share of the
`bandwidth when the link is congested, yet allows flexible sharing of unused
`bandwidth when the link is unloaded. Id. Flows requiring low delay are given
`priority over other flows, so that links can be shared by multiple flows yet meet
`policy and Quality of Service (QoS) requirements. Id.
`2. Claims 1, 9–13, 16–19
`Independent claim 1 recites “parsing a packet into a flow specification,
`wherein said flow specification contains at least one instance of any of the
`following: a protocol family designation, a direction of packet flow designation, a
`protocol type designation, a plurality of hosts, a plurality of ports, in http protocol
`packets, a pointer to a URL.” Petitioner contends this limitation is disclosed by
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`IPR2018-00929
`Patent 6,285,658 B1
`Wakeman’s description of interpreting header information of an incoming packet
`to determine a class of service that the packet should receive. Pet. 33–35 (citing
`Ex. 1005, pp. 10, 13, Fig. 2; Ex. 1003 ¶¶ 145–153).
`Patent Owner contends that classifying packets by interpreting protocol
`header fields as described by Wakeman does not disclose parsing a packet into a
`flow specification. Prelim. Resp. 17–18.
`Petitioner, relying on testimony of Dr. Zadok, argues that the ’658 patent
`does not define flow specification, other than to state that the flow specification
`contains at least one attribute of the limitation. Pet. 33 (citing Ex. 1003 ¶¶ 145–
`146). Petitioner contends that Wakeman’s description of determining the
`destination and source addresses of the packet discloses “parsing a packet into a
`flow specification” that contains “a plurality of hosts” as claimed. Pet. 34 (citing
`Ex. 1005, pp. 10, 13, Ex. 1003 ¶¶ 148–149). Petitioner contends that Wakeman’s
`description of identifying “protocols such as TCP, UDP or ICMP,” Wakeman
`discloses “parsing a packet into a flow specification” that contains “a protocol type
`designation” as claimed. Pet. 35 (citing Ex. 1005, p. 13; Ex. 1003 ¶¶ 150–151).
`Petitioner contends that Wakeman’s description of examining port numbers
`discloses “parsing a packet into a flow specification” that contains “a plurality of
`ports” as claimed. Pet. 35 (citing Ex. 1005, p. 13; Ex. 1003 ¶¶ 152–153).
`Dr. Zadok testifies that
`Wakeman discloses parsing a packet into a flow specification [header
`elements containing
`identified attributes], wherein said
`flow
`specification contains at least one instance of a protocol type
`designation [e.g., TCP or UDP], a plurality of hosts [e.g., source and/or
`destination hosts such as nsf, nasa, or DoD], and a plurality of ports
`[e.g., source and/or destination ports such as FTP and audio ports].
`Ex. 1003 ¶ 154. We credit Dr. Zadok’s testimony and determine Petitioner has
`established sufficiently that Wakeman discloses “parsing a packet into a flow
`
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`IPR2018-00929
`Patent 6,285,658 B1
`specification” as claimed.
`Claim 1 recites “matching the flow specification of the parsing step to a
`plurality of hierarchically-recognized classes represented by a plurality of nodes,
`each node having a traffic specification and a mask, according to the mask.”
`Petitioner contends this limitation disclosed by Wakeman’s description of
`comparing the packet against patterns of children of a current class using a mask of
`significant bits. Pet. 36–37 (citing Ex. 1005 pp. 11–12, Fig. 2; Ex. 1003 ¶ 166).
`Dr. Zadok testifies that
`Wakeman discloses matching the flow specification of the parsing step
`[e.g., plurality of hosts, port numbers, or protocol types] to a plurality
`of hierarchically-recognized classes represented by a plurality of nodes
`[as illustrated in Figure 2], each node having a traffic specification [e.g.,
`share of bandwidth, priority, and parent class] and a mask [e.g., bit
`mask Vi], according to the mask.
`Ex. 1003 ¶ 166.
`We credit Dr. Zadok’s testimony and determine that Petitioner has
`established sufficiently that Wakeman describes “matching the flow specification
`of the parsing step to a plurality of hierarchically-recognized classes represented by
`a plurality of nodes, each node having a traffic specification and a mask, according
`to the mask.”
`Claim 1 recites “having found a matching node in the matching step,
`associating said flow specification with one class of said plurality of hierarchically-
`recognized classes represented by a plurality nodes.” Petitioner contends this
`limitation is disclosed by Wakeman’s description of returning a pointer to a class
`node once the classifier has determined the class of service for the packet. Pet. 39–
`40 (citing Ex. 1005, p. 10, Fig. 1; 1003 ¶ 170). Dr. Zadok testifies that “Wakeman
`discloses associating [returning a pointer] said flow specification [e.g., plurality of
`hosts, ports, or protocol types] with one class of said plurality of hierarchically-
`
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`IPR2018-00929
`Patent 6,285,658 B1
`recognized classes [as illustrated as a tree in Figure 2] represented by a plurality
`nodes [the vertices of the class tree in Figure 2].” Ex. 1003 ¶ 171. We determine
`that Petitioner has established sufficiently that Wakeman discloses this limitation.
`Claim 1 recites “allocating bandwidth resources according to a policy
`associated with said class.” Petitioner contends this limitation is disclosed by
`Wakeman’s description of providing each class with a share of bandwidth, where
`the class hierarchy enables mechanisms and policies for borrowing of bandwidth
`from other classes. Pet. 40–41 (citing Ex. 1005, p. 10). Dr. Zadok testifies that
`“Wakeman discloses allocating bandwidth resources [e.g., selectively placing
`packets into output queues] according to a policy [e.g., share of bandwidth
`allocated, priority, and overlimit action] associated with said class.” Ex. 1003 ¶
`179. We credit Dr. Zadok’s testimony and determine that Petitioner has
`established sufficiently that Wakeman discloses this limitation. We determine that
`the Petition and supporting evidence adequately establishes a reasonable likelihood
`that Wakeman anticipates claim 1.
`Claim 2, which depends from claim 1, recites “selected ones of said nodes
`include at least one traffic specifications.” Petitioner contends that Wakeman
`discloses this limitation in describing that the nodes of the hierarchical class based
`queueing method include at least one traffic specification. Pet. 43 (citing Ex. 1003
`¶¶ 180–181). We determine that Petitioner has established sufficiently that
`Wakeman discloses this limitation.
`Claim 3, which depends from claim 1, recites “said matching step includes
`matching said plurality of hierarchically-recognized classes as a plurality of
`orthogonal flow attributes.” Petitioner contends that Wakeman discloses this
`limitation in describing a class-based queuing method that matches flows to
`hierarchical class nodes based on flow attributes including the destination and
`source addresses, protocol field, and port numbers in UDP or TCP. Pet. 43–44
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`IPR2018-00929
`Patent 6,285,658 B1
`(citing Ex. 1005, pp. 11–12; Ex. 1003 ¶¶ 184–187). We determine that Petitioner
`has established sufficiently that Wakeman discloses this limitation.
`Claim 16, which depends from claim 1, recites “said matching step
`comprises stepwise mapping of policies according to association with nodes
`classified in a hierarchy.” Petitioner contends Wakeman discloses this limitation
`in describing pattern matching that proceeds in order down a tree, by comparing
`the packet against the patterns of the children of the current class. Pet. 54–56
`(citing Ex. 1005, Fig. 2, p. 12; Ex. 1003 ¶¶ 237–242). We determine that
`Petitioner has established sufficiently that Wakeman discloses this limitation.
`Independent claim 6 recites “applying individual instances of traffic classes
`to a classification tree for said defined traffic classes based on selectable
`information obtained from an application layer of a communication protocol.”
`Petitioner contends Wakeman discloses this limitation in describing matching
`packet flows to hierarchical class nodes according to the application layer. Pet.
`47–49 (citing Ex. 1005, pp. 10, 12; Ex. 1003 ¶¶ 201–202, 205–206).
`Patent Owner contends that Wakeman does not disclose “selectable
`information” as claimed. Prelim. Resp. 19. According to Patent Owner, Wakeman
`does not describe that network managers may select a subset of traffic of interest to
`be classified, and need only define traffic classes which are of interest, as disclosed
`in the ’658 patent. Prelim. Resp. 20–22 (citing Ex. 1001, Abstract, 1:57–63, 3:38–
`50, 4:7–12, 11:26–39). Patent Owner contends that Wakeman only discloses
`checking the same fields, such as IP addresses, protocol type, and port number, for
`every packet. Prelim. Resp. 21–23. Patent Owner contends that Wakeman does
`not disclose that the selectable information is “obtained from the application layer”
`as claimed. Prelim. Resp. 24–27.
`Dr. Zadok testifies that the ’658 patent uses “selectable” to describe
`information or attributes that can be selected from a multi-layer communication
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`Patent 6,285,658 B1
`protocol. Ex. 1003 ¶ 202 (citing Ex. 1001, 3:39–48). Dr. Zadok testifies that
`“Wakeman discloses parsing the packet to identify ‘applications such as ftp or
`telnet,’ and matching the packet to a node corresponding to FTP . . . . FTP and
`telnet are applications and occupy the application level of the OSI model.” Ex.
`1003 ¶ 205. Dr. Zadok testifies that “Wakeman discloses applying individual
`instances of traffic classes [flows] to a classification tree for said defined traffic
`classes [as illustrated in Figure 2] based on selectable information obtained from
`an application layer of a communication protocol [e.g., FTP or audio].” Ex. 1003 ¶
`206.
`
`We determine that network managers selecting a subset of traffic of interest
`to be classified as argued by Patent Owner is not recited in claim 6, and Patent
`Owner has not provided a basis to read this limitation into claim 6. See
`Dealertrack, 674 F.3d 1315 at 1327. We credit on Dr. Zadok’s testimony and
`determine that Petitioner has established sufficiently that Wakeman discloses this
`limitation.
`Claim 6 recites “mapping the IP flow to the defined traffic classes, said
`defined traffic classes having an associated policy.” Petitioner, relying on
`testimony from Dr. Zadok, contends Wakeman discloses this limitation. Pet. 49
`(citing Ex. 1003 ¶¶ 207–210). We determine that Petitioner has established
`sufficiently that Wakeman discloses this limitation. We determine that the Petition
`and supporting evidence adequately establishes a reasonable likelihood that
`Wakeman anticipates claim 6.
`Independent claim 7 recites “automatically detecting selectable information
`about each one of said flows.” Petitioner contends Wakeman discloses this
`limitation in describing a method that automatically parses TCP/IP packets to
`detect the source and destination addresses, protocol type, and port number. Pet.
`50 (citing Ex. 1003 ¶¶ 215–217).
`
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`IPR2018-00929
`Patent 6,285,658 B1
`Patent Owner contends that the source and destination addresses, protocol
`type, and port number detected by Wakeman does not disclose “selectable
`information” as claimed, for the reasons given in Patent Owner’s discussion of
`claim 6. Prelim. Resp. 27–28. We disagree as discussed in our analysis of claim 6.
`We determine that Petitioner has established sufficiently that Wakeman discloses
`this limitation.
`Claim 7 recites “determining a policy for assigning a service level to said
`flows based upon said selectable information automatically detected about one of
`said flows.” Patent Owner, relying on testimony of Dr. Zadok, testifies that
`Wakeman discloses this limitation in describing matching each flow to a
`hierarchical class node based upon the selectable information in the packet flow,
`where each node includes policies for assigning a service level to a flow. Pet. 51
`(citing Ex. 1003 ¶¶ 218–221). We determine that Petitioner has established
`sufficiently that Wakeman discloses this limitation.
`Claim 7 recites “implementing said policy by explicit data rate control of
`said one of said flows.” Petitioner, relying on testimony of Dr. Zadok, contends
`Wakeman discloses this limitation in describing placing packets in the appropriate
`queue only when a flow has not exceeded the explicitly defined data rate. Pet. 51–
`52 (citing Ex. 1005, pp. 13–14; Ex. 1003 ¶¶ 222–224). We determine that
`Petitioner has established sufficiently that Wakeman discloses this limitation. We
`determine that the Petition and supporting evidence adequately establishes a
`reasonable likelihood that Wakeman anticipates claim 7.
`Claim 8, which depends from claim 7, recites “said determining step further
`comprises applying individual instances of traffic class specifications, each traffic
`class specification having an associated policy, to said one of said flows based on
`said selectable information.” Petitioner, relying on testimony of Dr. Zadok,
`contends Wakeman discloses this limitation in describing matching each packet to
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`IPR2018-00929
`Patent 6,285,658 B1
`a class node, which is associated with policies, based upon selectable information
`that was automatically parsed from a packet. Pet. 52–53 (citing Ex. 1003 ¶¶ 225–
`228). We determine that Petitioner has established sufficiently that Wakeman
`discloses this limitation.
`Claim 8 recites “associating with said one of said flows the particular policy
`associated with said traffic class.” Petitioner, relying on testimony of Dr. Zadok,
`contends Wakeman discloses this limitation in describing a class-based queuing
`method that associates packet flows with class nodes and class nodes with policies.
`Pet. 53 (citing Ex. 1003 ¶¶ 229–232). We determine that Petitioner has established
`sufficiently that Wakeman discloses this limitation. We determine that the Petition
`and supporting evidence adequately establishes a reasonable likelihood that
`Wakeman anticipates claim 8.
`Claim 9, which depends from claim 8, recites “each said traffic class has a
`hierarchical relationship to one another.” Petitioner contends Wakeman discloses
`this limitation in describing that the traffic classes have a hierarchical relationship
`to one another. Pet. 54 (citing Ex. 1005, Fig. 2; Ex. 1003 ¶¶ 233–236). We
`determine that the Petition and supporting evidence adequately establishes a
`reasonable likelihood that Wakeman anticipates claim 9.
`C. Asserted Obviousness over Wakeman and Choudhury:
`Claims 4, 5, 10, 12, and 17
`1. Choudhury (Ex. 1006)
`Choudhury relates to a dynamic threshold system and method for regulating
`the queue lengths in a shared memory asynchronous transfer mode (ATM) switch.
`Ex. 1006, 1:7–11. The system and method deliberately reserves a small amount of
`buffer space, not allocating it to any currently active output queue, but attempts to
`equally share the remaining buffer space among the currently active output queues.
`Ex. 1006, Abstract.
`
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`IPR2018-00929
`Patent 6,285,658 B1
`
`2. Claims 4, 5, 10, 12, and 17
`Claim 4, which depends from claim 1, recites “for rate based policies having
`a guaranteed information rate (GIR) and an excess information rate (EIR),
`allocating GIR until no further GIR is available; thereupon, allocating EIR.”
`Petitioner contends Wakeman teaches this limitation in teaching allocating
`committed bandwidth resources to the queues based on policies of the class nodes
`until committed bandwidth resources are no longer available, then allocating
`available uncommitted bandwidth resources. Pet. 56–60 (citing Ex. 1005, Fig. 3,
`pp. 9, 13–14; Ex. 1003 ¶¶ 245–246, 250–255). We determine that Petitioner has
`established sufficiently that Wakeman teaches this limitation.
`Claim 4 recites “for priority based policies, having a priority, allocating
`unreserved service according to said priority.” Petitioner contends the combination
`of Wakeman and Choudhury teaches this limitation. Pet. 60–62. Petitioner
`contends Wakeman teaches a default class of service for a packet that does not
`map to any other class, where the default class provides the lowest quality of
`service. Pet. 60 (citing Ex. 1005, p. 12). Petitioner contends Choudhury teaches
`reserving a small amount of space in memory by not allocating it to any currently
`active output queue.” Pet. 61 (citing Ex. 1006, 5:50–57). Petitioner, relying on
`testimony of Dr. Zadok, contends that a person of ordinary skill in the art would
`have withheld a small amount of space in memory as taught by Choudhury for
`packets falling into the default class of Wakeman for the benefit of reducing packet
`loss as taught by Choudhury. Pet. 61–62 (citing Ex. 1003 ¶¶ 264–266).
`We determine that the Petition and supporting evidence adequately
`establishes a reasonable likelihood that the combination of Wakeman and
`Choudhury would have rendered claim 4 obvious.
`Claim 5, which depends from claim 1, recites “allocating a combination of
`GIR resources, EIR resources and unreserved resources, wherein GIR resources
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`IPR2018-00929
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`and EIR resources are allocated based upon speed scaling and unreserved resources
`are allocated based upon a priority.” Petitioner, relying on testimony of Dr. Zadok,
`contends this limitation is taught by the combination of Wakeman and Choudhury.
`Pet. 62–65 (citing Ex. 1005, p. 13, Fig. 3; Ex. 1003 ¶¶ 270, 274–278). Dr. Zadok
`testifies that “Wakeman scales the speed of each class in proportion to its defined
`percentage, out of a total link speed specified as available.” Ex. 1003 ¶ 275. Dr.
`Zadok testifies that the combination of Wakeman and Choudhury teaches
`withholding a small portion of resources for unreserved default classes based on a
`priority based policy, for the reasons discussed in claim 4. Id. at ¶ 276. Dr. Zadok
`testifies
`Wakeman in view of Choudhury discloses and renders obvious
`allocating a combination of GIR resources [underlimit class flows], EIR
`resources [overlimit borrowed class flows] and unreserved resources,
`wherein GIR resources and EIR resources are allocated based upon
`speed scaling [the exponentially weighted moving average] and
`unreserved resources are allocated based upon a priority.
`Id. at ¶ 279.
`We determine that the Petition and supporting evidence adequately
`establishes a reasonable likelihood that the combination of Wakeman and Lin
`would have rendered claim 5 obvious.
`Independent claim 10 recites “automatically detecting selectable information
`about one of said flows.” Petitioner contends Wakeman teaches this limitation for
`the reasons discussed for claim 7. Pet. 66.
`Claim 10 recites “determining a policy for assigning a service level to said
`one of said flows based upon said automatically detected selectable information
`about said one of said flows, said policy directing either reserved service or
`unreserved service.” Petitioner contends Wakeman teaches “determining a policy
`for assigning a service level to said one of said flows based upon said
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`automatically detected selectable information about said one of said flows” as
`claimed for the reasons discussed for claim 7. Pet. 66. Petitioner contends
`Wakeman teaches “said policy directing either reserved service or unreserved
`service” in teaching policies associated with classes that direct the allocation of
`reserved service resources for the reasons discussed for claim 7. Id. Petitioner
`contends the combination of Wakeman and Choudhury teaches directed unreserved
`service resources to the default class for the reasons discussed for claim 7. Id.
`Claim 10 recites “dynamically allocating said bandwidth representing a
`combination of GIR resources, EIR resources and unreserved resources among a
`plurality of said flows assigned to Said Service level by said determining step.”
`Petitioner contends the combination of Wakeman and Choudhury teaches this
`limitation. Pet. 67. Petitioner contends Wakeman teaches allocating EIR
`resources only after all GIR resources have been allocated. Id. Petitioner contends
`Choudhury teaches reserving a small amount of space in memory by not allocating
`the space to any currently active output queue. Id.
`Patent Owner contends the Petition does not identify where the combination
`of Wakeman and Choudhury teaches “selectable information” as claimed. Prelim.
`Resp. 29. Patent Owner’s contention is similar to that presented for claim 6, which
`we find unpersuasive as discussed in our analysis of claim 6.
`
`Patent Owner contends the Petition does not identify where the combination
`of Wakeman and Choudhury teaches “unreserved rate resources” as recited in
`claim 10. Prelim. Resp. 29–32. According to Patent Owner, Wakeman teaches
`that the default class is provided with a share of the bandwidth, in contrast to the
`claimed “unreserved rate resources” that are not guaranteed a share of the
`bandwidth. Prelim. Resp. 31. Patent Owner also contends that Choudhury’s
`teaching of reserving memory is the opposite of “unreserved rate resources” as
`claimed. Prelim. Resp. 32.
`
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`IPR2018-00929
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`Dr. Zadok testifies that the ’658 patent “simply states that unreserved traffic
`is traffic for ‘which no reservation of bandwidth is made.’” Ex. 1003 ¶ 68 (citing
`Ex. 1001, 6:17–19). Dr. Zadok testifies that unreserved resources are resources
`that are withheld, such as resources withheld for the default class traffic of
`Wakeman. Ex. 1003 ¶ 268. Dr. Zadok testifies that Wakeman’s default class of
`traffic has the lowest quality of service, and that a person of ordinary skill in the art
`would have implemented the priority policy by giving non-subscribers less priority
`than subscribers. Ex. 1003 ¶ 278 (citing Ex. 1005, p. 12). Dr. Zadok testifies that
`“a person of ordinary skill would have found it obvious to modify Wakeman so
`that it sets aside unreserved bandwidth resources (i.e., resources that are not
`reserved for subscribers) to serve as a buffer for handling default class flows (i.e.,
`non-subscribers).” Ex. 1003 ¶ 296.
`We credit Dr. Zadok’s testimony and determine that the Petition identifies
`the claimed “unreserved rate resources” as taught by resources that are not
`reserved for subscribers, such as resources for Wakeman’s default class of service,
`which has the lowest quality of service. We determine that the Petition and
`supporting evidence adequately establishes a reasonable likelihood that the
`combination of Wakeman and Choudhury would have rendered claim 10 obvious.
`Claim 12, which depends from claim 10, recites said “step of allocating
`bandwidth representing a combination of GIR resources, EIR resources and
`unreserved resources comprises allocating GIR resources and EIR resources based
`upon a speed scaling and allocating unreserved resources based upon a priority.”
`Petitioner contends the combination of Wakeman and Choudhury teaches this
`limitation for the reasons discussed for claims 4 and 5. Pet. 68. We determine that
`the Petition and supporting evidence adequately establishes a reasonable likelihood
`that the combination of Wakeman and Choudhury would have rendered claim 12
`obvious.
`
`
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`16
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`IPR2018-00929
`Patent 6,285,658 B1
`Claim 17, which depends from claim 10, recites “stepwise mapping of
`policies according to association with nodes classified in a hierarchy.” Petitioner
`contends Wakeman teaches this limitation as discussed for claim 16. Pet. 68. We
`determine that the Petition and supporting evidence adequately establishes a
`reasonable likelihood that the combination of Wakeman and Choudhury would
`have rendered claim 17 obvious.
`III. CONCLUSION
`For the foregoing reasons, we determine that the information presented in
`
`the Petition establishes that there is a reasonable likelihood that Petitioner would
`prevail with respect to at least one claim of the ’658 patent.
`IV. ORDER
`
`Accordingly, it is
`
`ORDERED that pursuant to 35 U.S.C. § 314, we institute an inter partes
`
`review on all challenged claims and grounds presented in the Petition
`
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(a), inter partes
`review of the ’658 patent is hereby instituted commencing on the entry date of this
`Order, and pursuant to 35 U.S.C. § 314(c) and 37 C.F.R. § 42.4, notice is hereby
`given of the institution of a trial.
`
`
`
`
`
`
`17
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`

`IPR2018-00929
`Patent 6,285,658 B1
`PETITIONER:
`Adrian C. Percer
`Robert Stephen Magee
`Weil, Gotshal & Manges LLP
`adrian.percer@weil.com
`robert.magee@weil.com
`
`
`PATENT OWNER:
`Chad C. Walters
`Kurt M. Pankratz
`Kathryn A. Juffa
`Bryan D. Parrish
`BAKER BOTTS L.L.P
`chad.walters@bakerbotts.com
`kurt.pankratz@bakerbotts.com
`katie.juffa@bakerbotts.com
`bryan.parrish@bakerbotts.com
`
`
`
`
`
`
`
`
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`18
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