Trials@uspto.gov
`571.272.7822
`
`
`Paper 6
`Entered: January 9, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ERICSSON INC. AND
`TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`_______________
`
`Case IPR2018-01256
`Reissued Patent RE46,206 E
`_______________
`
`
`Before KRISTEN L. DROESCH, BRIAN J. McNAMARA, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`DROESCH, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`571.272.7822
`
`
`Paper 6
`Entered: January 9, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`ERICSSON INC. AND
`TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES I LLC,
`Patent Owner.
`_______________
`
`Case IPR2018-01256
`Reissued Patent RE46,206 E
`_______________
`
`
`Before KRISTEN L. DROESCH, BRIAN J. McNAMARA, and
`DAVID C. McKONE, Administrative Patent Judges.
`
`DROESCH, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`Case IPR2018-01256
`Reissued Patent 46,206
`
`I. INTRODUCTION
`A. Background
`Ericsson Inc. and Telefonaktiebolaget LM Ericsson (collectively
`“Petitioner”) filed a Petition requesting an inter partes review of claims 2,
`6–8, 15, 16, 19, and 79 (“challenged claims”) of U.S. Reissued Patent No.
`46,206 E (Ex. 1001, “’206 Reissued Patent”). Paper 2 (“Pet”). Intellectual
`Ventures I LLC (“Patent Owner”) timely filed a Preliminary Response.
`Paper 5 (“Prelim. Resp.”).
`We have authority under 35 U.S.C. § 314 and 37 C.F.R. § 42.4. An
`inter partes review may not be instituted unless it is determined that “the
`information presented in the petition filed under section 311 and any
`response filed under section 313 shows that there is a reasonable likelihood
`that the petitioner would prevail with respect to at least 1 of the claims
`challenged in the petition.” 35 U.S.C. § 314(a).
`For the reasons provided below, we determine, based on the record
`before us, there is a reasonable likelihood Petitioner would prevail in
`showing at least one of the challenged claims is unpatentable.
`
`B. Related Proceedings
`The parties represent that the ’206 Reissued Patent is at issue in
`Intellectual Ventures I LLC v. T-Mobile USA, Inc., No. 2:17-cv-00577-JRG
`(E.D. Tex.) (“concurrent district court proceedings”). Pet. 2; Paper 3, 2.
`The parties further indicate that certain claims of the ’206 Reissued Patent
`are at issue in Case IPR2018-00758 (“758 IPR”), Case IPR2017-00782
`(“782 IPR”), Case IPR2018-01121 (“1121 IPR”), and Case IPR2018-01318.
`See Pet. 2; Prelim. Resp. 1.
`
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`Reissued Patent 46,206
`C. The ’206 Reissued Patent (Ex. 1001)
`The ’206 Reissued Patent is a reissue of U.S. Patent No. 7,251,218,
`which issued on July 31, 2007, from Application No. 10/241,454, filed
`October 24, 2002. See Ex. 1001, [64]. The ’206 Reissued Patent concerns
`“implementing a QoS [quality of service] aware wireless point-to-multi-
`point transmission system.” Ex. 1001, 3:38–41. The ’206 Reissued Patent
`explains that wireless networks present particular challenges over their
`wireline counterparts in delivering QoS. See id. at 3:60–61, 10:63–11:1. In
`addition to the traditional problems of wireline communications, such as
`data errors, latency, and jitter, wireless transmission may encounter further
`problems, such as high inherent bit error rates (BERs), limited bandwidth,
`user contention, and radio interference. See id. at 11:1–9. The ’206
`Reissued Patent states that a QoS-aware wireless system is desired to
`address all these problems. See id. at 11:9–10.
`Figure 3B of the ’206 Reissued Patent is reproduced below.
`
`
`Figure 3B depicts a block diagram illustrating a wireless point-to-multipoint
`network. See Ex. 1001, 5:29–30. Wireless base station 302 communicates
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`with wireless subscriber customer premise equipment (CPE) 294d via
`antenna 290d and antenna 292d. See id. at 40:39–41. Subscriber CPE 294d,
`in turn, communicates with subscriber workstation 120d. See id. at 40:51–
`54. Wireless base station 302 is connected to data network 142, which, in
`turn, is connected to host workstation 136a. See id. at 40:32–33, Fig. 3B.
`According to the ’206 Reissued Patent, at wireless base station 302,
`the QoS-aware scheduling of the wireless transmission of data packets takes
`place at the data link layer or the MAC layer. See Ex. 1001, 41:16–29;
`47:6–8; 47:13–15; Fig. 5A. Specifically, the ’206 Reissued Patent discloses
`that a MAC layer can read header information in the packets to analyze and
`schedule an IP packet of an IP flow. See id. at 41:22–26. IP packets of the
`IP flow are identified by analyzing the header information to determine QoS
`requirements of the IP flow “so that the IP flow can be characterized,
`classified, presented, prioritized and scheduled” for wireless transmission
`over the air. Id. at 41:26–29.
`The ’206 Reissued Patent discloses that IP packets of IP flows are
`wirelessly transmitted over the air using time division multiple access/time
`division duplex (TDMA/TDD) MAC transmission air frames. See Ex. 1001,
`52:23–26.
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`Figure 12A of the ’206 Reissued Patent is reproduced below.
`
`
`
`Figure 12A illustrates an entire TDMA MAC transmission air frame. See
`Ex. 1001, 52:30–31. TDMA MAC air frame 1202 includes downstream
`transmission subframe 1202 and upstream transmission subframe 1204. See
`id. at 52:31–32. Downstream transmission subframe 1202 includes
`upstream acknowledgment block (UAB) 1206, acknowledgement request
`block (ARB) 1208, frame descriptor block (FDB) 1210. See id. at 52:33–38.
`Upstream transmission subframe 1204 includes downstream
`acknowledgment block (DAB) 1214 and reservation request block (RRB)
`1216. See id. at 52:38–43. Frame size can be, e.g., 16 slots or 32 slots. See
`id. at 53:38–39; Fig. 12B. The number of slots is dynamically assigned for
`both the uplink and the downlink. See id. at 53:49–50. It is possible to
`dynamically allocate a subset of the entire number of TDMA slots to an
`uplink direction and to dynamically allocate a subset of the entire number of
`TDMA slots to a downlink direction. See id. at 53:50–60.
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`D. Illustrative Claim
`Challenged claims 2, 6–8, 15, 16, 19, and 79, are dependent ultimately
`from claim 1. Claim 1 is illustrative and reproduced below:
`1. A method for IP flow classification grouping IP flows in
`a packet-centric wireless point to multi-point
`telecommunications system, said method comprising:
`analyzing an Internet Protocol (IP) flow in a packet-centric
`manner;
`classifying said IP flow; and
`scheduling said IP flow for transmission over a shared
`wireless bandwidth between a wireless base station and at least
`one subscriber customer premises equipment (CPE) station,
`including
`allocating said shared wireless bandwidth to communication
`of said IP flow between said wireless base station and a
`subscriber CPE station, so as to optimize end-user quality of
`service (QoS) associated with said IP flow.
`Ex. 1001, 81:31–45.
`E. Asserted Grounds of Unpatentability
`Petitioner challenges the patentability of the following claims of the
`’206 Reissued Patent on the following grounds and prior art (Pet. 1, 8–76):
`Statutory
`Basis
`§ 102
`§ 103
`§ 103
`
`Reference(s)
`Forslöw1
`Forslöw and Brasche2
`Forslöw, Brasche, and Goodman3
`
`Claim(s)
`19
`2, 79
`6–8, 15, 16
`
`
`1 Ex. 1004, U.S. Pat. No. 6,937,566 B1, issued Aug. 30, 2005 (“Forslöw”).
`2 Ex. 1024, Götz Brasche et al., Concepts, Services, and Protocols of the
`New GSM Phase 2+ General Packet Radio Service, 35 IEEE
`COMMUNICATIONS MAGAZINE 8, 1997 (“Brasche”).
`3 Ex. 1009, Jian Cai and David J. Goodman, General Packet Radio Service
`in GSM, 35 IEEE COMMUNICATION 10, 122 (1997) (“Goodman”).
`
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`Forslöw and Lin4
`§ 103
`19
`Forslöw, Brasche, and Lin
`§ 103
`2, 79
`Forslöw, Brasche, Goodman, and Lin
`§ 103
`6–8, 15, 16
`Forslöw and Passas5
`§ 103
`2, 6–8, 15, 16, 79
`Forslöw, Passas, and Lin
`§ 103
`2, 6–8, 15, 16, 79
`The Petition also relies on the Declaration of Dr. Zygmunt Haas. Ex. 1003.
`
`II. ANALYSIS
`A. Claim Construction
`For petitions filed before November 13, 2018, claims of an unexpired
`patent that will not expire before issuance of a final written decision are
`interpreted using the broadest reasonable interpretation in light of the
`specification. See 37 C.F.R. § 42.100(b) (2016); Cuozzo Speed Techs., LLC
`v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Petitioner asserts the Phillips
`standard should govern claim construction because the ’206 Reissued Patent
`will expire on July 9, 2019, during the pendency of trial. See Pet. 7–8 (citing
`Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc)).
`Patent Owner agrees the Phillips standard applies because the ’206 Reissued
`Patent will expire during the pendency of trial, if instituted. See Prelim.
`Resp. 10. In view of the expiration date during the pendency of this
`proceeding, we agree the Phillips standard should govern. Thus, we
`construe the claims in accordance with their ordinary and customary
`meanings, as would be understood by a person of ordinary skill in the art at
`
`
`4 Ex. 1019, U.S. Pat. No. 6,400,701 B2, issued June 4, 2002 (“Lin”).
`5 Ex. 1032, Nikos Passas et al., Quality of Service-Oriented Medium Access
`Control for Wireless ATM Networks, 35 IEEE COMMUNICATIONS 11, 42
`(1997) (“Passas”).
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`the time of the invention, in the context of the ’206 Reissued Patent
`Specification. See generally Phillips, 415 F.3d at 1312–14.
`Neither party proposes an explicit claim construction for any claim
`term or phrase. See Pet. 7–8; generally Prelim. Resp. As demonstrated in
`the analysis below, for the purpose of this Decision, no claim terms or
`phrases require an explicit construction. See Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co. Ltd., 868 F.3d 1013, 1017 (Fed. Cir.
`2017), cert. denied, 138 S. Ct. 1695 (April 30, 2018) (“[W]e need only
`construe terms ‘that are in controversy, and only to the extent necessary to
`resolve the controversy’” (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999))).
`
`B. Asserted Grounds of Unpatentability
`1. Anticipation of Claim 19 over Forslöw
`a. Overview of Forslöw (Ex. 1004)
`Forslöw discloses different quality of service (QoS) parameters may
`be defined and reserved for different ones of a plurality of application flows
`corresponding to a stream of packets to be delivered from an external
`network entity to a mobile host. See Ex. 1004, Abstract.
`
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`Figure 2 of Forslöw is reproduced below:
`
`
`Figure 2 depicts a Global System for Mobile (GSM) communications system
`including a General Packet Radio Service (GPRS) data network. See Ex.
`1004, 6:38–40. Mobile host 12, including computer terminal 14 and mobile
`radio 16, communicates over radio interface with one or more base stations
`32. See id. at 2:14–17. Base stations 32 are connected to base station
`controller (BSC) 34, which manages the allocation and deallocation of radio
`resources and controls handovers of mobile stations from one base station to
`another. See id. at 2:18–21. BSC 34 is connected to mobile switching
`center (MSC) 36 through which connections are set up with other networks
`38 and Signaling System Number 7 (SS7) network 40. See id. at 2:23–30.
`Home Location Register (HLR) 42, Visitor Location Register 44, and
`Authentication Center 46 are connected to SS7 network 40. See id. at 2:29–
`32. HLR 42 stores and manages subscriptions for each home mobile
`subscriber, including permanent subscriber data such as mobile station
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`Integrated Services Digital Network (MSISDN) and international mobile
`subscriber identity (IMSI). See id. at 2:43–50. GPRS network 51 includes
`gateway GPRS support node (GGSN) 54 and Serving GPRS Support Nodes
`(SGSN) 50 connected by an intra-PLMN IP backbone 52. See id. at 2:61–
`62. Each BSC 34 connects to GPRS network 51 at SGSN 50. See id. at
`2:56–59. GGSN acts as a logical interface to external data packet networks,
`such as IP data network 56. See id. at 2:59–61. Packets or protocol data
`units (PDUs) within GPRS network 51 are encapsulated at an originating
`GPRS support node and decapsulated (i.e., tunneling in GPRS) at
`destination GPRS support node. See id. at 2:65–3:8.
`Figure 5 of Forslöw is reproduced below.
`
`
`Figure 5 depicts a flowchart illustrating dynamic QoS procedures in GPRS.
`See Ex. 1004, 6:48–51. The first set of procedures includes Packet Data
`Protocol (PDP) context activation 112, where the mobile host logs–on and
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`starts a data session with GPRS, the mobile host’s subscription, including
`subscribed QoS profiles/parameters, is retrieved from HLR 42, and a tunnel
`is established between mobile host and GPRS 54. See id. at 8:15–23. IP
`host configuration 114 is performed to establish communication between
`mobile host 12 and Internet Service Provider (ISP) 59. See id. at 8:24–28.
`Dynamic QoS reservation 116 reserves a specific quality of service for each
`application flow established during the activated PDP context/data session.
`See id. at 8:37–40. IP data packet forwarding 118 occurs between the
`external host such as ISP 58 and mobile host 12. See id. at 8:45–48. IP
`packet forwarding 118 includes packet classifying, scheduling/queueing, and
`policing procedures. See id. at 8:48–51.
`The BSS preferably employs a first-in-first out (FIFO)
`scheduling algorithm for frames of packets received with the
`same QoS delay class and cell identifier. Prioritization of packet
`transfer scheduling between quality of service delay classes is
`also preferably controlled by the BSS with the BSS passing LLC
`([logical link control)] frames having a higher quality of service
`delay class before transferring LLC frames having a lower
`quality of service delay class.
`Ex. 1004, 12:66–13:6; see id. at 13:39–47.
`
`b. Analysis of Unchallenged Claim 1
`As highlighted above, claim 19 depends ultimately from claim 1, and,
`therefore, includes all of the limitations of claim 1. Accordingly, we first
`address the parties’ contentions addressing the limitations of claim 1. For
`the purpose of this Decision and based on Petitioner’s citations to Forslöw
`and Petitioner’s declarant testimony (Ex. 1003), we are persuaded that
`Petitioner establishes sufficiently that Forslöw discloses each of the
`limitations recited in claim 1. Petitioner contends that Forslöw discloses
`
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`“analyzing an Internet Protocol (IP) flow in a packet-centric manner” based
`on Forslöw’s following disclosures: (1) the Gateway General Packet Radio
`Service Support Node (GGSN) receiving packets from an IP packet
`application flow and analyzing the received packets using a packet filter to
`determine each packet of the flow has the correct IP address; (2) the GGSN
`and Serving General Packet Radio Service Support Node (SGSN) analyzing
`packets to determine how to classify the packets based on the end-user’s
`QoS requirements; and (3) the GGSN and SGSN analyze packets from an IP
`flow when encapsulating and decapsulating received packets. See Pet. 14–
`16 (quoting Ex. 1004, 5:49–59, 13:9–15; citing Ex. 1004, 2:63–3:3, 9:50–
`55, 10:10–18, 13:7–11, 13:19–21, 13:25–27, 15:53–58, Fig. 12; Ex. 1003
`¶ 97). Petitioner also asserts that Forslöw discloses “classifying said IP
`flow” based on Patent Owner’s interpretation of the claim limitation in the
`concurrent district court proceedings and Forslöw’s disclosure of classifying
`IP packet application flows according to their quality of service (QoS) delay
`class. See Pet. 16–17 (referencing Pet. 8–14 (citing Ex. 1023, 27; Ex. 1003
`¶ 99); see also Pet. 9–12 (addressing Forslöw’s disclosure of classifying or
`grouping packets into different QoS classes; reproducing Ex. 1004, Fig. 11
`with annotations; quoting Ex. 1004, 12:28–31, 12:33–36, 13:25–39; citing
`Ex. 1004, 12:38–44, 12:52–57, 12:60–62; 12:64–67, 13:9–11, 13:13–15,
`13:25–27, 13:37–39, 13:48–51, 13:64–67, Fig. 12; Ex. 1003 ¶¶ 90–91).
`Petitioner contends that Forslöw discloses “scheduling said IP flow
`for transmission over a shared wireless bandwidth between a wireless base
`station and at least one subscriber customer premises (CPE) station,” as
`recited in claim 1, based on Patent Owner’s interpretation of customer
`premises equipment station in the concurrent district court proceedings and
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`on Forslöw’s following disclosures: (1) BSS employs a first-in first-out
`(FIFO) scheduling algorithm to schedule packets and prioritizes packet
`transfer scheduling between quality of service delay classes; (2) “scheduling
`packets corresponding to each application flow from the external network to
`the mobile radio host over the bearer in accordance with the quality of
`service corresponding to the application packet stream,” as recited in claim
`16; (3) a shared physical radio medium between multiple mobile stations and
`the GPRS network; and (4) mobile host 12 including a computer terminal
`and mobile, utilizing Patent Owner’s construction in related litigation for
`CPE station. See Pet. 17–21 (reproducing Ex. 1004, Fig. 3 with annotations;
`quoting Ex. 1004, 4:13–16, 15:63–16:24 (claim 16); citing Ex. 1004, 2:14–
`28, 2:56–59, 4:3–12, 8:45–50, 12:27–31, 12:57–64, 12:66–13:6, 13:39–47,
`Figs. 2, 12; Ex. 1003 ¶¶ 100–101, 103–105, 107; Ex. 1023, 88).
`Petitioner asserts that Forslöw discloses “allocating said shared
`wireless bandwidth to communication of said IP flow between said wireless
`base station and a subscriber CPE station, so as to optimize end-user quality
`of service (QoS) associated with said IP flow,” as recited in claim 1, based
`on Patent Owner’s interpretation of the claim limitation in the concurrent
`district court proceedings and Forslöw’s following disclosures: (1)
`scheduling packets from an application flow for delivery, which includes
`allocated shared GPRS physical radio resources for communication of the
`packets from the BSS to mobile stations; (2) employing a resource
`reservation protocol (RSVP) to permit a mobile host specifying the
`particular QoS required for a particular application flow of packets; (3) for
`each application flow, an appropriate quality of service is separately
`reserved, monitored, and regulated; (4) packets corresponding to each
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`application flow are delivered in accordance with the reserved corresponding
`quality of service; and (5) the BSS classifies packets from an application
`flow into different QoS classes, schedules those packets, including allocating
`resources for transmission taking into account the end-user’s QoS for the
`application flow of packets being scheduled, and uses a priority queueing
`scheduling algorithm to schedule packets from a higher QoS class before a
`lower QoS class. See Pet. 21–26 (quoting Ex. 1004, 2:18–23, 4:13–16,
`4:53–55, 6:11–15, 7:56–59, 7:62–65, 10:28–31, 11:45–53, 13:43–47; citing
`Ex. 1004, Abstract, 2:18–23, 4:13–16, 4:22–37, 4:56–64, 5:3–4, 5:17–21,
`6:22–24, 7:52–54, 9:4–6, 12:19–21, 12:27–31, 12:33–36, 12:66–13:6,
`13:37–44, 15:63–66, Figs. 10A, 11; Ex. 1003 ¶¶ 109–112; Ex. 1023, 14–15,
`94).
`
` Patent Owner argues that the Petition fails to establish that the use of
`the term “scheduling” in Forslöw refers to the same “scheduling” in the ’206
`Reissued Patent. See Prelim. Resp. 54–55 (quoting InTouch Techs., v. VGO
`Commc’ns, Inc., 751 F.3d 1327, 1350 (Fed. Cir. 2014); citing id. at 1349–
`51). According to Patent Owner, “Forslöw teaches that the BSS, SGSN, and
`GGSN each perform a set of packet classification, so-called ‘scheduling’
`(which is different from the claimed ‘scheduling’ as discussed below), and
`policing.” Id. at 54 (citing Ex. 1004, 12:52–57). Patent Owner alleges,
`“Forslöw describes simple, unscheduled queueing, not ‘scheduling . . . for
`transmission over a shared wireless bandwidth . . . .” Id. at 55; see also id. at
`3–4 (arguing Forslöw is directed to queueing-only techniques). Patent
`Owner further argues that Forslöw was cited during prosecution of the ’206
`Reissued Patent, and “the Patent Office specifically deemed independent
`claim[] 1 . . . allowable over the prior art of record, including Forslöw.”
`
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`Id. at 55–56 (quoting Ex. 2001, 3–46 (Examiner’s statement of reasons for
`allowance)); see id. at 3 (similar argument; citing Ex. 1012, 3; Ex. 2001, 3–
`4). More specifically, Patent Owner argues that Forslöw does not disclose
`scheduling said plurality of packets for communication over a shared
`wireless bandwidth in the BSS. See Prelim. Resp. 58–65. Patent Owner
`argues that Forslöw and the Petition equate queueing with scheduling, and
`the ’206 Reissued Patent uses queueing as an input to the scheduler. Id. at
`59–60 (referencing Prelim. Resp. 39–48; quoting Ex. 1004, 8:48–50, 13:27–
`28, 13:31–32, 13:39–42, 13:66–14:1; citing Pet. 21–23). Patent Owner
`contends that Petitioner’s declarant, Dr. Haas, identifies only queueing
`techniques as specific examples of scheduling methods. See id. at 59–60
`(quoting Ex. 1003 ¶ 44; citing Ex. 1003 ¶¶ 57, 100–101, 111, 112). Patent
`Owner also asserts that Forslöw’s interchangeable use of queueing and
`scheduling does not mean that Forslöw’s queueing algorithms can fairly be
`presumed to be the claimed scheduling algorithms because the ’206
`Reissued Patent expressly criticizes queueing techniques alone as
`insufficient. See id. at 60–61 (quoting Ex. 1001, 15:11–12, 15:21–25,
`15:62–67, 16:32–33, 16:65–67; citing Ex. 1001, 14:66–15:8, 15:26–16:67;
`InTouch Techs., 751 F.3d at 1350). Patent Owner argues that the ’206
`Reissued Patent discloses queueing techniques in a completely separate
`section of the disclosure than the section addressing scheduling and never
`uses the terms schedule, scheduling, algorithm, or scheduling algorithm
`when describing queue management techniques. See id. at 61–64 (citations
`omitted).
`
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`6 Patent Owner quotes pages 7–8 of Exhibit 2001.
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`For the purpose of this Decision, we do not agree with Patent Owner’s
`arguments. Patent Owner’s arguments focus on Forslöw’s disclosures of
`queueing, but do not address Forslöw’s disclosures of a FIFO scheduling
`algorithm. See Prelim. Resp. 54–56; see also Ex. 1004, 12:66–13:1
`(disclosing the BSS preferably uses a FIFO scheduling algorithm). Patent
`Owner also does not explain why the Examiner’s statement of reasons for
`allowance, which repeats the recitations of claim 1, supports Patent Owner’s
`argument that the “scheduling” recited in claim 1 differs from Forslöw’s
`disclosure of scheduling.
`Patent Owner contends, “the alleged ‘scheduling’ performed in
`Forslöw’s GGSN and SGSN is not for transmission or communication ‘over
`a shared wireless bandwidth’ as required by the challenged claims” because
`the “GGSN and SGSN are connected to the BSC using a wired connection.”
`Prelim. Resp. 56–57 (quoting Ex. 1004, 2:56–58, 2:61–62; citing Ex. 1004,
`Fig. 2). Patent Owner also argues that, because the challenged claims
`depend from claim 1, which recites “in a packet centric wireless point to
`multi-point telecommunications system” including “scheduling said IP flow
`for transmission over a shared wireless bandwidth between a wireless base
`station and at least one subscriber customer premises equipment (CPE)
`station,” any scheduling performed in Forslöw’s GGSN and SGSN does not
`meet the limitation. See id. at 57–58.
`For the purpose of this Decision, we do not agree with Patent Owner’s
`arguments because they are not commensurate in scope with the claims.
`Contrary to Patent Owner’s arguments, claim 1 and challenged claims 2, 6–
`8, 15, 16, 19, and 79 do not preclude communication of packets over a wired
`network, nor do these claims require all communication of packets to occur
`
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`over a shared wireless bandwidth between a wireless base station and at least
`one CPE station. See also Pet. 19 n.12 (Petitioner asserting the scheduling
`performed in the GGSN and SGSN is for communication over a wireless
`bandwidth because the packets scheduled in those nodes are ultimately
`communicated over the shared physical radio medium from the BSS to the
`mobile host). Patent Owner’s arguments further overlook Petitioner’s
`assertions that the BSS schedules packets and communicates the packets
`over the shared radio medium from the BSS to the mobile host. See Pet. 17–
`19 (citing Ex. 1004, 4:3–16, 8:45–50, 12:66–13:6, 13:39–47, 15:63–16:24
`(claim 16), Fig. 12; Ex. 1003 ¶¶ 100–101, 103).
` Accordingly, for the purpose of this Decision and based on the
`current record before us, Petitioner has shown that Forslöw discloses each of
`the limitations of claim 1.
`c. Analysis of Claim 19
`Claim 19 depends from claim 1 and further recites, “allocating shared
`wireless bandwidth to said subscriber CPE station so as to optimize end-user
`internet protocol (IP) quality of service (QoS).” Petitioner asserts that, based
`on Patent Owner’s infringement positions in the concurrent district court
`proceedings, there are no material differences between the allocating step
`recited in claim 1 and the allocating step recited in claim 19. See Pet. 27
`(citing Ex. 1023, 15, 26). Petitioner contends that Forslöw discloses the
`limitations of claim 19 for the same reasons as those addressing claim 1. See
`id. (citing Pet. 21–26). Nevertheless, Petitioner asserts, allocating resources
`to communicate a flow of packets to a CPE station (as in Claim 1) is
`allocating resources to the CPE station (as in Claim 19). See id. (citing Ex.
`1003 ¶ 116). Petitioner further contends that Forslöw describes that a
`
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`mobile host specifies a particular QoS that is applied to IP packets within an
`application flow. See id. (referencing Pet. 23–26). Petitioner asserts that,
`because the QoS is applied to the IP packets within the flow, the QoS is an
`internet protocol (IP) quality of service. See id. (citing Ex. 1003 ¶ 116).
`Patent Owner does not substantively address the limitations of claim
`19. See Prelim. Resp. 54–65.
`Accordingly, for the purpose of this Decision and based on the current
`record before us, we agree that there are no material differences between the
`allocating step recited in claim 1 and the allocating step recited in claim 19
`and, for the reasons given for claim 1, conclude that there is a reasonable
`likelihood Petitioner would prevail in showing claim 19 is unpatentable
`under 35 U.S.C. § 102 as anticipated by Forslöw.
`
`2. Unpatentability of Claim 19 under 35 U.S.C. § 103 over Forslöw and Lin
`a. Overview of Lin (Ex. 1019)
`Lin discloses a prior art fixed wireless access system for
`communication with a base station that includes a plurality of subscriber
`radio terminals each comprising a transceiver and an antenna as part of a
`residential subscriber system at a subscriber’s premises. See Ex. 1019,
`1:29–35; Fig. 1.
`
`b. Analysis of Unchallenged Claim 1
`As highlighted above, claim 19 depends ultimately from claim 1, and,
`therefore, includes all of the limitations of claim 1. Accordingly, we first
`address the parties’ contentions addressing the limitations of claim 1. For
`the purpose of this Decision and based on Petitioner’s citations to Forslöw,
`Lin, and Petitioner’s declarant testimony (Ex. 1003), we are persuaded that
`Petitioner establishes sufficiently that Forslöw and Lin teach or suggest each
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`of the limitations of claim 1. Petitioner relies on much of the same analysis
`of Forslöw, discussed above in Section II.B.1.b., to address the limitations of
`claim 1. See Pet. 51–58. Petitioner acknowledges that, in contrast to Patent
`Owner’s contentions regarding customer premise equipment in the
`concurrent district court proceedings, the ’206 Reissued Patent explicitly
`defines customer premises equipment (CPE) as follows: “CPE refers to
`devices residing on the premises of a customer and used to connect to a
`telephone network, including ordinary telephones, key telephone systems,
`PBXs, video conferencing devices and modems.” Id. at 51 (quoting Ex.
`1001, 8:6–10). Petitioner asserts that Forslöw does not explicitly disclose
`that the computer terminal resides at a customer premises. See id. Petitioner
`asserts that Lin discloses a personal computer residing at a subscriber’s
`premises that is used to connect to a wireless network. See id.
`For the purpose of this Decision and based on Petitioner’s citations to
`specific prior art disclosures and supporting evidence, we are persuaded
`Petitioner sets forth sufficient articulated reasoning with rational
`underpinning to support the conclusion that it would have been obvious to
`one with ordinary skill in the art to modify Forslöw’s teachings to use Lin’s
`personal computer residing on a subscriber’s premises in place of Forslöw’s
`computer terminal. See Pet. 51–55; KSR Int’l Co. v. Teleflex Inc., 550 U.S.
`398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
`Petitioner asserts: (1) the combination of Forslöw and Lin would have been
`a simple design choice involving selecting between a computer residing on a
`subscriber’s premises or a mobile computer not residing on a subscriber’s
`premises; (2) the combination of Forslöw and Lin would have involved a
`simple substitution of a computer terminal as in Forslöw for a personal
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`computer residing at a subscriber’s premises as in Lin; (3) the “substitution
`would have had no effect on the operation of Forslöw’s schemes, nor on the
`fundamental operation of the personal computer residing at a subscriber’s
`premises;” (4) a computer terminal and a personal computer at a subscriber
`premises were known in the art; and (5) a person of ordinary skill in the art
`could have predictably made the substitution as it would have involved
`coupling Forslöw’s mobile radio to a personal computer residing at a
`subscriber’s premises as taught by Lin instead of coupling the radio to
`Forslöw’s computer terminal and it would have been within the skill level of
`a person of ordinary skill in the art at the time of the invention. Id. at 51–55
`(reproducing Ex. 1004, Fig. 2; Ex. 1019, Fig. 1; citing Ex. 1004, 2:11–18;
`Ex. 1019:1:29–2:1; Ex. 1003 ¶¶ 170–171).
`For the purpose of this Decision and based on the current record
`before us, Petitioner has shown that Forslöw and Lin render obvious each of
`the limitations of claim 1.
`c. Analysis of Claim 19
`Petitioner references its assertions discussed in Section II.B.2.b.,
`addressing the limitations of claim 1 and its assertions discussed in Section
`II.B.1.c., addressing claim 19 as anticipated by Forslöw. See Pet. 58. Patent
`Owner does not address the limitations of claim 19 and the merits of
`Petitioner’s ground of unpatentability based on the combined teachings of
`Forslöw and Lin. See Prelim. Resp. 54–65. For the same reasons as those
`explained above in Sections II.B.1.c. and II.B.2.b, for the purpose of this
`Decision and based on the current record before us, there is a reasonable
`likelihood Petitioner would prevail in showing claim 19 is unpatentable
`under 35 U.S.C. § 103 over Forslöw and Lin.
`
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`3. Unpatentability of Claims 2 and 79 over Forslöw and Brasche
`Unpatentability of Claim 2 and 79 over Forslöw, Lin, and Brasche
`a. Overview of Brasche (Ex. 1024)
`Brasche discloses a master-slave dynamic rate access (MSDRA)
`protocol, which is a medium access control (MAC) protocol that adheres to
`draft GPRS air interface standard proposal. See Ex. 1024, 3, 9. The
`MSDRA “protocol is characterized by dynamic bandwidth allocation and
`multislot operation, that is, one mobile station may use more than one time
`slot of one or more channels dedicated to GPRS at a given time.” Id. at 3.
`Allocation of packet data channels (PDCHs) is based on demand. See id. at
`9. MSDRA protocol includes master packet data channels (MPDCHs) and
`sla
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