UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-00973
`U.S. Patent No.: 7,075,917
`Issued: Jul. 11, 2006
`Application No.: 09/973,312
`Filed: Oct. 9, 2001
`
`Title: WIRELESS NETWORK WITH A
`DATA EXCHANGE ACCORDING TO THE ARQ METHOD
`
`_________________
`
`DECLARATION OF HARRY V. BIMS
`
`
`
`Page 1
`
`
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-00973
`U.S. Patent No.: 7,075,917
`Issued: Jul. 11, 2006
`Application No.: 09/973,312
`Filed: Oct. 9, 2001
`
`Title: WIRELESS NETWORK WITH A
`DATA EXCHANGE ACCORDING TO THE ARQ METHOD
`
`_________________
`
`DECLARATION OF HARRY V. BIMS
`
`
`
`Page 1
`
`
`
`TABLE OF CONTENTS
`
`Patent 7,075,917
`
`Page(s)
`
`I.
`
`II.
`
`INTRODUCTION AND ENGAGEMENT ................................................... 4
`
`BACKGROUND AND QUALIFICATIONS ................................................ 4
`
`III. STANDARDS ................................................................................................ 8
`
`IV. MATERIALS CONSIDERED AND
`INFORMATION RELIED UPON REGARDING ’917 PATENT .............. 11
`
`V.
`
`SUMMARY ................................................................................................. 12
`
`VI. PERSON OF ORDINARY SKILL IN THE ART (“POSITA”) .................. 13
`
`VII. OVERVIEW OF THE CHALLENGED PATENT ...................................... 14
`
`A.
`
`Prosecution History ............................................................................ 18
`
`VIII. MEANING OF CERTAIN CLAIM TERMS ............................................... 19
`
`IX. SPECIFIC PRIOR ART DESCRIPTIONS AND TEACHINGS ................. 20
`
`A.
`
`B.
`
`TR25.835 ............................................................................................ 20
`
`The Abrol Patent ................................................................................ 25
`
`X. Applicant’s Admissions As To The State Of The Art .................................. 27
`
`A.
`
`“Physical” Layer, Wireless
`Networks, And Hybrid ARQ Methods ............................................... 27
`
`B.
`
`Coded Transport Blocks And Sequence Numbers ............................. 30
`
`XI. THE PRIOR ART DISCLOSES OR
`SUGGESTS ALL THE FEATURES OF
`CLAIMS 1-3 AND 9-10 OF THE CHALLENGED PATENT .................... 35
`
`A.
`
`Claim 1 ............................................................................................... 36
`
`1.
`
`2.
`
`Element 1.1 - Preamble ............................................................ 36
`
`Element 1.2 .............................................................................. 39
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`DECLARATION OF HARRY V. BIMS
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`Page 2
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`
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`Patent 7,075,917
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`a)
`
`b)
`
`c)
`
`“coded transport blocks . . .” ......................................... 39
`
`“storing coded transport blocks in a memory” .............. 43
`
`“a packet data unit which … can be
`identified by a packet data unit sequence number” ....... 46
`
`3.
`
`Element 1.3 .............................................................................. 48
`
`a) Modifying TR25.835 In View of Abrol ........................ 48
`
`b)
`
`c)
`
`d)
`
`“abbreviated sequence numbers …
`which can be shown unambiguously
`in a packet data unit sequence number” ........................ 52
`
`abbreviated sequence numbers “whose
`length depends on the maximum number
`of coded transport blocks to be stored” ......................... 53
`
`“a physical layer of a transmitting
`side … storing abbreviated sequence numbers” ............ 57
`
`4.
`
`5.
`
`6.
`
`Element 1.4 .............................................................................. 58
`
`Element 1.5 .............................................................................. 60
`
`Element 1.6 .............................................................................. 62
`
`Claim 2 ............................................................................................... 66
`
`Claim 3 ............................................................................................... 67
`
`Claim 9 ............................................................................................... 68
`
`Claim 10 ............................................................................................. 71
`
`B.
`
`C.
`
`D.
`
`E.
`
`XII. AVAILABILITY FOR CROSS-EXAMINATION ..................................... 74
`
`A.
`
`B.
`
`Right to Supplement ........................................................................... 74
`
`Signature ............................................................................................ 75
`
`
`
`
`
`DECLARATION OF HARRY V. BIMS
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`Page 3
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`
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`Patent 7,075,917
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`I, Harry V. Bims, do hereby declare as follows:
`
`II.
`
`INTRODUCTION AND ENGAGEMENT
`
`1.
`
`I have been retained as an independent expert on behalf of Microsoft
`
`Corporation in connection with the above-captioned Petition for Inter Partes
`
`Review (“IPR”) to provide my analyses and opinions on certain technical issues
`
`related to U.S. Patent No. 7,075,917 (hereinafter “the ’917 Patent”).
`
`2.
`
`I am being compensated at my usual and customary rate for the time I
`
`spent in connection with this IPR. My compensation is not affected by the outcome
`
`of this IPR.
`
`3.
`
`Specifically, I have been asked to provide my opinions regarding
`
`whether claims1-3 and 9-10 (each a “Challenged Claim” and collectively the
`
`“Challenged Claims”) of the ’917 Patent would have been obvious to a person
`
`having ordinary skill in the art (“POSITA”) as of October 11, 2000. It is my
`
`opinion that each Challenged Claim would have been obvious to a POSITA after
`
`reviewing the prior art discussed herein.
`
`II. BACKGROUND AND QUALIFICATIONS
`
`4.
`
`In formulating my opinions, I have relied upon my training,
`
`knowledge, and experience in the relevant art. A copy of my curriculum vitae is
`
`appended to this declaration as Appendix A and provides a description of my
`
`professional experience,
`
`including my academic and employment history,
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`DECLARATION OF HARRY V. BIMS
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`Page 4
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`
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`Patent 7,075,917
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`publications, conference participation, awards and honors, and more. The
`
`following is a brief summary of my relevant qualifications and professional
`
`experience.
`
`5.
`
` I have worked extensively in the field of digital communications. I
`
`have studied telecommunications and systems engineering since approximately
`
`1981. Further, I have over twenty-five (25) years of industry experience in
`
`telecommunications, including wireless communications. During this period, I have
`
`designed and implemented various products that involve technologies related to
`
`the subject matter of the ’917 Patent. In addition, I am a named inventor on twenty-
`
`two (22) U.S. patents relating to communications networks and mobile device
`
`applications, including automatic repeat request technology (“ARQ”).
`
`6.
`
`I received a BS in Computer and Systems Engineering from
`
`Rensselaer Polytechnic Institute in 1985. In 1988, I received an MS in Electrical
`
`Engineering from Stanford University. In 1993, I received a Ph.D. in Electrical
`
`Engineering, also from Stanford University. As a graduate student at Stanford
`
`University, I studied the principles of wired and wireless communications theory,
`
`including physical layer and medium access control layer protocols, data
`
`modulation and demodulation, signal processing, channel estimation, equalization,
`
`filtering, precoding, synchronization, and trellis coding. My graduate research
`
`focused on a method for improving the reliability of wireless communication links
`
`DECLARATION OF HARRY V. BIMS
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`Page 5
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`Patent 7,075,917
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`using advanced signal processing and error correction coding techniques. My
`
`Ph.D. thesis at Stanford addressed the application of trellis coding and precoding to
`
`a wireless communication system, and was titled “Trellis Coding for Multi-Level,
`
`Partial Response Continuous Phase Modulation with Precoding.”
`
`7.
`
`After receiving my Ph.D.
`
`in 1993, I worked for Glenayre
`
`Technologies—Wireless Access Group, where I worked on applications for
`
`wireless communication, including inventing, designing, and building a patented
`
`two-way pager test system and co-developing a wireless application protocol. The
`
`pager test system was used in early field trials of a nationwide narrowband PCS
`
`network being developed by SkyTel.
`
`8.
`
`In January of 1999, I launched a technology consulting company,
`
`Protocomm Systems, LLC. This company focuses on the development of advanced
`
`wireless communications protocols, and software implementations of those
`
`protocols, for wireless product companies. From 1999 to 2001, I was the Director
`
`of Software Architecture for Symmetry Communications Systems. In this position,
`
`I was responsible for improving the software architecture design and for the
`
`implementation of the company’s core SGSN (Serving GPRS Support Node) and
`
`GGSN (Gateway GPRS Support Node) products for the GPRS (Generic Packet
`
`Radio Services) market. I also held management responsibility for the Firmware,
`
`Hardware, Performance, and Systems Engineering Groups. Since the company was
`
`DECLARATION OF HARRY V. BIMS
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`Page 6
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`Patent 7,075,917
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`an OEM supplier to the marketplace, I provided management support of early field
`
`trials of the company products on a global basis.
`
`9.
`
`From March 2001 through December 2001, I was an Entrepreneur in
`
`Residence at Bay Partners. Bay Partners is an early-stage venture capital company
`
`located in Silicon Valley. My responsibilities there included reviewing business
`
`plans from prospective companies seeking funding, and creating a fundable
`
`business plan of my own for an innovative 802.11 wireless network. In late 2001, I
`
`developed a business plan for building network infrastructure for 802.11 enterprise
`
`networks, and founded AirFlow Networks, Inc. where I invented and received
`
`several patents on its core technology relating to the 802.11 specification.
`
`10.
`
`I have been a member of the Institute of Electrical and Electronics
`
`Engineers (“IEEE”) for more than 28 years. The IEEE is a U.S.-based,
`
`international organization of more than 400,000 engineers, and is the world’s
`
`largest technical professional society, with locations in more than 160 countries. I
`
`am currently a Senior Member of the IEEE, and serve in a variety of leadership
`
`roles, including as a reviewer and voter on draft amendments to technical standards
`
`such as 802.11 (WiFi), and 802.3 (Ethernet) prior to publication by their 802
`
`Committee. The 802 Committee is the standards development organization
`
`responsible for publishing protocol standards for Ethernet, WiFi, and a variety of
`
`other wired and wireless protocols that are in commercial use globally.
`
`DECLARATION OF HARRY V. BIMS
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`Page 7
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`Patent 7,075,917
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`11.
`
`I am currently an expert consultant for Protocomm Systems, LLC and
`
`Bims Laboratories, LLC, both of which I founded. The services I provide include
`
`consulting in IEEE 802 standards setting, protocol simulation and implementation,
`
`technology assessments, engineering lab testing, and product analysis.
`
`IIII. STANDARDS
`
`12. As part of my work in connection with this matter, I have studied the
`
`’917 Patent and the U.S. Patent and Trademark Office file history of the ’917
`
`Patent. I have also reviewed the prior art reference cited herein, as well as
`
`additional background references.
`
`13. My opinions are based on my years of education, research and
`
`experience, as well as my investigation and study of relevant materials. In forming
`
`my opinions, I have considered the materials referred to herein.
`
`14.
`
`I understand that an inventor is not entitled to a patent if his or her
`
`invention would have been obvious to a POSITA at the time the invention was
`
`made. The following standards govern the determination of whether a claim in a
`
`patent is obvious. I have applied these standards in my evaluation of whether the
`
`claims in the ’917 Patent would have been obvious.
`
`15. A claim in a patent is obvious when the differences between the
`
`subject matter sought to be patented and the prior art are such that the subject
`
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`matter as a whole would have been obvious at the time the invention was made to a
`
`person having ordinary skill in the art to which the subject matter pertains.
`
`16.
`
`I understand that an obviousness analysis requires an understanding of
`
`the scope and content of the prior art, any differences between the alleged
`
`invention and the prior art, and the level of ordinary skill in evaluating the
`
`pertinent art.
`
`17.
`
`I further understand that a claim would have been obvious if it unites
`
`old elements with no change to their respective functions, or alters prior art by
`
`mere substitution of one element for another known in the field and that
`
`combination yields predictable results. While it may be helpful to identify a reason
`
`for this combination, I understand that there is no rigid requirement of finding an
`
`express teaching, suggestion, or motivation to combine within the references.
`
`When a product is available, design incentives and other market forces can prompt
`
`variations of it, either in the same field or different one. If a POSITA can
`
`implement a predictable variation, obviousness likely bars its patentability. For the
`
`same reason, if a technique has been used to improve one device and a POSITA
`
`would recognize that it would improve similar devices in the same way, using the
`
`technique would have been obvious. I understand that a claim would have been
`
`obvious if common sense directs one to combine multiple prior art references or
`
`add missing features to reproduce the alleged invention recited in the claims.
`
`DECLARATION OF HARRY V. BIMS
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`18.
`
`In determining the differences between the invention covered by the
`
`patent claims and the prior art, I understand that the prior art references are not
`
`looked at in isolation. Rather, the claimed invention as a whole must be
`
`considered, and it must be determined whether or not it would have been obvious
`
`in light of all of the prior art.
`
`19.
`
`I further understand that certain factors may support or rebut the
`
`obviousness of a claim. I understand that such secondary considerations include,
`
`among other things, commercial success of the patented invention, skepticism of
`
`those having ordinary skill in the art at the time of invention, unexpected results of
`
`the invention, any long-felt but unsolved need in the art that was satisfied by the
`
`alleged invention, the failure of others to make the alleged invention, praise of the
`
`alleged invention by those having ordinary skill in the art, and copying of the
`
`alleged invention by others in the field. I understand that there must be a nexus-a
`
`connection-between any such secondary considerations and the alleged invention.
`
`20.
`
`I am not aware of any secondary considerations that would tend to
`
`rebut the obviousness of any claim of the ’917 Patent.
`
`21.
`
`I understand that in considering obviousness, it is important not to
`
`determine obviousness using the benefit of hindsight derived from the patent being
`
`considered.
`
`DECLARATION OF HARRY V. BIMS
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`Patent 7,075,917
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`IIV. MATERIALS CONSIDERED AND
`INFORMATION RELIED UPON REGARDING ’917 PATENT
`
`22.
`
`In preparing this declaration, I have reviewed the following materials,
`
`each of which is the sort of material that experts in my field would reasonably rely
`
`upon when forming their opinions. I also considered other background materials
`
`that are referenced in this declaration.
`
`Ex. No.(cid:1)
`
`Description
`
`1001
`
`U.S. Patent No. 7,075,917 (“the ’917 Patent”)
`
`1002
`
`File History of U.S. Patent No. 7,075,917
`
`1005
`
`1006
`
`1007
`
`1008
`
`3G TR 25.835 V1.0.0 (2000-09) - 3rd Generation Partnership
`Project; Technical Specification Group Radio Access Network;
`Report on Hybrid ARQ Type II/III (Release 2000)” (TR25.835)
`
`3G TR 25.835 V0.0.2 (2000-08) - 3rd Generation Partnership
`Project; Technical Specification Group Radio Access Network;
`Report on Hybrid ARQ Type II/III (Release 2000), TSG-RAN
`Working Group 2 (Radio L2 and Radio L3), Sophia Antipolis,
`France, 21–15 August 2000 (TR25.835 (V0.0.2))
`
`U.S. Patent No. 6,507,582 “Radio Link Protocol Enhancements
`For Dynamic Capacity Wireless Data Channels,” issued January
`14, 2003 (Abrol)
`
`3rd Generation Partnership Project (3GPP), Technical
`Specification Group (TSG) RAN; Working Group 2 (WG2);
`Radio Interface Protocol Architecture; TS 25.301 V3.2.0 (1999-
`10) (TS25.301)
`
`
`
`
`DECLARATION OF HARRY V. BIMS
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`Page 11
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`Patent 7,075,917
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`VV.
`
`SUMMARY
`
`23. The ’917 Patent generally discusses a system and method of detecting
`
`error-affected data
`
`transmitted over a wireless network and
`
`requesting
`
`retransmission using automatic repeat request technology (or “ARQ”). ’917 Patent
`
`(Ex. 1001) at 1:5-8, 1:64-67. The ’917 Patent itself admits that ARQ-type
`
`technology for detecting error-affected data transmitted over a wireless network
`
`and requesting retransmission was well known prior to the ’917 Patent. Id. at 1:9-
`
`37.
`
`24. The ’917 Patent purportedly discusses and claims two alleged
`
`improvements over such prior art systems, namely (1) detecting error-affected data
`
`at the physical layer of the receiving side (rather than waiting for this step to be
`
`performed at the radio link control, i.e., “RLC,” layer), and for sending positive
`
`and negative acknowledgments over a back channel directly between the physical
`
`layers of the receiver and transmitter (id. at 1:40-50, 2:28-44, 6:1-15); and (2)
`
`unambiguously identifying each packet data unit with an abbreviated sequence
`
`number (whose length depends on the maximum number of coded transport
`
`blocks). Id. at 2:45-54. However, and as shown below, such features were already
`
`well known in connection with ARQ systems and methods.
`
`25.
`
`In particular, TR25.835 (Ex. 1005), published September 13, 2000,
`
`discloses the first alleged improvement: detecting error-affected data at the
`
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`Patent 7,075,917
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`physical layer, rather than waiting for this step to be performed at the radio link
`
`control layer, and further discloses sending the positive or negative transmission
`
`acknowledgments along a direct (or back) channel between the physical layers of
`
`the receiver and transmitter. Notably, the ’917 patent contrasts its alleged invention
`
`with an earlier version of this same specification (Ex. 1006) that did not include
`
`these disclosures.
`
`26. The second alleged improvement of the ’917 patent, the use of an
`
`abbreviated or shortened sequence number for a coded transport block to
`
`unambiguously identify a packet data unit, was taught by Abrol (Ex. 1007) well
`
`before the alleged invention of the ’917 Patent. As discussed below, a POSITA
`
`would have naturally incorporated these teachings of Abrol into the ARQ
`
`implementation for wireless communication as disclosed by TR25.385, thus
`
`satisfying all limitations of the challenged claims.
`
`VVI. PERSON OF ORDINARY SKILL IN THE ART (“POSITA”)
`
`27. A person having ordinary skill in the art at the time of the ’917 Patent
`
`would have been a person having a bachelor’s degree in electrical engineering,
`
`computer science, or the equivalent and three years of experience working with
`
`wireless digital communication systems including the physical layer of such
`
`systems. Alternatively, the skilled person would have had a master’s degree in
`
`electrical engineering, computer science, or the equivalent with an emphasis on
`
`DECLARATION OF HARRY V. BIMS
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`Patent 7,075,917
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`wireless digital communication systems. Additional education may substitute for
`
`lesser experience and vice-versa.
`
`VVII. OVERVIEW OF THE CHALLENGED PATENT
`
`28. The ’917 Patent, titled “Wireless Network With A Data Exchange
`
`According To The ARQ Method” issued on July 11, 2006, from a U.S. patent
`
`application filed on October 9, 2001. The ’917 Patent alleges priority to German
`
`Patent Application No. 100 50 117, filed October 11, 2000. The ’917 Patent relates
`
`to “a wireless network comprising a radio network controller and a plurality of
`
`assigned terminals, which are each provided for exchanging data and which form a
`
`receiving and/or transmitting side.” Ex. 1001 at 1:6-9. It admits that such networks
`
`were known in the art:
`
`Such a wireless network is known from the document
`“3rd Generation Partnership Project; Technical
`Specification Group Radio Access Network; Report on
`Hybrid ARQ Type II/III (Release 2000), 3G TR 25.835
`V0.0.2, TSG-RAN Working Group 2 (Radio L2 and
`Radio L3), Sophia Antipolis, France, 21-15 August
`2000”. For the secured transmission of data a method is
`used here which is called the hybrid ARQ-method type II
`or III (ARQ=Automatic Repeat Request).
`
`Id. at 1:10-32 (emphasis added).
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`29.
`
`In such prior art ARQ systems, the ’917 Patent states that error-free
`
`reception messages or acknowledgements are only sent when the radio control link
`
`layer (or RLC) establishes that data packets are lacking, based on RLC sequence
`
`numbers associated with the data packets, even if the physical layer has already
`
`recognized that the packet data units are error-affected. The ’917 Patent states that
`
`this disadvantageously requires that the packet data units be buffered over a longer
`
`time interval.
`
`in said
`the error-free reception
`A message about
`document is sent only when the receiving RLC layer
`establishes on the basis of the so-called RLC sequence
`number that packet data units are lacking, even if the
`physical layer has already recognized the packet data
`unit as being error-affected. This means that the packet
`data unit is to be buffered over long time spaces until an
`incremental redundancy is requested and then, after a
`successful decoding, the reception may be acknowledged
`as correct, especially when the receiving side is the
`network side, while the physical layer and the RLC layer
`are usually located on different hardware components.
`
`Id. at 1:40-50 (emphasis added).
`
`30. The ’917 Patent purports to solve this alleged problem by providing
`
`“a wireless network in which error-affected data repeatedly to be transmitted
`
`according to the ARQ method of the type II or III are buffered for a shorter period
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`of time on average.” Id. at 1:64-67. The ’917 Patent discusses doing this more
`
`quickly in basically two ways.
`
`31. First, an abbreviated sequence number in lieu of the RLC sequence
`
`number is used for the transmission of the side information. The abbreviated
`
`sequence number supposedly “reduces the extent of information that is required to
`
`be additionally transmitted for managing the transport blocks and packet data units
`
`and simplifies the assignment of the received acknowledge command to the stored
`
`transport blocks.” Id. at 2:45-49.
`
`32. The ’917 Patent states:
`
`invention, an abbreviated
`the
`to
`According
`sequence number in lieu of the RLC sequence number
`is used for the transmission of the side information over
`the radio interface, the length of which abbreviated
`sequence number is clearly shorter than the RLC
`sequence number. This abbreviated sequence number is
`determined by the number of M coded transport blocks
`which, on the receiving side, can at most be buffered
`simultaneously, and consists of ┌1d M ┐ bits. (┌1d M┐
`means the logarithm to the base of 2 rounded to the next
`higher natural number).
`
`For this purpose, the transmitting physical layer
`generates an abbreviated sequence number from the
`
`DECLARATION OF HARRY V. BIMS
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`Patent 7,075,917
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`RLC sequence number
`locally
`information from the RLC layer.
`
`received as side
`
`Ex. 1001 at 5:36-50 (emphasis added).
`
`33. Second, it supposedly detects error-affected data at the physical layer,
`
`rather than waiting for this step to be performed at the radio link control layer, and
`
`sends acknowledgments over a back channel directly between the physical layers
`
`of the receiver and transmitter. Id. at 1:40-50, 2:28-44. The ’917 Patent states that a
`
`“fast back channel” inserted directly between the receiving physical layer and the
`
`sending physical layer (and not between the RLC layers) is provided to inform the
`
`transmitting side that a transport block has not been transmitted error free. The
`
`receiving physical layer determines whether the coded transport block is error-
`
`affected or not. If not, a positive acknowledge signal (or “ACK”) is sent to the
`
`sending physical layer over the back channel. If it is error-affected, a negative
`
`acknowledge command (or “NACK”) is sent to the sending physical layer over the
`
`back channel. The ’917 Patent states:
`
`To inform the transmitting side (transmitting terminal or
`radio network controller) of the fact that a transport block
`has not been transmitted error-free, according to the
`invention a fast back channel is provided which is
`inserted directly between the receiving physical layer
`and the sending physical layer and not between the RLC
`layers concerned. The back channel is built up if a
`
`DECLARATION OF HARRY V. BIMS
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`Page 17
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`Patent 7,075,917
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`terminal and the radio network controller have agreed
`that data are transmitted according to the hybrid ARQ
`method of type II or III. The receiving physical layer
`checks whether the coded transport block has been
`transmitted correctly. If it has, a positive acknowledge
`signal ACK is sent to the sending physical layer over the
`back channel. Conversely, if the coded transport block
`has not been received error-free, a negative acknowledge
`command NACK is sent to the sending physical layer.
`
`Ex. 1001 at 6:1-15 (emphasis added).
`
`34. As outlined above, and as shown in detail below, these purported new
`
`features were known in the prior art, and it would have been obvious to a person
`
`having ordinary skill in the art (POSITA) to combine them in the manner of the
`
`claimed invention.
`
`A.
`
`Prosecution History
`
`35. The Application that resulted in the ’917 Patent was filed on October
`
`9, 2001, as U.S. App. No. 09/973,312. (Ex. 1001.) The ’917 Patent purports to
`
`claim priority to German Patent Application No. 100 50 117, filed October 11,
`
`2000.
`
`36. On September 21, 2005, the Examiner issued a non-final rejection,
`
`objecting to informalities and requesting clarification of dependent claims 4-8, but
`
`DECLARATION OF HARRY V. BIMS
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`Page 18
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`
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`Patent 7,075,917
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`citing no prior art directly and finding allowable subject matter in claims 1-3, 9,
`
`and 10. ’917 Patent File History (Ex. 1002) at 61.
`
`37.
`
`In response, the Applicant amended the claims to address the
`
`Examiner’s concerns. Id. at pp. 69-73. The Examiner subsequently issued a notice
`
`of allowance for claims 1-10, issuing as the ’917 Patent on July 11, 2006. Id. at p.
`
`81.
`
`VVIII. MEANING OF CERTAIN CLAIM TERMS
`
`38. For inter partes review, it is my understanding that claim terms should
`
`be given the ordinary meaning that the terms would have to a person of ordinary
`
`skill in the art on the earliest effective filing date, in view of the specification and
`
`file history. Unless otherwise expressly discussed, I have applied the plain and
`
`ordinary meaning of all claim terms below. I have been asked to apply the
`
`following constructions in offering my opinions.
`
`39. The phrase “back channel” should be construed as a “channel which is
`
`inserted directly between the receiving physical layer and the sending (or
`
`transmitting) physical layer (and not between the RLC layers) for informing the
`
`transmitting side (transmitting terminal or radio network controller) of the fact that
`
`a transport block has not been transmitted error-free.” The ’917 Patent provides:
`
`To inform the transmitting side (transmitting terminal or
`radio network controller) of the fact that a transport block
`has not been transmitted error-free, according to the
`
`DECLARATION OF HARRY V. BIMS
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`Page 19
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`
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`Patent 7,075,917
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`invention a fast back channel is provided which is
`inserted directly between the receiving physical layer
`and the sending physical layer and not between the RLC
`layers concerned. The back channel is built up if a
`terminal and the radio network controller have agreed
`that data are transmitted according to the hybrid ARQ
`method of type II or III. The receiving physical layer
`checks whether the coded transport block has been
`transmitted correctly. If it has, a positive acknowledge
`signal ACK is sent to the sending physical layer over the
`back channel. Conversely, if the coded transport block
`has not been received error-free, a negative acknowledge
`command NACK is sent to the sending physical layer.
`
`Ex. 1001 at 6:1-15 (emphasis added).
`
`IIX. SPECIFIC PRIOR ART DESCRIPTIONS AND TEACHINGS
`
`A. TR25.835
`
`40. TR25.835 is directed to a wireless network comprising a radio
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`network controller and a plurality of assigned terminals, which are each provided
`
`for exchanging data and which form a receiving and/or transmitting side, as
`
`essentially admitted to by the ’917 Parent. (Ex. 1001 at 1:10-18.) TR25.835 is
`
`specifically directed to Hybrid ARQ Type II/III technical solutions. (TR25.835 at
`
`pp. 8 and 9.) In particular, TR25.835 describes alternative approaches to Hybrid
`
`ARQ implementations. One of those options “uses hybrid ARQ type II/III
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`DECLARATION OF HARRY V. BIMS
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`Page 20
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`
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`Patent 7,075,917
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`retransmissions at Layer 1” [i.e., the physical layer] as explained in more detail in
`
`Chapter 7 of TR25.835 (Id. at p. 9.) TR25.835 states that this option adds “fast
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`hybrid ARQ II/III functionality” (or “FHARQ” or “fast HARQ”) to the physical
`
`layer. (TR25.835 at p. 9.
`
`41. Chapter 7 of TR25.835 was not contained in the earlier version of
`
`TR25.835 (V0.0.2) that is discussed in the specification of the ’917 Patent (Ex.
`
`1001, 1:9-62; 5:13-35) and which was disclosed in an IDS submitted during the
`
`prosecution of the ’917 Patent (Ex. 1002 at pp. 52-53). Thus, the Examiner did not
`
`have this information when examining the application.
`
`42. Chapter 7 discusses the structure, function, and advantages of the
`
`HARQ option. TR25.835 at pp. 25-28. Among other things, the HARQ option of
`
`Chapter 7 discloses and suggests several features that are relevant to the ’917
`
`Patent’s claims, including but not limited to:
`
`(1)
`
`the physical layer of the receiving side testing whether the coded
`
`transport blocks were correctly received (without waiting for such testing or
`
`acknowledgement from the radio link control layer or “RLC” layer);
`
`(2)
`
`the physical layer sending over a back channel (or a channel directly
`
`between the physical layers of the transmitting and receiving sides) a
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`positive acknowledgment when there is a correct reception of the coded
`
`transport blocks (i.e., data and CRC or redundancy information) and a
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`DECLARATION OF HARRY V. BIMS
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`Page 21
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`
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`Patent 7,075,917
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`negative acknowledgment when there is an error-affected reception (without
`
`waiting for such testing or acknowledgement from the RLC layer); and
`
`(3) generating a sequence number at the physical layer.
`
`43. Specifically, for instance, Chapter 7 of TR25.835 states:
`
`To perform the fast HARQ operation the physical layer
`requires some additional side
`information, e.g.
`FHARQ sequence number, and redundancy version.
`The selection of these parameters should be under the
`control of MAC but the actual parameter values are
`generated at L1. The physical layer can encode the
`data and the side information separately, and map them
`on one, or possibly even different physical channels. At
`the receiver the buffering and recombining of the data is
`performed.
`
`Id. at p. 25 (emphases added).
`
`44. Further, for example, TR25.835 explains how the physical layers are
`
`used.
`
`7.2 Usage of transport channels and physical
`channels
`
`If fast HARQ is operated as a dual-channel model, the
`side information must be available very quickly since the
`retransmission interval is only one frame. The receiver
`reads the sequence number and redundancy version after
`
`DECLARATION OF HARRY V. BIMS
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`Page 22
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`
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`Patent 7,075,917
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`which the packet is decoded. The integrity of the packet
`is checked and an acknowledgement is sent in the current
`uplink frame. Fast HARQ is planned to be employed on
`DSCH. Side information and sequence number are
`added by Layer 1 to facilitate fast decoding at the
`receiver end.
`
`* * * *
`
`7.3 Services provided by the physical layer
`
`7.3.1 Functions of Layer 1
`
`The main functions of the physical layer are listed in [1]
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