`571-272-7822
`
`Paper 41
`Date: January 18, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`DISH NETWORK L.L.C.,
`DISH TECHNOLOGIES L.L.C., and
`SLING TV L.L.C.,
`
`v.
`
`SOUND VIEW INNOVATIONS, LLC,
`Patent Owner.
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`
`
`
`
`
`
`
`
`Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and
`JOHN A. HUDALLA, Administrative Patent Judges.
`
`STEPHENS, Administrative Patent Judge.
`
`
`
`JUDGMENT
`Final Written Decision
`Determining No Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`INTRODUCTION
`
`I.
`
`A. Background and Procedural History
`
`DISH Network L.L.C., DISH Technologies L.L.C., and Sling TV
`
`L.L.C. (collectively, “Petitioner”) filed a petition for inter partes review
`
`(Paper 2 (“Pet.” or “Petition”)) challenging claim 13 of U.S. Patent
`
`
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`6,725,456 B1 (Ex. 1001 (“’456 Patent”)). Sound View Innovations, LLC
`
`(“Patent Owner”) timely filed a Preliminary Response (Paper 8 (“Prelim.
`
`Resp.”)). On the record before us, in our Decision to Institute, we
`
`determined Petitioner had established a reasonable likelihood that the relied
`
`upon references taught claim 13, the only challenged claim (Paper 13,
`
`“Dec.”). More specifically, based on our review of the record, we concluded
`
`that Petitioner was reasonably likely to prevail in demonstrating claim 13 is
`
`not patentable (id.). Thus, we instituted inter partes review of claim 13.
`
`Patent Owner then filed a response (Paper 22 (“PO Resp.”); Petitioner
`
`filed a reply to Patent Owner’s response (Paper 28 (“Pet. Reply”); and Patent
`
`Owner filed a sur-reply (Paper 35 (“PO Sur-reply”)).
`
`An Oral Hearing was held October 19, 2021, a transcript of which has
`
`been entered (Paper 40 (“Tr.”)).
`
`B. Real Parties in Interest
`
` Patent Owner states that Sound View Innovations, LLC and Sound
`
`View Innovation Holdings, LLC are the real-parties-in-interest (Paper 3, 1).
`
`Petitioner states DISH Network L.L.C., DISH Technologies L.L.C.,
`
`Sling TV L.L.C., Sling TV Holding L.L.C., DISH Network Corporation, and
`
`Cloudera, Inc. are the real parties-in-interest (Pet. xiii; Paper 6, 1).
`
`C. Related Matters
`
`As required by 37 C.F.R. § 42.8(b)(2), both parties identify various
`
`matters related to the ’456 Patent:
`
`Ex parte reexamination Control No. 90/014,560 requested by
`
`Unified Patents, LLC (Notice of Intent to Issue Ex Parte
`
`Reexamination Certificate confirming patentability of claim 13 and
`
`terminating the reexamination, October 1, 2021)
`
`(Pet. xiii; Paper 3, 1–2; Paper 24, 1; Paper 36, 1);
`
`2
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`Sound View Innovations, LLC v. DISH Network LLC et al., No.
`
`1-19-cv-03707 (D. Colo.); and
`
`Sound View Innovations, LLC v. Sling TV LLC, No. 1-19-cv-
`
`03709 (D. Colo).
`
`
`
`Petitioner and Patent Owner set forth the following former
`
`proceedings involve the ’456 Patent:
`
`Sound View Innovations, LLC v. Walmart Inc. et al., No. 1-19-
`
`cv-00660 (D. Del.) (terminated Aug. 21, 2020);
`
`Walmart Inc. et al. v. Sound View Innovations, LLC, IPR2020-
`
`00818 (PTAB) (terminated Aug. 25, 2020, Paper 9);
`
`Sound View Innovations, LLC v. Delta Air Lines, Inc., No. 1-
`
`19-cv00659 (D. Del.) (terminated Nov. 18, 2020, Dkt. No. 166);
`
`Cigna Corp. et al. v. Sound View Innovations, IPR2020-00924
`
`(PTAB) (Paper 11) (terminated Nov. 24, 2020); and
`
`Sound View Innovations, LLC v. Cigna Corp. et al., No. 1-19-
`
`cv-00964 (D. Del.) (terminated Nov. 18, 2020, Dkt. No. 166)
`
`(Pet. xiii; Paper 3, 1–2; Paper 24, 1–2).
`
`D. The ’456 Patent (Ex. 1001)
`
`The ’456 Patent, titled “Methods and Apparatus for Ensuring Quality
`
`of Service in an Operating System,” issued April 20, 2004 (Ex. 1001, codes
`
`(45), (54)). The ’456 Patent describes “techniques for ensuring a desired
`
`quality of service (QoS) for an application running on an operating system”
`
`(Ex. 1001, 3:14–16, 4:25–26). In particular, the ’456 Patent describes
`
`techniques to allocate and reserve computing resources, e.g., central
`
`processing unit (CPU), memory, and disk or network bandwidth between
`
`competing requests for those resources, in order to guarantee access to those
`
`resources (see id. at 1:14–20, 4:61–62).
`
`3
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`The ’456 Patent further discloses that Figure 1 “illustrates the manner
`
`in which requests are tagged with a queue identifier” (id. at 4:3–4):
`
`
`
`As shown in Figure 1, “every request arriving at a given one of the . . .
`
`schedulers must specify a queue, and the given scheduler apportions
`
`resources to each queue based on the queue’s share of that resource”
`
`(Ex. 1001, 5:1–4). “The particular request 10 includes the request
`
`information 12 along with an identifier 14 of the particular queue to which
`
`the request will be directed” (id. at 5:4–7, Fig. 1). Figure 1 illustrates four
`
`different queues: q1, q2, q3, and q4 (id. at 5:7–8, Fig. 1). “A scheduler 16
`
`submits the requests from the queues 15 to a resource 18 according to the
`
`queues’ shares of that resource” (id. at 5:8–10, Fig. 1).
`
`
`
`E. Challenged Claim
`
`Challenged claim 13 is independent and reproduced below.
`
`13. A method of ensuring a particular quality of service for an
`application in a computer system, the method comprising the
`steps of:
`
`utilizing an application programming interface of an
`operating system to establish one or more quality of service
`guarantees that correspond to a reference to an object; and
`
`4
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`providing a particular quality of service to a request in
`accordance with the one or more quality of service guarantees
`that correspond to one or more object references used in the
`request;
`
`wherein the quality of service guarantees comprise
`resource reservations, each specifying a portion of a resource set
`aside for exclusive use by one or more processes;
`
`reservations are organized
`resource
`the
`wherein
`hierarchically such that each resource reservation r may have at
`most one parent and one or more siblings and children, and
`associated with r is a weight that specifies how r shares the
`resources of r’s parent with r’s siblings; and
`
`wherein associated with each resource reservation r is a
`minimum amount of resources that r receives from its parent p,
`such that the minimum amount of resources associated with p is
`at least equal to the sum of the minimum amount of resources
`associated with each of p’s children
`
`(Ex. 1001, 14:61–15:20).
`
`
`
`Reference
`
`F. References Relied Upon
`
`Durand, US 6,338,072 B1, issued Jan. 8, 2002 (hereinafter,
`“Durand”).
`
`Pawan Goyal et al., A Hierarchical CPU Scheduler for
`Multimedia Operating Systems, USENIX 2nd Symposium
`on Operating Systems Design and Implementation (1996)
`(hereinafter, “Goyal”).
`
`Jon C. R. Bennett and Hui Zhang, Hierarchical Packet Fair
`Queueing Algorithms, IEEE/ACM Transactions on
`Networking (Vol. 5, No. 5 1997) (hereinafter, “Bennett”).
`
`(Pet. 1).
`
`Exhibit
`
`1006
`
`1007
`
`1008
`
`Petitioner also relies on the Declaration and the Reply Declaration of
`
`Dr. Kevin Negus (Exs. 1002, 1090).
`
`5
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`
`
`Patent Owner relies on the Declaration of Dr. Mark T. Jones
`
`(Ex. 2004).
`
`G. Prior Art and Asserted Grounds
`
`Petitioner asserts that claim 13 is unpatentable on the following
`
`grounds:
`
`Claim(s) Challenged
`13
`13
`
`35 U.S.C. §
`103
`103
`
`Reference(s)/Basis
`Durand, Bennett
`Goyal, Bennett
`
`(Pet. 1).
`
`II. ANALYSIS
`
`A. Legal Standards
`
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`
`differences between the claimed subject matter and the prior art are such that
`
`the subject 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 said
`
`subject matter pertains (KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`
`(2007)). The question of obviousness is resolved on the basis of underlying
`
`factual determinations including (1) the scope and content of the prior art;
`
`(2) any differences between the claimed subject matter and the prior art; (3)
`
`the level of ordinary skill in the art; and (4) any secondary considerations, if
`
`in evidence (Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966)).
`
`
`
`B. Level of Ordinary Skill in the Art
`
`The level of skill in the art is a factual determination that provides a
`
`primary guarantee of objectivity in an obviousness analysis (Al-Site Corp. v.
`
`VSI Int’l Inc., 174 F.3d 1308, 1324 (Fed. Cir. 1999) (citing Graham v. John
`
`6
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`Deere Co., 383 U.S. 1, 17–18 (1966); Ryko Mfg. Co. v. Nu-Star, Inc., 950
`
`F.2d 714, 718 (Fed. Cir. 1991))).
`
`Petitioner asserts that a person of ordinary skill in the art (“POSITA”)
`
`pertaining to the ’456 Patent at the relevant time would have been
`someone with at least a Bachelor of Science in at least one of
`Electrical Engineering, Computer Engineering, Computer
`Science, or a related field, as well as three to four years of
`experience in implementing resource reservations for at least
`UNIX-based computing systems, or a Master’s degree in
`Electrical Engineering, or an equivalent field, as well as two
`years of experience in implementing resource reservations for at
`least UNIX-based computing systems.
`
`(Pet. 7–8 (citing Ex. 1002 ¶¶ 27–31)).
`
`
`
`Patent Owner does not contest Petitioner’s assertion (see generally PO
`
`Resp.).
`
`The prior art itself demonstrates the level of ordinary skill in the art at
`
`the time of the invention (see Okajima v. Bourdeau, 261 F.3d 1350, 1355
`
`(Fed. Cir. 2001) (explaining that specific findings regarding ordinary skill
`
`level are not required “where the prior art itself reflects an appropriate level
`
`and a need for testimony is not shown” (quoting Litton Indus. Prods., Inc. v.
`
`Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985))).
`
`We regard Petitioner’s formulation of the level of skill as consistent
`
`with the prior art before us (see Okajima 261 F.3d 1355). Based on the
`
`present record, including the disclosure in the ’456 Patent, we apply
`
`Petitioner’s definition of the level of ordinary skill in the art. We determine
`
`Petitioner’s asserted level of skill comports with the qualifications a person
`
`would have needed to understand and implement the teachings of the ’456
`
`Patent and the prior art of record (cf. Okajima, 261 F.3d at 1355 (the prior
`
`art itself may reflect an appropriate level of skill in the art)). As we
`
`7
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`determine the four instances of “at least” in Petitioner’s formulation
`
`introduce ambiguity, we remove these terms from our definition.
`
`Accordingly, we determine an ordinarily skilled artisan would have a
`
`Bachelor of Science in one of Electrical Engineering, Computer
`
`Engineering, Computer Science, or a related field, as well as three to four
`
`years of experience in implementing resource reservations for UNIX-based
`
`computing systems, or a Master’s degree in Electrical Engineering, or an
`
`equivalent field, as well as two years of experience in implementing
`
`resource reservations for UNIX-based computing systems.
`
`
`
`C. Claim Construction
`
`We construe claim terms according to the standard set forth in Phillips
`
`v. AWH Corp., 415 F.3d 1303, 1312–17 (Fed. Cir. 2005) (en banc)
`
`(37 C.F.R. § 42.100(b) (2019)). Under Phillips, claim terms are accorded
`
`“their ordinary and customary meaning” (Phillips, 415 F.3d at 1312).
`
`“[T]he ordinary and customary meaning of a claim term is the meaning that
`
`the term would have to a person of ordinary skill in the art in question at the
`
`time of the invention” (id. at 1313). “Importantly, the 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 the disputed term appears, but in the context of the
`
`entire patent, including the specification” (id.). An inventor may rebut that
`
`presumption by providing a definition of the term in the specification with
`
`reasonable clarity, deliberateness, and precision (In re Paulsen, 30 F.3d
`
`1475, 1480 (Fed. Cir. 1994)). In the absence of such a definition, limitations
`
`are not to be read from the specification into the claims (In re Van Geuns,
`
`988 F.2d 1181, 1184 (Fed. Cir. 1993)).
`
`8
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`We determine that it is not necessary to provide an express
`
`interpretation of any terms of claim 13 (Vivid Techs., Inc. v. Am. Sci. &
`
`Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999) (only terms that are in
`
`controversy need to be construed, and only to the extent necessary to resolve
`
`the controversy); Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co.,
`
`868 F.3d 1013, 1017 (Fed. Cir. 2017) (applying Vivid Techs. in the context
`
`of an inter partes review)).
`
`
`
`D. Asserted Obviousness over Durand and Bennett
`
`Petitioner contends the combination of Durand and Bennett renders
`
`claim 13 obvious (Pet. 33–57).
`
`1. References
`
`a) Durand (Ex. 1006)
`
`Durand is a patent titled “Device and Process for Dynamically
`
`Controlling the Allocation of Resources in a Data Processing System”
`
`(Ex. 1006, code (54)). Durand describes a manner of “controlling the
`
`allocation of resources in a data processing system” by “modify[ing] the
`
`priority associated with the jobs in progress,” i.e., executed computer
`
`processes or programs (id. at 1:8–10, 1:65–2:1, 3:4–6). For example,
`
`“[m]ore or fewer resources should be allocated to [a process] as a function of
`
`[its] importance and as a function of the load on the system” (id. at 4:64–66).
`
`Durand uses “dimensions” to allocate resources and modify the
`
`priority of processes (see id. at 4:64–4:67). “A dimension is a set of
`
`currently executed processes which have the same importance” (id. at 4:67–
`
`5:3). For example, “processes [that] are started by the normal users directly
`
`in the background . . . belong to the dimension ‘MISC’” and “processes
`
`[that] are started by means of a script . . . belong to [another] dimension
`
`9
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`‘BATCH’” (id. at 5:3–12). Further, “[w]hen [a] process has an ancestor
`
`whose command name and user are associated with a dimension, the process
`
`belongs to this dimension” (id. at 5:35–40).
`
`Dimensions have respective “relative weight[s]” which are “used to
`
`manage the priority of the processes comprising the dimension” (id. at 5:16–
`
`19). As such, the “priority of all the processes belonging to a dimension will
`
`vary accordingly” and “processes controlled by the dimensions will always
`
`have resources allocated as a function of their relative weight” (id. at 5:19–
`
`26, 5:40–42). In an exemplary system with dimensions MYDIM and
`
`BATCH, MYDIM can be assigned a relative weight of 2 and BATCH can
`
`be assigned a relative weight of 1 (id. at 6:21–27). Based on those
`
`respective relative weights, “[w]hen the system is heavily loaded,” and “the
`
`processes of the dimensions ‘MYDIM’ and ‘BATCH’ are using 90% of the
`
`central processing unit (CPU), the priority of the processes of the dimension
`
`‘MYDIM’ will be modified in one direction or another so that the
`
`percentage of CPU used by the dimension ‘MYDIM’ will be closer to 60%”
`
`(id. at 6:25–33).
`
`Additionally, Durand “allow[s] the pre-allocation and dynamic control
`
`of resources” via “an application program interface 34 [that] communicates
`
`with [local resource manager] demon 3” (id. at 3:65–4:2). The local
`
`resource manager “application program interface 34 is associated with a
`
`graphical user interface ‘LRM gui’ 32” (id. at 6:34–36). The LRM gui
`
`associated with the application program interface allows users “to define the
`
`name of [a] dimension” and “to define the relative weight” of the dimension
`
`(id. at 7:32–37, Fig. 2E).
`
`10
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`b) Bennett (Ex. 1008)
`
`Bennett is a paper titled “Hierarchical Packet Fair Queueing
`
`Algorithms” and authored by Jon C. R. Bennett and Hui Zhang (Ex. 1008,
`
`675). Bennett describes that “[f]uture integrated services networks will
`
`support multiple service classes that include real-time service, best-effort
`
`service, and others” (id.). For example, “where there are 11 agencies
`
`sharing the output link,” i.e., a computer network resource, an
`
`“administrative policy dictates that Agency A1 gets at least 50% of the link
`
`bandwidth whenever it has traffic” (id. at 675 (col. 1)). Addressing that
`
`goal, Bennett describes an “idealized Hierarchical Generalized Processor
`
`Sharing (H-GPS) model to simultaneously support guaranteed real-time,
`
`rate-adaptive best-effort, and controlled link-sharing services” (id.).
`
`
`
`2. Analysis of Independent Clam 13
`
`Our disposition of this ground turns on certain inconsistencies in
`
`Petitioner’s mapping of claim 13 to the prior art. We focus our analysis on
`
`the limitations of claim 13 for which we find these inconsistencies.
`
`Petitioner relies on Durand to teach “utilizing an application
`
`programming interface of an operating system to establish one or more
`
`quality of service guarantees that correspond to a reference to an object”
`
`(Pet. 36–41 (citing Ex. 1002 ¶¶ 230–241; Ex. 1006, 2:54–64, 3:41–4:2,
`
`5:12–21, 6:34–48, 7:9–22, 7:25–37, 7:50–52, 7:61–64, Figs. 1, 2D–2E,
`
`2G)).
`
`Petitioner additionally relies on Durand to teach “providing a
`
`particular quality of service to a request in accordance with the one or more
`
`quality of service guarantees that correspond to one or more object
`
`references used in the request” (id. at 41–44 (citing Ex. 1002 ¶¶ 244–256;
`
`11
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`Ex. 1006, 5:57–5:62, 6:14–6:33, 7:65–8:5, Fig. 2H; Ex. 1009, 63, 93)).
`
`Petitioner further asserts, “Bennett discloses providing a particular QoS to
`
`traffic streams associated with a service share (a ‘weight’) where the traffic
`
`streams receive service ‘in proportion to their relative service shares’”
`
`(Pet. 44 (citing Ex. 1002 ¶¶ 258–259; Ex. 1008, 675)).
`
`Patent Owner points out the claim recites “‘[QoS] guarantees that
`
`correspond to a reference to an object’ are ‘establish[ed]’ [and] . . . a
`
`particular quality of service is ‘provide[ed]’ ‘to a request’ ‘in accordance’
`
`with the QoS guarantee(s)” (PO Resp. 25). Moreover, Patent Owner argues,
`
`the claim “requires that the ‘request’ be, not just any request, but, rather, one
`
`in which ‘one or more object references [is] used in the request” (id. at 27–
`
`28). Thus, Patent Owner contends, the claim “requires that a ‘particular
`
`quality of service’ be ‘provid[ed]’ ‘to a request’ . . . however, Petitioner fails
`
`to identify providing a ‘particular quality of service to a request’” (id.).
`
`Patent Owner focuses on the “plain meaning” of the claim limitations: “the
`
`plain meaning [of the limitation,] in accordance with the specification, is that
`
`a particular quality of service be ‘provid[ed]’ ‘to a request,’ not ‘in response
`
`to a request” (id. at 28 (citing Ex. 2004 ¶¶ 116–121)).
`
`According to Patent Owner, Petitioner is “essentially” reading the
`
`“providing” limitation “out of the claim” (id. at 28, 30). More specifically,
`
`Patent Owner argues, Petitioner is collapsing the “utilizing” and “providing”
`
`limitations “into a single limitation[,] rel[ying] on the exact same proof for
`
`both”: Durand’s relative weights by dimension (id. at 30 (citing Ex. 2004
`
`¶¶ 122–124; Pet. 44)). “Petitioner, however, never attempts to identify what
`
`the ‘request’ is or demonstrate that it is being ‘provide[d]’ a ‘particular
`
`quality of service’” (id. at 31).
`
`12
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`Patent Owner also argues that Petitioner fails to show that Durand’s
`
`relative weights (i.e., the alleged “quality of service guarantee”) correspond
`
`to either Durand’s file descriptors or process identifier (PID) value (i.e., the
`
`alleged “reference to an object”) in accordance with the recitation in
`
`claim 13 (PO Resp. 34–42; PO Sur-reply 7–8). Patent Owner disputes that a
`
`“file descriptor” is even disclosed by Durand and that Petitioner’s
`
`contentions relative to any such file descriptor are based on conclusory
`
`expert testimony (PO Resp. 36–38). Patent Owner also argues that PIDs are
`
`associated with a particular command (as shown in Durand’s Figure 2G) and
`
`not relative weights (as shown in Durand’s Figures 2E and 2H) (PO Resp.
`
`38–42 (reproducing Ex. 1006, Figs. 2E, 2G, 2H) (citing Ex. 2004 ¶¶ 134–
`
`139)). Instead, Patent Owner argues that “Durand’s weights correspond to
`
`the dimension to which they apply” (PO Sur-reply 8 (reproducing Ex. 1006,
`
`Fig. 2H)).
`
`For the reasons explained below, we agree with Patent Owner.
`
`Petitioner contends,
`
`Durand discloses an LRM API in a UNIX system (“utilizing an
`application programming interface of an operating system”) that
`adjusts execution of priorities of jobs within dimensions based
`upon relative weights of the dimensions (thereby “establish[ing]
`one or more quality of service guarantees”) where the guarantees
`correspond to a relative weight for each dimension in a file
`identified by using a file descriptor and/or a process indirectly
`identified by a UNIX process identifier or PID field value
`(“correspond to a reference to an object”)
`
`(Pet. 40–41 (citing Ex. 1002 ¶¶ 237–241; Pet. 8–9)). Thus, Petitioner
`
`indicates Durand’s relative weight for each dimension in a file teaches the
`
`recited “object” and “a file descriptor and/or a process indirectly identified
`
`13
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`by a UNIX process identifier or PID field value” teaches the recited
`
`“reference.”
`
`Petitioner also relies on Durand to teach “providing a particular
`
`quality of service to a request in accordance with the one or more quality of
`
`service guarantees that correspond to one or more object references used in
`
`the request,” as recited in claim 13 (Pet. 41–44). In particular, Petitioner
`
`asserts Durand’s two values: “Pdc” (“the current percentage of resources
`
`used by all the processes belonging to the dimension”) and “Pde” (“the
`
`percentage of resources which should be used by the dimension”) are “used
`
`to provide quality of service to requests” (Pet. 41 (citing Ex. 1002 ¶ 246;
`
`Ex. 1006, 5:57–62)). Petitioner further asserts, “Durand modifies the NICE
`
`parameter [– a parameter associated with processes that is ‘inversely
`
`proportional to the priority’ of each process –] by comparing the difference
`
`between the Pdc and Pde values with a predetermined threshold” (id. at 42
`
`(Ex. 1002 ¶ 250; Ex. 1006, 6:14–21)).
`
`Petitioner points to Durand’s example as support for modifying of the
`
`NICE parameter:
`
`When the value “NICE” increases, the priority decreases. For
`example, in a system having a dimension “MYDIM,” the latter
`can be defined in the system with a relative weight of 2, a relative
`weight of 1 having been declared for the dimension “BATCH.”
`When the system is heavily loaded, the priorities of the processes
`belonging to the dimension “MYDIM” will be modified in the
`following way:
`
`If the processes of the dimensions “MYDIM’ and
`“BATCH are using 90% of the central processing unit (CPU),
`the priority of the processes of the dimension “MYDIM will be
`modified in one direction or another so that the percentage of
`CPU used by the dimension “MYDIM” will be closer to 60%
`
` (Ex. 1006, 6:20–33).
`
`14
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`Next Petitioner asserts Durand “discloses an exemplary display
`
`illustrating ‘the management of the relative weights for each dimension’ that
`
`allows ‘the user to enter, in each box associated with each dimension, a new
`
`relative weight value and to display, in the box showing the current
`
`percentage, the modification of the current percentage” (id. at 42 (citing
`
`Ex. 1002 ¶ 253; Ex. 1006, 7:65–8:5, Fig. 2H)). Petitioner provides an
`
`annotated version of Durand’s Figure 2H, which is reproduced below.
`
`
`
`(Ex. 1006, Fig. 2H (annotated by Petitioner); Pet. 42; Pet. Reply 12).
`
`Figure 2H of Durand depicts a display window for managing relative
`
`weights by dimension (Ex. 1006, 7:65–8:2). In the display window of
`
`Figure 2H, “the user [may] enter, in each box associated with each
`
`dimension, a new relative weight value and to display, in the box showing
`
`the current percentage, the modification of the current percentage”
`
`(Ex. 1006, 8:2–5, Fig. 2H). Petitioner then contends that “Durand discloses
`
`15
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`a user can request a quality of service by modifying the relative weights for
`
`each dimension, using the Pdc and Pde values to adjust the NICE parameter
`
`for processes within each dimension,” and further, that “Durand’s UNIX-
`
`based system guarantees access by allocating a particular percentage of
`
`resources, for example, the ‘percentage of CPU,’ for use by the dimensions”
`
`(Pet. 43 (citing Ex. 1002 ¶ 254; Ex. 1006, 7:65–8:5, Fig. 2H)). Without
`
`providing any supporting citations to Durand, Dr. Negus states that
`
`Durand discloses that a “user” can “enter” (or “request”)
`“values” for “relative weights for each dimension” such that by
`computing the parameters “𝑷𝒅𝒄” and “𝑷𝒅𝒆” and adjusting the
`NICE” parameter for “processes” within each “dimension”, then
`Durand’s UNIX-based system causes a particular “current
`percentage” of “resources” such as “percentage of CPU” to be
`“used by the dimension”, or hence discloses “providing a
`particular quality of service” (the particular “current
`percentage” of “resources” such as “percentage of CPU” to be
`“used by the dimensions”) to a “request in accordance with the
`one or more quality of service guarantees” (the overall set of
`“values” for “relative weights for each dimension”)
`
`(Ex. 1002 ¶ 254).
`
`Thus, Petitioner contends the request is the modification of the
`
`relative weights for each dimension.
`
`
`
`Petitioner further asserts, “Durand discloses the values of the relative
`
`weights for each dimension are stored in a file, which necessarily also
`
`discloses the use of ‘a file descriptor as an argument to specify the file’”
`
`(Pet. 43–44 (citing Ex. 1002 ¶ 255; Pet. 36–41)). Thus, this storing of the
`
`relative weight occurs after a user modifies the relative weight for the
`
`dimension.
`
`Based on this disclosure, Petitioner asserts “Durand discloses
`
`adjusting the NICE parameter for processes within dimensions based upon
`
`16
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`the user-defined relative weights of the dimensions” which teaches
`
`“providing a particular quality of service to a request in accordance with the
`
`one or more quality of service guarantees” (Pet. 44). Petitioner further
`
`asserts Durand discloses these “guarantees correspond to relative weights
`
`stored in files identified using respective file descriptors and/or processes
`
`indirectly identified via a UNIX process identifier or PID field value” and,
`
`thus, Durand teaches the quality of service guarantees “correspond to one or
`
`more object references used in the request” (id.).
`
`The request set forth by Petitioner, therefore, is Durand’s “user-
`
`defined relative weights of the dimensions” according to Petitioner’s
`
`assertion (Pet. 44). However, input to this “user-defined weight of the
`
`dimension” does not use what Petitioner identifies as the “one or more
`
`object references” –– “the file descriptor and/or a process indirectly
`
`identified by a UNIX process identifier or PID field value” (id.). Rather, the
`
`user chooses what Petitioner contends is the object by its reference, e.g.,
`
`“BATCH,” and then enters the desired relative weight (see Ex. 1006,
`
`Fig. 2H).
`
`Thus, Durand’s object reference (as identified by Petitioner) is not
`
`used in the request; rather, according to Petitioner’s mapping, the user
`
`selects the object and then inputs the request (user-defined relative weight)
`
`for that object.
`
`Further, the claim recites that a particular quality of service is
`
`provided to a request in accordance with the one or more quality of service
`
`guarantees (Ex. 1001, 15:1–4). The “one or more quality of service
`
`guarantees” is established “utilizing a resource reservation application
`
`programming interface” (id. at 14:64–67). We agree with Patent Owner’s
`
`contention that Petitioner essentially collapses these limitations into a single
`
`17
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`limitation and relies on the same proof for both (PO Resp. 30). According to
`
`Petitioner’s mapping, entering the user-defined relative weight is setting a
`
`quality of service guarantee. But, as noted by Patent Owner, Petitioner maps
`
`Durand’s weights for each dimension to the recited “quality of service
`
`guarantee” (PO Sur-reply 8). Dr. Negus states, “Durand discloses . . . ‘one
`
`or more quality of service guarantees’ in the form of ‘adjusting the
`
`execution priorities of the jobs of each dimension as a function of the
`
`relative weights of the dimensions’ as an example of ‘conventional
`
`proportional share scheduling’ that the ’456 Patent describes as providing
`
`‘QoS guarantees’” (Ex. 1002 ¶ 230). Entering a user-defined relative
`
`weight does not teach “providing a quality of service to a request in
`
`accordance with the [ ] quality of service guarantees” established utilizing an
`
`application programming interface.
`
`As such, Petitioner has not shown Durand teaches “utilizing an
`
`application programming interface of an operating system to establish one or
`
`more quality of service guarantees that correspond to a reference to an
`
`object” and “providing a particular quality of service to a request in
`
`accordance with the one or more quality of service guarantees that
`
`correspond to one or more object references used in the request,” as recited
`
`in claim 13 (Ex. 1001, 14:64–15:4).
`
`Petitioner additionally asserts, “Bennett discloses a ‘hierarchical
`
`packet scheduling’ quality of service solution shared across service classes,
`
`where service is distributed to processes in proportion to relative service
`
`shares and based on a guaranteed service rate for each node in the service
`
`hierarchy” (Pet. 41 (citing Ex. 1002 ¶¶ 242–243; Ex. 1008, 675, 684,
`
`Fig. 3)). Petitioner further asserts, “Bennett discloses providing a particular
`
`QoS to traffic streams associated with a service share (a ‘weight’) where the
`
`18
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`traffic streams receive service ‘in proportion to their relative service shares’”
`
`(id. at 44 (citing Ex. 1002 ¶¶ 258–259; Ex. 1008, 675)).
`
`However, Petitioner has not set forth with specificity where Bennett
`
`teaches the request uses the one or more object references. Indeed,
`
`Petitioner has not explained how these two teachings of Bennett disclose the
`
`recited limitations with sufficient specificity or how one of ordinary skill in
`
`the art would modify Durand with these teachings of Bennett to achieve the
`
`recited limitations.
`
`Accordingly, Petitioner has not established that the combination of
`
`Durand and Bennet teaches the subject matter of claim 13. Therefore, based
`
`on the entire trial record, we determine Petitioner has not established by a
`
`preponderance of the evidence that the subject matter of claim 13 would
`
`have been obvious over Durand and Bennet under 35 U.S.C. § 103.
`
`
`
`E. Asserted Obviousness over Goyal and Bennett
`
`Petitioner contends the combination of Goyal and Bennett renders
`
`independent claim 13 obvious (Pet. 1).
`
`
`
`1. Reference - Goyal (Ex. 1007)
`
`Goyal is a paper titled “A Hierarchical CPU Scheduler for Multimedia
`
`Operating Systems” and authored by Pawan Goyal, Xingang Guo, and
`
`Harrick M. Vin (Ex. 1007). Goyal describes the need for “a multimedia
`
`computing environment” having “an operating system framework that: (1)
`
`enables different schedulers to be employed for different application classes,
`
`and (2) provides protection between the various classes of applications” (id.
`
`at Abstract). Goyal further describes that “[t]he requirements for supporting
`
`different scheduling algorithms for different applications as well as
`
`19
`
`
`
`IPR2020-01041
`Patent 6,725,456 B1
`
`protecting application classes from one another leads naturally to the need
`
`for hierarchical partitioning of CPU bandwidth” hierarchical partitioning
`
`specified through a tree structure in which “[e]ach thread in the system
`
`belongs to exactly one leaf node [and e]ach leaf node represents an
`
`aggregation of threads” (Ex. 1007, 3, § 2).
`
`
`
`2. Analysis of Independent Claim 13
`
`Our disposition of this ground turns on an apparent gap in