Trials@uspto.gov
`571-272-7822
`
`Paper 14
`Date: January 3, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TOYOTA MOTOR CORP.,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`
`IPR2022-01127
`U.S. Patent No. 10,292,138 B2
`
`
`
`Before SCOTT A. DANIELS, FREDERICK C. LANEY, and
`MATTHEW S. MEYERS, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`I.
`
`INTRODUCTION
`
`Toyota Motor Corp. (“Petitioner”), filed a Petition requesting inter
`
`partes review (“IPR”) of claims 1–14 of U.S. Patent No. 10,292,138 B2
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`Ex.1019 / Page 1 of 35Ex.1019 / Page 1 of 35
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`IPR2022-01127
`Patent 10,292,138 B2
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`(Ex. 1001, “the ’138 patent”). Paper 1 (“Pet.”). Intellectual Ventures II
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`LLC (“Patent Owner”) filed a Preliminary Response to the Petition. Paper
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`10 (“Prelim. Resp.”). Petitioner filed a Reply to the Preliminary Response.
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`Paper 12 (“Reply”). Patent Owner filed a Sur-Reply to Petitioner’s Reply.
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`Paper 13 (“Sur-Reply”).
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`Under 35 U.S.C. § 314(a), an inter partes review may not be instituted
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`“unless . . . there is a reasonable likelihood that the petitioner would prevail
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`with respect to at least 1 of the claims challenged in the petition.” Upon
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`consideration of the arguments and evidence presented by Petitioner, we are
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`not persuaded that Petitioner has demonstrated a reasonable likelihood that it
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`would prevail in showing the unpatentability of at least one of the
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`challenged claims. See 35 U.S.C. § 314(a). Accordingly, we do not institute
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`an inter partes review of the challenged claims.
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`A.
`
`Real Parties in Interest
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`Petitioner states that Toyota Motor Corp., Toyota Motor North
`
`America, Inc., Toyota Motor Engineering & Manufacturing North America,
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`Inc., and Toyota Motor Sales, U.S.A., Inc., are the real parties in interest.
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`Pet. 73. Patent Owner states that Intellectual Ventures II LLC is the real
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`party in interest. Paper 5, 2.
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`B.
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`Related Matters
`
`The parties indicate that the ’138 patent is asserted in the following
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`lawsuits, including, Intellectual Ventures I LLC et al. v. Toyota Motor Corp.
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`et al., 2:21-cv-00389 in the U.S. District Court for the Eastern District of
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`Texas; Intellectual Ventures I LLC et al. v. General Motors Company, 6:21-
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`cv-01088 in the U.S. District Court for the Western District of Texas; and
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`Intellectual Ventures I LLC et al. v. Honda Motor Company, Ltd. et al.,
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`3:22-cv-00761 in the U.S. District Court for the Northern District of Texas;
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`2
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`IPR2022-01127
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`and Intellectual Ventures I LLC and Intellectual Ventures II LLC, v. Honda
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`Motor Co., Ltd. et al. 2:21-cv-00390 in the U.S. District Court for the
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`Eastern District of Texas.
`
`Petitioner also indicates that the ’138 patent has been involved in the
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`following inter partes review proceedings: Ericsson Inc. and
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`Telefonaktiebolaget LM Ericsson v. Intellectual Ventures II LLC, IPR2018-
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`01289; and Sprint Spectrum L.P., SprintCom, Inc., TMobile USA, Inc., and
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`T-Mobile US, Inc. v. Intellectual Ventures II LLC, IPR2018-01765. Pet. 74.
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`C.
`
`The ’138 Patent (Ex. 1001)
`
`The ’138 patent, titled “Determining Buffer Occupancy and Selecting
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`Data for Transmission on a Radio Bearer,” relates to allocation of bandwidth
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`resources for Internet Protocol data flows in a wireless network. Ex. 1001
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`code 54, 1:23–25. The ’138 patent explains that “[t]he invention is
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`applicable to, but not limited to, gateway queuing algorithms in packet data
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`transmissions, for example, for use in the universal mobile
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`telecommunication standard.” Id. at 1:25–28.
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`Figure 1 of the ’138 patent, as annotated by Petitioner, is reproduced
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`below illustrating standard radio access network system 100. Id. at 6:12–13.
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`3
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`Figure 1 illustrates user equipment (UE) 118 communicating data with Node
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`– B 122 which, in turn, communicates data with radio network controller
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`(RNC) 124 within UTRAN (UMTS Radio Access Network) 126. The ’138
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`
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`patent explains that
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`[t]he UE may be for example a remote unit, a mobile station, a
`communication terminal, a personal digital assistant, a laptop
`computer, an embedded communication processor or any
`communication element communicating over the air interface of
`the cellular communication system.
`
`Id. at 6:22–27. The ’138 patent describes that within the RNC 124, “a
`
`Mapper 128 is responsible for mapping IP packets to separate RBs [radio
`
`bearer’s] . . . [a] scheduler 129 is responsible for allocating a certain
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`proportion of the radio resource to each of the RBs.”1 Id. at 7:49–53.
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`(emphasis added). In addition, the ’138 patent provides that
`
`
`1 Radio bearers, “RBs,” are also understood by those of ordinary skill in the
`art as Radio Access Bearer’s, “RABs.” Ex. 1003 ¶ 39.
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`element manager logic 140 has been incorporated into the
`system, which is used to contain the database that defines the
`mapping characteristics for IP packets to RBs. The element
`manager logic 140 also contains the values of the queue
`weighting parameters, Stier, as 60 described in more detail later.
`
`Id. at 7:56–61.
`
`The ’138 patent describes a particular embodiment of the radio
`
`resource allocation in Figures 5 and 6 reproduced below.
`
`
`
`Figure 5 illustrates “the communication between an UE 505 and the UTRAN
`
`540 to support an uplink scenario.” Id. at 10:3–5. The ’138 patent explains
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`that “the UE 505 may receive a single PDP [packet data protocol] context
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`510 and split the single PDP context 510 into separate services on individual
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`radio bearers in divider logic 515.” Id. at 10:5–8. The UE then informs
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`scheduler 545 of buffer occupancies for the individual radio bearers, and
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`scheduler 545 returns a single allocation of physical resources to UE based
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`5
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`on Stier parameters 550. Id. at 10:8–18. Subsequently, “[t]he UE mirror
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`scheduler 525 is then able to inform the UTRAN 540 in a message 535 on its
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`use of the physical allocation, in order to transmit data in each radio bearer
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`in proportion to the informed Stier parameters 550.” Id. at 10:18–22.
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`The ’138 patent describes that Wʹ tier weight values are computed for
`
`each radio bearer data queue from the Stier parameter (id. at 8:44–54) and
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`that uplink data for each radio bearer is transmitted by dividing up the
`
`allocated bandwidth based on the Wʹ tier values (id. at 8:55–59, 10:23–28).
`
`Figure 6, reproduced below as annotated by the Board, is a flow chart
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`illustrating algorithm 600 that “describes one mechanism to limit a number
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`of queues served at a single instant of time.” Id. at 10:49–50.
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`6
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`Figure 6 details an algorithm that is run “when a number of active users (i.e.
`
`those users known to have a buffer occupancy greater than zero in any
`
`queue) is greater than a known fixed parameter, for example
`
`‘max_number_queues_serviced’, as defined by the Element Manager (EM).”
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`Id. at 10:51–55. After determining the number of resources RAAU allocated
`
`to each queue at step 610,
`
`[t]he algorithm may then determine whether the number of
`queues that have resources allocated greater than the EM
`parameter-max_number_queues_serviced, as shown in step 615.
`If the number of queues that have resources allocated is greater
`than a
`threshold,
`for example
`the EM parameter
`max_number_queues_serviced, the process moves to step 620.
`
`Id. at 11:11–17.
`
`As depicted in Figure 6, from step 620 in a first iteration the algorithm
`
`begins a scheduling process for data packets where an amount of resources
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`RAAUq are allocated according to a weighted average of the priority level
`
`of each input flow. Id. at 10:47–11:10. The weighting of each input flow
`
`using a counter or running backlog, running_RAAU_delta, tracks flows that
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`have been previously denied transmission. Id. at 11:22–11:30. In a second
`
`iteration, the running backlog, added to the resources (RAAUq) allocated to
`
`a given radio bearer provides an adjusted RAAUq’ at step 625. Id. at 11:31–
`
`33. Then, flows with lowest adjusted resource allocations RAAUq’ are
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`dropped, and the remaining resources RAAUq’ are divided up among the
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`surviving radio bearers. Id. at 11:38–44.
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`D.
`
`Illustrative Claim
`
`Claims 1 and 8 are independent. Claims 2–7 each depend directly
`
`from claim 1, and claims 9–14 each depend directly from claim 8. Claim 1
`
`is a method claim and illustrates the claimed subject matter and is
`
`reproduced below:
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`1. 1[preamble] A user equipment (UE) comprising:
`
`1[a] a processor communicatively coupled to a
`transmitter and circuitry configured to receive; and
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`8
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`the processor is configured to:
`
`1[b] cause the circuitry to receive parameters
`associated with a plurality of radio bearers,
`
`1[c] determine a plurality of buffer occupancies,
`wherein each of the plurality of buffer occupancies is
`associated with one or more radio bearers of the plurality
`of radio bearers,
`
`1[d] cause the transmitter to transmit a message
`including the plurality of buffer occupancies to a network,
`
`1[e] cause the circuitry to receive a single allocation
`of uplink resources,
`
`1[f] select data from the plurality of radio bearers
`for transmission using the single allocation of uplink
`resources, wherein the selection of the data occurs using a
`first iteration and a second iteration,
`
`1[g] wherein in the first iteration, the selection of
`the data is selected from a subset of the plurality of radio
`bearers based on the received parameters,
`
`1[h] wherein in the second iteration, the selection of
`the data is based on buffered data for respective radio
`bearers, and
`
`1[i] cause the transmitter to transmit a signal
`including the selected data.
`
`Ex. 1001, 13:58–14:16.2 Independent claim 8 is a method claim reciting “[a]
`
`method performed by a user equipment (UE), the method comprising.” Id.
`
`at 14:33–34. Otherwise, independent claim 8 contains the same and similar
`
`limitations as claim 1, for example limitation 8[b] “receiving, by the UE,
`
`parameters associated with a plurality of radio bearers.” Id. at 14:35–36.
`
`
`2 For consistency, we refer to Petitioner’s claim limitations references
`1[preamble]–1[i].
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`E.
`
`Prior Art and Asserted Grounds
`
`Petitioner asserts that claims 1–14 would have been unpatentable
`
`based on the following grounds:3
`
`Ground Claim(s) Challenged
`1
`1–4, 6–11, and 13–14.
`2
`1–4, 6–11, and 13–14.
`3
`1–4, 6–11, and 13–14.
`4
`5, 12
`
`35 U.S.C.
`§
`1024
`103(a)
`103(a)
`103(a)
`
`Reference(s)/Basis
`Peisa5
`Peisa
`Peisa and Heo6
`Peisa and TS 24.0087
`
`A. Legal Standards
`
`II. ANALYSIS
`
`A “prior art reference—in order to anticipate under 35 U.S.C. § 102—
`
`must not only disclose all elements of the claim within the four corners of
`
`the document, but must also disclose those elements ‘arranged as in the
`
`claim.’” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1369 (Fed. Cir.
`
`2008) (quoting Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548 (Fed.
`
`Cir. 1983)). “A single prior art reference may anticipate without disclosing
`
`a feature of the claimed invention if such feature is necessarily present, or
`
`
`3 Petitioner supports its challenges with a Declaration of Robert Akl, Ph.D.
`(Ex. 1003). See infra.
`4 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011 amended 35 U.S.C. §§ 102–103, effective March
`16, 2013. Because the application from which the ’138 patent issued has an
`effective filing date prior to March 16, 2013, the pre-AIA version of §§ 102–
`103 applies. See Ex. 1001, code (63).
`5 Ex. 1004, US Patent No. 6,850,540 B1 (Feb. 1, 2005).
`6 Ex. 1029, US Patent Publ’n No. 2005/0047416A1 (Mar. 3, 2005).
`7 Ex. 1005, 3RD GENERATION PARTNERSHIP PROJECT; TECHNICAL
`SPECIFICATION GROUP CORE NETWORK; MOBILE RADIO INTERFACE LAYER 3
`SPECIFICATION; CORE NETWORK PROTOCOLS; STAGE 3 (Release 6), Global
`System for Mobile Communications, (2004).
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`inherent, in that reference.” Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 958
`
`(Fed. Cir. 2014).
`
`A patent claim is unpatentable under 35 U.S.C. § 103 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. 35 U.S.C. § 103; KSR Int’l Co. v. Teleflex Inc., 550
`
`U.S. 398, 406 (2007). “[W]hen a patent claims a structure already known in
`
`the prior art that is altered by the mere substitution of one element for
`
`another known in the field, the combination must do more than yield a
`
`predictable result.” KSR, 550 U.S. at 416 (citing United States v. Adams,
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`383 U.S. 39, 50‒51 (1966)). The question of obviousness is resolved based
`
`on 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) when in evidence,
`
`objective evidence of non-obviousness. Graham v. John Deere Co., 383
`
`U.S. 1, 17–18 (1966).
`
`B.
`
`Level of Ordinary Skill in the Art
`
`Petitioner asserts that a person of ordinary skill in the art at the time of
`
`the ’138 patent
`
`[w]ould would have had a Bachelor of Science in electrical
`engineering, computer engineering, or an equivalent field, as
`well as three years of experience in wireless communication
`technology, or a master’s degree in electrical engineering, or
`other equivalent degree . . . [a]dditional education could
`substitute for professional experience and vice versa.
`
`Pet. 3 (citing Ex. 1003 ¶¶ 47–49).
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`Patent Owner does not expressly dispute Petitioner’s definition of a
`
`person of ordinary skill in the art. See generally Prelim. Resp.
`
`On this record, Petitioner’s proposed level of ordinary skill in the art
`
`is not disputed and is consistent with our review and understanding of the
`
`technology and descriptions in the ’138 patent and the asserted prior art
`
`references. Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001).
`
`For purposes of this Decision, we rely on Petitioner’s proposed level of
`
`ordinary skill in the art.
`
`C. Claim Construction
`
`We interpret a claim “using the same claim construction standard that
`
`would be used to construe the claim in a civil action under 35 U.S.C.
`
`282(b).” 37 C.F.R. § 42.100(b) (2020). Under this standard, we construe
`
`the claim “in accordance with the ordinary and customary meaning of such
`
`claim as understood by one of ordinary skill in the art and the prosecution
`
`history pertaining to the patent.” Id. Furthermore, at this stage in the
`
`proceeding, we expressly construe the claims only to the extent necessary to
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`determine whether to institute inter partes review. See Nidec Motor Corp. v.
`
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
`
`(“[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))).
`
`Petitioner contends that “[h]ere, no terms need construction because
`
`the claims read on the prior art identified below under any construction
`
`consistent with Phillips.” Pet. 4. Patent Owner, on the other hand, proposes
`
`that the claim term “a subset of the plurality of radio bearers” means “less
`
`than all of the plurality of radio bearers.” Prelim. Resp. 12. Patent Owner
`
`argues that
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`[t]he “subset of the plurality of radio bearers” referred to in
`independent claim 1 of the ‘138 Patent (and independent claim
`8) corresponds to the ‘max_number_queues_serviced’ parameter
`discussed above in connection with, e.g., Step 628. The
`‘max_number_queues_serviced’ value clearly corresponds to
`less than all queues, because it is used when the number of active
`users “is greater than” the ‘max_number_queues_serviced’
`value.
`
`Id. at 13 (citing Ex. 1001, 10:52–54). Based on the written description,
`
`Patent Owner’s declarant, Dr. Lomp testifies that the subset of radio bearers
`
`corresponds to “the ‘max_number_queues_serviced’ parameter discussed
`
`above in connection with, e.g., Step 628.” Ex. 2001 ¶ 47. Dr. Lomp
`
`testifies further that “[t]he ‘max_number_queues_serviced’ value
`
`corresponds to less than all queues, because it is used when the number of
`
`active users ‘is greater than’ the ‘max_number_queues_serviced’ value.”
`
`Id. (citing Ex. 1001, 10:52–54). Dr. Lomp concludes that “[a] person of
`
`ordinary skill in the art, reading the claim in light of the specification, would
`
`understand the ‘subset of the plurality of radio bearers’ referred to in Claim
`
`1 to mean ‘less than all of the plurality of radio bears.’” Id.
`
`Petitioner responds, arguing that “Patent Owner’s plain-meaning
`
`construction in district court covers both less than and all of the plurality of
`
`radio bearers.” Reply 1. Petitioner argues, specifically, that Patent Owner
`
`has indicated by its infringement contentions, that “subset” covers even the
`
`situation where, in the accused instrumentalities, “[a]ll the logical channels
`
`with Bj>0 are allocated resources in a decreasing priority order.” Id. (citing
`
`Ex. 1008, 30). We appreciate that within the context of its infringement
`
`contentions Patent Owner may be advocating for a broader scope of “subset”
`
`in the district court litigation, perhaps in an attempt to encompass certain
`
`accused devices and functionality. Ex. 1008, 30. However, such
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`infringement contentions, and any relevant claim constructions with respect
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`to infringement, are the purview of the district court. Our jurisdiction is
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`confined mainly to patentability, and in this proceeding Patent Owner
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`expressly argues that the “subset” limitation means “less than all of the
`
`plurality of radio bearers.” For the reasons below, we agree with Patent
`
`Owner’s proposed construction that “a subset of the plurality of radio
`
`bearers,” means “less than all of the plurality of radio bearers.”
`
`First, the plain language itself supports Patent Owner’s construction.
`
`See TQ Delta, LLC v. DISH Network LLC, 929 F.3d 1350, 1357 (Fed. Cir.
`
`2019) (“We begin our analysis with the claim language.”). Read in context,
`
`claim 1 recites in part:
`
`the processor is configured to:
`
`1[b] cause the circuitry to receive parameters associated
`with a plurality of radio bearers,
` . . .
`
`1[f] select data from the plurality of radio bearers for
`transmission using the single allocation of uplink resources,
`wherein the selection of the data occurs using a first iteration and
`a second iteration,
`
`1[g] wherein in the first iteration, the selection of the data
`is selected from a subset of the plurality of radio bearers based
`on the received parameters,
`
`Id. at 13:61–14:11 (emphasis added).
`
`Claim 1 initially recites “a plurality of radio bearers” in limitation 1[b]
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`which plainly means more than one radio bearer. Id. at 13:63. With this
`
`antecedent basis, the processor will at limitation 1[f] “select data from the
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`plurality of radio bearers.” Id. at 13:6. What is not clear, initially, is
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`whether data is required to be selected from all radio bearers, or less than all
`
`radio bearers, because the claim does not specify, e.g., “all,” “each,” or “at
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`least one of” the plurality of radio bearers. A plain reading of the claim, up
`
`until this point, is that the processor can select data from all or less than all
`
`radio bearers. Id. at 14:5–6.
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`The following limitation 1[g], however, provides that “in the first
`
`iteration . . . data is selected from a subset of the plurality of radio bearers.”
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`Id. at 14:10–11 (emphasis added). This clause does not simply reiterate “the
`
`plurality of radio bearers,” but expressly adds “a subset.” The word “subset”
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`plainly modifies “a plurality of radio bearers,” and must have some limiting
`
`meaning. For example, if we were to interpret “subset” as encompassing all
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`or less than all of the radio bearers as Petitioner asserts, than the word, i.e.,
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`limitation, “subset” is entirely unnecessary, given that the claim already
`
`provides such broader meaning. See Stumbo v. Eastman Outdoors, Inc., 508
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`F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing claim constructions that
`
`render phrases in claims superfluous). See Bicon Inc. v. Straumann Co., 441
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`F.3d 945, 950 (Fed. Cir. 2006) (“[C]laims are interpreted with an eye toward
`
`giving effect to all terms in the claim”). Indeed, if “a subset” can include
`
`data selected from all the radio bearer’s then Petitioner’s interpretation
`
`reads the term “subset” essentially, if not entirely, out of the claim.
`
`We acknowledge that dictionary definitions of “subset” often provide
`
`two interpretations. For example, Dictionary.com provides that subset
`
`means “a set that is a part of a larger set,” and alternatively, in
`
`mathematics, “a set consisting of elements of a given set that can be the
`
`same as the given set or smaller.” https://www.dictionary.com/browse
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`/subset (last visited December 26, 2022). Despite the mathematical concept
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`that a subset can include all, or fewer, members of a given set, a plain
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`reading of claim 1 is that “subset” must be something less than all radio
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`bearer’s, at least because as discussed above, we give credence to the word
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`IPR2022-01127
`Patent 10,292,138 B2
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`“subset” as an express claim limitation. See Becton, Dickinson & Co. v.
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`Tyco Healthcare Grp., LP, 616 F.3d 1249, 1257 (Fed. Cir. 2010) (The
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`Federal Circuit refusing to adopt a claim construction which would render a
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`claim limitation meaningless).
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`In addition, we disagree with Petitioner that Patent Owner’s
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`construction “imports a limitation” from the specification of the ’138 patent.
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`Reply 2. For one thing, Patent Owner’s construction relies specifically on
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`the word “subset,” which is expressly recited in the claim. Furthermore, the
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`specification provides an embodiment, i.e., the algorithm in Figure 6, where
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`data is selected from a “limit[ed]” number of radio bearers. Ex. 1001,
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`10:37–42. The ’138 patent describes “in an enhanced embodiment of the
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`present invention, a mechanism to implement additional functionality to
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`limit a total number of queues served, . . . this algorithm limits a number [of]
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`queues that can be allocated resource at any one instance.” Id. For Figure
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`6, the ’138 patent further explains that
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`[t]he algorithm [600] describes one mechanism to limit a number
`of queues served at a single instant of time. The algorithm may
`be run when a number of active users (i.e. those users known to
`have a buffer occupancy greater than zero in any queue) is
`greater
`than a known
`fixed parameter, for example
`'max_number_queues_serviced', as defined by the Element
`Manager (EM).
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`Id. at 10:48–55. The ’138 patent then explains that at step 615 “[i]f the
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`number of queues that have resources allocated is greater than a threshold,
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`for example the EM parameter max_number_queues_serviced, the process
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`moves to step 620.” Id. at 11:14–17 (emphasis added). Steps 605–630 from
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`Figure 6, as highlighted by the Board, are reproduced below.
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`IPR2022-01127
`Patent 10,292,138 B2
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`Figure 6 illustrates steps 605–630, where step 615, highlighted yellow,
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`permits the continuation of algorithm 600 only where number of queues
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`having allocated resources is greater than max_number_queues_serviced.
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`Importantly, this embodiment does not describe that the algorithm continues
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`where the number of queues with allocated resources is greater than or equal
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`to the EM parameter, i.e., a threshold, but simply greater than the EM
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`parameter. Then, to begin the claimed “first iteration” at step 628 the
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`algorithm selects_max_number_queues_serviced (which is logically, and by
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`operation of the algorithm at step 615, less then, i.e. a subset, of the number
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`of queues having allocated resources). Id. at 10:65–66.
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`Consistent with the written description in the ’138 patent
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`specification, we credit Dr. Lomp’s testimony explaining that
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`[t]he “subset of the plurality of radio bearers” referred to in
`Claim 1 (and Claim 8) corresponds to the ‘max_number_queues
`_serviced’ parameter discussed above in connection with, e.g.,
`Step
`628. The
`‘max_number_queues_serviced’ value
`corresponds to less than all queues, because it is used when the
`number of active users “is greater than” the ‘max_number
`_queues_serviced’ value.
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`IPR2022-01127
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`Ex. 1002 ¶ 47 (citing Ex. 1001, 10:52–54). Dr. Lomp explains persuasively
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`why a person of ordinary skill in the art “reading the claim in light of the
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`specification, would understand the ‘subset of the plurality of radio bearers’
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`referred to in Claim 1 to mean ‘less than all of the plurality of radio bears.’”
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`Id. In this case, Patent Owner does not “improperly import[] a supposed
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`limitation from the specification’s discussion,” as Petitioner argues, mainly
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`because, the limitation is in fact in the claim—that is “a subset” is expressly
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`recited as a specific limiting embodiment, as disclosed in Figure 6, which
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`describes limiting allocation resources to less than all queues where the
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`number of active users exceeds a threshold, “max_number_queues_
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`serviced.”
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`Petitioner argues that the ’138 patent “discusses that resources may be
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`allocated to less than all queues if the number of active users exceeds a
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`threshold, “max_number_queues_serviced.” Reply 2. This alternative to
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`which Petitioner refers, considers for example, if at step 615 the number of
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`queues with allocated resources is equal to, or less than EM parameter. In
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`this case, the algorithm in Figure 6 ends, and the process reverts to a
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`different prior art process which is not incorporated in any relevant part in
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`the algorithm of Figure 6 or independent claims 1 and 8. See Ex. 1001,
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`11:17–21. (The ’138 patent explaining that “[i]f the number of queues that
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`have resources allocated is not greater than the EM parameter
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`max_number_queues_serviced then the process may operate as normal as
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`described in the PCT publication WO 03/049320.”).
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`Overall, we find Patent Owner’s claim construction and Dr. Lomp’s
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`testimony the most persuasive and consistent with the express claim
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`language itself, the written description and the algorithm and embodiment
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`depicted in Figure 6. Accordingly, we determine that “a subset of the
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`IPR2022-01127
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`plurality of radio bearers” means “less than all of the plurality of radio
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`bearers.” Prelim. Resp. 12.
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`D. Ground 1: Claims 1–4, 6–11, and 13–14 – Alleged
`Anticipation by Peisa (Ex. 1004)
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`On this record, Petitioner has not established a reasonable likelihood
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`of prevailing on its assertion that at least one of claims 1–4, 6–11, and 13–14
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`are anticipated by Peisa, for the reasons explained below.
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`1.
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`Peisa (Ex. 1004)
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`Peisa is titled “Packet Scheduling in a Communications System” and
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`describes allocation of bandwidth resources where certain “embodiment(s)
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`of the present invention enable packet scheduling in accordance with quality
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`of Service (QoS) constraints for data flows in communications Systems.”
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`Ex. 1004, code 54, 2:49–51. Peisa’s Figure 1 is reproduced below.
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`Figure 1 illustrates wireless communications network 100 including core
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`network 120, user equipment (“UEs”) 110 communicating with Node Bs
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`150, i.e., network towers, and radio network controllers (“RNC”) 140
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`“responsible for routing user and signaling data between that Node B 150
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`and the core network 120.” Id. at 2:6–8.
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`Peisa explains that “[u]ser and signaling data may be carried between
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`an RNC 140 and a UE 110 using Radio Access Bearers (RABs),” and that
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`“[t]ypically, a UE 110 is allocated one or more RABs, each of which is
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`capable of carrying a flow of user or signaling data.” Id. at 4:28–34. Peisa
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`explains further that RNC 140 includes a media access layer (“MAC”) that
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`is responsible for scheduling, or prioritizing, packets to be sent to the UE.
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`Id. at 4:34–40. As Peisa describes, “[p]riorities may be determined at the
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`MAC entity (e.g., MAC-c or MAC-d) on the basis of RAB parameters.” Id.
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`at 5:14–16. RAB parameters include quality of service (“QoS”), where “a
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`high QoS should be transmitted over the air interface at a high priority whilst
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`packets corresponding to a RAB that has been allocated a low QoS should
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`be transmitted over the air interface at a lower priority.” Id. at 5:10–14.
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`Peisa explains that “[p]referably, a packet received at the controlling RNC
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`140 is placed in a queue . . . where the queue corresponds to the priority
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`level attached to the packet as well as to the size of the packet.” Id. at 5:34–
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`37.
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`Peisa describes a problem with known priority determination
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`algorithms—namely that “it is possible that flows that have lower priorities
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`are not allowed to transmit for prolonged periods of time. This can result in
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`extremely poor performance if the flow control mechanism of a lower
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`priority flow reacts to this.” Id. at 8:12–16. To address this drawback, Peisa
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`proposes “maintaining a backlog counter which keeps track of the backlog
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`of unsent data for a given input flow to the MAC entity. The backlog is
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`taken into account when determining an appropriate TFC for that input flow
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`for a subsequent frame.” Id. at 9:4–8.
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`IPR2022-01127
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`An embodiment disclosed by Peisa for allocating bandwidth resources
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`to data flow streams is shown by flowchart 400 in Figure 4, reproduced
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`below.
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`Figure 4 illustrates a “flow diagram of a method of allocating bandwidth
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`resources to, for example, the input flow Streams of a MAC entity.” Id. at
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`10:33–35. After receiving input flows and buffering data, step 405, and
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`passing the buffer fill level information to the MAC, step 410, the fair share
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`of MAC bandwidth is determined at step 415. Id. at 10:37–42. Peisa
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`explains that “[t]he computed fair share of each is then adjusted by adding
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`the contents of an associated backlog counter to the respective computed fair
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`share (step 420).” Id. at 10:42–44. The “fair s