IPR2025-01288
`Decl. of Dr. Kevin Almeroth
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` Cloud Byte Ex. 2007
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`___________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
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`DELL TECHNOLOGIES INC. AND DELL INC.,
`Petitioners,
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`v.
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`CLOUD BYTE LLC
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`Patent Owner.
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`___________________
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`Case No. IPR2025-01288
`U.S. Patent No. 9,651,320
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`___________________
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`DECLARATION OF KEVIN ALMEROTH, PH.D., IN SUPPORT OF
`PATENT OWNER’S PRELIMINARY RESPONSE
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`IPR2025-01288
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`TABLE OF CONTENTS
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`I. Introduction ...................................................................................................... 1
`A. Qualifications ........................................................................................ 1
`1. Educational Background ............................................................. 2
`2. Career .......................................................................................... 2
`3. Other Relevant Qualifications................................................... 13
`B. Previous Expert Witness Testimony ................................................... 14
`C. Preparation for this Declaration .......................................................... 14
`II. Legal Understanding ...................................................................................... 16
`A. Claim Construction.............................................................................. 16
`B. Anticipation ......................................................................................... 16
`C. Obviousness ......................................................................................... 17
`III. The ’320 patent .............................................................................................. 19
`A. Priority Date ........................................................................................ 19
`B. Specification ........................................................................................ 19
`C. Level of Ordinary Skill in the Art ....................................................... 20
`D. Claim Construction.............................................................................. 22
`IV. Summary of the Prior Art .............................................................................. 22
`A. Sato (Ex. 1005) .................................................................................... 22
`B. Nakamura (Ex. 1007) .......................................................................... 23
`V. Ground I: Sato and Nakamura Do Not Render Obvious the
`Challenged Claims ......................................................................................... 25
`A. Sato and Nakamura Are Directed to Different Types of
`Computer Systems that Different Types of Cooling Systems ............ 26
`B. Sato’s and Nakamura’s Inconsistent Priorities Render Their
`Systems Incompatible ......................................................................... 29
`C. Nakamura Is Directed To a Problem That Does Not Affect
`Sato’s Cooling System ........................................................................ 34
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`D. General Knowledge of Electronic Component Failures Would
`Not Motivate a POSITA to Combine Sato and Nakamura ................. 38
`VI. Conclusion ..................................................................................................... 39
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`LIST OF EXHIBITS
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`Exhibit Description
`Ex. 2001 U.S. Pat. 6,987,370
`Ex. 2002 Dkt. 94 (Second Amended Scheduling Order)
`Ex. 2003 Docket Navigator Statistics
`Ex. 2004 U.S. Court’s median time-to-trial statistics for the Eastern
`District of Texas
`Ex. 2005 Dkt. 119 (Order Setting Markman Hearing)
`Ex. 2006 Nakamura Invalidity Claim Chart for the ’320 Patent (E8)
`Ex. 2007 Declaration of Dr. Kevin Almeroth
`Ex. 2008 CV of Dr. Kevin Almeroth
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`IPR2025-01288
`Decl. of Dr. Kevin Almeroth
` Cloud Byte Ex. 2007
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`I, Dr. Kevin Almeroth, declare as follows:
`I. Introduction
`1. I have been retained by Quinn Emanuel Urquhart & Sullivan, LLP on
`behalf of the Patent Owner Cloud Byte LLC (“Patent Owner” or “Cloud Byte”) as
`an independent expert in this inter partes review (this “Proceeding”) before the
`Patent Trial and Appeal Board of the United States Patent and Trademark Office
`(the “Board”). I have been asked to review the Petition filed by Petitioners Dell
`Technologies Inc. and Dell Inc. (“Petitioners”) and the expert declaration of Dr.
`Himanshu Pokharna, challenging the patentability of U.S. Patent No. 9,651,320 (the
`“’320 patent”), and provide my opinions on the invalidity arguments presented in
`the Petition.
`2. I am being compensated for my time spent on this matter at a rate of
`$900 per hour, and my compensation is in no way contingent upon the outcome of
`this matter or on the opinions I offer. All of the opinions expressed in this declaration
`are my own.
`A. Qualifications
`3. Ex. 2008 is a true and correct copy of my current CV, which describes
`my education, patents and publications, employment and research history, and
`professional activities and awards.
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`1. Educational Background
`4. I hold three degrees from the Georgia Institute of Technology: (1) a
`Bachelor of Science degree in Information and Computer Science (with minors in
`Economics, Technical Communication, and American Literature) earned in June
`1992; (2) a Master of Science degree in Computer Science (with specialization in
`Networking and Systems) earned in June 1994; and (3) a Doctor of Philosophy
`(Ph.D.) degree in Computer Science (Dissertation Title: Networking and System
`Support for the Efficient, Scalable Delivery of Services in Interactive Multimedia
`System, minor in Telecommunications Public Policy) earned in June 1997. I have
`taken a wide variety of courses as demonstrated by my minor. My undergraduate
`degree also included a number of courses more typical of a degree in electrical
`engineering, including digital logic, signal processing, and telecommunications
`theory.
`2. Career
`5. I am a Professor Emeritus in the Department of Computer Science at
`the University of California, Santa Barbara (UCSB). While active at UCSB, I held
`faculty appointments and was a founding member of the Computer Engineering
`(CE) Program, Media Arts and Technology (MAT) Program, and the Technology
`Management Program (TMP). I was the Associate Director of the Center for
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`Information Technology and Society (CITS) from 1999 to 2012. I have been a
`faculty member at UCSB since July 1997.
`6. One of the major concentrations of my research has been the delivery
`of multimedia content and data between computing devices, including various
`network architectures. In my research, I have studied large-scale content delivery
`systems, and the use of servers located in a variety of geographic locations to provide
`scalable delivery to hundreds or thousands of users simultaneously. I have also
`studied smaller-scale content delivery systems in which content is exchanged
`between individual computers and portable devices. My work has emphasized the
`exchange of content more efficiently across computer networks, including the
`scalable delivery of content to many users, mobile computing, satellite networking,
`delivering content to mobile devices, and network support for data delivery in
`wireless networks.
`7. In 1992, the initial focus of my research was on the provision of
`interactive functions (e.g., VCR-style functions like pause, rewind, and fast-forward)
`for near video-on-demand systems in cable systems; in particular, how to aggregate
`requests for movies at a cable head-end and then how to satisfy a multitude of
`requests using one audio/video stream broadcast to multiple receivers
`simultaneously. This research has continually evolved and resulted in the
`development of techniques to scalably deliver on-demand content, including audio,
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`video, web documents, and other types of data, through the Internet and over other
`types of networks, including over cable systems, broadband telephone lines, and
`satellite links.
`8. An important component of my research has been investigating the
`challenges of communicating multimedia content, including video, between
`computers and across networks including the Internet. I have worked on a variety of
`research problems and used a number of systems that were developed to deliver
`multimedia content to users. One content-delivery method I have researched is the
`one-to-many communication facility called “multicast,” first deployed as the
`Multicast Backbone, a virtual overlay network supporting one-to-many
`communication. Multicast is one technique that can be used on the Internet to
`provide streaming media support for complex applications like video-on-demand,
`distance learning, distributed collaboration, distributed games, and large-scale
`wireless communication. The delivery of media through multicast often involves
`using Internet infrastructure, devices and protocols, including protocols for routing
`and TCP/IP.
`9. Starting in 1997, I worked on a project to integrate the streaming media
`capabilities of the Internet together with the interactivity of the web. I developed a
`project called the Interactive Multimedia Jukebox (IMJ). Users would visit a web
`page and select content to view. The content would then be scheduled on one of a
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`number of channels, including delivery to students in Georgia Tech dorms delivered
`via the campus cable plant. The content of each channel was delivered using
`multicast communication.
`10. In the IMJ, the number of channels varied depending on the capabilities
`of the server including the available bandwidth of its connection to the Internet. If
`one of the channels was idle, the requesting user would be able to watch their
`selection immediately. If all channels were streaming previously selected content,
`the user’s selection would be queued on the channel with the shortest wait time. In
`the meantime, the user would see what content was currently playing on other
`channels, and because of the use of multicast, would be able to join one of the
`existing channels and watch the content at the point it was currently being
`transmitted.
`11. The IMJ service combined the interactivity of the web with the
`streaming capabilities of the Internet to create a jukebox-like service. It supported
`true Video-on-Demand when capacity allowed, but scaled to any number of users
`based on queuing requested programs. As part of the project, we obtained
`permission from Turner Broadcasting to transmit cartoons and other short-subject
`content. We also connected the IMJ into the Georgia Tech campus cable television
`network so that students in their dorms could use the web to request content and then
`view that content on one of the campus’s public access channels.
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`12. More recently, I have also studied issues concerning how users choose
`content, especially when considering the price of that content. My research has
`examined how dynamic content pricing can be used to control system load. By
`raising prices when systems start to become overloaded (i.e., when all available
`resources are fully utilized) and reducing prices when system capacity is readily
`available, users’ capacity to pay as well as their willingness can be used as factors
`in stabilizing the response time of a system. This capability is particularly useful in
`systems where content is downloaded or streamed on-demand to users.
`13. As a parallel research theme, starting in 1997, I began researching
`issues related to wireless devices and sensors. In particular, I was interested in
`showing how to provide greater communication capability to “lightweight devices,”
`i.e., small form-factor, resource-constrained (e.g., CPU, memory, networking, and
`power) devices. Starting in 1998, I published several papers on my work to develop
`a flexible, lightweight, battery-aware network protocol stack. The lightweight
`protocols we envisioned were similar in nature to protocols like Bluetooth, Universal
`Plug and Play (UPnP) and Digital Living Network Alliance (DLNA).
`14. From this initial work, I have made wireless networking—including ad
`hoc, mesh networks and wireless devices—one of the major themes of my research.
`My work in wireless networks spans the protocol stack from applications through to
`the encoding and exchange of data at the data link and physical layers.
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`15. At the application layer, even before the large-scale “app stores” were
`available, my research looked at building, installing, and using apps for a variety of
`purposes, from network monitoring to support for traditional computer-based
`applications (e.g., content retrieval) to new applications enabled by ubiquitous,
`mobile devices. For example, my research has looked at developing applications for
`virtually exchanging and tracking “coupons” through “opportunistic contact” among
`mobile wireless devices (i.e., communication among devices moving into
`communication range with each other). In many of the courses I have taught there
`is a project component. Through these projects I have supervised numerous efforts
`to develop new “apps” for download and use across a variety of mobile platforms.
`16. Toward the middle of the protocol stack, my research has also looked
`to build wireless infrastructure support to enable communication among a set of
`mobile devices unaided by any other kind of network infrastructure. These kinds of
`networks are useful either in challenged network environments (e.g., when a natural
`disaster has destroyed existing infrastructure) or when suitable support for network
`communication never existed. The deployment of such networks (or even the use
`of traditional network support) are critical to support services like disaster relief,
`catastrophic event coordination, and emergency services deployment.
`17. Yet another theme is monitoring wireless networks, in particular
`different variants of IEEE 802.11 compliant networks, to (1) understand the
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`operation of the various protocols used in real-world deployments, (2) use these
`measurements to characterize use of the networks and identify protocol limitations
`and weaknesses, and (3) propose and evaluate solutions to these problems. I have
`successfully used monitoring techniques to study wireless data link layer protocol
`operation and to improve performance by enhancing the operation of such protocols.
`For wireless protocols, this research includes functions like network acquisition and
`channel bonding.
`18. One theme in my wireless network research has been cross-layer
`solutions and innovations. As mentioned above, with greater wireless device use
`and network support, we envisioned new application paradigms and services, for
`example, when mobile devices come into contact with each other. Instead of relying
`on existing infrastructure to relay communication, the devices are able to discover
`each other and communicate directly. Other examples include discovering and using
`location information to enhance users’ experiences. Network support and novel
`applications use a variety of network architectures supporting users on foot, in
`vehicles, and across varying terrains and environments. Finally, we studied how
`communication efficiency can be supported through intelligent handoffs as well as
`location and movement prediction.
`19. Protecting networks, including their operation and content, has been an
`underlying theme of my research almost since the beginning of my research career.
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`Starting in 2000, I have been involved in several projects that specifically address
`security, network protection, and firewalls. After significant background work, a
`team on which I was a member successfully submitted a $4.3M grant proposal to the
`Army Research Office (ARO) at the Department of Defense to propose and develop
`a high-speed intrusion detection system. Key aspects of the system included
`associating streams of packets and analyzing them for viruses and other malware.
`Once the grant was awarded, we spent several years developing and meeting the
`milestones of the project. A number of my students worked on related projects and
`published papers on topics ranging from intrusion detection to developing advanced
`techniques to be incorporated into firewalls. I have also used firewalls, including
`their associated malware detection features, in developing techniques for the
`classroom to ensure that students are not distracted by online content.
`20. Recent work ties some of the various threads of my past research
`together. I have investigated content delivery in online social networks and proposed
`reputation management systems in large-scale social networks and marketplaces. On
`the content delivery side, I have looked at issues of caching and cache placement,
`especially when content being shared and the cache has geographical relevance. We
`were able to show that effective caching strategies can greatly improve performance
`and reduce deployment costs. Our work on reputation systems showed that
`reputations have economic value, and as such, creates a motivation to manipulate
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`reputations. In response, we developed a variety of solutions to protect the integrity
`of reputations in online social networks. The techniques we developed for content
`delivery and reputation management were particularly relevant in peer-to-peer
`communication.
`21. My involvement in the research community extends to leadership
`positions for several academic journals and conferences. I am the co-chair of the
`Steering Committee for the ACM Network and System Support for Digital Audio
`and Video (NOSSDAV) workshop and on the Steering Committees for the
`International Conference on Network Protocols (ICNP), ACM Sigcomm Workshop
`on Challenged Networks (CHANTS), and IEEE Global Internet (GI) Symposium. I
`have served or am serving on the Editorial Boards of IEEE/ACM Transactions on
`Networking, IEEE Transactions on Mobile Computing, IEEE Network, ACM
`Computers in Entertainment, AACE Journal of Interactive Learning Research
`(JILR), and ACM Computer Communications Review. I have co-chaired a number
`of conferences and workshops including the IEEE International Conference on
`Network Protocols (ICNP), IEEE Conference on Sensor, Mesh and Ad Hoc
`Communications and Networks (SECON), International Conference on
`Communication Systems and Networks (COMSNETS), IFIP/IEEE International
`Conference on Management of Multimedia Networks and Services (MMNS), the
`International Workshop On Wireless Network Measurement (WiNMee), ACM
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`Sigcomm Workshop on Challenged Networks (CHANTS), the Network Group
`Communication (NGC) workshop, and the Global Internet Symposium, and I have
`served on the program committees for numerous conferences.
`22. Furthermore, in the courses I taught at UCSB, a significant portion of
`my curriculum covered aspects of the Internet and network communication
`including the physical and data link layers of the Open System Interconnect (OSI)
`protocol stack, and standardized protocols for communicating across a variety of
`physical media such as cable systems, telephone lines, wireless, and high-speed
`Local Area Networks (LANs). The courses I have taught also cover most major
`topics in Internet communication, including data communication, multimedia
`encoding, and mobile application design. My research and courses have covered a
`range of physical infrastructures for delivering content over networks, including
`cable, Integrated Services Digital Network (ISDN), Ethernet, Asynchronous
`Transfer Mode (ATM), fiber, and Digital Subscriber Line (DSL). For a complete list
`of courses I have taught, see my curriculum vitae (Ex. 2008).
`23. I co-founded a technology company called Santa Barbara Labs that was
`working under a sub-contract from the U.S. Air Force to develop very accurate
`emulation systems for the military’s next generation internetwork. Santa Barbara
`Labs’ focus was in developing an emulation platform to test the performance
`characteristics of the network architecture in the variety of environments in which it
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`was expected to operate, and, in particular, for network services including IPv6,
`multicast, Quality of Service (QoS), satellite-based communication, and security.
`Applications for this emulation program included communication of a variety of
`multimedia-based services, including video conferencing and video-on-demand.
`24. In addition to having co-founded a technology company myself, I have
`worked for, consulted with, and collaborated with companies for nearly 30 years.
`These companies range from well-established companies to start-ups and include
`IBM, Hitachi Telecom, Turner Broadcasting System (TBS), Bell South, Digital
`Fountain, RealNetworks, Intel Research, Cisco Systems, and Lockheed Martin.
`25. Through my graduate education, leadership with CITS, involvement in
`TMP, role in the development of the Internet2 infrastructure, and consulting with
`ISPs, I have gained a strong understanding in the role of the Internet in our society
`and the challenges of deploying large-scale production networking infrastructure.
`CITS, since its inception, has looked at the role of the Internet in society, including
`how the evolution of technology has created communication opportunities and
`challenges, including, for example, through disruptive technologies like P2P. TMP
`looks to focus on non-purely technical issues, including, for example, state-of-the-
`art business methods, strategies for successful technology commercialization, new
`venture creation, and best practices for fostering innovation. Through my industry
`collaborations and Internet2 work, I have developed significant experience in the
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`challenges of deploying, monitoring, managing, and scaling communication
`infrastructure to support evolving Internet services like streaming media,
`conferencing, content exchange, social networking, and e-commerce.
`26. Additional details about my employment history, fields of expertise,
`and publications are further included in my CV (Ex. 2008).
`3. Other Relevant Qualifications
`27. I am a Member of the Association of Computing Machinery (ACM)
`and a Fellow of the Institute of Electrical and Electronics Engineers (IEEE).
`28. As an important component of my research program, I have been
`involved in the development of academic research into available technology in the
`market place. One aspect of this work is my involvement in the Internet Engineering
`Task Force (IETF). The IETF is a large and open international community of
`network designers, operators, vendors, and researchers concerned with the evolution
`of the Internet architecture and the smooth operation of the Internet. I have been
`involved in various IETF groups including many content delivery-related working
`groups like the Audio Video Transport (AVT) group, the MBone Deployment
`(MBONED) group, Source Specific Multicast (SSM) group, the Inter-Domain
`Multicast Routing (IDMR) group, the Reliable Multicast Transport (RMT) group,
`the Protocol Independent Multicast (PIM) group, etc. I have also served as a member
`of the Multicast Directorate (MADDOGS), which oversaw the standardization of all
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`things related to multicast in the IETF. Finally, I was the Chair of the Internet2
`Multicast Working Group for seven years.
`29. I am an author or co-author of approximately 200 technical papers,
`published software systems, IETF Internet Drafts and IETF Request for Comments
`(RFCs). A complete list of my publications is in my CV (Ex. 2008).
`30. I have been awarded numerous teaching awards, including Computer
`Science Outstanding Faculty Member (1997-98, 1998-99, 1999-2000, 2004-06,
`UCSB Spotlight on Excellence Award (2000-01), and UCSB Academic Senate
`Distinguished Teaching Award (2006-07).
`B. Previous Expert Witness Testimony
`31. The list of recent matters in which I have testified can be found at the
`end of Ex. 2008.
`C. Preparation for this Declaration
`32. In forming my opinions, I have considered the ’320 patent
`specification, including the Abstract, the figures, and the claim language itself, as
`would have been understood by a person of ordinary skill in the art as of the priority
`date of the ’320 patent (a “POSITA”). My understanding of “POSITA” and “priority
`date” are set forth below. I have also reviewed the Petition, the expert declaration
`of Dr. Pokharna, the references cited and relied on by the Petition and Dr. Pokharna,
`and any other material cited in this declaration.
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`33. In forming my opinions, I have relied on my personal knowledge and
`professional experience, and on the documents and information referenced in this
`declaration.
`34. This declaration explains, based on facts and information available to
`me to date, the subject matter and opinions related to this Proceeding. As such, I am
`prepared to provide expert testimony regarding opinions formed resulting from my
`analysis of the issues considered in this declaration if asked about those issues by
`the Board or by the private parties’ attorneys. If the Board institutes an IPR
`proceeding relating to the ’320 patent, I reserve the right to submit an additional
`declaration providing further opinions, including in connection with claim
`limitations and dependent claims that I do not discuss in this declaration.
`35. Additionally, I may discuss my own work, teachings, and knowledge
`of the state of the art in the relevant time period. I may rely on handbooks, textbooks,
`technical literature, and the like to demonstrate the state of the art in the relevant
`period and the evolution of relevant technologies.
`36. Throughout this declaration, I refer to specific pages of the ’320 patent
`and other documents. The citations are intended to be exemplary and are not
`intended to convey that the citations are the only source of evidence to support the
`propositions for which they are cited.
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`II. Legal Understanding
`37. In this section, I describe my understanding of certain legal standards
`that I have relied upon in forming my opinions set forth in this declaration. I have
`been informed of these legal standards by Patent Owner’s attorneys. I am not an
`attorney and I have not thoroughly researched the law on patent invalidity. I am
`relying only on instructions from Patent Owner’s attorneys for these legal standards.
`A. Claim Construction
`38. I have been instructed by counsel that claim construction is a matter of
`law. I understand that in an inter partes review, claims are construed using the same
`claim construction standard that would be used to construe the claim in a civil action,
`namely according to their plain and ordinary meaning to a POSITA.
`39. I understand that a patent may include two types of claims, independent
`claims and dependent claims. An independent claim stands alone and includes only
`the limitations it recites. A dependent claim can depend on an independent claim or
`another dependent claim. I understand that a dependent claim includes all the
`limitations that it recites in addition to the limitations recited in the claim from which
`it depends.
`B. Anticipation
`40. I understand that a patent claim is anticipated when a single piece of
`prior art describes every element of the claimed invention, either expressly or
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`inherently, arranged in the same way as in the claim. For inherent anticipation to be
`found, it is required that the missing descriptive material is necessarily present in the
`prior art. I understand that, for the purpose of an inter partes review, prior art that
`anticipates a claim can include both patents and printed publications from anywhere
`in the world.
`C. Obviousness
`41. I understand that a patent claim is unpatentable and invalid if the subject
`matter of the claim as a whole would have been obvious to a POSITA as of the time
`of the invention at issue. My understanding of a POSITA is set forth below. I
`understand that the following factors must be evaluated to determine whether the
`claimed subject matter is obvious: (1) the scope and content of the prior art; (2) the
`difference or differences, if any, between each claim of the patent and the prior art;
`and (3) the level of ordinary skill in the art at the time the patent was filed. Unlike
`anticipation, which allows consideration of only one item of prior art, I understand
`that obviousness may be shown by considering more than one item of prior art.
`42. I understand that to prove that multiple prior art references together
`render a patent obvious, it is necessary to: (1) identify the specific references that
`together make the patent obvious; (2) identify which of the asserted references
`discloses each of the elements of the patent claim, and where the reference discloses
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`that element; and (3) explain how the references would have been combined by a
`person of ordinary skill in the art to arrive at the claimed invention.
`43. In addition, I understand that for establishing obviousness, it is not
`sufficient to show that each element of the claim appears in one of multiple prior art
`references. It is also necessary to show that a person of ordinary skill in the art would
`have been motivated to combine the references in a manner that arrives at the
`claimed invention, and would have has a reasonable expectation of success in
`combining the references in that manner. I understand that a prior art reference may
`teach away from a combination if a person of ordinary skill in the art, based on the
`teachings of the reference, would have been discouraged from pursuing a particular
`approach or technique, or would have been led in a different direction that that of
`the claimed invention.
`44. Moreover, I have been informed and I understand that the so-called
`objective indicia of non-obviousness, also known as “secondary considerations,” are
`also to be considered when assessing obviousness. These include: (1) commercial
`success; (2) long-felt but unresolved needs; (3) copying of the invention by others
`in the field; (4) initial expressions of disbelief by experts in the field; (5) failure of
`others to solve the problem that the inventor solved; and (6) unexpected results. I
`also understand that evidence of objective indicia of non-obviousness must be
`commensurate in scope with the claimed subject matter.
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`IPR2025-01288
`Decl. of Dr. Kevin Almeroth
` - 19 - Cloud Byte Ex. 2007
`
`III. The ’320 patent
`45. The ’320 patent is titled “ICT equipment.”
`46. The ’320 patent lists as its sole named inventor Kumiko Suzuki.
`A. Priority Date
`47. The ’320 patent was filed as U.S. Patent Application No. 13/782,490
`on March 1, 2013, and issued on May 16, 2017. It claims priority to a Japanese
`application No. 2012-046673, dated March 2, 2012.
`48. I offer no opinion in this declaration as to whether the ’320 patent is
`entitled to its foreign priority date. My opinions herein apply regardless of whether
`March 1, 2013 or March 2, 2012 are used as