Trials@uspto.gov
`571-272-7822
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` Paper 29
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`Entered: March 10, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BROADCOM CORPORATION
`Petitioner
`
`v.
`
`TELEFONAKTIEBOLAGET L. M. ERICSSON
`Patent Owner
`
`
`Case IPR2013-00601
`Patent 6,772,215
`
`
`
`Before KARL D. EASTHOM, KALYAN K. DESHPANDE, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`571-272-7822
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` Paper 29
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`Entered: March 10, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BROADCOM CORPORATION
`Petitioner
`
`v.
`
`TELEFONAKTIEBOLAGET L. M. ERICSSON
`Patent Owner
`
`
`Case IPR2013-00601
`Patent 6,772,215
`
`
`
`Before KARL D. EASTHOM, KALYAN K. DESHPANDE, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`Case IPR2013-00601
`Patent 6,772,215
`
`
`
`I.
`
`INTRODUCTION
`
`Broadcom Corporation (“Petitioner”) filed a petition requesting inter
`
`partes review of claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46, 49,
`
`52, and 54 (the “challenged claims”) of U.S. Patent No. 6,772,215
`
`(Ex. 1001, “the ’215 patent”). Paper 3 (“Pet.”). Telefonaktiebolaget L. M.
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`Ericsson (“Patent Owner”) filed an election to waive its preliminary
`
`response. Paper 22. We have jurisdiction under 35 U.S.C. § 314.
`
`The standard for instituting an inter partes review is set forth in
`
`35 U.S.C. § 314(a), which provides as follows:
`
`THRESHOLD.—The Director may not authorize an inter
`partes review to be instituted unless the Director determines
`that the information presented in the petition filed under section
`311 and any response filed under section 313 shows that there
`is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.
`
`Upon consideration of the petition, we determine that the information
`
`presented by Petitioner establishes that there is a reasonable likelihood that
`
`Petitioner would prevail in showing unpatentability of the challenged claims
`
`of the ’215 patent. Accordingly, pursuant to 35 U.S.C. § 314, we institute an
`
`inter partes review of claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46,
`
`49, 52, and 54 of the ’215 patent.
`
`A. Related Proceedings
`
`Petitioner and Patent Owner indicate that the ’215 patent is involved
`
`in a case captioned Ericsson Inc., et al. v. D-LINK Corp., et al., Civil Action
`
`No. 6:10-cv-473 (E.D. Tex.) (“Texas Litigation”), and in an investigation
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`2
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`Patent 6,772,215
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`captioned In the Matter of Certain Electronic Devices, Including Wireless
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`Communication Devices, Tablet Computers, Media Players and Televisions,
`
`and Components Thereof, ITC Inv. No. 337-TA-862. Pet. 1-2; Paper 6 at 1.
`
`Patent Owner also identifies an appeal at the Federal Circuit captioned
`
`Ericsson Inc., et al. v. D-LINK Corp., et al., Case Nos. 2013-1625, -1631, -
`
`1632, and -1633. Paper 6 at 1. Petitioner also has filed two petitions for
`
`inter partes review of related patents: IPR2013-00602 (U.S. Patent No.
`
`6,466,568), IPR2013-00636 (U.S. Patent No. 6,424,625).
`
`B. The ’215 Patent
`
`The ’215 patent relates to the telecommunications field and, in
`
`particular, to a method for minimizing feedback responses in Automatic
`
`Repeat Request (ARQ) protocols. Ex. 1001, col. 1, ll. 14-17. When data is
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`conveyed between nodes in a network, certain algorithms are used to recover
`
`from the transmission of erroneous data and the loss of data between the
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`nodes. Id. at ll. 20-23. An algorithm commonly used is referred to as an
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`ARQ protocol. Id. at ll. 23-25. Each node, or peer entity, in a network
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`includes a receiver and a sender. Id. at ll. 26-29. The units of data conveyed
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`between peer entities are commonly referred to as Protocol Data Units
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`(“PDUs”). Id. at ll. 29-30. The basic function of an ARQ protocol is to
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`allow the receiver to request that the sender retransmit PDUs that were lost
`
`during transmission or contained errors. Id. at ll. 33-37. The receiver can
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`inform the sender about which PDUs were correctly received and/or can
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`inform the sender about which PDUs were not correctly received. Id. at
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`3
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`ll. 38-41. When the sender receives this information, it retransmits the “lost”
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`PDUs. Id. at ll. 41-42. Several ARQ protocols, such as Stop-and-Wait
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`ARQ, Go-back-N ARQ, and Selective-Repeat ARQ, existed at the time that
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`the ’215 patent was filed and were well known. Id. at col. 2, ll. 17-21.
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`Figure 1 of the ’215 patent is reproduced below.
`
`
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`Figure 1 illustrates the use of ARQ protocols. Id. at ll. 22-23. A sequence
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`of transmitted Data-PDUs (“D-PDUs”) and Status-PDUs (“S-PDUs”) is
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`shown. Id. at ll. 28-29. A D-PDU includes user data, a sequence number
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`(“SN”), and possibly piggybacked error control information. Id. at ll. 29-31.
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`The sequence number (“SN”) associated with each D-PDU to identify that
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`specific D-PDU. Id. at ll. 32-34. An S-PDU includes status information but
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`no user information. Id. at ll. 31-32.
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`4
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`Two main methods are currently used for coding the SNs within S-
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`PDUs: (1) a list of SNs to be retransmitted; and (2) a bitmap to represent the
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`SNs to be retransmitted. Id. at ll. 48-52. As such, an S-PDU includes a
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`format identifier that can be used by a receiver to distinguish between the
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`different PDU formats.
`
`Figures 2 and 3 of the ’215 patent are reproduced below:
`
`
`
`Figure 2 shows an S-PDU that uses the list method to code SNs. Id. at
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`ll. 60-62. Figure 3 shows an S-PDU that uses the bitmap method to code
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`SNs. Id. at col. 3, ll. 18-19. According to the ’215 patent, a significant
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`problem with existing ARQ protocols is that fixed length messages are used,
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`which leads to a waste of bandwidth because of the unnecessary overhead
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`information that is transmitted. Id. at ll. 46-50.
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`Table 1 is reproduced below.
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`5
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`Table 1 shows different error circumstances in each row and, for each, the
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`number of bits needed to code an S-PDU using the list and bitmap methods.
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`Id. at col. 4, ll. 1-10. As illustrated by rows 2-5 of Table 1, both the list
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`method and the bitmap method have problems with building efficiently
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`small S-PDUs for the error circumstances shown. Id. at ll. 11-13.
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`According to the ’215 patent, a significant need existed for a method that
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`can be used to minimize the size of S-PDUs in an ARQ protocol or, if it is
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`not possible to fit all SNs into a single S-PDU, to maximize the number of
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`SNs in an S-PDU with limited size. Id. at ll. 33-38.
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`To address these issues, the ’215 patent discloses a method whereby
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`different mechanisms for indicating erroneous D-PDUs can be combined in
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`a single S-PDU. Id. at ll. 43-48. Each message includes three fields: type
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`information, length information, and a value. Id. at col. 5, ll. 60-66. In
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`accordance with a first embodiment of the invention, a bitmap message can
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`be constructed using a number of methods can be used to represent the
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`length of the bitmap fields. Id. at col. 6, ll. 19-48. Likewise, a list message
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`can list only erroneous SNs or can combine the prior art list method with the
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`list of only erroneous SNs. Id. at col. 6, l. 49 – col. 7, l. 51. In accordance
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`6
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`with a second embodiment of the invention, a number of different message
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`types can be combined to create an S-PDU. Id. at col. 7, ll. 52-54. Figure 8,
`
`reproduced below, illustrates how an S-PDU can be constructed in
`
`accordance with this embodiment:
`
`
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`As shown in Figure 8, the resulting S-PDU includes two BITMAP’
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`messages and one LIST’ message. Id. at col. 8, ll. 43-44. For comparison
`
`with the prior art techniques, Table 3 is reproduced below.
`
`Table 3 shows the sizes of S-PDUs constructed in accordance with the prior
`
`art list and bitmap methods, and also with the combination method described
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`
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`7
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`in accordance with the second embodiment. Id. at col. 9, ll. 27-30. As
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`illustrated by Table 3, the size of S-PDUs resulting from the combination
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`method of the present invention is significantly smaller than that of the S-
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`PDUs resulting from the prior art methods. Id. at col. 9, ll. 32-35.
`
`C. Exemplary Claim
`
`Of the challenged claims, claims 1, 15, 25, and 45 are independent.
`
`Claim 1 is reproduced below:
`
`A method for minimizing feedback responses in an ARQ
`1.
`protocol, comprising the steps of:
`
`sending a plurality of
`communication link;
`
`first data units over a
`
`receiving said plurality of first data units; and
`
`responsive to the receiving step, constructing a message
`field for a second data unit, said message field including a type
`identifier field and at least one of a sequence number field, a
`length field, and a content field.
`
`D. References Relied Upon
`
`Petitioner relies upon the following references:
`
`Seo
`
`US 6,581,176
`
`June 17, 3003
`
`Ex. 1002
`
`Fengmin Gong, et al., “An Application-Oriented Error
`Control Scheme for High-Speed Networks,” IEEE/ACM
`Transactions on Networking, Vol. 4, No. 5 (1996) (“Gong”)
`
`Ex. 1003
`
`E. The Asserted Grounds of Unpatentability
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`Petitioner argues that the challenged claims are unpatentable based
`
`upon the following grounds:
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`8
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`Reference
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`Seo
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`Gong
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`Basis Claims challenged
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`§ 102 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32,
`34, 45, 46, 49, 52, and 54
`§ 102 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32,
`34, 45, 46, 49, 52, and 54
`
`II. ANALYSIS
`
`A. Claim Construction
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14,
`
`2012). Also, claim terms are given their ordinary and customary meaning,
`
`as would be understood by one of ordinary skill in the art in the context of
`
`the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257
`
`(Fed. Cir. 2007).
`
`1. “responsive to the receiving step, constructing a message field for a
`second data unit, said message field including a type identifier field”
`
`Petitioner proposes that this phrase be construed as “responsive to the
`
`receiving step, generating a message field including a field that identifies the
`
`message type of the feedback response message from a number of different
`
`message types.” Pet. 5. Petitioner states that this construction was proposed
`
`by Patent Owner and adopted by the Court in the Texas Litigation. Pet. 8
`
`(citing Ex. 1005, 9). Petitioner does not dispute this construction. Pet. 8.
`
`The proposed construction replaces “constructing” with “generating,” and
`
`replaces “type identifier field” with “a field that identifies the message type
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`of the feedback response message from a number of different message
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`types.” Although this construction has been adopted in the Texas Litigation,
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`we are not persuaded that it is the broadest reasonable interpretation of this
`
`limitation. For example, the antecedent basis for “the feedback response
`
`message” in the proposed construction is the “feedback responses” of the
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`preamble.
`
`“In general, a preamble limits the invention if it recites essential
`
`structure or steps, or if it is ‘necessary to give life, meaning, and vitality’ to
`
`the claim. Catalina Marketing Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d
`
`801, 808 (Fed. Cir. 2002) (quoting Pitney Bowes, Inc. v. Hewlett-Packard
`
`Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)). “Conversely, a preamble is not
`
`limiting ‘where a patentee defines a structurally complete invention in the
`
`claim body and uses the preamble only to state a purpose or intended use for
`
`the invention.’” Id. (quoting Rowe v. Dror, 112 F.3d 473, 478 (Fed. Cir.
`
`1997)).
`
`If we were to adopt Petitioner’s proposed construction, it would
`
`introduce a dependency upon the preamble, thereby causing the preamble to
`
`limit the invention.1 We are not persuaded that Petitioner’s proposed
`
`construction would be the broadest reasonable interpretation of the claim
`
`because no term of the claim, as drafted, has its antecedent basis in the
`
`preamble.
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`
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`1 This result would be contrary to Petitioner’s proposed construction of the
`preambles as non-limiting. Pet. 7, 8.
`10
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`To the extent that Petitioner seeks to clarify the term “type identifier
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`field,” we note that the ’215 patent does not define explicitly that term, but
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`uses it several times to describe a field in an S-PDU that indicates whether
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`that S-PDU includes a list or a bitmap. Ex. 1001, col. 6, l. 20; col. 8. ll. 2,
`
`16; see also id. at col. 7, ll. 58, 60, 62 (describing a “type identifier”); col. 8,
`
`l. 9, 56 (describing a “type identifier”). For example, Table 2 depicts a
`
`column labeled “Type Identifier,” that includes NO_MORE, LIST’,
`
`BITMAP’, and ACK. Id. at col. 9, ll. 1-9. On this record, we are persuaded
`
`that a “type identifier field” is a field of a message that identifies the type of
`
`that message, such as list or bitmap. Accordingly, we decline to construe
`
`“responsive to the receiving step, constructing a message field for a second
`
`data unit, said message field including a type identifier field” as a phrase, but
`
`we construe “type identifier field” as “a field of a message that identifies the
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`type of that message.”
`
`Alternatively, claim 1 recites no step that is functionally dependent
`
`upon the content of the recited message field or of the type identifier field.
`
`Thus, the recited “type identifier field” and other recited fields of the
`
`message field constitute non-functional descriptive material since the fields
`
`have no functional impact on the claimed method. “‘Where the printed
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`matter is not functionally related to the substrate, the printed matter will not
`
`distinguish the invention from the prior art in terms of patentability.’” King
`
`Pharmaceuticals, Inc. v. Eon Labs, Inc., 616 F.3d 1267, 1278-79 (Fed. Cir.
`
`2010) (quoting In re Gulack, 703 F.2d 1381, 1385 (Fed. Cir. 1983) and
`
`extending the rationale behind Gulack and In re Ngai, 367 F.3d 1336 (Fed.
`
`11
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`Cir. 2004) to method claims citing informational instructions).
`
`Nevertheless, for the sake of analyzing whether the prior art teaches or
`
`suggests a “message field including a type identifier field,” we consider
`
`Petitioner’s proposed construction.
`
`Therefore, we construe “type identifier field” as “a field of a message
`
`that identifies the type of that message” or alternatively, as any type of data,
`
`because claim 1 does not alter the method according to the “type identifier
`
`field” or otherwise operate on the “type identifier field” in a functional
`
`manner.
`
`2. “means for receiving said plurality of first data units, and
`constructing one to several message fields for a second data unit, said
`one to several message fields including a type identifier field and at
`least one of a sequence number field, a length field, a content field, a
`plurality of erroneous sequence number fields, and a plurality of
`erroneous sequence number length fields, each of said plurality of
`erroneous sequence number fields associated with a respective one of
`said plurality of erroneous sequence number length fields”
`
`Petitioner’s Proposal
`
`Function: receiving said plurality of first data units, and
`constructing one to several message fields for a second data
`unit, said one to several message fields including a type
`identifier field and at least one of a sequence number field, a
`length field, a content field, a plurality of erroneous sequence
`number fields, and a plurality of erroneous sequence number
`length fields, each of said plurality of erroneous sequence
`number fields associated with a respective one of said
`plurality of erroneous sequence number length fields. (Pet.
`5-6)
`
`Structure: the receiver of an entity capable of constructing
`
`12
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`one or more message fields including [a] a type identifier field
`and [b] at least one of [i] a sequence number field, [ii] a length
`field, [iii] a content field, [iv] a plurality of erroneous
`sequence number fields, and [v] a plurality of erroneous
`sequence number length fields, each of said plurality of
`erroneous sequence number fields associated with a respective
`one of said plurality of erroneous sequence number length
`fields. (See ‘215 Patent, FIG. 1 (ARQ Entity-2 12); 1:26-
`29; 2:22-24; 2:63-3:16; 3:17-28; 6:8-48; Ex. 1001). (Pet. 6-7)
`
`Petitioner contends that this term is a means-plus-function element
`
`invoking 35 U.S.C. § 112, paragraph 6 (now re-codified as 35 U.S.C.
`
`§ 112(f)). We agree because (1) the limitation uses the phrase “means for”;
`
`(2) the term “means for” is modified by functional language; and (3) the
`
`term “means for” is not modified by any structure recited in the claim to
`
`perform the claimed function.
`
`On this record, we determine that the function of the
`
`means for receiving said plurality of first data units, and
`constructing one to several message fields for a second data
`unit, said one to several message fields including a type
`identifier field and at least one of a sequence number field, a
`length field, a content field, a plurality of erroneous sequence
`number fields, and a plurality of erroneous sequence number
`length fields, each of said plurality of erroneous sequence
`number fields associated with a respective one of said plurality
`of erroneous sequence number length fields
`
`
`receiving said plurality of first data units, and constructing one
`to several message fields for a second data unit, said one to
`several message fields including a type identifier field and at
`least one of a sequence number field, a length field, a content
`
`13
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`is
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`field, a plurality of erroneous sequence number fields, and a
`plurality of erroneous sequence number length fields, each of
`said plurality of erroneous sequence number fields associated
`with a respective one of said plurality of erroneous sequence
`number length field.
`
`Petitioner identifies as the structure for performing the function “the
`
`receiver of an entity.” Pet. 6-7. Petitioner identifies specifically ARQ
`
`Entity-2 12 of Figure 1. Pet. 7. In Figure 1, ARQ Entity-2 12, or ARQ peer
`
`entity 12 as it is referred to in the ’215 patent, is receiving the D-PDUs from
`
`ARQ Entity-1 10. Ex. 1001, col. 2, ll. 22-27. However, the ’215 patent
`
`discloses that “[e]ach [peer] entity includes a receiver and a sender.” Ex.
`
`1001, col. 1, ll. 26-30 (emphasis added); col. 2, ll. 23-24. Thus, ARQ peer
`
`entity 12 includes both a sender and a receiver.2 We agree with Petitioner
`
`that the receiver of a peer entity would perform the function of “receiving
`
`said plurality of first data units.” However, Petitioner’s construction would
`
`also require the “receiver” of a peer entity to perform the function of
`
`“constructing one to several message fields.” The ’215 patent suggests that
`
`the constructing of a message is performed by the sender of a peer entity.
`
`See, e.g., Ex. 1001, col. 1, ll. 45-48 (“These rules specify, for example, how
`
`
`
`2 For clarity, we note that the ’215 patent also refers to “a sending side” and
`“a receiving side” (col. 1, ll. 43-44), and abbreviates imprecisely the
`“sending side” as the “sender” and the “receiving side” as the “receiver”
`(see, e.g., col. 1, ll. 35-37). In this usage, “sender” and “receiver” refer to
`respective peer entities communicating with one another—e.g., “The
`receiver can inform the sender about which PDUs were correctly received
`. . . .” (col. 1, ll. 38-39)—not to the “sender” and “receiver” components of a
`given peer entity, as referred to at col. 1, ll. 26-30.
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`and in what form the PDUs are to be constructed so that the receiving side
`
`can interpret the conveyed PDUs correctly and respond to them
`
`accordingly.”) (emphasis added). Based on our review of the ’215 patent,
`
`the structure described as performing the function of “constructing one to
`
`several message fields for a second data unit” is the sender of the peer entity.
`
`On this record, therefore, we construe the structure for performing the
`
`recited function to be the sender and receiver of a peer entity.
`
`3. “for minimizing feedback responses in an ARQ protocol” (Preambles)
`
`The preamble of each independent claim recites “for minimizing
`
`feedback responses in an ARQ protocol.” Petitioner proposes that the
`
`preambles of the independent claims be construed not to limit the claims.
`
`Pet. 7, 8-9 (citing Ex. 1005, 7-9; Ex. 1006, 245). None of the claim terms
`
`have their antecedent basis in the preamble. On this record, because the
`
`independent claims define a structurally complete invention in the claim
`
`body and use the preamble only to state a purpose or intended use for the
`
`invention, we are persuaded that the preambles do not limit the claims.
`
`4. “means for sending a plurality of first data units over said
`communication link to said second peer entity”
`
` Petitioner’s Proposal
`
`Function: sending a plurality of first data units over
`said communication link to said second peer entity (Pet. 7)
`
`Structure: a transmitter of an entity capable of sending a
`plurality of first data units over a communication link to a peer
`entity. (‘215 patent, FIG. 1 (ARQ Entity-1 10); 1:26-
`41; Ex. 1001). (Pet. 7)
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`Petitioner contends that this term is a means-plus-function element
`
`invoking 35 U.S.C. § 112, paragraph 6 (now re-codified as 35 U.S.C.
`
`§ 112(f)). We agree because (1) the limitation uses the phrase “means for”;
`
`(2) the term “means for” is modified by functional language; and (3) the
`
`term “means for” is not modified by any structure recited in the claim to
`
`perform the claimed function.
`
`On this record, we determine that the function of the “means for
`
`sending a plurality of first data units over said communication link to said
`
`second peer entity” is “sending a plurality of first data units over said
`
`communication link to said second peer entity.”
`
`Petitioner identifies as the structure for performing the function “a
`
`transmitter of an entity.” Pet. 7. Petitioner identifies specifically ARQ
`
`Entity-1 10 of Figure 1. In Figure 1, ARQ Entity-1 10, or ARQ peer entity
`
`10 as it is referred to in the ’215 patent, is sending D-PDUs to ARQ Entity-2
`
`12. Ex. 1001, col. 2, ll. 22-27. The ’215 patent discloses that “[e]ach [peer]
`
`entity includes a receiver and a sender.” Ex. 1001, col. 1, ll. 26-30
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`(emphasis added); col. 2, ll. 23-24. Thus, ARQ peer entity 10 includes both
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`a sender and a receiver. The ’215 patent suggests that the sending of a data
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`unit, or PDU, is performed by the sender of a peer entity. See, e.g., Ex.
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`1001, col. 1, ll. 45-48 (“These rules specify, for example, how and in what
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`form the PDUs are to be constructed so that the receiving side can interpret
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`the conveyed PDUs correctly and respond to them accordingly.”) (emphasis
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`added). Petitioner identifies the structure as a “transmitter,” but the ’215
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`patent does not disclose a “transmitter.” On this record, therefore, we
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`construe the structure for performing the recited function to be the sender of
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`a peer entity.
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`B. The Challenged Claims – Anticipated by Seo
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`Petitioner argues that claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34,
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`45, 46, 49, 52, and 54 are unpatentable under 35 U.S.C. § 102(b) as
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`anticipated by Seo. Pet. 21-45. In support of this ground of unpatentability,
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`Petitioner provides detailed explanations as to how each claim limitation is
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`disclosed by Seo, and relies upon the Declaration of Dr. Bims. Id. (citing
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`Ex. 1004 ¶¶ 31-70).
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`Seo (Exhibit 1002)
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`Seo describes a method for transmitting control frames and user data
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`frames in a mobile radio communications system. Ex. 1002, col. 1, ll. 10-
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`12. Specifically, Seo discusses a modification of the Radio Link Protocol
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`(“RLP”) specified in international standard IS-707 for a Code Division
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`Multiple Access (“CDMA”) mobile radio communication system. Id. at
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`ll. 14-19; col. 5, ll. 28-30. According to the RLP retransmission procedure, a
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`Negative Acknowledgement (“NAK”) RLP control frame for a particular
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`user data frame can be transmitted more than once at the same time to ensure
`
`reliability and, in response to receiving each NAK, the missing user data
`
`frame will be retransmitted. According to the invention of Seo, rather than
`
`transmitting each NAK corresponding to each missed user data frame, a
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`single NAK corresponding to all missed user data frames is transmitted to
`
`the sender. Id. at col. 5, ll. 31-36.
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`Figure 4 of Seo is reproduced below:
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`Figure 4 shows the structure of a RLP NAK control frame according to the
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`invention of Seo. Id. at ll. 42-43. The NAK control frame of Seo includes a
`
`field NAK_TYPE with a length of 2 bits to indicate a NAK type. Id. at
`
`
`
`ll. 53-54.
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`If the value of NAK_TYPE is “00,” the receiver is requesting
`
`retransmission of a range of missed user data frames (Id. at ll. 54-57), and
`
`the fields FIRST, LAST, FCS, and padding exist (Id. at col. 6, ll. 18-19).
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`FIRST is the 12-bit sequence number of the first data frame for which
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`retransmission is requested. Id. at col. 5, ll. 63-65. LAST is the 12-bit
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`sequence number of the last data frame for which retransmission is
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`requested. Id. at ll. 65-67. SEQ, with a length of 8 bits, is a data frame
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`sequence number. Id. at ll. 57-58.
`
`If the value of NAK_TYPE is “01,” the receiver is requesting
`
`retransmission of missed user data frames using a bitmap, and the field
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`NAK_MAP_COUNT exists. Id. at col. 6, ll. 8-21. If the value of the field
`
`NAK_MAP_COUNT+1 exists, then the fields NAK_MAP_SEQ and
`
`NAK_MAP exist. Id. at ll. 21-22. NAK_MAP_SEQ is the 12-bit sequence
`
`number of the first data frame in the NAK Map for which retransmission is
`
`requested. Id. at ll. 8-11. NAK_MAP is an 8-bit bitmap identifying the
`
`missing user data frames for which retransmission is requested, wherein the
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`most significant bit corresponds to the user data frame identified by
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`NAK_MAP_SEQ+1. Id. at ll. 11-15.
`
`Analysis
`
`In light of the arguments and evidence, Petitioner has established a
`
`reasonable likelihood that the challenged claims are unpatentable as
`
`anticipated by Seo.
`
`For example, independent claim 1 recites “sending a plurality of first
`
`data units over a communication link.” Seo discloses a “transmitting
`
`station” that sends user data frames to a “receiving station” over a “radio
`
`section between a receiving station and the transmitting station.” Ex. 1002,
`
`col. 5, ll. 28-41; see also id. at col. 8, ll. 24-27 (“transferring user data
`
`frames of a radio link protocol (RLP) from a transmitting station to a
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`receiving station”), Fig. 6 (“Transmitting Station A”). The user data frames
`
`transport user traffic data. Id. at col. 1, ll. 21-22.
`
`Claim 1 also recites “receiving said plurality of first data units.” Seo
`
`discloses a “receiving station” that receives user data frames from the
`
`“transmitting station.” Id. at col. 1, ll. 21-22, col. 5, ll. 28-41, col. 8, ll. 24-
`
`27, Fig. 6 (“Receiving Station B”).
`
`Finally, claim 1 recites “responsive to the receiving step, constructing
`
`a message field for a second data unit, said message field including a type
`
`identifier field and at least one of a sequence number field, a length field,
`
`and a content field.” Seo discloses an “RLP NAK” message that includes a
`
`field NAK_TYPE that identifies whether the message identifies a range of
`
`sequence numbers or uses a bitmap. If the value of NAK_TYPE is “00,” the
`
`RLP NAK message includes two fields—FIRST and LAST—with “the 12-
`
`bit sequence number of the first data frame for which a retransmission is
`
`required,” and “the 12-bit number of the last data frame for which a
`
`retransmission is required,” respectively. Ex. 1002, col. 5, ll. 54-57, 63-67,
`
`col. 6, ll. 17-18. If the value of NAK_TYPE is “01,” the RLP NAK message
`
`includes a field NAK_MAP_SEQ with “the 12-bit sequence number of the
`
`first data frame in this NAK Map for which [] retransmission is requested.”
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`Id. at col. 6, ll. 9-11. On this record, we are persuaded that Seo’s RLP NAK
`
`message includes a type identifier field (NAK_TYPE), and a sequence
`
`number field (FIRST, LAST, or NAK_MAP_SEQ). We are persuaded that
`
`Seo discloses this limitation whether “type identifier field” is construed to
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`mean “a field of a message that identifies the type of that message,” or, in
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`the alternative, to mean any type of data.
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`Claim 2 recites “wherein said message field comprises a bitmap
`
`message.” Claim 6 recites similarly “wherein said content field comprises a
`
`bitmap.” Seo discloses that, if the value of NAK_TYPE is “01,” the RLP
`
`NAK message includes a field NAK_MAP “with a length of 8 bits [that] is a
`
`bit-map identifying the missing user data frames for which a retransmission
`
`is requested.” Id. at col. 6, ll. 11-13. On this record, we are persuaded that
`
`Seo discloses claims 2 and 6.
`
`Claim 4 recites “wherein said sequence number field includes any
`
`sequence number from said plurality of first data units.” Claim 8 recites
`
`similarly “wherein said second data unit comprises information about
`
`missing or erroneous said first data units.” As discussed above, the RLP
`
`NAK message includes fields with sequence numbers for which
`
`retransmission is requested—i.e., the sequence number of a data unit
`
`previously sent by the transmitting station but not missed by the receiving
`
`station. See, e.g., Id. at col. 2, ll. 46-51 (“That is, the receiving station
`
`requests the transmitting station to retransmit the missed user data frames
`
`hereto.”) (emphasis added). On this record, we are persuaded that Seo
`
`discloses claims 4 and 8.
`
`Petitioner also argues that claims 15, 22, 25, 26, 29, 32, 34, 45, 46, 49,
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`52, and 54 are disclosed by Seo. Pet. 23-33, 38-41. On this record,
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`Petitioner’s showing is reasonable.
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`Conclusion
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`We are persuaded that Petitioner has established a reasonable
`
`likelihood that it would prevail in showing that claims 1, 2, 4, 6, 8, 15, 22,
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`25, 26, 29, 32, 34, 45, 46, 49, 52, and 54 are unpatentable as anticipated by
`
`Seo.
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`C. Other Grounds
`
`Petitioner also asserts that claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32,
`
`34, 45, 46, 49, 52, and 54 are unpatentable under 35 U.S.C. § 102 as
`
`anticipated by Gong. Pet. 41-55. That asserted ground is redundant in light
`
`of the determination that there is a reasonable likelihood that the challenged
`
`claims are unpatentable based on the grounds of unpatentability on which we
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`institute an inter partes review. See 37 C.F.R. § 42.108(a).
`
`III. CONCLUSION
`
`For the foregoing reasons, we determine that the information
`
`presented in the petition establishes that there is a reasonable likelihood that
`
`Petitioner would prevail in establishing the unpatentability of claims 1, 2, 4,
`
`6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46, 49, 52, and 54 of the ’215 patent.
`
`The Board has not made a final determination on the patentability of
`
`any challenged claims.
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`Accordingly, it is
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`IV. ORDER
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`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review is
`
`hereby instituted as to claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46,
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`49, 52, and 54 of the ’215 patent as anticipated by Seo;
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`
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`FURTHER ORDERED that all other grounds raised in Petitioner’s
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`petition are denied because they are deficient for the reasons discussed
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`above;
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`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(d) and
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`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial on the
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`grounds of unpatentability authorized above; the trial commences on the
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`entry date of this decision; and
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