Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 60
`Entered: March 6, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BROADCOM CORPORATION,
`Petitioner,
`
`v.
`
`WI-FI ONE, LLC,
`Patent Owner.
`
`
`
`Case IPR2013-00636
`Patent 6,424,625 B1
`
`
`
`Before KARL D. EASTHOM, KALYAN K. DESHPANDE, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`571-272-7822
`
`
`
`
`
`Paper 60
`Entered: March 6, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`BROADCOM CORPORATION,
`Petitioner,
`
`v.
`
`WI-FI ONE, LLC,
`Patent Owner.
`
`
`
`Case IPR2013-00636
`Patent 6,424,625 B1
`
`
`
`Before KARL D. EASTHOM, KALYAN K. DESHPANDE, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
`
`
`I.
`
`INTRODUCTION
`
`Broadcom Corporation (“Petitioner”) filed a Petition requesting
`
`inter partes review of claim 1 of U.S. Patent No. 6,424,625 (Ex. 1001,
`
`“the ’625 patent”). Paper 3 (“Pet.”). Telefonaktiebolaget L. M.
`
`Ericsson1 (“Patent Owner”) filed an election to waive its Preliminary
`
`Response. Paper 19. On March 10, 2014, we instituted an inter
`
`partes review of claim 1on certain grounds of unpatentability alleged
`
`in the Petition. Paper 25 (“Dec. to Inst.”).
`
`After institution of trial, Patent Owner filed a Patent Owner
`
`Response (Paper 34, “PO Resp.”) and a Motion to Amend (Paper 36,
`
`“Mot. to Amend”). Petitioner filed a Reply (Paper 45, “Pet. Reply”)
`
`and an Opposition to Patent Owner’s Motion to Amend (Paper 44,
`
`“Opp. to Mot. to Amend”). Patent Owner filed a Reply to Petitioner’s
`
`Opposition to its Motion to Amend. Paper 47 (“PO Reply”). Oral
`
`hearing was held on December 8, 2014.2
`
`The Board has jurisdiction under 35 U.S.C. § 6(c). This Final
`
`Written Decision is issued pursuant to 35 U.S.C. § 318(a) and 37
`
`C.F.R. § 42.73.
`
`Petitioner has shown, by a preponderance of the evidence, that
`
`claim 1 of the ’625 patent is unpatentable. Petitoner’s Motion to
`
`Amend is denied.
`
`
`
`1 On July 11, 2014, Patent Owner filed an Updated Mandatory Notice
`indicating that the ’215 patent had been assigned to Wi-Fi One, LLC,
`and that Wi-Fi One, LLC and PanOptis Patent Management, LLC
`were now the real parties-in-interest. Paper 38.
`2 A transcript of the oral hearing is included in the record as Paper 59.
`
`2
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`
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`IPR2013-00636
`Patent 6,424,625 B1
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`
`A. Related Proceedings
`
`Petitioner and Patent Owner indicate that the ’625 patent is
`
`involved in a case captioned Ericsson Inc. v. D-LINK Corp., Civil
`
`Action No. 6:10-cv-473 (E.D. Tex.) (“D-Link Lawsuit”). Pet. 1–2;
`
`Paper 6, 1. Patent Owner also identifies an appeal at the Federal
`
`Circuit captioned Ericsson Inc. v. D-LINK Corp., Case Nos.
`
`2013-1625, -1631, -1632, and -1633. Paper 6, 1. Petitioner also filed
`
`two petitions for inter partes review of related patents: IPR2013-
`
`00601 (U.S. Patent No. 6,772,215) and IPR2013-00602 (U.S. Patent
`
`No. 6,466,568). Pet. 2.
`
`B. The ’625 patent
`
`The ’625 patent relates generally to Automatic Repeat Request
`
`(ARQ) techniques for transferring data in fixed/wireless data
`
`networks. Ex. 1001, 1:7–9. ARQ techniques commonly are used in
`
`data networks to ensure reliable data transfer and to protect data
`
`sequence integrity. Id. at 1:13–15. The integrity of data sequences
`
`normally is protected by sequentially numbering packets and applying
`
`certain transmission rules. Id. at 1:20–22. By doing so, the receiver
`
`receiving the packets can detect lost packets and thereby request that
`
`the transmitter retransmit the affected data packets. Id. at 1:15–20.
`
`According to the ’625 patent, there were three main ARQ schemes:
`
`Stop-and-Wait; Go-Back-N; and Selective Reject. Id. at 1:23–25. All
`
`three provide a mechanism for transferring packets to a receiver in a
`
`data network in an appropriate order. Id. at 1:25–27.
`
`Normally, it is desirable to transfer all packets without data
`
`loss. Id. at 3:46–47. Sometimes, however, sending significantly
`
`3
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`
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`IPR2013-00636
`Patent 6,424,625 B1
`
`delayed packets provides no benefit—e.g., where the delay causes the
`
`information in the packets to become outdated and therefore useless to
`
`the receiver. Id. at 3:47–51. Examples of delay-sensitive applications
`
`are, e.g., telephony, video conferencing, and delay-sensitive control
`
`systems. Id. at 3:51–53. According to the ’625 patent, prior art ARQ
`
`methods did not recognize and allow for situations where data packets
`
`have a limited lifetime, and therefore, fail to minimize bandwidth
`
`usage by not sending (or resending) significantly delayed or outdated
`
`data packets. Id. at 4:9–13.
`
`To address these issues, the ’625 patent discloses an ARQ
`
`technique that minimizes bandwidth usage by accounting for data
`
`packets that have an arbitrary but limited lifetime. Id. at 4:16–19.
`
`Exemplary embodiments of the invention include enhanced “Go-
`
`Back-N” and “Selective Reject” techniques that discard outdated data
`
`packets. Id. at 4:21–25. In an exemplary embodiment of the
`
`invention, the progress of a bottom part of a sender window of the
`
`transmitter is reported to the receiver in order to allow the receiver to
`
`properly skip packets which do not exist anymore because they have
`
`been discarded. Id. at 5:15–21. Thus, the receiver can be commanded
`
`to skip or overlook the packets that have been discarded or, in other
`
`words, to release any expectation of receiving the packets that have
`
`been discarded. Id. at 5:22–27. In the case where the transmitter
`
`discards a packet, it orders the receiver to accept the next packet by
`
`setting a Receiver Packet Enforcement Bit (“RPEB”) in the ARQ
`
`header of the next packet and sending the packet to the receiver. Id. at
`
`4
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
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`5:28–32. When the receiver receives the packet, the RPEB will cause
`
`the receiver to accept the packet. Id. at 5:32–33.
`
`Figure 8 is reproduced below.
`
`
`
`Figure 8 shows ARQ packet 810 with ARQ header 812 and data
`
`portion 818. Id. at 5:33–35. Header 812 includes RPEB 814 and k-bit
`
`sequence number N(S) 816. Id. at 5:35–37. RPEB 814 may be used
`
`in a variety of situations. Id. at 5:41–43. For example, if a NACK is
`
`sent by a receiver, received by the transmitter, and is valid for one
`
`discarded data packet, then the next data packet to be retransmitted
`
`can have RPEB set to TRUE. Id. at 5:43–48. In another example, if a
`
`retransmission timer expires and one or more data packets have been
`
`discarded, the next incoming data packet to be transmitted (or the first
`
`data packet to be retransmitted) can have RPEB set to TRUE. Id. at
`
`5:49–53. If RPEB is TRUE and the difference between the sequence
`
`number and the Expected Sequence Number (ESN) of the next packet
`
`to be received is less than the window size (i.e., half the maximum
`
`sequence number), the packet will be accepted and forwarded to a
`
`higher layer (as long as the data in the packet is also correct). Id. at
`
`5:62–63, 6:32–36. In this way, the various embodiments of the
`
`invention increase throughput of a communications system using
`
`ARQ packets by discarding outdated packets. Id. at 9:60–62.
`
`5
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
`
`
`C. Illustrative Claim
`
`Claim 1, the sole challenged claim, is reproduced below:
`
`A method for discarding packets in a data network
`1.
`employing a packet transfer protocol including an
`automatic repeat request scheme, comprising the steps of:
`
`a transmitter in the data network commanding a
`receiver in the data network to a) receive at least one
`packet having a sequence number that is not consecutive
`with a sequence number of a previously received packet
`and b) release any expectation of receiving outstanding
`packets having sequence numbers prior to the at least one
`packet; and
`
`the transmitter discarding all packets for which
`acknowledgment has not been received, and which have
`sequence numbers prior to the at least one packet.
`
`D. Prior Art Supporting the Instituted Grounds
`
`The following prior art was asserted in the instituted grounds:
`
`Garrabrant
`
`US 5,610,595
`
`Mar. 11, 1997
`
`Andreas Hettich, “Development and performance
`evaluation of a Selective Repeat-Automatic Repeat Request
`(SR-ARQ) protocol for transparent, mobile ATM access”
`(April 17, 1996) (diploma paper, Aachen Tech.
`University)(“Hettich”)
`
`Ex. 1002
`
`Ex. 1003
`
`Walke
`DE 19543280
`Hettich (English language translation)3
`
`May 22, 1997
`
`Walke
`
`
`DE 19543280
`(English translation) 4
`
`May 22, 1997
`
`Ex. 1004
`
`Ex. 1007
`
`Ex. 1008
`
`
`
`3 All references in this decision to “Hettich” are to the English
`translation (Ex. 1007) of the German thesis.
`4 All references in this decision to “Walke” are to the English
`translation (Ex. 1008) of the German patent publication.
`
`6
`
`
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`IPR2013-00636
`Patent 6,424,625 B1
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`
`E. The Instituted Grounds of Unpatentability
`
`The following table summarizes the challenges to patentability
`
`on which we instituted inter partes review:
`
`Reference
`
`Basis
`
`Garrabrant
`
`§ 102
`
`Hettich
`
`Walke
`
`§ 102
`
`§ 103
`
`II. ANALYSIS
`
`A. 35 U.S.C. § 315(b)
`
`Patent Owner argues that “Petitioner is subject to the 35 U.S.C.
`
`§ 315(b) bar as a privy to the D-Link Defendants, and because the D-
`
`Link Defendants are real parties-in-interest to this action, despite
`
`Petitioner’s failure to designate them as such under 35 U.S.C.
`
`§ 312(a)(2).” PO Resp. 8–9. According to Patent Owner, Petitioner is
`
`in privity with defendants named in the D-Link Lawsuit (Ericsson Inc.
`
`v. D-Link Corp., 6:10-cv-473) because, inter alia, “[Petitioner] has an
`
`indemnity relationship with Dell and Toshiba.” Id. at 9–12. Patent
`
`Owner also argues that the defendants named in the D-Link Lawsuit
`
`(the “D-Link Defendants”) are real parties-in-interest to this
`
`proceeding because Petitioner has a “substantive legal relationship
`
`with at least Dell and Toshiba,” Petitioner used the same prior art
`
`references as the D-Link Defendants, and the Petition was filed after
`
`the D-Link Defendants abandoned their invalidity case regarding the
`
`’625 patent in the D-Link Lawsuit. Id. at 12–15.
`
`7
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`IPR2013-00636
`Patent 6,424,625 B1
`
`
`Petitioner counters that “[Patent] Owner has raised this
`
`identical argument twice, and failed each time,” and that “[t]his third
`
`attempt relies on exactly the same arguments [Patent] Owner made to
`
`this Board and the Federal Circuit and should be rejected for the same
`
`reasons.” Pet. Reply 1. Petitioner continues that, “[Patent] Owner
`
`offers no new reason whatsoever for this Board to reverse its prior
`
`decision that [Patent] Owner’s proferred ‘evidence’ and legal
`
`authorities fail to amount to anything more than ‘speculation’ or ‘a
`
`mere possibility’ that [Petitioner] is in privity with the D-Link
`
`Defendants or that the D-Link Defendants are real parties-in-interest.”
`
`Id. We find Petitioner’s arguments persuasive.
`
`Patent Owner’s arguments and evidence are not different
`
`substantively from the arguments and evidence presented in its
`
`Motion for Additional Discovery (Paper 11). The arguments and
`
`evidence are unpersuasive for same reasons explained in our Decision
`
`on Patent Owner’s Motion for Additional Discovery (Paper 20),
`
`which we adopt and incorporate by reference.
`
`B. 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); see also In re Cuozzo Speed Technologies, LLC, No.
`
`2014-1301, 2015 WL 448667, at *5–*8 (Fed. Cir. Feb. 4, 2015)
`
`(“Congress implicitly adopted the broadest reasonable interpretation
`
`standard in enacting the AIA,” and “the standard was properly
`
`adopted by PTO regulation.”). Under the broadest reasonable
`
`8
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`IPR2013-00636
`Patent 6,424,625 B1
`
`interpretation standard, 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). An inventor may rebut
`
`that presumption by providing a definition of the term in the
`
`specification with reasonable clarity, deliberateness, and precision. In
`
`re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In the absence of
`
`such a definition, limitations are not to be read from the specification
`
`into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
`
`1993).
`
`1. Preamble
`
`Petitioner proposes that the preamble of claim 1 should not be
`
`construed to limit claim 1. Pet. 17–18. Specifically, Petitioner argues
`
`that the terms used in the preamble are not later referred to or
`
`necessary to understand the body of claim 1, and that the preamble
`
`merely states the purpose or intended use of the invention. Id. at 17.
`
`Petitioner further argues that, during prosecution of the ’625 patent,
`
`the Patent Owner did not rely on the preamble to distinguish the prior
`
`art. Id. at 18.
`
`“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)).
`
`9
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`IPR2013-00636
`Patent 6,424,625 B1
`
`
`On this record, because claim 1 defines a structurally complete
`
`invention in the claim body and uses the preamble only to state a
`
`purpose or intended use for the invention, we agree that the preamble
`
`does not limit claim 1.
`
`2. “commanding”
`
`Petitioner argues that “commanding” should be construed to
`
`mean “an instruction represented in a control field to cause an
`
`addressed device to execute a specific control function.” Pet. 18–19
`
`(emphasis and internal quotation marks omitted). Petitioner’s
`
`proposed construction is similar to the definition of “command” from
`
`the IEEE Dictionary. Pet. 19 n.3 (citing Ex. 1011, 214–215).
`
`Petitioner argues that this construction is consistent with the claims
`
`and specification of the ’625 patent, which describes the commanding
`
`step being carried out by an enforcement bit (“RBEP bit”). Id. (citing
`
`Ex. 1001, Abstract, claim 3). Petitioner argues that the definition
`
`proposed by Patent Owner in the Texas Litigation was overly broad
`
`because one of ordinary skill would not understand a packet to be a
`
`command to receive simply because the receiver receives it. Pet. 19–
`
`20 (citing Ex. 1006 ¶ 38).
`
`The ’625 patent states that, “the receiver can be commanded to
`
`skip or overlook the packets which have been discarded, or in other
`
`words, to release any expectation of receiving the packets which have
`
`been discarded.” Ex. 1001, 5:22–25 (emphasis added). The ’625
`
`patent further explains that, “[i]n the case where the transmitter
`
`discards a packet, it orders the receiver to accept the next packet, by
`
`setting a certain Receiver Packet Enforcement Bit (RPEB) in the ARQ
`
`10
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`IPR2013-00636
`Patent 6,424,625 B1
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`header of the next packet and sending the packet to the receiver.” Id.
`
`at 5:28–32. The result is that, “[w]hen the receiver receives the
`
`packet, the RPEB bit will cause the receiver to accept the packet.” Id.
`
`at 5:32–33. Thus, not every received packet “commands” the receiver
`
`to perform the rest of the claimed limitation; only a packet whose
`
`RPEB bit is set “commands” the receiver to do so. Moreover,
`
`Petitioner’s proposed construction is consistent with how a person of
`
`ordinary skill in the art would have understood the term at the time
`
`that the ’625 patent was filed. See Ex. 1011, 214–215. Accordingly,
`
`in the Decision to Institute, we construed “commanding” to mean “an
`
`instruction represented in a control field to cause an addressed device
`
`to execute a specific control function.” Dec. to Inst. 8–9.
`
`Patent Owner argues that this construction “does not represent
`
`the broadest reasonable construction” (PO Resp. 19) because it
`
`“improperly imports limitations from the specification” by reciting
`
`“represented in a control field” (Id. at 20). According to Patent
`
`Owner, the broadest reasonable interpretation of “commanding” is
`
`“exercising a dominating influence.” Id. at 19–20.
`
`Patent Owner’s proposed construction relies heavily on
`
`extrinsic evidence in the form of a definition from
`
`http://www.merriam-webster.com. Patent Owner does not even
`
`attempt to establish that this definition is contemporaneous with the
`
`effective filing date of the ’625 patent. Nevertheless, to the extent that
`
`“an instruction represented in a control field” incorporates a limitation
`
`from the Specification, we modify our construction to clarify that the
`
`command need not be in any particular format, such as the RPEB bit
`
`11
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`IPR2013-00636
`Patent 6,424,625 B1
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`of the preferred embodiment; it need only cause an addressed device
`
`to execute a specific control function. Accordingly, we construe
`
`“commanding” to mean “causing an addressed device to execute a
`
`specific control function.”
`
`C. Claim 1 – Anticipation by Garrabrant
`
`Petitioner argues that claim 1 is unpatentable under 35 U.S.C.
`
`§ 102(b) as anticipated by Garrabrant. Pet. 28–37. In support of this
`
`ground of unpatentability, Petitioner provides detailed explanations as
`
`to how each claim limitation is disclosed by Garrabrant, and relies
`
`upon the Declaration of Dr. Harry Bims (Ex. 1006). Id. (citing Ex.
`
`1006 ¶¶ 47–70).
`
`Patent Owner argues that claim 1 is not anticipated by
`
`Garrabrant because Garrabrant does not disclose (1) “commanding a
`
`receiver to . . . receive,” as recited in claim 1; (2) “commanding a
`
`receiver to . . . release,” as recited in claim 1; and (3) “discarding all
`
`packets for which acknowledgment has not been received, and which
`
`have sequence numbers prior to the at least one packet,” as recited in
`
`claim 1. PO Resp. 20–37.
`
`Upon consideration of the parties’ contentions and supporting
`
`evidence, we determine that Petitioner has not demonstrated, by a
`
`preponderance of the evidence, that claim 1 is anticipated by
`
`Garrabrant.
`
`Garrabrant (Exhibit 1002)
`
`Garrabrant describes a method and apparatus for transmitting
`
`data in a packet radio communication system having data sources,
`
`destinations, and intermediate repeaters. Ex. 1002, Abstract.
`
`12
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`IPR2013-00636
`Patent 6,424,625 B1
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`According to a packet protocol, a sequence index is used to prevent
`
`duplicate packets from being received by requiring that the sequence
`
`number fall within a sequence number window at each device. Id.
`
`The sequence number window is incremented each time a packet is
`
`received. Id. The sequence number also is used to cause the
`
`retransmission of packets that are lost, at which time the sequence
`
`number window in the devices that are affected are reset to allow
`
`transmission of the lost packet. Id.
`
`Figure 7A is reproduced below.
`
`
`
`Figure 7A illustrates a window used with the packet radio
`
`communication system of the ’625 patent according to the protocol of
`
`the ’625 patent before the transmission of a message. Id. at 9:9–13.
`
`The window has circle 140 with sequence numbers on the
`
`circumference of the circle representing the possible values that can
`
`be contained in a set of possible sequence numbers. Id. at 9:13–16.
`
`Some predetermined fraction of the set of possible sequence numbers
`
`constitutes the set of sequence numbers in “valid” window 142, and
`
`13
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`IPR2013-00636
`Patent 6,424,625 B1
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`the set of remaining possible sequence numbers constitutes the set of
`
`sequence numbers in “rejection” window 144. Id. at 9:20–24.
`
`When the message source does not receive a response (“UA”)
`
`acknowledging receipt of the transmitted message, the message is
`
`retransmitted for a certain predetermined number of times. Id. at
`
`10:4–8. A source unit and a destination unit will allow as many
`
`messages as there are in “valid” window 142 to become lost while still
`
`maintaining synchronization. Id. at 10:15–17.
`
` Figures 8A and 8B, reproduced below, show what happens if
`
`five packets are lost. Id. at 10:17–18.
`
`
`
`Figure 8A illustrates rejection window 160 in circle set of acceptable
`
`sequence numbers 162 at a destination unit of the packet radio
`
`communication system before the rejection window is updated in
`
`response to the receipt of a “lost” message. Id. at 10:18–24. Figure
`
`8B illustrates rejection window 170 in circle set of acceptable
`
`sequence numbers 172 at the destination unit after the rejection
`
`window is updated in response to the receipt of a “lost” message. Id.
`
`at 10:24–28. In Figure 8A, it is assumed that out of 8 packets sent,
`
`14
`
`
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`IPR2013-00636
`Patent 6,424,625 B1
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`packets 0 and 1 were successfully received to define “valid” window
`
`164 and packets 2 through 6 were lost. Id. at 10:28–30. As a result,
`
`“valid” window 164 did not advance further. Id. at 10:30–32. Each
`
`time a packet was transmitted, the sender unit incremented its
`
`sequence count. Id. at 10:32–34. However, because these packets
`
`were lost, the destination unit did not receive them and “valid”
`
`window 164 is still set between 2 and 17. Id. at 10:34–37. When
`
`packet 7 eventually arrives at the destination unit, it falls within
`
`“valid” window 164 and is accepted by the destination unit. Id. at
`
`10:37–39. The destination unit then sets its internal sequence count to
`
`8 as shown in Figure 8B and slides its “valid” window 164 to the
`
`position of “valid” window 174, shown in Figure 8B, to allow packets
`
`8 through 23. Id. at 10:39–42.
`
`Analysis
`
`Independent claim 1 recites
`
`a transmitter in the data network commanding a receiver
`in the data network to a) receive at least one packet
`having a sequence number that is not consecutive with a
`sequence number of a previously received packet and b)
`release any expectation of receiving outstanding packets
`having sequence numbers prior to the at least one packet.
`
`Petitioner relies upon Garrabrant’s disclosure of sending a “lost”
`
`message that instructs the receiver to move its window forward upon
`
`receipt of the next received packet. Pet. 31 (citing Ex. 1002, Figs. 8A,
`
`8B, 10:14–42). In the example illustrated in Figures 8A and 8B, the
`
`“lost” message instructs the receiver to receive a packet (packet 7)
`
`having a sequence number that is not consecutive with a sequence
`
`number of a previously received packet (packets 0 and 1), and release
`
`15
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`IPR2013-00636
`Patent 6,424,625 B1
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`any expectation of receiving outstanding packets having sequence
`
`numbers prior to the at least one packet (i.e., moving “valid” window
`
`forward to allow packets 8 through 23, thereby giving up on packets 2
`
`through 5). Id.
`
`Patent Owner argues as follows:
`
`A “lost” message is not a unique command (or even a command
`for that matter); a “lost” message that is received by a receiver
`is no different from, nor treated differently from any other
`message (or packet) received by the receiver—that is why
`Garrabrant puts that term in quotes. (See id. at 10:18-28 (“a
`‘lost’ message”).) Upon receipt of a message, the Garrabrant
`receiver adjusts its valid window (and concomitantly the
`rejection window) based upon the sequence number of every
`received message—whether that received message is a “lost”
`message or one received in sequence.
`
`PO Resp. 26. According to Patent Owner, “[a]n analysis of Figs. 8A
`
`and 8B shows that the ‘lost’ message disclosed in Garrabrant does not
`
`command the receiver to accept anything, let alone a packet.” Id. at
`
`28. Although Garrabrant describes Figure 8B as representing the
`
`rejection window after it is updated in response to receipt of “a ‘lost’
`
`message” (Ex. 1002, 10:24–28), Patent Owner argues that the “lost”
`
`message referred to is actually packet 7. PO Resp. 29 (citing 1002,
`
`10:37–42). Patent Owner also argues that if the “lost” message were a
`
`command, it would be listed in Garrabrant’s two tables of commands,
`
`which it is not. Id. at 24–25.
`
`Petitioner counters that Garrabrant’s description of “a ‘lost’
`
`message” refers to “a control message named ‘lost.’” Pet. Reply 7.
`
`Petitioner emphasizes Garrabrant’s disclosure that “the rejection
`
`window [is] updated in response to the receipt of a ‘lost’ message.”
`
`16
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
`
`Id. With respect to the tables of commands, Petitioner argues that
`
`“Garrabrant never states that the messages in the tables are the ‘only’
`
`commands allowed” and that “Garrabrant never excludes other
`
`commands from being present.” Id. at 8. Petitioner concludes that
`
`“[Patent] Owner’s argument does not preclude either of these types of
`
`command messages from transmitting the ‘lost’ message.” Id. at 9.
`
`In light of the arguments and evidence, we are not persuaded
`
`that Petitioner has demonstrated, by a preponderance of the evidence,
`
`that Garrabrant discloses a control message named “lost.” Garrabrant
`
`describes the rejection window in Figure 8B as having been “updated
`
`in response to the receipt of a ‘lost’ message.” Ex. 1002, 10:24–28.
`
`Later in the same paragraph, however, Garrabrant states explicitly that
`
`valid window 174 is updated “[w]hen packet 7 eventually arrives . . .
`
`and is accepted by the destination unit.” Id. at 10:37–42. Together,
`
`the two sentences imply that packet 7 is the “lost” message referred to
`
`at column 10, line 28. Garrabrant, however, describes only packets 2
`
`through 6—not packet 7—as lost (Id. at 10:30), which implies that
`
`packet 7 is not a “lost” message. We note, however, that Garrabrant
`
`describes packets 2 through 6 as lost (without quotes). Id. at (10:28–
`
`30 (“In FIG. 8A it is assumed that out of 8 packets sent, packets 0 and
`
`1 were successfully received to define the “valid” window 164 and
`
`packets 2 through 6 were lost.”). We, therefore, interpret Garrabrant’s
`
`use of lost (without quotes) to mean truly lost (i.e., never received by
`
`the receiver), and its use of “lost” (with quotes) to mean transmitted
`
`but not yet received, as packet 7 is at the time depicted in Figure 8A.
`
`As a result, we agree with Patent Owner that Garrabrant discloses
`
`17
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
`
`updating the window in response to packet 7, and does not disclose a
`
`separate control message named “lost.” Because we are not
`
`persuaded that Garrabrant discloses a control message named “lost,”
`
`we are not persuaded that Garrabrant discloses “causing an addressed
`
`device to execute a specific control function,” as required by our
`
`construction of “commanding.”
`
`Our determination is supported by the fact that Petitioner’s
`
`contention that a separate “lost” message is received before packet 7
`
`is inconsistent with the disclosure in Garrabrant. If we were to accept
`
`Petitioner’s contention that the described “lost” message is a separate
`
`control message that updates the valid window as shown in Figure 8B,
`
`then valid window 174 shown in Figure 8B would be set to allow only
`
`packets 8 through 23 before packet 7 arrived and, therefore, packet 7
`
`would not be “accepted by the destination unit” when it “eventually
`
`arrives,” as Garrabrant states. Ex. 1002, Fig. 8B, 10:39–42. Casting
`
`further doubt upon Petitioner’s contention that the described “lost”
`
`message is a control message is the omission of any such message
`
`from the tables of commands disclosed in Garrabrant. Id. at 6:5–45.
`
`Conclusion
`
`We are not persuaded that Petitioner has demonstrated, by a
`
`preponderance of the evidence, that claim 1 is unpatentable as
`
`anticipated by Garrabrant.
`
`D. Claim 1 – Anticipation by Hettich
`
`Petitioner argues that claim 1 is unpatentable under 35 U.S.C.
`
`§ 102(b) as anticipated by Hettich. Pet. 37–41. In support of this
`
`ground of unpatentability, Petitioner provides detailed explanations as
`
`18
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
`
`to how each claim limitation is disclosed by Hettich, and relies upon
`
`the Declaration of Dr. Bims (Ex. 1006). Id. (citing Ex. 1006 ¶¶ 79–
`
`90).
`
`Patent Owner argues that claim 1 is not anticipated by Hettich
`
`because Hettich does not disclose (1) “commanding a receiver to . . .
`
`receive,” as recited in claim 1; (2) “commanding a receiver to . . .
`
`release,” as recited in claim 1; and (3) “discarding all packets for
`
`which acknowledgment has not been received, and which have
`
`sequence numbers prior to the at least one packet,” as recited in claim
`
`1. PO Resp. 37–46.
`
`Upon consideration of the parties’ contentions and supporting
`
`evidence, we determine that Petitioner has demonstrated, by a
`
`preponderance of the evidence, that claim 1 is anticipated by Hettich.
`
`Hettich (Exhibit 1007)
`
`Hettich describes a new link access protocol based on known
`
`ARQ protocols and adjusted for the special requirements of the
`
`Mobile Broadband System (“MBS”) project. Ex. 1007, 4–5.
`
`Specifically, Hettich discloses an Adaptive Selective Repeat (“ASR”)
`
`ARQ protocol that is a modified Selective Reject (“SR”) ARQ and
`
`uses a Selective Reject (SREJ) PDU to request an individual frame
`
`again. Id. at 29–30. Hettich further discloses a Delay PDU that “is
`
`used to inform receivers that cells have been discarded.” Id. at 34.
`
`The Delay PDU “is sent in the opposite direction instead of an
`
`acknowledgement”—i.e., from transmitter to receiver—and has RN
`
`(the lowest frame number that has not been received correctly yet) set
`
`equal to SN, where SN is the highest number of all of the discarded
`
`19
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
`
`cells. Id. at 28, 34. If the receiver receives a Delay PDU, it stops
`
`waiting for cells with sequence numbers less than or equal to RN. Id.
`
`at 35. The receiver then shifts its window and issues a corresponding
`
`acknowledgement. Id.
`
`Analysis
`
`Independent claim 1 recites
`
`a transmitter in the data network commanding a receiver
`in the data network to a) receive at least one packet
`having a sequence number that is not consecutive with a
`sequence number of a previously received packet and b)
`release any expectation of receiving outstanding packets
`having sequence numbers prior to the at least one packet.
`
`Petitioner relies upon Hettich’s disclosure of a Delay PDU that
`
`commands a receiver to shift its window, thereby releasing any
`
`expectation of receiving packets having sequence numbers less than
`
`or equal to SN and allowing the receiver to receive packets with
`
`sequence numbers greater than SN. Pet. 34–35.
`
`Claim 1 also recites “the transmitter discarding all packets for
`
`which acknowledgment has not been received, and which have
`
`sequence numbers prior to the at least one packet.” Petitioner relies
`
`upon Hettich’s disclosure that the transmitter sets RN=SN in the
`
`Delay PDU, where “SN is the highest number of all the discarded
`
`cells,” and “there cannot be valid (not discarded) cells with lower
`
`sequence numbers.” Id. at 34. Thus, the transmitter discards all
`
`packets with sequence numbers below SN.
`
`We are persuaded that the evidence cited by Petitioner supports
`
`Petitioner’s contentions. Patent Owner presents several arguments as
`
`to why Hettich does not teach all of the limitations of the claims. PO
`
`20
`
`
`
`IPR2013-00636
`Patent 6,424,625 B1
`
`Resp. 37–46. Petitioner responds to these arguments. Pet. Reply 11–
`
`13. We address each argument in turn below.
`
`“commanding a receiver to receive”
`
`Patent Owner argues that, “the Delay PDU causes Hettich’s
`
`receiver to ‘stop[] waiting for cells,’” but “does not ‘command’ or
`
`‘order’ the receiver to accept any packet, as required by the claim
`
`language.” PO Resp. 39. According to Patent Owner, “[t]hat the
`
`receiver moves its window forward to allow it ‘to receive a packet
`
`after SN’ shows that the receiver, not the transmitter controls packet
`
`reception.”
`
`Petitioner counters that “claim 1 does not require identifying a
`
`specific sequence number. Nor does it require that the next received
`
`packet have that specific sequence number. Claim 1 only requires that
`
`there be a command to receive ‘at least one packet,’ which in Hettich
`
`are sequence numbers to N+1, N+2, N+3, etc.” Pet. Reply 11.
`
`We find Petitioner’s arguments persuasive. Receipt of a Delay
`
`PDU causes Hettich’s receiver to “shift[] the window.” Ex. 1007, 35.
`
`As a result of that shift, Hettich’s receiver will accept a packet, such
`
`as N+2 or N+3, that has “a sequence number that is not consecu
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