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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`BROADCOM CORPORATION
`Petitioner
`
`v.
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`TELEFONAKTIEBOLAGET LM ERICSSON (PUBL)
`Patent Owner
`____________________
`
`Case IPR2013-00636
`Patent 6,424,625
`Title: Method and Apparatus For Discarding Packets In A Data Network Having
`Automatic Repeat Request
`____________________
`
`DECLARATION OF ROBERT AKL, D.Sc.,
`IN SUPPORT OF PATENT OWNER’S RESPONSE
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`TABLE OF CONTENTS
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`Case IPR2013-00636
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`INTRODUCTION .................................................................................................... 4
`QUALIFICATIONS AND COMPENSATION .................................................... 5
`MATERIALS CONSIDERED ................................................................................ 7
`THE LEVEL OF ORDINARY SKILL IN THE ART ......................................... 8
`OPINIONS ................................................................................................................ 9
`A. Overview of the ’625 Patent ............................................................... 9
`B.
`Broadest Reasonable Interpretation ............................................... 12
`C. Claim 1 Is Not Anticipated by Garrabrant .................................... 14
`1.
`Garrabrant does not disclose “commanding a receiver to
`receive” ..................................................................................... 18
`Garrabrant does not disclose “commanding a receiver to
`release” ..................................................................................... 24
`Garrabrant does not disclose “discarding unacknowledged
`packets” .................................................................................... 25
`The SABM command in Garrabrant does not anticipate
`claim 1 of the ’625 patent ....................................................... 27
`D. Claim 1 Is Not Anticipated By Hettich ............................................ 30
`1.
`The Hettich Delay PDU commands a receiver to ignore, and
`not receive cells ........................................................................ 32
`The Hettich Delay PDU does not command a receiver to
`release expectations of receiving outstanding packets ........ 33
`The transmitter in Hettich does not “discard all packets” . 36
`3.
`Claim 1 Is Not Rendered Obvious By Walke ................................. 40
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`E.
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`2
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`2.
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`3.
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`4.
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`2.
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`1.
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`2.
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`The delay command in Walke commands a receiver to
`ignore, not receive one cell ..................................................... 42
`The delay command in Walke does not command a receiver
`to release expectations of receiving outstanding packets .... 43
`3. Walke does not teach or suggest “discarding” all cells ....... 47
`CONCLUSION ....................................................................................................... 48
`ACKNOWLEDGEMENT ..................................................................................... 50
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`DECLARATION BY ROBERT AKL, D.Sc.,
`IN SUPPORT OF PATENT OWNER’S RESPONSE
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`I, Robert Akl, D.Sc., hereby declare, affirm, and state the following:
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`INTRODUCTION
`The facts set forth below are known to me personally and I have
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`1.
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`firsthand knowledge of them. I am a U.S. citizen over eighteen years of age. I am
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`fully competent to testify as to the matters addressed in this Declaration. I
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`understand that this Declaration is being submitted along with Patent Owner’s
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`response to the March 10, 2014 institution of Inter Partes Review of US Patent No.
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`6,442,625 (hereinafter, “the ’625 Patent”) by the United States Patent and
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`Trademark Office (“USPTO”) in IPR No. 2013-00636.
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`2.
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`I was asked to give my opinion on whether claim 1 of the ‘625 Patent
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`is anticipated Garrabrant and Hettich and rendered obvious by Walke. As
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`described further below, it is my opinion neither Garrabrant nor Hettich anticipates
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`claim 1, nor does Walke render claim 1 obvious. In particular, each of the
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`Garrabrant, Hettich, and Walke fail to teach or suggest (1) “commanding a receiver
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`in the data network to a) receive at least one packet having a sequence number that
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`is not consecutive with a sequence number of a previously received packet,” (2)
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`“commanding a receiver . . . to . . . release any expectation of receiving outstanding
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`packets having sequence numbers prior to the at least one packet,” and (3) “the
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`transmitter discarding all packets for which acknowledgement has not been
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`received, and which have sequence numbers prior to the at least one packet” as
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`recited by claim 1.
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`QUALIFICATIONS AND COMPENSATION
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`3. My resume, including my qualifications, a list of the publications that
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`I have authored during my technical career, and a list of the cases in which, during
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`the previous four years, I have testified as an expert at trial or by deposition, is
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`attached to this declaration as Attachment A.
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`4.
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`I have summarized in this section my educational background, career
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`history, and other relevant qualifications. A true and accurate copy of my
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`curriculum vitae is attached hereto as Attachment A.
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`5.
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`I earned my Bachelor of Science degrees in Electrical Engineering
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`and Computer Science summa cum laude with a ranking of first in my
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`undergraduate class from Washington University in Saint Louis in 1994. In 1996 I
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`earned my Master of Science degree in Electrical Engineering from Washington
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`University in Saint Louis. I earned my Doctorate of Science in Electrical
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`Engineering from Washington University in Saint Louis in 2000, with my
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`dissertation on “Cell Design to Maximize Capacity in Cellular Code Division
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`Multiple Access (CDMA) Networks.”
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`6.
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`After obtaining my Doctorate of Science degree, I worked as a Senior
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`Systems Engineer at Comspace Corporation from October of 2000 to December of
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`2001. In this position, I designed, coded in MATLAB, and simulated Viterbi
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`decoding, Turbo coding, trellis coded modulation (TCM), and Reed-Muller codes.
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`This work further entailed the optimization of soft decision parameters and
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`interleavers for additive white Gaussian and Rayleigh faded channels.
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`7.
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`In January of 2002, I joined the faculty of the University of New
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`Orleans in Louisiana as an Assistant Professor in the Department of Electrical
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`Engineering. While on this faculty, I designed and taught two new courses called
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`“Computer Systems Design I and II.” I also developed a Computer Engineering
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`Curriculum with strong hardware-design emphasis, formed a wireless research
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`group, and advised graduate and undergraduate students.
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`8.
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`In September of 2002, I received an appointment as an Assistant
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`Professor in the Department of Computer Science and Engineering at the
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`University of North Texas, in Denton, Texas. In May of 2008, I became a tenured
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`Associate Professor in the Department of Computer Science and Engineering,
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`where I continue to focus my research on wireless communication, including 4G,
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`LTE, and wireless sensor networks. I also teach communications systems and
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`wireless communication courses.
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`9.
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`I have authored and co-authored approximately 65
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`journal
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`publications, conference proceedings, technical articles, technical papers, book
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`chapters, and technical presentations, in a broad array of communications-related
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`technology, including networking and wireless communication. I have also
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`developed and taught over 70 courses related to communications and computer
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`system designs, including a number of courses on wireless communication,
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`communications systems, computer systems design, and computer architecture.
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`These courses have included introductory courses on communication systems and
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`sensor networks, as well as more advanced courses on wireless communications.
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`A complete list of my publications and the courses I have developed and/or taught
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`is also contained in my curriculum vitae.
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`10.
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`I hereby incorporate into this declaration the entire contents of my
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`curriculum vitae, attached as Attachment A to this declaration.
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`11.
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`I am being compensated at the rate of $550 per hour for my work in
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`connection with this matter. My compensation is not dependent in any way on the
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`contents of this Declaration, the substance of any further opinions or testimony that
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`I may provide, or the ultimate outcome of this matter.
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`MATERIALS CONSIDERED
`In forming the opinions expressed herein, I have reviewed and
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`12.
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`considered the following materials:
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`A. Petition for Inter Partes Review of U.S. Patent No. 6,424,625 Under 35
`U.S.C. §312 and 37 C.F.R. §§42.104 (Paper No. 3) (“Petition”);
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`B. U.S. Patent No. 6,424,625 (Petitioner’s Exhibit No. 1001) and its file
`history;
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`C. U.S. Patent No. 5,610,595 to Gary W. Garrabrant, Jay C. Cho, and Joseph T.
`Savarese (Petitioner’s Exhibit No. 1002) (“Garrabrant”);
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`D. Certified Translation of Andreas Hettich, Development and performance
`evaluation of a Selective Repeat-Automatic Repeata Request (SR-ARQ)
`protocol for transparent, mobile ATM Access (Petitioner’s Exhibit No.
`1007) (“Hettich”);
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`E. Certified Translation of Walke German Patent DE 19543280 (“Walke”)
`(Exhibit No. 1008);
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`F. Declaration of Harry Bims, Ph.D. (Petitioner’s Exhibit No. 1006) (“Bims
`Dec.”) and exhibits cited to therein;
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`G. Rebuttal Expert Report of Scott Nettles, Ph.D. Regarding Validity of U.S.
`Patent Nos., 6,424,625; 6,330,435; 6,519,223; 6,772,215; 6,466,568; and
`6,987,019 (Petitioner’s Exhibit No. 1010); and
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`H. Decision: Institution of Inter Partes Review—37 C.F.R. §42.108 (IPR2013
`00636, Paper No. 25).
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`THE LEVEL OF ORDINARY SKILL IN THE ART
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`13.
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`It is my opinion, based upon a review of the file history of the ’625
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`Patent and the other evidence addressed herein, that a person of ordinary skill in
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`the art as of the ’625 Patent would have had, as of October 1998, a bachelor’s
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`degree in computer science or a similar technical field and at least two years of
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`experience in telecommunications and network protocols.
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`OPINIONS
`A. Overview of the ’625 Patent
`14. The ’625 patent “relates to Automatic Repeat Request (ARQ)
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`techniques for transferring data in fixed/wireless data networks.” ’625 pat. at 1:7-
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`10. ARQ techniques are “used to ensure reliable data transfer and protect data
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`sequence integrity.” Id. at 1:13-15. Detecting data sequence integrity allows the
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`receiver to request retransmission of data packets that have been lost or corrupted.
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`Id. at 15-20. Data integrity is commonly enforced by applying transmission rules
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`to sequentially numbered data packets. Id. at 1:20-22.
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`15. There are three main ARQ protocols for providing transmission rules
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`for transferring packets to a receiver in a particular order: Stop-and-Wait, Go-
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`Back-N, and Selective Reject (or Selective Repeat). Id. at 1:23-25. Generally,
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`“Selective Reject is most efficient, Stop-and-Wait is least efficient, and Go-Back-
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`N is intermediate.” Id. at 1:28-30. Packets received in the correct order are
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`forwarded to the next higher layer. Id. at 2:66-67. However, processing is halted
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`for packets arriving out of order or are not correctly received until the lost or
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`erroneous packets are received. Id. at 2:3-27, 2:66-3:10.
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`16. Normally, “it is desirable to transfer all packets without any packet
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`loss.” Id. at 3:46-47. But in certain applications, stale or delayed (outdated) data
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`may be useless to the receiver. Id. at 3:47-51. Delay-sensitive applications include
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`“telephony, video conferencing and delay sensitive control systems.” Id. at 51-53.
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`In situations where data packets have a limited lifetime, bandwidth usage can be
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`enhanced by “not sending (or resending) significantly delayed or outdated data
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`packets.” Id. at 4:9-13.
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`17. The ’625 patent discloses and claims ARQ techniques that “minimize
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`bandwidth usage by accounting for data packets that have an arbitrary but limited
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`lifetime.” Id. at 4:16-19. Go-Back-N and Selective Reject embodiments that
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`“discard outdated data packets” are disclosed in the ’625 patent. Id. at 22-25. In
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`particular, the ’625 patent allows receivers to skip or overlook discarded packets
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`(e.g., release any expectation of receiving discarded packets). Id. at 5:18-25.
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`Thus, the ’625 patent discards packets that are outdated, and also informs a
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`receiver that it should not expect to receive those discarded packets. Id. at 5:15-27.
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`18.
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`In one embodiment, a transmitter that discards a packet, “orders a
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`receiver to accept the next packet, by setting a certain Receiver Packet
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`Enforcement Bit (RPEB) in the ARQ header of the next packet and sending the
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`packet to the receiver.” Id. at 5:28-32. The RPEB bit forces the receiver to accept
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`the received packet. Id. at 5:32-33. The preferred embodiment of an ARQ packet
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`is illustrated in Fig. 8 of the ’625 patent:
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`19. Here the ARQ packet 810 includes an ARQ header 812 and a data
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`portion 818. Id. at 5:33-35. “The header 812 includes a receive packet
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`enforcement bit RPEB 814, and a k-bit sequence number N(S) 816.” Id. at 5:35-
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`37. The ARQ packet 810 can be used under various conditions. First, if a NACK
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`is sent by an ARQ receiver and is properly received by an ARQ transmitter, and
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`further if “the NACK is valid for one discarded data packet, then the next data
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`packet to be retransmitted can have an RPEB set to TRUE.” Id. at 5:43-48.
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`Alternatively, if a retransmission timer expires for one or more data packets
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`causing those data packets to be discarded, the “next incoming data packet to be
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`transmitted, or the first data packet to be retransmitted, can have an RPEB set to
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`TRUE.” Id. at 5:49-54. In any event, “[w]hen a correct packet with RPEB=TRUE
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`is received, then all packets preceding this packet and up to the next outstanding
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`packet will be released from the buffer and forwarded to the next higher layer.” Id.
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`at 9:1-4.
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`B. Broadest Reasonable Interpretation
`20.
`I understand that during inter partes review claims are given their
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`broadest reasonable interpretation in view of the specification of which they are
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`part. I further understand that a construction that is inconsistent with the
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`specification is unreasonable and should be rejected.
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`21. Claim 1 reads as follows:
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`A method for discarding packets in a data network
`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
`for which
`the
`transmitter discarding all packets
`acknowledgment has not been received, and which have
`sequence numbers prior to the at least one packet.
`22. Broadcom proposes, and the Board agreed, that the “broadest
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`reasonable construction” of “commanding” is “an instruction represented in a
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`control field to cause an addressed device to execute a specific control function.”
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`Pet. at 18-19. In my opinion, this construction does not represent the broadest
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`reasonable construction. Id. at 19, n.3 (citing IEEE Dictionary).
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`23.
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`In my opinion, the broadest reasonable construction of the term
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`“commanding” requires the commander (i.e., the “transmitter”) to “exercise a
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`dominating influence over: have command of” or be able “to direct authoritatively:
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`order.” (Ex. 2021 (Merriam-Webster Dictionary) definition of “command”). The
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`’625 patent supports such a plain reading of this common term. In certain
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`circumstances, the transmitter is able to force the receiver to accept any packet.
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`’625 Patent at 4:40-42 (“transmitter resynchronizes the receiver to accept an
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`arbitrarily chosen sequence number”); 9:43-44. “Thus, the receiver can be
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`commanded to skip or overlook” certain packets. Id. at 5:22-25. In the preferred
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`embodiment, the transmitter “orders the receiver to accept the next packet” by
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`setting an “Enforcement Bit” in the arbitrarily chosen sequence number packet. Id.
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`at 5:28-32 (emphasis added). The receiver in the ’625 Patent does not have
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`discretion about whether to accept or reject the packet—it must accept it. In other
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`words, the transmitter “exercises a dominating influence over: has command of”
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`the receiver. Therefore, the broadest reasonable construction of commanding is
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`“exercising a dominating influence” over the receiver.
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`24.
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`In my opinion, Broadcom’s proposed construction for this term
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`improperly imports limitations from the specification into the construction of this
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`term. In a preferred embodiment, the ’625 patent discloses setting a bit in the
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`header (a control field) to command a receiver to accept an out-of-order packet. Id.
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`at 5:28-33 (“where the transmitter discards a packet, it orders the receiver to accept
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`the next packet, by setting a certain Receiver Packet Enforcement Bit (RPEB) in
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`the ARQ header of the next packet and sending the packet to the receiver”). There
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`is nothing in the patent or its file history, however, that would lead me to conclude
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`that the invention is limited to the preferred embodiment. For that reason, I
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`disagree
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`that
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`the broadest reasonable
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`interpretation
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`includes
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`the phrase
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`“represented in a control field.”
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`C. Claim 1 Is Not Anticipated by Garrabrant
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`25. Broadcom cannot show that Garrabrant anticipates claim 1 of the ’625
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`patent because Garrabrant does not teach or suggest: (1) “commanding a receiver
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`in the data network to a) receive at least one packet”; (2) “commanding a receiver .
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`. . to . . . b) release any expectation of receiving outstanding packets having
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`sequence numbers prior to the at least one packet”; and (3) “the transmitter
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`discarding all packets for which acknowledgement has not been received, and
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`which have sequence numbers prior to the at least one packet” as recited by claim
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`1.
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`26. Garrabrant discloses a radio packet communication system for
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`wireless communication between a mobile bar code reader and a computer base
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`station. Garrabrant, 1:21-2:39. Because the mobile bar code reader may be
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`located outside the range of the base station, the disclosed system includes one or
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`more repeaters placed between the bar code reader and base station to retransmit
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`information to the destination. Id. at 2:30-32. By creating a transmission path
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`between the source and destination, the repeaters increase the communication
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`range of the bar code reader. Id. at 2:34-37.
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`27. One problem stemming from the inclusion of repeaters is the
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`retransmission of duplicate packets. To allow a receiver to reject the reception of
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`duplicate packets from a destination, Garrabrant discloses a variation of the packet
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`structure of the X.25 standard (reproduced below):
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`Id. at Fig. 4; 6:50-60.
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`28. Garrabrant proposes two additional fields to this packet structure:
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`“sequence number field 92 and the 3-bit repeat count field 96.” Id. at 6:58-60.
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`The sequence number field “records the sequence in which the source of the
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`message represented by the frame 92 [sic:90] is originally produced” while the
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`repeat count field “represents the number of remaining times which the message
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`represented by frame 94 [sic:90] will be repeated before being discarded.” Id. at
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`6:60-66. A message is transmitted as a frame or a packet in Garrabrant. Id. at
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`2:13-17. The use of a repeat count field prevents the same frame from being
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`forwarded in an endless loop “forever.” Id. at 7:1.
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`29. The transmitter and receiver use the sequence numbers of the packets
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`to maintain synchronization. The receiver maintains a list of the sequence numbers
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`that it can receive (“valid window”) and those that it cannot receive (“reject
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`window”). Packets arriving at the receiver with sequence numbers corresponding
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`to numbers in the “valid window” are received, whereas those with numbers in the
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`“reject window” are rejected. Id. at 9:27-31. As shown in the ranges in Fig. 7
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`(below), a sequence number is included in either the valid window or the rejection
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`window:
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`30. The lower limit of the valid window represents “the sequence number
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`of the next expected message.” Id. at 9:49-51. Each time a receiver receives a
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`packet having a sequence number within the valid window, it shifts the lower end
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`of its valid window to the next sequence number beyond the sequence number of
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`the received packet. Because the receiver rejects packets (i.e., frames) with a
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`sequence number outside the “valid window” and falling within the “rejection
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`window,” the receiver should not receive multiple copies of the same packet.1
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`31.
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`In Fig 7A (above), the sequence number of the first entry in the valid
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`window (the next expected message) is 0. Upon receipt of that packet, as shown in
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`1 The receiver could receive a duplicate packet if such a packet is retransmitted and
`received after the valid window of the receiver has shifted to include the sequence
`number of the duplicate packet.
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`Fig. 7B, the receiver moves its valid window by one more than the received
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`sequence number (i.e., 0+1=1). Id. at 9:51-55. If a duplicate of the same packet
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`(i.e., a packet with sequence number=0) is later received from another repeater
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`when the reject window of the receiver includes sequence number 0, the packet
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`will be rejected because its sequence number “is no longer valid,” i.e., it falls
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`within the “rejection window.” Id. at 9:54-58; see also 12:2-4, 9:5-8, 11:33-35, 56-
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`57, 14:7-10, 13:55-58.
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`1. Garrabrant does not disclose “commanding a receiver to
`receive”
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`32. The receiver in Garrabrant receives and processes every packet in the
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`same way. The receiver accepts a packet whose sequence number falls within the
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`valid window and rejects a packet whose sequence number falls within the reject
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`window. Garrabrant at 9:28-32. The acceptance or rejection of a packet is
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`determined solely by the receiver maintaining (or updating) its receive and reject
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`windows. Although Garrabrant does disclose a comprehensive set of commands
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`and associated responses, it does not disclose a command that commands a
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`receiver to receive a packet nor does it disclose a command a receiver to accept a
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`packet whose sequence number falls outside its valid window.
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`33. Contrary to Broadcom’s arguments, none of the commands disclosed
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`in Garrabrant relate to commanding a receiver to receive a packet:
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`Id. at 6:9-32. Garrabrant explicitly states that the only “commands supported are:
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`SABM, DISC, TEST, I, RR, and XID.” Id. at 6:47-49. Although each of the
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`commands is included in a packet that may be received by a receiver, none of those
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`supported commands specifically force or require a receiver to receive a packet.
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`34. Broadcom posits that Garrabrant invalidates claim 1 for two reasons.
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`First, Broadcom contends that the receipt of a “lost” message having a non-
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`consecutive sequence number that falls within the valid window constitutes
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`“commanding a receiver … to a) receive at least one packet having a sequence
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`number that is not consecutive with a sequence number of a previously received
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`packet.” Pet. at 30-31. But the mere reception of a “lost” message is not a
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`command. Notably Broadcom does not identify any of Garrabrant’s commands
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`that allegedly perform this step. Second, Broadcom contends that claim 1 is
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`anticipated by an “SABM command.” Id. at 35-36. I disagree with Broadcom on
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`both counts.
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`35. Broadcom mischaracterizes
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`the so-called “lost” message
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`in
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`Garrabrant. A message (or a packet) can be lost in the Garrabrant system for two
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`reasons. Either: (1) multiple messages “collided” or arrived at the destination at
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`the same time; or (2) the mobile bar code reader or destination unit moved out of
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`the range of any repeater or each other (or the repeaters are too far apart).
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`(Garrabrant at 9:59-10:2) For example, a “lost” message can occur when the
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`receiver fails to receive the first transmission of a message. But a “lost” message
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`need not remain “lost.” Future copies of a message that was not received and thus
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`“lost” at some earlier time may thereafter be received by a receiver. A “lost”
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`message is not a unique command (or even a command for that matter); a “lost”
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`message that is received by a receiver is no different from, nor treated differently
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`from any other message (or packet) received by the receiver—that is why
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`Garrabrant puts that term in quotes. (See id. at 10:18-28 (“a ‘lost’ message”).)
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`Upon receipt of an message, the Garrabrant receiver adjusts its valid window (and
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`concomitantly the rejection window) based upon the sequence number of every
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`received message—whether that received message is a “lost” message or one
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`received in sequence.
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`36.
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`In any event, the Garrabrant transmitter does not “command” the
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`receiver to receive a “lost” message (or even any other message, including the next
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`received packet). The “lost message” is not a command that instructs the receiver
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`to move its window forward upon receipt of the next received packet. Rather, the
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`receiver will adjust its window accordingly upon the receipt of a packet (whether
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`“lost” or not). If the sequence number of the packet is included in its valid
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`window, the receiver will accept the packet and shift its valid window range to the
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`next sequence number after the sequence number of the received packet; and
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`otherwise the packet will be rejected. (Id. at 9:28-32) Because the transmitter
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`does not maintain the valid window for the receiver, the transmitter does not know
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`the range of sequence numbers for the valid window of the receiver.
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`37. Contrary to claim 1 of the ’625 patent, the transmitter in Garrabrant
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`never commands or forces a receiver to accept a packet. As a result, the
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`transmitter does not “exercise dominating influence over” or “have command of”
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`the receiver. As with any other packet, the receiver accepts packets that fall within
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`its valid window and rejects those falling within its reject window. Id. at 10:36-38
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`(“When packet 7 eventually arrives at the destination unit, it falls within the valid
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`window 164 and is accepted by the destination unit.”).
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`38. Garrabrant also fails to disclose the commanding limitation as
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`construed by the Board. The Board’s constructionrequires “an instruction
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`represented in a control field to cause an addressed device to execute a specific
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`control function.” But Garrabrant is silent as to the structure of the packets.
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`Garrabrant does not disclose any field—let alone a control field as required under
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`Broadcom’s proposed construction—that is included by the transmitter within a
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`packet.
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`39. An analysis of Figs. 8A and 8B shows that the “lost” message
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`disclosed in Garrabrant does not command the receiver to accept anything, let
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`alone a packet:
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`40. Fig. 8A illustrates the status of the receiver after receiving packet #1.
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`Here, the receiver updates the lower end of its valid window accordingly (i.e.,
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`1+1=2). Id. at 10:28-30. Garrabrant next posits that the transmitter continues to
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`transmit packets 2-7, but packets 2-6 are presumed “lost,” i.e., not received by the
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`receiver. Id. Upon receipt of packet #7—which happens to be the next packet
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`received after packet #1—the receiver processes packet #7 in the same way as any
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`other received packet to determine whether to accept (sequence number falls
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`within the range of sequence numbers in the valid window) or reject (sequence
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`number falls within the range of sequence numbers in the reject window) the
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`packet. Id. at 10:37-42. Fig. 8B illustrates the valid window of the receiver after
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`processing packet #7.
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`41. There is nothing unique about “lost” packet #7. This packet has the
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`same format and is treated the same way by the receiver as any other packet. The
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`receiver does not check the actual “command” in a “control” field to decide
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`whether to handle this packet any differently than packet #1. Nor could it because
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`Garrabrant does not disclose a control field to force the reception of an out-of-
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`sequence packet. Just as with every received packet, the receiver checks whether
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`the sequence number falls within the valid range. If it does, it is accepted; if not, it
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`is rejected. Nothing in the packet “commands” or “orders” the receiver to accept
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`the “lost” packet. To the contrary, if the packet included a sequence number
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`outside the valid window, the receiver would reject it. Id. at 9:5-8. As a result, the
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`transmitter does not (nor could it) “exercise a dominating influence over” or “have
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`command of” the receiver. By maintaining its valid and reject windows, the
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`receiver directs and controls processing of incoming packets, regardless of any
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`action by the transmitter. In short, the transmitter in Garrabrant does not control or
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`command the receiver. For this reason, Garrabrant does not teach “commanding a
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`receiver … to a) receive at least one packet having a sequence number that is not
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`consecutive with a sequence number of a previously received packet.”
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`2. Garrabrant does not disclose “commanding a receiver to
`release”
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`42. Broadcom’s petition fails to address whether Garrabrant discloses a
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`transmitter that commands a receiver to release expectation of receiving
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`outstanding packets having prior sequence numbers, and for that reason, Broadcom
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`cannot show that Garrabrant anticipates claim 1. In granting the institution of inter
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`partes review, the Board postulated that merely moving the valid window in
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`Garrabrant upon receipt of a packet whose sequence number SN falls within the
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`valid window causes the receiver to release expectation of packets whose sequence
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`numbers are less than SN. (Paper 25 at 15.) But that conclusion is erroneous
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`because a receiver could receive the retransmission of a rejected packet whose
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`sequence number had been previously
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`included
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`in
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`the reject window.
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`Notwithstanding that the sequence number of a “lost” packet that is retransmitted
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`may initially fall within the reject window of the receiver, the receipt of additional
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`packets may shift the receive window sufficiently so that the sequence number of
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`“lost” packet may thereafter fall within the valid window of the receiver.
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`43. To illustrate, assume that a receiver has a valid window as shown in
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`Fig. 8B (above). In this case, the receiver received packets #1 and #7, but packet
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`#2 is “lost” and is retransmitted. The receiver initially rejects Packet #2 because its
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`sequence number falls within the reject window. However, upon receipt of packet
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`#22, the receiver updates its window such that its valid window spans sequence
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`numbers 23 through 8, and its reject window spans sequence numbers 9 through
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`22. In this state, the receiver can accept the retransmission of packet #2 since its
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`sequence number falls within the updated valid window of the receiver. Therefore,
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`upon reception of an out-of-sequence packet (packet #7), the receiver cannot
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`release all expectation of receiving packets having prior sequence numbers (packet
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`#2).
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`3. Garrabrant does not disclose “discarding unacknowledged
`packets”
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`44. The “lost” message scenario of Garrabrant also fails to anticipate
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`claim 1 because Garrabrant does not teach “the transmitter discarding all packe
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