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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION
`Petitioner
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`v.
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`BRADIUM TECHNOLOGIES LLC
`Patent Owner
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`CASE: IPR2016-00448
`Patent No. 7,908,343 B2
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY TO PATENT OWNER’S
`RESPONSE
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`LEGAL133932678.4
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`Microsoft, Ex. 1016
`Microsoft v. Bradium, IPR2016-00448
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`I hereby declare that all the statements made in this Declaration are of my
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`
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`own knowledge and true; that all statements made on information and belief are
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`believed to be true; and further that these statements were made with the
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`knowledge that willful false statements and the like so made are punishable by fine
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`or imprisonment, or both, under 18 U.S.C. 1001 and that such willful false
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`statements may jeopardize the validity of the application or any patent issued
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`thereon.
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`I declare under the penalty of perjury that all statements made in this
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`Declaration are true and correct.
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`
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`Executed February 6, 2017 in Worcester, Massachusetts.
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`
`
`
`
`/William R. Michalson/
`William R. Michalson
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`LEGAL133932678.4
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`Microsoft, Ex. 1016
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`TABLE OF CONTENTS
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`Page
`LIST OF APPENDICES ......................................................................................... III
`I.
`INTRODUCTION .......................................................................................... 1
`II.
`SUMMARY OF OPINIONS .......................................................................... 2
`III. QUALIFICATIONS AND EXPERIENCE .................................................... 3
`A.
`Compensation ....................................................................................... 3
`B. Documents and Other Materials Relied Upon ..................................... 3
`IV. LEVEL OF ORDINARY SKILL IN THE ART ............................................ 4
`V.
`CLAIM CONSTRUCTION ........................................................................... 6
`A.
`“Limited Bandwidth Communications Channel” ................................ 8
`B.
`“Limited Communication Bandwidth Computer Device” ................. 14
`VI. CHARACTERIZATION OF ASSERTED REFERENCES ........................ 19
`A.
`Reddy .................................................................................................. 19
`B. Hornbacker ......................................................................................... 25
`VII. REDDY IN VIEW OF HORNBACKER TEACHES OR SUGGESTS
`ALL ELEMENTS OF THE ‘343 PATENT ................................................. 26
`A.
`“Limited Bandwidth Communications Channel” .............................. 26
`B.
` “Limited Communication Bandwidth Computer Device” ................ 29
`C.
`“Said processor offered to select said on the parcel… and
`render said data parcel… To provide for a progressive
`resolution enhancement” .................................................................... 37
`“Priority” claim elements ................................................................... 41
`D.
`Data Structure Arguments .................................................................. 48
`E.
`VIII. A PERSON OF ORDINARY SKILL IN THE ART WOULD HAVE
`COMBINED REDDY AND HORNBACKER ............................................ 77
`A.
`Reddy and Hornbacker are analogous art .......................................... 77
`B.
`Reddy does not teach away from the claimed solutions .................... 79
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`TABLE OF CONTENTS
`(continued)
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`Page
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`C.
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`Reddy does not teach away from operation on limited
`bandwidth communication devices .................................................... 83
`Reddy and Hornbacker are not Incompatible ..................................... 88
`D.
`The Reference Combination is not Guided by Hindsight .................. 90
`E.
`IX. NO OBJECTIVE INDICIA OF NON-OBVIOUSNESS ............................. 90
`A. No Long-Felt Need ............................................................................. 91
`B. No Nexus and No Evidence of Praise, Licenses, or Commercial
`Success ............................................................................................... 93
`CONCLUSION ........................................................................................... 104
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`X.
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`LIST OF APPENDICES
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`Appendix A
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`Curriculum Vitae of William R. Michalson
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`Appendix B
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`Excerpt of Hanan Samet, The Design and Analysis of Spatial
`Data Structures, University of Maryland (1989, Reprinted with
`corrections in Jan. 1994)
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`Appendix C
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`U.S. Patent No. 5,263,136 (DeAguiar et al)
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`Appendix D
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`U.S. Patent 4,972,319 (Delorme)
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`Appendix E
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`Appendix F
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`Appendix G
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`Appendix H
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`Appendix I
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`Appendix J
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`B. Fuller and I. Richer, The MAGIC Project: From Vision to
`Reality, IEEE Network May/June 1996, pp. 15-25
`
`International Telegraph and Telephone Consultative Committee
`(“CCITT”) Recommendation T.81, September 1992
`
`Ken Cabeen & Peter Gent, Image Compression and the
`Discrete Cosine Transform
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`M. Antonini, Image Coding Using Wavelet Transform , IEEE
`Transactions on Image Processing, Vol. 1, No. 2, April 1992.
`
`U.S. Patent No. 5,321,520 (Inga et al)
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`U.S. Patent No. 6,182,114 (Yap et al.)
`
`Appendix K
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`U.S. Patent No. 5,179,638 (Dawson et al)
`
`Lance Williams, Pyramidal Parametrics, Computer Graphics,
`vol. 17, no. 3, July 1983
`
`OpenGL Standard Version 1.1, March 1997, available:
`https://www.opengl.org/documentation/specs/version1.1/glspec
`1.1/node84.html#SECTION00681100000000000000
`
`H. Hoppe, Progressive Meshes, SIGGRAPH ’96: Proceedings
`of the 23rd annual conference on computer graphics and
`interactive techniques, pp. 99-108.
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`-iii-
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`Appendix L
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`Appendix M
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`Appendix N
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`Appendix T
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`Appendix X
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`Appendix Y
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`Appendix Z
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`Appendix AA
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`OpenGL Standard Version 1.2.1, April 1999, available:
`https://www.opengl.org/documentation/specs/version1.2/opengl
`1.2.1.pdf
`
`George H. Forman and John Zahorjan, “The challenges of
`mobile computing,” Computer vol. 27, no. 4, pp. 38, 47 (April
`1994)
`
`K. Brown and S. Singh, A Network Architecture for Mobile
`Computing, INFOCOM ’96, Fifteenth Annual Joint Conference
`of the IEEE Computer Societies, Networking the Next
`Generation, Proceedings IEEE vol. 3, pp. 1388-139
`
`Kreller, B. et al “UMTS: a middleware architecture and mobile
`API approach,” Personal Communications, IEEE, vol. 5, no. 2,
`pp. 32-38 (April 1998)
`
`Hansen, J. et al, “Real-time synthetic vision cockpit display for
`general aviation,” AeroSense ’99, International Society for
`Optics and Photonics, 1999.
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`Appendix BB
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`U.S. Patent No. 5,760,783 to Migdal et al (“Migdal”)
`
`Appendix GG
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`GeoTIFF Format Specification Revision 1.0
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`Appendix HH
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`TIFF Revision 6.0, dated June 3, 1992.
`
`Appendix II
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`FlashPix Format Specification v1.0, dated September 11, 1996
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`Appendix KK
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`The Virtual Reality Modeling Language ISO/IEC 14772-
`1:1997
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`I.
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`INTRODUCTION
`1. My name is William R. Michalson. I am a professor of electrical and
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`computer engineering at Worcester Polytechnic Institute in Massachusetts.
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`2.
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`I have been engaged by Microsoft Corporation (“Microsoft”) to
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`investigate and opine on certain issues relating to U.S. Patent No. 7,908,343 B2
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`(the “343 Patent”) entitled “Optimized Image Delivery Over Limited Bandwidth
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`Communication Channels” in Microsoft’s Petition for Inter Partes Review of the
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`343 Patent (“Microsoft IPR Petition”) which requests the Patent Trial and Appeal
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`Board (“PTAB”) to review and cancel all claims of the 343 Patent—claims 1-21
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`(“Challenged Claims”).
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`3.
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`I previously submitted a declaration (Ex. 1005) in support of the
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`Microsoft IPR Petition. Because Ex. 1005 is already a matter of record, this
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`declaration is intended only to respond to Bradium’s Patent Owner Response
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`(Paper 20) (“Response) and the exhibits submitted therewith, including the
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`Declarations of Dr. Peggy Agouris (Ex. 2003) and Isaac Levanon (Ex. 2004). This
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`declaration is based on the information currently available to me. To the extent
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`that additional information becomes available, I reserve the right to continue my
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`investigation and study, which may include a review of documents and information
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`that may be produced, as well as testimony from depositions that may not yet be
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`taken.
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`II.
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`SUMMARY OF OPINIONS
`4.
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`Neither the Patent Owner Response nor the opinions expressed by Dr.
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`Agouris alter my previous opinion that the Challenged Claims of the ‘343 patent
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`are invalid as obvious. Specifically, having reviewed the Patent Owner Response
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`and Dr. Agouris’ declaration it is my opinion that all elements of the Challenged
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`Claims are taught or suggested to a person of ordinary skill in the art by the
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`combination of Reddy (Ex. 1004) and Hornbacker (Ex. 1003) and that a person of
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`ordinary skill in the art at the time of the alleged invention1 would have combined
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`1 I understand that Bradium has alleged an invention date for other related patents
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`of November 1999, while the earliest provisional application to which the ‘343
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`Patent claims priority was filed on December 27, 2000. Bradium does not dispute
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`in its Patent Owner Response that the asserted prior art references are prior art, so
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`it is not necessary for me to determine whether the ‘343 Patent is actually entitled
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`to a November 1999 invention date, and my opinions regarding the obviousness of
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`the ‘343 Patent would not change whether the applicable date is November 1999 or
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`December 2000. However, nothing in this Declaration or any other Declaration
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`these references in the manner set forth in the petition. It is also my opinion that
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
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`certain claim constructions proposed by Bradium, which differ from the claim
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`constructions proposed by petitioner, are incorrect. It is also my opinion that so-
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`called “secondary” or “objective” indicia of non-obviousness either do not exist or
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`do not defeat the strong showing of obviousness made by the petition.
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`III. QUALIFICATIONS AND EXPERIENCE
`5. My background and experience are fully outlined in my 2016
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`Declaration.
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`A. Compensation
`6.
`I am being compensated for the services I am providing in this and
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`other Microsoft IPR petitions. The compensation is not contingent upon my
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`performance, the outcome of this inter partes review or any other proceedings, or
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`any issues involved in or related to this inter partes review or any other
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`proceedings.
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`B. Documents and Other Materials Relied Upon
`7.
`In forming my opinions, I have relied on information and evidence
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`identified in my previous declaration, as well as my review of Patent Owner’s
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`Response (“Response,” Paper 20) and the declaration from Dr. Peggy Agouris (Ex.
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`that I have filed with the PTAB is in any way an admission that Bradium is
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`actually entitled to a November 1999 invention date for any of its claims.
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`2003) both dated November 7, 2016. I have further relied on the documents and
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
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`evidence cited in this Declaration, as well as my knowledge and experience in the
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`relevant fields.
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`IV. LEVEL OF ORDINARY SKILL IN THE ART
`8.
`Bradium and Dr. Agouris both offer statements regarding the level of
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`ordinary skill in the art which differ from the opinion that I offered in my 2016
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`Declaration. Paper 20 at 8; Ex. 2003, ¶¶ 15-19. Dr. Agouris provides no
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`explanation for the basis of her opinion regarding the level of ordinary skill in the
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`art.
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`9.
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`Bradium (although not Dr. Agouris) argues that the opinion regarding
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`the level of ordinary skill in the art that I expressed in my 2016 Declaration is
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`incorrect because one of the named inventors, Mr. Levanon, would not have met
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`my definition of the level of ordinary skill in the art. Bradium also asserts that the
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`other named inventor, Mr. Lavi, also would not qualify as a person of ordinary
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`skill in the art, but provides no evidence to support this assertion. I disagree with
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`this assertion.
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`10. First of all, I understand that a person of ordinary skill in the art is not
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`a specific individual, but a hypothetical individual at the time of the alleged
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`invention who is familiar with the relevant art in the field and is capable of making
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`reasonable inferences from that art, in addition to being a person of ordinary
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`creativity. If an alleged invention is not in fact novel but simply applies principles
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`that were well-known in the art with predictable results, as is the case with the ‘343
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`Patent, it is certainly possible that the named inventors might have less education
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`and experience than a hypothetical person of ordinary skill in the art. It appears
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`that Dr. Agouris herself did not consider it necessary to consider any information
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`regarding the background of either Mr. Levanon or Mr. Lavi before offering an
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`opinion regarding the level of ordinary skill. Ex. 1018 at [XX][R30:2-31:35 ].
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`11. Additionally, based on my review of Mr. Levanon’s linkedin profile
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`(Ex. 1015), it does not appear as though Mr. Levanon would meet Bradium and Dr.
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`Agouris’ proposed definition of a person of ordinary skill in the art, because Mr.
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`Levanon does not have a four-year degree or equivalent in any of the fields of art
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`identified by Bradium. See also Ex. 1019 (Levanon Deposition Transcript) at
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`31:19-22. This is not surprising, since Mr. Lavi testified that most of the actual
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`design work relating to the ‘343 Patent was done either by Mr. Lavi or by others
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`who are not named as inventors, rather than Mr. Levanon, who had no ability to
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`write computer source code. Ex. 1017 (Lavi Declaration), ¶ 3.
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`12. However, having considered the proposed level of ordinary skill
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`offered by Bradium and Dr. Agouris, it is my opinion that neither the opinions that
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`I offered in my 2016 Declaration nor the opinions that I offer in this Declaration
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`would change if Bradium’s proposed level of ordinary skill were applied.
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
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`13. My conclusions would not change if the level of ordinary skill in the
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`art were assessed in November 1999, which was the earliest invention date asserted
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`by Bradium during the prosecution of related patents, or in December 2000, when
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`the earliest applications to which the ‘343 Patent claims priority were filed.
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`V. CLAIM CONSTRUCTION
`14.
`I understand that in this proceeding, the Board must apply the
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`Broadest Reasonable Interpretation (BRI) of claim terms in the patents, although a
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`different standard may apply in litigation.2 It is my opinion that the claim
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`2 I understand that terms may be construed more narrowly in litigation in district
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`court, where a different claim construction standard applies, than in this IPR. I
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`also understand that the arguments made by a patent owner to the Patent and
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`Trademark Office, including in an IPR may limit the scope of its claims with
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`respect to infringement. For example, I understand that a patent owner who argues
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`to the PTO that the claims have a narrow meaning or that certain features in the
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`prior art are different than what is claimed may be precluded from later arguing
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`that the same claims have a broader meaning or that the same features cause
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`accused products to infringe. Therefore, nothing in this declaration should be
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`interpreted as an admission regarding the proper scope of the claim terms in district
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`court litigation or as an admission regarding infringement.
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`constructions proposed by Bradium and Dr. Agouris are incorrect and inconsistent
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
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`with the BRI that the Board must apply. Paper 20 at 8-15; Ex. 2003, ¶¶ 20-43.
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`Specifically, Bradium and Dr. Agouris appear to be attempting to rewrite terms
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`requiring “limited bandwidth” or “limited communications bandwidth” to mean
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`something other than Bandwidth.
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`15.
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`I understand that in its Institution Decision, the Board construed “data
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`parcel” to mean data that corresponds to an element of a source image array.
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`While I do not necessarily agree with this construction, Bradium does not rely on
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`this construction in its Response, and therefore my opinion would not change if
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`this construction were applied. Additionally, I note that neither Bradium nor Dr.
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`Agouris argues that a “data parcel” is absent from the asserted prior art references,
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`nor do either Bradium or Dr. Agouris make any arguments relying on this
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`construction.
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`16. Bradium and Dr. Agouris have also requested that the Board construe
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`“image parcel” as an element of an image array, with the image parcel being
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`specified by the X and Y position in the image array coordinates and an image set
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`resolution index. While I do not necessarily agree with this construction, Bradium
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`does not rely on this construction in its Response, and therefore my opinion would
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`not change if this construction were applied. Again, I note that neither Bradium
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`nor Dr. Agouris argues that an “image parcel” is absent from the asserted prior art
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`references, nor do either Bradium or Dr. Agouris make any arguments relying on
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`this construction.
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`A.
`17.
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`“Limited Bandwidth Communications Channel”
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`In my opinion, the broadest reasonable interpretation of this term is its
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`plain and ordinary meaning. I understand that Bradium and Dr. Agouris have
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`proposed to construe this term as a “wireless or narrowband communications
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`channel.” In my opinion, the constructions proposed by Bradium and Dr. Agouris
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`are either unhelpful to the Board or are based on preferred embodiments.
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`18. For example, “narrowband” is simply another way to say that the
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`bandwidth is limited, and therefore does not add clarification to the term “limited
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`bandwidth.” Dr. Agouris conceded as much in her deposition by stating that
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`“narrow band means limited.” Ex. 1018 at 36:13-39:11. Dr. Agouris was unable
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`to provide any more coherent explanation of the term “narrowband” during her
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`deposition despite extensive questioning. Ex. 1018 at 36:13-45:19, 49:14-53:5. In
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`my opinion, this is because “narrowband” does not provide additional meaning to
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`the claim term.
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`19. Bradium’s proposed construction also would construe all wireless
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`connections as “limited bandwidth communications channels,” but would not limit
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`the term to wireless communications channels. In support of this proposition,
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`Bradium and Dr. Agouris identify column 3, lines 6-9, which states that “another
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`problem is that small clients are generally constrained to generally to [sic] very
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`limited network bandwidths, particularly when operating under wireless
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`conditions.” I disagree with Bradium’s and Dr. Agouris’ reading of this portion of
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`the specification, since it simply states that limited bandwidth may occur under
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`wireless conditions, but does not state that all wireless conditions are limited
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`bandwidth. It is possible that Bradium may have proposed this vague construction
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`because it has filed a patent lawsuit against Microsoft accusing of infringement
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`products (such as cellular phones or computers connected to an IEEE 802.11
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`wireless connection) which use communications channels that would clearly have
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`been considered “broadband” by 1999 standards.
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`20.
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`I note, however, that because Bradium’s proposed construction
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`encompasses all wireless channels regardless of bandwidth, that Bradium’s
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`proposed construction contradicts its arguments that the prior art could not use a
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`“limited bandwidth communications channel.” For example, as of 1999, the IEEE
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`802.11a wireless LAN (local area network) standard (one of a family of standards
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`colloquially referred to as “Wi-Fi”) indicates that local wireless networks could
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`achieve connection bandwidths as high as 54 megabits per second (Mbps), which
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`is almost 1000 times as much data per second as the fastest dial-up modem
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`connections of the time, which were 56 kilobits per second (Kbps). As I discuss
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`further below, it is my opinion that it would be obvious to a person of ordinary
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`skill in the art to apply the teachings of Reddy on a connection as limited as a dial-
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`up modem connection (and Dr. Agouris does not dispute that such connections are
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`limited bandwidth, see Ex. 2003, ¶ 32), but it would also be obvious to do so on a
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`high-speed wireless connection which would be included under Bradium’s
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`construction.
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`21. The specification of the ‘343 Patent clearly explains how a high
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`concurrent user load can cause an otherwise high bandwidth communications
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`channel to be “limited.” For example, at column 3, lines 9-14, the ‘343 Patent
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`states that “limited bandwidth conditions may exist due to either the direct
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`technological constraints dictated by the user of a low bandwidth data channel or
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`indirect constraints imposed on relatively high-bandwidth channels by high
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`concurrent user loads.” However, Bradium and Dr. Agouris then attempt to draw a
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`distinction between “limited bandwidth conditions” and “technological constraints
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`on that channel itself,” which they define as “a technologically imposed maximum
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`15
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`bandwidth throughput.” Paper 20 at 9-10, Ex. 2003, ¶¶ 31-32. I disagree with this
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`assertion.
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`22. The ‘343 Patent itself does not contain any clear indication that the
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`claims of the ‘343 Patent are intended to exclude constraints caused by high
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`concurrent user loads, and the specification suggests the opposite. Indeed, during
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`20
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`his deposition, Mr. Levanon (without even being asked about this specific topic)
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`volunteered that limited bandwidth channels “can be limited by the amount of
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`users.” Ex. 1019 at 40:18-41:10.
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`23.
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`In my view, Bradium’s purported difference between limited
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`bandwidth “channels” and “conditions” is trivial to a person of ordinary skill in the
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`5
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`art when it comes to designing application software. Dr. Agouris argues that “a
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`narrowband connection such as dial-up, for example, regardless of concurrent user
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`load, has a technologically imposed maximum bandwidth throughput.” Ex. 2003,
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`¶ 31. This sentence is meaningless from perspective of a person of ordinary skill
`
`in the art trying to make a network application work on a device. A person of
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`10
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`ordinary skill in the art in 1999 would understand very well that communications
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`channels do not always deliver their “technologically imposed maximum
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`bandwidth throughput” (e.g. 56 KBps for a dial-up modem rated as such) for a
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`multitude of reasons and would typically not design an Internet or network-based
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`application on the assumption that it would always achieve its maximum
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`15
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`theoretical bandwidth. For an application that is sending and receiving packets of
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`data, what matters is how many packets that application is able to successfully
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`send and receive within a given amount of time. From the perspective of a person
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`of ordinary skill in the art designing the application itself, it does not matter
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`whether the constraint is caused by the maximum bandwidth of the channel or
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`20
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`sharing the channel with other users- the end result is that the client device can
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`send and receive a certain amount of data within a certain time frame. A rough
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`analogy is comparing an irrigation system that delivers X gallons of water per hour
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`to one farmer to a system that delivers 4X gallons of water per hour to four farmers.
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`In either case the farmer prepares to receive X gallons of water per hour and plans
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`5
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`accordingly. In the case of application software, the relevant constraint is how
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`many packets can be sent and received, not why the number of packets that can be
`
`sent and received is limited. In my view, it would be obvious to a person of
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`ordinary skill in the art in view of teachings that suggested limited bandwidth due
`
`to concurrent usage that similar teachings would apply where the bandwidth was
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`10
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`limited due to maximum capacity.
`
`24. Bradium and Dr. Agouris also mischaracterize the Petition when they
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`state (identically, other than the addition of the words “It is my opinion that…”)
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`that “[t]he Petition argues that Reddy teaches a device that retrieves data over
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`limited bandwidth communications channel [sic] because Reddy uses the Internet.”
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`15
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`Paper 20 at 11, Ex. 2003, ¶ 36. As I will discuss further in this declaration, the
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`Petition contains a much more extensive discussion of how Reddy teaches or
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`suggests a limited bandwidth communication channel and how such a channel
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`would be obvious to a person of ordinary skill in the art, particularly through
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`Reddy’s teachings about accessing data in conditions of limited bandwidth that
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`would be encountered in a military or emergency response scenario. See, e.g.
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
`
`Paper 1 at 25-27.
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`25. Bradium and Dr. Agouris (again identically) state that “[t]he Internet,
`
`however, is not a ‘communications channel’ as used in the 343 Patent or as would
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`5
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`be understood by a POSA in 1999. A client device would use a communications
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`channel to use the Internet.” Paper 20 at 10, Ex. 2003, ¶ 36. It is not clear to me
`
`what relevance this argument has, since a person of ordinary skill in the art would
`
`clearly know that a communications channel is necessary to access the Internet, as
`
`Bradium concedes. Bradium’s argument also contradicts the apparent positions
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`10
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`that Bradium has taken in litigation asserting the ‘343 Patent (among others)
`
`against Microsoft products.3 For example, Bradium’s infringement contentions
`
`
`3 In this Declaration, I discuss certain excerpts from Bradium’s infringement
`
`theories against Microsoft for the sole purpose of identifying certain issues where
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`Bradium’s arguments in its Patent Owner Response contradict its apparent
`
`positions when it comes to infringement. I understand that such contradictions
`
`may be relevant because a Patent Owner such as Bradium cannot twist the words
`
`of a patent one way for infringement and another for invalidity. Since I am only
`
`discussing the invalidity of the ‘343 Patent in this Declaration, and I understand
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`that Bradium’s infringement allegations are an issue that the Board will decide, I
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`regarding the ‘343 Patent simply state that accused products connect to ‘a network
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`communication channel such as, for example, the Internet” with no further
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`explanation of its allegation that the accused Microsoft products practice the
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`“limited bandwidth communication channel” element.
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`5
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`B.
`26.
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`“Limited Communication Bandwidth Computer Device”
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`In my view, Bradium and Dr. Agouris attempt to redefine this term to
`
`mean something completely different than what the claim actually says. Paper 20
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`at 12-15, Ex. 2003 ¶¶ 37-43. The phrase “limited communication bandwidth
`
`computer device” appears only in the claims, and it is neither defined in the patent
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`10
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`nor a known term of art. Therefore, I started my analysis with the actual claim
`
`language, which neither Bradium nor Dr. Agouris appears to have considered. The
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`only characteristic of a device which is mentioned in the claim language is
`
`“communication bandwidth,” not processing power, whether a device is a
`
`“dedicated function device,” the amount of memory, the portability of the device,
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`15
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`the size of the device, or the “form factor” of the device (e.g. desktop computer,
`
`laptop computer, tablet, kiosk, cell phone, etc.). In my view, under the BRI
`
`standard applicable to this proceeding, this term requires no further construction,
`
`
`am not offering any further opinions in this Declaration regarding Bradium’s
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`infringement allegations.
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`and as I discuss further, Bradium’s arguments for construing it otherwise are
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`DECLARATION OF PROF. WILLIAM R. MICHALSON
`IN SUPPORT OF PETITIONER’S REPLY
`TO PATENT OWNER’S RESPONSE
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`unconvincing.
`
`27. Bradium and Dr. Agouris rely on preferred embodiments which refer
`
`to various types of devices as “characteristic” or “examples” of a “small client,”
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`5
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`which is not the actual claim term, and go on to say that such devices are
`
`“frequently constrained by limited bandwidth conditions.” However, nothing
`
`about these examples acts to redefine the claim. By way of analogy, the statement
`
`“Chevy Suburbans are frequently constrained by limited gas mileage” would not
`
`lead to the conclusion that a “limited gas mileage vehicle” must be defined as “a
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`10
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`Chevy Suburban.” I am not aware of any other statement in the patent that equates
`
`limited bandwidth to being a “small client,” nor would a person of ordinary skill in
`
`the art have made such an assumption.
`
`28. My reading of the specification is that the specification discusses
`
`bandwidth and computation power as sepa