Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Cisco Systems, Inc.,
`Petitioner
`
`v.
`
`ChanBond, LLC,
`Patent Owner
`
`Patent No. 7,941,822 B2
`Filing Date: Feb. 1, 2008
`Issue Date: May 10, 2011
`
`Title: INTELLIGENT DEVICE SYSTEM AND METHOD FOR DISTRIBUTION
`OF DIGITAL SIGNALS ON A WIDEBAND SIGNAL DISTRIBUTION
`SYSTEM
`
`
`
`
`DECLARATION OF ANTHONY WECHSELBERGER IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,941,822
`
`Inter Partes Review No. ______
`
`
`
`
`
`
`1
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`Cisco Systems, Inc., Exhibit 1102
`Page 1
`
`
`Petition for Inter Partes Review of Patent No. 7,941,822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`Cisco Systems, Inc.,
`Petitioner
`
`v.
`
`ChanBond, LLC,
`Patent Owner
`
`Patent No. 7,941,822 B2
`Filing Date: Feb. 1, 2008
`Issue Date: May 10, 2011
`
`Title: INTELLIGENT DEVICE SYSTEM AND METHOD FOR DISTRIBUTION
`OF DIGITAL SIGNALS ON A WIDEBAND SIGNAL DISTRIBUTION
`SYSTEM
`
`
`
`
`DECLARATION OF ANTHONY WECHSELBERGER IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,941,822
`
`Inter Partes Review No. ______
`
`
`
`
`
`
`1
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`Cisco Systems, Inc., Exhibit 1102
`Page 1
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`I, Anthony Wechselberger, declare as follows:
`
`I have personal knowledge of the facts stated in this declaration, and
`
`1.
`
`2.
`
`could and would testify to these facts under oath if called upon to do so.
`
`I.
`
`INTRODUCTION AND QUALIFICATIONS
`A. Engagement Overview
`3.
`I have been retained by counsel for Cisco Systems, Inc. (Petitioner) in
`
`this case as an expert in the relevant art. I am being compensated for my work at
`
`the rate of $350 per hour. No part of my compensation is contingent upon the
`
`outcome of this petition.
`
`4.
`
`I was asked to study U.S. Patent No. 7,941,822 (“the ‘822 patent”), its
`
`prosecution history, and the prior art and to render opinions on the obviousness or
`
`non-obviousness of the claims of the ‘822 patent in light of the teachings of the
`
`prior art, as understood by a person of ordinary skill in the art in the 2000 time
`
`frame. I understand that the claims being challenged in the Petition are claims 1-2,
`
`5-6, 13-14, 19, 20, 23, and 29 (“the challenged claims”).
`
`B.
`5.
`
`Summary of Opinions
`
`After studying the ‘822 patent, its file history, and the prior art, and
`
`considering the subject matter of the claims of the ‘822 patent in light of the state
`
`of technical advancement in the area of electrical engineering and modulated RF
`
`
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`2
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`Cisco Systems, Inc., Exhibit 1102
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`signal transmission in the 2000 time frame, I reached the conclusions discussed
`
`herein.
`
`6.
`
`In light of these general conclusions, and as explained in more detail
`
`throughout this declaration, it is therefore my opinion that each of the challenged
`
`claims of the ‘822 patent addressed in this declaration were invalid as obvious in
`
`the 2000 time frame in light of the knowledge of a person of skill in the art at that
`
`time and the teachings, suggestions, and motivations present in the prior art. This
`
`declaration, and the conclusions and opinions herein, provide support for the
`
`Petition for Inter Partes Review of the ‘822 patent filed by Petitioner. I have
`
`reviewed the Petition in its entirety as well as its corresponding exhibits.
`
`C. Qualifications and Experience
`7.
`I possess the knowledge, skills, experience, training and the education
`
`to form an expert opinion and testimony in this matter. My areas of expertise
`
`include broadband
`
`content distribution networks
`
`and
`
`communication
`
`infrastructures (Internet, broadcast, cable, satellite, and wireless mediums)
`
`including one-way and two-way interactive architectures, computer networks,
`
`communications-systems
`
`technologies and equipment, various content and
`
`information distribution and merchandising channels, digital television, digital
`
`cinema, interactive media/multimedia systems, Internet technologies (including but
`
`not limited to delivering content via the Internet, communications standards and
`
`
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`3
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`Cisco Systems, Inc., Exhibit 1102
`Page 3
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`protocols), digital-rights management, physical media and file-based and streaming
`
`content delivery, and other areas of expertise relevant to the technologies of this
`
`matter.
`
`Education
`
`1.
`I have a bachelor’s degree and a master’s degree in electrical
`
`8.
`
`engineering from the University of Arizona in 1974 and San Diego State
`
`University in 1979, respectively. I also completed the Executive Program for
`
`Scientists and Engineers at the University of California at San Diego in 1984.
`
`Career
`
`2.
`I am currently the President of Entropy Management Solutions, a
`
`9.
`
`position I have held since I founded the company in 1999. In this capacity I
`
`perform consulting services related to technology and business development,
`
`content management, distribution and merchandizing, systems engineering, and
`
`product design in the areas of industrial and consumer broadband and multimedia
`
`technologies and associated commercial systems.
`
`10.
`
`I have over forty years of experience working with high-technology
`
`systems related to military, commercial, and consumer communication systems
`
`and networks. I have held various design, leadership, and executive positions in,
`
`for example, engineering, operations, sales and marketing, and product
`
`management at leading companies in those fields, such as TV/COM International,
`
`
`
`4
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`Cisco Systems, Inc., Exhibit 1102
`Page 4
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`Inc. (“TV/COM”) and Oak Communications, Inc. (“Oak”). Over many years I
`
`have published and presented a number of articles and papers related to
`
`content/information creation, transmission/distribution and reception/consumption
`
`in various media sectors, including cable, satellite, broadcast/wireless, Internet, and
`
`digital cinema.
`
`11.
`
`I specialize in the areas of analog and digital communications and
`
`signal processing as applied in content delivery systems, including the associated
`
`network command and control. “Command and control” refers to the technical
`
`oversight and management of communication systems and equipment within a
`
`distribution network to direct the equipment as to its set-up and operation in order
`
`to perform required functions. In the types of networks associated with the
`
`technology of this case, command and control typically operate in the background
`
`(i.e., invisible to consumers) to enable the system operator to manage the delivery
`
`of content to a set-top box (STB), television or other consumer appliance according
`
`to the on-demand or subscription service(s) for which the consumer is authorized.
`
`With respect to being authorized, “rights management” refers to control over the
`
`delivery and consumption of programming according to defined rules on behalf of
`
`the network operator and/or content-rights owner. As today’s delivery processes
`
`have become more digitally enabled, the term “Digital Rights Management”
`
`(DRM) has been adopted to refer to these processes.
`
`
`
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`Cisco Systems, Inc., Exhibit 1102
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`In many instances the implementation of content distribution channels
`
`12.
`
`and the associated command-and-control and DRM solutions involve the use of
`
`what are referred to as “in-band” and “out-of-band” communications channels for
`
`content and/or command and control. This terminology typically refers to a main
`
`content distribution path or channel (in-band channel) and one or more external or
`
`non-main paths
`
`(out-of-band channel(s)) used
`
`for a variety of other
`
`communications functions, depending upon the application. This is of particular
`
`importance in the matters of this case, which include both two-way command-and-
`
`control functionality between consumer appliances and a cable headend video-on-
`
`demand (VOD) system, as well as different content distribution paths. My
`
`personal experience with such multiple information distribution architectures for
`
`television and data delivery systems and networks dates back to 1980, and my
`
`familiarity with the types of equipment and applications implementing such
`
`technologies dates back to the early 1970s.
`
`13. Further, my background includes much experience with interactive
`
`television systems and interactive program guides, as well as client-server
`
`technologies such as those used in computer systems and Internet-focused
`
`networks. This includes having technical oversight and management of the
`
`systems engineering for and the development of equipment for distribution systems
`
`having transmission equipment (e.g., network infrastructures, servers, hubs, nodes,
`
`
`
`6
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`Cisco Systems, Inc., Exhibit 1102
`Page 6
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`cable headends, and/or satellite uplinks etc.) and receiving equipment (e.g.,
`
`personal computer, television, set-top box, handset/mobile device, or other
`
`consumer appliance). This is important because the technologies of the challenged
`
`claims revolve around interactive consumer applications for entertainment content
`
`delivery in client-server architectures. In addition to the research and development
`
`aspects, I have also been involved in the installation, customer training,
`
`maintenance, and operations of such systems.
`
`14. As Vice President at Oak (1980s) and Chief Technology Officer at
`
`TV/COM (1990s), I was involved in the development of terrestrial broadcast,
`
`satellite uplink, and cable headend
`
`industrial equipment
`
`for
`
`television
`
`transmissions, as well as consumer appliance equipment such as STBs and other
`
`home-based or home-networked devices. All of these architectures included
`
`computer control systems for network and associated network-device command
`
`and control, and for management of content distribution and consumer appliance
`
`functions. For example, these systems were all addressable. “Addressability”
`
`enables the system operator to control the delivery of content and network services,
`
`network sourcing, receiving devices (e.g., servers and transmission equipment, and
`
`PC or STB receivers), and the consumer experience. Examples include delivery of
`
`software or data files, control of available subscription services and content
`
`
`
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`Page 7
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`delivery, and providing a la carte functions such as pay-per-view (PPV) and video-
`
`on-demand (VOD).
`
`15.
`
`I was involved from the start with the development and evolution of
`
`modern consumer digital audio and video communications systems and
`
`technologies. In 1980, Oak was developing and demonstrating high fidelity digital
`
`audio transmission systems for broadcast applications. This was the same time as
`
`consumer electronics companies such as Philips, Sony, and others were doing
`
`research that eventually led to the audio compact disc. Oak and I had several
`
`meetings with such companies in our research labs sharing ideas and information
`
`about sampling rates, analog-to-digital and digital-to-analog conversion, and
`
`compatibility between consumer storage/playback and broadcast applications. In
`
`1991, my employer, TV/COM, and I began to participate in the newly-formed
`
`International Organization for Standardization (ISO) MPEG-2 digital television
`
`standards initiatives and, in the following year, both the European Digital Video
`
`Broadcast (DVB) and U.S. Advanced Television Systems Committee (ATSC)
`
`forums (which were based upon MPEG-2). I was an active participant and
`
`contributor to the first two standard-setting bodies, and was a voting member of the
`
`ATSC. As Chief Technology Officer of TV/COM, I developed a business strategy
`
`based on supporting open international standards for digital television (DTV).
`
`
`
`8
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`Cisco Systems, Inc., Exhibit 1102
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`In the mid-1990s, as the technologies and standards in support of
`
`16.
`
`DTV moved towards implementation, the dawn of the Internet age arrived. This
`
`had a dramatic impact on the way broadband systems engineers like me began to
`
`plan for the future. This is because the concept of convergence—the melding of
`
`traditional broadband communications systems and equipment, computers and
`
`computer networks, and the telecommunications worlds—was changing the
`
`communications infrastructure and technology landscape. When television
`
`distribution went all-digital, the information of television became simply “data”—
`
`and it became possible for the technologies of digital television, computers,
`
`computer networks, and the telephony industry (which was in the midst of its
`
`transition to digital infrastructure that began in the 1970s) to coalesce. Support for
`
`online and Internet services demanded a high performance two-way data
`
`transmission capability, and so broadband network providers began to upgrade
`
`their distribution infrastructures accordingly.
`
`17.
`
`In conjunction with
`
`this convergence, as TV/COM’s Chief
`
`Technology Officer, I directed the expansion of our network products into
`
`broadband data communications generally, from its initial focus on digital
`
`television. Networks became more advanced in order to support real-time
`
`interaction between consumers and information sources within the network.
`
`Interactive and online applications led to rapid adoption of client-server
`
`
`
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`Cisco Systems, Inc., Exhibit 1102
`Page 9
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`information-access approaches (typical of the computer industry) in the products
`
`and technologies I worked with for content delivery and network command-and-
`
`control functions. By the mid-1990s, the ubiquitous set-top box began to evolve
`
`from a minimalist appliance towards its current status as a communications hub of
`
`the consumer’s media room. In this same time period, the PC also become a
`
`ubiquitous consumer appliance, and with the Internet age came much innovation in
`
`electronic-information distribution and electronic merchandising (i.e., art related to
`
`complementing physical information media and brick-and-mortar institutions with
`
`all-electronic digital alternatives). This was an explosive period of so-called
`
`digital-rights management (DRM) art. TV/COM and I were part of this evolution
`
`until TV/COM was purchased in 1999.
`
`18.
`
`In my consulting work I have continued to work with technologies
`
`and network infrastructures for content distribution and management. My current
`
`work involves both traditional and newly-developing architectures and distribution
`
`channels. As an example of the latter, I am the chief security systems architect on
`
`behalf of the six major Hollywood studios for their “Digital Cinema Initiatives”
`
`(DCI) consortium. DCI develops and evolves the requirements and specifications
`
`for transitioning first-run theatrical movie releases from film to digital files for
`
`
`
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`Cisco Systems, Inc., Exhibit 1102
`Page 10
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`distribution and exhibition display.1 I am responsible for all elements of command
`
`and control and information security for the digital cinema system design and
`
`implementation. I also represent DCI at the Society of Motion Picture and
`
`Television Engineers (SMPTE), which is developing the set of internationally-
`
`recognized standards for global adoption of digital cinema. In this capacity I am a
`
`contributing member to SMPTE, and have chaired several digital cinema
`
`technology groups, and authored or co-authored more than half a dozen SMPTE
`
`standards. In addition to theatrical release, the migration to all-digital distribution
`
`impacts other content distribution channels and release windows for hospitality,
`
`airplane, and cable/satellite pay-per-view (PPV) and video-on-demand (VOD), as
`
`well as newer so called “over-the-top” (OTT) distribution channels based on
`
`Internet distribution. I have been a strategy and technology consultant to content
`
`management and distribution entities in these areas.
`
`19. My consulting practice today includes a balance of technology and
`
`systems-engineering services and assistance to the legal community as a
`
`technology consultant and expert witness. I have been accepted to provide, and
`
`have provided, expert testimony in the areas of content distribution and access
`
`control involving many different kinds of multimedia technologies and the
`
`
`
` 1
`
`
`
` See: http://www.dcimovies.com
`
`11
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`Cisco Systems, Inc., Exhibit 1102
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`associated networks as used for content management and delivery on many
`
`occasions
`
`Publications
`
`3.
`I am a named inventor on two patents: U.S. Patent No. 4,531,020,
`
`20.
`
`“Multi-layer Encryption System for the Broadcast of Encrypted Information,” and
`
`U.S. Patent No. 5,113,440, “Universal Decoder.”
`
`21.
`
`I am also the author of several journal and conference publications. A
`
`list of all my publications in the last ten years is provided in the attached Exhibit.
`
`[Ex. 1103.]
`
`4.
`Curriculum Vitae
`22. Additional details of my education and employment history and
`
`patents, are set forth in my current curriculum vitae, which is provided as Ex.
`
`1103. A list of all the cases within the last five years for which I have provided
`
`testimony is included in Ex. 1103.
`
`D. Materials Considered
`23. My analysis is based on my education and experience as set out above
`
`and in my CV [Ex. 1103], including the documents I have read and authored and
`
`systems I have developed and used since then.
`
`24. Furthermore, I have reviewed the various relevant publications from
`
`the art at the time of the alleged invention and the claim charts that are included in
`
`
`
`12
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`Cisco Systems, Inc., Exhibit 1102
`Page 12
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`
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`the Petition for Inter Partes Review of the ‘822 patent, to which this Declaration
`
`relates. I have also reviewed the Petition in its entirety. Based on my experience
`
`as a person having ordinary skill in the art (“POSITA”) at the time of the alleged
`
`invention, the references accurately characterize the state of the art at the relevant
`
`time. Specifically, I have reviewed the following:
`
`1107
`
`Exhibit
`Description of Document
`No.
`1101 U.S. Patent No. 7,941,822
`1103 Curriculum Vitae of Mr. Anthony Wechselberger
`1104
`J. A. C. Bingham, "Multicarrier modulation for data transmission: an
`idea whose time has come," in IEEE Communications Magazine,
`vol. 28, no. 5, pp. 5-14, May 1990.
`1105 M. G. Anderson, “Wired: Cable TV's. Unlikely Beginning,” Spring
`2010.
`1106 Data-Over-Cable Service Interface Specifications DOCSIS 1.0 Radio
`Frequency Interface Specification.
`Jhong Sam Lee and Leonard E. Miller, CDMA Systems Engineering
`Handbook (1998).
`1108 U.S. Patent No. 980,359 (Squier)
`1109 U.S. Patent No. 5,859,840 (Tiedemann)
`1110 U.S. Patent No. 5,103,459 (Gilhousen)
`1111 U.S. Patent No. 6,081,536 (Gorsuch)
`1112 U.S. Patent No. 5,487,069 (O’Sullivan)
`1113
`ITU-T Recommendation Q.931, May 1998.
`1114 Robert G. Winch, Telecommunication Transmission Systems (2nd
`ed. 1998)
`Steve Steinke and Network Magazine, Network Tutorial (5th ed.
`2003)
`1116 Business Wire, Sierra Wireless’ AirCard Receives 1997 Top Product
`Award from Wireless for the Corporate User, Sept. 16, 1997
`1117 Qualcomm Data Connectivity Kit User Guide, 1999
`1118
`Telecommunications Industry Association IS-95B Standard
`
`1115
`
`
`
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`Cisco Systems, Inc., Exhibit 1102
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`
`Exhibit
`Description of Document
`No.
`1119
`IBM Dictionary of Computing (10th ed. 1993)
`1120
`File History for U.S. Patent No. 7,941,822
`1121 Harry Newton, Newton’s Telecom Dictionary (21st ed. 2005)
`1122
`Philip E. Margolis, Computer & Internet Dictionary (3rd ed. 1999)
`1123
`The IEEE Standard Dictionary of Electrical and Electronics Terms
`(6th ed. 1996)
`1124 Qualcomm Enters into CDMA and HDR Modem Card License
`Agreement with GTRAN Incorporated, Nov. 3, 1999
`1125 Qualcomm Unveils “pdQ” CDMA Digital Smartphone, Sept. 21,
`1998
`1126 U.S. Patent No. 4,901,307 (Gilhousen II)
`1127
`IEEE Standard 802.11, June 1997
`1128
`John C. Welch, Wireless Networking and the Airport, MacTech, The
`journal of Apple technology, vol. 15 (1999), issue 12
`1129 U.S. Patent No. 5,504,773 (Padovani)
`1130 U.S. Department of Commerce, United States Frequency
`Allocations, The Radio Spectrum, Oct. 2003
`1131 UMTS Terrestrial Radio Access Network (UTRAN); Architecture
`Description; Stage 2; (UMTS ZZ.01 version 1.0.0), 3GPP Technical
`Specification Group, Radio Access Network Meeting #2, March
`1999
`1132 Russ Smith, IP Address: Your Internet Identity, March 1997
`1133
`John S. Belrose, Fessenden and Marconi: Their Differing
`Technologies and Transatlantic Experiments During the First Decade
`of this Century, Sept. 1995
`1134 Mukta Kar, et al., Cable Headend Architecture for Delivery of
`Multimedia Services, NCTA Technical Papers 1999
`1135 Oleh Sniezko, et al., HFC Architecture in the Making, NCTA
`Technical Papers 1999
`1136 Qualcomm Introduces New CDMA Digital Phone Accessories, Feb.
`1999
`Standards for Personal Communications in Europe and the United
`States, David J. Goodman, April 1998, P-98-1
`ITU-T Recommendation I.330
`ITU-T Recommendation E.164
`14
`
`1138
`1139
`
`1137
`
`
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`Cisco Systems, Inc., Exhibit 1102
`Page 14
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`
`Exhibit
`Description of Document
`No.
`1140 Qualcomm pdQ Basics Handbook
`
`
`II. LEGAL PRINCIPLES USED IN THE ANALYSIS
`25.
`I am not a patent attorney, nor have I independently researched the
`
`law on patent validity. Attorneys for the Petitioner explained certain legal
`
`principles to me that I have relied upon in forming my opinions set forth in this
`
`report.
`
`A.
`26.
`
`Person Having Ordinary Skill in the Art (“POSITA”)
`
`I understand that I must undertake my assessment of the claims of the
`
`‘822 patent from the perspective of what would have been known or understood by
`
`a POSITA as of the earliest-claimed priority date of the patent claim, which I
`
`understand is December 27, 2000. The opinions and statements that I provide
`
`herein regarding the ‘822 patent and the references that I discuss are made from the
`
`perspective of the person of ordinary skill in the art in the late 2000 time frame.
`
`27. Counsel has advised me that, to determine the appropriate level of one
`
`of ordinary skill in the art, I may consider the following factors: (a) the types of
`
`problems encountered by those working in the field and prior art solutions thereto;
`
`(b) the sophistication of the technology in question, and the rapidity with which
`
`innovations occur in the field; (c) the educational level of active workers in the
`
`field; and (d) the educational level of the inventor.
`15
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`Cisco Systems, Inc., Exhibit 1102
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`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`28. The
`relevant
`technology
`field for
`the
`‘822 patent
`
`is data
`
`communications over modulated RF carrier signals, especially as pertains to using
`
`multiple channels to carry voice, data, or video data. Based on this, and the four
`
`factors above, it is my opinion that a POSITA would hold a bachelor’s degree or
`
`the equivalent in electrical engineering (or related academic fields, such as a
`
`telecommunications-related field) and at least three years of industry experience in
`
`the fields of analog and digital communications, inclusive of exposure to
`
`telecommunications standards as applied in wired and wireless broadband
`
`networks, or equivalent work experience.
`
`29. Unless otherwise specified, when I mention a POSITA or someone of
`
`ordinary skill, I am referring to someone with at least the above level of knowledge
`
`and understanding.
`
`30. Based on my experiences, I have a good understanding of the
`
`capabilities of a person of ordinary skill in the relevant field. Indeed, in addition to
`
`being a person of at least ordinary skill in the art, I have worked closely with many
`
`such persons over the course of my career.
`
`31. Although my qualifications and experience exceed those of the
`
`hypothetical person having ordinary skill in the art defined above, my analysis and
`
`opinions regarding the ‘822 patent have been based on the perspective of a person
`
`of ordinary skill in the art in the December 2000 time frame.
`
`
`
`16
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`Cisco Systems, Inc., Exhibit 1102
`Page 16
`
`
`
`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`32. My opinions regarding the level of ordinary skill in the art are based
`
`on, among other things, the content of the ‘822 patent, my years of experience in
`
`the field of electrical engineering, my understanding of the basic qualifications that
`
`would be relevant to an engineer tasked with investigating methods and systems in
`
`the relevant area, and my familiarity with the backgrounds of colleagues and co-
`
`workers, both past and present.
`
`33. My opinions herein regarding the person of ordinary skill in the art
`
`and my other opinions set forth herein would remain the same if the person of
`
`ordinary skill in the art were determined to have somewhat more or less education
`
`and/or experience than I have identified above.
`
`B.
`34.
`
`Prior Art
`
`I understand that the law provides categories of information that
`
`constitute prior art that may be used to anticipate or render obvious patent claims.
`
`To be prior art to a particular patent under the relevant law, a reference must have
`
`been made, known, used, published, or patented, or be the subject of a patent
`
`application by another, before the priority date of the patent. I also understand that
`
`the POSITA is presumed to have knowledge of the relevant prior art.
`
`35. As discussed below, I understand that the Petitioner has determined
`
`that the challenged claims of the ‘822 patent are entitled to a December 27, 2000
`
`priority date.
`
`
`
`17
`
`Cisco Systems, Inc., Exhibit 1102
`Page 17
`
`
`
`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`C. Broadest Reasonable Interpretations
`36.
`I understand that, in Inter Partes Review (IPR), the claim terms are to
`
`be given their broadest reasonable interpretation (BRI) in light of the specification.
`
`See 37 C.F.R. § 42.100(b). In performing my analysis and rendering my opinions,
`
`I have interpreted claim terms for which the Petitioner has not proposed a BRI
`
`construction by giving them the ordinary meaning they would have to a POSITA,
`
`reading the ‘822 Patent with its earliest priority filing date (December 27, 2000) in
`
`mind, and in light of its specification and file history.
`
`37.
`
`I have also been advised that the Supreme Court is currently
`
`reviewing whether BRI or the claim constructions standard set forth in Philips v.
`
`AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc) is the proper standard to be
`
`applied during IPR. I understand that, under Philips, the claim terms are given
`
`their ordinary and customary meaning as understood by a POSITA in light of the
`
`specification at the time of the invention (i.e., December 27, 2000).
`
`D. Legal Standards for Anticipation & Obviousness
`38.
`I have been provided the following instruction from the Model Patent
`
`Jury Instructions for the Northern District of California (June 17, 2014) for
`
`anticipation, and instructions from the Federal Circuit Bar Association Model
`
`Instructions regarding obviousness, which is reproduced in part below. I apply this
`
`understanding in my analysis, with the caveat that I have been informed that the
`
`
`
`18
`
`Cisco Systems, Inc., Exhibit 1102
`Page 18
`
`
`
`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`Patent Office will find a patent claim invalid in inter partes review if it concludes
`
`that it is more likely than not that the claim is invalid (i.e., a preponderance-of-the-
`
`evidence standard), which is a lower burden of proof than the “clear-and-
`
`convincing” standard that is applied in United States district court (and described
`
`in the jury instruction below):
`
`4.3a1 ANTICIPATION
`
`A patent claim is invalid if the claimed invention is not
`new. For the claim to be invalid because it is not new, all
`of its requirements must have existed in a single device
`or method that predates the claimed invention, or must
`have been described in a single previous publication or
`patent that predates the claimed invention. In patent law,
`these previous devices, methods, publications or patents
`are called “prior art references.” If a patent claim is not
`new we say it is “anticipated” by a prior art reference.
`
`The description in the written reference does not have to
`be in the same words as the claim, but all of the
`requirements of the claim must be there, either stated or
`necessarily implied, so that someone of ordinary skill in
`the field of [identify field] looking at that one reference
`would be able to make and use the claimed invention.
`
`
`
`19
`
`Cisco Systems, Inc., Exhibit 1102
`Page 19
`
`
`
`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`Here is a list of the ways that [alleged infringer] can
`show that a patent claim was not new [use those that
`apply to this case]:
`
`[– if the claimed invention was already publicly known
`or publicly used by others in the United States before
`[insert date of conception unless at issue];]
`
`[– if the claimed invention was already patented or
`described in a printed publication anywhere in the world
`before [insert date of conception unless at issue]. [A
`reference is a “printed publication” if it is accessible to
`those interested in the field, even if it is difficult to
`find.];]
`
`[– if the claimed invention was already made by someone
`else in the United States before [insert date of conception
`unless in issue], if that other person had not abandoned
`the invention or kept it secret;]
`
`[– if the claimed invention was already described in
`another issued U.S. patent or published U.S. patent
`application that was based on a patent application filed
`before [insert date of the patent holder’s application
`filing date] [or] [insert date of conception unless at
`issue];]
`
`
`
`20
`
`Cisco Systems, Inc., Exhibit 1102
`Page 20
`
`
`
`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`[– if [named inventor] did not invent the claimed
`invention but instead learned of the claimed invention
`from someone else;]
`
`[– if the [patent holder] and [alleged infringer] dispute
`who is a first inventor, the person who first conceived of
`the claimed invention and first reduced it to practice is
`the first inventor. If one person conceived of the claimed
`invention first, but reduced to practice second, that
`person is the first inventor only if that person (a) began to
`reduce the claimed invention to practice before the other
`party conceived of it and (b) continued to work diligently
`to reduce it to practice. [A claimed invention is “reduced
`to practice” when it has been tested sufficiently to show
`that it will work for its intended purpose or when it is
`fully described in a patent application filed with the
`PTO].]
`
`[Since it is in dispute, you must determine a date of
`conception for the [claimed invention] [and/or] [prior
`invention]. Conception is the mental part of an inventive
`act and is proven when the invention is shown in its
`complete form by drawings, disclosure to another or
`other forms of evidence presented at trial.]
`
`(Model Patent Jury Instructions for the Northern District of California at 30-31,
`
`§ 4.3a1 (July 1, 2015).)
`
`4.3a2 STATUTORY BARS
`21
`
`
`
`Cisco Systems, Inc., Exhibit 1102
`Page 21
`
`
`
`Declaration of Anthony Wechselberger
`Petition for Inter Partes Review of Patent No. 7,941,822
`A patent claim is invalid if the patent application was not
`filed within the time required by law. This is called a
`“statutory bar.” For a patent claim to be invalid by a
`statutory bar, all of its requirements must ha
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