IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
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`ZTE (USA) Inc.,
`Petitioner,
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`
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`v.
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`
`
`Papst Licensing Gmbh & Co. KG,
`Patent Owner.
`
`
`
`Case No. To Be Assigned
`Patent No. 9,189,437 B2
`
`
`
`DECLARATION OF KEVIN C. ALMEROTH IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 9,189,437
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. § 42.100 et seq.
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ZTE (USA) Inc.,
`Petitioner,
`
`
`
`v.
`
`
`
`Papst Licensing Gmbh & Co. KG,
`Patent Owner.
`
`
`
`Case No. To Be Assigned
`Patent No. 9,189,437 B2
`
`
`
`DECLARATION OF KEVIN C. ALMEROTH IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW
`OF U.S. PATENT NO. 9,189,437
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R. § 42.100 et seq.
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`I, Kevin C. Almeroth, hereby declare and state as follows:
`
`1.
`
`I have been retained as a technical consultant on behalf of
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`Petitioner ZTE (USA) Inc. I understand that the petition in the present
`
`proceeding also names ZTE (USA) Inc. and ZTE Corporation as the real
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`parties-in-interest. I have no financial interest in, or affiliation with, the Petitioner,
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`real parties-in-interest, or the patent owner, which I understand to be Papst
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`Licensing GmbH & Co. KG. My compensation does not depend upon the
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`outcome of, or my testimony in, the present inter partes review or any litigation
`
`proceedings.
`
`2.
`
`I understand that the application leading to U.S. Patent
`
`No. 9,189,437 (“the ʼ437 patent”) was Application No. 11/467,092, which was
`
`filed on August 24, 2006. The ʼ437 Patent is part of a long chain of continuing
`
`applications, which purport to claim priority back to PCT/EP98/01187 (filed on
`
`March 3, 1998) and German application DE 197 08 755 (filed on March 4, 1997).
`
`I understand, however, that the patentee failed to perfect its claim of priority
`
`though all of the intervening applications. In particular, while U.S. Application
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`No. 11/078,778 was filed as a continuation of U.S. Application No. 10/219,105, it
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`failed to claim priority to the earlier-filed U.S. Application No. 09/331,002. For
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`purposes of my opinions in this declaration, I assume the time of the purported
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`invention to be no earlier than August 15, 2002 (the filing date of the ’105
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`Application).
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`I.
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`BACKGROUND AND QUALIFICATIONS
`I hold three degrees from the Georgia Institute of Technology:
`3.
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`(1) a Bachelor of Science degree in Information and Computer Science
`
`(with minors in Economics, Technical Communication, American Literature)
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`earned in June, 1992; (2) a Master of Science degree in Computer Science
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`(with specialization in Networking and Systems) earned in June, 1994; and (3) a
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`Doctor of Philosophy (Ph.D.) degree in Computer Science (Dissertation Title:
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`Networking and System Support for the Efficient, Scalable Delivery of Services
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`in Interactive Multimedia System, minor in Telecommunications Public Policy)
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`earned in June, 1997. During my education, I have taken a wide variety of
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`courses as demonstrated by my minor. My undergraduate degree also included a
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`number of courses are more typical of a degree in electrical engineering
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`including digital logic, signal processing, and telecommunications theory.
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`4.
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`One of the major themes of my research has been the delivery
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`of multimedia content and data between computing devices and users. In my
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`research I have looked at large-scale content delivery systems and the use of
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`servers located in a variety of geographic locations to provide scalable delivery to
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`hundreds, even thousands, of users simultaneously. I have also looked at smaller-
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`scale content delivery systems
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`in which content,
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`including
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`interactive
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`communication like voice and video data, is exchanged between computers and
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`portable computing devices. As a broad theme, my work has examined how to
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`exchange content more efficiently across computer networks, including the devices
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`that switch and route data traffic. More specific topics include the scalable
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`delivery of content to many users, mobile computing, satellite networking,
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`delivering content to mobile devices, and network support for data delivery in
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`wireless network.
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`5.
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`Beginning in 1992, when I started graduate school, the first
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`focus of my research was on the provision of interactive functions (VCR-style
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`functions like pause, rewind, and fast-forward) for near video-on-demand systems
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`in cable systems, in particular, how to aggregate requests for movies at a cable
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`head-end and then how to satisfy a multitude of requests using one audio/video
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`stream broadcast to multiple receivers simultaneously. Continued evolution of this
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`research has resulted in the development of new techniques to scalably deliver on-
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`demand content, including audio, video, web documents, and other types of data,
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`through the Internet and over other types of networks, including over cable
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`systems, broadband telephone lines, and satellite links.
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`6.
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`An important component of my research from the very
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`beginning has been investigating the challenges of communicating multimedia
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`content between computers and across networks. Although the early Internet was
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`designed mostly for text-based non-real time applications, the interest in sharing
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`multimedia content quickly developed. Multimedia-based applications ranged
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`from downloading content to a device to streaming multimedia content to be
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`instantly used. One of the challenges was that multimedia content is typically
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`larger than text-only content but there are also opportunities to use different
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`delivery techniques since multimedia content is more resilient to errors. I have
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`worked on a variety of research problems and used a number of systems that were
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`developed to deliver multimedia content to users.
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`7.
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`In 1994, I began to research issues associated with the
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`development and deployment of a one-to-many communication facility (called
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`“multicast”) in the Internet (first deployed as the Multicast Backbone, a virtual
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`overlay network supporting one-to-many communications). Some of my more
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`recent research endeavors have looked at how to use the scalability offered by
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`multicast to provide streaming media support for complex applications like
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`distance learning, distributed collaboration, distributed games, and large-scale
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`wireless communications. Multicast has also been used as the delivery mechanism
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`in systems that perform local filtering (i.e., sending the same content to a large
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`number of users and allowing them to filter locally content in which they are not
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`interested).
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`8.
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`Starting in 1997, I worked on a project to integrate the
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`streaming media capabilities of the Internet together with the interactivity of the
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`web. I developed a project called the Interactive Multimedia Jukebox (IMJ).
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`Users would visit a web page and select content to view. The content would then
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`be scheduled on one of a number of channels, including delivery to students in
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`Georgia Tech dorms delivered via the campus cable plant. The content of each
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`channel was delivered using multicast communication.
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`9.
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`In the IMJ, the number of channels varied depending on the
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`capabilities of the server including the available bandwidth of its connection to the
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`Internet. If one of the channels was idle, the requesting user would be able to
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`watch their selection immediately. If all channels were streaming previously
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`selected content, the user’s selection would be queued on the channel with the
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`shortest wait time. In the meantime, the user would see what content was currently
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`playing on other channels, and because of the use of multicast, would be able to
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`join one of the existing channels and watch the content at the point it was currently
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`being transmitted.
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`10. The IMJ service combined the interactivity of the web with the
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`streaming capabilities of the Internet to create a jukebox-like service. It supported
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`true Video-on-Demand when capacity allowed, but scaled to any number of users
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`based on queuing requested programs. As part of the project, we obtained
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`permission from Turner Broadcasting to transmit cartoons and other short-subject
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`content. We also attempted to connect the IMJ into the Georgia Tech campus
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`cable television network so that students in their dorms could use the web to
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`request content and then view that content on one of the campus’s public access
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`channels.
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`11. More recently, I have also studied issues concerning how users
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`choose content, especially when considering the price of that content. My research
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`has examined how dynamic content pricing can be used to control system load. By
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`raising prices when systems start to become overloaded (i.e., when all available
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`resources are fully utilized) and reducing prices when system capacity is readily
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`available, users’ capacity to pay as well as their willingness can be used as factors
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`in stabilizing the response time of a system. This capability is particularly useful
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`in systems where content is downloaded or streamed to users on-demand.
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`12. As a parallel research theme, starting in 1997, I began
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`researching issues related to wireless devices. In particular, I was interested in
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`showing how to provide greater communication capability to “lightweight
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`devices,” i.e., small form-factor, resource-constrained (e.g., CPU, memory,
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`networking, and power) devices.
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`13. Starting in 1998, I published several papers on my work to
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`develop a flexible, lightweight, battery-aware network protocol stack. The
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`lightweight protocols we envisioned were similar in nature to protocols like
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`Universal Plug and Play (UPnP) and Digital Living Network Alliance (DLNA).
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`14. From this initial work, I have made wireless networking—
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`including ad hoc and mesh networks and wireless devices—one of the major
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`themes of my research. One topic includes developing applications for mobile
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`devices, for example, virally exchanging and tracking “coupons” through
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`“opportunistic contact” (i.e., communication with other devices coming into
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`communication range with a user). Other topics include building network
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`communication among a set of mobile devices unaided by any other kind of
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`network infrastructure. Yet another theme is monitoring wireless networks, in
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`particular different variants of IEEE 802.11 compliant networks, to (1) understand
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`the operation of the various protocols used in real-world deployments, (2) use these
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`measurements to characterize use of the networks and identify protocol limitations
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`and weaknesses, and (3) propose and evaluate solutions to these problems.
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`15. Protecting networks, including their operation and content, has
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`been an underlying theme of my research almost since the beginning. Starting in
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`2000, I have also been involved in several projects that specifically address
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`security, network protection, and firewalls. After significant background work, a
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`team on which I was a member successfully submitted a $4.3M grant proposal to
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`the Army Research Office (ARO) at the Department of Defense to propose and
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`develop a high-speed intrusion detection system. Once the grant was awarded, we
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`spent several years developing and meeting the milestones of the project. I have
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`also used firewalls in developing techniques for the classroom to ensure that
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`students are not distracted by online content.
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`16. As an important component of my research program, I have
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`been involved in the development of academic research into available technology
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`in the market place. One aspect of this work is my involvement in the Internet
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`Engineering Task Force (IETF) including many content delivery-related working
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`groups like the Audio Video Transport (AVT) group, the MBone Deployment
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`(MBONED) group, Source Specific Multicast (SSM) group, the Inter-Domain
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`Multicast Routing (IDMR) group, the Reliable Multicast Transport (RMT) group,
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`the Protocol Independent Multicast (PIM) group, etc. I have also served as a
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`member of
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`the Multicast Directorate (MADDOGS), which oversaw
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`the
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`standardization of all things related to multicast in the IETF. Finally, I was the
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`Chair of the Internet2 Multicast Working Group for seven years.
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`17.
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`I am an author or co-author of nearly 200 technical papers,
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`published software systems, IETF Internet Drafts and IETF Request for Comments
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`(RFCs).
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`18. My involvement in the research community extends to
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`leadership positions for several journals and conferences. I am the co-chair of the
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`Steering Committee for the ACM Network and System Support for Digital Audio
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`and Video (NOSSDAV) workshop and on the Steering Committees for the
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`International Conference on Network Protocols (ICNP), ACM Sigcomm
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`Workshop on Challenged Networks (CHANTS), and IEEE Global Internet (GI)
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`Symposium. I have served or am serving on the editorial boards of IEEE/ACM
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`Transactions on Networking, IEEE Transactions on Mobile Computing, IEEE
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`Transactions on Networks and System Management, IEEE Network, ACM
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`Computers in Entertainment, AACE Journal of Interactive Learning Research
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`(JILR), and ACM Computer Communications Review.
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`19.
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`I have co-chaired a number of conferences and workshops
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`including the IEEE International Conference on Network Protocols (ICNP), ACM
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`International Conference on Next Generation Communication (CoNext), IEEE
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`Conference on Sensor, Mesh and Ad Hoc Communications and Networks
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`(SECON), International Conference on Communication Systems and Networks
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`(COMSNETS),
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`IFIP/IEEE
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`International Conference on Management of
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`Multimedia Networks and Services (MMNS), the International Workshop On
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`Wireless Network Measurement (WiNMee), ACM Sigcomm Workshop on
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`Challenged Networks (CHANTS), the Network Group Communication (NGC)
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`workshop, and the Global Internet Symposium; and I have been on the program
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`committee of numerous conferences.
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`20. Furthermore, in the courses I teach, the class spends significant
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`time covering all aspects of the Internet including each of the layers of the Open
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`System Interconnect (OSI) protocol stack commonly used in the Internet. These
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`layers include the physical and data link layers and their handling of signal
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`modulation, error control, and data transmission. I also teach DOCSIS, DSL, and
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`other standardized protocols for communicating across a variety of physical media
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`including cable systems, telephone lines, wireless, and high-speed Local Area
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`Networks (LANs). I teach the configuration and operation of switches, routers,
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`and gateways including routing and forwarding and the numerous respective
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`protocols as they are standardized and used throughout the Internet. Topics
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`include a wide variety of standardized Internet protocols at the Network Layer
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`(Layer 3), Transport Layer (Layer 4), and above.
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`21.
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`In addition, I co-founded a technology company called Santa
`
`Barbara Labs that was working under a sub-contract from the U.S. Air Force to
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`develop very accurate emulation systems for the military’s next generation
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`internetwork. Santa Barbara Labs’ focus was in developing an emulation platform
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`to test the performance characteristics of the network architecture in the variety of
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`environments in which it was expected to operate, and in particular, for network
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`services including IPv6, multicast, Quality of Service (QoS), satellite-based
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`communication, and security. Applications for this emulation program included
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`communication of a variety of multimedia-based services. Within this testing
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`infrastructure, we used a wide range of switches and routers.
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`22.
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`In addition to having co-founded a technology company myself,
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`I have worked for, consulted with, and collaborated with companies such as IBM,
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`Hitachi Telecom, Digital Fountain, RealNetworks, Intel Research, Cisco Systems,
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`and Lockheed Martin.
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`23.
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`I am a Member of the Association of Computing Machinery
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`(ACM) and a Fellow of the Institute of Electrical and Electronics Engineers
`
`(IEEE).
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`24. Further details about my background, qualifications, and
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`experience are included in my curriculum vitae (“CV”) submitted herewith as Ex.
`
`1011, which I provided from my own files.
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`II. OVERVIEW OF THE ʼ437 PATENT
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`25. The ’437 Patent describes an “interface device” intended to
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`eliminate the need for specialized device drivers. When the interface device of the
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`alleged invention is connected to a host, it responds to the host’s request for
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`identification by “simulat[ing], both in terms of hardware and software, the way in
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`which a conventional input/output device functions, preferably that of a hard disk
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`drive,” for which the host system already has a working driver. Ex. 1001, at 4:17-
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`20 (emphasis added). When the host communicates with the interface device to
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`request data from or control the operation of the data device, the host uses its own
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`customary device driver, and the interface device translates the communications
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`into a form understandable by the connected data device. Id. at 3:29-4:41. The
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`interface device of the ʼ437 Patent thus does not require a “specially designed
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`driver” to permit a connected peripheral device to communicate with a host
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`computer. Id. at 4:25-26. “Communication between the host device and the
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`devices attached to the multi-purpose interface … essentially takes place by means
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`of the specific driver software for the multipurpose interface ….” Id. at 3:59-62.
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`III. LEVEL OF ORDINARY SKILL
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`26.
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`I understand that patent claims must be interpreted by a person
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`of ordinary skill in the art (“POSITA”) at the time of invention. For the purpose of
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`this proceeding, I have been informed to evaluate the level of ordinary skill in the
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`art as of August 15, 2002 (the filing date of the ’105 Application). Based on the
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`disclosure of the ʼ437 patent, a POSITA at the relevant time would have had at least
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`a four-year undergraduate degree in electrical engineering, computer science,
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`computer engineering, or related field of study, or equivalent experience, and at
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`least two years of experience in studying or developing computer interfaces or
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`peripherals and storage-related software. In my opinion, a POSITA would also be
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`familiar with operating systems (e.g., MS-DOS, Windows, Unix), their associated
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`file systems (e.g., FAT, UFS, FFS), device drivers for computer components and
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`peripherals (e.g., mass storage device drivers), and communication interfaces (e.g.,
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`SCSI, USB, PCMCIA). This description is approximate, and a higher level of
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`education or skill might make up for less experience, and vice-versa.
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`27. Based on my experience, I have an understanding of the
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`capabilities of a POSITA. Furthermore, I possessed those capabilities myself at
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`least as of August 15, 2002.
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`IV. ANALYSIS
`“input/output (i/o) port” (claim 1)
`A.
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`28.
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`In my opinion, as of August 15, 2002, a POSITA would have
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`understood the following structures disclosed in PCT No. WO 98/39710 (“the PCT
`
`Publication”), attached as Exhibit 1004 (Certified English translation) to be
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`examples of an input/output (i/o) port: (1) a 50-pin SCSI connector with a SCSI
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`interface, (2) a 25-pin sub-D connector with an Enhance Parallel Port (EPP), and
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`(3) a 25-pin connector with a digital input/output.
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`B.
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`“a sensor … designed to generate the analog data” (claim 16)
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`29.
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`In my opinion, as of August 15, 2002, a POSITA would have
`
`understood an electronic measuring device such as a multimeter, as disclosed in
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`PCT No. WO 98/39710 (“the PCT Publication”) attached as Exhibit 1004
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`(Certified English translation), to be an example of a sensor designed to generate
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`and transmit data.
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`C.
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`“at least one file of … data” (claim 1)
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`30.
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`In my opinion, as of August 15, 2002, a POSITA would have
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`understood that a buffer, such as data buffer disclosed in PCT No. WO 98/39710
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`(“the PCT Publication”), attached as Exhibit 1004 (Certified English translation),
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`to store data in one or more files.
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`“a cable” (claim 15)
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`D.
`In my opinion, as of August 15, 2002, a POSITA would have understood that host
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`line 11 disclosed in PCT No. WO 98/39710 (“the PCT Publication”), attached as
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`Exhibits 1004 (Certified English translation) at Fig. 1 and on pages 8 and 9, could
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`be a cable. The following connectors, disclosed in PCT No. WO 98/39710 (“the
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`PCT Publication”), attached as Exhibit 1004 (Certified English translation), are
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`designed to be used to with a cable to physically connect a device to acomputing
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`device: (1) a 50-pin SCSI connector, (2) a 25-pin sub-D connector,
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`and (3) a 25-pin connector.
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`I hereby declare that all statements made herein of my own knowledge are
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`true and that all statements made on information and belief are believed to be
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`true; and further that these statements were made with the knowledge that
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`willful false statements and the like so made are punishable by fine or
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`imprisonment, or both, under Section 1001 of Title 18 of the United States
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`Code.
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`Executed on this 17th day of January, 2017, in Santa Barbara, California.
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