IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ZTE (USA) Inc.,
`Petitioner,
`
`v.
`
`
`
`
`
`Papst Licensing GmbH & Co. KG,
`Patent Owner.
`
`
`
`Case No. To Be Assigned
`Patent No. 6,895,449
`
`
`
`DECLARATION OF KEVIN ALMEROTH IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 6,895,449: CLAIMS 1, 16 AND 17
`
`ZTE (USA) 1003, Page 1
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ZTE (USA) Inc.,
`Petitioner,
`
`v.
`
`
`
`
`
`Papst Licensing GmbH & Co. KG,
`Patent Owner.
`
`
`
`Case No. To Be Assigned
`Patent No. 6,895,449
`
`
`
`DECLARATION OF KEVIN ALMEROTH IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 6,895,449: CLAIMS 1, 16 AND 17
`
`ZTE (USA) 1003, Page 1
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`Page
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`4
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`13
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`14
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`14
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`14
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`18
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`20
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`21
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`24
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`44
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`TABLE OF CONTENTS
`
`
`I.
`
`II.
`
`A.
`
`B.
`
`C.
`
`III.
`
`IV.
`
`V.
`
`BACKGROUND AND QUALIFICATIONS
`
`LEGAL STANDARDS AND BACKGROUND
`
`Person of Ordinary Skill in the Art
`
`Claim Construction
`
`Validity
`
`OVERVIEW OF THE ’449 PATENT
`
`LEVEL OF ORDINARY SKILL
`
`CLAIM CONSTRUCTION
`
`VI.
`
`THE PRIOR ART
`
`VII. ANALYSIS OF CLAIMS 1, 16 AND 17 IN OVER AYTAC IN VIEW OF SCSI
`SPECIFICATION, MS-DOS ENCYCLOPEDIA AND THE ADMITTED
`PRIOR ART
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`ZTE (USA) 1003, Page 2
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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 ZTE
`
`(USA) Inc. I understand that the Petitioner in the present proceeding is ZTE (USA)
`
`Inc. I understand that the petition also names ZTE Corporation as one of the real
`
`parties-in-interest. I have no financial interest in, or affiliation with, the Petitioner,
`
`real parties-in-interest, or the patent owner, which I understand to be Papst
`
`Licensing GmbH & Co. KG. My compensation is not dependent upon the outcome
`
`of, or my testimony in, the present inter partes review or any litigation
`
`proceedings.
`
`2.
`
`I have drafted, reviewed or provided from my own files each
`
`of the documents in the following table (which I am informed are also identified
`
`in the Petition):
`
`Exhibit Description
`
`PETITIONER’S EXHIBIT LIST
`
`Ex. 1001 U.S. Pat. No. 6,895,449 to Tasler (“the ’449 Patent”)
`
`Ex. 1002 File History for U.S. Pat. No. 6,895,449
`
`Ex. 1004 Curriculum vitae of Kevin C. Almeroth
`
`Ex. 1005 U.S. Patent No. 5,758,081 to Aytac (“Aytac”)
`
`
`
`1
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`ZTE (USA) 1003, Page 3
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`
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`Ex. 1006 Am. Nat’l Standard Inst., Inc., Am. Nat’l Standard for Info. Sys’s,
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`Small Computer System Interface-2, ANSI X3.131-1994 (1994) (the
`
`“SCSI Specification”)
`
`Ex. 1007 Ray Duncan, The MS-DOS Encyclopedia (1988)
`
`Ex. 1008
`
`In re Papst Licensing Dig. Camera Pat. Litig., 778 F.3d 1255, 1265
`
`(Fed. Cir. 2015)
`
`Ex. 1009 Papst’s Opening Claim Constr. Brief and Appendix 8 of Papst’s
`
`Opening Claim Constr. Brief, Papst Licensing GmbH & Co., KG v.
`
`Apple, Inc., et al., No. 6:15-cv-01095-RWS (E.D. Tex. Nov. 22,
`
`2016)
`
`Ex. 1010 Papst’s Opening Claim Constr. Brief and Decl. of Robert Zeidman,
`
`In re Papst Licensing Dig. Camera Pat. Litig., MDL No. 1880, No.
`
`1:07-mc-00493 (D.D.C. June 3, 2016)
`
`Ex. 1011 As-Filed Filed German priority document Patent Application 197 08
`
`755.8
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`Ex. 1012
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`’399 German Application Publication (DE 197 08 755)
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`Ex. 1013 Certified Translation of Published ’399 German Application (DE 197
`
`08 755)
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`Ex. 1014 English Translation of PCT Application PCT/EP98/01187 (published
`
`as PCT Pub. No. WO98/39710)
`
`
`
`2
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`ZTE (USA) 1003, Page 4
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`
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`Ex. 1015 U.S. Patent No. 4,589,063 to Shah
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`Ex. 1016 U.S. Patent No. 5,038,320 to Heath
`
`Ex. 1017 U.S. Patent No. 5,787,246 to Lichtman
`
`Ex. 1018 Rufus P. Turner et al., The Illustrated Dictionary of Electronics
`
`(1991)
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`Ex. 1019 Decision, Institution of Inter Partes Review, Paper No. 8, IPR 2016-
`
`01200
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`Ex. 1020 File History for U.S. Pat. No. 5,758,081 to Aytac
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`Ex. 1021 Papst's Brief, In re Papst Licensing Digital Camera Patent Litig.,
`
`No. 2014-1110 (Fed. Cir., February 20, 2014)
`
`Ex. 1022 U.S. Pat. No. 6,470,399 to Tasler (“the ’399 patent”)
`
`Ex. 1023 File History for U.S. Pat. No. 6,470,399
`
`3.
`
`I understand that the application leading to U.S. Patent No.
`
`6,895,449 (“the ʼ449 patent”) was Application No. 10/219,105, which was filed
`
`on August 15, 2002. The ’105 application claims priority to U.S. Patent
`
`Application No. 09/331,002, filed June 14, 1999 (now U.S. Patent No. 6,470,399)
`
`(Ex. 1022), which claims priority to Patent Cooperation Treaty (PCT) Application
`
`No. PCT/EP98/01187 filed March 3, 1998. (Ex. 1002, at 8.) The ’449 patent
`
`purports to also claim priority to German Application No. 197 08 755.8 (Ex.
`
`3
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`
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`ZTE (USA) 1003, Page 5
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`1011) filed March 4, 1997. Id. Although I am aware that certain claims of the ‘449
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`are not supported by the German Application disclosure, for purposes of my
`
`analysis, I assume the time of the purported invention to be no earlier than March
`
`4, 1997.
`
`I.
`
`BACKGROUND AND QUALIFICATIONS
`I hold three degrees from the Georgia Institute of Technology:
`4.
`
`(1) a Bachelor of Science degree in Information and Computer Science (with
`
`minors in Economics, Technical Communication, American Literature) earned in
`
`June, 1992; (2) a Master of Science degree in Computer Science (with
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`specialization in Networking and Systems) earned in June, 1994; and (3) a Doctor
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`of Philosophy (Ph.D.) degree in Computer Science (Dissertation Title: Networking
`
`and System Support for the Efficient, Scalable Delivery of Services in Interactive
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`Multimedia System, minor in Telecommunications Public Policy) earned in June,
`
`1997. During my education, I have taken a wide variety of courses as demonstrated
`
`by my minor. My undergraduate degree also included a number of courses are
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`more typical of a degree in electrical engineering including digital logic, signal
`
`processing, and telecommunications theory.
`
`5.
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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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`4
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`ZTE (USA) 1003, Page 6
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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 in which content, including 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
`
`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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`6.
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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 systems,
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`broadband telephone lines, and satellite links.
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`
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`5
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`ZTE (USA) 1003, Page 7
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`7.
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`An important component of my research from the very
`
`beginning has been investigating the challenges of communicating multimedia
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`content between computers and across networks. Although the early Internet was
`
`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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`8.
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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
`
`“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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`
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`ZTE (USA) 1003, Page 8
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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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`9.
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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). Users
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`would visit a web page and select content to view. The content would then be
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`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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`10.
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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 watch
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`their selection immediately. If all channels were streaming previously selected
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`content, the user’s selection would be queued on the channel with the shortest wait
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`time. In the meantime, the user would see what content was currently playing on
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`other channels, and because of the use of multicast, would be able to join one of
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`the existing channels and watch the content at the point it was currently being
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`transmitted.
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`11. 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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`ZTE (USA) 1003, Page 9
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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 cable
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`television network so that students in their dorms could use the web to request
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`content and then view that content on one of the campus’s public access channels.
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`12. 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
`
`available, users’ capacity to pay as well as their willingness can be used as factors
`
`in stabilizing the response time of a system. This capability is particularly useful in
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`systems where content is downloaded or streamed to users on-demand.
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`13. 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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`
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`8
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`ZTE (USA) 1003, Page 10
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`14. 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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`15. 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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`16. 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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`
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`ZTE (USA) 1003, Page 11
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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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`17. 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
`
`(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 the Multicast Directorate (MADDOGS), which oversaw 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.
`
`18.
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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
`
`(RFCs).
`
`
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`10
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`ZTE (USA) 1003, Page 12
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`19. 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
`
`and Video (NOSSDAV) workshop and on the Steering Committees for the
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`International Conference on Network Protocols (ICNP), ACM Sigcomm Workshop
`
`on Challenged Networks (CHANTS), and IEEE Global Internet (GI)
`
`Symposium. I have served or am serving on the editorial boards of IEEE/ACM
`
`Transactions on Networking, IEEE Transactions on Mobile Computing, IEEE
`
`Transactions on Networks and System Management, IEEE Network, ACM
`
`Computers in Entertainment, AACE Journal of Interactive Learning Research
`
`(JILR), and ACM Computer Communications Review.
`
`20.
`
`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), IFIP/IEEE 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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`
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`11
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`ZTE (USA) 1003, Page 13
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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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`21. 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, and
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`gateways including routing and forwarding and the numerous respective protocols
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`as they are standardized and used throughout the Internet. Topics include a wide
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`variety of standardized Internet protocols at the Network Layer (Layer 3),
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`Transport Layer (Layer 4), and above.
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`22.
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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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`ZTE (USA) 1003, Page 14
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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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`23.
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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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`24.
`
`I am a Member of the Association of Computing Machinery
`
`(ACM) and a Fellow of the Institute of Electrical and Electronics Engineers (IEEE).
`
`25. Further details about my background, qualifications, and
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`experience are included in my curriculum vitae (“CV”) submitted herewith as Ex.
`
`1004.
`
`II. LEGAL STANDARDS AND BACKGROUND
`I have been informed of a number of legal standards that govern
`26.
`
`my analysis, including those discussed below. For example, a proper validity
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`analysis includes resolving the level of ordinary skill in the pertinent art,
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`determining the scope and content of the prior art, and ascertaining the differences
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`between the claimed invention and the prior art. I address all of these factors in my
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`declaration below.
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`13
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`ZTE (USA) 1003, Page 15
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`A.
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`Person of Ordinary Skill in the Art
`I have been advised that the claims of a patent are reviewed
`27.
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`from the point of view of a hypothetical person of ordinary skill in the art at the
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`time of the filing of the patent (“POSA”). The “art” is the field of technology to
`
`which a patent is related. I understand that the purpose of using the viewpoint of a
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`POSA is for objectivity.
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`B. Claim Construction
`It is my understanding that terms should be given their broadest
`28.
`
`reasonable construction in an IPR. Under this standard, the terms should be given
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`their ordinary and customary meaning to a POSA, unless the patent teaches a
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`different meaning within the specification.
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`29.
`
`I understand the appropriate context in which to read a claim
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`term includes both the specification and the claim language itself.
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`C. Validity
`I understand that the Petitioner bears the burden of proving the
`30.
`
`instituted grounds of invalidity by a preponderance of the evidence. I understand
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`that a “preponderance” means “more likely than not.” I understand that general and
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`conclusory assertions, without underlying factual evidence, may not support a
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`conclusion that something is “more likely than not.”
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`ZTE (USA) 1003, Page 16
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`31. Rather, the preponderance of the evidence standard requires that
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`a reasonable finder of fact be convinced that the existence of a specific material
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`fact is more probable than the non-existence of that fact. The preponderance of the
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`evidence standard does not support speculation regarding specific facts, and is
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`instead focused on whether the evidence more likely than not demonstrates the
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`existence or non-existence of specific material facts. Here, I understand that
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`Petitioner has argued that the claims at issue are obvious in view of certain prior art
`
`references.
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`32.
`
`I have been informed that a reference may qualify as prior art as
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`to the patents-in-suit if it was known or used by others in this country, or patented
`
`or described in a printed publication in this or a foreign country, before the
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`invention by the patent holder. I have also been informed that a reference may
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`qualify as prior art to the patents-in-suit if the invention was patented or described
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`in a printed publication in this or a foreign country or in public use or on sale in
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`this country, more than one year before the effective filing date.
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`33. For a printed publication to qualify as prior art, I understand
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`that the Petitioner must demonstrate that the publication was disseminated or
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`otherwise sufficiently accessible to the public.
`
`34.
`
`I also understand that, in performing a proper unpatentability
`
`analysis, an expert must do more than simply provide quotes from the evidentiary
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`
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`15
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`ZTE (USA) 1003, Page 17
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`record along with conclusory allegations of unpatentability. To the contrary, an
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`expert’s conclusions regarding unpatentability must be supported by actual
`
`analysis and reasoning set forth in the expert declaration, such that the theoretical
`
`and factual foundation for the expert’s conclusions can be properly evaluated.
`
`35.
`
`I understand that a patent claim may be found unpatentable as
`
`obvious only if the Petitioner establishes by a preponderance of the evidence that,
`
`as of the priority date, the subject matter of the claim, considered as a whole,
`
`would have been obvious to a person having ordinary skill in the field of the
`
`technology (the “art”) to which the claimed subject matter belongs.
`
`36.
`
`I understand that the analysis of whether a claim is obvious
`
`depends on a number of necessary factual inquiries, for example, (1) the scope and
`
`content of the prior art; (2) the differences between the claimed subject matter and
`
`the prior art; (3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness.
`
`37.
`
`I have also been informed that the claimed invention must be
`
`considered as a whole in analyzing obviousness or nonobviousness. In determining
`
`the differences between the prior art and the claims, the question under the
`
`obviousness inquiry is not whether the differences themselves would have been
`
`obvious, but whether the claimed invention as a whole would have been obvious.
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`38. Relatedly, I understand that it may be appropriate to consider
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`whether there is evidence of a “teaching, suggestion, or motivation” to combine the
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`prior art teachings in the prior art, the nature of the problem or the knowledge of a
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`POSA.
`
`39.
`
`I understand that one indicator of nonobviousness is when prior
`
`art “teaches away” from combining certain known elements. For example, a prior
`
`art reference teaches away from the patent’s particular combination if it leads in a
`
`different direction or discourages that combination, recommends steps that would
`
`not likely lead to the patent’s result, or otherwise indicates that a seemingly
`
`inoperative device would be produced.
`
`40.
`
`I further understand that certain objective indicia can be
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`important evidence regarding whether a patent is obvious or nonobvious, including
`
`the existence of a long-felt but unsolved need, unexpected results, commercial
`
`success, copying, and industry acceptance or praise. Evidence of such objective
`
`indicia must be considered when present.
`
`41.
`
`It is generally error to reach a conclusion on obviousness before
`
`considering the evidence of secondary considerations, and in then evaluating the
`
`latter solely in terms of whether it may fill any gaps in the initial conclusion on
`
`obviousness. On the other hand, such evidence is not a requirement for
`
`
`
`17
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`ZTE (USA) 1003, Page 19
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`
`
`
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`patentability, and the absence of such evidence is a neutral factor in the analysis of
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`obviousness or nonobviousness.
`
`III. OVERVIEW OF THE ’449 PATENT
`
`42. The ’449 patent describes a device designed to enable the
`
`transfer of data between a host device and another device on which data can be
`
`saved or from which data can be acquired. Ex. 1001, Title and Abstract. The
`
`written description states that, while interface devices were already known at the
`
`time of the invention, those devices had limitations. For example, according to the
`
``449 patent, they tended to require sacrifices of data-transfer speed or of flexibility
`
`of what host computers and data devices they would work with. Ex. 1001, at 1:18–
`
`2:14. The patent likewise states that “standard interfaces,” “which, with specific
`
`driver software, can be used with a variety of host systems,” “generally require
`
`very sophisticated drivers” to be downloaded onto the host computer, but such
`
`drivers “are prone to malfunction and . . . limit data transfer rates.” Id., at 1:27–34.
`
`Alternatively, with interface devices that “specifically match the interface very
`
`closely to individual host systems or computer systems,” the ’449 patent indicates
`
`that “high data transfer rates are possible,” but such interface devices “generally
`
`cannot be used with other host systems or their use is very ineffective.” Id., at
`
`1:66–2:8. The patent also states that the efficient interface also “must be installed
`
`
`
`18
`
`ZTE (USA) 1003, Page 20
`
`
`
`inside the computer casing to achieve maximum data transfer rates,” which is a
`
`problem for laptops and other space-constrained host systems. Id., at 2:8–14.
`
`43. The ’449 patent purports to describe an interface device
`
`intended to overcome these limitations. When the ’499 patent’s interface device is
`
`connected to a host computer, it responds to the host’s request for identification by
`
`“simulat[ing] both in terms of hardware and software, the way in which a
`
`conventional input/output device functions, preferably that of a hard disk drive,”
`
`for which the host system already has a working driver. Id., at 4:10-13. By
`
`responding this way, the interface device induces the host to treat it (and,
`
`indirectly, data devices on the other side of the interface device, no matter what
`
`type of devices they are) like the device already familiar to the host. Thereafter,
`
`when the host requests data from or controls the operation of the data device, the
`
`host uses its own pre-installed driver, and the interface device translates the
`
`communications into a form understandable by the connected data device. See id.,
`
`at 3:26–4:36.
`
`44. The ’449 patent states that the interface device thus does not
`
`require that a specially designed driver for the interface device be loaded into a
`
`host computer. Id. at 4:13-24. Rather, it uses a host’s own familiar driver, which
`
`(as for a hard drive) often will have been designed (by the computer system’s
`
`manufacturer) to work fast and reliably. The written description states that the
`
`
`
`19
`
`ZTE (USA) 1003, Page 21
`
`
`
`result is to provide a “high data transfer rate,” and “[i]t is the object of the present
`
`invention to provide an interface device for communication between a host device
`
`and a data transmit/receive device whose use is host device-independent and which
`
`delivers a high data transfer rate.” Id., at 3:21–31.
`
`IV. LEVEL OF ORDINARY SKILL
`45. As I discussed in paragraph 27, I have been advised that the
`
`claims of a patent are reviewed from the point of view of a POSA.
`
`46.
`
`In order to determine the characteristics of a POSA, I have
`
`considered the prior art and the various approaches in the relevant prior art, the
`
`type of problems encountered, the solutions to those problems, the problems
`
`encountered by the inventor, and the rapidity with which innovations were made. I
`
`also considered the sophistication of the technology involved and the educational
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`background and experience of those actively working in the relevant field at the
`
`time of the invention. Finally, I placed myself back at the time of the alleged
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`invention and considered technology available at that time and the engineers and
`
`other professionals with whom I worked or whom I had taught in the relevant
`
`industries, and their level of education, activities, and sophistication.
`
`47. Based on those considerations, a POSA would have had a four-
`
`year degree in electrical engineering, computer science, or a related field of study.
`
`A POSA would also have had either a Master’s degree, or at least two years of
`
`
`
`20
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`ZTE (USA) 1003, Page 22
`
`
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`experience in one of the relevant fields, computer science, computer systems, or
`
`peripheral devices.
`
`48.
`
`In view of my education and experience, and as summarized
`
`above and in my attached curriculum vitae, I meet and exceed this definition of a
`
`POSA.
`
`49.
`
`In arriving at my opinions and conclusions in this declaration, I
`
`have considered the issues from the perspective of my hypothetical person of
`
`ordinary skill in the art at the time of the filing of the patent.
`
`V. CLAIM CONSTRUCTION
`I have been asked to offer my opinion regarding the
`50.
`
`understanding of a person skilled in the art regarding certain claim terms in the
`
`ʼ449 patent. I understand that in the present proceeding, claim terms are interpreted
`
`as the broadest reasonable construction (“BRC”) consistent with the specification. I
`
`also understand that the claims themselves and the prosecution history can provide
`
`insight into how the claims should be construed.
`
`51.
`
`I have been asked to offer my opinion about the understanding
`
`of a person skilled in the art regarding the term “data transmit/receive device,” as
`
`recited in claims 1, 16 and 17. The specification discloses “ . . . a data
`
`transmit/receive device which is to receive data from the host device or from which
`
`data is to be read, i.e. acquired, and transferred to the host device.” Ex. 1001, at
`
`
`
`21
`
`ZTE (USA) 1003, Page 23
`
`
`
`4:55-59; see also Ex. 1011, at 7. Accordingly, one skilled in the art would
`
`understand the broadest reasonable construction for the term “data transmit/receive
`
`device” should be construed as a device capable of transmitting or receiving data.
`
`This is consistent with the teaching of the `449 specification, the ruling of the
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`Federal Circuit and how the Patent Owner proposed to construct this term in
`
`litigation concerning the ’449 Patent. Id. (See also, Ex. 1009, at 31-37) (Patent
`
`Owner’s brief).
`
`52.
`
`I have been asked to offer my opinion about the understanding
`
`of a person skilled in the art regarding the term “drivers for input/output devices
`
`customary in a host device.” For purposes here, I have taken the construction of
`
`this term for these proceedings to be at least as broad as the construction proposed
`
`by Papst in the litigation in the Eastern District of Texas (Ex. 1009, at 29-37) and
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`so the term “drivers for the input/output devices customary in a host device,”
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`should be interpreted as “the driver[s] for the data input/output device[s] normally
`
`part of commercially available computer systems.” (Ex. 1009, at 29-30).
`
`53.
`
`I have been asked to offer my opinion about the understanding
`
`of a person skilled in the art regarding the term “input/output devices customary in
`
`a host device.” For purposes here, I have taken the construction of this term for
`
`these proceedings to be at least as broad as the construction proposed by Papst in
`
`the litigation in the Eastern District of Texas, and so the t
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