UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
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`
`
`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`Petitioner,
`
`v.
`
`NOMADIX, INC.,
`Patent Owner.
`
`
`
`
`
`
`
`Case IPR2019-00211
`Patent 7,953,857
`
`
`
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`
`
`DECLARATION OF DEAN SIROVICA, PH.D.
`
`
`
`
`NOMADIX 2001
`Guest Tek v. Nomadix
`IPR2019-00211
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`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`Petitioner,
`
`v.
`
`NOMADIX, INC.,
`Patent Owner.
`
`
`
`
`
`
`
`Case IPR2019-00211
`Patent 7,953,857
`
`
`
`
`
`
`
`
`DECLARATION OF DEAN SIROVICA, PH.D.
`
`
`
`
`NOMADIX 2001
`Guest Tek v. Nomadix
`IPR2019-00211
`
`
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`IPR2019-00211
`Patent 7,953,857
`I, Dean Sirovica, Ph.D., am making this declaration at the request of
`1.
`
`Nomadix in the matter of IPR2019-00211 before the Patent Trial and Appeal
`
`Board (PTAB) of the United States Patent and Trademark Office, which involves
`
`Guest Tek Interactive Entertainment Ltd.’s petition for inter partes review of U.S.
`
`Patent No. 7,953,857 (“the ’857 patent”).
`
`2.
`
`I am being compensated for my work in this matter on an hourly-fee
`
`basis. My compensation does not depend in any way on the outcome of this
`
`proceeding.
`
`3.
`
`In this declaration, I will use the following abbreviations for the
`
`following documents, which I have reviewed and considered:
`
`
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`NOMADIX 2001
`Guest Tek v. Nomadix
`IPR2019-00211
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`IPR2019-00211
`Patent 7,953,857
`
`Exhibit 1007
`
`Exhibit 1008
`
`Exhibit 1012
`
`Paper 1
`
`Shorthand Name
`Record Citation Reference
`’857 patent
`Exhibit 1001
`U.S. Patent No. 7,953,857
`Exhibit 1002
`Declaration of Dr. Peter Dordal Dordal Decl.
`Exhibit 1004
`U.S. Patent No. 5,864,540
`Bonomi
`Exhibit 1005
`U.S. Patent No. 7,392,279
`Chandran
`Exhibit 1006
`U.S. Patent No. 6,587,433
`Borella
`INDEX: A Platform for
`Determining how People Value
`the
`Quality of their Internet Access
`U.S. Patent No. 5,623,492
`Declaration of Gerard P.
`Grenier
`Petition for Inter Partes Review
`of U.S. Patent No. 7,953,857
`
`Rupp
`
`Teraslinna
`
`Grenier Decl.
`
`Petition
`
`
`
`I. PROFESSIONAL BACKGROUND
`
`4.
`
`I received a B.Sc. in Electronic Engineering from the University of
`
`Sussex in 1982 and a Ph.D. in Computer Networking from the University of
`
`Sussex in 1988. I also received an M.B.A. from Golden Gate University in 2000.
`
`5.
`
`I am a technical consultant and a founding partner of Xona Partners,
`
`an advisory firm specializing in telecommunications, media, and technology.
`
`6.
`
`The work for my Ph.D. involved research into communications
`
`networks and network management. Following my Ph.D., I stayed in academia
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`conducting
`research
`
`in networking and network management
`
`for both
`
`asynchronous transfer mode (ATM) networks and Internet Protocol (IP) networks.
`
`I was project manager for large United Kingdom Government and European Union
`
`funded research projects aimed at developing the next generation of networking
`
`standards. I worked on the UK Alvey programme, project Admiral, which was a 65
`
`person-year research project developing techniques to support large distributed
`
`systems running over high performance IP networks. I also led the RACE project
`
`Nemesys, which was a 74 person-year research project to apply advanced
`
`information processing techniques in traffic and quality of service management to
`
`IP and ATM networks.
`
`7.
`
`Since 1990, I have held both technical and managerial positions at
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`various mobile phone and wireless communications companies such as Huawei,
`
`Vodafone Group Plc, AirTouch Cellular, Sprint PCS/Cox Communications, and
`
`USWEST Technologies.
`
`8.
`
`In 1999, I created and was the founding chairman and president of the
`
`Mobile Wireless Internet Forum (MWIF). The aim of the MWIF was to fuse the
`
`telephony industry based on ATM networks and the Internet industry based on IP
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`networks. MWIF was comprised of most major service providers and
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`manufacturers from both industries.
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`IPR2019-00211
`Patent 7,953,857
`During my Ph.D. studies in the 1980s, I began actively participating
`9.
`
`and contributing to industry groups and other standards bodies. Throughout my
`
`career, I have continued to be actively involved in these industry groups. For
`
`example, I have held leadership and board positions, led and managed the
`
`development of communications standards, and attended and presented at
`
`conferences. Some of the industry groups and standard bodies in which I have
`
`participated include the Telecommunication Standardization Sector of the
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`International Telecommunications Union (referred to as ITU-T or CCITT), ETSI,
`
`ATM Forum, Internet Engineering Task Force (IETF), the 3rd Generation
`
`Partnership Project (3GPP), the 3rd Generation Partnership Project 2 (3GPP2),
`
`MWIF, Open Mobile Alliance (OMA), and the Institute of Electrical and
`
`Electronic Engineers (IEEE).
`
`10.
`
`I am a Senior Member of IEEE and have been a member since 1983.
`
`I have held leadership positions in the Oakland East Bay Chapter of the IEEE
`
`Communications Society, including Chairman. I am currently the Treasurer of that
`
`chapter. I have attended and presented at numerous IEEE conferences over the
`
`course of my career.
`
`II. SCOPE OF ANALYSIS
`
`11.
`
`I understand that this proceeding involves subjects related to the
`
`patentability of claims 1 and 9 of the ’857 patent. I have been asked to offer
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`NOMADIX 2001
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`IPR2019-00211
`Patent 7,953,857
`analysis of limited scope regarding the particular obviousness theories set forth in
`
`the Petition. I have therefore limited my analysis to whether, in light of the
`
`arguments set forth in the Petition, Bonomi in view of Borella (Ground 1),
`
`Chandran in view of Rupp (Ground 2), and Teraslinna in view of Bonomi
`
`(Ground 3) would render claims 1 and 9 of the ’857 patent obvious to one of
`
`ordinary skill in the art at the time of the invention. The specific topics within this
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`question that I have been asked to address, and my analysis thereof, are set forth in
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`the section of this declaration labeled “SUBSTANTIVE ANALYSIS.” I developed
`
`my analysis and opinions about the specific topics addressed in this declaration
`
`over the course of several days.
`
`12. With respect to the present proceeding, I have neither analyzed nor
`
`expressed any opinion about any subject that is not expressly included in the
`
`section labeled “SUBSTANTIVE ANALYSIS.” Given sufficient time, I could
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`analyze and express opinions concerning additional subjects related to computer
`
`networking that are not expressly included in this declaration, but doing so
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`generally would require a significant investment of time, over multiple days,
`
`similar to the significant amount of time I devoted to preparing this declaration.
`
`III. LEGAL STANDARDS
`
`13.
`
`I am not an attorney and, therefore, I will not offer opinions of law.
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`For the purposes of this declaration, I have been informed about certain aspects of
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`IPR2019-00211
`Patent 7,953,857
`the law that are relevant to my opinions. The opinions I offer in my declaration
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`involve the application of my knowledge and experience to the evaluation of the
`
`’857 patent and the references identified above with respect to the ’857 patent. The
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`paragraphs below express my understanding of how I must apply current principles
`
`related to patentability to my analysis.
`
`14.
`
`I understand that, in assessing the patentability of a patent claim in
`
`petitions for inter partes review filed before November 13, 2018, the Patent and
`
`Trademark Office (PTO) must construe the claim by giving the claim its broadest
`
`reasonable interpretation consistent with the specification. I understand that, under
`
`the broadest-reasonable-interpretation standard, a claim term or phrase is generally
`
`given its plain and ordinary meaning within the relevant art. I understand that the
`
`PTO conducts this analysis in light of the specification, prosecution history, and
`
`record evidence and all claim construction must be consistent with the construction
`
`an ordinarily skilled artisan would reach.
`
`15.
`
`I understand that a claim of an issued patent is unpatentable under
`
`35 U.S.C. § 103 if the differences between the claimed subject matter and the prior
`
`art are such that the claimed subject matter as a whole would have been obvious. I
`
`understand that this determination is made from the perspective of a person of
`
`ordinary skill in the art at the time of the invention. In other words, a reference
`
`discloses or teaches a claim limitation only if a person of ordinary skill in the art
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`Patent 7,953,857
`would, at the relevant time, interpret the reference as disclosing the claim
`
`limitation.
`
`16.
`
`I further understand that the determination of obviousness is based on
`
`four factors, sometimes referred to as the Graham factors. They are: (a) the scope
`
`and content of the prior art, (b) the differences between the prior art and the
`
`claimed invention, (c) the level of ordinary skill in the pertinent art, and (d) any
`
`objective indicia of nonobviousness, such as commercial success, industry praise,
`
`and unexpected results.
`
`17.
`
`I further understand that there must be a reason that would have
`
`prompted a person of ordinary skill in the art to combine the elements in the
`
`references in the way the claimed new invention does. I understand that the person
`
`of ordinary skill must have had a reasonable expectation of success in combining
`
`the teachings to arrive at the claimed invention. I further understand that a reason
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`to combine or expectation of success is undermined if the combination or
`
`modification of the technology disclosed in the prior art would interfere with an
`
`objective of the technology disclosed in the prior art or if the prior art teaches away
`
`from making the combination or modification.
`
`18. All of my analysis and opinions in this declaration are from the
`
`perspective of a person of ordinary skill in the art at the time of invention.
`
`Although my declaration does not expressly include language indicating that my
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`IPR2019-00211
`Patent 7,953,857
`analysis is from the perspective of a skilled artisan throughout, it should be
`
`understood that my analysis and opinions are from the perspective of an ordinarily
`
`skilled artisan at the time of invention. For example, my opinion that a reference
`
`does not disclose or teach a claim limitation should be understood to mean that, in
`
`my opinion, a person of ordinary skill in the art at the time of invention would
`
`interpret the reference as not disclosing the limitation.
`
`IV. SUBSTANTIVE ANALYSIS
`
`19. Again, all of my analysis and opinions in this declaration are from the
`
`perspective of a person of ordinary skill in the art at the time of invention, though I
`
`may not expressly repeat this every time I state my analysis or conclusions.
`
`A. Level of Ordinary Skill in the Art
`
`20.
`
`I understand that factors considered in determining the level of
`
`ordinary skill in the art include: the type of problems encountered in the art; prior-
`
`art solutions to those problems; the rapidity with which innovations are made; the
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`sophistication of the technology; and the educational level of active workers in the
`
`field. I understand that not all such factors may apply to or be present in every case
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`and that one or more factors may predominate in a particular case. Moreover, I
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`understand that inventors often possess extraordinary rather than merely ordinary
`
`skill in the art.
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`IPR2019-00211
`Patent 7,953,857
`21. Petitioner contends the following on the level of ordinary skill in the
`
`art:
`
`A person of ordinary skill in the art (“POSITA”) at the time of the
`alleged inventions of claims 1 and 9 would have had (1) either a
`formal degree
`in computer science or a related subject, or
`commensurate informal education in computer programming and
`designing computer networks, and (2) at least 2 years of experience in
`designing or programming computer networks.
`
`Pet. at 9–10.
`
`22.
`
`I do not necessarily agree with Petitioner’s assertions regarding the
`
`level of ordinary skill. However, for the purpose of this declaration, I formed my
`
`opinions applying Petitioner’s proposed level of skill. I reserve the right to opine
`
`on the level of ordinary skill at a later date in this proceeding.
`
`B. Analysis of Grounds 1 and 3
`
`1.
`
`Petitioner has failed to show that Bonomi teaches calculating a
`delay period (Grounds 1 and 3)
`
`23.
`
`I understand that Petitioner contends that claims 1 and 9 are
`
`unpatentable based on Bonomi in view of Borella (Ground 1) and Teraslinna in
`
`view of Bonomi (Ground 3).
`
`24. Claim 1 recites:
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`IPR2019-00211
`Patent 7,953,857
`1. A system for allowing a user to dynamically control an
`amount of bandwidth available to the user in a network, the system
`comprising:
`
`for communicating over a
`interface
`first network
`a
`communication link with a user device during a network session;
`
`a second network interface for communicating with one or
`more computer networks;
`
`a data storage system including an indication of a network
`communication bandwidth associated with the user device and
`selected by the user; and
`
`a processor configured to calculate a delay period associated
`with a received packet based on the network communication
`bandwidth associated with the user, and the processor further
`configured to delay transmission of the packet based on the delay
`period to prevent the user device from achieving a bandwidth greater
`than the network communication bandwidth associated with the user
`device and selected by the user.
`
`(’857 patent col. 14 ll. 31–49 (emphasis added).)
`
`25. Claim 9 recites:
`
`9. A method of dynamically managing transmission of packets,
`the method comprising:
`
`establishing a network session over a communication link
`between a network and a user device of a user;
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`IPR2019-00211
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`IPR2019-00211
`Patent 7,953,857
`associating a data transmission parameter selected by the user
`with the user device;
`
`receiving a packet and calculating a delay period associated
`with the packet based on the data transmission parameter; and
`
`delaying transmission of the packet based on the delay period to
`prevent the user device from achieving a data transmission greater
`than the data transmission parameter associated with the user device
`and selected by the user.
`
`(Id. col. 15 ll. 1–13 (emphasis added).)
`
`26. For both Grounds 1 and 3, Dr. Dordal and Petitioner contend that
`
`Bonomi teaches “a processor configured to calculate a delay period associated with
`
`a received packet based on the network communication bandwidth associated with
`
`the user” as required by claim 1, which Dr. Dordal and Petitioner refer to as
`
`limitation [1.d] or [1.D]. I also understand that Petitioner contends in Grounds 1
`
`and 3 that Bonomi teaches “receiving a packet and calculating a delay period
`
`associated with the packet based on the data transmission parameter” as required
`
`by claim 9. Dr. Dordal and Petitioner refer to this limitation as [9.c] or [9.C].
`
`27. To support their contentions, Dr. Dordal and Petitioner rely on the
`
`following passage from Bonomi:
`
`Whether the estimated arrival time X complies with the traffic
`contract is determined at step 33 where X is compared to t+1/ρ. If X is
`less than or equal to t+σ/ρ then the connection is complying with the
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`IPR2019-00211
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`traffic contract and the cell is conforming as shown in step 34. In the
`case of a conforming cell, conformance time c equals the current time
`t. As shown in step 35, if X is greater than t+σ/ρ the cell is non-
`conforming and the conformance time is set to comply with the
`contracted traffic parameters, c=X-σ/ρ.
`
`(Bonomi col. 8 ll. 30–38.)
`
`28. Dr. Dordal and Petitioner argue that Bonomi’s arithmetic logic unit
`
`(ALU) “performs the ‘comparison’ operation,” which “involves calculating the
`
`delay period for an arriving packet.” (Pet. at 29–30; Dordal Decl. App’x I at p. 7
`
`(“‘comparison’ operation . . . . involves calculating the delay period for an arriving
`
`packet”).) In other words, Dr. Dordal and Petitioner contend that the act of
`
`determining whether X is less than, equal to, or greater than a threshold value
`
`constitutes calculation of a period of time by which a packet will be delayed.
`
`29.
`
`I disagree. Determining that one value is greater than another is not a
`
`calculation of a length of time and is therefore not a calculation of a delay period.
`
`30. According to Bonomi, “the state variable X[] represent[s] the cell’s
`
`arrival time.” (Bonomi col. 8 ll. 24–25.) Thus, X itself is not a delay period or any
`
`other period of time. Rather, X is an estimated, discrete point in time the cell
`
`arrives at Bonomi’s traffic shaper. Bonomi’s disclosure is inconsistent on what the
`
`estimated arrival time X is compared to—either t+1/ρ or t+σ/ρ, where t represents
`
`the current time. (Id. col. 8 ll. 30–38.) However, in either comparison, a number
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`(1/ρ or σ/ρ) is added to t. Thus, X is compared to some discrete time in the future.
`
`Deciding whether a cell’s estimated arrival time occurs before or after a point in
`
`the future is not a calculation of a delay period.
`
`31. Dr. Dordal and Petitioner contend that the alleged delay period is
`
`calculated “based on” another point in time, conformance time c. (Pet. at 64.) The
`
`conformance time is equal to X–σ/ρ. (Bonomi col. 8 l. 38.) Upon review of
`
`Dr. Dordal’s declaration and the Petition, Dr. Dordal and Petitioner do not explain
`
`what the supposed calculated delay period actually is, and never identify any
`
`calculations in Bonomi based on the conformance time c. Like the estimated
`
`arrival time X, the conformance time c itself is not a delay period or any other
`
`period of time, but rather a discrete point in time. Moreover, the conformance time
`
`c is less than the estimated arrival time X, and is thus earlier than the estimated
`
`arrival time of the cell. Petitioner fails to identify anything in Bonomi teaching
`
`delaying a packet based on a point in time earlier than the estimated arrival time.
`
`32. Dr. Dordal and Petitioner do not specify what part of Bonomi is
`
`allegedly the delay period. Instead, Dr. Dordal and Petitioner generally point to the
`
`Bonomi sections discussed above as disclosing the limitations. Dr. Dordal and
`
`Petitioner never clarify if the alleged delay period is X, c, the comparison, or some
`
`other value. Despite failing to identify what the delay period is, the citation to
`
`Bonomi fails to even disclose a delay period as discussed above.
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`In summary, Dr. Dordal and Petitioner have failed to identify in
`33.
`
`Bonomi any calculation of a delay period. For at least this reason, Dr. Dordal and
`
`Petitioner have failed to show that Bonomi teaches the limitations of claims 1 and
`
`9 that involve calculating a delay period.
`
`2.
`
`Petitioner has failed to show that Borella can be combined with
`Bonomi (Ground 1)
`
`34. Bonomi is directed to “integrated traffic shaping in an asynchronous
`
`transfer mode (ATM) switch operating in a high speed network.” (Bonomi col. 1 ll.
`
`8–10.) ATM is a connection-oriented telecommunications protocol. In an ATM
`
`network, for each application, connections are established between two endpoints
`
`on the network. At any given moment, a device on an ATM network may have
`
`numerous connections established with multiple other endpoints. For example, a
`
`device establishes multiple connections to a network for the different types of data
`
`it transmits and receives through the network. Connections are established for
`
`different data types such as video, voice, and file transfer. (See id. col. 1 ll. 13–17.)
`
`Bonomi explains how these different applications have different transmission
`
`requirements:
`
`Different classes of traffic require different levels of [quality of
`service] QOS and have different traffic parameters. For example,
`voice communications are typically transmitted at a continuous bit
`rate (CBR) of 64 Kbit/second with no burstiness and can tolerate
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`some cell loss but little delay. Another example is compressed
`packetized voice or video which is transmitted at a variable bit rate
`(VBR) with varying degrees of burstiness and bounded limits on delay
`because of the need to reconstruct the video or voice. Computer file
`transfer and data network applications, on the other hand, will
`generate data at widely varying rates without stringent requirements
`regarding cell delay and may be readily transmitted whenever
`bandwidth is available in the channel at the available bit rate (ABR).
`
`(Id. col. 1 l. 62 – col. 2 l. 8 (emphases added).) Bonomi addresses these different
`
`traffic parameters requirements for each connection using “leaky-bucket traffic
`
`shaping and rate-based link scheduling.” (Id. col. 4 ll. 17–18.)
`
`35.
`
`Importantly, Bonomi performs
`
`traffic shaping per connection.
`
`(Bonomi col. 4 ll. 11–14, 25–36.) I understand that Dr. Dordal and Petitioner
`
`concede that Bonomi does not teach calculating “a delay period associated with a
`
`received packet based on the network communication bandwidth associated with
`
`the user” as required by claim 1 and “associating a data transmission parameter
`
`selected by the user with the user device” as required by claim 9. (Pet. at 32–35;
`
`Dordal Decl. at App’x I at pp. 7, 12–13 (underlining limitations not disclosed in
`
`Bonomi).) Instead, Dr. Dordal and Petitioner contend these limitations are taught
`
`by Borella, which they contend can be combined with Bonomi. Petitioner contends
`
`that these references can be combined because:
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`(1) it would have provided a more efficient and effective way to limit
`resource usage and avoid Internet traffic congestion by allowing the
`user to select a specific amount of bandwidth to be allotted to the user
`based on the type of application the user plans on running (e.g., high
`bandwidth versus low bandwidth applications), rather than allotting
`bandwidth on a per-connection basis; and (2) it would have provided
`the network administrator an easy and flexible way to track and
`charge each user fairly based on the amount of bandwidth the user
`uses at a time when usage-sensitive (as opposed to flat-rate) pricing
`was becoming the norm.
`
`Pet. at 37.
`
`36. To the contrary, a person of skill in the art would not be motivated to
`
`combine Borella with Bonomi. First, Dr. Dordal and Petitioner propose altering
`
`Bonomi so that it limits bandwidth per user and not per connection. (See Pet. at 39
`
`(“manage bandwidth on a per-user [basis] (as opposed to per-connection basis)”).)
`
`Altering Bonomi’s teachings in this manner would defeat the purpose of Bonomi,
`
`which is directed to traffic shaping on a connection by connection basis. Bonomi’s
`
`benefits are obtained when it adjusts the traffic in the network based on each
`
`connection, allowing for traffic shaping based on different data types, different
`
`applications, and different endpoints and on different communication parameters
`
`negotiated with the various different endpoints. Bonomi treated each data type,
`
`such as voice, video, and data, with different bandwidth requirements to deliver the
`
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`cells in a timely manner and ensure they are not dropped. A skilled artisan would
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`have understood that modifying Bonomi as Petitioner proposes to “manage
`
`bandwidth on a per-user [basis] (as opposed to per-connection basis)” (id.) would
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`have eliminated the benefits gained by Bonomi’s traffic shaper. Instead of
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`addressing the issues Bonomi identified in the art, this combination would have
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`continued the problems. For at least this reason, a person of ordinary skill in the art
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`would not have been motivated to combine Borella with Bonomi.
`
`37. A person of ordinary skill in the art also would not have been
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`motivated to combine Borella with Bonomi because they are directed to different
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`architectures. Bonomi
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`is directed to asynchronous transfer mode (ATM)
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`technology. (Bonomi col. 1 ll. 8–10.) Around the time of the invention, ATM was
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`adopted by the telephony industry.
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`38. The ATM reference model is illustrated below in Diagram 1 (which I
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`include here for explanatory purposes and the diagram does not appear in Bonomi).
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`ATM Reference Model
`
`Application layer
`
`ATM Adaptation layer
`
`ATM layer
`
`ATM Physical layer
`
`Diagram 1
`
`
`
`In ATM, the ATM Physical layer is the lowest layer of the protocol and is
`
`responsible for carrying bits across the network. The ATM Physical layer is
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`specific to ATM and handles transmission convergence and physical medium
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`dependent functions. The ATM layer is above the ATM Physical layer. At the
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`ATM layer, fixed-length cells are used with 5 bytes of header information and 48
`
`bytes of payload. The next layer, the ATM Adaptation layer, is responsible for
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`allowing variable-length packets to be transported across the ATM network using
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`the fixed-length cells. The highest layer, the Application layer, is where a software
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`application can communicate with another software application using the ATM
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`network.
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`39. The purported advantages of the Bonomi technology are based on a
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`“contract” or “contracted traffic parameters” between two endpoints in an ATM
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`context. (See Bonomi col. 2 ll. 11–20, col. 4 ll. 25–41.) The ATM traffic
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`parameters include a cell-transmission rate and burstiness. As discussed above in
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`paragraphs 34 and 38, ATM network technology is connection-oriented and is
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`predicated on 53 byte cells. Within the ATM network, the traffic parameters have
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`very specific consequences due to the fixed length nature of the cells, and the
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`connection-oriented nature of ATM means that cells, if they arrive, will arrive in
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`the order they are sent over the connection. For example, variations in traffic
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`parameters such as cell-transmission rate and burstiness can greatly affect latency
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`and jitter (variation in packet delay). Cells sent on an ATM network must travel by
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`the specific connection made between two endpoints. If this connection between
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`the endpoints is broken, a new connection must be made to transfer the cells. ATM
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`guarantees that if cells arrive, the cells will arrive in order. The ATM-focused
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`technology in Bonomi queues connections separately to traffic shape individual
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`connections because connections are a central component of ATM networks. (Id.
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`col. 4 ll. 25–41.)
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`40. To elaborate further on the purported advantages of Bonomi, I
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`annotated my previous diagram from paragraph 38 above:
`
`1 QoS level
`selection
`
`2
`
`Connection
`setup/
`negotiation
`
`3 Data
`transmission
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`Bonomi relies on all ATM
`layers
`
`
`
`ATM Reference Model
`
`Application layer
`
`Connection
`
`ATM Adaptation layer
`
`ATM layer
`
`ATM Physical layer
`
`Diagram 2
`
`Beginning at the Application layer (1), a quality of service (QoS) level is selected
`
`for a class of traffic (e.g., voice, video, etc.). (See Bonomi col. 1 ll. 13–17, 35–40,
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`50–55, 62–63.) The ATM layers between the Application and Physical layers
`
`establish a connection and negotiate traffic parameters such as bandwidth (ρ) and
`
`burstiness (σ) at (2). (See id. col. 1 ll. 53–55, 59–63, col. 2 ll. 11–20.) With the
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`connection established with the contracted parameters, data transmission can occur
`
`at (3). The purported features and advantages of Bonomi regulate the data
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`transmission according to the contracted parameters. (Id. col. 6 ll. 38–42.)
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`However, Bonomi’s features and advantages that are based on the ATM protocol
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`are incompatible with the Internet Protocol based features of Borella at the network
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`layer.
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`41. Borella is directed to a change to the Internet Protocol (IP), Borella
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`col. 1 ll. 18–28, col. 2 ll. 22–29, which highlights the incompatibility of the parts of
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`Bonomi and Borella that Petitioner contends are relevant. At the time of the
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`invention, a common IP protocol stack is illustrated below in Diagram 3A (like the
`
`previous diagrams, I include Diagram 3A here for explanatory purposes and the
`
`diagram does not appear in Borella).
`
`IP Protocol Stack
`
`Application layer (HTTP, FTP, etc.)
`
`Transport layer
`TCP
`UDP
`
`IP layer
`(connectionless)
`Link layer
`(Ethernet, ATM Physical layer, etc.)
`Diagram 3A
`
`
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`An IP network has multiple layers as shown in Diagram 3A: (1) the Application
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`layer that defines standard internet services, such as HTTP, FTP; (2) the Transport
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`layer that handles communications between endpoints and includes protocols such
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`as TCP or UDP; (3) the network or IP layer that routes packets between inter-
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`networks; and (4) the Link layer that specifies the characteristics of the data link
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`and hardware for the network. Example Link layers include Ethernet or an ATM
`
`Physical layer.
`
`42. The bandwidth management in Borella is based on a proposed change
`
`to the IP header. Namely, a change to the “type-of-service (TOS) byte in the IP
`
`header (also known as the DS byte).” (Borella col. 8 ll. 47–48.) As I explain below
`
`in paragraphs 43–44, the Borella technology proposes a change to reinterpret how
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`several fields of a byte in the IP header are used. Figure 3 of Borella shows the
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`format of an IP packet header; I have annotated the figure to show the byte
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`boundaries:
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`4 bytes (32 bits)
`2
`3
`
`1
`
`4
`
`
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`43.
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`In Borella, a packet is marked with an appropriate differential service
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`code point (DSCP) “to provide a desired class of service as the packet is
`
`transmitted through the network.” (Borella col. 2 ll. 33–35.) At the time of Borella,
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`the type-of-service (TOS) byte in an IP header was typically defined as shown
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`below:
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`(Id. col. 8 ll. 54–59.) The type-of-service (TOS) field was used as shown in
`
`Table B below:
`
`
`
`
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`(Id. col. 9 ll. 1–10.) Borella explained the drawbacks of using this system:
`
`A drawback to this classic TOS architecture is the only one parameter
`from the set of delay, throughout, reliability and cost can be affected
`per packet. Thus, for example, a user cannot simultaneously request
`low delay and high throughput. Typically, the 1-bit MBZ(must be
`zero) [sic] field is unused.
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`(Id. col. 9 ll. 11–16.)
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`44. Borella proposed modifying the IP protocol header so that the TOS
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`byte (the second byte) was reinterpreted as shown in Table C below:
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`(Id. col. 9 ll. 22–25.) In particular, the first six bits could be used to specify 64 (26)
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`different codes identifying up to 64 different classes. (Id. col. 9 ll. 17–38 (see
`
`Table C).) As mentioned in Borella, it was feasible to reinterpret the TOS byte
`
`because most implementations ignored the TOS byte. (Id. col. 9 l. 11.) Thus, the
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`technology in Borella is inextricably rooted in the specific packet header format
`
`that the Internet Protocol dictates.
`
`45. Borella’s technology discussed above in paragraphs 41–44 relies on
`
`changes to the IP protocol header and thus is predicated on use of an IP network.
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`As a result, Borella’s technology is incompatible with Bonomi’s technology, which
`
`is predicated on a fully implemented, connection-orient
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