UNITED STATES PATENT AND TRADEMARK OFFICE
`
`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 STUART G. STUBBLEBINE, PH.D.
`
`NOMADIX 2004
`Guest Tek v. Nomadix
`IPR2019-00211
`
`
`
`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 STUART G. STUBBLEBINE, PH.D.
`
`NOMADIX 2004
`Guest Tek v. Nomadix
`IPR2019-00211
`
`
`
`IPR2019-00211
`Patent 7,953,857
`I, Stuart G. Stubblebine, Ph.D., am making this declaration at the
`1.
`
`request of 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:
`
`Record Citation
`Reference
`Exhibit 1001
`U.S. Patent No. 7,953,857
`Declaration of Dr. Peter Dordal Exhibit 1002
`U.S. Patent No. 5,864,540
`Exhibit 1004
`U.S. Patent No. 7,392,279
`Exhibit 1005
`U.S. Patent No. 6,587,433
`Exhibit 1006
`Exhibit 1007
`INDEX: A Platform for
`Determining how People Value
`the Quality of their Internet
`Access
`U.S. Patent No. 5,623,492
`Petition for Inter Partes Review
`of U.S. Patent No. 7,953,857
`Institution Decision Decision Granting Institution of
`Inter Partes Review
`Decision Granting Institution of
`Inter Partes Review, IPR2019-
`00253
`
`Exhibit 1008
`Paper 1
`
`Paper 6
`
`’253 IPR, Paper 6
`
`- 1 -
`
`Short Name
`’857 patent
`Dordal Decl.
`Bonomi
`Chandran
`Borella
`Rupp
`
`Teraslinna
`Petition
`
`’253 IPR Institution
`Decision
`
`
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`
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`NOMADIX 2004
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`IPR2019-00211
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`IPR2019-00211
`Patent 7,953,857
`I. PROFESSIONAL BACKGROUND
`
`4.
`
`I have over 30 years of experience studying, researching, and working
`
`with computers, computer programming, and networks. I received a Bachelor of
`
`Science degree in Computer Science and Mathematics in 1983 from Vanderbilt
`
`University, a Master of Science degree in Electrical Engineering in 1988 from the
`
`University of Arizona, and a Ph.D. degree in Electrical Engineering in 1992 from
`
`the University of Maryland.
`
`5.
`
`I served in the U.S. Army from 1984 to 1987, focusing on
`
`telecommunications. From 1985 to 1987, I was an instructor at the City Colleges of
`
`Chicago,
`
`teaching undergraduate computer science courses
`
`relating
`
`to
`
`programming and system analysis and design. Then, in 1988, as a Research
`
`Assistant in the Electrical and Computer Engineering Department at the University
`
`of Arizona, I worked on a video, telecommunication, and distributed computer
`
`architecture for conferencing. Among other things, I optimized the network design
`
`and communication protocols for the system.
`
`6.
`
`From 1989 to 1990, I was the Director of Secure Systems Engineering
`
`at Commcrypt, where I led research and development in several security-related
`
`areas, including network and file server architectures, automated cryptographic key
`
`management, and secure e-mail. At Commcrypt, I also worked with the National
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`IPR2019-00211
`Patent 7,953,857
`Institute of Standards and Technology to establish national standards for secure
`
`programming.
`
`7.
`
`From 1990 to 1991, while conducting my doctoral research at the
`
`University of Maryland, I also taught a laboratory component of an upper division
`
`computer engineering course. From 1991 to 1992, while continuing my doctoral
`
`research, I worked as a Computer Scientist and consultant in the Federal Systems
`
`Division of IBM. In that capacity, I analyzed the security of certain network
`
`architectures and distributed computing systems and identified significant
`
`vulnerabilities in Privacy-Enhanced Electronic Mail and the Kerberos network
`
`authentication service.
`
`8.
`
`After receiving my Ph.D. in 1992, I had a joint appointment at the
`
`University of Southern California as a Research Assistant Professor in the
`
`Computer Science Department and as a Computer Scientist with the Information
`
`Sciences Institute, from 1992 to 1994. I continued on at USC for the next four
`
`years as an adjunct faculty member in the Computer Science department. During
`
`my time at USC, among several other responsibilities, I advised students on
`
`research in computer networks and security. I also conducted research relating to
`
`minimizing delay and bandwidth for protecting traffic flow confidentiality in
`
`networks and contributed to the design of the Real-Time Transport Protocol.
`
`
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`During part of my time at USC, from 1994 to 1998, I was also a
`9.
`
`researcher at AT&T Bell Labs (later AT&T Labs – Research), performing research
`
`in computer and network security technology. While at Bell Labs, I worked on
`
`numerous projects, including projects involving research into secure Internet
`
`telephony, attacks on the IPSEC protocol and security for e-commerce services.
`
`10. From 1998 to 2001, I was a Vice President and Cryptographer at
`
`CertCo, Inc., conducting research, design, and analysis of public key infrastructure
`
`protocols and related risk management services. Beginning in 2001, I formed
`
`Stubblebine Consulting and Stubblebine Research Labs, and began my affiliation
`
`as a professional researcher with the Computer Science department at the
`
`University of California, Davis.
`
`11.
`
`I was an Associate Editor of Association for Computing Machinery
`
`(ACM) Transactions on Information and System Security, the premier academic
`
`journal in the area of network and computer security, and a member of its editorial
`
`board from January 2000 to April 2007. I was an invited editor for the Special
`
`Issue on Software Engineering and Security for ACM Transactions on Software
`
`Engineering and Methodology in 2000.
`
`12.
`
`I was a member of the Program Committee, ACM Conference on
`
`Computer and Communications Security in 1996, 1997, 2002, and 2003. I was also
`
`a member of the Program Committee, Formal Methods in Security Engineering
`
`
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`(FMSE) in 2003 and 2004. I served on the Program Committee for Financial
`
`Cryptography in 2001 and 2006. I was the Tutorial Chair, ACM Conference on
`
`Computer and Communications Security in 2000, and a Session Chair for that
`
`conference in 2000 and 2003. I was on the Program Committee for the Institute of
`
`Electrical and Electronics Engineers (IEEE) Computer Security Symposium on
`
`Research in Security and Privacy in 1994, 1996, 1997, and 1998, and a Session
`
`Chair for that Symposium in 1994 and 1998. I was on the Program Committee,
`
`European Symposium on Research in Computer Security in 1998, and the
`
`Publications Chair, ACM Conference on Computer and Communications Security,
`
`also in 1998. I served as a Session Chair, 1997 DIMACS Workshop on Design and
`
`Formal Verification of Security Protocols, and also served on the Program
`
`Committee for the National Computer Security Conference in 1993 and 1994.
`
`13. As a research scientist with Stubblebine Research Labs, I performed
`
`research sponsored by the National Science Foundation into security and privacy
`
`technology. Currently, as a principal of Stubblebine Consulting, I provide
`
`consultation services in the fields of computer and network security. Furthermore, I
`
`am an inventor on 12 United States patents, all of which relate to computer and
`
`network security.
`
`
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`IPR2019-00211
`Patent 7,953,857
`II. SCOPE OF ANALYSIS
`
`14.
`
`I understand that this PTAB proceeding involves subjects related to
`
`the patentability of claims 1 and 9 of the ’857 patent. I understand that my analysis
`
`in this proceeding is limited in scope, and that I have been asked to offer analysis
`
`regarding the particular obviousness theories set forth in the Petition. I have
`
`therefore limited my analysis to whether, Bonomi in view of Borella (Ground 1),
`
`Chandran in view of Rupp (Ground 2), and Teraslinna in view of Bonomi
`
`(Ground 3) would render the challenged claims of the ’857 patent obvious to one
`
`of ordinary skill in the art at the time of the invention. The specific topics within
`
`this question that I have been asked to address, and my analysis thereof, are set
`
`forth in the section of this declaration labeled “SUBSTANTIVE ANALYSIS.” I
`
`spent a significant amount of time over several days to analyze and express
`
`opinions about the specific topics addressed in this declaration.
`
`15. With respect to the present PTAB proceeding, I have neither analyzed
`
`nor expressed any opinion about any subject that is not expressly included in the
`
`section labeled “SUBSTANTIVE ANALYSIS.” While I could, if given sufficient
`
`time, analyze and express an opinion concerning additional subjects related to
`
`computer networking that are not expressly included in this declaration, doing so
`
`would require a significant investment of time, over multiple days, similar to the
`
`significant amount of time I devoted to the issues addressed in this declaration.
`
`
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`III. LEGAL STANDARDS
`
`16. At the outset, I want to clarify that 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. In the interest of conciseness, some portions of this
`
`declaration do not expressly include language indicating that the analysis is from
`
`the perspective of a person of ordinary skill in the art at the time of invention. It
`
`should be understood, however, that my analysis and opinions are from the
`
`perspective of a person of ordinary skill in the art 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.
`
`17.
`
`I will not offer opinions of law as I am not an attorney. The opinions I
`
`am expressing in this declaration involve the application of my knowledge and
`
`experience to the evaluation of the ’899 patent and certain art with respect to the
`
`’899 patent. The paragraphs below express my understanding of how I must apply
`
`current principles related to patentability to my analysis.
`
`18.
`
`I understand that, in assessing the patentability of a patent claim, the
`
`Patent and Trademark Office (PTO) must construe the claim by giving the claim its
`
`broadest reasonable interpretation consistent with the specification. I understand
`
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`that, under the broadest-reasonable-interpretation standard (sometimes abbreviated
`
`as the “BRI” standard), a claim term or phrase is generally given its plain and
`
`ordinary meaning within the relevant art. In considering what construction is
`
`broadest while remaining reasonable, the PTO reads the claims in light of the
`
`specification, prosecution history, and record evidence. Ultimately, the PTO’s
`
`construction must be consistent with the one that those of ordinary skill in the art
`
`would reach.
`
`19.
`
`I understand that a claim 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 to a person of ordinary
`
`skill in the art at the time of the invention. I also understand that an obviousness
`
`analysis is based on the scope and content of the prior art, the differences between
`
`the claimed subject matter and the prior art, the level of ordinary skill in the
`
`pertinent art at the time of the invention, and objective indicia of nonobviousness,
`
`such as commercial success, industry praise, and unexpected results.
`
`20.
`
`It is my further understanding that, to find a claimed invention
`
`obvious in light of a combination of prior-art references, a person of ordinary skill
`
`in the art at the time of the invention must have had reason to combine the
`
`teachings of the prior-art references to achieve the claimed invention, and that the
`
`person of ordinary skill must have had a reasonable expectation of succeeding in
`
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`IPR2019-00211
`Patent 7,953,857
`combining the teachings to arrive at the claimed invention. I further understand
`
`that a reason 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.
`
`21.
`
`I understand that an assessment of what a reference discloses or
`
`teaches—for purposes of an obviousness analysis—must be conducted 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 would, at the relevant time, interpret the reference as
`
`disclosing the claim limitation.
`
`IV. SUBSTANTIVE ANALYSIS
`
`22.
`
`I reiterate that 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 articulate my analysis or
`
`conclusions.
`
`A.
`
`Level of Ordinary Skill in the Art
`
`23.
`
`I understand that factors that may be 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
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`made; the 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 and that one or more factors may predominate in a particular
`
`case. Moreover, I understand that inventors often possess extraordinary rather than
`
`merely ordinary skill in the art.
`
`24. 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.)
`
`25.
`
`I do not necessarily agree with Guest-Tek’s assertions regarding the
`
`pertinent art or level of ordinary skill, but even if I were to apply Guest-Tek’s
`
`proposed level of skill to my analysis, my analysis and opinions below would not
`
`materially change. I reserve the right to opine on the level of ordinary skill at a
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`later date in this proceeding.
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`B. Analysis of Grounds 1 and 3
`
`1.
`
`Petitioner has failed to show that Bonomi teaches calculating a
`delay period (Grounds 1 and 3)
`
`26.
`
`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).
`
`27. Claim 1 recites:
`
`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.
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` (’857 patent col. 14 ll. 31–49 (emphasis added).)
`
`28. 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;
`
`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).)
`
`29. The ’857 patent explains an example embodiment of calculating a
`
`delay period and delaying transmission of the packet based on the delay period:
`
`Based upon (a) the predetermined bandwidth chosen by the subscriber
`as determined from the authorization file; (b) the size of the current
`data packet; and/or (c) the size and time of the previous packet sent by
`the subscriber and processed at the bandwidth manager, it is
`determined if the packet needs to be queued for a period of time to
`ensure that the subscriber does not receive a bandwidth greater than
`that which the subscriber selected, as determined at decision block
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`320. If the packet should be delayed, then at block 330, the
`appropriate delay is calculated and the packet is placed in the
`appropriate timeslot of a ring buffer. When the pointer of the ring
`buffer addresses the times lot in which the packet resides, then the
`packet is further processed by the traffic shaping module of the
`bandwidth manager. In particular, at block 340, it is determined if the
`packet needs to be queued for traffic shaping purposes. If the packet
`needs to be queued, then it is determined at block 350 how long the
`packet should be delayed, and then the packet is placed in the
`appropriate timeslot of the ring buffer. When the pointer of the ring
`buffer addresses the timeslot where the packet resides, then the packet
`is transmitted over the network at block 360.
`
`(’857 patent at col. 11 l. 63–col. 12 l. 16.)
`
`30. The ’857 patent illustrates a flowchart of a method of bandwidth
`
`management:
`
`
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`(Id. at Fig. 4B.) As shown in the flowchart, the ’857 patent describes calculating a
`
`delay as “determining length of delay.” (Id.) After, the ’857 patent “reschedule[s]
`
`[the packet] accordingly.” (Id.)
`
`31. The ’857 patent describes an example of calculating the delay period:
`
`For example, if the user/subscriber has paid for a downlink:
`bandwidth of 100 kilobits per second (kbps), and the gateway device
`12 receives a data packet with the size of 1,500 bytes (12,000 bits), it
`would schedule a delay between packets of 0.12 seconds (12,000 bits
`in a packet/100,000 bits per second bandwidth limit).
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`(’857 patent at col. 8 ll. 42–48.)
`
`32. Thus, in my view, the broadest reasonable interpretation consistent
`
`with the specification of the calculation of a delay period limitation requires
`
`calculating a length of time.
`
`33. 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].
`
`34. 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
`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.
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`(Bonomi col. 8 ll. 30–38; see Dordal Decl. App’x I at p.7.)
`
`35. 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 comparison of
`
`the estimated arrival time to a threshold value constitutes calculation of a period of
`
`time by which a packet will be delayed.
`
`36.
`
`I disagree. A comparison to determine whether 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.
`
`37. According to Bonomi, “the state variable X[] represent[s] the cell’s
`
`arrival time.” (Bonomi col. 8 ll. 24–25.) Thus, X itself is an estimated, discrete
`
`point in time the cell arrives at Bonomi’s traffic shaper; X is not a delay period or
`
`any other period of time. 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 (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.
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`38. Dr. Dordal and Petitioner contend that the “the ALU calculates a
`
`delay period (based on conformance time c= X–σ/ρ).” (Pet. at 63–64.) As
`
`Petitioner notes, 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 identify or explain what the supposed calculated delay period
`
`actually is. Moreover, Dr. Dordal and Petitioner never identify any calculations in
`
`Bonomi based on the conformance time c. Like the estimated arrival time X, the
`
`conformance time c itself is a discrete point in time, not a delay period or any other
`
`period of 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. (Bonomi at
`
`col. 8 l. 38 (“c=X–σ/ρ”).) Petitioner fails to identify anything in Bonomi teaching
`
`delaying a packet based on a point in time earlier than the estimated arrival time.
`
`39.
`
`The Institution Decision states that “Petitioner does not rely solely on
`
`the comparison for calculating a delay. Rather, Petitioner explains that the
`
`processor compares the arrival time of each packet to see if it complies with the
`
`traffic contract parameters, and if it does not, calculates a delay period.”
`
`(’253 IPR, Paper 6 at 20 (citing Pet. 29–30, 62).) I understand that the only
`
`additional citation made by the Petitioner and Dr. Dordal is to claim 13 in Bonomi,
`
`which is only cited with respect to Ground 3. Bonomi’s claim 13 states:
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`13. The method of shaping traffic in claim 1 wherein each said
`sorting bin corresponds to a single delay period between said
`conformance time and said current time.
`
`(Bonomi at col. 14 ll. 18–20; see Pet. at 64 (discussing Ground 3); Dordal,
`
`App’x III at 8.)
`
`40. The sorting bins’ representation of a “single delay period” is not a
`
`calculation. Petitioner never identifies any calculation by Bonomi of a length of
`
`time based on which a packet will be delayed. As Bonomi explains, the sorting
`
`bins are predetermined:
`
`The number of sorting bins required for the sorting unit is
`advantageously independent of the number of incoming connections
`or the amount of backlogged traffic at the switch. The granularity of
`the bins (i.e, the number of consecutive conformance times associated
`with a single bin) and the shaping rate of the slowest incoming
`connection (i.e., the minimum shaping rate, ρmin) determine the
`maximum number of sorting bins required for the illustrated
`embodiment of the present invention. The optimal number of sorting
`bins for a sorting unit in the present invention varies depending on the
`divergence of incoming connection bandwidth parameters; the lowest
`shaping rate determines the range and the highest shaping rate
`determines the grain.
`
`(Bonomi at col. 7 ll. 35–47 (emphasis added).)
`
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`41. Although Petitioner does not cite to or rely upon how Bonomi
`
`determines where to place the received cells in the sorting unit, this also does not
`
`calculate a delay. Bonomi states that it uses a formula to select the sorting bin in
`
`which to place the packet after the comparison to see whether a cell is conforming,
`
`but the formula does not make sense:
`
`If the cell is non-conforming, the cell is enqueued on a sorting bin as
`shown in step 44. In an embodiment having b sorting bins of grain g
`in
`the sorting unit,
`the cell
`is enqueued onto sorting bin
`[(c mod bg)/g]. If the connection is not idle, the cell is enqueued on
`the connection FIFO as shown in step 45.
`
`(Bonomi at col. 8 ll. 49–54 (emphasis added).)
`
`42. The “mod” operation is a mathematical operator that takes two integer
`
`inputs and returns the remainder after dividing the first number by the second
`
`number. The mod operation returns an integer number. Below is an example of the
`
`“mod” operation:
`
`Since 103 =(3×3)+1,
`10 mod 3=1.
`
`Thus, the result of “10 mod 3” would be “1”, the remainder of the division
`
`operation.
`
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`43. Bonomi’s
`
`formula
`
`(c mod bg)/g does not make sense. The
`
`conformance time c is defined as X–σ/ρ, and Bonomi provides no teaching that σ
`
`or ρ are limited to values that would make c an integer. The mod operation
`
`therefore is not necessarily defined on the inputs Bonomi specifies. Furthermore,
`
`Bonomi’s formula specifies that the result of the mod operation is divided by “g,”
`
`the grain. Thus, Bonomi’s formula generally returns a non-integer number. Even
`
`assuming conformance time c were an integer, (c mod bg)/g is guaranteed to be an
`
`integer in general only if g is 1. But Bonomi states that cells in bin (t mod bg)/g are
`
`placed onto the transmission FIFO when they “are conforming, i.e., when (t mod g)
`
`= = (g – 1).” (Bonomi col. 9 ll. 5–9.) The mod operation makes sense only if t is an
`
`integer; and if g is 1, then (t mod g) is always (g – 1), meaning there is no delay in
`
`specifying the cells in any bin are ready for transmission.
`
`44. Even if the Bonomi’s formula made sense, Bonomi’s determination of
`
`which sorting bin to place the packet does not “calculate a delay period.” Like
`
`Bonomi’s comparison explained above, Bonomi’s “mod” operation does not
`
`“calculate a delay period.” Instead, the “mod” operation purportedly identifies
`
`which bin to place the packet in.
`
`45. As explained in the ’857 patent, “[i]f the packet should be delayed,
`
`then at block 330, the appropriate delay is calculated and the packet is placed in
`
`the appropriate timeslot of a ring buffer.” (’857 patent at col. 12 ll. 4–7 (emphasis
`
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`added).) In contrast, Bonomi compares the current time to the conformance time
`
`and then if non-conforming, determines which sorting bin to place the packet in.
`
`The citations to Bonomi and even those not relied upon by Petitioner show that
`
`Bonomi does not calculate a length of time, a delay period.
`
`46.
`
`Instead of specifying what part of Bonomi is allegedly the delay
`
`period, Dr. Dordal and Petitioner generally point to some of 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, the bins, 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.
`
`47.
`
`In summary, Dr. Dordal and Petitioner have failed to identify in
`
`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)
`
`48.
`
`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
`
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`the user device” as required by claim 9. (Pet. at 32–35; Dordal Decl. at App’x I at
`
`pp. 7, 11, 13 (underlining limitations not disclosed in Bonomi).) 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:
`
`(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.)
`
`49. To the contrary, a skilled artisan would not be motivated to combine
`
`Borella with Bonomi. 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 (emphasis added).) 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
`
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`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 type
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