Paper # 32
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`Trials@uspto.gov
`Entered:
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`571-272-7822
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`Petitioner,
`
`v.
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`NOMADIX, INC.,
`Patent Owner.
`_____________
`
`IPR2019-00211 (Patent 7,953,857 B2)
`IPR2019-00253 (Patent 8,626,922 B2)
`____________
`
`Record of Oral Hearing
`Held: February 25, 2020
`
`
`
`BEFORE SALLY C. MEDLEY, DANIEL J. GALLIGAN, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`
`
`
`
`Trials@uspto.gov
`Entered:
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`571-272-7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`Petitioner,
`
`v.
`
`NOMADIX, INC.,
`Patent Owner.
`_____________
`
`IPR2019-00211 (Patent 7,953,857 B2)
`IPR2019-00253 (Patent 8,626,922 B2)
`____________
`
`Record of Oral Hearing
`Held: February 25, 2020
`
`
`
`BEFORE SALLY C. MEDLEY, DANIEL J. GALLIGAN, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`
`
`
`
`IPR2019-00211 (Patent 7,953,857 B2)
`IPR2019-00253 (Patent 8,626,922 B2)
`
`
`
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday, February
`25, 2020, commencing at 12:59 p.m., at the U.S. Patent and Trademark
`Office, USPTO Madison Building, 600 Dulany Street, Alexandria, Virginia
`22314.
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`2
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` A
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` P P E A R A N C E S
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`
`ON BEHALF OF PETITIONER:
`ANDREW E. SAMUELS, ESQUIRE
`JEFFREY W. LESOVITZ, ESQUIRE
`BAKER HOSTETLER
`200 Civic Center Drive, Suite 1200
`Columbus, Ohio 43215
`614-462-2699
`
`
`ON BEHALF OF THE PATENT OWNER:
`DOUG MUEHLHAUSER, ESQUIRE
`ALEX MARTINEZ, ESQUIRE
`KNOBBE MARTENS
`2040 Main Street, 14th Floor
`Irvine, California 92614
`949-721-2994
`
`
`
`
`IPR2019-00211 (Patent 7,953,857 B2)
`IPR2019-00253 (Patent 8,626,922 B2)
`
`
` (Proceedings begin at 12:59 p.m.)
` JUDGE MELVIN: Okay. Good afternoon.
` MR. LESOVITZ: Good afternoon.
` JUDGE MELVIN: So we are here for a combined hearing
`in IPR2019-00211 and IPR2019-00253. I'm Judge Melvin. With
`me, in the room, is Judge Medley and appearing remotely is
`Judge Galligan. Would the parties make their appearances,
`please?
` MR. LESOVITZ: Hi. This is Jeff Lesovitz on behalf
`of Guest Tek, the Petitioner. And with -- here me -- with me
`here today is Andrew Samuels, also of Baker Hostetler for the
`Petitioner.
` JUDGE MELVIN: Thank you.
` JUDGE GALLIGER: Counsel, if the parties could just
`step up to the podium and make sure the green light is
`illuminated, so I can hear? Thanks.
` MR. MUEHLHAUSER: Good afternoon, Your Honors. Doug
`Muehlhauser for the Patent Owner, Nomadix. With me is my
`colleague, Alex Martinez. And the green light appears to be
`on.
` JUDGE MELVIN: All right. Thank you.
` JUDGE GALLIGER: Thank you.
` JUDGE MELVIN: And because Judge Galligan is remote,
`he won't be able to see what you put on the screen. So please
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`try to remember that, when you're speaking, to refer to your
`materials. We all have your materials in front of us. And
`also, remember to speak into the microphone. So that Judge
`Galligan can hear.
` So we have 60 minutes each today for the combined
`hearing. You may reserve time for rebuttal, up to half your
`time. Of course, Petitioner, you will start. And each of you
`may reserve rebuttal time. So you can tell me now or, Patent
`Owner, when you begin, you can tell me.
` MR. LESOVITZ: So my plan is to do 40 minutes of
`presentation and then 20 minutes for reply. So if I may
`proceed?
` JUDGE MELVIN: Okay. I'll set the timer at your
`full time and I'll try and let you know when you start to go
`into your rebuttal.
` MR. LESOVITZ: Okay. Great.
` JUDGE MELVIN: All right. I'm was making sure.
` MR. LESOVITZ: Thank you. Let's proceed.
` So Guest Tek filed its Petitions, based on three
`grounds of invalidity. And the Board found a reasonable
`likelihood of invalidity on all three grounds, and instituted
`on all three grounds. Now, there hasn't been any new
`arguments or any new evidence presented in these proceedings
`that we think should change the Board's prior decision. So we
`believe the Board should affirm its invalidity finding in its
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`final written decision.
` Now, I will begin my presentation. I'm sorry. I
`forgot my clicker. So I'll begin my presentation by giving a
`quick overview of the challenged patents, and then a summary
`of the prior art, and then I'll jump into the invalidity
`grounds.
` So what are the patents about? The challenged
`patents are about managing the amount of bandwidth that users
`get when sending data over the internet. And the goal of the
`patents is to limit users to the amount of bandwidth that they
`selected. And the patents do that by calculating a delay
`period and then delaying packets, based on the delay period,
`to prevent users from exceeding the selected bandwidths.
` So turning to Slide 4, I have exemplar -- an
`exemplary challenge claim on the screen. And this is Claim 1
`of the '857 Patent. Now, Claims 1 and 9 of both patents are
`being challenged in these IPRs. And they all, basically,
`recite the same, really similar limitations. For example,
`they recite, "A system or method for allowing users to control
`an amount of bandwidth." The first and second network
`interfaces, data storage for storing selected bandwidths, and
`then a processor that calculates a delay period, based on the
`selected bandwidth. And then delays packets, based on that
`delay period.
` So I'm going to use this claim as the example claim
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`throughout my presentation, to make things go a little
`quicker. But as I'll explain -- so some -- I'm showing here
`Slide 5, and Slide 5 shows what was added to the claims during
`prosecution to get the claims allowed over the prior art.
` The '857 Patent was filed first and it was rejected
`as obvious over the prior art. And then the Patentee amended
`the claims to add two limitations. The first limitation is
`the fact that the bandwidth had to be selected by the user.
`And then the second limitation was that the bandwidth was
`delayed to prevent the user's device from exceeding the
`selected bandwidth.
` So those are the two limitations that were added to
`get the claims issued, but as I'll explain, those limitations
`were well-known in the prior art. Which leads me to the next
`topic.
` So now, I'll just give a brief summary of the prior
`art. Bandwidth management, including the limitations that we
`just discussed, they were not new. In fact, there were
`standards at the time that these Patents were filed, that
`provided guidelines for bandwidth management. Including,
`guidelines that advised the selection of a bandwidth.
` I'm showing The ATM Forum Standard that talks about
`selecting an SCR, which is a sustained cell rate or a
`bandwidth. And then moving to Slide 8, the Standards also
`disclose algorithms for enforcing compliance with selected
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`bandwidths. Including, traffic shaping, for example.
` So bandwidth -- selecting bandwidths and traffic
`shaping, none of this was new at the time these Patents were
`filed. They were so well-known, they were actually
`standardized.
` JUDGE MEDLEY: Excuse me. A question, where do you
`cite to this Exhibit 1016 in your Petition?
` MR. LESOVITZ: I believe it's in the background
`section and it's also in Dr. Dordal's initial declaration. I
`can find you a specific page number, if you would like.
` JUDGE MEDLEY: I did recall seeing it in Dr.
`Dordal's declaration, but I wasn't sure where you discussed it
`in your -- oh, it's right there.
` MR. LESOVITZ: It's Exhibit -- so it's Exhibit 1016
`--
` JUDGE MEDLEY: Right.
` MR. LESOVITZ: -- to the Petition.
` JUDGE MEDLEY: Okay. For future reference, when you
`cite, I think you said, prior art or evidence, it's helpful
`to the Panel if you also cite to where you cite it.
` MR. LESOVITZ: Discuss it in the Petition.
` JUDGE MEDLEY: The exhibit, if you will. Yes.
` MR. LESOVITZ: Yes, Your Honor.
` JUDGE MEDLEY: Thank you.
` MR. LESOVITZ: Now, moving to Slide 9. Now, the
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`Standards didn't have all the details of a challenged claim,
`including a calculation. And that's why we relied on patents
`and printed publications, including the references shown on
`this slide.
` And as I mentioned, Petitioner presented three
`grounds of invalidity. The second ground, which is the
`combination of Chandran and Rupp actually relies on completely
`different prior art than the others. So just to move things
`along, I'm going to plan on skipping ahead to that ground
`first. And then for the purposes of time, I'll address
`Grounds 1 and 3 together.
` So if you could please turn to Slide 32. So the
`first invalidity ground that I'll address is Chandran in view
`of Rupp. Now, moving to the next slide. Chandran and Rupp
`are both directed to bandwidth management, just like the
`challenged patents.
` For example, Chandran talks about a time-based
`buffering system. It stores data to comply with a traffic
`shaping policy. And then, similarly, Rupp talks about a
`system that was designed to test internet usage, when offered
`different quality of service or bandwidth options.
` Moving to Slide 34, Ground 2 relies on Chandran as
`the primary reference. And Chandran discloses all the
`limitations, except, arguably, 1C, which is a data storage
`system for storing the user-selected bandwidth.
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` Now, the fact that Chandran discloses all of the
`other limitations is undisputed. But, in any event, I will
`quickly walk through the limitations just to be thorough.
` JUDGE MELVIN: Well, what's the dispute, right? The
`dispute is, floor versus ceiling on the bandwidth?
` MR. LESOVITZ: Right. So one of the disputes is, I
`believe, according to the Patent Owners, whether Rupp
`discloses a minimum or a maximum bandwidth. That's one of the
`disputes. There's actually four.
` JUDGE MELVIN: Well, you don't have a problem with
`that, right? I mean, nobody disputes what Rupp actually
`discloses. Do you agree? I mean, Rupp discloses a floor on
`the bandwidth; is that accurate?
` MR. LESOVITZ: No. That's actually -- I -- well,
`there's two issues here; Number one, for purposes of
`Petitioner's proposed combination, that actually doesn't
`matter, right? Because --
` JUDGE MELVIN: Agreed.
` MR. LESOVITZ: -- we're not relying on whether Rupp
`teaches a maximum or minimum. We're just relying on the fact
`that it discloses a bandwidth in general.
` JUDGE MELVIN: That the user selects?
` MR. LESOVITZ: Correct.
` JUDGE MELVIN: Thank you.
` MR. LESOVITZ: Correct. However, we also think it's
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`incorrect to say that Rupp discloses, what Patent Owner has
`characterized, as a minimum bandwidth. It actually discloses
`a maximum.
` JUDGE MELVIN: Oh.
` MR. LESOVITZ: And I can talk about that now or I
`can go through the claims. However you would like me to
`proceed.
` JUDGE MELVIN: Well, I'm most interested in the
`issue in dispute, but it's your time.
` MR. LESOVITZ: Sure. And for matters of time, I
`will just jump right into the arguments then.
` If you could please turn to Slide 40. So just to
`give a little background on that issue, again, we're relying
`on Rupp as disclosing storing a user-selected bandwidth. And
`Rupp talks about that throughout the paper, but it
`specifically says that subjects or users can choose a service
`quality by the click of a button, even during the active
`session.
` And the buttons are buttons for selecting a
`bandwidth, whether it be 8, 16, 32, or 128 kilobits per
`second. So it's a selection of a bandwidth.
` Now, Patent Owner has argued that that bandwidth is
`a minimum or a floor that can be exceeded. We disagree with
`that. And if you could turn to 61, please?
` So Patent Owner is arguing that Rupp does not
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`disclose a bandwidth within the constraints of Claims 1 and 9.
`So moving to the next slide, what Patent Owner is arguing is
`that Rupp doesn't disclose a bandwidth within the context of
`the last claim limitation. And that last claim limitation
`talks about preventing the user device from achieving a
`bandwidth greater than the network communication bandwidth.
` So Patent Owner is saying that Rupp discloses a
`minimum, rather than a maximum as required in that last claim
`limitation. Now, again, we disagree with that argument for
`two reasons. Now, the first reason is shown on Slide 63. And
`I briefly touched on this, but whether Rupp discloses a
`minimum or maximum is completely irrelevant.
` Petitioner Guest Tek is relying only on Rupp's
`disclosure of a bandwidth parameter, in general, and selecting
`that bandwidth parameter. And that's for Limitations 1C and
`9B. Those limitations only refer to storing an indication of
`a network communication bandwidth. Those limitations do not
`refer to that bandwidth as being a minimum or maximum.
` JUDGE MELVIN: But it does provide antecedent basis
`for the later claim limitation, treating it as a maximum.
` MR. LESOVITZ: That is correct. That's correct.
`And for that reason, we rely on Chandran as disclosing the
`final claim limitation, which is Limitations 1E and 9D. And
`what Chandran talks about is taking a bandwidth and using an
`algorithm. And then, based on that algorithm, making that
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`bandwidth a maximum bandwidth.
` So when you plug in Rupp to Chandran, you have
`Rupp's general bandwidth and then Chandran's algorithm. Which
`would take that bandwidth and make the bandwidth a maximum
`bandwidth. So for that reason, we don't think this argument
`is even relevant because it's not part of Petitioner's
`proposed combination.
` Now, Judge Melvin, to get to your question, in
`addition to being irrelevant, it's also our position that Rupp
`does, in fact, teach a bandwidth parameter that is a maximum
`bandwidth, as opposed to just a minimum bandwidth. And this
`is explained in Section 2.3, and this is on Slide 65.
` Section 2.3 of Rupp starts off by saying, "After a
`subject has chosen a desired quality level." So it's saying
`the user or the subject selects a bandwidth. And then it goes
`on and says, "The quality of service must be adjusted, i.e.,
`degraded accordingly."
` So what this sentence is saying is, the user selects
`a bandwidth and then the system degrades the actual bandwidth
`being used accordingly, according to the selected bandwidth.
`So the user selects the bandwidth and then it degrades the
`bandwidth to that selected bandwidth. So it's -- it is a
`maximum bandwidth.
` And this same section also talks about user quality
`choices, which are the user bandwidth selections, being mapped
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`to the network that's composed of leaky bucket packet delay
`and packet drop mechanisms. Those mechanisms are used to
`delay packets.
` If the bandwidth that was selected was only a
`minimum bandwidth, there's no reason to delay packets. It's a
`maximum bandwidth, and that's why packets are being delayed,
`to ensure that packets -- that the bandwidth is not being
`exceeded.
` And moving on to Slide 66, Dr. Dordal confirmed this
`in both his original and his second declarations. And he also
`confirmed it during his deposition, when he was asked whether
`Rupp shows a minimum amount of bandwidth. And his response
`was, it's actually showing a maximum. It's not just the
`minimum. It's also showing a maximum.
` Which makes perfect sense because, if you go to your
`service provider, for example, I use Verizon, and I ask to --
`you know, I sign up for two gigabytes of Bandwidth, Verizon
`makes that your minimum, but also your maximum. It lets you
`get that amount of bandwidth, but it's not going to let you
`get more than that bandwidth. That's how bandwidth options
`work, including in Rupp itself.
` So that's one of the arguments that Patent Owner
`makes and we disagree with it. I also address a couple of the
`other arguments they make, just for purposes of time. If you
`could please turn to Slide 44.
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` So Patent Owner, they really made four arguments
`with respect to Rupp and Chandran, and we, obviously, disagree
`with all of them. The first argument, which is their primary
`argument, is that Rupp does not qualify as prior art. Moving
`to Slide 45.
` Rupp does, in fact, qualify as prior art because it
`was publicly available before the invention date for the
`claims, which is 1999. And there's a substantial amount of
`evidence showing this. First of all, Rupp is an IEEE article.
`It was presented at a conference, called the Sixth
`International Workshop on Quality of Service. And it was
`presented at that conference in 1998.
` And there's other evidence that shows this. Number
`one, Rupp itself is copyrighted 1998. Obviously, that, alone,
`is insufficient. But if you'd turn to Slide 46, IEEE's meta
`data from its online database also says that Rupp was
`published in 1998 as part of the conference proceedings.
` And then if you go to Slide 48, skipping ahead two.
`We also have declarations from, not just one, but three
`individuals with knowledge, who each said that Rupp was made
`available to attendees of the conference during the conference
`in '98.
` JUDGE MEDLEY: So I have a question about that. The
`Declaration of Mr. Knightly and Dr. Rupp, were those served on
`Patent Owner prior to your filing your Petitioner's reply? In
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`other words, did you use those as evidence to cure the
`objections that they made of record?
` MR. LESOVITZ: Well, they were served as part of the
`Petitioner's reply.
` JUDGE MEDELY: Right. So the first time they saw --
`I guess, to ask the question a different way, the first time
`that Patent Owner saw those declarations were in connection
`with your reply; is that correct?
` MR. LESOVITZ: I believe so.
` JUDGE MEDLEY: Okay.
` MR. LESOVITZ: Yes.
` JUDGE MEDLEY: Thank you.
` MR. LESOVITZ: There were actually four declarations
`served in the proceedings. Two of them were by Mr. Grenier.
` JUDGE MEDLEY: Uh-huh.
` MR. LESOVITZ: And if Your Honor recalls, early in
`the IPR proceedings, Petitioner requested, I guess, leave to
`file supplemental information. And that request was denied
`because the Board said that the proper way to do that was to
`submit the evidence in a reply, if the Patent Owner continued
`to challenge the public availability of the prior art.
` JUDGE MEDLEY: Right.
` MR. LESOVITZ: Right.
` JUDGE MEDLEY: I recall that. I just wanted to know
`-- I know that they served a -- I believe they filed
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`objections in the record. And then in response to those
`objections, I'm assuming you just served the second
`declaration from Mr. Grenier, but not the other two
`declarations? That's -- that was what I was trying to get at.
` MR. LESOVITZ: Correct. That --
` JUDGE MEDLEY: Okay.
` MR. LESOVITZ: -- is correct.
` JUDGE MEDLEY: Thank you.
` MR. LESOVITZ: And I think that's permissible at
`this point in the IPR process. I believe that -- I think it
`was the Hulu decision, which was precedential that came out
`recently, I believe said that, you know, if Patent Owners
`challenge public availability, Petitioners are able to submit
`additional evidence, including declarations in the reply. So
`in our view -- I know they disagree, but in our view, those
`declarations were also timely.
` So moving on to Slide 49, we also have a declaration
`from Dr. Rupp, who is the author of the article. And then,
`finally, on Slide 50, we have a third declaration from Dr.
`Knightly, who was the organizer of the conference. And all
`three individuals said that Rupp was made available to all
`attendees of the conference in 1998.
` Now, Patent Owner, obviously, could have deposed any
`of these witnesses or could have tried to get its own evidence
`to contract their statements, but it didn't do either. So at
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`this point, all of this evidence, showing that Rupp is prior
`art, is uncontested.
` So moving on to Slide 51. The second argument that
`Patent Owner makes is that Rupp is, supposedly, not analogous
`art. Now, I don't believe that Patent Owner intends to make
`this argument today. So I'm not going to spend too much time
`on it, but I just want to point out that Rupp is analogous art
`because it's in the same field of endeavor as the claimed
`inventions.
` The claimed inventions are directed towards
`bandwidth management. Rupp is also directed to a system for
`providing bandwidth management. So Patent Owner's second
`argument is also incorrect.
` Now, if you could please go to Slide 61. I'm sorry.
`Slide 61 is the argument that I already addressed. If you'd
`please go to Slide 67. Now, Patent Owner's fourth and final
`argument, is that there would have, allegedly, been no
`motivation to combine Chandran and Rupp.
` Moving on to Slide 69, specifically, Patent Owner
`argues that Rupp includes, what they referred to, as a complex
`and inefficient network topology, as shown in Figure 1. And
`adding that topology, in Patent Owner's view, would supposedly
`defeat the purpose of Chandran. But that argument is wrong
`because it's premised on bodily incorporating all of Rupp's
`Figure 1, including aspects that are completed unrelated to
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`the proposed combination.
` So moving on to Slide 70, the law is well
`established, that the test for obviousness, it's not whether
`features of a secondary reference can be bodily incorporated
`into the structure of the primary reference. The test is
`merely what the combined teachings would have suggested to a
`person of ordinary skill.
` Now, moving on to Slide 71. Here, as I mentioned
`before, Petitioner is only relying on Rupp's disclosure of
`allowing the user to select the bandwidth and then storing the
`bandwidth -- the user-selected bandwidth. And Petitioner's
`expert, Dr. Dordal concerned -- confirmed that incorporating
`that limited disclosure from Rupp would have been a very easy
`task for a skilled artisan at the time. And then a person of
`ordinary skill would have had a reasonable expectation of
`success.
` With respect to that specific combination of Rupp
`features, Dr. Dordal's testimony is the only testimony that
`was presented in these IPRs. Instead of disputing that, what
`Patent Owner did is, they contended that the entirety of Rupp
`has to be incorporated into Chandran to argue, supposedly,
`that there's no reasonable expectation of success.
` And this was confirmed by Patent Owner's own expert.
`During his deposition, he was asked, "What components shown in
`Figure 1 of Rupp, if any, would you not have to include in the
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`Chandran?" And his response was, "At most, perhaps. Perhaps,
`you could remove one of the Cisco routers because it appears
`you have multiple ones of those."
` And then he was asked, "Would you have to
`incorporate the campus network into Chandran?" And his
`response to that was, I believe that's where you would connect
`to. So in Dr. Stubblebine's opinion, you would have to
`physically insert Chandran into Rupp, where the campus network
`is, in order to combine the two. That is not how you perform
`an obviousness analysis.
` Now, moving on to Slide 73, the components that are
`actually shown in Figure 1 of Rupp, they aren't needed for
`Petitioner's proposed combination. They aren't used to store
`user-selected bandwidths, which is all Petitioner is relying
`on Rupp for.
` For example, the Cisco internet routers, those
`routers distribute the user traffic to the billing gateway.
`So it's distributing the internet traffic, so the billing
`gateways can meter the usage and address the service quality.
`It's not being used to store a selected bandwidth.
` And the same thing with the supervisor process. The
`supervisor process is shown in the top right of Figure 1 of
`Rupp. Rupp says that, "The supervisor process orders the
`billing gateway to treat the user's connection according to
`the selected quality level." That's already being done for
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`Chandra's algorithm for managing bandwidth. So it's not part
`of the proposed combination.
` And then the same thing with the billing gateway,
`the Cisco 7200 Router, and also, what's referred to in Rupp,
`as the offline analysis, that's also shown the top right of
`Figure 1. Those components are not being used to store a
`selected bandwidth.
` And then Dr. Dordal, moving on to the next side, he
`confirmed this as well. He testified that the technical
`features in Figure 1 would not have to be incorporated into
`Chandran, other than the -- that the user profile for storing
`the selected bandwidth and making that modification would have
`been a very easy task.
` So therefore, we think Patent Owner's final argument
`with respect to this combination is also incorrect. And we
`think the challenged claims are invalid, based on the
`combination of Chandran and Rupp.
` Now, unless anybody has questions, I'll move on to
`the first round of invalidity? Okay. If you could please
`turn to Slide 10.
` And I apologize for jumping back and forth like
`this. I just wanted to come up with the most logical way to
`do it. So Petitioner's Ground 1 is based on the combination
`of Bonomi and Borella. And as shown on Slide 11, both of
`those references are also directed towards bandwidth
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`management.
` Bonomi, for example, talks about, "An integrated
`traffic shaper used in a packet switch network." And then,
`similarly, Borella, talks about, "Assigning priority or class
`as a service of messages delivered in a packet-based network,
`according to the user's requirements, including bandwidth."
` Now, looking at Slide 12, Bonomi is the primary
`reference used in these combinations. And we think it
`discloses all limitations, except for a device that is a user
`device and selecting bandwidth by a user. But, again, it
`discloses everything else, and I'll quickly walk through that
`as well.
` So going to Slide 13, Bonomi discloses the preamble.
`It talks about -- again, it talks about a traffic shaper. And
`this traffic shaper manages the user's -- not the user -- a
`connection's bandwidth amount. So in Column 2, Lines 14 to
`20, it talks about how, "Connections contract to transmit
`cells, including choosing a bandwidth."
` And then Slide 14, Bonomi discloses the first and
`second network interfaces. This is shown in Figure 1. On the
`left of Figure 1 is the first network interface, and that's
`connecting the system of Bonomi to the user device. And on
`the right is the second network interface, which connects the
`system of Bonomi to the external network.
` Now, moving on to Slide 15, Bonomi discloses a data
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`storage system that includes a bandwidth. And, specifically,
`Bonomi shows us, in Figure 6, where there is a Connection
`Table 400. And that connection table includes certain fields,
`including the shaping rate row. The shaping rate is the
`bandwidth, according to Bonomi.
` And then moving on to the next slide and the next
`limitation. Bonomi also discloses a processor that calculates
`a delay period, based on the bandwidth. I think this is the
`primary disputed limitation between the two parties. In our
`view, Bonomi clearly discloses this limitation. And I'll
`start discussing that on Slide 17.
` JUDGE MELVIN: Do you agree this is, primarily, an
`issue of claim construction?
` MR. LESOVITZ: Not necessarily. I don't. Patent
`Owner's proposed that claim construction of “delay period” to be
`a specific length of time in, for example, minutes or seconds.
`In our view, even if you go with that narrow construction,
`Bonomi still meets that construction because it discloses,
`alternatively, something that's referred to as a conformance
`time.
` And a “conformance time” is a time in the future that
`a packet will be sent. And that “conformance time” is
`calculated. So it's a calculated delay in units of time. So
`in our view, we don't think it matters what the construction
`is. We don't think the correct construction, under the
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`broadest reasonable interpretation, is so narrow that it would
`require a length of time in units of time. But in our view,
`it doesn't matter.
` JUDGE MEDLEY: So you're saying that conformance
`time meets even their construction?
` MR. LESOVITZ: Correct. That's correct, Your Honor.
` JUDGE MEDLEY: So maybe if you could walk us through
`that, that would be awesome.
` MR. LESOVITZ: Sure. Now, I just want to make clear
`that Petitioner's primary argument is that the calculated bin
`meets the delay period, but if you want me to start with the
`conformance time, I can certainly walk through that as well.
`
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