UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`
`Petitioner,
`
`v.
`
`NOMADIX, INC.,
`
`Patent Owner.
`
`U.S. Patent No. 7,953,857 to Short et al.
`Issued: May 31, 2011
`Filed: April 30, 2010
`
`Title: SYSTEMS AND METHODS FOR DYNAMIC DATA TRANSFER
`MANAGEMENT ON A PER SUBSCRIBER BASIS IN A COMMUNICATIONS
`NETWORK
`
`____________
`
`IPR2019-00211
`
`____________
`
`Corrected Declaration of Dr. Peter Dordal
`
`GUEST TEK EXHIBIT 1002
`Guest Tek v. Nomadix, IPR2019-00211
`
`
`____________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`
`Petitioner,
`
`v.
`
`NOMADIX, INC.,
`
`Patent Owner.
`
`U.S. Patent No. 7,953,857 to Short et al.
`Issued: May 31, 2011
`Filed: April 30, 2010
`
`Title: SYSTEMS AND METHODS FOR DYNAMIC DATA TRANSFER
`MANAGEMENT ON A PER SUBSCRIBER BASIS IN A COMMUNICATIONS
`NETWORK
`
`____________
`
`IPR2019-00211
`
`____________
`
`Corrected Declaration of Dr. Peter Dordal
`
`GUEST TEK EXHIBIT 1002
`Guest Tek v. Nomadix, IPR2019-00211
`
`
`
`TABLE OF CONTENTS
`
`X.
`
`INTRODUCTION ........................................................................................... 1
`I.
`QUALIFICATIONS AND PROFESSIONAL EXPERIENCE ...................... 1
`II.
`III. MATERIALS CONSIDERED IN FORMING MY OPINIONS .................... 3
`SUMMARY OF OPINION ............................................................................. 3
`IV.
`V.
`UNDERSTANDING OF LEGAL PRINCIPLES ........................................... 4
`VI.
`THE ‘857 PATENT ......................................................................................... 7
`VII. CLAIM CONSTRUCTION .......................................................................... 10
`VIII. LEVEL OF ORDINARY SKILL IN THE ART ........................................... 12
`IX.
`TECHNICAL BACKGROUND AND STATE OF THE ART AT TIME OF
`ALLEGED INVENTION .............................................................................. 14
`OVERVIEW OF SPECIFIC PRIOR ART .................................................... 21
`A.
`U.S. Patent No. 5,864,540 (“Bonomi”) ............................................... 21
`B.
`U.S. Patent No. 7,392,279 (“Chandran”) ............................................ 25
`U.S. Patent No. 6,587,433 (“Borella”) ................................................ 28
`C.
`D.
`INDEX Project Report #98-010P (“Report #98-010P”) ..................... 29
`E.
`U.S. Patent No. 5,623,492 (“Teraslinna”) ........................................... 32
`XI. OPINIONS REGARDING OBVIOUSNESS OF CLAIMS 1 AND 9 OF THE
`‘857 PATENT ................................................................................................ 34
`A. My Opinion Regarding the Combination of Bonomi and Borella ...... 34
`B. My Opinion Regarding the Combination of Chandran and Report #98-
`010P ..................................................................................................... 43
`C. My Opinion Regarding the Combination of Teraslinna and Bonomi...50
`
`i
`
`
`
`
`
`I.
`
`INTRODUCTION
`1. My name is Dr. Peter Dordal, and I have been retained as a technical
`
`expert by counsel for Petitioner Guest-Tek Interactive Entertainment Ltd. to provide
`
`assistance in the above captioned inter partes review proceeding. Specifically, I
`
`have been asked by counsel to opine on the validity of claims 1 and 9 of U.S. Patent
`
`No. 7,953,857 (“the ‘857 patent”). This report contains a statement of my opinions
`
`formed in this matter and provides the bases and reasons for those opinions. I make
`
`the following statements based on my own personal knowledge and, if called as a
`
`witness, I could and would testify to the following.
`
`II. QUALIFICATIONS AND PROFESSIONAL EXPERIENCE
`2.
`I have included as Attachment A a copy of my current curriculum vitae,
`
`which provides an overview of my qualifications and professional experience in
`
`relation to this matter. To summarize, I received my undergraduate and masters’
`
`degrees in Mathematics in 1978 from the University of Chicago, and my Ph.D. in
`
`Mathematics from Harvard University in 1982.
`
`3.
`
`Since receiving my doctorate degree in 1982, I have been employed as
`
`a faculty member at Loyola University Chicago, first in the Mathematical Sciences
`
`Department and then, starting in 2001, in the newly formed Computer Science
`
`Department. I received tenure in 1988, and was at that time promoted to Associate
`
`Professor, my current rank. For the past 36 years, I have focused on teaching
`1
`
`
`
`
`
`
`
`computer programming courses to undergraduate and graduate students, including
`
`Programming Languages, Computer Networks, and Advanced TCP/IP Networks.
`
`During part of my tenure, I was Acting Chair and Graduate Program Director for the
`
`Computer Science Department. I am also currently supervising a student thesis
`
`called Software-defined Networking and Dynamic Traffic Rerouting.
`
`4.
`
`From 1984-2003, I was the System Administrator for departmental
`
`computing facilities at Loyola University. As System Administrator, my
`
`responsibilities included managing University computers and network services,
`
`supporting University workstations, and maintaining University computer labs.
`
`Sometimes this work entailed significant software development; for example, I
`
`implemented a TCP/IP layer for the University that allowed communication between
`
`computers supporting only the 3BNET networking software and a server supporting
`
`TCP/IP. My other exemplary experiences in system management and programming
`
`through the University are set forth in Attachment A.
`
`5.
`
`Since 1982, I have also spent a significant amount of time, as part of
`
`my everyday course preparation and teaching, conducting research on, as well as
`
`performing and demonstrating, computer programing and network device
`
`management and support.
`
`6.
`
`In addition to my professional experience, I have published a
`
`substantial number of books and articles on computer programming networks. For
`
`2
`
`
`
`
`
`example, I authored the book An Introduction to Computer Networks, published by
`
`Loyola University of Chicago in 2012. I also significantly contributed to the book
`
`Computer Networks: A Systems Approach, 2nd Edition, Peterson & Davie, Morgan-
`
`Kaufmann 2000, which provides computer network and protocol exercises for
`
`students. I fill list of my publications and contributions is shown in my attached
`
`curriculum vitae.
`
`7.
`
`I am a member of the Mathematical Association of America and the
`
`Association for Symbolic Logic.
`
`III. MATERIALS CONSIDERED IN FORMING MY OPINIONS
`8.
`In preparing this declaration, I have reviewed and relied on various
`
`materials, including but not limited to the following exemplary materials: (1) certain
`
`prior art, including the prior art cited in this declaration; (2) the ‘857 patent; (3) the
`
`‘857 patent’s prosecution history; and (4) all of the other materials referenced in this
`
`declaration.
`
`IV. SUMMARY OF OPINION
`9.
`As described in more detail below, it is my opinion that claims 1 and 9
`
`of the ‘857 patent would have been obvious to a person of ordinary skill in the art as
`
`of October 22, 1999, which I understand is the earliest date of the purported
`
`invention claimed in the ‘857 patent, based on any one of the following grounds:
`
`(1) Obviousness over U.S. Patent No. 5,864,540 (“Bonomi”) in view of
`
`3
`
`
`
`
`
`U.S. Patent No. 6,587,433 (“Borella”) under 35 U.S.C. § 103;
`
`(2) Obviousness over U.S. Patent No. 7,392,279 (“Chandran”) in view of
`
`IEEE’s INDEX Project Report #98-010P (“Report #98-010P”) under 35 U.S.C. §
`
`103; and
`
`(3) Obviousness over U.S. Patent No. 5,623,492 (“Teraslinna”) in view of
`
`Bonomi under 35 U.S.C. § 103.
`
`V. UNDERSTANDING OF LEGAL PRINCIPLES
`10.
`I am not a legal expert and offer no legal opinions. I have been
`
`informed by counsel, however, of the various legal standards that apply to the
`
`pertinent technical issues, and I have applied those standards in arriving at the
`
`conclusions expressed in this report. I understand that determining the validity of a
`
`patent requires a two-step analysis. First, the meaning and scope of the patent claims
`
`are construed and then the construed claims are compared to the prior art.
`
`11.
`
`It is my understanding that to prove that a claim is invalid for
`
`obviousness under 35 U.S.C. § 103, the challenger of its validity must demonstrate
`
`that, for example, two or more prior art references in combination disclose, expressly
`
`or inherently, every claim limitation and also that the claim, as a whole, would have
`
`been obvious to a person of ordinary skill in the art at the time the invention was
`
`made. The relevant standard for obviousness is as follows:
`
`
`
`4
`
`
`
`
`
`(a) A patent may not be obtained though the invention is not
`identically disclosed or described as set forth in section 102 of this
`title, if the differences between the subject matter sought to be
`patented and the prior art are such that the subject matter as a whole
`would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter
`pertains. Patentability shall not be negatived by the manner in which
`the invention was made.
`35 U.S.C. § 103.
`
`12.
`
`In determining whether or not a patented invention would have been
`
`obvious, the following factual inquiries must be made: (1) the scope and content of
`
`the prior art; (2) the differences between the prior art and the claims at issue; (3) the
`
`level of ordinary skill in the pertinent art at the time the invention was made; and (4)
`
`such secondary considerations as commercial success, long felt but unsolved needs,
`
`failure of others, etc.
`
`13.
`
`I understand that a patent composed of several elements is not proved
`
`obvious merely by demonstrating that each of its elements was, independently,
`
`known in the prior art. Most, if not all, inventions rely on building blocks of prior
`
`art. The challenger of the patent’s validity must prove that, at the time of the claimed
`
`invention, there was a reason that would have prompted a person having ordinary
`
`skill in the field of the invention to combine the known elements in a way the claimed
`
`invention does, taking into account such factors as: (1) whether the claimed
`
`invention was merely the combination of prior art elements according to known
`
`methods to yield predictable results; (2) whether the claimed invention amounted to
`
`5
`
`
`
`the simple substitution of one known element for another to obtain predictable
`
`results; (3) whether the claimed invention amounted to applying a known technique
`
`to a known device, method or product ready for improvement to yield predictable
`
`results; (4) whether the prior art teaches or suggests the desirability of combining
`
`elements claimed in the invention; and (5) whether the change resulted more from
`
`design incentives or other market forces. To find it rendered the invention obvious,
`
`the prior art must have provided a reasonable expectation of success.
`
`14.
`
`I further understand that it is not permissible to use hindsight in
`
`assessing whether a claimed invention is obvious. Rather, I understand that, to
`
`assess obviousness, you must place yourself in the shoes of a person having ordinary
`
`skill in the relevant field of technology at the time the invention was made who is
`
`trying to address the issues or solve the problems faced by the inventor, consider
`
`only what was known at the time of the invention and ignore the knowledge you
`
`currently now have of the inventions.
`
`15.
`
`I understand that certain objective evidence known as “secondary
`
`considerations,” such as commercial success, long-felt but unsolved needs, failure
`
`of others, and unexpected results, to the extent they exist, may be relevant in
`
`determining whether or not an invention would have been obvious. However, I am
`
`not aware of any such secondary considerations applicable with respect to claims 1
`
`or 9 of the ‘857 patent.
`
`6
`
`
`
`
`
`VI. THE ‘857 PATENT
`16. The ‘857 patent states that it describes systems and methods for
`
`“dynamically managing transmission of packets.” Specifically, it discloses
`
`receiving a packet from a user device and calculating a delay period associated with
`
`the packet based on a “data transmission parameter.” Abstract. The exemplary data
`
`transmission parameter specified in the patent is a bandwidth service level selected
`
`by the user. 3:30-36. A bandwidth service level is an allotted amount of bandwidth,
`
`such as 15 million bits per second, that the user’s device is allowed to use on the
`
`network. Typically, as I explain below, bandwidth service levels are selected either
`
`at the time a user subscribes to a network, at the time of provisioning, or at some
`
`later point. Some embodiments of the ‘857 patent allow the user to change his or
`
`her bandwidth level subsequently during network operation. 9:60-63.
`
`17. Once the delay period is determined based on the selected bandwidth
`
`level, the systems and methods delay transmission of the packet based on the delay
`
`period. Abstract. To accomplish the delay, the ‘857 patent employs what’s known
`
`in the prior art as a traffic shaper, or traffic policer. As is typical in the art, the traffic
`
`shaper uses a queue for storing and prioritizing transmission of packets. The queue
`
`is implemented as what the patent refers to as a ring buffer (7:58-62), most often
`
`referred to in the literature as a calendar queue. Eugen Wallmeier and Tom Worster,
`
`
`
`7
`
`
`
`
`
`“The Spacing Policer, an algorithm for efficient peak bit rate control in ATM
`
`networks”, Proc. International Switching Symposium 14, October 1992, pp 22-26.
`
`FIG. 3 illustrates how the ring buffer works:
`
`
`
`As shown, a queue 60 is implemented in the uplink direction for transmitting packets
`
`to network 40 and another queue 70 in the downlink direction for receiving packets
`
`from network 40. The patent describes each queue 60, 70 being implemented by a
`
`ring buffer. A ring buffer here is a list of subqueues. Each subqueue is associated
`
`with a future time which represents the time at which packets in that subqueue may
`
`be transmitted; the subqueues are therefore often referred to as “timeslots”. When a
`
`packet is received by gateway device 10, the processor determines whether a packet
`
`is designated for “unlimited” bandwidth. If it isn’t, a “calculation is made to quantify
`
`8
`
`
`
`
`
`the difference between the bandwidth available to the subscriber and the bandwidth
`
`currently being used.” 13:46-51. Based on the calculation, the packet is placed in
`
`the appropriate timeslot on the ring buffer. The packet is delayed on the ring buffer
`
`for the calculated delay period “so that the ultimate delivery of a packet will not
`
`produce a bandwidth greater than that selected . . . by the user/subscriber.” 9:32-50.
`
`18. As mentioned, I have been asked to opine on the validity of claims 1
`
`and 9 of the ‘857 patent. Claim 1 recites a “system for allowing a user to dynamically
`
`control an amount of bandwidth available to the user in a network.” Claim 9 recites
`
`most of the same limitations of claim 1, except claim 9 is in method form, directed
`
`to “A method of dynamically managing transmission of packets.”
`
`19. The full language of the claims is as follows, where the individual
`
`subparagraphs have been designated (1.a)-(1.e) and (9.a)-(9.d) for convenient
`
`reference:
`
`1. A system for allowing a user to dynamically control an amount of
`bandwidth available to the user in a network, the system comprising:
`
`[1.a] a first network interface for communicating over a communication
`link with a user device during a network session;
`
`[1.b] a second network interface for communicating with one or more
`computer networks;
`
`[1.c] a data storage system including an indication of a network
`communication bandwidth associated with the user device and selected
`by the user; and
`
`
`9
`
`
`
`
`
`[1.d] a processor configured to calculate a delay period associated with a
`received packet based on the network communication bandwidth
`associated with the user, and
`
`[1.e] 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.
`
`
`9. A method of dynamically managing transmission of packets, the method
`comprising:
`
`[9.a] establishing a network session over a communication link between
`a network and a user device of a user;
`
`[9.b] associating a data transmission parameter selected by the user with
`the user device;
`
`[9.c] receiving a packet and calculating a delay period associated with the
`packet based on the data transmission parameter; and
`
`[9.d] 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.
`
`VII. CLAIM CONSTRUCTION
`20.
`I understand that the earliest supposedly related application cited on the
`
`face of the ‘857 patent is U.S. provisional application no. 60/161,182, filed on
`
`October 22, 1999. For purposes of this declaration, I have assumed that the ‘857
`
`patent is entitled to this priority date. I have not undertook my own analysis of
`
`whether claims 1 and 9 are actually entitlted to that priority date, as I understand that
`
`the priority date does not matter in view of the relevant dates of the prior art that I
`
`10
`
`
`
`
`
`rely on in this declaration.
`
`21.
`
`I also understand that the terms of the unexpired ‘857 patent claims are
`
`to be given their broadest reasonable interpretation as understood by one of ordinary
`
`skill in the art at the time of the alleged invention in view of the ‘857 patent’s
`
`specification. As such, in this declaration, I have opined on the validity of claims 1
`
`and 9 using their broadest reasonable interpretation.
`
`22.
`
`In my opinion, the term “processor” in claim 1 means hardware or
`
`software that processes data. For example, claim 1 describes the processor as “a
`
`processor configured to calculate a delay period.” The patent also states that the
`
`processor may be hardware or software. Bandwidth module 32 includes the
`
`processor. The patent explains that bandwidth module 32 is typically implemented
`
`in software. 8:20-22 (“bandwidth manager 30 comprises a subscriber selectable
`
`bandwidth module 32 . . . which [is] typically implemented in software.”). This
`
`means that while the processor is typically software, it may be comprised fully of
`
`hardware instead. That is consistent with the usage of the term “processor” back in
`
`the late 1990s. Processors could be implemented as computer chips or circuitry,
`
`such as an arithmetic logic unit (ALU), that processes commands and instructions
`
`for driving a computer. Or those in the computer field often referred to processors
`
`as a combination of the hardware and software that runs the computer.
`
`23.
`
`“Data storage system” in claim 1 means a system that saves or
`
`11
`
`
`
`
`
`maintains data in one or more tables, memory, or other structures. For example, the
`
`‘857 patent at column 12, lines 49-50 explains that “an entry in the memory module,
`
`typically a hash table, is created,” and column 8, lines 49-51 says “subscriber
`
`selectable bandwidth module 32 places the packet in memory in a virtual queue for
`
`later delivery.” In terms of computer technology in the late 1990s, databases, logical
`
`and physical tables, random access memory (RAM), flash memory, and hard disk
`
`drives were all well -known systems for storing data. Each of those exemplary types
`
`of data storage would qualify as data storage systems in terms of the ‘857 patent.
`
`VIII. LEVEL OF ORDINARY SKILL IN THE ART
`24.
`I understand there is a concept in patent law known as the “person
`
`having ordinary skill in the art.” I understand that this concept refers to a person
`
`who is trained in the relevant technical field of a patent without possessing
`
`extraordinary or otherwise exceptional skill. I further understand that factors such
`
`as the educational level of those working in the field, the sophistication of the
`
`technology, the types of problems encountered in the art, prior art solutions to those
`
`problems, and the speed at which innovations are made may help establish the level
`
`of skill in the art.
`
`25.
`
`In my opinion, the field of the ‘857 patent is systems and methods for
`
`managing bandwidth in a communications network. Based on the factors mentioned
`
`above, a person of ordinary skill in the art of the ‘857 patent as of October 22, 1999
`
`12
`
`
`
`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
`
`programmng computer networks.
`
`26. Based at least on my educational and work experience referenced above
`
`and in my attached curriculum vitae, it is my opinion that I qualify as a person of
`
`ordinary skill in the art now, and would have qualified as one at least as of October
`
`22, 1999. Again, I have advanced degrees in mathematics, a subject directly related
`
`to computer programming. In fact, many practicing computer scientists in the 1990s
`
`had mathematics degrees (rather than computer science degrees), as the algorithms
`
`and problem solving processes used in computer programming originated in
`
`mathematics. (Many computer scientists in the 1990s did not have any formal
`
`degrees at all, and were self-taught through informal study and research.) In
`
`addition, I have informal education commensurate to a formal computer science
`
`degee from over 35 years of studying and teaching computer programming and
`
`designing computer networks, with well over 25 years of cumulative hands-on
`
`experience designing and programming computer networks through my research and
`
`work at Loyola University.
`
`13
`
`
`
`
`
`IX. TECHNICAL BACKGROUND AND STATE OF THE ART AT TIME
`OF ALLEGED INVENTION
`27. As mentioned, the ‘857 patent involves systems and methods of
`
`dynamically managing network transmission of data packets using bandwidth
`
`constraints selected by the user. I will give an overview of these concepts as known
`
`as of October 22, 1999.
`
`Network communications
`
`28. Computers on a network communicate by sending what is referred to
`
`as data “packets” to each other through network interfaces on the computers. A
`
`packet is a string of data transmitted over a network, such as an Intranet or Internet.
`
`Packets are composed of headers, which include control information, and bodies,
`
`which contain the payload or actual content of the transmission (such as a request
`
`for Internet data or the requested data sent in response). Whenever a user’s device,
`
`such as a computer, smartphone, cable television modem, or laptop, sends or
`
`receives information over the Internet, the data sent or received is in the form of data
`
`packets.
`
`Packet Transmission and Network Bandwidth
`
`29. Packets are transmitted over networks from one device to another at
`
`different speeds. The speed at which packets are transmitted from one point to
`
`another is referred to as network “bandwidth.” Today, 15 million bits per second
`
`
`
`14
`
`
`
`
`
`(15 Mbps) is the bandwidth that many Internet providers will provide to network
`
`users. So using that bandwidth as an example, 15 million bits of data in the form of
`
`packets would be transmitted per second over the network. The overall Internet
`
`speed will vary though depending on location, quality of infrastructure, and number
`
`of users on the network.
`
`30. One problem with too many users on a network is the possibility of
`
`network congestion. During peak Internet usage, for example, the connections that
`
`form the basis of the Internet infrastructure will become bottle-necked, or congested,
`
`due to too many users sending and receiving information at once. As a result,
`
`network administrators limited users to an allotted amount of bandwidth. Those
`
`limits may be imposed on a per user basis (i.e., user A is allotted 15 Mbps of
`
`bandwidth for his or her associated devices).
`
`Bandwidth Allocation
`
`31. Typically, in the late 1990s, the amount of bandwidth allotted to
`
`network devices was negotiated by users and network administrators when the users
`
`subscribed to a network. In fact, network standards at the time specified user-
`
`negotiation and selection of bandwidth constraints. For example, ATM Forum
`
`Traffic Management Specification version 4.0, af-tm-0056.000, April 1996, which
`
`I’ll refer to as “AF-TM,” describes network traffic management of “ATM”
`
`networks. ATM networks are computer networks that use asynchronous transfer
`
`15
`
`
`
`mode, which is a high-speed networking standard for networks that carry a complete
`
`range of user traffic, such as voice, data, and video signals. ATM networks are an
`
`alternative to the Internet Protocol (IP) network that is today's Internet; while ATM
`
`is seldom used today, the ideas underlying ATM and IP are largely interchangeable,
`
`and any bandwidth-constraining mechanism developed
`
`for one can be
`
`straightforwardly applied to the other as well.
`
`32. ATM users are permitted to select an allotted amount of bandwidth at
`
`the time each connection is made. See, for example, U.S. Patent No. 5,623,492 at
`
`column 1, lines 58-63, which describes a traffic contract negotiated between a
`
`subscriber and network administrator, including a selection of a bandwidth
`
`constraint. When a user negotiates an ATM connection, also called a virtual circuit,
`
`the user first identifies a service category, such as CBR, rt-VBR, nrt-VBR, UBR, or
`
`ABR. For each service category there is a set of traffic contract parameters that must
`
`be negotiated, such as Peak Cell Rate (PCR) [in ATM, packets are of fixed size, and
`
`are commonly referred to as cells], Sustainable Cell Rate (SCR), Burst Tolerance
`
`(BT), Maximum Burst Size (MBS), and Cell Delay Variation Tolerance (CDVT).
`
`The SCR is the parameter that represents “bandwidth” in the colloquial sense.
`
`33.
`
`For example, for the nrt-VBR category (non-real-time Variable Bit
`
`Rate), the user must specify the SCR, the PCR, the BT and the CDVT; the last
`
`parameter can be assigned a default value [AF-TM, p. 27]. Typically the traffic
`
`16
`
`
`
`
`
`parameters requested by the user are granted fully; in some instances the UNI may
`
`commence negotiation of lower values.
`
`34. The traffic contract at the Public UNI [User-Network Interface]
`
`consists of a connection traffic descriptor and a set of quality of service parameters
`
`for each direction of the connection and includes the definition of a compliant
`
`connection [AF-TM, p. 19].
`
`35. The UNI then must store the traffic-contract information for the lifetime
`
`of the connection, in order to verify that, at the UNI, the user’s traffic remains within
`
`the negotiated bounds, including the negotiated SCR.
`
`36.
`
`In the late 1990s, network administrators more frequently implemented
`
`techniques that allowed users to change their allotted bandwidth amounts, or
`
`sometimes other network service parameters, during network operation. This was
`
`necessitated by the fact that users often changed the type of application they were
`
`using, and different applications necessitate different bandwidth requirements. For
`
`example, voice over IP requires a moderately high bandwidth amount, coupled with
`
`low transmission delay, to transmit voice data in real time, whereas reading text-
`
`based email typically requires much less bandwidth. Web browsing at text-based
`
`sites similarly requires less bandwidth; browsing at graphics-intensive sites, or sites
`
`using video, requires greater amounts of bandwidth. As explained below, various
`
`prior art references, including U.S. Patent No. 6,587,433 and Report #98-010P
`
`17
`
`
`
`
`
`disclosed user interfaces for changing allotted bandwidths on demand.
`
`Bandwidth Pricing
`
`37. There has been longstanding interest in pricing strategies for Internet
`
`access. See Jeffrey MacKie-Mason, Pricing the Internet, February 10, 1994
`
`(“Pricing the Internet”); Mitrabarun Sarkar, An Assessment of Pricing Mechanisms
`
`for the Internet—A Regulatory Imperative, Journal of Electronic Publishing,
`
`Volume 1, Issue 1&2, January-February 1995 (“An Assessment of Pricing
`
`Mechanisms for the Internet”); and Andrew M Odlyzko, The economics of the
`
`Internet: Utility, utilization, pricing, and Quality of Service, AT&T Labs, July 7,
`
`1998 (“The Economics of the Internet”). The usual goal has been to charge users
`
`depending on the bandwidth negotiated.
`
`38. Pricing the Internet states, of pricing for institutional access, “All of the
`
`providers use the same type of pricing: an annual fee for unlimited access, based on
`
`the bandwidth of the connection.” An Assessment of Pricing Mechanisms for the
`
`Internet refers to “the present system of flat-rate, predictable pricing for a fixed
`
`bandwidth connection.” The Economics of the Internet explains “The need for
`
`usage-sensitive pricing has seemed obvious to many on the general grounds of
`
`‘tragedy of the commons.’” The goal of Internet pricing is in part to charge each
`
`user fairly for the resources consumed, and in part to avoid demand spikes that lead
`
`to significant Internet congestion. Therefore, practitioners seeking to enable Internet
`
`18
`
`
`
`
`
`service for multiple users, as of 1999, were aware of the idea of limiting access
`
`through bandwidth caps per user and charging users according to the amount of
`
`bandwidth chosen, rather than a flat rate. See also IEEE’s Index Project Report #99-
`
`010W (April 16, 1999).
`
`Bandwidth Policing and Shaping
`
`39. The problem of enforcing limits on bandwidth usage to prevent traffic
`
`congestion and avoid problems with network demand spikes was well known in the
`
`prior art. Indeed, by 1999, there were several techniques used by network
`
`administrators in the 1990s to make sure selected bandwidth parameters and other
`
`traffic parameters are not exceeded by the user. Systems could either (1) drop
`
`packets sent from users when transmitting the packets would result in exceeding the
`
`allotted bandwidth; (2) delay packet transmission until the packets could be
`
`transmitted without exceeding the allotted bandwidth; or (3) transmit packets as low
`
`priority, and drop them later if the network bandwidth is subsequently determined
`
`to be exceeded.
`
`40. As to the second technique, prior art systems used, for example, a
`
`“token” bucket or “leaky” bucket algorithm to determine if a packet needs to be
`
`delayed and how long to delay the packet. See U.S. Patent No. 7,392,279 at column
`
`4, lines 60-64, which explains that, as to prior art traffic policers, “a policing policy
`
`specif[ied] the criteria for transmitting, dropping and buffering. Many such policing
`
`19
`
`
`
`
`
`algorithms may be employed. Examples include ‘token bucket’ and ‘leaky bucket’
`
`algorithms.”
`
`41. Token and leaky bucket algorithms were frequently used in ATM
`
`networks in the 1990s. As to those algorithms, each cell arriving at the traffic shaper
`
`or policer must claim a token to pass through the shaper; if no tokens are available,
`
`the cell is considered “nonconforming” and is dropped or delayed until a token is
`
`available when the connection conforms to the traffic contract. A cell’s
`
`conformance time is the time at which a token is available; a packet delayed by the
`
`shaper until its conformance time becomes conformant to its connection’s traffic
`
`specification. The difference between the conformance time and the current time
`
`represents the necessary packet delay. U.S. Patent No. 5,864,540, column 2, lines
`
`36-56, describes typical token and leaky bucket algorithms implemented in the
`
`1990s.
`
`42. Likewise, AF-TM describes the use of token or leaky bucket algorithms
`
`(the two forms are equivalent) used by the UNI, and possibly other ATM switches
`
`in the network, referred to as the token/leaky bucket Generic Cell Rate Algorithm,
`
`or GCRA [AF-TM, sections 4.4, 4.4.2]. The GCRA algorithm, particularly with
`
`respect to nrt-VBR, used the bandwidth amount (i.e., Sustainable Cell Rate, or SCR)
`
`and a burst parameter BT to determine whether an arriving cell was “conforming”
`
`or “non-conforming” [AF-TM, sections 4.4.2, 4.4.4.2, 4.5.2]. The connection’s SCR
`
`20
`
`
`
`
`
`and BT are determined by the connection’s traffic parameters negotiated at the time
`
`the connection was initiated. The GCRA algorithm is used to compute conformance
`
`based on the SCR and BT and when the last cell arrived at the shaper from that
`
`connection (AF-TM, Figure 4-1].
`
`43. The standardized GCRA algorithm, like other token or leaky bucket
`
`algorithms, was used in traffic shaping and traffic policing.
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