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
`
`____________
`
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 7,953,857
`
`
`FILED ELECTRONICALLY UNDER 37 C.F.R. § 42.6(b)(1)
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`

`

`TABLE OF CONTENTS
`
`LISTING OF EXHIBITS ......................................................................................... iv 
`I. 
`INTRODUCTION ........................................................................................... 1 
`II.  MANDATORY NOTICES UNDER 37 C.F.R. § 42.8 ................................... 2 
`A. 
`Real Party-in-Interest [37 C.F.R. § 42.8(b)(1)] ..................................... 2 
`B. 
`Related Matters [37 C.F.R. § 42.8(b)(2)] .............................................. 2 
`C. 
`Lead and Backup Counsel; Service Information [37 C.F.R. §§
`42.8(b)(3)-(4)] ....................................................................................... 2 
`III.  REQUIREMENTS UNDER 37 C.F.R. §§ 42.103 and 42.104 ....................... 3 
`A. 
`Payment of Fees [37 C.F.R. § 42.103] .................................................. 3 
`B. 
`Grounds for Standing [37 C.F.R. § 42.104(a)] ..................................... 4 
`IV.  RELIEF REQUESTED [37 C.F.R. § 42.22(a)] .............................................. 4 
`V. 
`THE ’857 PATENT ......................................................................................... 4 
`A.  Overview of Patent ................................................................................ 4 
`B. 
`Prosecution History for the ’857 Patent ................................................ 6 
`C. 
`Claims at Issue ....................................................................................... 7 
`D. 
`Claim Construction ............................................................................... 9 
`VI.  PERSON OF ORDINARY SKILL IN THE ART .......................................... 9 
`VII.  PRIOR ART ................................................................................................... 10 
`A. 
`’540 Patent (Ex. 1004) ........................................................................ 12 
`B. 
`’279 Patent (Ex. 1005) ........................................................................ 14 
`C. 
`’433 Patent (Ex. 1006) ........................................................................ 17 
`D. 
`98-010P Report (Ex. 1007) ................................................................. 18 
`
`i
`
`

`

`B. 
`C. 
`
`’492 Patent (Ex. 1008) ........................................................................ 21 
`E. 
`VIII.  CLAIMS 1 AND 9 ARE OBVIOUS OVER THE ’540 PATENT IN VIEW
`OF THE ’433 PATENT. ................................................................................ 23 
`A. 
`The ’540 patent discloses all limitations of the claims, except for the
`limitations reciting a “user device” and bandwidths selected by the
`“user.” .................................................................................................. 24 
`The ’433 patent discloses the remaining limitations of the claims. .... 32 
`A POSITA would have been motivated to combine the ’540 patent
`with the ’433 patent to arrive at claims 1 and 9. ................................. 35 
`IX.  CLAIMS 1 AND 9 ARE OBVIOUS OVER THE ’279 PATENT IN VIEW
`OF THE 98-010P REPORT. ......................................................................... 41 
`A. 
`The ’279 patent discloses all limitations of the claims, except for
`limitations [1.C] and [9.B]. ................................................................. 41 
`The 98-010P Report discloses the remaining limitations of claims 1
`and 9. ................................................................................................... 47 
`A POSITA would have been motivated to combine the ’279 patent
`with the 98-010P Report to arrive at claims 1 and 9. .......................... 50 
`CLAIMS 1 AND 9 ARE OBVIOUS OVER THE ’492 PATENT IN VIEW
`OF THE ’540 PATENT. ................................................................................ 55 
`A. 
`The ’492 patent discloses all limitations of claims 1 and 9, except for
`the limitations regarding calculating a delay period and delaying
`transmission based on the delay period. .............................................. 55 
`The ’540 patent discloses the remaining limitations of claims 1 and 9.
` ............................................................................................................. 63 
`A POSITA would have been motivated to combine the ’492 and ’540
`patents to arrive at claims 1 and 9. ...................................................... 64 
`XI.  CONCLUSION .............................................................................................. 68
`
`B. 
`
`C. 
`
`X. 
`
`B. 
`
`C. 
`
`ii
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`

`

`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`Nomadix, Inc. v. Guest-Tek Interactive Entertainment Ltd.,
`Case No. 2:16-CV-08033-AB-FFM ..................................................................... 2
`Statutes
`35 U.S.C. § 102 ........................................................................................................ 10
`35 U.S.C. § 103 ..................................................................................... 2, 4,10, 23, 67
`35 U.S.C. § 311 .......................................................................................................... 1
`35 U.S.C. § 315(a)-(b) ............................................................................................... 4
`Other Authorities
`37 C.F.R. § 42.8 ......................................................................................................... 2
`37 C.F.R. § 42.22(a) ................................................................................................... 4
`37 C.F.R. § 42.100 ................................................................................................. 1, 9
`37 C.F.R. § 42.101 – 42.104 .................................................................................. 3, 4
`
`
`
`iii
`
`

`

`
`
`LISTING OF EXHIBITS
`
`Exhibit No.
`1001
`1002
`1003
`1004
`1005
`1006
`1007
`1008
`1009
`1010
`1011
`1012
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`Description
`U.S. Patent No. 7,953,857
`Declaration of Dr. Peter Dordal
`Excerpts from Prosecution History of U.S. Patent No.
`7,953,857
`U.S. Patent No. 5,864,540
`U.S. Patent No. 7,392,279
`U.S. Patent No. 6,587,433
`IEEE, INDEX Project Report #98-010P (May 1998)
`U.S. Patent No. 5,623,492
`IEEE, INDEX Project Report #99-010W (April 16, 1999)
`U.S. Patent No. 6,496,504
`Blake et al., Request for Comments 2475: An Architecture
`for Differentiated Services, IETF (Dec. 1998)
`Declaration of Gerard P. Grenier of IEEE
`Printout from IEEE website regarding INDEX Project
`Report #98-010P
`IETF, Request for Comment 2597: Assured Forwarding
`PHB Group (June 1999)
`Andrew M Odlyzko, The economics of the Internet: Utility,
`utilization, pricing, and Quality of Service, AT&T Labs,
`July 7, 1998
`The ATM Forum, Traffic Management Specification
`Version 4.0, af-tm-0056.000 (April 1996)
`Jeffrey MacKie-Mason, Pricing the Internet, February 10,
`1994
`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
`
`iv
`
`

`

`Andrew M Odlyzko, The economics of the Internet: Utility,
`utilization, pricing, and Quality of Service, AT&T Labs,
`July 7, 1998
`Pages from Electronics Dictionary, McGraw-Hill, 6th ed.
`(1997)
`Eugen Wallmeier and Tom Worster, “The Spacing Policer,
`an algorithm for efficient peak bit rate control in ATM
`networks”, Proc. International Switching Symposium 14,
`October 1992
`
`1019
`
`1020
`
`1021
`
`
`
`
`
`v
`
`

`

`
`
`I.
`
`IPR2019-00211
`U.S. Patent No. 7,953,857
`
`INTRODUCTION
`Guest Tek Interactive Entertainment Ltd. petitions for inter partes review, in
`
`accordance with 35 U.S.C. § 311 and 37 C.F.R. § 42.100, and cancellation of
`
`claims 1 and 9 of U.S. Patent No. 7,953,857 (Ex. 1001 or “’857 patent”)
`
`purportedly owned by Nomadix, Inc.
`
`The alleged invention of the ’857 patent is “providing dynamic bandwidth
`
`management on a per subscriber basis in a communications network.” Ex. 1001 at
`
`1:20-22. But bandwidth management as in the ’857 patent, by queuing data
`
`packets for a delay period until the bandwidth conforms to an allotted bandwidth
`
`amount, existed well before the patent’s effective filing date.
`
`U.S. Patent Nos. 5,864,540 and 7,392,279, for instance, each disclose most
`
`elements of claims 1 and 9 of the ’857 patent, including enforcing bandwidth
`
`constraints by delaying packet transmission over networks. Although those
`
`references do not expressly disclose enforcing bandwidth constraints that are
`
`selected by users and associated with user devices, this aspect – the apparent basis
`
`for issuance of claims 1 and 9 – was well-known in the art. For example, U.S.
`
`Patent Nos. 6,587,433 and 5,623,492 and IEEE’s INDEX Project Report #98-010P
`
`each discloses systems and methods for allowing users to select bandwidth
`
`constraints associated with the users’ devices for bandwidth management.
`
`1
`
`

`

`
`
`IPR2019-00211
`U.S. Patent No. 7,953,857
`
`As Dr. Peter Dordal, an expert in the field who qualified as a person of
`
`ordinary skill in the art at the relevant time, explains in his accompanying
`
`declaration (Exhibit 1002, “Dr. Dordal Decl.”), providing user-selection of
`
`bandwidth constraints was a well-known technique for fairly allocating and
`
`charging for bandwidth usage before the ’857 patent. For this and various other
`
`reasons explained, a skilled artisan would have been motivated to combine the
`
`relevant aspects of the cited prior art to arrive at claims 1 and 9 of the ’857 patent.
`
`Accordingly, the claims would have been obvious under 35 U.S.C. § 103.
`
`II. MANDATORY NOTICES UNDER 37 C.F.R. § 42.8
`A. Real Party-in-Interest [37 C.F.R. § 42.8(b)(1)]
`Guest Tek Interactive Entertainment Ltd. is the real party-in-interest.
`
`
`
`B. Related Matters [37 C.F.R. § 42.8(b)(2)]
`Nomadix is currently asserting the ’857 patent against Guest Tek in claims
`
`for breach of a license agreement in Nomadix, Inc. v. Guest Tek Interactive
`
`Entertainment Ltd., Case No. 2:16-CV-08033-AB-FFM, pending in the United
`
`States District Court for the Central District of California (“the Litigation”).
`
`C. Lead and Backup Counsel; Service Information [37 C.F.R. §§
`42.8(b)(3)-(4)]
`Guest Tek’s lead counsel is:
`
`
`
`Jeffrey W. Lesovitz (Reg. No. 63,461)
`Baker & Hostetler LLP
`
`2
`
`

`

`IPR2019-00211
`U.S. Patent No. 7,953,857
`
`
`
`
`
`
`
`
`
`
`
`Cira Centre, 12th Floor
`Philadelphia, PA 19104-2891
`T (215) 568-3100
`F (215) 568-3439
`jlesovitz@bakerlaw.com
`
`Guest Tek’s backup counsel are:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Steven J. Rocci (Reg. No. 30,489)
`Baker & Hostetler LLP
`Cira Centre, 12th Floor
`Philadelphia, PA 19104-2891
`T (215) 568-3100
`F (215) 568-3439
`srocci@bakerlaw.com
`
`Daniel J. Goettle (Reg. No. 50,983)
`Baker & Hostetler LLP
`Cira Centre, 12th Floor
`Philadelphia, PA 19104-2891
`T (215) 568-3100
`F (215) 568-3439
`dgoettle@bakerlaw.com
`
`Please direct all correspondence about this petition to lead counsel. Guest
`
`Tek also consents to email service at Guest-TekIPR@bakerlaw.com.
`
`III. REQUIREMENTS UNDER 37 C.F.R. §§ 42.103 and 42.104
`A.
`Payment of Fees [37 C.F.R. § 42.103]
`Guest Tek authorizes the USPTO to charge Deposit Account No. 233050 for
`
`all fees associated with this petition.
`
`3
`
`

`

`
`
`IPR2019-00211
`U.S. Patent No. 7,953,857
`
`B. Grounds for Standing [37 C.F.R. § 42.104(a)]
`Guest Tek certifies that the ’857 patent is available for inter partes review
`
`and it is not barred or estopped from requesting review under 35 U.S.C. §§ 315(a)-
`
`(b) or 37 C.F.R. §§ 42.101-42.103.
`
`IV. RELIEF REQUESTED [37 C.F.R. § 42.22(a)]
`Guest Tek requests inter partes review and cancellation of claims 1 and 9 of
`
`the ’857 patent under pre-AIA 35 U.S.C. § 103(a) because those claims would
`
`have been obvious to a person of ordinary skill in the art over:
`
`Ground 1: U.S. Patent No. 5,864,540 (Ex. 1004, “’540 patent”) in view of
`
`U.S. Patent No. 6,587,433 (Ex. 1006, “’433 patent”);
`
`Ground 2: U.S. Patent No. 7,392,279 (Ex. 1005, “’279 patent”) in view of
`
`IEEE’s INDEX Project Report #98-010P (Ex. 1007, “98-010P Report”); and
`
`Ground 3: U.S. Patent No. 5,623,492 (Ex. 1008, “’492 patent”) in view of
`
`the ’540 patent.
`
`V. THE ’857 PATENT
`A. Overview of Patent
`The ’857 patent purports to describe systems and methods for “dynamically
`
`managing transmission of packets.” Abstract. It discloses calculating a delay
`
`period associated with a packet sent by a user device based on a data transmission
`
`parameter, such as a bandwidth limit selected by the user, and delaying packet
`4
`
`

`

`
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`IPR2019-00211
`U.S. Patent No. 7,953,857
`
`transmission based on the delay period. Id. To accomplish the delay, the patent
`
`employs a traffic shaper that utilizes a queue implemented as a ring buffer for
`
`prioritizing transmission of packets. Packets are loaded into a particular timeslot
`
`of the queue according to a delay period calculated based on the selected
`
`bandwidth limit.
`
`FIG. 3 illustrates a queue 60 in the uplink direction and another queue 70 in
`
`the downlink direction:
`
`FIG. 3. The patent describes each queue 60, 70 being implemented by a ring
`
`buffer. When a packet is received by the gateway device, a determination is made
`
`as to whether a data packet is designated for unlimited bandwidth. If it is not, a
`
`
`
`5
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`

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`IPR2019-00211
`U.S. Patent No. 7,953,857
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`“calculation is made to quantify the difference between the bandwidth available to
`
`the subscriber and the bandwidth currently being used.” 13:46-51. The packet is
`
`placed in the appropriate timeslot on the ring buffer based on that calculation “so
`
`that the ultimate delivery of a packet will not produce a bandwidth greater than that
`
`selected . . . by the user/subscriber.” 9:32-50.
`
`B. Prosecution History for the ’857 Patent
`The ’857 patent’s application was filed on April 3, 2010, and claims priority
`
`to provisional application 60/161,182 filed October 22, 1999. On November 2,
`
`2010, the Office issued a Non-Final Rejection, rejecting the claims (including
`
`pending claims 1 and 9, which eventually issued as claims 1 and 9 of the ’857
`
`patent) under, among other things, 35 U.S.C. § 103. Ex. 1003.
`
`In response, Applicant amended claims 1 and 9 to specify: (1) the network
`
`communication bandwidth and data transmission parameter (in limitations [1.B]
`
`and [9.B]) are “selected by the user”; and (2) delaying transmission of the recited
`
`packet (in limitations [1.D] and [9.D]) was “to prevent the user device from
`
`achieving a bandwidth [or data transmission] greater than the network
`
`communication bandwidth [or data transmission] associated with the user device
`
`and selected by the user.” Id. (1/26/2011 Office Action Resp., at 2-3). These
`
`amendments were supposedly discussed with the Examiner during an interview “to
`
`6
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`

`
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`IPR2019-00211
`U.S. Patent No. 7,953,857
`
`distinguish from the” prior art relied upon in the rejection. Id. (1/26/2011 Office
`
`Action Resp., at 6).
`
`Subsequently, the Examiner issued a Notice of Allowance on February 25,
`
`2011, and the ’857 patent issued on May 31, 2011. Id. The Examiner did not
`
`provide any specific reasons for the allowance. Id.
`
`The ’540, ’433, ’279, and ’492 patents were not considered or cited during
`
`prosecution of the ’857 patent. The 98-010P Report was cited by the Applicant in
`
`a January 26, 2011 IDS, along with sixty-five other references in the same IDS. Id.
`
`The Office did not, however, substantively consider the Report in any Office
`
`Action.
`
`C. Claims at Issue
`The claims being challenged are claims 1 and 9. Claim 1 is reproduced as
`
`follows, with lettering added for clarity of discussion below:
`
`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;
`
`7
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`

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`IPR2019-00211
`U.S. Patent No. 7,953,857
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`[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
`
`[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.
`
`Claim 9 recites mostly the same limitations in method form:
`
`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.
`
`
`8
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`

`

`
`
`D. Claim Construction
`
`IPR2019-00211
`U.S. Patent No. 7,953,857
`
`“Processor” in claim 1 means hardware or software that processes data. The
`
`disclosed processor processes bandwidth parameters and other data to calculate a
`
`delay period. 7:52-62; claim 1. Further, the patent indicates that the processor
`
`may be hardware or software, explaining that bandwidth module 32, which
`
`includes the processor, is “typically,” but not required to be, implemented in
`
`software. 8:20-22; 8:34-5; Dr. Dordal Decl. ¶ 22 (a processor as disclosed in ’857
`
`patent could be implemented as hardware or software).
`
`“Data storage system” in claim 1 means a system that saves or maintains
`
`data in one or more tables, memory, or other structures. ’857 at 12:49-50 (“an
`
`entry in the memory module, typically a hash table, is created”); 8:49-51; Dr.
`
`Dordal Decl. ¶ 23.
`
`The other terms of the unexpired ’857 patent’s claims are to be given their
`
`broadest reasonable interpretation, as understood by one of ordinary skill in the art,
`
`in view of the specification. 37 C.F.R. § 42.100(b).
`
`VI. PERSON OF ORDINARY SKILL IN THE ART
`The field of the ’857 patent is systems and methods for managing bandwidth
`
`in a communications network. Dr. Dordal Decl. ¶ 25; Ex. 1001 at 1:18-22. A
`
`person of ordinary skill in the art (“POSITA”) at the time of the alleged inventions
`
`9
`
`

`

`
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`IPR2019-00211
`U.S. Patent No. 7,953,857
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`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. Id.
`
`VII. PRIOR ART
`
`The earliest purportedly-related application cited on the face of the ’857
`
`patent is U.S. provisional application no. 60/161,182, filed October 22, 1999.
`
`Because the ʼ857 patent application was filed before the effective date of the AIA,
`
`pre-AIA 35 U.S.C. §§ 102, 103 apply.
`
`The prior art ’540 patent issued January 26, 1999. Because it issued before
`
`the earliest possible priority date of the ’857 patent, it is prior art at least under
`
`§ 102(a).
`
`The prior art ’492 patent issued on April 22, 1997 and is prior art at least
`
`under § 102(b). Likewise, the prior art 98-010P Report was publicly available as
`
`of May 20, 1998. Ex. 1012 (Declaration of Gerard P. Grenier of IEEE, stating 98-
`
`010P Report was published no later than May 20, 1998); Ex. 1007 at 1 (dated May
`
`1998 and copyrighted by IEEE in 1998); Ex. 1013 (“publication year” of 1998 for
`
`98-010P Report); Dr. Dordal Decl. ¶ 85. Therefore, the Report also qualifies as
`
`10
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`

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`IPR2019-00211
`U.S. Patent No. 7,953,857
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`prior art under § 102(b) (and if not, prior art at least as of December 31, 1998
`
`under § 102(a)).
`
`The prior art ’433 and ’279 patents were filed on February 10, 1999 and
`
`March 26, 1999, and issued on July 1, 2003 and June 24, 2008, respectively. The
`
`’857 patent, however, did not issue until 2011. The ’433 and ’279 patents are
`
`therefore prior art at least under § 102(e).
`
`Each of these prior art references are summarized below and in section X of
`
`Dr. Dordal’s declaration. In addition, Dr. Dordal provides an overview of the
`
`relevant state of the art at the time of the alleged inventions in section IX of his
`
`declaration. As he explains, the problem of enforcing limits on bandwidth usage
`
`was recognized in the art, and there were only a finite number of solutions to
`
`enforce bandwidth constraints. ¶¶ 29-30, 99. As confirmed by the ’540 and ’279
`
`patents, one of those well-known solutions was calculating a delay period based on
`
`a particular bandwidth and delaying packet transmission consistent with that delay
`
`period. ¶¶ 52-53, 99. Systems and methods were also well-known at the time that
`
`allowed users to select a particular bandwidth constraint that he or she desired to
`
`use in network communications, as confirmed by the ’433 patent, ’492 patent, and
`
`98-010P Report. ¶¶ 31-36.
`
`
`
`11
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`
`
`A.
`
`’540 Patent (Ex. 1004)
`
`IPR2019-00211
`U.S. Patent No. 7,953,857
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`The ’540 patent discloses a “traffic shaper” for a use in a packet switched
`
`network that regulates “connections” and prevents lost data by integrating traffic
`
`shaping. Ex. 1004, Abstract. The connections comprise network “endpoints,” i.e.,
`
`transmitter and receiver devices that send and receive information such as digital
`
`voice, video, and/or data over the network. 1:13-18; 1:42-47. The disclosed
`
`system and method, using a modified “leaky bucket” traffic shaper, calculate a
`
`“conformance time” for each “cell” (i.e., data packet) that arrives at the traffic
`
`shaper from a connection endpoint. 8:1-5; 1:41-42. The conformance time is the
`
`“time at which an arriving cell conforms to the contracted traffic parameters of the
`
`connection the cell is coming from.” Id.
`
`The traffic parameters include a bandwidth (described as rate ρ) selected in a
`
`traffic contract. The ’540 patent states that “the QOS [Quality of Service, i.e., the
`
`probability of a packet being dropped] of a connection. . . may be ‘guaranteed’ by
`
`‘contract’ when a connection is established . . . . Essentially, each connection
`
`‘contracts’ to transmit cells to the network at a rate ρ (bandwidth descriptor) . . . .”
`
`2:11-17; 8:5-9. The network will not allow the connection to be established if
`
`there is insufficient bandwidth to provide the required QOS. 2:16-20.
`
`12
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`IPR2019-00211
`U.S. Patent No. 7,953,857
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`Conformance time is determined based on the cell’s estimated arrival time,
`
`X, the current time t representing the cell’s actual arrival time, the contracted
`
`traffic parameters for the cells connection, ρ and σ, and the arrival time of the last
`
`cell from the same connection. 8:18-21. As explained with respect to Fig 2:
`
`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…. [I]f 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.
`
`8:18-38.
`
`If the traffic shaper determines that an arriving cell/packet’s conformance
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`time is equal to or before the current time, the packet is placed on the transmission
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`queue for transmission through the network. 7:1-10; 8:36-50, 8:63-9:2. If the
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`cell/packet is “non-conforming” (i.e., the cell’s conformance time is after the
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`current time), the cell is placed on a “sorting bin” queue for a delay period based
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`on the calculated conformance time. 7:1-10; 8:36-50, 8:63-9:2; claim 13 (“each
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`said sorting bin corresponds to a single delay period between said conformance
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`time and said current time”).
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`The ’540 patent’s traffic shaper delays transmission of non-conforming
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`packets to prevent achieving a bandwidth greater than a contracted bandwidth.
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`Packets are placed in sorting bins and not transmitted until the packets’
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`conformance times, calculated from the contracted bandwidth parameters, are
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`reached. 8:3-5; 8:63-9:2. This delay in transmitting the packets ensures that the
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`connection bandwidth is less than or equal to the contracted bandwidth. 2:17-20;
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`2:36-40.
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`According to the ’540 patent, the disclosed system is a way to fairly
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`distribute network resources, such as bandwidth, between widely variant
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`connections in a network without incurring excessive costs. 3:4-7; 4:11-14.
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`B.
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`’279 Patent (Ex. 1005)
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`The ’279 patent describes a “time-based buffering system” that buffers data
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`based upon how long the data should be held to comply with a traffic shaping
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`policy. Abstract. Traffic shaping policies were employed to “limit a network
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`entity to the amount of bandwidth that it has paid for.” 1:13-18. The disclosed
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`system is illustrated in Figure 1:
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`14
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`
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`Router 10, which connects a local network (at input point 14) to an outside
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`network such as the Internet (at output point 22), initially receives a packet 12.
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`4:40-46. Packet 12 is considered by block 14, which implements a policing
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`algorithm. 4:55-64. Policer 14 may be implemented as “hardware, firmware, or
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`software executed on one or more processors.” 4:57-58; 6:4-13. Policer 14
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`determines whether the packet should be transmitted or instead buffered in a time-
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`based queue. 4:58-60.
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`Policer 14 first determines whether the packet destination (or source) has
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`exceeded an allowed amount of traffic on the network (i.e., an allotted bandwidth).
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`If it has not, policer 14 transmits the packet to its destination immediately. 4:65-
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`5:1; 5:39-48. If it has, policer 14 determines, for example, how long to delay the
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`packet’s transmission. 5:1-4. This is accomplished by first calculating a traffic
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`shaping delay required before the packet can be transmitted without violating the
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`policy, by comparing an allowed bandwidth for the source/destination with the
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`bandwidth currently used, or to be used if the packet is transmitted, by the
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`source/destination. 5:52-60; 8:1-3; 9:44-48.
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`Policer 14 then forwards the packet to traffic shaper 16, which determines
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`which of the buckets of structure 18 should be used to buffer the packet. 5:61-65.
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`It may accomplish this by finding a bucket scheduled to dequeue its contents at the
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`time when the calculated traffic shaping delay is up. 5:65-6:1. The system buffers
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`that packet at the identified bucket until its bucket has “timed-out.” 7:8-12. Once
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`the present time is later than the packet’s scheduled dequeuing time, the system
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`transmits the packet through the network to its destination. 12:50-53. This process
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`is also described in connection with Figure 2. 7:42-8:67.
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`The disclosed system could be used in connection with a “typical cable
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`modem system.” It could also be implemented on routers or switches, including in
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`ATM networks. 15:5-7; 15:23-24. In a specific embodiment, the routers used
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`could be router model 7200 available from Cisco Systems, Inc. 15:24-28.
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`C.
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`’433 Patent (Ex. 1006)
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`The ’433 patent discloses systems and methods for assigning priority or
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`classes of service of messages in a packet-based network. Abstract. It allows for
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`implementation of differentiated classes of service according to, for example, user
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`requirements. Id. According to the patent, “[n]ext-generation remote access
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`servers will need to explicitly support multiple classes of service,” such as live
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`motion video or Voice-over-IP, which need to be delivered quicker than other
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`services. It identifies the need to differentiate the priority of packet forwarding,
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`including employing “delay” in packet delivery on a “per-user” basis as well as
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`“queuing.” 1:30-41; 1:56-61. The patent describes embodiments that allow users
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`to select a desired class of service according to the users’ specific requirements,
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`such as “bandwidth” requirements. 2:49-54. The embodiments provide ways to
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`control the amount of network resources allocated to each user and charge them
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`user fees based on the resources consumed. 2:54-58.
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`As stated, “[u]sers may select the quality of service, i.e., amount of
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`bandwidth . . . and the cost they are willing to pay.” 12:32-35; 13:29-39. A
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`sample set of service offerings that includes specific bandwidths (e.g., 200KBPS)
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`that the user may select from is depicted in Table D in column 12 of the ’433
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`patent, and below:
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`The selection of bandwidth may occur before a network session begins, 12:35-37,
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`12:39-13:49; or it may occur “dynamically” during a session, 12:35-37, 13:50-
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`14:37.
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`D.
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`98-010P Report (Ex. 1007)
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`The 98-010P Report describes an end-to-end system that was designed to
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`provide Internet access to a diverse group of users at attractive price-quality
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`combinations. § 1. The system was intended for use in packet switching networks,
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`including ATM networks. Id. (“The data will also allow to test hypotheses about
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`the structure of the market for . . . ATM services.”); Fig. 1 (depicting “CAT 5000
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`Switched Ethernet” connected to, e.g., the Internet). It was also intended to be
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`used in connection with CATV (cable television) using cable modems. § 2.1 n.1.
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`The system employed various Cisco routers, including a Cisco 7200 router
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`that connected the user to the Internet. It also employed an INDEX Billing
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`Gateway, as shown in Figure 1, that measured network usage and selectively
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`adjusted the “service quality” of the network (i.e., an amount of bandwidth)
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`allotted to each individual user. §§ 2.1, 2.2. The user can select the amount of
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`bandwidth (e.g., 128 kilobytes per second) at a given price (e.g., 6 ¢/min) through
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`an Index User Interface shown in Figure 2 of the Report:
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`The user’s bandwidth selection can even occur while the user is already connected
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`to the network or an application is already running. § 2.2 (“Such detailed records
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`are able to reveal, for instance, what applications are running at the time of a QoS
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`change.”); Fig. 2 (showing user interface that allows user to change from current
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`96kbps bandwidth to a different bandwidth).
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`After the user selects his or her desired bandwidth, that quality of service
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`(QOS) information is stored in a “database.” § 2.2 (“The database contains records
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`for each TCP connection. Apart from . . . selected QoS . . . information . . . , they
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`include information about . . .”) (underlining added). The Billing Gateway then
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`controls the network usage based on the selected bandwidth. §§ 2.2 (“The Control
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`Center application communicates . . . selected quality levels . . . to a ‘supervisor’
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`process. This supervisor process then orders the Billing Gateway to treat this user’s
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`connections according to the selected quality level.”); 2.3. The Gateway is capable
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`of selectively degrading the performance of the user’s connection based on the
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`selected bandwidth through the