Paper No. 6
`Trials@uspto.gov
`571-272-7822 Entered: May 28, 2019
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`Petitioner,
`
`v.
`
`NOMADIX, INC.,
`Patent Owner.
`____________
`
`Case IPR2019-00253
`Patent 8,626,922 B2
`____________
`
`
`
`
`
`Before SALLY C. MEDLEY, DANIEL J. GALLIGAN, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: May 28, 2019
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`GUEST TEK INTERACTIVE ENTERTAINMENT LTD.,
`Petitioner,
`
`v.
`
`NOMADIX, INC.,
`Patent Owner.
`____________
`
`Case IPR2019-00253
`Patent 8,626,922 B2
`____________
`
`
`
`
`
`Before SALLY C. MEDLEY, DANIEL J. GALLIGAN, and
`JASON W. MELVIN, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`IPR2019-00253
`Patent 8,626,922 B2
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`I. INTRODUCTION
`Guest Tek Interactive Entertainment Ltd. (“Petitioner”) filed a
`Petition for inter partes review of claims 1 and 9 of U.S. Patent No.
`8,626,922 B2 (Ex. 1001, “the ’922 patent”). Paper 1 (“Pet.”). Nomadix,
`Inc. (“Patent Owner”) filed a Preliminary Response. Paper 5 (“Prelim.
`Resp.”). Institution of an inter partes review is authorized by statute when
`“the information presented in the petition . . . and any response . . . shows
`that there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.” 35 U.S.C.
`§ 314(a). Upon consideration of the Petition and Preliminary Response, we
`conclude the information presented shows that there is a reasonable
`likelihood that Petitioner would prevail in establishing the unpatentability of
`claims 1 and 9 of the ’922 patent.
`
`A. Related Matters
`Petitioner indicates that Patent Owner is asserting the ’922 patent
`against Petitioner in claims for a 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. Pet. 2–3; see also Paper 3, 1.
`
`B. The ’922 Patent
`The specification of the ’922 patent describes a “method and device
`for dynamic bandwidth management on a per subscriber basis.” Ex. 1001,
`3:32–33. A user/subscriber may set and adjust uplink and downlink
`bandwidths of their network access service. Id. at 3:33–35. “[T]he
`user/subscriber can increase or decrease the bandwidth of the uplink
`connection so that the user/subscriber only purchases the amount of
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`bandwidth appropriate for their network activity.” Id. at 3:47–50. Figures 2
`and 3 of the ’922 patent are reproduced below.
`
`
`Figure 2 of the ’922 patent is a block diagram of a communications
`network implementing subscriber bandwidth management within a gateway
`device. Ex. 1001, 4:22–24.
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`Figure 3 of the ’922 patent is a block diagram of a communications
`network implementing uplink and downlink virtual queues in a gateway
`device. Ex. 1001, 4:26–28.
`As seen from the above figures, a plurality of hosts 14, 14n
`communicate data packets through communication network 10. Id. at 8:60–
`62. Data packets are routed through an access concentrator 16 that
`multiplexes data packets received from the plurality of hosts. Id. at 8:62–64.
`Gateway 12 receives data packets at port 80 and communicates to uplink
`queue 60 via uplink path 64. Id. at 8:64–67. Gateway 12 includes
`bandwidth manager 30, which comprises subscriber selectable bandwidth
`module (SSB module) 32 and traffic shaping module 34. Id. at 8:24–25.
`SSB module 32 “limits the upstream and downstream bandwidths on each
`virtual channel through the gateway device 10 to that which the respective
`user/subscriber selected.” Id. at 8:27–30. SSB module 32 communicates
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`with subscriber management interface 50 to retrieve subscriber profiles 52,
`which include user/subscriber selected bandwidth for uplink and downlink
`data transfer. Id. at 8:33–38. SSB module 32 determines whether to
`reschedule delivery of a packet at a later point in time to prevent the
`user/subscriber from achieving a bandwidth greater than that which the
`user/subscriber selected. Id. at 8:38–42. SSB module 32 calculates “the
`appropriate delay, if any, using the size (in bytes) of the current data packet,
`and the size and time of the previous packet delivered from the subscriber.”
`Id. at 8:43–46. If it is determined that a packet should be delayed, SSB
`module 32 places the packet in memory in a virtual queue for later delivery.
`Id. at 8:53–55.
`
`C. Illustrative Claim
`Petitioner challenges independent claims 1 and 9 of the ’922 patent.
`Claim 1 is illustrative and reproduced below.
`1. A system for allowing a user to dynamically control
`an amount of bandwidth available to the user in a network, the
`system comprising:
`a first network interface for communicating over a
`communication link with a user device during a network session;
`a second network interface for communicating with one or
`more computer networks;
`a data storage system including a user profile record
`associated with a user, the user profile record comprising an
`indication of a network communication bandwidth associated
`with the user device; and
`a processor configured to calculate a delay period
`associated with a received packet based on the network
`communication bandwidth associated with the user, and the
`processor further configured to delay transmission of the packet
`based on the delay period to prevent the user device from
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`achieving a bandwidth greater than the network communication
`bandwidth associated with the user device.
`Id. at 14:30–49.
`
`D. Asserted Grounds of Unpatentability
`Petitioner asserts that claims 1 and 9 are unpatentable based on the
`following grounds (Pet. 3):
`Basis2
`References1
`§ 103
`Bonomi3 and Borella4
`§ 103
`Chandran5 and Rupp6
`Teraslinna7 and Bonomi § 103
`
`Challenged Claims
`1 and 9
`1 and 9
`1 and 9
`
`II. DISCUSSION
`
`A. Claim Construction
`In an inter partes review for a petition filed before November 13,
`2018, we construe claim terms in an unexpired patent according to their
`
`1 Petitioner refers to the references by patent number, while Patent Owner
`refers to the references by the last name of the first named inventor. We
`adopt Patent Owner’s naming convention.
`2 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. §§ 102 and 103. Because the ’922
`patent has an effective filing date before the effective date of the applicable
`AIA amendments, we refer to the pre-AIA versions of 35 U.S.C. §§ 102 and
`103.
`3 U.S. Patent No. 5,864,540, issued Jan. 26, 1999 (Ex. 1004, “Bonomi”).
`4 U.S. Patent No. 6,587,433 B1, issued July 1, 2003 (Ex. 1006, “Borella”).
`5 U.S. Patent No. 7,392,279 B1, issued June 24, 2008 (Ex. 1005,
`“Chandran”).
`6 Björn Rupp et al., INDEX: A Platform for Determining How People Value
`the Quality of Their Internet Access, In: Proceedings of the Sixth IEEE/IFIP
`International Workshop on Quality of Service 85 (IEEE 1998) (Ex. 1007,
`“Rupp”).
`7 U.S. Patent No. 5,623,492, issued Apr. 22, 1997 (Ex. 1008, “Teraslinna”).
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`broadest reasonable construction in light of the specification of the patent in
`which they appear. 37 C.F.R. § 42.100(b) (2018); see Changes to the Claim
`Construction Standard for Interpreting Claims in Trial Proceedings Before
`the Patent Trial and Appeal Board, 83 Fed. Reg. 51,340 (Oct. 11, 2018)
`(amending 37 C.F.R. § 42.100(b) effective November 13, 2018). Consistent
`with the broadest reasonable construction, claim terms are presumed to have
`their ordinary and customary meaning as understood by a person of ordinary
`skill in the art in the context of the entire patent disclosure. In re Translogic
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
`
`Petitioner proposes constructions for the following claim terms found
`in the challenged claims: “processor” (claim 1); “data storage system”
`(claim 1); and “user profile record” (claim 1). Pet. 9–10. Patent Owner does
`not oppose Petitioner’s proposed constructions. Prelim. Resp. 7.
`For purposes of this decision, we need not expressly construe any
`claim term. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795,
`803 (Fed. Cir. 1999) (holding that “only those terms need be construed that
`are in controversy, and only to the extent necessary to resolve the
`controversy”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
`Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs. in the
`context of an inter partes review).
`
`B. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter 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. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
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`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art;8 and (4) when in evidence, objective
`evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
`(1966).
`
`C. Asserted Obviousness of Claims 1 and 9 over Bonomi and Borella and
`over Teraslinna and Bonomi
`Petitioner contends claims 1 and 9 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over (1) Bonomi in view of Borella (Pet. 4, 24–41), and
`(2) Teraslinna in view of Bonomi (Pet. 4, 54–66). In support of its showing,
`Petitioner relies upon the declaration of Dr. Dordal. Id. (citing Ex. 1002).
`
`1. Bonomi
`Bonomi describes a method and system for controlling traffic in a
`communications network. Ex. 1004, 1:6–7. Bonomi further describes that
`for communication networks, a communication path must be established
`within the network between the sender(s) and receiver(s) of information. Id.
`at 1:18–21. Bonomi describes Asynchronous Transfer Mode (ATM) as “a
`connection oriented network technology” that transmits “packets of digital
`
`
`8 Relying on the testimony of Dr. Peter Dordal, Petitioner offers an
`assessment as to the level of skill in the art as of the earliest effective filing
`date on the face of the ’922 patent. Pet. 10 (citing Ex. 1002 ¶ 27). Patent
`Owner does not propose an alternative assessment. See, e.g., Ex. 2001 ¶ 22.
`To the extent necessary, and for purposes of this Decision, we accept the
`assessment offered by Petitioner as it is consistent with the ’922 patent and
`the asserted prior art.
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`information called cells.” Id. at 1:36–42. In such a network, a connection is
`formed between transmitters and receivers where each intermediate switch
`in the virtual circuit or channel (VC) is aware of service requirements and
`traffic parameters of the connection such that the quality of service (QOS) of
`the channel can be guaranteed by the network if the connection stays within
`its stated traffic parameters. Id. at 1:43–55. The QOS of a connection in an
`ATM network may be “guaranteed” by “contract” when a connection is
`established through a process of connection admission control (CAC). Id. at
`2:11–14. In particular, “each connection ‘contracts’ to transmit cells to the
`network at a rate ρ (bandwidth descriptor) with burstiness σ (burst
`descriptor) when the connection is established.” Id. at 2:14–17. If there are
`insufficient network resources (e.g., buffer and/or bandwidth) to provide the
`required QOS at the contracted traffic parameters, a connection will not be
`allowed. Id. at 2:17–20. Bonomi describes that it was known to employ
`“leaky bucket traffic shaping” to control traffic for ATM switched networks.
`Id. at 2:38–43. Credit tokens are provided by the traffic shaper at a rate ρ
`that represents sustainable bandwidth for the connection. Id. at 2:44–46.
`These credit tokens accumulate in a “leaky bucket” that holds up to σ credit
`tokens. Id. at 2:50–52. “Each cell arriving at the traffic shaper must claim a
`token to pass through the shaper; if no tokens are available, the cell is
`considered ‘nonconforming’ and is delayed until a token is available when
`the connection conforms to the traffic contract.” Id. at 2:52–56.
`Bonomi’s invention is directed to integration of leaky-bucket traffic
`shaping and rate-based link scheduling. Id. at 4:16–18. Bonomi describes a
`traffic shaper, “optimally suited for, but not limited to, high speed switches
`in an Asynchronous Transfer Mode network.” Id. at 6:36–38. When a cell
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`arrives at the traffic shaper, the cell’s conformance time c is computed. Id.
`at 8:1–2. “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. at 8:3–5. “[C]onformance time is determined from the cell’s
`estimated arrival time, X, the contracted traffic parameters for the cell’s
`connection, ρ and σ, and the arrival time of the last cell from the same
`connection.” Id. at 8:18–21. Bonomi describes, with respect to Figure 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. As shown in step 35, if X is
`greater
`than
`t+σ/ρ
`the cell
`is non-conforming and
`the
`conformance time is set to comply with the contracted traffic
`parameters, c=X-σ/ρ.
`
`Id. at 8:32–38. If the arriving packet’s conformance time is equal to or
`before the current time, the packet is placed on the transmission queue for
`sending through the network. Id. at 7:1–10, 8:36–50, 8:63–9:2. If the
`packet is nonconforming, it is placed on a sorting bin queue for a delay
`period based on the calculated conformance time. Id. A sorting bin may
`correspond to a single delay period between conformance time and current
`time. Id. at 14:18–20.
`
`2. Borella
`Borella is directed to a method and system for providing different
`levels or classes of packet delivery service in a packet-based network.
`Ex. 1006, 1:13–15. Users may select a desired class of service according to
`the users’ specific requirements, such as “bandwidth requirements.” Id. at
`2:49–54. The system controls and charges “applications and users fees
`according to the network resources they consume,” which “provides the
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`ability to efficiently allocate and utilize network resources.” Id. at 2:55–58.
`“Users may select the quality of service, i.e., amount of bandwidth
`depending on the particular type of application they are running and the cost
`they are willing to pay.” Id. at 12:32–35. Service selection may be
`preselected or provided dynamically during a session. Id. at 12:35–37.
`Selected service class for a user is stored in a user profile record. Id. at 7:1–
`4. The user profile may include user name 410 with an associated user
`identifier 412 and device type 414 such as a personal computer. Id. at 10:3–
`7, Fig. 4.
`
`3. Teraslinna
`Teraslinna is directed to a method and system for managing
`bandwidth resources in a fast packet switching communication network.
`Ex. 1008, [57], 1:9–13. Teraslinna describes a fast packet switch that routes
`packets received from devices, including user devices. Id. at 6:3–44.
`The address of the user’s device, along with the device’s preselected
`bandwidth constraint, are stored in a look-up table. Id. at 6:47–63, 8:26–31,
`17:37–50. The system receives a packet and uses the address in the packet
`header for the user’s device to look up the bandwidth constraint to enforce
`that constraint. Id. at [57], 6:47–63, 8:26–31, 17:37–50, Figs. 3, 12. When
`the fast packet switch receives a packet, a processor (packet profile
`processor 37 of Figure 3), analyzes the source address in the packet to
`determine the subscriber who sent the packet. Id. at 6:24–33, 6:45–49. The
`processor also determines if the received packet causes a violation of the
`pre-selected bandwidth constraint from the look-up table. Id. at 5:16–23,
`6:28–33, 6:50–59. A violation occurs when the user’s bandwidth usage
`exceeds the threshold bandwidth preselected in the user’s traffic contract
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`that is stored in the look-up table. Id. at 6:59–63, 15:64–66. If a violation
`occurs, the received packet is discarded, marked with a low priority for loss,
`or placed in a queue for delayed transmission. Id. at 5:20–25, 6:59–63,
`15:60–16:21.
`
`4. Discussion
`a. Bonomi in view of Borella
`Petitioner contends that Bonomi discloses all elements of claims 1
`and 9, except that Bonomi describes controlling or managing network
`bandwidth made available to connections in general as opposed to user
`devices. Pet. 24. Petitioner relies on Borella for its disclosure of user
`devices and a user profile record as recited in claims 1 and 9. Id. at 24, 32–
`35. Petitioner also provides reasons why a person having ordinary skill in
`the art at the time of the invention would have been motivated and had
`reason to combine the teachings of Bonomi and Borella. Id. at 35–41.
`The preamble of claim 1 recites “[a] system for allowing a user to
`dynamically control an amount of bandwidth available to the user in a
`network.” Petitioner argues that Bonomi describes allowing a connection to
`dynamically control an amount of bandwidth in a network. Pet. 25.
`Petitioner contends that Bonomi describes a traffic shaper that controls and
`manages the amount of bandwidth made available to each connection when
`transmitting packets through a network. Id. (citing Ex. 1004, 1:59–63, 2:14–
`20); see, e.g., Ex. 1004, [57], 4:15–21, 6:35–42. Petitioner asserts that
`Bonomi describes delaying transmission of packets that are nonconforming,
`i.e., packets that would require a bandwidth greater than the negotiated
`bandwidth. Pet. 25 (citing Ex. 1004, 8:45–50). Petitioner further contends
`that Bonomi describes controlling and managing network resources
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`dynamically. Id. (citing Ex. 1004, 1:33–35, 9:37–40). Petitioner contends
`that although Bonomi describes that a network connection in general
`negotiates, and thus controls, the amount of bandwidth made available to it,
`Bonomi does not expressly describe that a “user” controls the available
`bandwidth as recited in claim 1. Id. at 26.
`Petitioner relies on Borella for describing managing and controlling
`network resources for user devices, including allowing users to select
`bandwidth constraints dynamically and associating bandwidth constraints
`with user devices. Id. at 32. For example, Petitioner contends that Borella
`describes a system for allowing a user to select the quality of service such as
`the amount of bandwidth and that such selection may occur before a network
`session begins or that it may occur dynamically during a session. Id. at 32–
`33 (citing Ex. 1006, 12:32–37, 12:39–14:37, Table D); see, e.g., Ex. 1006,
`12:32–37 (“Users may select the quality of service, i.e., amount of
`bandwidth depending on the particular type of application they are running
`and the cost they are willing to pay. The service selection could be
`pre-selected or it could be provided dynamically during a session.”).
`Claim 1 further recites “a first network interface for communicating
`over a communication link with a user device during a network session.”
`Petitioner contends that Bonomi describes a traffic shaper that includes a
`first network interface, input 1, and that packets sent from transmitting
`devices to a receiving device enter the traffic shaper through input 1. Pet. 26
`(citing Ex. 1004, 1:17–21, 6:55–61, Fig. 1). Petitioner further contends that
`Borella describes communicating over a link with a user device. Id. at 33
`(citing Ex. 1006, 3:22–27, 4:10–13, 12:39–14:37, Table D). For example,
`Borella describes user customer premises equipment 40 and telephony
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`device 44 connected via communication line 46 over Public Switched
`Telephone Network (PSTN) 24 via second communication line 23 to
`Remote Access Server (RAS) 22. Ex. 1006, 3:22–27.
`Claim 1 recites “a second network interface for communicating with
`one or more computer networks.” Petitioner contends that Bonomi describes
`a second network interface, output 3, which is connected to a computer
`network. Pet. 27 (citing Ex. 1004, 6:8–11, 6:58–61, Fig. 1).
`Claim 1 recites “a data storage system including a user profile record
`associated with a user, the user profile record comprising an indication of a
`network communication bandwidth associated with the user device.”
`Petitioner contends that Bonomi describes a data storage system, depicted in
`Bonomi Figure 6, showing a connection table 400 that maintains stored
`shaping rate (bandwidth) associated with each connection. Id. at 27–28
`(citing Ex. 1004, 8:9–11, 9:20–24, 11:44–48, 11:53–57, 12:46–47, Fig. 6).
`Petitioner relies on Borella for describing a user profile record associated
`with a user. Id. at 28. Petitioner contends Borella describes that the selected
`class of service for a user, including desired bandwidth, is stored in a user
`profile record. Id. at 33–34 (citing Ex. 1006, 7:1–4, 10:3–13, 12:32–35, Fig.
`4). Petitioner further contends that the desired bandwidth amount selected
`by the user is associated with the user device. Id. at 34 (citing Ex. 1006,
`2:33–36, 2:49–54, 11:24–30).
`Claim 1 recites “a processor configured to calculate a delay period
`associated with a received packet based on the network communication
`bandwidth associated with the user.” Petitioner contends that Bonomi’s
`arithmetic logic unit (ALU) is a processor. Id. at 29 (citing Ex. 1004, 12:38–
`40; Ex. 1002 ¶ 23, App. I; Ex. 1020). Petitioner further contends that
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`Bonomi’s ALU (processor) is configured to calculate a delay period
`associated with a received packet based on the network communication
`bandwidth connection. Id. at 29–30 (citing Ex. 1004, 8:30–38, 12:38–40).
`Bonomi describes that the ALU performs the comparison and pointer
`manipulation operations of the described invention. Ex. 1004, 12:38–40.
`Petitioner contends that the comparison operation involves calculating the
`delay period for an arriving packet. Pet. 29. In particular, Petitioner asserts
`that the processor compares the arrival time of each packet (X) to see if it
`complies with traffic contract parameters such as the selected bandwidth, ρ,
`and if it does not, calculates a delay period (based on conformance time
`c=X-σ/ρ). Id. at 29–30 (citing Ex. 1004, 8:30–38; Ex. 1002, App. I). In his
`overview of Bonomi, Dr. Dordal testifies that:
`If the traffic shaper determines that an arriving cell/packet’s
`conformance time is equal to or before the current time, the
`packet is placed on the transmission queue for transmission
`through the network, and will be transmitted without additional
`delay. [Ex. 1004, ] 7:1-10; 8:36-50, 8:63-9:2. If the cell/packet
`is “nonconforming” (i.e., the cell’s conformance time is after the
`current time), the cell is placed on a “sorting bin” queue for a
`delay period based on the calculated conformance time. [Id. at ]
`7:1-10; 8:36-50, 8:63-9:2; claim 13 (“each said sorting bin
`corresponds to a single delay period between said conformance
`time and said current time”). These sorting bins correspond
`approximately to the “timeslots” of the “ring buffer” of the ‘922
`patent; see paragraph 51 below.
`
`Ex. 1002 ¶ 50; see also id. ¶ 51.
`Petitioner asserts that Borella describes that the bandwidth is
`associated with the user. Pet. 34–35. Petitioner explains that Borella
`describes that the quality of service containing the network communication
`bandwidth is selected by the user, stored with user name and device, and
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`used to manage resources for packets sent from the user. Id. (citing
`Ex. 1006, 10:5–13).
`Claim 1 further recites that the processor is “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.” Petitioner relies
`on the combined teachings of Bonomi and Borella to meet this claim phrase.
`In particular, Petitioner contends that Bonomi’s ALU performs pointer
`manipulation operations such that packets are moved between first in first
`out (FIFO) queues based on whether they are conforming. Id. at 30 (citing
`Ex. 1004, 8:45–54, 12:38–45). Bonomi describes that if a packet is
`nonconforming, the cell is placed in a sorting bin selected based on its
`calculated conformance time, c. Ex. 1004, 8:49–50. Petitioner contends that
`the packet remains in the sorting bin until its conformance time is reached,
`thereby creating a delay period and delaying transmission of the packet
`based on the delay period. Pet. 31 (citing Ex. 1004, 7:1–10, 8:36–50, 8:63–
`9:2, 9:5–8, claim 13 (14:18–20)). Petitioner contends that conformance
`times are based on the contracted bandwidth parameters. Id. (citing
`Ex. 1004, 8:3–5). Petitioner further explains that the delay in transmitting
`packets ensures that the connection bandwidth is less than or equal to the
`contracted bandwidth. Id. at 32 (citing Ex. 1004, 2:17–20, 2:36–40).
`Petitioner relies on Borella for describing a user device as recited in the
`above claim 1 phrase. Id. at 34–35. Petitioner asserts that Borella describes
`a system that implements traffic management for user devices based on
`bandwidths selected by users and associated with user devices. Id. at 34
`(citing Ex. 1006, 2:33–36, 2:49–54, 11:24–30, Table D).
`
`16
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`IPR2019-00253
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`
`Petitioner asserts reasons for combining Bonomi and Borella.
`Pet. 35–41. For example, Petitioner contends, with supporting evidence, that
`both Bonomi and Borella involve the same type of networks, including
`ATM networks, and are directed to enforcing bandwidth constraints. Id. at
`36; Ex. 1004, Abstract, 1:6–10; Ex. 1006, 5:17–19, 11:10–15. Petitioner
`further contends that a person having ordinary skill in the art would have
`been motivated to employ user devices as connection endpoints in Bonomi
`because ATM networks were originally developed to accommodate high-
`speed bandwidth requirements of user devices such as computers and mobile
`phones. Pet. 37 (citing Ex. 1002 ¶ 80). Petitioner alleges that a person
`having ordinary skill in the art would have been motivated to implement
`Borella’s technique of storing service classes with desired bandwidths for
`user devices in user profiles so that they may be retrieved later for traffic
`management. Id. at 37–38 (citing Ex. 1002 ¶ 81). Petitioner further alleges
`that modifying Bonomi with Borella would have amounted to a simple
`substitution of one element—functionality that stores a negotiated
`bandwidth constraint with a network connection in general—for another
`known element—functionality that stores a bandwidth class for a network
`endpoint that is a user device in a user profile record. Id. at 38 (citing Ex.
`1002 ¶ 82). Petitioner also asserts the combination would have been
`predictable, along with additional reasons why a person having ordinary skill
`in the art would have been motivated to combine Bonomi and Borella with a
`reasonable expectation of success. Id. at 38–40 (citing Ex. 1002 ¶¶ 83–86).
`Independent claim 9 is similar to claim 1. Petitioner’s showing for
`claim 9 is nearly the same as that for claim 1, while sufficiently accounting
`for differences between claim 9 and claim 1. See Pet. 25–41.
`
`17
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`IPR2019-00253
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`b. Teraslinna in view of Bonomi
`Petitioner also contends Teraslinna in combination with Bonomi
`would have rendered claims 1 and 9 obvious. Pet. 54–66. Petitioner relies
`on Teraslinna to meet all elements of claims 1 and 9, except for the
`limitations reciting calculating a delay period and delaying transmission of
`the received packet based on the delay period. Id. at 54. For those
`limitations, Petitioner relies on Bonomi.
`For example, Petitioner contends that Teraslinna describes a first
`network interface for communicating over a link with a user device. Id. at
`55–56 (citing Ex. 1008, Fig 5 (switch 70, link 82a, equipment SE 1)).
`Petitioner further contends that Teraslinna describes a second network
`interface for communicating with one or more computer networks. Id. at
`56–57 (citing Ex. 1008, Fig. 5 (switch 72), Fig. 11). Petitioner asserts that
`Teraslinna describes a look-up table that includes a user profile record
`associated with a user that includes an indication of a network
`communication bandwidth associated with the user device. Id. at 57–59
`(citing multiple passages from Ex. 1008). Petitioner further asserts that
`Teraslinna describes a processor, e.g., packet protocol processor 37 of
`Figure 3, that performs packet protocol processing and enforces bandwidth
`constraints (e.g., inhibits the flow of packets) based upon the identities of the
`sources of the received packets and the selected bandwidths for those
`sources. Id. at 59–61 (citing multiple passages from Ex. 1008).
`As it did for the Bonomi and Borella challenge, Petitioner relies on
`Bonomi for describing a processor configured to calculate a delay period and
`delay transmission of a packet based on the delay period as claimed. Id. at
`62–63. Petitioner asserts reasons for combining Teraslinna and Bonomi. Id.
`
`18
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`IPR2019-00253
`Patent 8,626,922 B2
`
`at 63–66. Petitioner alleges, with supporting evidence, that Teraslinna and
`Bonomi are analogous art (id. at 63), that there was a known design need for
`enforcing bandwidth constraints to avoid network congestion and that there
`were only a finite number of solutions (id. at 64), and that a person having
`ordinary skill in the art would have been motivated to delay transmission of
`packets, as opposed to dropping packets (id. at 64–65).
`Petitioner also asserts that modifying Teraslinna with Bonomi would
`have amounted to a simple substitution of one element—a traffic flow
`processor configured to queue packets for a potentially unlimited amount of
`time until the subscriber no longer exceeds the allotted bandwidth amount—
`for another known element—a processor configured to calculate a specific
`delay period and then delay packet transmission based on the delay period.
`Id. at 65 (citing Ex. 1002 ¶ 105). Petitioner also contends the combination
`would have been predictable, along with additional reasons why a person
`having ordinary skill in the art would have been motivated to combine
`Teraslinna and Bonomi with a reasonable expectation of success. Id. at 65
`(citing Ex. 1002 ¶¶ 105–106).
`Independent claim 9 is similar to claim 1. Petitioner’s showing for
`claim 9 is nearly the same as that for claim 1, while sufficiently accounting
`for differences between claim 9 and claim 1. See Pet. 54–66.
`c. Patent Owner’s Arguments and Analysis
`Patent Owner argues that Dr. Dordal’s declaration is unsworn, not
`made under penalty of perjury, and, therefore, is entitled to no weight.
`Prelim. Resp. 9–10. At this juncture of the proceeding, we decline to give
`little or no weight to Dr. Dordal’s declaration. We authorize Petitioner to
`
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`IPR2019-00253
`Patent 8,626,922 B2
`
`file, within ten days of this Decision, a corrected Exhibit 1002 that complies
`with our rules. 37 C.F.R. §§ 1.68, 42.2, 42.53(a).
`Patent Owner argues that for both challenges, Petitioner has failed to
`show that “Bonomi discloses calculating a delay period for a packet.”
`Prelim. Resp. 13. Patent Owner argues that Petitioner’s contention “that the
`act of determining whether X is less than, equal to, or greater than a
`threshold value constitutes calculation of a period of time by which a packet
`will be delayed . . . makes no sense.” I
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