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. 8,626,922 to Short et al.
`Issued: January 7, 2014
`Filed: April 26, 2011
`
`Title: SYSTEMS AND METHODS FOR DYNAMIC DATA TRANSFER
`MANAGEMENT ON A PER SUBSCRIBER BASIS IN A COMMUNICATIONS
`NETWORK
`
`____________
`
`
`IPR2019-00258
`
`____________
`
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 8,626,922
`
`
`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)] ....................................................................................... 3 
`III.  REQUIREMENTS UNDER 37 C.F.R. §§ 42.103 and 42.104 ....................... 4 
`A. 
`Payment of Fees [37 C.F.R. § 42.103] .................................................. 4 
`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 ’922 PATENT ......................................................................................... 5 
`A.  Overview of Patent ................................................................................ 5 
`B. 
`Prosecution History for the ’922 Patent ................................................ 6 
`C. 
`Claims at Issue ....................................................................................... 8 
`D. 
`Claim Construction ............................................................................... 9 
`VI.  PERSON OF ORDINARY SKILL IN THE ART ........................................ 10 
`VII.  PRIOR ART ................................................................................................... 11 
`A. 
`’540 Patent (Ex. 1004) ........................................................................ 12 
`B. 
`’279 Patent (Ex. 1005) ........................................................................ 15 
`C. 
`’433 Patent (Ex. 1006) ........................................................................ 17 
`D. 
`98-010P Report (Ex. 1007) ................................................................. 19 
`
`i
`
`

`

`B. 
`C. 
`
`’492 Patent (Ex. 1008) ........................................................................ 22 
`E. 
`VIII.  CLAIMS 1 AND 9 ARE OBVIOUS OVER THE ’540 PATENT IN VIEW
`OF THE ’433 PATENT. ................................................................................ 24 
`A. 
`The ’540 patent discloses all limitations of the claims, except for the
`limitations reciting a “user device” and “user profile” record including
`an indication of a network communication bandwidth associated with
`the device. ............................................................................................ 25 
`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. .......................... 49 
`CLAIMS 1 AND 9 ARE OBVIOUS OVER THE ’492 PATENT IN VIEW
`OF THE ’540 PATENT. ................................................................................ 54 
`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. .............................................. 54 
`The ’540 patent discloses the remaining limitations of claims 1 and 9.
` ............................................................................................................. 62 
`A POSITA would have been motivated to combine the ’492 and ’540
`patents to arrive at claims 1 and 9. ...................................................... 63 
`XI.  CONCLUSION .............................................................................................. 66
`
`B. 
`
`C. 
`
`X. 
`
`B. 
`
`C. 
`
`ii
`
`

`

`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) .......................................................................... 34, 37, 47, 50
`Nomadix, Inc. v. Guest Tek Interactive Entertainment Ltd.,
`Case No. 2:16-CV-08033-AB-FFM ..................................................................... 3
`Statutes
`35 U.S.C. § 102 .................................................................................................. 11, 12
`35 U.S.C. § 103 ................................................................................1, 2, 4, 20, 52, 64
`35 U.S.C. § 311 .......................................................................................................... 1
`35 U.S.C. § 315 .......................................................................................................... 4
`Other Authorities
`37 C.F.R. § 42.8 ..................................................................................................... 2, 3
`37 C.F.R. § 42.15(a) ................................................................................................... 4
`37 C.F.R. § 42.22(a) ................................................................................................... 4
`37 C.F.R. § 42.100 ............................................................................................... 1, 10
`37 C.F.R. §§ 42.101 – 42.104 .................................................................................... 4
`
`
`
`iii
`
`

`

`Exhibit No.
`1001
`1002
`1003
`1004
`1005
`1006
`1007
`1008
`1009
`1010
`1011
`1012
`1013
`
`1014
`
`1015
`
`1016
`
`1017
`
`1018
`
`1019
`
`LISTING OF EXHIBITS
`
`Description
`U.S. Patent No. 8,626,922
`Declaration of Dr. Peter Dordal
`Excerpts from Prosecution History for Parent 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
`Andrew M Odlyzko, The economics of the Internet: Utility,
`utilization, pricing, and Quality of Service, AT&T Labs,
`July 7, 1998
`
`iv
`
`

`

`1020
`
`1021
`
`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
`
`
`
`
`
`v
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`
`I.
`
`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. 8,626,922 (Ex. 1001, “’922 patent”) purportedly
`
`owned by Nomadix, Inc.
`
`The alleged invention of the ’922 patent is “providing dynamic bandwidth
`
`management on a per subscriber basis in a communications network” by
`
`determining “if a received data packet will be delayed from further transmission in
`
`order to limit the bandwidth of the subscriber...and a queue for queuing the data
`
`packet for a delay period.” Ex. 1001 at 1:20-22, 4:8-15. But bandwidth
`
`management, by queuing the data packet for a delay period until the bandwidth
`
`conforms to an allotted bandwidth amount, has existed in the prior art well before
`
`the effective filing date of the ’922 patent.
`
`U.S. Patent Nos. 5,864,540 and 7,392,279, for instance, each disclose most
`
`elements of claims 1 and 9 of the ’922 patent, including processors for enforcing
`
`bandwidth constraints by delaying packet transmission over networks. Although
`
`those references do not expressly disclose enforcing bandwidth constraints
`
`associated with user devices and retrieved from user profile records, this aspect –
`
`the apparent basis for issuance of claims 1 and 9 – was well-known in the prior art.
`
`U.S. Patent Nos. 6,587,433 and 5,623,492 and IEEE’s INDEX Project Report #98-
`
`1
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`010P, each disclose systems and methods for storing bandwidth constraints for
`
`user devices in user profiles that can be subsequently retrieved for bandwidth
`
`management.
`
`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.”), storing bandwidth limits in user
`
`profiles for bandwidth management was a well-known technique for fairly
`
`allocating and charging for network bandwidth usage on a per-user basis before the
`
`’922 patent. For this and various other reasons explained, a skilled artisan would
`
`have had motivation to combine the relevant aspects of the above-cited prior art to
`
`arrive at the alleged inventions of claims 1 and 9 of the ’922 patent. Accordingly,
`
`those claims would have been obvious to a person of ordinary skill in the art under
`
`35 U.S.C. § 103 and the Board should institute inter partes review.
`
`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 ’922 patent against Guest Tek in claims
`
`for breach of a license agreement in Nomadix, Inc. v. Guest Tek Interactive
`
`2
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`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
`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
`
`3
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`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.
`
`B. Grounds for Standing [37 C.F.R. § 42.104(a)]
`The ’922 patent is available for inter partes review and that it is not barred
`
`or estopped from requesting inter partes review of any claim of the ’922 patent
`
`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 ’922 patent. Under pre-AIA 35 U.S.C. § 103(a), claims 1 and 9 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.
`
`4
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`
`V. THE ’922 PATENT
`A. Overview of Patent
`The ’922 patent purports to describe systems and methods for “dynamically
`
`managing transmission of packets.” Abstract. It discloses receiving and
`
`calculating a delay period associated with a packet sent by a user device based on a
`
`data transmission parameter, such as a bandwidth service level, associated with the
`
`user device and retrieved from a subscriber profile, and delaying transmission of
`
`the packet based on the delay period. Id. The subscriber profile is stored in a
`
`database, and includes the user/subscriber selected bandwidth. 12:36-38.
`
`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 position of the queue according to a
`
`delay period calculated for the packet based on the selected bandwidth retrieved
`
`from the user profile.
`
`FIG. 3 illustrates queues 60 and 70 of the disclosed system:
`
`5
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`
`
`
`Each queue is implemented by a ring buffer. A “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 and paid for by the
`
`user/subscriber.” 9:32-50.
`
`B. Prosecution History for the ’922 Patent
`The application for the ’922 patent was filed on April 26, 2011, and claims
`
`priority to provisional application no. 60/161,182 filed on October 22, 1999. On
`
`May 21, 2013, the Office issued a Non-Final Rejection, rejecting the pending
`
`claims (including pending claims 1 and 9, which eventually issued as claims 1 and
`
`6
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`9 of the ’922 patent) for obviousness-type double patenting over the claims of U.S.
`
`Patent No. 7,953,857, which issued from the parent application of the ’922 patent.
`
`In response, Applicant submitted a terminal disclaimer, and the Office then
`
`withdrew its rejection, issuing a Notice of Allowance on September 3, 2013. The
`
`Examiner did not provide any specific reasons for the allowance. The ’922 patent
`
`issued on January 7, 2014.
`
`Relevant excerpts from the prosecution history for the parent ’857 patent are
`
`attached as Exhibit 1003. The ’857 patent’s claims 1 and 9 are substantially
`
`similar to the ’922 patent’s claims 1 and 9, except that the ’922 patent claims were
`
`amended to recite limitations [1.C] and [9.B] (see claim listing below). Those
`
`limitations replaced the limitations that were apparently the basis for the ’857
`
`patent claim being allowed over the prior art. See Ex. 1003 (1/26/2011 Office
`
`Action Resp., at 2-3, 6).
`
`Notably, the ’540, ’433, ’279, and ’492 patents were not considered or cited
`
`during prosecution of the ’922 patent. The 98-010P Report was cited by the
`
`Applicant in an April 26, 2011 Information Disclosure Statement (IDS), along with
`
`seventy-four other references in the same IDS. Id. The Office did not, however,
`
`substantively consider the Report in any Office Action.
`
`
`
`
`
`7
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`
`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 the 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;
`
`[1.C] 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
`
`[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.
`
`Claim 9 recites mostly the same claim limitations in method form:
`
`A method of dynamically managing transmission of packets, the
`method comprising:
`
`8
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`[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 with the user
`device, the data transmission parameter being retrieved from a user
`profile associated with the user;
`[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 retrieved from the user profile associated with the user.
`
`D. Claim Construction
`
`“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. ’922 at 7:46-65; 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. 8:24-26; 8:33-56; Dr. Dordal Decl. ¶ 23.
`
`“Data storage system” in claim 1 means a system that saves or maintains
`
`data in one or more tables, memory, or other structures. See, e.g., ’922 at 12:49-50
`
`(“an entry in the memory module, typically a hash table, is created”); 8:49-51; Dr.
`
`Dordal Decl. ¶ 24.
`
`9
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`“User profile record” means an entry in a data storage system that includes
`
`information relating to a user, such as the address of the user’s device on a network
`
`and a corresponding bandwidth associated with the user device. Claim 1, for
`
`instance, refers to the data storage system as containing the user profile record
`
`associated with a user. The specification refers to the user profile as including a
`
`bandwidth parameter and a MAC address for the user’s device used to identify the
`
`device on a network. 8:32-34; 12:34-38; Dr. Dordal Decl. ¶ 25.
`
`The other claim terms of the unexpired ’922 patent are 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 ’922 patent’s field is systems and methods for managing bandwidth in a
`
`communications network. Dr. Dordal Decl. ¶ 27; Ex. 1001 at 1:20-24. A person
`
`of ordinary skill in the art (“POSITA”) at the time of the alleged inventions of
`
`claims 1 and 9 would have had (1) either a formal degree in computer science or a
`
`related subject, or commensurate informal education in computer programming
`
`and designing computer networks, and (2) at least 2 years of experience in
`
`designing or programming computer networks. Dr. Dordal Decl. ¶ 27.
`
`
`
`
`
`10
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`
`VII. PRIOR ART
`
`The earliest purportedly-related application cited on the face of the ’922
`
`patent is U.S. provisional application 60/161,182, filed October 22, 1999. Because
`
`the ʼ922 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 ’922 patent, it is prior art at least under
`
`§ 102(a).
`
`The prior art ’492 patent issued April 22, 1997 and is prior art at least under
`
`§ 102(b). Likewise, the prior art 98-010P Report was publicly available at least 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 1998); Ex. 1013 (“publication year” of 1998 for 98-010P
`
`Report); Dr. Dordal Decl. ¶ 89. Therefore, the Report also qualifies as prior art at
`
`least under § 102(b) (and if not, it is prior art under § 102(a) at least as of
`
`December 31, 1998).
`
`The prior art ’433 and ’279 patents were filed February 10, 1999 and March
`
`26, 1999, and issued July 1, 2003 and June 24, 2008, respectively. The ’922
`
`patent, however, did not issue until 2011. The ’433 and ’279 patents are therefore
`
`prior art at least under § 102(e).
`
`11
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`Each of these references is summarized below and in section X of Dr.
`
`Dordal’s declaration. In addition, Dr. Dordal explains the relevant state of the art
`
`as of 1999 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. Dr. Dordal Decl. ¶¶
`
`41-45. As in the ’540 and ’279 patents, one of those was calculating a delay period
`
`based on a particular bandwidth and delaying packet transmission consistent with
`
`that delay period. Id. Systems and methods were also well-known for storing
`
`bandwidth parameters in user profile records for subsequent retrieval for
`
`bandwidth management, as confirmed by, for example, the ’492 patent, ’433
`
`patent, and 98-010P Report. Id. ¶ 46.
`
`A.
`
`’540 Patent (Ex. 1004)
`
`The ’540 patent discloses a “traffic shaper” in a packet switched network
`
`that regulates “connections” and prevents lost data by integrating link scheduling
`
`and traffic shaping to arbitrate between incoming connections. Abstract. The
`
`connections are 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. 1:41-42; 8:1-5. The conformance
`
`12
`
`

`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`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 (rate ρ) selected in a traffic
`
`contract. The 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.... [E]ach connection ‘contracts’ to transmit cells
`
`to the network at a rate ρ (bandwidth descriptor)...when the connection is
`
`established.” 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.
`
`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. Specifically, as explained as 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. 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.
`
`8:18-38.
`
`13
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`IPR2019-00258
`U.S. Patent No. 8,626,922
`If the traffic shaper determines that an 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. 7:1-10; 8:36-50, 8:63-9:2. If the packet is “non-
`
`conforming” (i.e., conformance time is after the current time), it is placed on a
`
`“sorting bin” queue for a delay period based on the calculated conformance time.
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`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”).
`
`The traffic shaper delays transmission of non-conforming packets to prevent
`
`achieving a bandwidth greater than a selected bandwidth. That is, packets are
`
`placed in sorting bins and not transmitted until the packets’ conformance times,
`
`calculated from the contracted bandwidth parameters, are reached. See 8:3-5;
`
`8:63-9:2. This delay in transmitting the packets ensures that the connection
`
`bandwidth is less than or equal to the contracted bandwidth. See also 2:17-20
`
`(“The network will not allow the connection to be established if there [is]
`
`insufficient...bandwidth to provide the required QOS....”); 2:36-40 (“Traffic
`
`shaping can be used to ensure compliance with the traffic contract....”).
`
`According to the patent, the disclosed system is a way to fairly distribute
`
`network resources, such as bandwidth, between widely variant connections in a
`
`network without incurring excessive costs. 3:4-7; 4:11-14.
`
`
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`14
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`

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`IPR2019-00258
`U.S. Patent No. 8,626,922
`
`B.
`
`’279 Patent (Ex. 1005)
`
`The ’279 patent describes a “time-based buffering system” that buffers data
`
`based upon how long the data should be held to comply with a traffic shaping
`
`policy. Abstract. Such traffic shaping policies were employed to “limit a network
`
`entity to the amount of bandwidth that it has paid for.” 1:13-18. The disclosed
`
`system is illustrated in Figure 1:
`
`A router 10, which connects a local network (at input point 14) to an outside
`
`network such as the Internet (at output point 22), initially receives packet 12. 4:40-
`
`
`
`15
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`

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`IPR2019-00258
`U.S. Patent No. 8,626,922
`46. Packet 12 is considered by a policing block (or policer) 14, which may be
`
`implemented as “hardware, firmware, or software executed on one or more
`
`processors.” 4:55-64; 6:4-13. Policer 14 determines whether the packet should be
`
`transmitted or buffered in a time-based queue. 4:58-60.
`
`It first determines whether the packet destination (or source) has exceeded
`
`an allotted bandwidth. If it has not, policer 14 transmits the packet to its
`
`destination immediately. 4:65-5:1; 5:39-48. If it has, policer 14 determines, for
`
`example, how long to delay the packet’s transmission. 5:1-4. This is
`
`accomplished by first calculating a traffic shaping delay required before the packet
`
`can be transmitted without violating the policy, by comparing an allowed
`
`bandwidth for the source/destination with the bandwidth currently used, or to be
`
`used if the packet is transmitted, by the source/destination. 5:52-60; 8:1-3; 9:44-
`
`48.
`
`Policer 14 then forwards the packet to traffic shaper 16, which determines
`
`which bucket of structure 18 should be used to buffer the packet. 5:61-65. It may
`
`accomplish this by finding a bucket scheduled to dequeue its contents at the time
`
`the calculated traffic shaping delay is up. 5:65-6:1. The system buffers that packet
`
`at the identified bucket until its bucket has “timed-out.” 7:8-12. Once the present
`
`time is later than the packet’s scheduled dequeuing time, the system transmits the
`
`16
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`IPR2019-00258
`U.S. Patent No. 8,626,922
`packet through the network to its destination. 12:50-53. This process is also
`
`described in connection with Figure 2. 7:42-8:67.
`
`The disclosed system could be used in connection with a “typical cable
`
`modem system.” It could also be implemented on routers and/or switches,
`
`including in ATM networks. 15:5-7; 15:23-24. The systems may use specially
`
`configured routers such as model 7200 available from Cisco Systems, Inc. 15:24-
`
`28.
`
`C.
`
`’433 Patent (Ex. 1006)
`
`The ’433 patent discloses systems and methods for assigning priority or
`
`classes of service of messages in a packet-based network. ’433 patent, Abstract. It
`
`allows for implementation of differentiated service classes according to user
`
`requirements. Id. “Next-generation remote access servers will need to explicitly
`
`support multiple classes of service,” such as live motion video or Voice-over-IP,
`
`which need to be delivered much quicker than other services. The patent identifies
`
`the need to differentiate the priority of packet forwarding, including based on
`
`“delay” in packet delivery based on a “per-user” basis and “queuing.” 1:30-41;
`
`1:56-61. The systems and methods allow users to select a desired class of service
`
`according to the users’ specific requirements, such as “bandwidth” requirements.
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`2:49-54. They also provide ways to control the amount of network resources
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`17
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`IPR2019-00258
`U.S. Patent No. 8,626,922
`allocated to each user and to charge them user fees based on the resources
`
`consumed. 2:54-58.
`
`As stated, “[u]sers may select the quality of service, i.e., amount of
`
`bandwidth...and the cost they are willing to pay.” 12:32-35 (underlining added).
`
`The user selection may occur before a network session begins, 12:35-37, 12:39-
`
`13:49; or “dynamically” during a session, 12:35-37, 13:50-14:37. A sample set of
`
`service offerings that includes specific bandwidths (e.g., 200kbps) that the user
`
`may select from is depicted in Table D of the ’433 patent:
`
`
`
`
`
`Notably, the selected service class for an individual user – which includes
`
`the selected bandwidth – is stored in a “user profile” record. 7:1-4. The user
`
`profile may include “the user name 410,” and an “associated user identifier 412
`
`and a device type 414 such as a personal computer.” 10:5-13. In addition, the
`
`“user profile may include a class of service field to indicate which class of service
`
`the packets from the user may utilize....” 7:1-4; see also 10:3-5 (the user profile
`
`18
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`

`IPR2019-00258
`U.S. Patent No. 8,626,922
`contains a “DS byte indicating a class of service for that user”); Fig. 4 (showing
`
`user profiles, including “DS” bytes which indicate the class of service for the user
`
`and the user’s device, such as a computer).
`
`
`
`According to the patent, allowing users to select bandwidth limits allows
`
`them to “maximize or minimize bandwidth when necessary and control costs.”
`
`13:53-56. Also, “[t]he ability to control and charge applications and users fees
`
`according to the network resources they consume provides the ability to efficiently
`
`allocate an