IPR2019-00973
`Patent 7,075,917
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-00973
`U.S. Patent No.: 7,075,917
`Issued: July 11, 2006
`Application No.: 09/973,312
`Filed: October 9, 2001
`
`Title: WIRELESS NETWORK WITH A DATA
`EXCHANGE ACCORDING TO THE ARQ METHOD
`_________________
`
`
`PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 7,075,917
`
`
`
`
`
`
`Patent 7,075,917
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_________________
`
`MICROSOFT CORPORATION,
`Petitioner,
`
`v.
`
`UNILOC 2017 LLC,
`Patent Owner.
`
`IPR2019-00973
`U.S. Patent No.: 7,075,917
`Issued: July 11, 2006
`Application No.: 09/973,312
`Filed: October 9, 2001
`
`Title: WIRELESS NETWORK WITH A DATA
`EXCHANGE ACCORDING TO THE ARQ METHOD
`_________________
`
`
`PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 7,075,917
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`IPR2019-00973
`Patent 7,075,917
`
`Page
`
`LIST OF EXHIBITS .................................................................................................. v
`
`MANDATORY NOTICES UNDER 37 C.F.R. § 42.8 .......................................... vii
`
`1.
`
`2.
`
`3.
`
`Real Party-In-Interest ......................................................................... vii
`
`Related Matters ................................................................................... vii
`
`Lead And Back-Up Counsel, And Service Information .................... vii
`
`I.
`
`SUMMARY OF THE ARGUMENT .............................................................. 1
`
`II. GROUNDS FOR STANDING PER SECTION 42.104(A) ............................ 3
`
`III.
`
`IDENTIFICATION OF CHALLENGE .......................................................... 3
`
`
`
`Statement Of The Precise Relief Requested ......................................... 3
`
` No Examiner Addressed These Unpatentability Grounds .................... 4
`
` Microsoft’s Petition Should Be Granted Despite
`Another Third-Party Petition Challenging The Same Patent ................ 4
`
`IV. THE ’917 PATENT ......................................................................................... 6
`
`
`
`
`
`
`
`The ’917 Patent’s Specification ............................................................ 6
`
`The Prosecution History ........................................................................ 8
`
`The Claims ............................................................................................ 9
`
`V. APPLIED PRIOR ART .................................................................................10
`
`
`
`TR25.835 .............................................................................................10
`
` Abrol ....................................................................................................15
`
`VI. APPLICANT’S ADMISSIONS AS TO THE STATE OF THE ART .........18
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`Patent 7,075,917
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`“Physical” Layer, Wireless
`Networks, And Hybrid ARQ Methods ................................................18
`
`Coded Transport Blocks And Sequence Numbers ..............................22
`
`VII. LEVEL OF SKILL IN THE ART, AND STATE OF THE ART .................27
`
`
`
`Person Of Ordinary Skill In The Art ...................................................27
`
`VIII. CLAIM CONSTRUCTION ..........................................................................28
`
`
`
`Proposed Constructions .......................................................................29
`
`IX. GROUND 1: CLAIMS 1-3 AND 9-10 ARE
`OBVIOUS OVER TR25.835 IN VIEW OF ABROL ...................................29
`
`
`
`Claim 1 ................................................................................................30
`
`1.
`
`2.
`
`Element 1.1 - Preamble .............................................................30
`
`Element 1.2 ...............................................................................33
`
`a)
`
`b)
`
`c)
`
`“coded transport blocks …” ...........................................33
`
`“storing coded transport blocks in a memory” ...............37
`
`“packet data unit which … can be
`identified by a packet data unit sequence number” ........40
`
`3.
`
`Element 1.3 ...............................................................................42
`
`a) Modifying TR25.835 In View of Abrol .........................42
`
`b)
`
`c)
`
`d)
`
`“abbreviated sequence numbers …
`which can be shown unambiguously
`in a packet data unit sequence number” .........................46
`
`abbreviated sequence numbers “whose
`length depends on the maximum number
`of coded transport blocks to be stored” ..........................47
`
`“a physical layer of a transmitting side …
`storing abbreviated sequence numbers” .........................51
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`IPR2019-00973
`Patent 7,075,917
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`4.
`
`5.
`
`6.
`
`Element 1.4 ...............................................................................52
`
`Element 1.5 ...............................................................................54
`
`Element 1.6 ...............................................................................56
`
`Claim 2 ................................................................................................60
`
`Claim 3 ................................................................................................61
`
`Claim 9 ................................................................................................62
`
`Claim 10 ..............................................................................................65
`
`
`
`
`
`
`
`
`
`X. NO OBJECTIVE INDICIA OF NON-OBVIOUSNESS ..............................68
`
`XI. CONCLUSION ..............................................................................................68
`
`CERTIFICATE OF COMPLIANCE .......................................................................70
`
`
`
`
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`Petition for Inter Partes Review of USP 7,075,917
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`Page iii
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`
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`TABLE OF AUTHORITIES
`
`IPR2019-00973
`Patent 7,075,917
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`Page(s)
`
`Cases
`
`Nidec Motor Corp. v. Zhongshan Borad Ocean Motor Co.,
`868 F.3d 1013 (Fed. Cir. 2017) ............................................................................29
`
`O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co.,
`521 F.3d 1351 (Fed. Cir. 2008) ............................................................................29
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) ............................................................28
`
` Board Decisions
`
`Aurobindo Pharma USA, Inc. v. Andrx Corp. et al.,
`IPR2017-01648, Paper 34 (P.T.A.B. Dec. 28, 2018) ...........................................28
`
`Cisco Sys., Inc. v. Focal IP, LLC,
`IPR2016-01254, Paper No. 15 (P.T.A.B. Dec. 28, 2016) .......................................18
`
`Statutes
`
`35 U.S.C. § 102 ................................................................................................. 10, 15
`
`35 U.S.C. § 103 .......................................................................................................... 3
`
`35 U.S.C. § 315 .......................................................................................................... 6
`
`35 U.S.C. § 325 .......................................................................................................... 4
`
`Rules
`
`37 C.F.R. § 42.104 ..................................................................................................... 3
`
`37 C.F.R. § 42.15 ....................................................................................................... 3
`
`83 Fed. Reg. 51340 ..................................................................................................28
`
`
`
`
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`Petition for Inter Partes Review of USP 7,075,917
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`Page iv
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`IPR2019-00973
`Patent 7,075,917
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`LIST OF EXHIBITS
`
`No.
`
`Description
`
`1001
`
`U.S. Patent No. 7,075,917 (“the ’917 Patent”)
`
`1002
`
`File History of U.S. Patent No. 7,075,917
`
`1003
`
`Declaration of Harry Bims, PhD., signed and dated April 15, 2019
`(“Bims Decl.” or “Bims”)
`
`1004
`
`Declaration of Friedhelm Rodermund, signed and dated April 12,
`2019 (“Rodermund Decl.” or “Rodermund”)
`
`1005
`
`1006
`
`1007
`
`1008
`
`3G TR 25.835 V1.0.0 (2000-09) - 3rd Generation Partnership
`Project; Technical Specification Group Radio Access Network;
`Report on Hybrid ARQ Type II/III (Release 2000)” (TR25.835)
`
`3G TR 25.835 V0.0.2 (2000-08) - 3rd Generation Partnership
`Project; Technical Specification Group Radio Access Network;
`Report on Hybrid ARQ Type II/III (Release 2000), TSG-RAN
`Working Group 2 (Radio L2 and Radio L3), Sophia Antipolis,
`France, 21–15 August 2000 (TR25.835 (V0.0.2))
`
`U.S. Patent No. 6,507,582 “Radio Link Protocol Enhancements
`For Dynamic Capacity Wireless Data Channels,” issued January
`14, 2003 (Abrol)
`
`3rd Generation Partnership Project
`(3GPP), Technical
`Specification Group (TSG) RAN; Working Group 2 (WG2);
`Radio Interface Protocol Architecture; TS 25.301 V3.2.0 (1999-
`10) (TS25.301)
`
`Petition for Inter Partes Review of USP 7,075,917
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`Patent 7,075,917
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`1009
`
`1010
`
`R2-001762 – “Title: Fast Hybrid ARQ Description” (TSG-RAN
`Working Group 2 (Radio L2 and Radio L3) Sophia Antipolis,
`France, 21th to 25st August 2000) (R2-001762)
`
`R2-001875 – “Title: Draft Report of the 15th TSG-RAN WG2
`meeting (Sophia Antipolis, France, 21-25 August 2000)” (R2-
`001875)
`
`1011
`
`Complaint for Patent Infringement, Uniloc 2017 LLC v. Microsoft
`Corp., Case No. 8:18-cv-02053 (C.D. Cal.) (Complaint)
`
`
`
`
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`Petition for Inter Partes Review of USP 7,075,917
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`Page vi
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`IPR2019-00973
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`MANDATORY NOTICES UNDER 37 C.F.R. § 42.8
`
`1.
`
`Real Party-In-Interest
`
`Microsoft Corporation is the sole real party-in-interest.
`
`2.
`
`Related Matters
`
`The ’917 patent (Ex. 1001) is asserted in the following litigations: Uniloc
`
`2017 LLC v. Microsoft Corp., 8:18-cv-02053 (C.D. Cal.), filed November 17, 2018;
`
`Uniloc 2017 LLC v. Verizon Commc’ns Inc., et al., 2:18-cv-00513 (E.D. Tex.), filed
`
`November 17, 2018; Apple Inc. v. Uniloc 2017 LLC, IPR2019-00259 (P.T.A.B.),
`
`filed November 12, 2018; Uniloc 2017 LLC, et al. v. Verizon Commc’ns Inc., et al.,
`
`2:18-cv-00380 (E.D. Tex.), filed August 29, 2018; Uniloc 2017 LLC, et al. v.
`
`Microsoft Corp., 8:18-cv-01279 (C.D. Cal.), filed July 24, 2018; and Uniloc 2017 v.
`
`AT&T Servs., Inc., 2:19-cv-00120 (E. D. Tex.), filed March 26, 2019.
`
`3.
`
`Lead And Back-Up Counsel, And Service Information
`
`Lead Counsel
`Andrew M. Mason, Reg. No. 64,034
`andrew.mason@klarquist.com
`
`
`
`
`Back-up Counsel
`
`(First Back-Up)
`Joseph T. Jakubek, Reg. No. 34,190
`joseph.jakubek@klarquist.com
`
`Todd M. Siegel, Reg. No. 73,232
`todd.siegel@klarquist.com
`
`John D. Vandenberg, Reg. No. 31,312
`john.vandenberg@klarquist.com
`
`KLARQUIST SPARKMAN, LLP
`121 SW Salmon Street, Suite 1600
`Portland, Oregon, 97204
`
`Petition for Inter Partes Review of USP 7,075,917
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`IPR2019-00973
`Patent 7,075,917
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`503-595-5300 (phone)
`503-595-5301 (fax)
`
`Petitioner consents to service via email at the above email addresses.
`
`Pursuant to 37 C.F.R. § 42.10(b), concurrently filed with this Petition is a
`
`Power of Attorney executed by Petitioner and appointing the above counsel.
`
`Petition for Inter Partes Review of USP 7,075,917
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`IPR2019-00973
`Patent 7,075,917
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`Microsoft Corporation (“Petitioner”) respectfully requests inter partes review
`
`(“IPR”) of claims 1-3 and 9-10 of U.S. Patent No. 7,075,917 (“’917 patent”) (Ex.
`
`1001), allegedly assigned to Uniloc 2017 LLC (“Patent Owner”). For the reasons set
`
`forth below, claims 1-3 and 9-10 should be found unpatentable and cancelled.
`
`I.
`
`SUMMARY OF THE ARGUMENT
`
`The ’917 Patent generally discusses a system and method of detecting error-
`
`affected data transmitted over a wireless network and requesting retransmission
`
`using automatic repeat request technology (or “ARQ”). ’917 Patent (Ex. 1001) at
`
`1:5-8, 1:64-67. The ’917 Patent itself admits that ARQ-type technology for detecting
`
`error-affected data
`
`transmitted over a wireless network and
`
`requesting
`
`retransmission was well known prior to the ’917 Patent. Id. at 1:9-37. Bims, ¶ 23.
`
`The ’917 Patent purportedly discusses and claims two alleged improvements
`
`over such prior art systems, namely (1) detecting error-affected data at the physical
`
`layer of the receiving side (rather than waiting for this step to be performed at the
`
`radio link control, i.e., “RLC,” layer), and for sending positive and negative
`
`acknowledgments over a back channel directly between the physical layers of the
`
`receiver and transmitter (id. at 1:40-50, 2:28-44, 6:1-15); and (2) unambiguously
`
`identifying each packet data unit with an abbreviated sequence number (whose
`
`length depends on the maximum number of coded transport blocks). Id. at 2:45-54.
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`However, and as shown below, such features were already well known in connection
`
`with ARQ systems and methods. Bims, ¶ 24.
`
`In particular, TR25.835 (Ex. 1005), published September 13, 2000, discloses
`
`the first alleged improvement: detecting error-affected data at the physical layer,
`
`rather than waiting for this step to be performed at the radio link control layer, and
`
`further discloses sending the positive or negative transmission acknowledgments
`
`along a direct (or back) channel between the physical layers of the receiver and
`
`transmitter. Notably, the ’917 patent contrasts its alleged invention with an earlier
`
`version of this same specification (Ex. 1006) that did not include these disclosures.
`
`Bims, ¶ 25.
`
`The second alleged improvement of the ’917 patent, the use of an abbreviated
`
`or shortened sequence number for a coded transport block to unambiguously
`
`identify a packet data unit and whose length depends on the maximum number of
`
`coded transport blocks to be stored, was taught by Abrol (Ex. 1007) well before the
`
`alleged invention of the ’917 Patent. As discussed below, a POSITA would have
`
`naturally incorporated these teachings of Abrol into the ARQ implementation for
`
`wireless communication as disclosed by TR25.385, thus satisfying all limitations of
`
`the challenged claims. Bims, ¶ 26.
`
`Petition for Inter Partes Review of USP 7,075,917
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`Page 2
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`II. GROUNDS FOR STANDING PER SECTION 42.104(A)
`
`Petitioner certifies that the ’917 Patent is available for IPR and that Petitioner
`
`is not barred or estopped from requesting an IPR challenging the patent claims on
`
`the ground identified in this petition.
`
`III.
`
`IDENTIFICATION OF CHALLENGE
`
`
`
`Statement Of The Precise Relief Requested
`
`Petitioner requests inter partes review of claims 1-3 and 9-10 (each a
`
`“Challenged Claim,” and collectively the “Challenged Claims”) of the ’917 Patent
`
`under 35 U.S.C. § 103, based on the following statutory grounds.
`
`
`
`Reference(s)
`
`Basis Claims
`
`Ground 1 3G TR 25.835 (Ex. 1005) and Abrol (Ex. 1007)
`
`§ 103 1-3, 9-10
`
`This petition presents evidence of unpatentability and establishes a reasonable
`
`likelihood that the Petitioner will prevail in establishing that each Challenged Claim
`
`is unpatentable.
`
`An electronic payment in the amount of $30,500 for the fee specified by 37
`
`C.F.R. § 42.15(a) is being paid at the time of filing this petition, charged to deposit
`
`account no. 02-4550. Any adjustments in the fee may be debited/credited to the
`
`deposit account.
`
`Petition for Inter Partes Review of USP 7,075,917
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`Page 3
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` No Examiner Addressed These Unpatentability Grounds
`
`Neither “the same [n]or substantially the same prior art or arguments
`
`previously were presented to the Office.” 35 U.S.C. § 325(d). Specifically, neither
`
`the applicants nor any Examiner addressed whether the information contained in
`
`TR25.835 (Ex. 1005) was prior art or attempted to distinguish the claims from that
`
`publication. Applicants disclosed an earlier version of this specification (Ex. 1006)
`
`but that earlier version lacked the critical disclosures teaching use of the physical
`
`layer as a back-channel for sending ARQ messages (among other things). Bims, ¶
`
`41; compare TR25.835 Chapter 7 with Ex. 1006, Chapter 7.
`
`Moreover, the Examiner did not consider Abrol or any other reference that
`
`taught use of abbreviated sequence numbers to unambiguously identify a packet data
`
`unit and whose length depends on the maximum number of coded transport blocks
`
`to be stored. Because these key teachings in the prior art were not previously
`
`considered by the Office, this petition should not be denied under Section 325(d).
`
` Microsoft’s Petition Should Be Granted Despite
`Another Third-Party Petition Challenging The Same Patent
`
`While another third-party petition challenges this same patent (see Case
`
`IPR2019-00259), Microsoft’s challenge is not redundant and should be separately
`
`considered and instituted for several reasons. First, Microsoft files this Petition
`
`before any Patent Owner response to the third-party petition. Second, while
`
`Petition for Inter Partes Review of USP 7,075,917
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`Page 4
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`Microsoft relies in part on a reference applied in the third-party petition, namely
`
`Abrol, it presents that reference in a different light and relies on other art not cited
`
`in that petition. In addition, the present petition presents obviousness combinations
`
`that include TR25.835 (Ex. 1005), a reference not presented in IPR2019-00259.
`
`Importantly, the Applicant cited to an earlier version of that reference, i.e.,
`
`TR25.835 (V0.0.2) (Ex. 1006), which did not disclose information critical to the
`
`patentability of the claims, and the Applicant apparently attempted to distinguish the
`
`earlier version based on the lack of such information. Even to this day the putative
`
`Patent Owner touts its alleged invention as an improvement over this earlier version
`
`without acknowledging that the same 3GPP group also published the updated
`
`TR25.835 before the alleged ’917 Patent’s “time of invention.” In particular, in its
`
`Complaint against Petitioner it stated:
`
`Indeed, the time of invention was less than two months
`
`after the release of the document entitled, “3rd Generation
`
`Partnership Project, Technical Specification Group Radio
`
`Access Network, Report on Hybrid ARQ Type II/III
`
`(Release 2000), 3G TR 25.835 V0.0.2, TSG-RAN
`
`Working Group 2 (Radio L2 and Radio L3), Sophia
`
`Antipolis, France, 21–15 August 2000,” which described
`
`the specific types of hybrid ARQ network on which the
`
`invention improves. And, as detailed by the specification,
`
`the prior hybrid ARQ data transmission methods suffered
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`Petition for Inter Partes Review of USP 7,075,917
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`drawbacks such that a new and novel method was
`
`required. The inventions of the ’917 patent are also
`
`indigenous to the then nascent field of wireless networks
`
`implementing hybrid ARQ data transmission methods.
`
`Complaint at ¶ 35, Ex. 1011.
`
`Such statements highlight that the Office previously considered the
`
`challenged claims only in view of an outdated and superseded document. Such
`
`statements also make clear the importance that the Board now scrutinize the ’917
`
`Patent in view of the version that was current at the time of the alleged invention.
`
`Finally, the third-party proceeding may settle or otherwise terminate. If Microsoft
`
`were time-barred under Section 315 at that point, it would have no recourse to
`
`challenge the patent via IPR.
`
`IV. THE ’917 PATENT
`
`The ’917 Patent, titled “Wireless Network With A Data Exchange According
`
`To The ARQ Method” issued on July 11, 2006, from a U.S. patent application filed
`
`on October 9, 2001. The ’917 Patent alleges priority to German Patent Application
`
`No. 100 50 117, filed October 11, 2000.
`
` The ’917 Patent’s Specification
`
`The ’917 Patent relates to “a wireless network comprising a radio network
`
`controller and a plurality of assigned terminals, which are each provided for
`
`exchanging data and which form a receiving and/or transmitting side.” Ex. 1001 at
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`1:6-9. It admits that “[s]uch a wireless network [wa]s known” from the earlier
`
`version 0.0.2 of TR25.385. Id. at 1:10-18 (emphasis added). The patent generally
`
`explains how known ARQ technology was used to identify and correct transmissions
`
`errors for “data sent in Packet Data Units (PDU) by the Radio Link Control layer
`
`(RLC layer)” of a communications network. Id. at 1:18-32. See Bims, ¶ 28.
`
`The ’917 Patent alleges that these prior art ARQ systems introduced
`
`unnecessary delay because they relied on the higher-level radio control link (“RLC”)
`
`layer to identify missing/corrupted PDUs and request retransmission of those
`
`packets. Id. at 1:40-50. The ’917 Patent purports to solve this alleged problem and
`
`reduce ARQ delay in two basic ways. See Bims, ¶¶ 29-30.
`
`First, by detecting error-affected data at the physical layer, rather than waiting
`
`for this step to be performed at the radio link control layer, and sends
`
`acknowledgments over a back channel directly between the physical layers of the
`
`receiver and transmitter. Id. at 1:40-50, 2:28-44. For example, it explains:
`
`according to the invention a fast back channel is provided
`
`which is inserted directly between the receiving physical
`
`layer and the sending physical layer and not between the
`
`RLC layers concerned. … The receiving physical layer
`
`checks whether the coded transport block has been
`
`transmitted correctly. If it has, a positive acknowledge
`
`signal ACK is sent to the sending physical layer over the
`
`back channel. Conversely, if the coded transport block has
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`Page 7
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`not been received error-free, a negative acknowledge
`
`command NACK is sent to the sending physical layer.
`
`Ex. 1001 at 6:1-15 (emphasis added); see Bims, ¶ 33.
`
`Second, by using abbreviated sequence numbers in lieu of the prior art RLC
`
`sequence numbers. The abbreviated sequence number supposedly “reduces the
`
`extent of information that is required to be additionally transmitted for managing the
`
`transport blocks and packet data units and simplifies the assignment of the received
`
`acknowledge command to the stored transport blocks.” Id. at 2:45-49, 5:36-50; see
`
`Bims, ¶¶ 31-32.
`
`As outlined above, and as shown in detail below, these alleged “inventions”
`
`were known in the prior art, and a POSITA would have naturally implemented an
`
`ARQ system that satisfied each recited claim element. See Bims, ¶ 34.
`
`
`
`The Prosecution History
`
`On September 21, 2005, the Examiner issued a non-final rejection, objecting
`
`to informalities and requesting clarification of dependent claims 4-8, but citing no
`
`prior art directly and finding allowable subject matter in claims 1-3, 9, and 10. ’917
`
`Patent File History (Ex. 1002) at 61.
`
`In response, the Applicant amended the claims to address the Examiner’s
`
`concerns. Id. at pp. 69-73. The Examiner subsequently issued a notice of allowance
`
`for claims 1-10, issuing as the ’917 Patent on July 11, 2006. Id. at p. 81.
`
`Petition for Inter Partes Review of USP 7,075,917
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`Page 8
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` The Claims
`
`This Petition challenges claims 1-3, and 9-10 of the ’917 Patent. Claims 1, 9
`
`and 10 are independent claims. Claim 1 is shown below.
`
`1. A wireless network comprising a radio network
`
`controller and a plurality of assigned terminals, which are
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`each provided for exchanging data according to the hybrid
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`ARQ method and which form a receiving and/or
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`transmitting side, in which a physical layer of a
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`transmitting side is arranged for
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`storing coded transport blocks in a memory, which
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`blocks contain at least a packet data unit which is delivered
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`by an assigned radio link control layer and can be
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`identified by a packet data unit sequence number,
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`storing abbreviated sequence numbers whose length
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`depends on the maximum number of coded transport
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`blocks
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`to be stored and which can be shown
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`unambiguously in a packet data unit sequence number, and
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`for
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`transmitting coded transport blocks having at least
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`an assigned abbreviated sequence number and
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`a physical layer of a receiving side is provided for
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`testing the correct reception of the coded transport block
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`and for sending a positive acknowledge command to the
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`transmitting side over a back channel when there is correct
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`reception and a negative acknowledge command when
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`there is error-affected reception.
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`V. APPLIED PRIOR ART
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` TR25.835
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`TR25.835 (Ex. 1005) was published by 3GPP in 2000 and publicly available
`
`on the 3GPP file server no later than September 13, 2000. See Rodermund Decl., Ex.
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`1004, ¶ 25, see also id. at ¶¶ 12-24. It thus qualifies as prior art under at least Sections
`
`102(a) and (b)1.
`
`TR25.835 is directed to a wireless network comprising a radio network
`
`controller and a plurality of assigned terminals, which are each provided for
`
`exchanging data and which form a receiving and/or transmitting side, as essentially
`
`admitted to by the ’917 Parent. (Ex. 1001 at 1:10-18.) TR25.835 is specifically
`
`directed to Hybrid ARQ Type II/III technical solutions. (TR25.835 at pp. 7 and 8.)
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`In particular, TR25.835 describes alternative approaches to Hybrid ARQ
`
`implementations. One of those options “uses hybrid ARQ type II/III retransmissions
`
`
`1 Pre-AIA Section 102(b) time bars are triggered off “the date of the application for
`
`patent in the United States” (emphasis added), not the date of the German application
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`to which the ’917 Patent alleges pfriority. See 35 U.S.C. § 102(b) (Pre-AIA).
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`at Layer 1” [i.e., the physical layer] as explained in more detail in Chapter 7 of
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`TR25.835 (Id. at p. 9.) TR25.835 states that this option adds “fast hybrid ARQ II/III
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`functionality” (or “FHARQ” or “fast HARQ”) to the physical layer. (TR25.835 at p.
`
`9; Bims, ¶ 40.)
`
`Chapter 7 of TR25.835 was not contained in the earlier version of TR25.835
`
`(V0.0.2) that is discussed in the specification of the ’917 Patent (Ex. 1001, 1:9-62;
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`5:13-35) and which was disclosed in an IDS submitted during the prosecution of
`
`the ’917 Patent (Ex. 1002 at pp. 52-53).2 Thus, the Examiner did not have this
`
`information when examining the application. Bims, ¶ 41.
`
`Chapter 7 discusses the structure, function, and advantages of the HARQ
`
`option. TR25.835 at pp. 25-28. Among other things, the HARQ option of Chapter 7
`
`discloses and suggests several features that are relevant to the ’917 Patent’s claims,
`
`including but not limited to:
`
`
`2 Indeed, the 3GPP document that proposed the Chapter 7 changes that led up to
`
`TR25.835 is dated even earlier, i.e., August 23, 2000. See Ex. 1009; Rodermund
`
`Decl., Ex. 1004 at ¶ 27. It also was not cited during the prosecution of the ‘917
`
`Patent. Christoph Herrmann, the named inventor on the ’917 Patent, was apparently
`
`at the Sophia Antipolis, France conference where this change proposal was
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`presented. See Ex. 1010; Rodermund Decl., ¶ 28.
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`(1)
`
`the physical layer of the receiving side testing whether the coded
`
`transport blocks were correctly received (without waiting for such testing or
`
`acknowledgement from the radio link control layer or “RLC” layer);
`
`(2)
`
`the physical layer sending over a back channel (or a channel directly
`
`between the physical layers of the transmitting and receiving sides) a positive
`
`acknowledgment when there is a correct reception of the coded transport blocks (i.e.,
`
`data and CRC or redundancy information) and a negative acknowledgment when
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`there is an error-affected reception (without waiting for such testing or
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`acknowledgement from the RLC layer); and
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`(3) generating a sequence number at the physical layer.
`
`Specifically, for instance, Chapter 7 of TR25.835 states:
`
`To perform the fast HARQ operation the physical layer
`
`requires some additional side information, e.g. FHARQ
`
`sequence number, and redundancy version. The
`
`selection of these parameters should be under the control
`
`of MAC but the actual parameter values are generated at
`
`L1. The physical layer can encode the data and the side
`
`information separately, and map them on one, or possibly
`
`even different physical channels. At the receiver the
`
`buffering and recombining of the data is performed.
`
`Id. at p. 26 (emphases added); see Bims, ¶¶ 42-43.
`
`Further, for example, TR25.835 explains how the physical layers are used.
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`7.2 Usage of transport channels and physical
`
`channels
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`If fast HARQ is operated as a dual-channel model, the side
`
`information must be available very quickly since the
`
`retransmission interval is only one frame. The receiver
`
`reads the sequence number and redundancy version
`
`after which the packet is decoded. The integrity of the
`
`packet is checked and an acknowledgement is sent in
`
`the current uplink frame. Fast HARQ is planned to be
`
`employed on DSCH. Side information and sequence
`
`number are added by Layer 1 to facilitate fast decoding
`
`at the receiver end.
`
`****
`
`7.3 Services provided by the physical layer
`
`7.3.1 Functions of Layer 1
`
`The main functions of the physical layer are listed in [1].
`
`The following additional functions have to be performed
`
`for fast HARQ operation:
`
`-
`
`redundancy selection, TX buffering, retransmission
`
`control, RX soft decision buffering and combining for
`
`data
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`- encoding/decoding, transmission, and error detection
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`on fast HARQ side information (including fast
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`acknowledgements)
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`- generation of Acknowledgement PDU & Side
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`Information
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`7.3.2 Interface to Layer 1
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`According to the functional split, major parts of the
`
`functionality for fast HARQ have to be performed in
`
`the physical layer. Some fast HARQ parameters are
`
`passed from higher layers, the required changes are FFS.
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`TR25.835 at p. 27 (emphasis added); see Bims, ¶¶ 44.
`
`The following figure from TR25.835 clearly shows a “back” channel or
`
`channels directly between the physical sides of a transmitter and receiver. The solid
`
`lines generally show “the transport of user data that is to utilize fast hybrid ARQ”
`
`and the dotted lines “visualise the transport of necessary side information for fast
`
`hybrid ARQ operation.” TR25.835 at p. 27. As shown above, the physical layer
`
`performs (among other things) “error detection on fast HARQ side information
`
`(including fast acknowledgements” as well as “generation of Acknowledgement
`
`PDU & Side Information” without waiting for the RLC layer. Id. at p. 27 (emphasis
`
`added). Thus, TR25.835 teaches that the physical layer of the receiving side tests
`
`whether the coded transport data was correctly received or not, and sends over a
`
`“back” channel a positive or negative acknowledgment, respectively, without
`
`waiting for the RLC layer.
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`
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`Id. at Figure 2, p. 27; see Bims, ¶ 45.
`
` Abrol
`
`Abrol (Ex. 1007) teaches the use of an abbreviated or shortened sequence
`
`number to identify a packet data unit in a wireless communication system employing
`
`ARQ protocols. Bims, ¶ 46. Abrol was filed on May 27, 1999 and issued on January
`
`14, 2003. Abrol is prior art to the ’917 Patent (at least) under 35 U.S.C. § 102(e)
`
`(pre-AIA).
`
`Specifically, Abrol teaches generating shortened sequence numbers from
`
`assigned sequence numbers to unambiguously identify an item of data:
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`The RLP sequence number 240 in each retransmit frame
`
`230 may optionally be shortened in the same ways as
`
`discussed for RLP sequence numbers as long as doing so
`
`causes no sequence number ambiguity.
`
`***
`
`The type field is followed by the RLP sequence number.
`
`When possible without causing sequence number
`
`ambiguity, shortened RLP sequence numbers of 8 bits
`
`are used. At other times, shortened RLP sequence
`
`numbers of 14 bits or full 20-bit RLP sequence numbers
`
`are contained by the RLP header.
`
`Abrol at 8:18-21, 9:16-21; see also id. at 10:49-54, 12:64–13:6 (emphases adde
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