UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. AND
`TELEFONAKTIEBOLAGET LM ERICSSON
`Petitioners
`
`v.
`
`
`
`
`
`INTELLECTUAL VENTURES I LLC
`Patent Owner
`____________
`
`Case No. IPR2018-00727
`Patent No. 6,628,629
`
`Title: RESERVATION BASED PRIORITIZATION METHOD FOR WIRELESS
`TRANSMISSION OF LATENCY AND JITTER SENSITIVE IP-FLOWS IN A
`WIRELESS POINT TO MULTI-POINT TRANSMISISON SYSTEM
`____________
`
`
`SECOND DECLARATION OF DR. ZYGMUNT HAAS IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,628,629
`
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 1
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. AND
`TELEFONAKTIEBOLAGET LM ERICSSON
`Petitioners
`
`v.
`
`
`
`
`
`INTELLECTUAL VENTURES I LLC
`Patent Owner
`____________
`
`Case No. IPR2018-00727
`Patent No. 6,628,629
`
`Title: RESERVATION BASED PRIORITIZATION METHOD FOR WIRELESS
`TRANSMISSION OF LATENCY AND JITTER SENSITIVE IP-FLOWS IN A
`WIRELESS POINT TO MULTI-POINT TRANSMISISON SYSTEM
`____________
`
`
`SECOND DECLARATION OF DR. ZYGMUNT HAAS IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF U.S. PATENT NO. 6,628,629
`
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 1
`
`
`
`TABLE OF CONTENTS
`
`3.
`
`2.
`
`
`
`I.
`
`
`
`
`
`
`
`Page
`ATM is a packet-switched technology ............................................................ 2
` A POSITA would have understood ATM to be a packet-
`switched technology under the ordinary meaning of that term. ............ 2
`Background on Packet-Switching and Virtual Circuit
`Techniques Used By ATM. ................................................................... 5
`The ‘629 Patent confirms that ATM uses packets. ............................. 10
`1.
`ATM Cells Are Expressly Described As Packets. .................... 10
`2.
`ATM Cells are Packets Under Any of the Constructions
`Proposed in the Prior IPR. ........................................................ 12
`None of the citations by the POR or by Dr. Heidari
`support a contrary conclusion. .................................................. 16
`The Claimed “Data Packets” Should Not be Construed to
`Require a Packet-Switched Network .................................................. 18
`1.
`“Data Packets” Comprise Units Of Data That Are
`Segmented as Necessary for Wireless Transmission ................ 18
`To the extent that PO’s proposed construction excludes IP
`over ATM, PO’s Proposed Construction Excludes
`Preferred Embodiments. ........................................................... 23
`II. MOTIVATION TO COMBINE .................................................................... 27
`III. Dyson was publically available ..................................................................... 31
`IV. Conclusion ..................................................................................................... 32
`
`
`
`
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`
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`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 2
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`
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`Declaration of Zygmunt Haas
`
`I, Zygmunt Haas, declare as follows:
`
`
`1.
`
`I make this declaration based on my own personal knowledge and, if
`
`called upon to testify, would testify competently to the matters contained herein.
`
`2.
`
`I have been asked to provide technical assistance in the inter partes
`
`review of U.S. Patent No. 6,628,629 (“the ’629 Patent”) (IPR2018-00727).
`
`3.
`
`I prepared a declaration dated March 1, 2018 in connection with this
`
`matter containing a statement of my opinions on issues related to the unpatentability
`
`of claims 1-4 of the ’629 Patent. Since I signed that declaration, I have reviewed the
`
`following documents: i) Patent Owner’s Preliminary Response, ii) the Board’s
`
`Decision regarding Institution of Inter Partes Review, iii) Patent Owner’s Response,
`
`iv) the Declaration of Dr. Ghobad Heidari in Support of the Patent Owner’s
`
`Response, and v) the transcript of the Deposition of Dr. Heidari taken April 3, 2019
`
`in Chicago, Illinois (Ex. 1029).1 I also cite additional exhibits herein in support of
`
`this supplemental declaration including, Ex. 1031 (Microsoft Press Computer
`
`
`1 I have also reviewed the Final Written Decision from IPR2017-00527 (the ’527
`
`IPR, which PO relies on for its proposed construction of the term “packet.” Ex.
`
`1030.
`
`1
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`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 3
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`
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`
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`Dictionary), Ex. 1032 (Focal Dictionary), Ex. 1033 (Webster’s Dictionary), and Ex.
`
`1034 (Computer Desktop Encyclopedia).
`
`4.
`
`I have been asked to address several of the contentions raised by Patent
`
`Owner and Dr. Heidari in connection with Patent Owner’s Response, including
`
`certain issues related to a) whether ATM as described by the ‘629 Patent, Dyson (Ex.
`
`1004), and Raychaudhuri (Ex. 1005) meets Patent Owner’s proposed claim
`
`construction of the term “packet” and b) Patent Owner’s motivation to combine
`
`argument with respect to the proposed Dyson/Raychaudhuri combination set forth
`
`in my March 1, 2018 declaration.
`
`I.
`
`ATM IS A PACKET-SWITCHED TECHNOLOGY
` A POSITA would have understood ATM to be a packet-switched
`technology under the ordinary meaning of that term.
`The Patent Owner Response (POR) and the declaration of Dr. Heidari
`
`5.
`
`reflect a fundamental misunderstanding of packet-switched technologies, including
`
`ATM. First, both the POR and Dr. Heidari rely on the factually incorrect premise
`
`that ATM did not use packets and was not packet-switched. POR, at 29-34, 40-45;
`
`Ex. 2020, ¶¶ 38-53. This is factually simply incorrect. Indeed, the fact that ATM
`
`uses packets (typically referred to as “ATM cells”) and that ATM was a packet-
`
`switched technology is confirmed by abundant of references that existed before the
`
`priority date of the ‘629 patent and until today. ATM was, by definition, a well-
`
`2
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 4
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`
`
`
`
`known packet-switching technology prior to the claimed priority date of the ‘629
`
`Patent; for example:
`
`Asynchronous Transfer Mode (ATM): A packet
`switching communications standard that uses packets of
`fixed length called ATM cells. These cells are routed
`through the network by reference to address information
`rather than by their position in a frame. Operation is
`connection mode by setting up virtual channels. ATM is
`able to carry a mix of traffic types: voice, data, and video.
`Ex. 1032 (Focal Illustrated Dictionary 33 (1999)) (emphasis in original); see also
`
`Ex. 1019, at 4 (“ATM packet-switching techniques. ATM is a high-speed packet-
`
`switching technique using short fixed-length packets called cells.” (emphasis in
`
`original). These definitions are consistent with the understanding a POSITA would
`
`have had at the time of the ‘629 patent. See, e.g., Ex. 1031 (Microsoft Press
`
`Computer Dictionary (3rd Ed. 1997) (in defining “ATM,” stating that “[d]ata,
`
`including frame relay data, is broken into packets containing 53 bytes each, which
`
`are switched between any two nodes in the system . . .”) (emphasis added).
`
`6.
`
`The POR and Dr. Heidari appear to have relied solely on the
`
`descriptions of prior art ATM that are contained within the ‘629 Patent. See, e.g.,
`
`Ex. 1029 (Heidari Tr.) at 117:7-118:15 (“So in my view, a POSITA would question
`
`the use of the word ‘cell’ and would research the context in which it should be used,
`
`and depending on the context, will apply the word ‘cell’ or generalize to mean
`
`something different. But I didn’t go through that exercise in this particular IPR.”)
`
`3
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`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 5
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`
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`(emphasis added))2. Dr. Heidari confirmed, for example, that he had neither read any
`
`dictionaries for basic definitions of ATM, nor had he reviewed Exhibit 1019, which
`
`I referred to in my previous declaration, and which confirms that ATM is packet-
`
`switched. Ex. 1029 (Heidari Tr.), at 41:21-23; 42:17-20; 42:21-43:8.
`
`7.
`
`I have reviewed the descriptions of ATM relied on by Dr. Heidari in
`
`the ‘629 Patent and have found no evidence to suggest that the ‘629 Patent viewed
`
`an “ATM cell” as something other than a type of packet, nor have I found evidence
`
`that suggests that ATM was not packet-switched technology. See, e.g., Ex. 2020, at
`
`¶ 38. The descriptions of ATM in the ‘629 Patent specification relied on by the POR
`
`and Dr. Heidari are consistent with the basic definition of ATM that could be found
`
`in the dictionary or textbooks at, or near, the time of the ‘629 Patent. By way of a
`
`limited set of examples, the following Exhibits refer to ATM cells as packets and to
`
`ATM as packet-switched technology: Ex. 1031– Ex. 1034.
`
`8.
`
`Although the PO and Dr. Heidari claim that ATM cells are not packets
`
`in the context of the ‘629 patent (POR, p. 9-13; Ex. 2020 at 16-20), Dr. Heidari
`
`himself acknowledged that the ATM that the ‘629 patent, the Dyson, and the
`
`Raychadhuri references refer to is the “standard ATM” (Ex. 1029, 55:14 – 58:13).
`
`And, Ex. 1031 – Ex. 1034 discussed above all refer to, what a POSITA would have
`
`
`2 In this declaration, emphasis in cited material is added, unless stated otherwise.
`
`4
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 6
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`
`
`
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`understood to be, the standard ATM technology. Furthermore, the ‘629 patent does
`
`not define ATM in any different way than what a POSITA would have understood
`
`standard ATM to be.
`
`
`
`9.
`
`Background on Packet-Switching and Virtual Circuit Techniques
`Used By ATM.
`The PO appears to suggest that the patent’s description of ATM as
`
`being “circuit-centric” supports a conclusion that ATM was not packet-switched.
`
`See, e.g., POPR, at 13. The PO is incorrect to the extent that they appear to conflate
`
`the concept of traditional circuit-switching with the use of virtual circuits in packet-
`
`switched networks, such as ATM.3 See, e.g., POR, at 20-21 (citing my declaration
`
`from IPR2018-01007, at ¶ 86). Indeed, in my prior declaration, I stated the
`
`following:
`
`86. ATM differs from the traditional circuit-centric
`technologies because it allows for resource sharing-e.g.,
`ATM relies on the use of virtual circuits to implement a
`connection-oriented packet-switched network. This is
`consistent with the specification, which describes that
`ATM uses virtual circuits and/or virtual paths, which are
`identified in the header of ATM packets (also called cells)
`and are used to route calls through the network. See id. at
`35:4-8; 35:24-36; 36:20-30.
`10. A POSITA would have understood that ATM is a virtual circuit packet-
`
`switched protocol. I have been asked to further explain the reasoning for my opinion
`
`
`3 Although both terms use the word “circuit,” their meaning is profoundly different.
`
`5
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 7
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`
`
`
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`that a POSITA would have understood virtual circuits to be a packet-switched
`
`technology. I provide below additional background information on packet-
`
`switching principles, including the concept of virtual circuits. Indeed, as discussed
`
`below, “packet-switching” comes in two flavors: connection-oriented packet
`
`switching – virtual circuits, and connectionless packet-switching – datagram.
`
`11. Traditional circuit switching involved the dedication of physical
`
`resources (such as bandwidth of links) for the duration of a call. Ex. 1041 at 8 (“A
`
`key characteristic of circuit-switched networks is that resources within the network
`
`are dedicated to a particular call.”) An alternative technology to the traditional
`
`circuit-switching is packet switching. Packet switching involves breaking up user
`
`data into a series of packets. See Ex. 1001, at 31:1-4 (“Packet switching breaks a
`
`media stream into pieces known as, for example, packets, cells, or frames”); Ex.
`
`1041 at 8. Control information is then added in the form of a packet header, as
`
`shown in the figure below.
`
`6
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`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 8
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`
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`12. This control information includes information used by the network to
`
`route the packet from the source to the intended destination. Ex. 1001, 31:2-4 (“Each
`
`packet can then be encoded with address information for delivery to the proper
`
`destination and can be sent through the network.”); Ex. 1041 at 66. I note that the
`
`control information could be the final address of the destination, but could also be
`
`other information as long as such information facilitates delivery of the packet to its
`
`intended destination. See, e.g., Ex. 1001, 35:65-36:3 (explaining that in an ATM
`
`cell, VPI/VCI “hold local significance only, and identify the destination.”).
`
`13. Packet-switching solves the shortcomings of traditional circuit-
`
`switching (e.g., the dedication of physical resources to connections), because it
`
`allows for resource sharing of packets belonging to different connections on the
`
`7
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 9
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`
`
`
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`same physical link. Also, unlike the traditional circuit switching, packet switching
`
`is better suited to variable data rates.
`
`14. Using virtual circuits was one of the two basic approaches to packet-
`
`switching as was well known to POSITA at the time of the ‘629 Patent. The other
`
`basic approach (other than virtual circuits) was known as datagram. Datagram
`
`refers to an approach in which each packet is treated independently, with no
`
`reference to other transmitted packets. Ex. 1041 at 9 (“There are two approaches that
`
`are used in contemporary networks: datagram and virtual circuit. In the datagram
`
`approach, each packet is treated independently, with no reference to packets that
`
`have gone before.”); id. at 16 (Table 3.1).
`
`15.
`
`In the virtual-circuit approach, a preplanned route is established before
`
`any user data is sent. Ex. 1041 at 68. This packet-switched technique is referred to
`
`as a “virtual circuit,” because the route each packet takes may be fixed for the
`
`duration of the logical connection. Ex. 1041 at 68 (“Because the route is fixed for
`
`the duration of the logical connection, it is somewhat similar to a circuit in a circuit-
`
`switching network, and is referred to as a virtual circuit.”). Each packet contains a
`
`virtual-circuit identifier (VCI) as well as data so that each switch can route the packet
`
`along the path on the preestablished route. The fact that the route is preestablished
`
`at the outset of the call in virtual circuit packet switching does not equate virtual
`
`circuits—a packet switching technique—with traditional circuit-switching. Ex.
`
`8
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 10
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`
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`
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`1041 at 68 (“So the main characteristic of the virtual-circuit technique is that a route
`
`between stations is set up prior to data transfer. Note that this does not mean that
`
`this is a dedicated path, as in circuit switching. A packet is still buffered at each
`
`node, and queued for output over a line. The difference between the datagram
`
`approach is that, with virtual circuits, the node need not make a routing decision for
`
`each packet.”) Indeed, a difference between virtual circuit (a packet switching
`
`technology) and the traditional circuit-switching is that in the former the connection
`
`(the circuit) is virtual (i.e., does not involve dedication of physical resources), while
`
`in the latter the connection (the circuit) involves dedication of physical resources.
`
`The use of virtual circuits in packet-switched networks was not uncommon – in fact,
`
`the “concept of a virtual circuit was first used in data communications with packet
`
`switching.” Ex. 1038 (Newton’s Telecom Dictionary 804 (18th Ed. 2002).
`
`16.
`
`I note that the Patent Owner Response criticizes my citation to the
`
`Goodman reference as evidence that “virtual circuits” are a packet-switched
`
`technique (such as used in ATM networks). See POR, at 21 (arguing that
`
`Goodman’s description of virtual circuit packet switching is “irrelevant” to ATM).
`
`I disagree. To the contrary, it was well-known to POSITA that virtual circuits were
`
`encountered in packet-switched networks such as ATM, thus making the above
`
`citation to Goodman quite relevant. See Ex. 1032 (Mazda, Focal Illustrated
`
`Dictionary of Telecommunications 657 (1999) (“Virtual circuits are encountered in
`
`9
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`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 11
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`
`
`
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`a Packet Switched Network (PSN), such as ATM, where there is no dedicated access
`
`path associated with each call”).
`
`17.
`
`In summary, a POSITA would have understood that ATM is “a packet
`
`switching communications standard that uses packets of fixed length called ATM
`
`cells. These cells are routed through the network by reference to address information
`
`rather than by their position in a frame. Operation is connection mode by setting up
`
`virtual channels. ATM is able to carry a mix of traffic types: voice, data, and video.”
`
`Ex. 1032 (Focal Illustrated Dictionary 33 (1999), emphasis in original). This is
`
`consistent with my personal knowledge of how ATM was understood and described
`
`at the time of the ‘629 Patent.
`
` The ‘629 Patent confirms that ATM uses packets.
`1.
`ATM Cells Are Expressly Described As Packets.
`18. PO’s primary argument over
`the proposed combination of
`
`Dyson/Raychaudhuri appears to be based on the mistaken belief that ATM cells are
`
`not packets. POR, at 9-13. It is my opinion that this position is a) inconsistent with
`
`how a POSITA would have understood ATM as it existed in the prior art, and b)
`
`inconsistent with the disclosures of the ‘629 Patent.
`
`19. First, a POSITA would have understood that the term “ATM cell” is a
`
`term that merely refers to the type of data packet used in ATM systems; it in no way
`
`suggests to a POSITA that a cell is not a packet. Ex. 1032 (Focal Illustrated
`
`10
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 12
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`
`
`
`
`Dictionary 33 (1999)). It was well known that the term “cell” was synonymous with
`
`“packet.” See Ex. 1033, Webster’s World Dictionary of Computer Terms (6th Ed.
`
`1997) (“cell . . . 2. In Asynchronous Transfer Mode (ATM) networking, a small unit
`
`of data that has been broken up for efficient transmission (synonymous with packet.”
`
`(emphasis in original)).
`
`20.
`
`Second, the ‘629 Patent confirms that the patentee also recognized that
`
`ATM cells are packets consistent with its ordinary meaning, particularly in light of
`
`its description of the “ATM cell packet format.” Ex. 1001, at 26:1-14 (“As those
`
`skilled in the art will recognize, other format are available, including, e.g., a
`
`transmission control program, internet protocol (TCP/IP) packet format, an
`
`asynchronous transfer mode (ATM) cell packet format . . .”). A POSITA would have
`
`understood that this passage referred to the well-known 53-byte packet format of
`
`ATM cells, which comprises a packet header and payload. See id. at 35:1-5 (“ATM
`
`is a high-bandwidth, low-delay, fixed-size cell-based multiplexing network
`
`technology. Bandwidth capacity is segmented into 53-byte cells, having a header
`
`and payload fields”).
`
`21. A POSITA would
`
`further have understood
`
`that
`
`the patent
`
`acknowledged the use of packets in ATM—the definitions section of the ‘629 Patent
`
`clearly refers to “Voice over ATM” as being one example of “Voice over Packet.”
`
`Id. at column 9 (see definition for “packetized voice or voice over a backbone”).
`
`11
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`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 13
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`
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`
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`Therefore, it is my opinion that no specific construction is necessary of the term
`
`“packet” in light of the clear disclosure of the “ATM cell packet format.” This
`
`disclosure alone provides sufficient basis for a POSITA to conclude that the ATM
`
`cell, consistent with the ordinary meaning of the term, is a packet, including in the
`
`context of the ‘629 Patent.
`
`2.
`
`ATM Cells are Packets Under Any of the Constructions
`Proposed in the Prior IPR.
`It is my understanding that the PO proposes that the Board adopts the
`
`22.
`
`construction for “packet” that was used in a prior IPR (IPR2017-00527) regarding
`
`U.S. Patent No. 7,496,674 (“the ‘674 Patent”)—“a piece or segment of data/media
`
`stream that serves as a unit of transmission over a packet-switched network.” That
`
`IPR involved a dispute between the parties as to whether the “packet” claimed in the
`
`‘674 Patent required a header per se. Ex. 2001, at 7-9. Intellectual Ventures
`
`contended that a “packet” required “a header and a payload,” while Ericsson
`
`contended that “a packet does not require a header.” Id. at 7. The Board resolved
`
`that dispute as follows:
`
`In view of the foregoing, we will construe a “packet” as a
`piece or segment of a data/media stream that serves as a
`unit of transmission over a packet switched network. To
`the extent that the “packet” of claims 1, 13, and 18 is
`required to have a header, such requirement is imposed by
`the express claim language “comprises a header” and is
`not imposed by virtue of the definition of “packet” per se.
`
`
`
`12
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 14
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`23.
`
`Id. at 9. As an initial matter, an ATM cell meets either of the parties’
`
`proposed constructions from that prior IPR. See Ex. 1001, at 35:3-5 (“Bandwidth
`
`capacity is segmented into 53-byte cells, having a header and payload fields.”).
`
`Notably, the PO spends much of its POR on an argument that the ATM cell is not a
`
`packet because the header does not contain a “destination address.” See POR, at 11-
`
`13. This argument is flawed for two reasons.
`
`24. First, neither of the parties’ proposed constructions from the prior IPR
`
`required a “destination address,” and the Board’s construction (on which PO relies)
`
`rejected the notion that a packet must have a header (let alone a header that must
`
`contain particular kind of control information, such as a destination address). Under
`
`the Board’s prior analysis, a packet may exist even prior to any header information
`
`being added. The Board’s prior decision therefore does not require the packet to
`
`contain a destination address.
`
`25.
`
`Second, a POSITA would have understood that the ATM cell does
`
`indeed contain information sufficient to route the packet to the destination, which is
`
`a fact that the ‘629 Patent recognizes. See Ex. 1001, 35:65-36:3 (“An ATM cell
`
`header includes a . . . virtual path identifier (VPI), a virtual channel identifier
`
`(VCI) . . . . VPI and VCI hold local significance only, and identify the destination.”).
`
`26. Third, as I explained in paragraph 22 above, the use of explicit
`
`destination address in a packet header is a feature of datagram packet-switching –
`
`13
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`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 15
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`
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`one of the two known packet-switching techniques. In virtual-circuit packet-
`
`switching, the destination is identified by the VCI/VPI numbers on each link of the
`
`path, which is all that is needed to correctly switch the packets at each node. As I
`
`explained above, a POSITA would have understood that there is no requirement that
`
`a packet must contain a particular kind of control information, such as a global
`
`destination address, to qualify as a packet (particularly in light of the Board’s prior
`
`analysis finding that a packet may exist as a packet prior to any header information
`
`being added).
`
`27.
`
`In summary, I have seen no basis to limit the definition of “packet” to
`
`require a header with a particular kind of destination information, in the context of
`
`the ‘629 Patent or otherwise.
`
`28. But even if the Board adopts PO’s proposed construction for the term
`
`“packet” in the present IPR (i.e., “a piece or segment of data/media stream that serves
`
`as a unit of transmission over a packet-switched network”), an ATM cell still meets
`
`that definition. As described above, ATM is a packet-switched protocol that breaks
`
`a media stream into packets known as cells. Ex. 1032 (Focal Illustrated Dictionary
`
`33 (1999)).
`
`29. This is entirely consistent with the ‘629 Patent disclosure and with the
`
`ordinary meaning of ATM cells being packets and ATM being a packet-switching
`
`technique. See, e.g., Ex. 1001, at 31:1-4 (“Packet switching breaks a media stream
`
`14
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 16
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`
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`into pieces known as, for example, packets, cells, or frames”); id. at 36:16-18
`
`(“When using ATM, longer packets cannot delay shorter packets as in other packet-
`
`switched networks, because long packets are separated into many fixed length
`
`cells.”);4 See Ex. 1033, Webster’s World Dictionary of Computer Terms (6th Ed.
`
`1997) (“cell . . . 2. In Asynchronous Transfer Mode (ATM) networking, a small unit
`
`of data that has been broken up for efficient transmission (synonymous with packet.”
`
`(emphasis in original)); Ex. 1019, at 628 (“ATM is a high-speed packet-switching
`
`technique using short fixed-length packets called cells.”).
`
`30. To the extent that the POR can be read to suggest that the ‘629 Patent’s
`
`description of ATM as “circuit-centric” therefore suggests that ATM cannot be
`
`packet-switched, I disagree. The fact that ATM uses virtual circuits confirms, rather
`
`than refutes, that ATM is a packet-switched protocol. See Ex. 1001, at 35:1-13 (“The
`
`
`4 I understand that Dr. Heidari interprets this sentence to mean that ATM is not a
`
`packet-switched network. See Ex. 2020, at ¶ 48. If that were true, then the patentee
`
`would not have used the word “other” in this sentence, but rather say ‘as in packet
`
`switched networks’. Indeed, the description of “other packet-switched networks” in
`
`the context of this sentence would have clearly been understood by a POSITA to
`
`refer to ATM as a type of packet-switched network, consistent with the ordinary
`
`understanding of ATM as such.
`
`15
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 17
`
`
`
`
`
`ATM environment sets up virtual circuits in a circuit-centric manner. Thus, ATM
`
`segments variable length IP packet flows into fixed size cells using a segmentation
`
`and resequencing algorithm (SAR)”). As discussed above, virtual circuits are not to
`
`be equated with traditional circuit-switched techniques where the latter used
`
`synchronous rather than asynchronous transfer modes. See Ex. 1032 (Mazda, Focal
`
`Illustrated Dictionary of Telecommunications 657 (1999) (“Virtual circuits are
`
`encountered in a Packet Switched Network (PSN), such as ATM, where there is no
`
`dedicated access path associated with each call” (emphasis in original)).
`
`31. The ‘629 Patent does not suggest that a protocol that is circuit-centric
`
`cannot be packet-switched—it in fact confirms that a protocol can be both circuit-
`
`centric and packet-switched. For example, frame relay is described as, like ATM,
`
`being a circuit-centric protocol. Ex. 1001, at 34:64-65. But it is also clearly
`
`described as packet-switched. Id. at 37:11-12. This is consistent with the ordinary
`
`meaning of those terms, as would have been understood by a POSITA.
`
`3.
`
`None of the citations by the POR or by Dr. Heidari support
`a contrary conclusion.
`32. The POR and Dr. Heidari repeatedly suggest that the term “packet” as
`
`defined by the ‘629 Patent somehow excludes ATM and/or ATM cells. But none of
`
`the passages in the ‘629 Patent contains an explicit definition of a “packet”. And
`
`neither any of the cited passages explicitly states that ATM cells are not packets, nor
`
`16
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 18
`
`
`
`
`
`do any of these passages states that ATM is not packet-switched.5 To the contrary,
`
`it appears that Dr. Heidari is relying solely on the fact that a different word—cell—
`
`is used to describe packets as implemented by ATM.6 The fact that a different word
`
`is used to describe the data units in ATM would have led a POSITA to understand
`
`that ATM uses a particular kind of packet, called a cell. Dr. Heidari has cited no
`
`extrinsic evidence to support his conclusion that an ATM cell is not a packet, and
`
`none of Dr. Heidari’s analysis of the ‘629 Patent rules out the fact that a cell is simply
`
`a type of packet. See, e.g., Ex. 2020, at ¶ 38 (citing numerous places where patent
`
`mentions “ATM cells”).
`
`33. And, as described above (paragraphs 32-33), the mere fact that ATM is
`
`described as “circuit-centric” does not necessarily exclude ATM from being packet-
`
`switched too. In short, the POR is lacking an analysis that would lead a POSITA to
`
`
`5 Several passages in the ‘629 Patent contain descriptions of datagram packet-
`switching, e.g., 14:40-49 and 31:9-17, but a POSITA would have nevertheless
`understood that virtual circuit, one of the two types of packet-switching, still exists
`in embodiments of the invention. See Ex. 1001, at 37:32-33 (describing IP network
`over ATM as one embodiment of the invention). Moreover, there is no evidence
`that the PTAB’s prior construction was intended to be limited to a particular kind of
`packet-switched networks – the datagram, and exclude the other type – virtual
`circuit.
`6 Indeed, if one were to accept that a cell cannot be a “packet” because the two words
`are different, then, by the same logic, one would need to conclude that a datagram
`is not a packet too, which, of course, would be an irrational conclusion.
`
`
`17
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 19
`
`
`
`
`
`agree that the ‘629 Patent departed from the ordinary meaning of packet to exclude
`
`ATM cells.
`
` The Claimed “Data Packets” Should Not be Construed to Require
`a Packet-Switched Network
`1.
`“Data Packets” Comprise Units Of Data That Are
`Segmented as Necessary for Wireless Transmission
`34. Although the Patent Owner advocates the adoption of the Board’s prior
`
`construction for “packet,”7 this construction was provided in the context of entirely
`
`different claims of different scope than are at issue in this IPR. See POR at 3. Those
`
`claims in the ‘674 Patent were concerned with applying security protocols to a packet
`
`received from the network, not to reserving slots for “data packets” in future
`
`transmission frames, as in this IPR.
`
`35. This is a significant difference, because in the context of the challenged
`
`claims 1-4 of the ‘629 Patent, the claimed “data packets” that are transmitted in slots
`
`over the wireless medium are not described by the patent as being in the same format
`
`as those received by the wired network (such as the data network 142). Further, the
`
`claimed data packets of the challenged claims 1-4, which represent data units
`
`formatted for transmission in a slot of a wireless transmission frame, do not
`
`necessarily serve as units for transmission over a packet-switched network. In
`
`
`7 Dr. Heidari confirmed during his deposition that he had not reviewed the Board’s
`prior claim construction ruling on which he now relies. Ex. 1029 (Heidari Tr.) at
`106:7-19.
`
`18
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 20
`
`
`
`
`
`essence and as discussed below, the “packets” of the challenged claims 1-4 that are
`
`placed within slots, are not necessarily the same “packets” that are carried by a
`
`packet-switched network, as the packet-switched network would typically carry
`
`much larger packets than would fit within a slot and transmitted over a wireless link.
`
`Dr. Heidari acknowledged this fact in his deposition, where he agreed that the ‘629
`
`Patent contemplates that the variable length IP packets of an IP flow would be
`
`segmented into fixed sized data packets “as necessary” for wireless transmission.
`
`See Ex. 1029 (Heidari Tr.) at 258:9-18, 258:25-259:9.
`
`36. As I noted above, I do not believe any construction is necessary for the
`
`Board to conclude that ATM cells are packets based on the express description in
`
`the ‘629 patent as including an “ATM cell packet format.” Ex. 1001, at 26:1-14.
`
`However, to the extent that the Board does construe the term, the ‘629 Patent
`
`specification makes clear that the claimed “data packets” are units of data for
`
`wireless transmission (e.g., between a base station and CPE station) and that those
`
`packets are not necessarily the same format as the packets that are transmitted over
`
`the data network 142. See Ex. 1001, at 61:12-36. The patent does not place any
`
`requirement that such data packets be in a format suitable for transmission over a
`
`packet-switched network, so long as they are formatted for transmission in a slot of
`
`a wireless transmission frame. For example, the specification discloses that the
`
`claimed data packets may comprise segmented portions of IP packets and/or IP
`
`19
`
`Ericsson Exhibit 1035
`Ericsson v. IV1, IPR2018-00727
`Page 21
`
`
`
`
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`flows. See id. at 35:11-13; 49:25-29; 49:64-50:3; 50:59-66; 51:9-12; 79:33-51; see
`
`also Ex. 1029 (Heidari Tr.) at 258:9-18, 258:25-259:9.
`
`37. Segmentation
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