UNITED STATES PATENT AND TRADEMARK OFFICE
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`__________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`__________________
`
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`ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON
`Petitioners
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`v.
`
`INTELLECTUAL VENTURES I LLC
`Patent Owner
`
`__________________
`
`
`Case IPR2018-00727
`U.S. Patent No. 6,628,629
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`__________________
`
`
`PETITIONERS’ REPLY
`TO PATENT OWNER’S RESPONSE TO PETITION
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`
`
`__________________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`__________________
`
`
`ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON
`Petitioners
`
`v.
`
`INTELLECTUAL VENTURES I LLC
`Patent Owner
`
`__________________
`
`
`Case IPR2018-00727
`U.S. Patent No. 6,628,629
`
`__________________
`
`
`PETITIONERS’ REPLY
`TO PATENT OWNER’S RESPONSE TO PETITION
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`
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`TABLE OF CONTENTS
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`B.
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`I.
`II.
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`Page
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`INTRODUCTION ........................................................................................... 1
`The Board Should Reject PO’s Attempt to Narrow the Plain Meaning of
`“Packet” ........................................................................................................... 3
`A. A POSITA Would Have Understood that ATM Cells Are A Type of
`“Data Packet” ......................................................................................... 3
`B. No Construction Is Necessary for “Packet” Because The ‘629 Patent
`Expressly Describes that ATM Cells are “Packets” ............................... 5
`C. PO’s Construction for “Packet” Should Be Rejected As Unhelpful. ..... 7
`1. The Claimed “Data Packets” Should Not be Construed to Require
`a Packet-Switched Network. ........................................................... 7
`2. PO’s Requirement That a Packet Have a Header Are Inconsistent
`with the Board’s Prior Construction ............................................. 11
`3. PO’s Proposed Construction Improperly Excludes Preferred
`Embodiments ................................................................................ 12
`4. PO’s Reliance On ATM as “Circuit-Centric” to Suggest ATM is
`Not Packet-Switched is Misplaced ............................................... 16
`III. Claims 1-4 Are Obvious in Light of Dyson and Raychaudhuri .................... 18
`A. The Dyson/Raychaudhuri Combination Discloses “Packets” Under
`Any of the Constructions from the Prior IPR ....................................... 18
`PO’s Argument on the Motivation to Combine Dyson/Raychaudhuri is
`Incorrect ................................................................................................ 21
`C. Dyson Is Prior Art, and Petitioners Have Provided Sufficient Proof ... 24
`IV. CONCLUSION .............................................................................................. 26
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`EXHIBIT LIST
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`U.S. Patent No. 6,628,629 to Jorgensen (“the ’629 Patent”)
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`CV of Zygmunt Haas
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`Expert Declaration of Zygmunt Haas
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`A Dynamic Packet Reservation Multiple Access Scheme for Wireless
`ATM by Deborah A. Dyson and Zygmunt J. Haas (“Dyson”)
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`WATMnet: A Prototype Wireless ATM System for Multimedia
`Personal Communication by D. Raychaudhuri et al. (“Raychaudhuri”)
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`U.S. Patent No. 5,020,056 to Chennakeshu (“Chennakeshu”)
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`A Multimedia Synchronization Model and Its Implementation in
`Transport Protocols by Chun-Chuan Yang and Jau-Hsiung Huang
`(“Yang”)
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`for Local Wireless
`Packet Reservation Multiple Access
`Communications by D.J. Goodman et al. (“Goodman”)
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`PRMA/DA: A New Media Access Control Protocol for Wireless
`ATM by Jeong Geun Kim et al. (“Kim”)
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`U.S. Patent No. 5,287,347 to Spanke
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`PO Infringement Contentions, Exhibit B.
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`Computer Dictionary & Handbook by Charles J. Sippl et al., 3rd ed.
`(1981) (“Computer Dictionary”)
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`U.S. Provisional Patent Application No. 60/092542
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`Computer Networks by Andrew S. Tanenbaum, 3rd ed. (1996)
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`U.S. Patent No. 6,754,181 to Elliott
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`U.S. Patent No. 5,185,860 to Wu
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`1001
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`1002
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`1003
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`1004
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`1005
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`1006
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`1007
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`1008
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`1009
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`1010
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`1011
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`1012
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`1013
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`1014
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`1015
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`1016
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`1017
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`1018
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`1019
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`1020
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`1021
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`1022
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`1023
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`1024
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`1025
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`1026
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`1027
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`1028
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`1029
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`1030
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`1031
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`1032
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`1033
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`1034
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`1035
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`Expert Declaration of Dr. Sylvia Hall-Ellis
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`“SWAN: An Indoor Wireless ATM network” by E. Hyden, et al.
`(1995)
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`Mobile Cellular Telecommunications: Analog and Digital Systems by
`William C.Y. Lee, 2nd ed. (1995)
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`NEC Combines High-Speed IP Packet Processing with ATM
`Switching, Japan Industrial Journal, May 22, 1998.
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`RFC 2063
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`RFC 1483
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Exhibit number reserved for use in another proceeding
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`Deposition Transcript of Dr. Heidari
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`IPR2014-00527, Paper 41, Final Written Decision
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`Microsoft Press Computer Dictionary
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`Focal Dictionary
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`Webster’s Dictionary
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`Computer Desktop Encyclopedia
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`Second Expert Declaration of Zygmunt Haas
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`1036
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`1037
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`1038
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`1039
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`1040
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`1041
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`1042
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`2:17-cv-00577-JRG, Dkt. 293 (1/8/19)
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`2:17-cv-00577-JRG, Excerpts of 1/3/2019 Pretrial Conference
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`Newton’s Telecom Dictionary (18th Ed. 2002)
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`Exhibit number reserved for use in another proceeding
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`MILCOM’97 Proceedings, Technical Sessions
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`ISDN: An Introduction by William Stallings (1989)
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`PO’s Patent Local Rule 4-1 Identification of Terms for Construction
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`I.
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`INTRODUCTION
`The Patent Owner Response (“POR”) re-urges the same arguments that were
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`already correctly rejected by the Board’s Institution Decision. Specifically, Patent
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`Owner’s (“PO’s”) arguments all rely on the incorrect assertion that Dyson’s
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`disclosure of a “Packet Reservation Multiple Access” procedure does not really
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`use packets because ATM cells are not the claimed “data packets.” The Board’s
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`Institution Decision correctly rejected PO’s arguments in part because the
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`specification explicitly discloses ATM, and IP over ATM, as embodiments of the
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`invention. ID, 15-16. PO’s continued assertion that ATM cells are not “packets” is
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`inconsistent with the specification of the ‘629 Patent and contrary to a POSITA’s
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`understanding of that term. PO’s assertions are unsupported and contrary to all the
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`evidence, both intrinsic and extrinsic, and thus the Board should maintain its initial
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`determination in this regard.
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`PO’s position requires ignoring multiple descriptions in the patent of ATM
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`as being a packet-based system, including specific passages that confirm the ATM
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`cell has a “ATM cell packet format” and that “voice over ATM” is an example of a
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`“voice over packet” protocol. Ex. 1001, 26:5-6; Col. 9 (Table 1). Furthermore, the
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`‘629 Patent specifically confirms that “packet switching breaks a media stream into
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`pieces known as, for example, packets, cells or frames.” Id., 31:1-3. POR has no
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`persuasive explanation for these passages, and simply invites the Board to ignore
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`them. The descriptions in the ‘629 Patent are consistent with how a POSITA
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`would have understood standard ATM—that is, ATM “is a high-speed packet-
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`switching technique using short fixed-length packets called cells.” Ex. 1019, 4;
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`Ex. 1035, ¶¶5-6.
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`PO’s reliance on the Board’s construction of “packet” from the earlier IPR
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`decision—IPR2017-00527 (the ’527 IPR) is also misplaced. Ex. 1030, 8-9
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`(construing “packet” as “a piece or segment of a data/media stream that serves as a
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`unit of transmission over a packet switched network.”). As an initial matter,
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`evidence presented in the Petition shows that ATM cells meet that construction.
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`Ex. 1019, 4; Ex. 1035, ¶¶28-29. PO, however, relies on that construction in
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`support of an argument that the claimed “packets” must have a header with a
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`specific type of control information (i.e., a destination address). POR, 9-12. But
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`the Board in the ‘527 IPR specifically rejected the notion that a packet must
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`contain a header per se. Ex. 1030, 7-9; Ex. 1035, ¶¶22-31. The evidence also
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`shows that PO’s arguments that ATM was not packet-switched are simply wrong
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`and contrary to fact. Even setting these fundamental flaws aside, the POR is
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`devoid of any analysis showing why that construction should be adopted here,
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`when that prior construction was decided in the context of a different dispute over
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`claims of much different scope. In light of the clear disclosures in the patent that
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`ATM uses “packets,” a construction for that term is not necessary and PO’s
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`construction should be rejected as unhelpful.
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`Thus, Claims 1-4 of the ’629 Patent should be cancelled as unpatentable.
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`II. The Board Should Reject PO’s Attempt to Narrow the Plain Meaning of
`“Packet”
`A. A POSITA Would Have Understood that ATM Cells Are A Type
`of “Data Packet”
`The primary patentability argument advanced by the POR is that ATM cells
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`are not packets and that ATM was not a packet-switched technology. POR, 29-34,
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`40-45; Ex. 2020, ¶¶ 38-53. This argument is demonstrably false and contrary to
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`fact. A POSITA would have understood at the time of the ‘629 Patent that ATM
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`was, by definition, a well-known packet-switched technology. Ex. 1035, ¶¶ 5-6
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`(citing Ex. 1019, 4 (describing that ATM “is a high-speed packet-switching
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`technique using short fixed-length packets called cells”); Ex. 1032, 4 (defining
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`ATM “A packet switching communications standard which uses packets of
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`constant length called ATM cells.”); Ex. 1031, 3 (explaining ATM, “Data … is
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`broken into packets containing 53 bytes each, which are switched between any two
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`modes in the system.”); Ex. 1033 (defining “cell” as “In [ATM] networking, a
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`small unit of data that has been broken up for efficient transmission (synonymous
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`with packet).”); Ex. 1034 (similar description).
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`Despite
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`incontrovertible evidence
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`that ATM was a packet-switched
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`technology that uses a type of packets called ATM cells, PO and Dr. Heidari
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`contend that ATM cells are somehow not packets in the context of the ‘629 Patent.
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`POR, p. 9-13; Ex. 2020, 16-20. But, as conceded by PO’s expert, the ATM
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`described by the ‘629 Patent is the same “standard ATM” as Dyson/Raychaudhuri.
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`Ex. 1029, 53:25-54:6; 55:14–58:13. Notably, in rendering his opinion that ATM
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`cells are not packets, Dr. Heidari conceded he had not reviewed any dictionaries
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`for basic descriptions of ATM nor reviewed Ex. 1019. Ex. 1029 (Heidari Tr.),
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`41:21-23; 42:17-20; 42:21-43:8.1
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`PO thus advances a theory that the ‘629 Patent specification somehow
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`1 Dr. Heidari’s opinions on ATM are highly suspect—Dr. Heidari was unable to
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`recall the name of even one extrinsic source on ATM he had ever reviewed before
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`signing his declaration. Ex. 1029, 26:15-17; 41:21-23; 42:17-20; 42:21-43:8;
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`50:18-51:8. When confronted with dictionary evidence directly contradicting his
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`opinions, he incredibly claimed that “you shouldn’t be relying on a dictionary
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`about what an ATM does or does not, what a cells means or not, in the context of
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`this IPR.” Id., 216:16-217:14, 117:7-118:15. He cited no evidence to support his
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`opinions. Id., 211:8-15.
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`defined or narrowed the meaning of the ordinary term “packet” in a way that
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`excludes ATM cells.2 As explained below, the ‘629 Specification confirms the
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`opposite—ATM cells are expressly described as packets, consistent with the
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`ordinary meaning.
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`B. No Construction Is Necessary for “Packet” Because The ‘629
`Patent Expressly Describes that ATM Cells are “Packets”
`Claim 1’s “data packet” does not require construction to resolve the parties’
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`dispute. A POSITA would have understood that in the ‘629 Patent, an ATM cell is
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`simply a type of “data packet” consistent with the ordinary meaning of the term.
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`Ex. 1035, ¶¶5-8, 18-21. A POSITA would have recognized that the term “cell”
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`was synonymous with “packet.” Ex. 1035 ¶19 (citing Ex. 1033 (defining “cell” in
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`ATM networking as being “synonymous with packet”)). That ATM cells are
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`packets is also confirmed by the express disclosures of the patent.
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`First, the ‘629 Patent confirms that ATM cells have an “ATM cell packet
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`format.” Ex. 1001, 26:1-14 (“As those skilled in the art will recognize, other
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`2 Notably, PO conceded that the term packet did not require construction in the co-
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`pending district court litigation. Ex. 1042 (“Intellectual Ventures I LLC (‘IV’)
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`hereby provides notice
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`that IV does not propose any
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`terms for claim
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`construction.”).
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`format are available, including, e.g., a transmission control program, internet
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`protocol (TCP/IP) packet format, an asynchronous transfer mode (ATM) cell
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`packet format.”). A POSITA would have understood this to refer to the well-
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`known 53-byte packet format of ATM cells. Ex. 1035, ¶20 (citing Ex. 1001, 35:1-
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`5).
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`Second, the ‘629 Patent provides definitions that expressly acknowledge the
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`packet-based nature of ATM. Table 1 of “definitions” of “terms [that] are used
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`throughout the remainder of the description of the invention.” Ex. 1001, Col. 9. In
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`the definition of “packetized voice,” Table 1 states that “voice over packet refers to
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`the carrying of telephony or voice traffic over a data network, e.g., voice over
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`frame, voice over ATM, voice over IP.” A POSITA would have understood that
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`this definition acknowledges the use of packets in ATM. Ex. 1035, ¶21.
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`Third, the ’629 Patent itself discloses that ATM is a packet-switched
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`network, confirming the use of packets in ATM. Ex. 1001, 36:16-21 (“When
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`using ATM, longer packets cannot delay shorter packets as in other packet-
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`switched networks, because long packets are separated into many fixed length
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`cells.”);3 31:1-3 (“Packet switching breaks a media stream into pieces known as,
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`3 Contrary to PO’s position, the word “other” in this sentence clearly links ATM as
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`being a type of packet-switched network. Ex. 1035 n. 4.
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`for example, packets, cells, or frames.”); Ex. 1035 ¶¶ 29-30.4
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`Moreover, none of the citations relied on by Dr. Heidari support a
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`conclusion that an “ATM cell” was something other than a packet or that ATM
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`was not a packet switched network. Ex. 1035, ¶6-8; 32-33. The use of the
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`different word—cell—merely reflects that a cell is a type of packet. Id., ¶32.
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`Given the evidence in the ’629 Patent that expressly confirms that ATM cells are
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`“packets,” no specific construction is necessary to conclude that the ATM cell,
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`consistent with the ordinary meaning, is a packet as claimed. Ex. 1035 ¶21.
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`C.
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`for “Packet” Should Be Rejected As
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`PO’s Construction
`Unhelpful.
`1.
`The Claimed “Data Packets” Should Not be Construed to
`Require a Packet-Switched Network.
`The POR provides no reasoning or analysis to justify the Board’s adoption
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`of “packet” from the prior ‘527 IPR.5 POR, 30-32 (citing the ID and ’527 IPR ID).
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`4 Dr. Heidari had no persuasive explanation reconciling these statements with his
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`opinion—he simply insisted they were being taken “out of context.” See, e.g., Ex.
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`1029, 147:3-153:17, 124:14-128:17.
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`5 PO’s reliance on the prosecution history of related patents is also irrelevant.
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`POR, 14-15. For example, those claims recite, in part, a “packet-centric protocol,”
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`In the ’527 IPR, the Board construed “packet” to mean “a piece or segment of a
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`data/media stream that serves as a unit of transmission over a packet switched
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`network.” Ex. 1030, 8-9. This construction was provided in the context of a
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`different dispute involving entirely different claims of different scope than are at
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`issue in this IPR.6
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`A claim construction analysis begins with, and is centered on, the claim
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`language itself. See Interactive Gift Express, Inc. v Compuserve, Inc., 256 F.3d
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`1323, 1331 (Fed. Cir. 2001). The ’527 Patent claims involved “receiving a first
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`packet from a wired data network,” while the challenged claims 1-4 of the ’629
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`Patent are directed to, e.g., “reserving a first slot for a first data packet of an
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`internet protocol (IP) flow in a future transmission frame.” Ex. 1035 ¶34. This is
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`a significant difference, because in the “data packets” here are not necessarily the
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`which does not appear in any of the ’629 Patent claims or within any claim
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`constructions.
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`6 The ’527 IPR focused on a dispute over whether the claimed “packet” required a
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`“header,” which the Board found was not required. Ex. 1030, 7-9. The matter of
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`what is a “packet-switched network” was not at issue. And as discussed below in
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`Section II.C.2, PO’s current arguments are inconsistent with the Board’s prior
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`construction relating to the header issue.
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`same format as packets that may be received from a network (such as data network
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`142). Ex. 1035, ¶35. Instead, the claimed data packets are those formatted for
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`wireless transmission. Ex. 1035, ¶35. The ‘629 Patent does not place any
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`requirement that the claimed data packets be in a format suitable for transmission
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`over a packet-switched network, so long as they are formatted for transmission in a
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`slot of a wireless transmission frame. Ex. 1035, ¶¶36.
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`As shown by Figure 14 of the ’629 Patent, the data packets that are placed in
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`each slot comprise segmented portions of the IP datagram, not the entire IP
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`datagram that is received over network 142. See Ex. 1035, ¶¶37-41; Ex. 1001,
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`35:11-13 (“ATM segments variable length IP packet flows into fixed size cells
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`using a segmentation and resequencing algorithm (SAR).”); 50:59-66 (discussing
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`Fig. 14: “SAR and framer 606 breaks up, sequences, and frames the data packets
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`for wireless transmission.”); see also 49:25-29; 49:64-50:3; 51:9-12; 79:33-51;
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`258:9-259:9 (conceding the specification contemplates IP flows may be segmented
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`to fit into fixed size slots “as needed.”). Dr. Haas notes that the ’629 Patent
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`explains that the slots are fixed in length and capable of storing a single data
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`packet; however, IP datagrams are of variable length, so a POSITA would have
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`understood that the IP packets may require segmentation to form each “data
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`packet” suitable for transmission in a fixed length slot. Ex. 1035, ¶38-39; Ex.
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`1001, 61:26-27.
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`Notably, the ‘629 Patent discloses an IP-over-ATM embodiment in which
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`the IP flows are segmented into fixed size ATM cells and each ATM cell would
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`contain the header information necessary to transmit the data packet over the ATM
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`packet-switched network.
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` Ex. 1035, ¶40 (citing Ex. 1001, 35:10-12).
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`Nevertheless, there is no disclosure in the ‘629 Patent that the data packets that are
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`placed into the wireless transmission slots must be capable of being switched over
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`a packet-switched network. Id. (noting the disclosure of generic “data packets” as
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`well as “ATM cells”). The SAR process described by the patent would create data
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`packets with sufficient control information to allow for reassembly by the receiver
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`but not necessarily contain the control information necessary for transmission to a
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`node beyond the wireless receiving unit. Id. ¶¶41-42.
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`For these reasons, the ‘629 claims should not be limited to any particular
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`data network, aside from the recitation of the claimed “data packets of an IP flow.”
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`Ex. 1035, ¶42; Ex. 1001, 34:34-39; 37:32-37 (explaining that data network 142 can
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`be any number of packet-centric networks, including an IP network over ATM
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`network). In any event, the facts show that ATM cells meet the Board’s
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`construction of packet, even if limited to packet-switched networks. As described
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`above, ATM is a packet-switched protocol that breaks a media stream into packets
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`known as cells. Ex. 1035, ¶28-29; Ex. 1031-1034. This is entirely consistent with
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`the disclosures of the ‘629 Patent. Ex. 1035, ¶29; Ex. 1001, 31:1-4; 36:16-18.
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`2.
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`PO’s Requirement That a Packet Have a Header Are
`Inconsistent with the Board’s Prior Construction
`Even if the Board were to adopt the construction from the ’527 IPR, ATM
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`cells meet that construction. Ex. 1035, ¶¶22-23; 28. PO’s attempts to further limit
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`this construction are flawed for several reasons.
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`First, PO argues that to be routed in a “packet-switched network” a “packet”
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`requires the additional limitations of having a header and a “destination address”
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`within that header. POR, 9-12; Ex. 1029, 143:21-145:19. Neither of the
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`competing constructions from the ‘527 IPR required a destination address, and
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`PO’s current position that a packet must have a header is precisely the issue that
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`the Board resolved against PO in the ’527 IPR. Ex. 1030, 9 (“To the extent that
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`the ‘packet’ of claims 1, 13, and 18 is required to have a header, such requirement
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`is imposed by the express claim language ‘comprises a header’ and is not imposed
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`by virtue of the definition of ‘packet’ per se.”); Ex. 1035, ¶¶22-24. Under the
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`Board’s prior analysis, a packet may exist before any header information is added.
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`Id. The Board’s prior decision therefore does not require a destination address. Id.
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`Dr. Heidari admitted that he did not even consider the Board’s decision in the ’527
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`IPR. Ex. 1029, 106:17-19, 107:19-108:24, 109:8-111:10.
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`Second, a POSITA would have understood that the ATM cell does indeed
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`contain information sufficient to route the packet to the destination, which is a fact
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`that the ‘629 Patent recognizes. Ex. 1035, ¶25 (citing Ex. 1001, 35:65-36:3 (“An
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`ATM cell header includes a … virtual path identifier (VPI), a virtual channel
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`identifier (VCI) … VPI and VCI hold local significance only, and identify the
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`destination.”)). There is no basis to limit the claimed packet to a particular kind of
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`destination information while excluding the form of destination information
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`contained in an ATM cell. See id., ¶26 (explaining that an explicit destination
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`address is a feature of a particular embodiment of packet-switching called
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`datagram).
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`Accordingly, PO’s argument that a packet must contain a header with a
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`destination address should be rejected.
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`3.
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`PO’s Proposed Construction
`Preferred Embodiments
`“[A] claim interpretation that excludes a preferred embodiment from the
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`Improperly Excludes
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`scope of the claim is rarely, if ever, correct.” On-Line Techs., Inc. v.
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`Bodenseewerk Perkin-Elmer GmbH, 386 F.3d 1133, 1138 (Fed.Cir.2004). The
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`’629 Patent specifically contemplates: “[I]n an embodiment, data network 142 can
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`be an internet protocol (IP) network over an ATM network.” Ex. 1001, 37:33-34;
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`Ex. 1035, ¶43. POR improperly seeks to exclude this embodiment that uses ATM
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`cells from the claims. Although PO makes the argument that “data network 142
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`encompasses prior art circuit-switched ATM techniques,” (POR at 23) PO is
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`incorrect to say that data network 142 is only prior art. Both Fig. 3A and 3B
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`include data network 142 and are described as an “embodiment of the invention.”
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`Ex. 1001, 41:25-26 (Figure 3A), 41:31-32 (Figure 3B); Ex. 1035, ¶43.
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`Furthermore, Figure 15A specifically shows that the data that is scheduled and sent
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`over the wireless medium is received via network 142. Ex. 1001, 62:31-39. Dr.
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`Haas also clarifies that IP-over-ATM is a packet switched network. Ex. 1035, ¶43.
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`As discussed above, the patent discloses an embodiment in which packets of
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`an IP flow may be segmented into ATM cells (i.e., the claimed “data packets”). In
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`particular, the patent states that “ATM segments variable length IP packet flows
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`into fixed sized cells using a segmentation and resequencing algorithm (SAR).”
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`Ex. 1001, 35:11-13. A POSITA would have understood that the fixed size data
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`packets in Figure 14 may include the fixed size cells containing segments of IP
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`flows. Ex. 1035, ¶44. In addition, a POSITA would have understood Figure 10 to
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`disclose an embodiment consistent with IP-over-ATM:
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`Ex. 1035, ¶¶45-46 (explaining that IP packets would be segmented by SAR
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`1004 into smaller data packets such as ATM cells using the algorithm of Figure
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`14).
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`Further, this IP-over-ATM embodiment was expressly disclosed in the
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`provisional specifically for transmission over the wireless medium. Ex. 1035,
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`¶¶47-50; Ex. 1013, 7. A POSITA would have understood the “packets” being
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`placed into queues at the MAC layer would comprise ATM cells containing
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`segments of IP packets. Ex. 1035, ¶¶47-49; Ex. 1013, 7, 9-10.
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`As shown above, the MAC exists below the ATM layer, which itself is
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`below the IP layer—meaning that a POSITA would have understood that the
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`“packets” being placed into queues at the MAC layer would comprise ATM cells
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`containing segments of IP packets. Id., 3. Consistently with the Figure 10
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`embodiment of the patent, the provisional describes that “[a]ll data traversing the
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`wireless link is encoded into small cells with a set payload size optimized for the
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`wireless medium.” Id., 9.
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`Both the ‘629 Patent and its provisional contemplate embodiments of the
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`invention in which time slots would be reserved for ATM cells comprising data
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`packets of an IP flow. Id., 10 (“The MAC layer provides for automatic time slot
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`reservation for real time applications such as audio and video sessions requiring
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`CBR-like QoS handling.”). Thus, IP-over-ATM is clearly an embodiment of the
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`invention, and the Board should not construe the claimed data packets to exclude
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`this embodiment as urged by PO.
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`4.
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`PO’s Reliance On ATM as “Circuit-Centric” to Suggest
`ATM is Not Packet-Switched is Misplaced
`PO argues that ATM is not a “packet switched network” because it is a
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`“circuit-centric” network. POR, 13-14. PO’s argument reflects a fundamental
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`misunderstanding of packet-switched technologies. Ex. 1035, ¶¶ 5, 9. PO is
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`incorrect because it conflates the concept of traditional circuit-switching with the
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`use of virtual circuits in packet-switched networks, such as ATM. Id. A POSITA
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`would understand that ATM is a packet-switched protocol that uses virtual circuits.
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`Ex. 1035, ¶¶10, 16 (citing Ex. 1032 (“Virtual circuits are encountered in a Packet
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`Switched Network (PSN), such as ATM[.]”). 7
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`PO’s position appears to be based on the wrong assumption that a network
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`cannot be packet-switched and circuit-centric—this
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`is
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`inconsistent with
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`embodiments in the specification, including ATM and frame relay. See Ex. 1001,
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`7 Dr. Heidari was unable to articulate any meaning for “packet-switching” that
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`excluded ATM other than to suggest the term must somehow exclude ATM. Ex.
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`1029, 238:2-241:20; 245:22-246:7.
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`34:64-65 (describing frame relay and ATM as “connection-oriented, circuit centric
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`services”); 37:5-24 (describing frame relay as “packet-switched”).
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`A POSITA would have understood that ATM is a “packet switching”
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`standard that uses packets of fixed length called ATM cells. Ex. 1035, ¶¶ 9-17; Ex.
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`1041, 32 (“[T]here is increasing interest in fast packet switching, often referred to
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`as asynchronous transfer mode (ATM).”). PO’s argument that ATM is a circuit-
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`switched network (exclusive of a packet-switched network) due to its use of virtual
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`circuits is incorrect. POR, 12-13. Ex. 1035, ¶9. A POSITA would have understood
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`that traditional circuit switching includes a dedication of physical resources for the
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`duration of a call, while packet switching breaks up user data into packets and
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`provides resource sharing. Ex. 1035,¶¶11-14; Ex. 1041, 8. There are two types of
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`packet-switching techniques: datagram, where each packet is treated independent,
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`and virtual circuits. Ex. 1035, ¶14 (quoting Ex. 1041, 9, 16).8 But, virtual circuits
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`are a packet-switching technique where packets take a fixed route for the duration
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`of the logical connection. The fact that the route is preestablished does not equate
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`8At best, PO’s argument amounts to an argument that the claims should be
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`construed to exclude all virtual circuit packet switching, but PO has provided no
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`analysis to show why that should be the case, and it is unsupported by the ‘629
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`Patent claim language and description.
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`virtual circuits with traditional circuit-switching. Id., ¶¶15-17; Ex. 1041 at 66. The
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`fact that ATM uses virtual circuits confirms, rather than refutes, that ATM is a
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`packet-switched protocol. Id., ¶¶30-31.9
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`III. Claims 1-4 Are Obvious in Light of Dyson and Raychaudhuri
`PO advances only three arguments to show that the claims of the ’629 Patent
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`are not unpatentable, all of which fail. PO argues that (1) Dyson/Raychaudhuri do
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`not disclose “packets” because they use ATM cells, (2) a POSITA would not have
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`combined Dyson/Raychaudhuri, and (3) Dyson is not prior art. Each of these
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`arguments fail for reasons discussed below, and Claims 1-4 of the ’629 Patent
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`should be found unpatentable.10
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`A. The Dyson/Raychaudhuri Combination Discloses “Packets”
`Under Any of the Constructions from the Prior IPR
`PO’s only argument regarding the disclosure of Dyson and Raychaudhuri is
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`based on its improper interpretation of the Board’s prior construction of “packet”
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`9 Petitioners note that while PO disputes the construction of “packet,” it does not
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`dispute whether the prior art discloses these limitations.
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`10 PO does not specifically address any other grounds or claims besides Ground 1
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`and Claim 1, thus Petitioners have not reiterated its arguments on these from the
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`Petition.
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`from the ‘527 IPR to exclude ATM cells. Even if the Board adopts the “packet”
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`construction from the ’527 IPR, this would not affect the outcome of this Petition
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`because ATM cells are “packets” under the Board’s prior construction. Ex. 1035,
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`¶¶22-31. That is, an ATM cell is “a piece or segment of data/media stream that
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`serves as a unit of transmission over a packet-switched network.” Id. Both the
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`’629 Patent and extrinsic evidence confirm that an ATM cell is a packet (“unit of
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`transmission”) and that ATM can be transmitted in a “packet switched network.”
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