Broadcom Corporationv.Telefonaktiebolaget L. M. Ericsson

Patent Trial and Appeal Board

Mar 7, 2015

09537146 (P.T.A.B. Mar. 7, 2015)

Trials@uspto.gov Paper 66
571-272-7822 Entered: March 6, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

BROADCOM CORPORATION,
Petitioner,

v.

WI-FI ONE, LLC,
Patent Owner.

Case IPR2013-00601
Patent 6,772,215 B1

Before KARL D. EASTHOM, KALYAN K. DESHPANDE, and
MATTHEW R. CLEMENTS, Administrative Patent Judges.

CLEMENTS, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. INTRODUCTION
Broadcom Corporation (“Petitioner”) filed a Petition requesting inter
partes review of claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46, 49,
52, and 54 (the “challenged claims”) of U.S. Patent No. 6,772,215 B1
(Ex. 1001, “the ’215 patent”). Paper 3 (“Pet.”). Telefonaktiebolaget L. M.
Ericsson
1
(“Patent Owner”) filed an election to waive its Preliminary
Response. Paper 22. On March 10, 2014, we instituted an inter partes
review of all challenged claims on certain grounds of unpatentability alleged
in the Petition. Paper 29 (“Dec. to Inst.”).
After institution of trial, Patent Owner filed a Patent Owner Response
(Paper 40, “PO Resp.”) to which Petitioner filed a Reply (Paper 49, “Pet.
Reply”). Patent Owner filed a Motion to Exclude (Paper 53), which
Petitioner opposed (Paper 58). Patent Owner filed a Reply to Petitioner’s
Opposition to its Motion to Exclude. Paper 59. Oral hearing was held on
December 8, 2014.
2

The Board has jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
Petitioner has shown, by a preponderance of the evidence, that claims
1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46, 49, 52, and 54 of the ’215
patent are unpatentable. Patent Owner’s Motion to Exclude is denied.

1
On July 11, 2014, Patent Owner filed an Updated Mandatory Notice
indicating that the ’215 patent had been assigned to Wi-Fi One, LLC, and
that Wi-Fi One, LLC and PanOptis Patent Management, LLC were now the
real parties-in-interest. Paper 43.
2
A transcript of the oral hearing is included in the record as Paper 65.
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A. Related Proceedings
Petitioner and Patent Owner indicate that the ’215 patent is involved
in a case captioned Ericsson Inc. v. D-LINK Corp., Civil Action No. 6:10-
cv-473 (E.D. Tex.) (“D-Link Lawsuit”), and in an investigation at the U.S.
International Trade Commission captioned In the Matter of Certain
Electronic Devices, Including Wireless Communication Devices, Tablet
Computers, Media Players and Televisions, and Components Thereof, ITC
Inv. No. 337-TA-862. Pet. 1–2; Paper 6, 1. Patent Owner also identifies an
appeal at the Federal Circuit captioned Ericsson Inc. v. D-LINK Corp., Case
Nos. 2013-1625, -1631, -1632, and -1633. Paper 6, 1. Petitioner also filed
two petitions for inter partes review of related patents: IPR2013-00602
(U.S. Patent No. 6,466,568) and IPR2013-00636 (U.S. Patent No.
6,424,625).
B. The ’215 Patent
The ’215 patent relates to the telecommunications field and, in
particular, to a method for minimizing feedback responses in Automatic
Repeat Request (ARQ) protocols. Ex. 1001, 1:14–17. When data is
conveyed between nodes in a network, certain algorithms are used to recover
from the transmission of erroneous data and the loss of data between the
nodes. Id. at 1:20–23. An algorithm commonly used is referred to as an
ARQ protocol. Id. at 1:23–25. Each node, or peer entity, in a network
includes a receiver and a sender. Id. at 1:26–29. The units of data conveyed
between peer entities commonly are referred to as Protocol Data Units
(“PDUs”). Id. at 1:29–30. The basic function of an ARQ protocol is to
allow the receiver to request that the sender retransmit PDUs that were lost
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during transmission or contained errors. Id. at 1:33–37. The receiver can
inform the sender about which PDUs were received correctly and/or can
inform the sender about which PDUs were not received correctly. Id. at
1:38–41. When the sender receives this information, it retransmits the “lost”
PDUs. Id. at 1:41–42. Several ARQ protocols, such as Stop-and-Wait
ARQ, Go-back-N ARQ, and Selective-Repeat ARQ, existed at the time that
the ’215 patent was filed and were well known. Id. at 2:17–21.
Figure 1 of the ’215 patent is reproduced below.

Figure 1 illustrates the use of ARQ protocols. Id. at 2:22–23. A sequence of
transmitted Data-PDUs (“D-PDUs”) and Status-PDUs (“S-PDUs”) is shown.
Id. at 2:28–29. A D-PDU includes user data, a sequence number (“SN”),
and possibly piggybacked error control information. Id. at 2:29–31. The
sequence number (“SN”) is associated with each D-PDU to identify that
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specific D-PDU. Id. at 2:32–34. An S-PDU includes status information but
no user information. Id. at 2:31–32.
According to the ’626 patent, two main methods were used in the
prior art for coding the SNs within S-PDUs: (1) a list of SNs to be
retransmitted; and (2) a bitmap to represent the SNs to be retransmitted. Id.
at 2:48–52. As such, known S-PDUs included a format identifier that could
be used by a receiver to distinguish between the different PDU formats.
Figures 2 and 3 of the ’215 patent are reproduced below:

Figure 2 shows an S-PDU that uses the list method to code SNs. Id. at 2:60–
62. Figure 3 shows an S-PDU that uses the bitmap method to code SNs. Id.
at 3:18–19. According to the ’215 patent, a significant problem with
existing ARQ protocols is that fixed length messages are used, which leads
to a waste of bandwidth because unnecessary overhead information is
transmitted. Id. at 3:46–50; see also id. at Table 1, 4:1–13. According to the
’215 patent, a significant need existed for a method that can be used to
minimize the size of S-PDUs in an ARQ protocol or, if it is not possible to
fit all SNs into a single S-PDU, to maximize the number of SNs in an S-
PDU with limited size. Id. at 4:33–38.
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To address these issues, the ’215 patent discloses a method whereby
different mechanisms for indicating erroneous D-PDUs can be combined in
a single S-PDU. Id. at 4:43–48. Each message includes three fields: type
information, length information, and a value. Id. at 5:60–66. In a first
embodiment of the invention, a bitmap message can be constructed using a
number of methods to represent the length of the bitmap (i.e., the LENGTH
field). Id. at 6:19–48. Likewise, a list message can list only erroneous SNs
or can combine the prior art list method with the list of only erroneous SNs.
Id. at 6:58 –7:51. In accordance with a second embodiment of the invention,
a number of different message types can be combined to create an S-PDU.
Id. at 7:52–54. Figure 8, reproduced below, illustrates how an S-PDU can
be constructed in accordance with this embodiment:

As shown in Figure 8, the resulting S-PDU includes two BITMAP’
messages and one LIST’ message. Id. at 8:43–44. For comparison with the
prior art techniques, Table 3 is reproduced below.
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Table 3 shows the sizes of S-PDUs constructed in accordance with the prior
art list and bitmap methods, and also with the combination method described
in accordance with the second embodiment. Id. at 9:27–30. As illustrated
by Table 3, the size of S-PDUs resulting from the combination method
described in the ’215 patent is significantly smaller than that of the S-PDUs
resulting from the prior art methods. Id. at 9:32–35.
C. Illustrative Claim
Of the challenged claims, claims 1, 15, 25, and 45 are independent.
Claim 1 is reproduced below:
1. A method for minimizing feedback responses in an ARQ
protocol, comprising the steps of:
sending a plurality of first data units over a
communication link;
receiving said plurality of first data units; and
responsive to the receiving step, constructing a message
field for a second data unit, said message field including a type
identifier field and at least one of a sequence number field, a
length field, and a content field.
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D. The Instituted Ground of Unpatentability
We instituted inter partes review of claims 1, 2, 4, 6, 8, 15, 22, 25, 26,
29, 32, 34, 45, 46, 49, 52, and 54 under 35 U.S.C. § 102 as anticipated by
Seo (US 6,581,176, issued June 17, 2003) (Ex. 1002).
II. ANALYSIS
A. 35 U.S.C. § 315(b)
Patent Owner argues that “Petitioner is subject to the 35 U.S.C.
§ 315(b) bar as a privy to the D-Link Defendants, and because the D-Link
Defendants are real parties-in-interest to this action, despite Petitioner’s
failure to designate them as such under 35 U.S.C. § 312(a)(2).” PO Resp. 8.
According to Patent Owner, Petitioner is in privity with defendants named in
the D-Link Lawsuit (Ericsson Inc. v. D-Link Corp., 6:10-cv-473) because,
inter alia, “[Petitioner] has an indemnity relationship with Dell and
Toshiba.” Id. at 8–12. Patent Owner also argues that the defendants named
in the D-Link Lawsuit (the “D-Link Defendants”) are real parties-in-interest
to this proceeding because Petitioner has a “substantive legal relationship
with at least Dell and Toshiba,” Petitioner used the same prior art references
as the D-Link Defendants, and the Petition was filed after the D-Link
Defendants abandoned their invalidity case regarding the ’215 patent in the
D-Link Lawsuit. Id. at 12–14.
Petitioner counters that “[Patent] Owner has raised this identical
argument twice, and failed each time,” and that “[t]his third attempt relies on
exactly the same arguments [Patent] Owner made to this Board and the
Federal Circuit and should be rejected for the same reasons.” Pet. Reply 1.
Petitioner continues that, “[Patent] Owner offers no new reason whatsoever
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for this Board to reverse its prior decision that [Patent] Owner’s proferred
‘evidence’ and legal authorities fail to amount to anything more than
‘speculation’ or ‘a mere possibility’ that [Petitioner] is in privity with the D-
Link Defendants or that the D-Link Defendants are real parties-in-interest.”
Id. We find Petitioner’s arguments persuasive.
Patent Owner’s arguments and evidence are not different
substantively from the arguments and evidence presented in its Motion for
Additional Discovery (Paper 14). The arguments and evidence are
unpersuasive for same reasons explained in our Decision on Patent Owner’s
Motion for Additional Discovery (Paper 23), which we adopt and
incorporate by reference.
B. Claim Construction
In an inter partes review, claim terms in an unexpired patent are
interpreted according to their broadest reasonable construction in light of the
specification of the patent in which they appear. 37 C.F.R. § 42.100(b); see
also In re Cuozzo Speed Technologies, LLC, No. 2014-1301, 2015 WL
448667, at *5–*8 (Fed. Cir. Feb. 4, 2015) (“Congress implicitly adopted the
broadest reasonable interpretation standard in enacting the AIA,” and “the
standard was properly adopted by PTO regulation”). Under the broadest
reasonable interpretation standard, claim terms are given their ordinary and
customary meaning as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. In re Translogic Tech., Inc., 504
F.3d 1249, 1257 (Fed. Cir. 2007). An inventor may rebut that presumption
by providing a definition of the term in the specification with reasonable
clarity, deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480
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(Fed. Cir. 1994). In the absence of such a definition, limitations are not to
be read from the specification into the claims. In re Van Geuns, 988 F.2d
1181, 1184 (Fed. Cir. 1993).
1. “responsive to the receiving step, constructing a message field for a
second data unit, said message field including a type identifier field”
Petitioner proposes that this phrase be construed as “responsive to the
receiving step, generating a message field including a field that identifies the
message type of the feedback response message from a number of different
message types.” Pet. 5. Petitioner states that this construction was proposed
by Patent Owner and adopted by the Court in the D-Link Lawsuit. Pet. 8
(citing Ex. 1005, 9). Petitioner does not dispute this construction. Pet. 8.
The proposed construction replaces “constructing” with “generating,” and
replaces “type identifier field” with “a field that identifies the message type
of the feedback response message from a number of different message
types.” Although this construction has been adopted in the D-Link Lawsuit,
we are not persuaded that it is the broadest reasonable interpretation of this
limitation.
For example, the antecedent basis for “the feedback response
message” in the proposed construction is the “feedback responses” of the
preamble. “In general, a preamble limits the invention if it recites essential
structure or steps, or if it is ‘necessary to give life, meaning, and vitality’ to
the claim.” Catalina Marketing Int’l, Inc. v. Coolsavings.com, Inc., 289
F.3d 801, 808 (Fed. Cir. 2002) (quoting Pitney Bowes, Inc. v. Hewlett-
Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999)). “Conversely, a
preamble is not limiting ‘where a patentee defines a structurally complete
invention in the claim body and uses the preamble only to state a purpose or
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intended use for the invention.’” Id. (quoting Rowe v. Dror, 112 F.3d 473,
478 (Fed. Cir. 1997)).
If we were to adopt Petitioner’s proposed construction, it would
introduce a dependency upon the preamble, thereby causing the preamble to
limit the invention.
3
Accordingly, in the Decision to Institute, we explained
that we were not persuaded that Petitioner’s proposed construction would be
the broadest reasonable interpretation of the claim because no term of the
claim, as drafted, has its antecedent basis in the preamble. Dec. to Inst. 10.
Patent Owner argues that we provided, in the Decision to Institute,
“no case law for [the] proposition that introducing a dependency upon the
preamble would cause the preamble to limit the invention,” and that this
proposition “appears to be focused on antecedent basis issue.” PO Resp. 26.
As we explained in the Decision to Institute, Patent Owner’s proposed
construction uses the phrase “the feedback response,” the antecedent basis
for which is the “feedback response” of the preamble. Dec. to Inst. 10. We
decline to construe claim 1 in a way that the preamble becomes “necessary
to give life, meaning, and vitality” to the claim. Id. Moreover, the plain
language of claim 1 requires the “type identifier field” be included in a
“message field for a second data unit” (emphasis added). It does not require
that that “message field” be for a “feedback response.” By requiring the
recited “type identifier field” to “identif[y] a message type of a feedback
response message,” Patent Owner’s proposed construction implicitly limits

3
This result would be contrary to Petitioner’s proposed construction of the
preambles as non-limiting. Pet. 7, 8.
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the recited “second data unit” to a feedback response message. Patent
Owner provides no support for such a construction.
The ’215 patent does not define explicitly the term “type identifier
field,” but does uses it several times to describe a field in an S-PDU that
indicates whether that S-PDU includes a list or a bitmap. Ex. 1001, 6:20,
8:2, 8:16; see also id. at 7:58–61, 8:8–10, 8:55–57 (describing a “type
identifier”). For example, Table 2 depicts a column labeled “Type
Identifier,” that includes NO_MORE, LIST’, BITMAP’, and ACK. Id. at
9:1–9. Accordingly, in the Decision to Institute, we construed “type
identifier field” as “a field of a message that identifies the type of that
message.”
Patent Owner argues that our construction is overly broad because it
“would cover a mere S-PDU as in the prior art . . . [b]ut the specification
distinguishes ‘the present invention’ from the prior art S-PDU.” PO Resp.
26 (citing Ex. 1001, 4:38–40, 4:43–63). Patent Owner does not elaborate.
Petitioner counters that “[Patent] Owner concedes invalidity under the
Board’s construction based on the admitted prior art,” and that “invalidity of
the claims in light of the prior art is not grounds for rejecting this Board’s
well-reasoned claim construction.” Pet. Reply 4.
We are not persuaded by Patent Owner’s arguments. Patent Owner’s
proposed construction differs from ours in that it limits the message to “a
feedback message” and states explicitly what is only implicit in our
construction—i.e., “from a number of different message types.” It is not
evident which of those two additional limitations Patent Owner contends
distinguish the prior art S-PDU. Indeed, the ’215 patent describes the prior
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art S-PDU as a “feedback response” (See, e.g., Ex. 1001, 2:38–45) and
describes how it may have a number of different message types (See, e.g., id.
at 2:63–3:45, Figs. 2, 3). In any event, the ’215 patent distinguishes “the
present invention”—not the “type identifier field”—from the prior art. Even
assuming that the patentee intended to draft the claims, as a whole, to
distinguish a prior art S-PDU, Patent Owner identifies insufficient support in
the claims or Specification for its proposed construction of the term “type
identifier field.”
Finally, in the Decision to Institute, we alternatively construed “type
identifier field” as “any type of data.” Dec. to Inst. 11–12. Patent Owner
argues that “[b]ecause the type identifier field is not instructional or
otherwise written material, the ‘printed matter’ doctrine does not apply.” PO
Resp. 27. According to Patent Owner, “the type identifier field in the
challenged claims is not printed matter, and further, it defines functional
characteristics of the claimed method and system.” Id. at 31. We are
persuaded that the recited “type identifier field” is not non-functional
descriptive material.
Accordingly, we maintain our construction of “type identifier field” as
“a field of a message that identifies the type of that message.”
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2. “means for receiving said plurality of first data units, and
constructing one to several message fields for a second data unit, said
one to several message fields including a type identifier field and at
least one of a sequence number field, a length field, a content field, a
plurality of erroneous sequence number fields, and a plurality of
erroneous sequence number length fields, each of said plurality of
erroneous sequence number fields associated with a respective one of
said plurality of erroneous sequence number length fields”
Independent claim 45 recites a “means for receiving . . . .” Petitioner
contends that this term is a means-plus-function element invoking 35 U.S.C.
§ 112, paragraph 6
4
. We agree because (1) the limitation uses the phrase
“means for”; (2) the term “means for” is modified by functional language;
and (3) the term “means for” is not modified by any structure recited in the
claim to perform the claimed function. In the Decision to Institute, we
determined that the function of the “means for receiving . . .” is
receiving said plurality of first data units, and constructing one
to several message fields for a second data unit, said one to
several message fields including a type identifier field and at
least one of a sequence number field, a length field, a content
field, a plurality of erroneous sequence number fields, and a
plurality of erroneous sequence number length fields, each of
said plurality of erroneous sequence number fields associated
with a respective one of said plurality of erroneous sequence
number length field.
Dec. to Inst. 12–15. We also construed the structure for performing the
recited function to be the sender and receiver of a peer entity. Id. Neither
party disputes our initial construction of this term, and Patent Owner agrees

4
Section 4(c) of the AIA re-designated 35 U.S.C. § 112, ¶ 6, as 35 U.S.C.
§ 112(f). Pub. L. No. 112-29, 125 Stat. 284, 296–07 (2011). Because the
’215 patent has a filing date before September 16, 2012 (effective date), we
will refer to the pre-AIA version of 35 U.S.C. § 112, in this decision.
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with our determination of the corresponding structure (PO Resp. 31). We
maintain our construction.
3. “for minimizing feedback responses in an ARQ protocol” (Preambles)
The preamble of each independent claim recites “for minimizing
feedback responses in an ARQ protocol.” In the Decision to Institute, we
determined that the preambles do not limit the claims. Dec. to Inst. 15.
Neither party disputes our initial construction of this term, and Patent Owner
agrees with it (PO Resp. 32
5
). We maintain our construction.
4. “means for sending a plurality of first data units over said
communication link to said second peer entity”
Independent claim 45 recites a “means for sending . . . .” Petitioner
contends that this term is a means-plus-function element invoking 35 U.S.C.
§ 112, paragraph 6. We agree because (1) the limitation uses the phrase
“means for”; (2) the term “means for” is modified by functional language;
and (3) the term “means for” is not modified by any structure recited in the
claim to perform the claimed function. In the Decision to Institute, we
determined that the function of the “means for sending a plurality of first
data units over said communication link to said second peer entity” is
“sending a plurality of first data units over said communication link to said
second peer entity.” Dec. to Inst. 15–17. We also construed the structure
for performing the recited function to be the sender of a peer entity. Id.

5
Patent Owner’s Response appears to have swapped headings IV.B.3 and
IV.B.4 inadvertently, such that this claim term is argued under the heading
“for minimizing feedback responses in an ARQ protocol,” and that term is
argued under the heading “means for sending.”
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Neither party disputes our initial construction of this term, and Patent
Owner agrees with our determination of the corresponding structure (PO
Resp. 31–32
6
). We maintain our constructions.
C. The Challenged Claims – Anticipated by Seo
Petitioner argues that claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34,
45, 46, 49, 52, and 54 are unpatentable under 35 U.S.C. § 102(b) as
anticipated by Seo. Pet. 21–45. In support of this ground of unpatentability,
Petitioner provides detailed explanations as to how each claim limitation is
disclosed by Seo, and relies upon the Declaration of Dr. Bims (Ex. 1004).
Id. (citing Ex. 1004 ¶¶ 31–70).
Patent Owner counters that claim 1 is not anticipated by Seo because
(1) Seo’s NAK_TYPE does not “identif[y] the message type of a feedback
response message from a number of different message types,” as the parties’
proposed construction of “type identifier field” requires, because Seo
discloses only a single message type; and (2) Seo’s NAK_TYPE field is not
included in a “message field,” as required by each of the challenged claims.
PO Resp. 37–40. Patent Owner also argues that Seo does not disclose a
length field, as required by independent claim 15. Id. at 40–41.
Upon consideration of the parties’ contentions and supporting
evidence, we determine that Petitioner has demonstrated, by a
preponderance of the evidence, that claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29,
32, 34, 45, 46, 49, 52, and 54 are anticipated by Seo.

6
See n.5 above.
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Seo (Exhibit 1002)
Seo describes a method for transmitting control frames and user data
frames in a mobile radio communications system. Ex. 1002, 1:10–12.
Specifically, Seo discusses a modification of the Radio Link Protocol
(“RLP”) specified in international standard IS-707 for a Code Division
Multiple Access (“CDMA”) mobile radio communication system. Id. at
1:14–19, 5:28–30. According to the RLP retransmission procedure, a
Negative Acknowledgement (“NAK”) RLP control frame for a particular
user data frame can be transmitted more than once at the same time to ensure
reliability and, in response to receiving each NAK, the missing user data
frame will be retransmitted. According to the invention of Seo, rather than
transmitting each NAK corresponding to each missed user data frame, a
single NAK corresponding to all missed user data frames is transmitted to
the sender. Id. at 5:31–36.
Figure 4 of Seo is reproduced below:

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Figure 4 shows the structure of a RLP NAK control frame according to the
invention of Seo. Id. at 5:42–43. The NAK control frame of Seo includes a
field NAK_TYPE with a length of 2 bits to indicate a NAK type. Id. at
5:53–54.
If the value of NAK_TYPE is “00,” the receiver is requesting
retransmission of a range of missed user data frames (Id. at 5:54–57), and
the fields FIRST, LAST, FCS, and padding exist (Id. at 6:18–19). FIRST is
the 12-bit sequence number of the first data frame for which retransmission
is requested. Id. at 5:63–65. LAST is the 12-bit sequence number of the last
data frame for which retransmission is requested. Id. at 5:65–67. SEQ, with
a length of 8 bits, is a data frame sequence number. Id. at 5:57–58.
If the value of NAK_TYPE is “01,” the receiver is requesting
retransmission of missed user data frames using a bitmap, and the field
NAK_MAP_COUNT exists. Id. at 6:8–21. If the value of the field
NAK_MAP_COUNT+1 exists, then the fields NAK_MAP_SEQ and
NAK_MAP exist. Id. at 6:21–22. NAK_MAP_SEQ is the 12-bit sequence
number of the first data frame in the NAK Map for which retransmission is
requested. Id. at 6:8–11. NAK_MAP is an 8-bit bitmap identifying the
missing user data frames for which retransmission is requested, wherein the
most significant bit corresponds to the user data frame identified by
NAK_MAP_SEQ+1. Id. at 6:11–15.
Analysis
In light of the arguments and evidence, Petitioner has demonstrated,
by a preponderance of the evidence, that the challenged claims are
unpatentable as anticipated by Seo.
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For example, independent claim 1 recites “sending a plurality of first
data units over a communication link.” Seo discloses a “transmitting
station” that sends user data frames to a “receiving station” over a “radio
section between a receiving station and the transmitting station.” Ex. 1002,
5: 28–41; see also id. at 8:24–27 (“transferring user data frames of a radio
link protocol (RLP) from a transmitting station to a receiving station”), Fig.
6 (“Transmitting Station A”). The user data frames transport user traffic
data. Id. at 1:21–22.
Claim 1 also recites “receiving said plurality of first data units.” Seo
discloses a “receiving station” that receives user data frames from the
“transmitting station.” Id. at 1:21–22, 5:28–41, 8:24–27, Fig. 6 (“Receiving
Station B”).
Finally, claim 1 recites “responsive to the receiving step, constructing
a message field for a second data unit, said message field including a type
identifier field and at least one of a sequence number field, a length field,
and a content field.” Seo discloses an “RLP NAK” message that includes a
field NAK_TYPE that identifies whether the message identifies a range of
sequence numbers or uses a bitmap. If the value of NAK_TYPE is “00,” the
RLP NAK message includes two fields—FIRST and LAST—with “the 12-
bit sequence number of the first data frame for which a retransmission is
required,” and “the 12-bit number of the last data frame for which a
retransmission is required,” respectively. Ex. 1002, 5:54–57, 5:63–67, 6:17–
18. If the value of NAK_TYPE is “01,” the RLP NAK message includes a
field NAK_MAP_SEQ with “the 12-bit sequence number of the first data
frame in this NAK Map for which [] retransmission is requested.” Id. at
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6:9–11. On this record, we are persuaded that Seo’s RLP NAK message
includes a type identifier field (NAK_TYPE), and a sequence number field
(FIRST, LAST, or NAK_MAP_SEQ). We are persuaded that Seo discloses
this limitation whether “type identifier field” is construed to mean “a field of
a message that identifies the type of that message,” or, in the alternative, to
mean any type of data.
Claim 2 recites “wherein said message field comprises a bitmap
message.” Claim 6 recites similarly “wherein said content field comprises a
bitmap.” Seo discloses that, if the value of NAK_TYPE is “01,” the RLP
NAK message includes a field NAK_MAP “with a length of 8 bits [that] is a
bit-map identifying the missing user data frames for which a retransmission
is requested.” Id. at 6:11–13. On this record, we are persuaded that Seo
discloses claims 2 and 6.
Claim 4 recites “wherein said sequence number field includes any
sequence number from said plurality of first data units.” Claim 8 recites
similarly “wherein said second data unit comprises information about
missing or erroneous said first data units.” As discussed above, the RLP
NAK message includes fields with sequence numbers for which
retransmission is requested—i.e., the sequence number of a data unit
previously sent by the transmitting station but not missed by the receiving
station. See, e.g., Id. at 2:46–51 (“That is, the receiving station requests the
transmitting station to retransmit the missed user data frames hereto.”)
(emphasis added). On this record, we are persuaded that Seo discloses
claims 4 and 8.
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Petitioner also argues that claims 15, 22, 25, 26, 29, 32, 34, 45, 46, 49,
52, and 54 are disclosed by Seo. Pet. 23–33, 38–41. We are persuaded that
the evidence of record supports Petitioner’s contentions.
Patent Owner presents several arguments as to how Petitioner has
failed to provide an adequate reason to modify the references to reach the
claimed invention and why Seo does not teach all of the limitations of the
claims. PO Resp. 32–42. Petitioner responds to these arguments. Pet.
Reply 1–15. We address each argument in turn below.
Whether Seo discloses “a number of different message types”
Patent Owner argues that, “the NAK_TYPE field in Seo does not
‘identif[y] the message type of a feedback response message from a number
of different message types’ because Seo merely discloses a single message
type.” PO Resp. 37. According to Patent Owner, “Seo’s NAK frame has a
constant size and format, containing both a bitmap and a list, regardless of
NAK_TYPE,” and “the NAK frame . . . always contains the same fields
whose content varies with the contents of the NAK_TYPE field.” Id. at 38.
Patent Owner continues that “Seo’s NAK_TYPE field merely indicates
which fields within the message field will contain zero values and which
fields will contain non-zero values.” Id. According to Patent Owner,
“Figure 4 represents a single control frame that includes fields for both a list
of first and last sequence numbers and bitmaps,” and that the “only change is
that certain fields contain non-zero values, depending on the value of the
NAK_TYPE.” Id. at 39.
Petitioner counters that “Seo never limits the NAK message to a fixed
length,” and that “[e]ven if all the NAK messages in Seo had the same fixed
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length, it would not prove that the NAK messages all have the same fields”
because the length of a message does not necessarily determine its type. Pet.
Reply 6. According to Petitioner, “Seo does not require that all fields shown
in Figure 4 be used with all types of NAKs.” Id. Petitioner continues that,
“Seo describes how different fields ‘exist’ in different types of NAKs, as
indicated by the value of NAK_TYPE.” Id. at 6–7. We find Petitioner’s
arguments to be persuasive.
As an initial matter, Patent Owner’s argument is based upon its
proposed construction of “type identifier field,” which we declined to adopt
for the reasons above. In any event, we are not persuaded that Seo discloses
only a single message type, as Patent Owner contends. Seo discloses
explicitly that some fields in the RLP NAK control frame depicted in Figure
4 exist only if NAK_TYPE is “00,” whereas other fields exist only if
NAK_TYPE is “01.” Ex. 1002, 6:18–22 (“[i]f a value of the field
NAK_TYPE is ‘00’, the fields FIRST, LAST, FCS, padding, exist. If a
value of the 20 field NAK_TYPE is’01’, the field NAK_MAP COUNT
exi[st]. If a value of the field NAK_MAP COUNT+1 exists, there exist the
fields NAK_MAP SEQ and NAK_MAP.”); see also id. at claim 11. Patent
Owner argues that Seo uses to the term “exist” to mean “contain non-zero
values,” and that those fields of Figure 4 which are not said to “exist”
contain only zero values (PO Resp. 38–39), but cites nothing in Seo to
support its interpretation. The only evidence Patent Owner offers is the
testimony of its expert, Dr. Robert Akl, who merely repeats the language of
the Patent Owner Response. Ex. 2020 ¶ 51.
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In contrast, Petitioner’s expert, Dr. Bims, testifies that Seo uses the
common sense meaning of “exist,” and testifies that “it would make sense to
include unnecessary fields in a NAK message, such as FIRST and LAST
fields in a NAK message of the bitmap NAK_TYPE, or bitmap fields in a
First/Last type of NAK.” Ex. 1013 ¶¶ 4–6. In this regard, we credit the
testimony of Dr. Bims. We conclude that Seo discloses an RLP NAK
control frame that includes certain fields only when NAK_TYPE is “00” and
includes other fields only when NAK_TYPE is “01.” Accordingly, we are
not persuaded by Patent Owner’s argument that NAK_TYPE is not a “type
identifier field” because it does not identify the type of a message from a
number of different message types.
Whether NAK_TYPE is included in a “message field”
Patent Owner argues that, “NAK_TYPE is not part of the message,
but rather part of the S-PDU header.” PO Resp. 39. According to Patent
Owner, “‘the type identifier field’ must be part of the ‘said message field’”
and distinguishes “fields that were included in the header of the PDU such as
the PDU_format field shown in the admitted prior art.” Id. at 39–40. Patent
Owner argues that certain benefits of the invention are achieved because
“the claimed ‘type identifier field’ [is] in the message body as opposed to the
fixed length header.” Id. at 40.
Petitioner counters that “neither the claims nor the specification of the
’215 patent make a distinction between providing information in a ‘header’
versus in a ‘payload’ or in any other portion of a message.” Pet. Reply 10.
Petitioner continues that, “The ’215 patent refers to its Figures 4-7 as
‘messages’ without differentiating any parts of those messages, such as those
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fields that include control information (type) and those fields that contain
data content.” Id. at 11 (citing Ex. 1013 ¶ 10). Moreover, according to
Petitioner, “[t]he amendment did not add any requirement that a type
identifier field be in a particular portion of the message (header, payload, or
elsewhere);” instead, “the type identifier field was always part of the
‘message field’ – the amendment just made clear that the type identifier field
was a necessary element, and not just one of several optional fields within
the message field.” Id. at 12. We find Petitioner’s arguments to be
persuasive.
Patent Owner relies entirely on the testimony of its expert, Dr. Akl, to
support its construction of “message” as excluding headers. PO Resp. 39–40
(citing Ex. 2020 ¶¶ 52, 53). However, neither the claims nor the
Specification of the ’215 patent distinguish a header from the recited
“message.” Indeed, the term “header” is not even used in the ’215 patent.
Moreover, Dr. Bims testifies that “the type field in Figures 4-7 of the ’215
patent contain bits that tell a receiver how to process the substance of the
data that follows, and therefore, would be considered part of a header as
opposed to a “payload.” Ex. 1013 ¶ 10. We, therefore, see no basis to
construe the term “message” to exclude a header. Accordingly, we are not
persuaded that Seo’s NAK_TYPE is not included in a “message field.”
Dependent claim 15
Patent Owner argues that claim 15 requires that each message field
must include a “length field” because it requires
at least one of (i) ‘a length field’, (ii) ‘a plurality of erroneous
sequence number-fields . . . each of said plurality of erroneous
sequence number fields associated with a respective one of said
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plurality of erroneous sequence number length fields,’ and (iii)
‘a plurality of erroneous sequence number length fields.’
PO Resp. 41. In other words, Patent Owner contends that the “each of”
clause at the end of claim 15 should be read in conjunction with “a plurality
of erroneous sequence number-fields,” recited earlier in the claim. Id.
According to Patent Owner, “Seo does not disclose a length field” because
“[n]either the FIRST/LAST nor the BITMAP section of the NAK Control
frame teaches or discloses a length field. Id.
Petitioner counters that the “each of” clause should be read in
conjunction with the “plurality of erroneous sequence number length fields,”
that immediately precedes it in the claim. Pet. Reply 14. According to
Petitioner, “[Patent] Owner’s argument gives no meaning to the phrase “at
least one of.” Id. We find Petitioner’s arguments to be persuasive.
The “each of” clause references both “said plurality of erroneous
sequence number fields” and “said plurality of erroneous sequence number
length fields.” Nothing about the clause itself suggests that it should be read
in conjunction with the “plurality of erroneous sequence number-fields, as
opposed to with the “plurality of erroneous sequence number length fields.”
When a claim recites, “at least one of A, B, and C, each of said B associated
with said C,” the intuitive interpretation is to read the “each of” clause as
part of C. Patent Owner points to nothing in the Specification of the ’215
patent that supports its counter-intuitive interpretation. Accordingly, we are
not persuaded that claim 15 requires a “length field” and, therefore, are not
persuaded that Seo fails to disclose claim 15.
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Dependent claims
Patent Owner argues that dependent claims 2, 4, 6, 8, 22, 26, 29, 32,
34, 46, 49, 42, and 54 are not anticipated by Seo because they depend from
an independent claim that is not anticipated. PO Resp. 41–42. We are not
persuaded by Patent Owner’s arguments regarding the independent claims
for the reasons discussed above.
Conclusion
We are persuaded that Petitioner has demonstrated, by a
preponderance of the evidence, that claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29,
32, 34, 45, 46, 49, 52, and 54 are unpatentable as anticipated by Seo.
D. Patent Owner’s Motion to Exclude
Patent Owner’s Motion to Exclude seeks to exclude (1) Exhibit 1010,
entitled “TIA/EIA Interim Standard; Data Service Options for Wideband
Spread Spectrum Systems,” TIA/EIA/IS-707-A (Revision of TIA/EIA/IS-
707); and (2) paragraph 7 of the Reply Declaration of Dr. Bims (Ex. 1013).
Paper 53, 2–4. As movant, Patent Owner has the burden of proof to
establish that it is entitled to the requested relief. See 37 C.F.R. § 42.20(c).
For the reasons stated below, Patent Owner’s Motion to Exclude is
dismissed as moot.
Patent Owner argues that Exhibit 1010 should be excluded because
(1) it is irrelevant under Rule 403 because it is dated 4–8 months after Seo
and is not, therefore, contemporaneous evidence of how a person of ordinary
skill in the art would have interpreted Seo; (2) Petitioner has not shown why
the exhibit could not have been included in the Petition; (3) it does not
respond to any argument raised by Patent Owner in its response; (4) it is not
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relevant to any issue in the case (Fed. R. Evid. 401, 403); (5) it has not been
authenticated, and no evidence links it to the version of IS-707.2 referenced
in Seo (Fed. R. Evid. 901); and (6) it is inadmissible hearsay because
Broadcom is attempting to prove the truth of the matter asserted, including
its alleged publication date (Fed. R. Evid. 801, 802). Paper 53, 2–3 (citing
Hilgraeve, Inc. v. Symantec Corp., 271 F. Supp. 2d 964, 974–75 (E.D. Mich.
2003)). Patent Owner argues that paragraph 7 of Dr. Bims’ Declaration
should be excluded because it “[f]or the same reasons above as to Exhibit
1010.” Id. at 4.
Because we have not relied upon Exhibit 1010, the motion is
dismissed as moot as to Exhibit 1010 and paragraph 7 of Exhibit 1013.
III. CONCLUSION
Petitioner has shown, by a preponderance of the evidence, that claims
1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32, 34, 45, 46, 49, 52, and 54 of the ’215
patent are unpatentable.
IV. ORDER
Accordingly, it is
ORDERED that pursuant claims 1, 2, 4, 6, 8, 15, 22, 25, 26, 29, 32,
34, 45, 46, 49, 52, and 54 of the ’215 patent are held unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is
dismissed as moot; and
FURTHER ORDERED that, because this is a Final Written Decision,
the parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.
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For PETITIONER:

Dominic E. Massa
Michael A. Diner
Zachary Piccolomini
WILMER CUTLER PICKERING HALE AND DORR LLP
dominic.massa@wilmerhale.com
michael.diener@wilmerhale.com
zachary.piccolomini@wilmerhale.com

For PATENT OWNER:

Peter J. Ayers
J. Christopher Lynch
LEE & HAYES PLLC
peter@leehayes.com
chris@leehayes.com
EricssonIPR2013-00601@leehayes.com
EricssonIPR2013-00602@leehayes.com