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England and Wales High Court (Patents Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Unwired Planet International Ltd v Huawei Technologies Co Ltd & Ors  EWHC 3366 (Pat) (23 November 2015)
Cite as:  EWHC 3366 (Pat),  Bus LR 435
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Fetter Lane, London, EC4A 1NL
B e f o r e :
| UNWIRED PLANET INTERNATIONAL LIMITED
|- and -
|(1)HUAWEI TECHNOLOGIES CO., LIMITED
|(2)HUAWEI TECHNOLOGIES (UK) CO., LIMITED
|(3) SAMSUNG ELECTRONICS CO., LIMITED
|(4) SAMSUNG ELECTRONICS (UK) LIMITED
|(5) GOOGLE INC.
|(6) GOOGLE IRELAND LIMITED
|(7) GOOGLE COMMERCE LIMITED
|- and -
|UNWIRED PLANET, INC.
|UNWIRED PLANET LLC
|- and -
|TELEFONAKTIEBOLAGET LM ERICSSON
Andrew Lykiardopoulos QC and Ben Longstaff (instructed by Powell Gilbert) for Huawei
Charlotte May QC and Brian Nicholson (instructed by Bristows) for Samsung
Hearing dates: 7th, 8th, 13th, 14th, 16th, 19th and 20th October 2015
Crown Copyright ©
Mr Justice Birss:
|The skilled person / team||15|
|Common general knowledge||19|
|Counting payload data||77|
|Dual reset (claim 9)||95|
|Infringement / Essentiality||100|
|The priority document||108|
|Priority - retransmission||122|
|Priority - payload data||124|
|Priority - upon assembly||130|
|Priority - dual reset (claim 9)||138|
|Draft LTE standard 3GPP TS 36.322 V.8.0.0||205|
Claim 1: Method in a first node for requesting a status report from a second node, the first node and the second node both being comprised within a wireless communication network, the status report comprising positive and/or negative acknowledgement of data sent from the first node to be received by the second node, wherein the method comprises the steps of:
transmitting a sequence of data units or data unit segments to be received by the second node, the method further comprises the steps of:
counting the number of transmitted data units and the number of transmitted data bytes of the transmitted data units, and,
requesting a status report from the second node if the counted number of transmitted data units exceeds or equals a first predefined value or the counted number of transmitted data bytes of the transmitted data units exceeds or equals a second predefined value.
Claim 9: Method according to any of the previous claims 6-8, wherein the steps of resetting the first counter and the second counter is performed when the first predefined value is reached or exceeded by the first counter or when the second predefined value is reached or exceeded by the second counter.
i) Claim construction, infringement (essentiality) and priority. Unwired Planet submits that on the correct construction of the claims they are entitled to priority and they cover the LTE standard. The defendants submit that if the claims are construed as Unwired Planet contend then they are not entitled to priority. It is common ground that any claim which loses priority lacks novelty over the version of the relevant part of the LTE standard published in the period between the priority date and the filing date, 3GPP TS 36.322 V.8.3.0. It is also common ground that if the claims are construed as the defendants contend then they are not infringed.
ii) Novelty. Both sets of defendants rely on 3GPP temporary document R2-080236 ("the Ericsson TDoc"). It is common ground that the patent will be invalid if the Ericsson TDoc is part of the state of the art at the priority date. The debate is a point of law based on international time zones.
iii) Obviousness in the light of:a) the draft LTE standard 3GPP TS 36.322 V8.0.0;b) 3GPP temporary document R2-073538 ("the Motorola TDoc");c) 3GPP temporary document R2-074270 ("the Samsung TDoc").Points a) and b) are argued by Huawei, point c) is argued by Samsung.
The skilled person/team
The common general knowledge
i) "Poll timer". A timer is set when a poll is triggered and stopped in certain circumstances (such as when the right status report is received). If no status report appears before the timer runs out a further poll is sent. This aims to ensure that when a poll is sent, it is answered correctly.
ii) "Every Poll_PDU PDU". This is a PDU counter. The system counts the number of PDUs sent and when that number reaches the value in the field "Poll_PDU" a poll is triggered.
iii) "Every Poll_SDU SDU". This is an SDU counter. The system counts the number of SDUs received and when that number reaches the value in the field "Poll_SDU" a poll is triggered. To be precise the poll is triggered on the first transmission of the AMD PDU which contains the last segment of the RLC SDU.
iv) "Window based". This poll trigger works by following the sequence number window at the transmitter. The poll is triggered when an AMD PDU is sent which represents a given percentage of the transmission window given by a formula. In other words when occupancy of the sequence number resource reaches a predetermined threshold the poll is triggered.
v) "Timer based". This triggers a poll periodically based on a timer.
Initialise PDU_Counter and ByteCounter to their starting values;
IF (PDU_Counter=PDU_Threshold) OR (ByteCounter=ByteThreshold) THEN
- Trigger a poll;
- Reset PDU_Counter AND ByteCounter;
i) counting retransmissions;
ii) counting payload data;
iii) upon assembly;
iv) dual reset (claim 9).
Counting payload data
Dual Reset (claim 9)
Infringement / Essentiality
"65. The skilled person must be able to derive the subject matter of the claim directly and unambiguously from the disclosure of the priority document. Mr Tappin stressed that the question was one of what was disclosed to the skilled person, not what was made obvious to him by the priority document, for example in the light of his common general knowledge. I agree that, as the above passage shows, that is the correct approach. That does not mean, however, that the priority document should be read in a vacuum. The question of what a document discloses to a skilled person takes account of the knowledge and background of that person. A document may mean one thing to an equity lawyer and another to a computer engineer, because each has a different background. The document still only has one meaning because it is only the relevant skilled person's understanding which is relevant. What is not permissible is to go further than eliciting the explicit or implicit disclosure and take account of what a document might lead a skilled person to do or try, or what it might prompt him to think of."
The priority document
"The present invention intends to define two triggering mechanisms; one mechanism that counts the number of PDUs and one mechanism that counts the number of transmitted bytes. In particular, as those mechanisms would be independent of each other, according to one embodiment of the present invention the criteria "transmitted number of PDUs" and "transmitted number of bytes" are combined into one single mechanism.
It is then an advantage of the present invention that the mechanism operates on both bytes and PDUs and thus avoids stalling due to both sequence number limitations and memory limitations. This is advantageously achieved by a single mechanism coordinating the polling by two criteria leading to an efficient polling mechanism.
Other objects, advantages and novel features of the invention will become apparent from the following detailed description of the invention."
i) ("retransmissions"; claim 1) There is nothing in the priority document to suggest counting only initial PDUs and ignoring retransmissions. Given the conclusion on construction above, claim 1 covers a method of counting only initial transmissions. Construed this way the claim is not supported and not entitled to priority.
ii) ("payload data"; claim 1) This is the same kind of argument as for retransmissions. There is nothing in the priority document about counting only bytes of payload data. Construed to cover a method which counts only payload bytes, the claim is not supported and not entitled to priority.
iii) ("upon assembly"; claim 1) The priority document only discloses counting PDUs after they have been transmitted. Given the conclusion on construction above, claim 1 is wider than that. In its wide form the claim is not supported and not entitled to priority.
iv) ("dual reset"; claim 9) The priority document only discloses the dual reset approach rather than global reset. Given the conclusion on construction above, the claim is not supported and not entitled to priority.
Priority - Retransmission
Priority – Payload data
Priority – Upon assembly
i) In the Background at p2 ln7-9 the document refers to counting "transmitted PDUs (or bytes)" and to setting the poll bit when a number of PDUs or bytes "have been" transmitted. (my emphasis)
ii) In the Summary section at p2 ln26 the document refers to transmitted bytes and to the transmitted number of PDUs or bytes. (my emphasis)
iii) The Detailed Description also refers to the transmitted number of PDUs or bytes at p4 ln19-21. (my emphasis)
iv) The Detailed Description at p4 ln22-29 would be understood to state that after the data has been transmitted the counters are compared and if necessary a poll is triggered.
v) The pseudocode (at p5) provides that the triggering of a poll happens after the data is transmitted.
Priority – dual reset (claim 9)
Priority – conclusion
i) The first thing which happened was that the Ericsson TDoc was uploaded by Ericsson (in Europe) onto the ETSI file server. This occurred when the date in Europe was 8th January 2008. The upload was in preparation for a meeting of the relevant 3GPP committee which was considering the design of the RLC layer in LTE which was due to take place on 14-18th January 2008. The formal designation of the meeting was the TSG-RAN WG2 #60bis meeting. As soon as it was uploaded, the document was freely available on the internet to anyone anywhere in the world. An email from Janne Peisa of Ericsson announcing the availability of the Ericsson TDoc, which included a hyperlink to the document, was sent to participants in the meeting shortly after the document was uploaded. About an hour after it was uploaded, Mr Leishout who was then employed at Samsung in the Netherlands and was the Chairman of the relevant committee, downloaded it.
ii) Second, the priority document for the patent was filed at the United States Patent Office. This occurred when the date in Europe and the USPTO was 8th January 2008.
(GMT - 5)
(GMT - 10)
|Ericsson Doc uploaded to ETSI server||8 Jan 08:36||8 Jan 07:36||8 Jan 02:36||7 Jan 21:36|
|Ericsson Doc downloaded by Mr Lieshout||8 Jan 09:45||8 Jan 08:45||8 Jan 03:45||7 Jan 22:45|
|Priority Doc filed at USPTO||8 Jan 22:59||8 Jan 21:59||8 Jan 16:59||8 Jan 11:59|
Additionally, the content of European patent applications as filed, that dates of filing of which are prior to the date referred to in paragraph 2 and which were published on or after that date, shall be considered as comprised in the state of the art.
[Examining Division's emphasis]
"The question of obviousness must be considered on the facts of each case. The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances. These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success."
The Motorola TDoc
"2. Transmission of every N bytes data.
The sender triggers the polling function for every N bytes of data transmitted which haven't been ACK/NACK yet. This trigger aims at avoiding RLC buffer overflows. Note that RLC PDU size is flexible in LTE system, so the byte based polling is more accurate in reflecting the potential buffer level than PDU or SDU counts.
3. Transmission of every K TTIs.
The sender triggers the polling function periodically. This may be necessary if the transmitter wants to get the receiver updates periodically."
"Q. Have you got any explanation as to why none of the skilled people at the time spotted what you say they would have spotted, or should have spotted? Is it the same as before? They just missed it?
A. As I say, it was a particular milestone in the process of evolving the standard. Yes, I think at that point in time perhaps they had not considered the full breadth of options and considerations. Maybe given more time they would have come up with similar proposals to the Ericsson TDoc.
Q. If they had done some modelling?
A. It is obviously commensurate with how much work and analysis you put in, the results that you get."
"Q. And he would conclude that it is perfectly within his skill and knowledge -- I will start that again. It is perfectly within his skill and knowledge when reading Motorola to think, I like the idea of the transmission of N bytes data which helps my buffer problem and I will use the N PDU for the sequence number problem.
A. That is a perfectly plausible train of thought, yes.
Q. And it is one that is within the skill and knowledge of a skilled person reading Motorola at the priority date?
A. That is correct.
Q. If he does that, he will then have two counters, which is correct, is it not? He would then have two counters.
A. Yes, he will have two counters."
The draft LTE standard 3GPP TS 36.322 V.8.0.0.
"It has been decided to support either a PDU count based polling trigger or Window based polling trigger in addition to the polling triggers indicated above.
"Transmitting entity shall not transmit RLC PDUs beyond the window, in other words RLC PDUs with higher SNs than VT(MS) shall not be transmitted and that RLC PDUs can not be transmitted when VT(B) is equal to zero."
Q. It follows, does it not, from that immediate realisation that the skilled person will have reading this document that he will also realise it will be necessary for him to take into account both of those potential stall situations when he is designing his polling triggers for LTE?
A. That is correct.
Q. One obvious solution available to him at the priority date is to poll against both the sequence number limitation and the buffer limitation. Correct?
A. Both solutions are obvious. Individually, he would ask whether it is necessary to introduce both triggers, but he will certainly be aware of both triggers from his existing knowledge and might well contemplate that approach.
Q. We see that not one of the proposals is to poll against these two dimensions.
A. That is right.
Q. Why is that?
A. Because if people had thought about the problem they probably thought that they could get a solution which was simpler by only looking at one of the dimensions.