Filed on behalf of Patent Owner Network-1 Security Solutions, Inc.
`
`By: Robert G. Mukai, Esq.
`BUCHANAN INGERSOLL & ROONEY PC
`
`
`1737 King Street, Suite 500
`
`Alexandria, Virginia 22314-2727
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`Telephone (703) 836-6620
`
`Facsimile (703) 836-2021
`robert.mukai@bipc.com
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________________
`
`SONY CORPORATION OF AMERICA; AXIS COMMUNICATIONS AB; and
`AXIS COMMUNICATIONS INC.
`Petitioners
`
`v.
`
`NETWORK-1 SECURITY SOLUTIONS, INC.
`Patent Owner
`
`_______________
`
`Case IPR2013-00092
`Patent 6,218,930
`Administrative Patent Judges Jameson Lee, Joni Y Chang, and Justin T. Arbes
`____________________
`
`
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE TO THE PETITION
`FOR INTER PARTES REVIEW FOR U.S. PATENT NO. 6,218,930
`PURSUANT TO 35 U.S.C. § 313 AND 37 C.F.R. § 42.107
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`Table of Contents
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`I.
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`Introduction. ....................................................................................................... 1
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`II.
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`Background of the ‘930 Patent .......................................................................... 5
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`A.
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`The ‘930 Patent. ...................................................................................... 5
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`B.
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`Significant differences between the “low level current”
`approach and the approach taken in the prior art. .................................. 7
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`1.
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`2.
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`Prior art approach: data, not currents, are used
`to carry information ...................................................................... 8
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`Prior art approach: current should be avoided until after
`a compatible device is detected..................................................... 11
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`III. The Petition should be denied because it does not provide
`constructions for key terms of the challenged claims, including the
`key relative phrase “low level current.” ............................................................ 11
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`
`
`A. A petition for Inter Partes Review must both (a) identify how
`the challenged claims are to be construed, and (b) apply the
`construed claims to the asserted prior art references. ............................. 11
`
`
`
`B. The Petition does not identify constructions for most key
`terms in the challenged claims, including the relative phrase
`“low level current.” ................................................................................. 13
`
`
`
`IV. None of Petitioners’ Grounds have any reasonable likelihood of
`prevailing with respect to any challenged claim. .............................................. 19
`
`A. Ground 1: Chang does not disclose, the claimed “low level
`current” and the step involving the “low level current.” ......................... 20
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`
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`1.
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`Overview of Chang. ...................................................................... 20
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`-i-
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`2.
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`Chang does not disclose the claimed “low level current”
`and step [b] of Claim 6. ................................................................. 24
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`
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`
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`(a) The data signal disclosed in Chang cannot be the
`claimed “low level current” because it is not
`delivered over the “data signaling pair.” ............................ 24
`
`(b) The data signal disclosed in Chang is not a “low
`level current.” ..................................................................... 26
`
`
`
`
`
`(i) The claimed “low level current.” .............................. 26
`
`(ii) The data signal taught in Chang is not the
`claimed “low level current.” ..................................... 31
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`B. Ground 4: Fisher, combined with Chang, does not disclose the
`claimed “low level current” and the step involving the “low
`level current.” .......................................................................................... 35
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`
`
`
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`
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`1.
`
`Overview of Fisher. . .................................................................... 35
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`2.
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`Fisher does not disclose the claimed “low level current”
`and step[b] of Claim 6. ................................................................. 37
`
`3. Chang cannot be combined with Fisher to teach the “low
`level current” and step [b] of Claim 6. .......................................... 38
`
`C. Ground 2: Woodmas, from a completely different field than
`the ‘930 Patent, does not anticipate the challenged claims. .................... 41
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`
`
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`
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`1.
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`Overview of Woodmas. ................................................................ 42
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`2. Woodmas does not teach a “[m]ethod for remotely
`powering access equipment in a data network.” ........................... 44
`
`3. Woodmas does not teach “a data node adapted for data
`switching.” .................................................................................... 46
`
`D. Ground 3: Satou, from a completely different field than the
`‘930 Patent, does not anticipate or render obvious the
`challenged claims. . ................................................................................. 50
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`- ii -
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`1. Overview of Satou. ....................................................................... 50
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`2.
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`3.
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`Satou does not teach a “[m]ethod for remotely powering
`access equipment in a data network.” ........................................... 52
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`Satou does not disclose “providing a data node adapted
`for data switching.” ....................................................................... 54
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`4.
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`Satou does not render obvious the challenged claims. ................. 57
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`V.
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`Conclusion. ....................................................................................................... 59
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner’s Preliminary Response
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`I.
`
`Introduction.
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`The Patent Owner Network-1 Security Solutions, Inc. respectfully requests
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`that the Board deny the Petition for Inter Partes Review filed by Sony and Axis
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`against Network-1’s U.S. Patent No. 6,218,930 for two reasons.
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`Reason 1: The Petition fails to comply with Patent Office regulations
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`because it fails to provide mandatory claim constructions.
`
`A petition for inter partes review “must identify … (3) How the challenged
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`claim is to be construed [and] (4) How the construed claim is unpatentable.” 37
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`C.F.R. § 42.104(b), (b)(3)-(4) (emphasis added).
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`For certain claim terms, a petitioner might be able to satisfy this requirement
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`by clearly stating that such terms have their ordinary and customary meaning to a
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`person of ordinary skill in the art. See Changes to Implement Inter Partes Review
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`Proceedings, Comment 35 and Response; 77 Fed. Reg. 48699-700 (Aug. 14,
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`2012). The Petition, however, fails even to meet this minimal threshold.
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` Moreover, for terms that do not have an ordinary meaning that can be
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`applied to the prior art, the petitioner must go further and expressly set forth a
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`proposed construction. One such circumstance is when a claimed phrase includes
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`a word of degree (a relative term), such as “smooth,” “slow,” or “low.” Claim
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`terms that are words of degree have no ordinary meaning apart from “some
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`standard for measuring that degree” found in the specification. Exxon Research &
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`Case No. IPR2013-00092
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`Engineering Co. v. United States, 265 F.3d 1371, 1381 (Fed. Cir. 2001) (quoting
`
`Seattle Box Co. v. Indus. Crating & Packaging, Inc., 731 F.2d 818, 826 (Fed. Cir.
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`1984)). Therefore, when a claim uses words of degree, a petitioner must identify a
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`construction that includes the standard for measuring that degree.
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`A key phrase in steps [b] and [c] of Claim 6 of the ‘930 Patent (the single
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`independent claim at issue) is “low level current.” The word “low” in “low level
`
`current” is a word of degree. What is the standard for determining whether a
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`current level is low enough to satisfy this claim element? Unless this question is
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`answered, it is impossible to apply the phrase “low level current” to the prior art
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`and, therefore, impossible for the Board to rule on the Petition. But the Petition is
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`silent as to how the phrase “low level current” should be construed in the context
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`of the ‘930 Patent. Accordingly, the Petition fails to meet the mandated
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`requirements and should be rejected.
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`Reason 2: The Petition fails to meet the minimum required threshold
`
`because it does not demonstrate a reasonable likelihood of prevailing as to any
`
`claim.
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`“The Director may not authorize an inter partes review to be instituted
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`unless the Director determines that the information presented in the petition . . .
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`shows that there is a reasonable likelihood that the petitioner would prevail with
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`respect to at least 1 of the claims challenged.” 35 U.S.C. § 314(a).
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`2
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`If a material element is not found in a reference, that reference cannot
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`anticipate that claim. Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
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`628, 631 (Fed. Cir. 1987) (“A claim is anticipated only if each and every element
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`as set forth in the claim is found, either expressly or inherently described, in a
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`single prior art reference.”). Moreover, if a combination of two (or more)
`
`references fails to teach an important claimed element, it is not possible for that
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`combination to render the claim obvious. That is, assuming one of ordinary skill
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`would have thought to combine prior art references, those references would still be
`
`missing an important element and therefore, even with the combination, one of
`
`ordinary skill would still not possess the invention. See Microsoft Corp. v.
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`Proxyconn, Inc., Case IPR2012-00026 at 19 (P.T.A.B. Dec. 21, 2012) (“To
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`establish obviousness of a claimed invention, all the claim limitations must be
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`taught or suggested by the prior art.”) (citing CFMT, Inc. v. Yieldup Int’l Corp.,
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`349 F.3d 1333, 1342 (Fed. Cir. 2003)).
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`Here, the Petition does not demonstrate a “reasonable likelihood that the
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`petitioner would prevail” on any Ground with respect to any challenged claim.1
`
`
`1
`The Petition asserts that Chang anticipates the challenged claims
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`(Ground 1); Woodmas anticipates them (Ground 2); Satou anticipates and renders
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`3
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`For the two references in the same field as the ‘930 Patent, Chang (Ground
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`1) and Fisher (Ground 4), the key element “low level current” and step [b] of
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`Claim 6 in which this element is found (“delivering a low level current … over
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`said data signaling pair”) is missing. Both teach away from this step.
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`The other two references, Woodmas (Ground 2) and Satou (Ground 3), are
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`in fields unrelated to the ‘930 Patent and, as a result, do not even teach the
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`preamble or the first element of the very first claimed step in Claim 6, [a]
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`“providing a data node adapted for data switching.”
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`In this Response, the Patent Owner: (1) as background, explains the
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`invention claimed in the ‘930 Patent and the difference between the claimed “low
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`level current” approach and the approach taken in the prior art; (2) demonstrates
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`that the Petition should be denied for failing to identify constructions, including a
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`construction for the relative phrase “low level current”; and (3) demonstrates that
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`the Petition should be denied because,
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`(a) Chang (Ground 1) and Fisher (Ground 4) do not disclose the claimed “low
`
`level current” and the step in which this phrase is found; and
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`(b) Woodmas (Ground 2) and Satou (Ground 3) do not even teach the
`
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`them obvious (Ground 3); and Fisher in view of Chang renders them obvious
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`(Ground 4).
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`Patent Owner Preliminary Response
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`preamble or the very first element of the first step of Claim 6.2
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`II. Background of the ‘930 Patent.
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`To understand the importance of the elements of Claim 6 of the ‘930 Patent
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`missing from the asserted art, it is helpful to understand (a) the invention claimed
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`in the ‘930 Patent, and (b) the differences between the “low level current”
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`approach claimed in the ‘930 Patent and the approach taken in the prior art.
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`A.
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`The ‘930 Patent.
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`Generally speaking, the ‘930 Patent teaches and claims a method in which
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`an Ethernet data node (e.g., switch) determines whether a connected access device
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`(e.g., VoIP telephone) is capable of accepting power over the Ethernet data
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`transmission signaling pairs, which is referred to as “remote power.” ‘930 Patent
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`(Ex. 1001), 1:41-43; id. Title (“Apparatus and method for remotely powering
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`access equipment over a 10-/100 switched Ethernet Network.”).
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`The ‘930 Patent addresses the problem of detecting whether a device
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`attached to Ethernet cables can accept remote power before sending remote power
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`that might otherwise damage connected equipment. “It is therefore an object of the
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`2 While Petitioners’ references do not establish the unpatentability of
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`the challenged claims for other reasons, the Response only focuses on these
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`missing elements.
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`5
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`invention to provide methods and apparatus for reliably determining if a remote
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`piece of equipment is capable of accepting remote power.” Id., 1:41-43 (emphasis
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`added). “The invention more particularly relates to apparatus and methods for
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`automatically determining if remote equipment is capable of remote power feed
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`and if it is determined that the remote equipment is able to accept power remotely
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`then to provide power in a reliable non-intrusive way.” Id. at 1:14-19 (emphasis
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`added).
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`The Patent describes and claims a system that can (a) detect whether a
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`device is attached to the Ethernet cable and, in addition, (b) if a device is
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`connected, determine whether the device can accept remote power: “[a] automatic
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`detection of remote equipment being connected to the network; [b] determining
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`whether the remote equipment is capable of accepting remote power in a non-
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`intrusive manner.” Id., 1:53-56 (enumeration added). See also, Petition at 14 (“the
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`essential feature of the claimed invention is the ability to ‘reliably [determine] if a
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`remote piece of access equipment is capable of accepting remote power,’ and, if
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`so, to ‘[deliver] remote power to remote equipment over 10/100 switched Ethernet
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`segments.’ (’930 Patent 1:41–47.))”
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`This is a central aspect of the invention because devices that can be
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`connected to an Ethernet cable include both devices that can accept power and
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`devices that cannot. For example, the connection depicted in the preferred
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`Case No. IPR2013-00092
`U.S. Patent No. 6,218,930
`Patent Owner Preliminary Response
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`embodiment of the ‘930 Patent, an “RJ45 connector” (‘930 Patent, 3:33-34), is a
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`standard connection that can be connected to both devices that can accept remote
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`power through the Ethernet cables (e.g., certain VoIP telephones) and devices that
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`cannot accept remote power (e.g., computers).
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`As set forth in Claim 6 of the ‘930 Patent, the claimed invention makes these
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`determinations by:
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`
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`Id., Claim 6, 4:60-68. If the sensing reveals that the access device can accept
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`remote power, then the data node controls the power by providing operating power
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`over the data signaling pairs.
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`B.
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`Significant differences between the “low level current” approach
`and the approach taken in the prior art.
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`In this section the Patent Owner explains why the detection problem tackled
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`by the inventors of the ‘930 Patent (collectively “Katzenberg”) had two
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`characteristics that, for those of ordinary skill in the art, pointed those of ordinary
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`skill in the art sharply away from the “low level current” solution that Katzenberg
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`ultimately adopted: the problem (1) required obtaining information from a remote
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`device for purposes of determining further interactions, and (2) required a solution
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`that would avoid sending an operating current to power the device (which could
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`damage a device that was not designed to accept remote power) until after
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`detecting whether the device could accept remote power.
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`1.
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`Prior art approach: data, not currents, are used to carry
`information.
`
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`The problem that Katzenberg confronted was not simply the problem of
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`determining whether a device was attached to the remote end of a data signaling
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`pair. It further required determining what kind of device was attached. In the
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`words of the ‘930 Patent, the invention required not simply “automatic detection of
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`remote equipment being connected to the network,” but further required
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`“determining whether the remote equipment is capable of accepting remote
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`power.” ‘930 Patent, 1:53-56.
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`Katzenberg sought to develop a system that would allow a wide variety of
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`remote devices to be safely attached to the data signaling pairs. A user might
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`attach to one of Katzenberg’s power sourcing switches a compatible access device
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`that was designed to accept power over data signaling pairs. Or a user might
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`instead attach legacy devices that were not designed with the Katzenberg power
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`sourcing equipment in mind. Katzenberg needed a solution that could distinguish
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`among these various devices and send power only to a device that was confirmed
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`to be capable of accepting power.
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`At the time of the Katzenberg invention, for problems that involved
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`obtaining information from a remote device for purposes of determining further
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`interactions, the accepted solution was to use a data signal that could carry
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`information (as contrasted with a current that, if increased to a certain level, could
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`power the device). For example, in the Ethernet field, the use of Normal Link
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`Pulse (NLP) signal groups was in use by 10BaseT Ethernet equipment long before
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`the Katzenberg patent application. The use of data signals were also the accepted
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`method for systems outside the Ethernet field (e.g., discovery tone for dial-up
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`modems and handshake tones for FAX machines).
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`Even apart from the well-known examples of using data signals from remote
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`devices to determine further interactions, what one of ordinary skill in the art
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`would have understood about the nature of data signals would have made such
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`signals the natural avenue to use for detection and identification. Data signals are
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`designed to contain information and therefore to convey information. When
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`designing a system that calls for conveying an important piece of information (i.e.,
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`whether a device can be powered), one of ordinary skill would have thought of
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`using a data signal.
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`As a result, in stark contrast to the claimed invention of using a “low level
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`current” for detection, the prior art in the field (and even post-art in the period
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`Patent Owner Preliminary Response
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`following Katzenberg’s invention) used a very different approach. This other art
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`taught using a data signal (something designed to contain information), rather than
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`a “low level current,” for detection. Examples of such data signals are the
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`“discovery tone” or bit pattern disclosed in a contemporaneous reference (N1-
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`2002, 3:3-7) and the “timing signal” of one of Petitioners’ references. Chang (Ex.
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`1003), 10:18; 10:20-21.
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`Rather than detecting based on signals that carry data, the Katzenberg
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`invention used a novel “current” approach to detection. Those of ordinary skill in
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`the art at the time would not have viewed a current that was applied to drive a load
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`as a likely tool to use in developing a method to determine whether an attached
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`remote device was of a type suitable for further interactions. See, e.g., id. The
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`ingrained thinking of a person of ordinary skill in the art at the time was that
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`currents arranged to drive a load and power a device are not used to carry
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`information. This thinking would have impeded a person of ordinary skill from
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`considering a current (as opposed to data) as a useful tool for determining whether
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`an attached remote device was of a type suitable for further interactions.
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`The Katzenberg method of using a current at low levels explored new
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`territory when testing what devices can accept power through via the data signaling
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`pair. The data signal mode of thinking in the prior art taught sharply away from
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`the Katzenberg invention.
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`Patent Owner Preliminary Response
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`2.
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`Prior art approach: current should be avoided until after a
`compatible device is detected.
`
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`Fundamental to the problem addressed by Katzenberg was that a current
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`arranged to power the access device should not be sent over the data signaling
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`pairs until after the detection process has been completed. Accordingly, the
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`problem was viewed as avoiding sending any such powering current until after the
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`detection process determined that a given access device could receive remote
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`power. This understanding would have further inclined one of ordinary skill in the
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`art away from thinking outside the data signal box and in the direction of using a
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`current as part of the solution to the problem.
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`III. The Petition should be denied because it does not provide constructions
`for key terms of the challenged claims, including the key relative phrase
`“low level current.”
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`
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`A. A petition for Inter Partes Review must both (a) identify how the
`challenged claims are to be construed, and (b) apply the construed
`claims to the asserted prior art references.
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`Sections 312(a)(3) and (4) of Title 35 require that the petition identify “with
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`particularity each claim challenged [and] the grounds on which the challenge to
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`each claim is based,” and that the petition provide “such other information as the
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`Director may require by regulation.” 35 U.S.C. § 312(a)(3) and (4).
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`The Director has required by regulation that a petition must: “[p]rovide a
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`statement of the precise relief requested for each claim challenged. The statement
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`must identify the following: … (3) How the challenged claim is to be construed …
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`(4) How the construed claim is unpatentable under the statutory grounds identified
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`in paragraph (b)(2) of this section.” 37 C.F.R. § 42.104(b), (b)(3)-(4) (emphasis
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`added). A petition without such a statement is incomplete and will not be accorded
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`a filing date. 37 C.F.R. § 42.106(a)(1), (b).
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`A petitioner’s identification of the constructions is necessary because claims
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`cannot be compared to the prior art unless the meaning of the claims is known:
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`• “Anticipation and obviousness require the court to compare the properly
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`construed claims to the available prior art.” Genetics Inst., LLC v. Novartis
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`Vaccines & Diagnostics, Inc., 655 F.3d 1291, 1302 (Fed. Cir. 2011)
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`(emphasis added);
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`• “It is elementary in patent law that, in determining whether a patent is valid
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`… the first step is to determine the meaning and scope of each claim in suit.”
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`Nat’l Steel Car, Ltd. v. Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1334 (Fed.
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`Cir. 2004) (quoting Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239
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`F.3d 1343, 1351 (Fed. Cir. 2001)).
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`Accordingly, Rule 104 requires a petitioner to provide notice to the patent owner
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`and the Board of “[h]ow the challenged claim is to be construed” and “[h]ow the
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`construed claim is unpatentable.” 37 C.F.R. § 42.104(b), (b)(3)-(4) (emphasis
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`Patent Owner Preliminary Response
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`added). Only with this information can a patent owner effectively respond to a
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`petition and the Board evaluate if a prior art reference meets the claim limitations.
`
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`B. The Petition does not identify constructions for most key terms in
`the challenged claims, including the relative phrase “low level
`current.”
`
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`Appreciating the requirement to identify proposed construction, the Petition
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`purports to address the construction of the claims (Petition at 11-13) and identifies
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`constructions for two terms – “main power source” and “secondary power
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`source”). Petition at 8-9. There are, however, many other key terms in the
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`challenged claims beyond the two addressed by Petitioners. In fact, Petitioners
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`(and their counsel of record in this proceeding) asserted in the related pending
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`litigation that ten additional terms in the challenged claims “should be construed:”
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`Defendants’ Identification of Claim Terms/Phrases for Construction (Exh. N1-
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`2003) at 1, 2, and 5. Petitioners, however, provide no constructions for ten of these
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`Patent Owner Preliminary Response
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`twelve terms.
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`Instead, Petitioners assert: “Network-1 has already stated in the related
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`litigations what it believes to be the reasonable scope of the claims.” Petition at
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`11. But Petitioners do not (a) identify such reasonable constructions, or (b) apply
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`them in their Petition. For example, in the related litigations, Network-1 stated that
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`a reasonable construction of “data node” is an “Ethernet switch or hub.” Network-
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`1 v. D-Link Joint Claim Construction (Ex. 1011) at 1; Network-1 v. Cisco Joint
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`Claim Construction (Ex. 1012) at 7. But Petitioners do not refer to or apply this
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`construction of “data node” because, as demonstrated below, two of their alleged
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`references (Woodmas (Ground 2) and Satou (Ground 3)) clearly do not disclose an
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`“Ethernet switch or hub.”
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`For certain claims terms, a petitioner might be able to satisfy the mandated
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`requirement to provide claim constructions by clearly stating that the claim terms
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`have their “ordinary and customary meaning that the term would have to a person
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`of ordinary skill in the art.” See Changes to Implement Inter Partes Review
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`Proceedings, Comment 35 and Response; 77 Fed. Reg. 48699-700 (Aug. 14, 2012)
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`(“petitioners are not required to define every claim term, but rather merely provide
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`a statement that the claim terms are presumed to take on their ordinary and
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`customary meaning.”). If a term has an ordinary and customary meaning, and the
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`Petition clearly states that the Petition is applying such ordinary and customary
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`meaning, the Board and patent owner can apply such terms to the prior art without
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`further elaboration. Here, however, Petitioners fail to comply with even this
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`minimal threshold.
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`Moreover, for certain terms, a petitioner cannot simply state that it is
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`applying the ordinary and customary meaning but must go further and expressly
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`set forth a proposed construction. Such circumstances include:
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`(1) Lexicographer: The ordinary meaning of a term does not apply when
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`the patentee has acted as his own lexicographer and set forth an express definition
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`that varies from ordinary meaning. See Microsoft Corp. v. Proxyconn, Inc., Case
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`IPR2012-00026 at 12 (P.T.A.B. Dec. 21, 2012) (“[T]he claim term will not receive
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`its ordinary meaning if the patentee acted as his own lexicographer and clearly set
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`forth a definition of the disputed claim term in either the specification or
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`prosecution history.” (quoting CCS Fitness, Inc. v. Brunswick Corp., 288 F.3d
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`1359, 1366 (Fed. Cir. 2002)). In such a case, a petitioner must identify what it
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`contends is an express definition disclosed in the specification.
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`(2) Disavowal: The ordinary meaning of a term does not apply when the
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`patentee sets forth in the specification an express and unambiguous disavowal of
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`claim scope, asserting that a particular claim phrase does not include something
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`that would otherwise be within its ordinary meaning. “The presumption of
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`ordinary meaning will be ‘rebutted if the inventor has disavowed or disclaimed
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`scope of coverage, by using words or expressions of manifest exclusion or
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`restriction, representing a clear disavowal of claim scope.’” Gemstar-TV Guide
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`Int’l, Inc. v. ITC, 383 F.3d 1352, 1364 (Fed. Cir. 2004) (quoting ACTV, Inc. v.
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`Walt Disney Co., 346 F.3d 1082, 1091 (Fed. Cir. 2003)). In such a circumstance, a
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`petitioner must identify what it contends is an express disavowal of claim scope.
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`(3) Words of degree: Claim terms that are words of degree or relative terms
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`have no ordinary meaning apart from “some standard for measuring that degree” as
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`found in the specification. Exxon Research & Engineering Co. v. United States,
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`265 F.3d 1371, 1381 (Fed. Cir. 2001) (quoting Seattle Box Co. v. Indus. Crating &
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`Packaging, Inc., 731 F.2d 818, 826 (Fed. Cir. 1984)). When a claim uses words of
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`degree, a petitioner must identify what it contends is the standard for measuring
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`that degree.
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`The third circumstance applies here. The word “low” in “low level current”
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`is a word of degree. “Low” compared to what? What is the standard for
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`determining whether a current level is low enough to satisfy this claim element?
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`Unless this question is answered, it is impossible to apply “low level current” to
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`the prior art and, therefore, impossible for the Board to rule on the petition.
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`For example, the word “smooth” is a word of degree. When “smooth”
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`appears in a claim, it does not have an inherent ordinary meaning. Rather, it has
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`meaning only by identifying a standard for measuring that degree based on the
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`inventor’s purpose. Bausch & Lomb, Inc. v. Barnes-Hind/Hydrocurve, Inc., 796
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`F.2d 443, 450 (Fed. Cir. 1986) (relative terms are construed so as to define the
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`degree necessary “to serve the inventor’s purposes”). Accordingly, in a stent
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`patent, “smooth” was construed to mean “smooth enough to be capable of
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`intraluminal delivery,” which was the inventor’s purpose. Cordis Corp. v.
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`Medtronic Ave, Inc., 511 F.3d 1157, 1180 (Fed. Cir. 2008). But in a contact lens
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`patent, “smooth” was construed as “smooth enough … not to inflame or irritate the
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`eyelid of the wearer or be perceived by him at all when in place,” which was the
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`inventor’s purpose. Bausch & Lomb, 796 F.2d at 450.
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`Accordingly, when the claim uses a word of degree, the requirement that the
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`petitioner’s “statement must identify … [h]ow the challenged claim is to be
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`construed,” (Rule 104(b)(3)), cannot be satisfied with the conclusory assertion that
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`the term has its “customary and ordinary meaning.” Instead, the petitioner must set
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`forth a proposed construction that includes the standard for measuring the degree.
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`Claim 6 – the only independent claim at issue – includes the following two
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`steps: (1) “delivering a low level current from said main power source to the
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`access device over said data signaling pair,” and (2) “sensing a voltage level on the
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`data signaling pair in response to the low level current.” Claim 6 (emphasis
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`added). The Petition, however, does not identify any construction for the relative
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`phrase “low level current” found in these steps.
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`Because the phrase “low level current” is a term of degree, it does not have
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`an ordinary and customary meaning apart from a standard for measuring that
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`degree. On its face, “low level current” in a data net