Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`Paper 9
`Entered: August 21, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`FINISAR CORP.,
`Petitioner,
`
`v.
`
`THOMAS SWAN & CO. LTD.,
`Patent Owner.
`_______________
`
`Case IPR2014-00461
`Patent 7,664,395 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MICHELLE R. OSINSKI, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`
`OSINSKI, Administrative Patent Judge.
`
`
`
`DECISION
`
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`1
`
`
`Tel: 571-272-7822
`
`
`
`
`
`Paper 9
`Entered: August 21, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`_______________
`
`FINISAR CORP.,
`Petitioner,
`
`v.
`
`THOMAS SWAN & CO. LTD.,
`Patent Owner.
`_______________
`
`Case IPR2014-00461
`Patent 7,664,395 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MICHELLE R. OSINSKI, and
`BARBARA A. PARVIS, Administrative Patent Judges.
`
`
`OSINSKI, Administrative Patent Judge.
`
`
`
`DECISION
`
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`1
`
`
`
`IPR2014-00461
`Patent 7,664,395 B2
`
`
`I.
`
`INTRODUCTION
`
`A. Background
`
`Finisar Corp. (“Petitioner”) filed a corrected Petition (Paper 5, “Pet.”)
`
`requesting an inter partes review of claims 1-27 of U.S. Patent No.
`
`7,664,395 B2 (Ex. 1001, “the ’395 patent”). Thomas Swan & Co. Ltd.
`
`(“Patent Owner”) filed a Preliminary Response (Paper 8, “Prelim. Resp.”).
`
`We have jurisdiction under 35 U.S.C. § 314, which provides that an inter
`
`partes review may not be instituted “unless . . . is a reasonable likelihood
`
`that the petitioner would prevail with respect to at least 1 of the claims
`
`challenged in the petition.” 35 U.S.C. § 314(a).
`
`Upon consideration of the Petition and Preliminary Response, we
`
`determine that there is a reasonable likelihood that Petitioner would prevail
`
`with respect to claims 1-27 of the ’395 patent. Accordingly, we institute an
`
`inter partes review of claims 1-27 of the ’395 patent.
`
`B. Related Proceedings
`
`The parties represent that the ’395 patent is the subject of a district
`
`court proceeding in Thomas Swan & Co. Ltd. v. Finisar Corp., Case No.
`
`2:13-cv-178 (E.D. Tex.). Pet. 4; Patent Owner’s Mandatory Notices Under
`
`37 C.F.R. § 42.8, Paper 7, 2.
`
`Petitioner filed additional petitions for inter partes review of three
`
`other patents related to the ’395 patent, namely, U.S. Patent Nos. 7,145,710
`
`B2; 8,089,683 B2; and 8,335,033 B2. Prelim. Resp. 3-4; See IPR2014-
`
`00460 (Papers 2, 5); IPR2014-00462 (Papers 1, 5); IPR2014-00465 (Papers
`
`1, 5).
`
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`2
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`IPR2014-00461
`Patent 7,664,395 B2
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`
`C. The ’395 Patent
`
`The ’395 patent relates to optical routing modules or devices that are
`
`configured to perform wavelength routing and selection. Ex. 1001, 42:5-8,
`
`60:5-62:35. Figure 28 of the ’395 patent is reproduced below.
`
`Figure 28 of the ’395 patent illustrates
`wavelength routing and selection device 600
`
`
`
`Figure 28 depicts a schematic diagram of an optical module or device
`
`that enables beams of different wavelengths from input beam 601 to be
`
`controlled separately before recombination. Id. at 10:53-56, 11:22-23.
`
`Device 600 provides three outputs 602, 603, 604 at output ports 612, 613,
`
`614. Id. at 42:5-8. Input beam 601 contains an ensemble of channels at
`
`different wavelengths entering on same input port 611. See id. at 38:29-31.
`
`
`
`Input beam 601 is incident on dispersion device 620, which is
`
`constructed to disperse light beams of different wavelengths (or different
`
`frequencies) in different directions. Id. at 42:17-27. For example,
`
`dispersion device 620 splits input beam 601 into three single wavelength
`
`emergent beams 605, 606, 607, corresponding to different channels of input
`
`
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`3
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`IPR2014-00461
`Patent 7,664,395 B2
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`beam 601. Id. at 43:45-53, 42:17-27. Dispersion device 620 is placed in the
`
`focal plane of lens 621 that refracts wavelength beams 605, 606, 607 so that
`
`they emerge mutually parallel from lens 621 as wavelength beams 615, 616,
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`617, respectively. Id. at 42:17-27, 43:52-53.
`
`Device 600 further includes spatial light modulator (“SLM”) 622
`
`comprising a two-dimensional array of pixels. Id. at 11:19-24, 42:9-16. The
`
`two-dimensional array of pixels of SLM 622 are arranged into multiple
`
`groups 623, 624, 625 of pixels. Id. at 11:43-55, 43:55-44:7. Each of
`
`wavelength beams 615, 616, 617 is incident upon respective group 623, 624,
`
`625 of pixels. Id. at 43:53-55. Each group 623, 624, 625 is capable of
`
`displaying a respective hologram that provides a different controllable
`
`deviation from the specular direction to control the angle at which each
`
`beam reflects from SLM 622 as reflected beams 635, 636, 637. Id. at
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`11:43-55, 43:55-44:7. The holograms on which each of the respective
`
`wavelength beams 615, 616, 617 lands determine to which output port 612,
`
`613, 614 the corresponding wavelength channel is directed. Id. at 42:28-40.
`
`Each wavelength channel is thus controllably and independently routed to
`
`the desired output port. Id. at 42:32-53. Device 600 can route, add/drop,
`
`filter, and attenuate multiple wavelengths independently. Id.
`
`D. Illustrative Claim
`
`Claim 1 is illustrative of the claimed subject matter and is reproduced
`
`below.
`
`
`
`1. An optical routing module having at least one
`input and at least one output and operable to select
`between the outputs, the or each input receiving a
`respective light beam having an ensemble of
`different channels, the module comprising:
`
`4
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`
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`IPR2014-00461
`Patent 7,664,395 B2
`
`
`a Spatial Light Modulator (SLM) having a
`two dimensional array of pixels,
`a dispersion device disposed to receive light
`from said at least one input and constructed and
`arranged to disperse light beams of different
`frequencies
`in different directions whereby
`different channels of said ensemble are incident
`upon respective different groups of the pixels of
`the SLM, and
`circuitry constructed and arranged to display
`holograms on the SLM to determine the channels
`at respective outputs.
`
`E. Prior Art Relied Upon in the Petition
`
`Michael C. Parker, Dynamic Holograms for Wavelength Division
`
`Multiplexing (Nov. 1996) (Ph.D. dissertation, University of Cambridge) (on
`
`file with Cambridge University Library) (“Parker Thesis,” Ex. 1005).
`
`Stephen T. Warr, Free-Space Switching for Optical Fibre Networks
`
`(July 1996) (Ph.D. dissertation, University of Cambridge) (on file with
`
`Cambridge University Library) (“Warr Thesis,” Ex. 1006).
`
`Kim L. Tan, Dynamic Holography Using Ferroelectric Liquid Crystal
`
`on Silicon Spatial Light Modulators (Feb. 1999) (Ph.D. dissertation,
`
`University of Cambridge) (on file with Cambridge University Library) (“Tan
`
`Thesis,” Ex. 1007).
`
`Crossland et al., US 2001/0050787 A1, (published Dec. 13, 2001)
`
`(“Crossland,” Ex. 1008).
`
`F. The Asserted Grounds of Unpatentability
`
`The information presented in the Petition sets forth Petitioner’s
`
`contentions of unpatentability of claims 1-27 of the ’395 patent based on the
`
`following specific grounds.
`
`
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`5
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`IPR2014-00461
`Patent 7,664,395 B2
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`
`Claims
`Challenged
`1-17, 20, 24-27
`
`18, 19, 21-23
`
`Basis
`
`References
`
`§ 103
`
`§ 103
`
`Parker Thesis, Warr Thesis,
`and Tan Thesis
`Parker Thesis, Warr Thesis,
`Tan Thesis, and Crossland
`
`II. DISCUSSION
`
`A. Claim Construction
`
`We determine the meaning of certain claim terms for purposes of this
`
`Decision. In an inter partes review, claim terms in an unexpired patent are
`
`given their broadest reasonable construction in light of the patent
`
`specification. 37 C.F.R. § 42.100(b); Office Patent Trial Practice Guide, 77
`
`Fed. Reg. 48,756, 48,766 (Aug. 14, 2012). Under the broadest reasonable
`
`construction 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). Any special definition for a claim term must be set
`
`forth in the specification with reasonable clarity, deliberateness, and
`
`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In
`
`determining the proper construction of a claim term, we must be careful not
`
`to read a particular embodiment appearing in the written description into the
`
`claim if the claim language is broader than the embodiment. In re Van
`
`Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Dictionaries may be relied on
`
`so long as the dictionary definition does not contradict a definition found in
`
`or ascertained by reading the patent documents. Vitronics Corp. v.
`
`Conceptronic, Inc., 90 F.3d 1576, 1584 n.6 (Fed. Cir. 1996). We construe
`
`the terms below in accordance with these principles.
`
`
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`6
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`IPR2014-00461
`Patent 7,664,395 B2
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`1. “array”
`
`The term “array” is recited in independent claims 1, 24, and 27 and
`
`dependent claims 4, 5, 11, and 12. Petitioner asserts that “array” means “an
`
`assembly of two or more individual elements, appropriately spaced and
`
`energized to achieve desired directional properties.” Pet. 8. Patent Owner
`
`disagrees and asserts that “array” means “an arrangement of two or more
`
`elements.” Prelim. Resp. 17.
`
`Patent Owner contends that Petitioner incorrectly relies on a definition
`
`relating to antenna. Prelim. Resp. 16 (citing Pet. 8). The Petitioner cites to a
`
`dictionary definition (Pet. 8) which refers to “radiating elements” and “beam
`
`antenna.” Peter M. B. Walker, Chambers Science and Technology
`
`Dictionary 51 (1988) (Ex. 1016, 51). The ’395 patent specification
`
`describes an optical device having “a two-dimensional array of controllable
`
`phase-modulating elements.” Ex. 1001, 2:50-51.
`
`We, therefore, decline to adopt Petitioner’s construction and agree
`
`with Patent Owner that the broadest reasonable interpretation of “array,” in
`
`the context of the ’395 patent, is an arrangement of two or more elements.
`
`2. “phase-modulating elements”
`
`The term “phase-modulating elements” is recited in dependent claims
`
`16 and 20. Petitioner asserts that the phrase “controllable phase-modulating
`
`elements” means “components, such as pixels, which can change the phase
`
`of incident light under certain conditions created by circuitry, such as
`
`application of voltage.” Pet. 8. Petitioner asserts that this construction is
`
`consistent with the specification. Id. at 8-9 (citing Ex. 1001, 11:19-24,
`
`38:54-56, 13:23-49). Patent Owner asserts that Petitioner’s construction
`
`unnecessarily adds “additional and ambiguous language” and that
`
`
`
`7
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`IPR2014-00461
`Patent 7,664,395 B2
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`“controllable phase-modulating elements” means “controllable elements that
`
`controllably modify the phase of light.” Prelim. Resp. 17.
`
`The claim term at issue in the ’395 patent is “phase-modulating
`
`elements,” not “controllable phase-modulating elements” as discussed by
`
`the parties. The ’395 patent specification states “[a]dvantageously, each
`
`phase modulating element is responsive to a respective applied voltage to
`
`provide a corresponding phase shift to emergent light.” Ex. 1001, 3:21-24.
`
`In the context of the ’395 patent specification, each element shifts or
`
`modifies the light. We decline to read in the exemplary embodiment of
`
`phase-shifting pixels in the Petitioner’s assertion and the exemplary
`
`embodiment of controllably modifying light in the Patent Owner’s assertion.
`
`On this record, express construction is not necessary.
`
`3. “pixel”
`
`The term “pixels” is recited in independent claims 1, 24, and 27 and
`
`dependent claims 4, 5, 11, 12-19, 21, and 23. Petitioner asserts that “pixel”
`
`means “a component of a polarisation-independent reflective SLM which on
`
`one end consists of an electrode connected to circuitry and on the other a
`
`common electrode covered by glass, with several layers between the
`
`electrodes including liquid crystal material, alignment layers, and a quarter-
`
`wave plate.” Pet. 9. Patent Owner asserts that “pixel” means “the smallest
`
`element of the SLM’s display surface that can be assigned independent
`
`characteristics.” Prelim. Resp. 18.
`
`Petitioner cites to a specific embodiment of pixels described in the
`
`specification of the ’395 patent. Pet. 12 (citing Ex. 1001, 11:51-12:1). We
`
`decline to read a preferred embodiment into the claim. The ’395 patent
`
`specification does not provide an express definition of “pixel.”
`
`
`
`8
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`
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`IPR2014-00461
`Patent 7,664,395 B2
`
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`To show how one of ordinary skill in the art would use the term,
`
`Patent Owner cites to a dictionary, which states that “pixel” means (1) “the
`
`smallest element of a digital image that can be assigned a gray level” or (2)
`
`“[t]he smallest element of a display surface that can be assigned independent
`
`characteristics.” Ex. 2003, 8-9 (The Authoritative Dictionary of IEEE
`
`Standards Terms, 830-31 (7th ed., 2000)).
`
`The specification of the ’395 patent describes that “each pixel can
`
`phase modulate light by a phase shift.” Ex. 1001, 6:12-13. The ’395 patent
`
`specification further states “the controller has a control input receiving data
`
`indicative of a desired phase modulation characteristic across an array of
`
`said pixels for achieving a desired control of light incident on said array.”
`
`Id. at 6:16-19. The ’395 patent specification is consistent with the second
`
`dictionary definition in describing a pixel as the smallest assignable element.
`
`The ’395 patent specification describes that the control is of “a desired phase
`
`modulation characteristic” for light incident on the display. Id. at 6:17-18.
`
`In the context of the ’395 patent specification, a pixel may be assigned one
`
`characteristic.
`
`Patent Owner’s assertion that a pixel is an element of the SLM’s
`
`display surface is consistent with an embodiment of the specification (Ex.
`
`1001, 6:5-7). We determine, however, that the plain meaning of “pixel” is
`
`not limited to a SLM display.
`
`Upon review, we determine that the broadest reasonable interpretation
`
`of “pixel” is the smallest element of a display that can be assigned an
`
`independent characteristic.
`
`
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`9
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`IPR2014-00461
`Patent 7,664,395 B2
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`4. “hologram”
`
`The term “hologram” or “holograms” is recited in independent claim
`
`1 and dependent claim 20. Petitioner asserts that “hologram” means “a set
`
`of modulation values for achieving the desired change in incident light.”
`
`Pet. 9-10 (citing Ex. 1001, 13:42-49, 14:13-16, 43-46). Patent Owner
`
`disagrees and asserts that “hologram” means “a modulation pattern.”
`
`Prelim. Resp. 18 (citing Ex. 1001, 42:61-64, 12:54-56, 7:6-13).
`
`Patent Owner argues that Petitioner’s construction fails because it
`
`does not capture the “pattern” or spatial arrangement aspect of a hologram.
`
`Prelim. Resp. 19. The specification of the ’395 patent states, “[t]he
`
`hologram pattern associated with any general non-linear phase modulation
`
`exp jφ(u)=exp j(φ0(u)+φ1(u)+φ3(u) . . . ) where j is the complex operator, can
`
`be considered as a product.” Ex. 1001, 14:13-16. The ’395 patent also
`
`states, “[i]n one embodiment, in the training stage, a set of initial starting
`
`values is read in for application to the SLM 30 as hologram data, then light
`
`is applied at a fibre and the result of varying the hologram is noted.” Id. at
`
`19:42-45. The specification of the ’395 patent, therefore, indicates that a
`
`hologram pattern can be represented as a set of values.
`
`The ’395 patent specification describes a hologram as something that
`
`is displayed by stating, for example, “providing control data indicative of
`
`two holograms to be displayed” (Ex. 1001, 4:8-9), “with circuitry
`
`constructed and arranged to display holograms on the pixels” (id. at 6:6-8),
`
`“[t]he groups may display holograms” (id. at 11:26-27). The ’395 patent
`
`specification, however, also indicates that a hologram is data stating,
`
`“[s]ince the information represents phase change data, it may be regarded as
`
`a hologram.” Id. at 7:11-13. The ’395 patent specification indicates that in
`
`
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`10
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`IPR2014-00461
`Patent 7,664,395 B2
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`accordance with the invention, data are communicated by routing light by
`
`stating,“the present field—for example in communication and like devices”
`
`(id. at 2:35-36), “routing light beams using holograms” (id. at 11:43), and
`
`“an integrated SLM 10 has processing circuitry 11 having a first control
`
`input 12 for routing first and second beams 1,2 from input fibres 3,4 to
`
`output fibres 5,6 in routing device 15” (id. at 12:50-53). In light of the ’395
`
`patent specification, therefore, a hologram is both data and, at least in certain
`
`circumstances, displayed.
`
`For the reasons given above, we determine the broadest reasonable
`
`interpretation of “hologram,” in the context of the specification of the ’395
`
`patent, is modulation data for changing incident light.
`
`5. “dispersion device”
`
`The term “dispersion device” is recited in independent claims 1, 24,
`
`and 27 and dependent claims 2, 3, 6, and 7. Petitioner asserts that
`
`“dispersion device” means “a device that separates a light beam having
`
`different wavelengths into its constituent spectral components based on
`
`wavelength.” Pet. 10. Patent Owner disagrees and asserts that “dispersion
`
`device” means “a device that spreads out a light beam into spectral
`
`components.” Prelim. Resp. 19.
`
`Petitioner cites to the specification stating that grating 300 splits beam
`
`301 “into separate beams 301a, 301b, 301c.” Pet. 10 (citing Ex. 1001,
`
`38:31-34). Patent Owner contends that Petitioner’s assertion “reads out”
`
`dispersion because dispersion is only one of several mechanisms for
`
`separating light into components. Prelim. Resp. 19. Patent Owner relies on
`
`a dictionary and text book in support of its construction. Id. (citing Ex.
`
`2005, 6, Webster’s New Work Dictionary of American English, 3rd ed.
`
`
`
`11
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`IPR2014-00461
`Patent 7,664,395 B2
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`(1986); Ex. 2006, 3, Christopher Palmer – Diffraction Grating Handbook,
`
`4th ed. (2000)).
`
`The specification states, “[a]nalysis of the beams at the diffraction
`
`grating in this architecture shows that the spot size required for a given
`
`wavelength channel separation and beam clipping factor C at the hologram
`
`depends on the grating dispersion.” Ex. 1001, 40:25-28 (emphasis added).1
`
`The specification of the ’395 patent does not limit “dispersion device” to
`
`devices that spread out a light beam.
`
`For the reasons given above, we determine the broadest reasonable
`
`interpretation of “dispersion device,” in the context of the specification of
`
`the ’395 patent, is a device that separates a light beam into spectral
`
`components.
`
`6. “SLM” or “spatial light modulator”
`
`The term “SLM” is recited in independent claims 1, 24, and 27 and
`
`dependent claims 4, 5, and 21. The term “Spatial Light Modulator” is
`
`recited in independent claims 1, 24, and 27 dependent claim 5. Petitioner
`
`asserts that “SLM” refers to “spatial light modulator” and means “a
`
`polarisation-independent device that acts on light beam or beams incident on
`
`the device to provide emerging light beams, which are controlled
`
`independently of one another.” Pet. 10-11. Patent Owner agrees that
`
`“SLM” refers to “spatial light modulator,” but disagrees with Petitioner’s
`
`
`1 Patent Owner submitted a handbook that is consistent with the
`specification of the ’033 patent stating, “[d]ispersion is a measure of the
`separation (either angular or spatial) between diffracted light of different
`wavelengths.” Ex. 2006, 3 (Christopher Palmer, Diffraction Grating
`Handbook, 19 (2000)) () (emphasis added).
`
`
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`12
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`IPR2014-00461
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`construction. Prelim. Resp. 19-21. Patent Owner asserts that “SLM” or
`
`“spatial light modulator” means “a device that modifies a property of light as
`
`a function of time and position across it.” Id. at 20.
`
`The specification of the ’395 patent refers to SLMs as spatial light
`
`modulators. Ex. 1001, 11:42-43. In the context of the specification of the
`
`’395 patent, therefore, “SLM” refers to “spatial light modulator.”
`
`Petitioner asserts that the ’395 patent expressly disclaims any devices
`
`that are not polarization insensitive/independent by stating, “[t]he invention
`
`may be applied to other devices, provided they are capable of multiphase
`
`operation and are at least somewhat polarisation independent at the
`
`wavelengths of concern.” Pet. 11 (citing Ex. 1001, 12:38-41). Patent Owner
`
`asserts that the specification of the ’395 patent does not limit SLM to a
`
`particular structure. Prelim. Resp. 20 (citing Ex. 1001, 12:36-38) (“It is not
`
`intended that any particular SLM structure is essential to the invention, the
`
`above being only exemplary and illustrative.”) The citation on which
`
`Petitioner relies provides an example of an SLM that is “somewhat”
`
`polarization insensitive/independent (Ex. 1001, 12:40). The specification of
`
`the ’395 patent does not limit the claimed invention to this example. We,
`
`therefore, agree with Patent Owner that SLM is not limited to structures that
`
`are polarization insensitive or independent.
`
`To show how one of ordinary skill in the art would use the term
`
`“SLM,” Patent Owner cites to a few pages in a multi-volume book (Prelim.
`
`Resp. 20), which describe uses of liquid crystals, such as liquid crystal
`
`devices that are useful in parallel optical processing applications, and
`
`presents exemplary prototypes, such as liquid crystal television devices, in
`
`support of its construction. Ex. 2007, 4 (3 Liquid Crystals Applications and
`
`
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`13
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`IPR2014-00461
`Patent 7,664,395 B2
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`Uses 211 (Birendra Bahadur ed., 1992) (“Liquid Crystals Applications and
`
`Uses”)). Liquid Crystals Applications and Uses states “Spatial Light
`
`Modulators (SLMs), dynamically changeable devices which modify the
`
`amplitude, phase, and/or polarization of an optical wave front as a function
`
`of time and position across it.” Id.
`
`We turn to the specification of the ’395 patent, which describes that
`
`integrated SLM 200 is “for modulating light 201 of a selected wavelength.”
`
`Ex. 1001, 11:51-52. The ’395 patent specification does not provide an
`
`express definition of “modulating.” Modulation is defined in a technical
`
`dictionary as “the process of varying some characteristic of one signal (the
`
`carrier) in accordance with another signal (the message signal).”
`
`Hargrave’s Communications Dictionary (2001), available at
`
`http://search.credoreference.com/content/entry/hargravecomms/modulation/
`
`0 (June 19, 2014) (“Hargrave’s Dictionary”) (Ex. 3001). The ’395 patent
`
`specification describes an example of modulation that is consistent with the
`
`Hargrave’s Dictionary definition by stating, “[a]dvantageously, each phase
`
`modulating element is responsive to a respective applied voltage to provide a
`
`corresponding phase shift to emergent light.” Ex. 1001, 3:21-23. In the
`
`context of the ’395 patent specification, each modulating element shifts or
`
`modifies the light. Although the example in the ’395 patent specification
`
`describes phase modulation, no particular SLM structure is essential to the
`
`invention (id. at 12:36-38).
`
`Regarding Patent Owner’s contention that spatial light modulator
`
`modifies light “as a function of time and position across it,” Patent Owner
`
`does not explain sufficiently why Patent Owner’s construction is part, but
`
`not all of the definition provided by Patent Owner’s cited extrinsic reference.
`
`
`
`14
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`IPR2014-00461
`Patent 7,664,395 B2
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`Patent Owner also does not explain sufficiently how the definition is
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`consistent with the ’395 patent specification.
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`We agree with Petitioner and Patent Owner that “SLM” refers to
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`“spatial light modulator.” We agree with Patent Owner that Petitioner’s
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`construction is too narrow. We, however, decline to adopt in its entirety
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`Patent Owner’s construction, and construe “SLM” and “spatial light
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`modulator” in the context of the ’395 patent, as a device that modifies a
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`spatial property of light.
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`7. “wave plate”
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`The term “wave plate” is recited in dependent claims 4, 6, and 8.
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`Petitioner asserts that “wave plate” means “a thin sheet of doubly refracting
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`crystal material of such thickness as to introduce a phase difference of one
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`quarter-cycle between the ordinary and the extraordinary components of
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`light passing through, which results in converting pol[a]risation of the light.”
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`Pet. 11-12 (citing Ex. 1017, McGraw-Hill Dictionary of Scientific and
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`Technical Terms, 4th ed., 15362(1989)). Petitioner asserts that its
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`construction is consistent with the use of the term in the specification. Id. at
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`12 (citing Ex. 1001, 12:44-47, 4:1-3 (“The SLM may be integrated on a
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`substrate and have an integral quarter-wave plate whereby it is substantially
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`polarisation insensitive.”)).
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`Patent Owner disagrees, stating that Petitioner’s construction
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`“improperly limits the term ‘wave plate’ in several ways relative to the
`
`
`2 Although Petitioner references page 1536 of Exhibit 1017, Exhibit 1017 is
`a copy of page 2051, including a different definition for “wave plate” than
`that proposed by Petitioner.
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`15
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`Patent 7,664,395 B2
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`definition in Petitioner’s Ex. 1017.” Prelim. Resp. 21-22 (citing Thorner v.
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`Sony Computer Entertainment Am. LLC, 669 F.3d 1365, 1367 (Fed. Cir.
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`2012)). Patent Owner asserts that “wave plate” means “a plate of material
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`which is linearly birefringent.” Prelim. Resp. 21-22 (quoting Ex. 1017, 3).
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`We decline to read in the exemplary embodiment of a quarter-wave
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`plate. The claims recite a “wave plate,” not a quarter-wave plate. The
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`specification also refers to an SLM “of a type having an integrated wave
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`plate and a reflective element, such that successive passes of a beam through
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`the liquid crystal subject each orthogonally polarised component to a
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`substantially similar electrically-set phase change.” Ex. 1001, 6:57-62. In
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`light of the specification, the definition for “wave plate” set forth in Exhibit
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`1017, and the definition for “birefringence” as “the separation of a ray of
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`light, on passing through a crystal, into two unequally refracted, plane-
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`polarized rays (of orthogonal polarizations)” (Academic Press Dictionary of
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`Science and Technology (1992), available at
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`http://search.credoreference.com/content/entry/apdst/birefringence/0 (last
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`visited on July 9, 2014)), we construe “wave plate” as “a plate of material
`
`which has the ability to separate a linearly polarized ray of light, on passing
`
`through a crystal, into two unequally refracted, plane polarized rays (of
`
`orthogonal polarizations).”
`
`8. “arbitrary shape”
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`The term “arbitrary shape” is recited in dependent claim 14.
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`Petitioner asserts that “arbitrary shape” means “any discretionary shape.”
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`Pet. 12 (citing Ex. 1018, Webster’s New Universal Unabridged Dictionary,
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`95). Petitioner asserts that its proffered construction is consistent with the
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`use of the term in the specification. Id. (citing Ex. 1001, 7:47-50, 47:6-8,
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`
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`16
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`Patent 7,664,395 B2
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`17:29-30). Patent Owner disagrees, stating the inclusion of “the term
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`‘discretionary’ adds uncertainty and is imprecise.” Prelim. Resp. 22. Patent
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`Owner asserts that “arbitrary shape” means “any shape.” Id.
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`The term “arbitrary” in this context is defined as “based on or
`
`determined by individual preference or convenience rather than by necessity
`
`or the intrinsic nature of something.” Merriam-Webster Dictionary (2014),
`
`available at http://www.merriam-webster.com/dictionary/arbitrary (last
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`visited June 27, 2014). This dictionary definition is not inconsistent with the
`
`specification. Because the definition makes clear that shape is not dictated
`
`by necessity or the intrinsic nature of the device, the shape is free to be any
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`shape. Accordingly, for purposes of this Decision, we agree with Patent
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`Owner that the broadest reasonable interpretation of “arbitrary shape” in the
`
`context of the ’395 patent, is any shape.
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`9. “channel”
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`The term “channel” or “channels” is recited in independent claim 1
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`and dependent claims 21 and 23. Although Petitioner does not proffer a
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`construction of the claim term “channel” (see Pet. 1-60), Patent Owner
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`asserts that “channel” means “a band of frequencies.” Prelim. Resp. 16
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`(citing Ex. 2003, The Authoritative Dictionary of IEEE Standards Terms, 4-
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`5). Patent Owner asserts that such a construction is consistent with the use
`
`of the term in the specification, in which the word “channel” is used to “refer
`
`to an optical signal carried at a band of frequencies, or equivalently, a band
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`of wavelengths.” Id. (citing Ex. 1001, 20:60-61, 24:38-44, 30:42-46,
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`37:31-34, 42:34-36, 42:47-49, 45:15-18, 49:30-31). See, e.g., Ex. 1001,
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`42:34-36, 39-40, in particular, stating that “[i]t would be possible to route
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`light of a selected frequency right out of the system if needed so as to
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`17
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`extinguish or ‘block’ that wavelength channel. . . . [H]olograms may be
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`provided to multicast particular frequencies into two or more output ports.”
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`For purposes of this Decision, we adopt Patent Owner’s construction of the
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`term “channel” as “a band of frequencies” in light of the references to the
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`term in the specification.
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`10. “whereby different channels of said ensemble are incident
`upon respective different groups of the pixels of the SLM”
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`The whereby clause recites the result of the dispersion device
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`dispersing light beams of different frequencies in different directions, as
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`opposed to reciting structure. We determine, consequently, and for purposes
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`of this Decision, that the clause requires that the recited dispersion device be
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`capable of producing the recited result of different channels being incident
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`upon different groups of pixels of the SLM.
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`B. Obviousness of Claims 1-17, 20, and 24-27 over Parker Thesis,
`Warr Thesis, and Tan Thesis
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`1. Overview of Parker Thesis
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`Parker Thesis describes “the combination of a fixed high-spatial-
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`frequency phase-grating with a FLC SLM [which] has amplified the
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`wavelength dispersion sufficiently to allow the advantages of holographic
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`switching to be used for wavelength switching in WDM [wavelength
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`division multiplexing].” Ex. 1005, 9. Gratings generally have a
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`wavelength-dispersive nature in which “[p]olychromatic light is angularly
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`dispersed by a grating, since the different wavelengths are diffracted through
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`different angles.” Id. at 47. Use of the SLM allows “a programmable
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`hologram (i.e., grating), whose spatial period d can be altered at will.” Id. at
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`48. “Changing the spatial period of the hologram displayed on the SLM
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`causes a different angular dispersion of wavelengths, which is then
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`18
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`converted into a different spatial separation. Using the same spatial filter,
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`different wavelengths can thus be selected, and ultimately tuned to.” Id.
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`Parker Thesis describes that “the SLM pixel pitch is too large for useful
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`tuning to be obtained” on its own, but “[t]he SLM operates now only to
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`slightly change the angle of diffraction of the light, so allowing fine tuning.”
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`Id. Parker Thesis further describes “that for each hologram, a different
`
`wavelength should couple most efficiently into the output fibre, causing the
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`EDFL [erbium-doped fibre laser] to lase at a different wavelength according
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`to the hologram displayed.” Id. at 86-88.
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`Parker Thesis further illustrates an exploded space-wavelength switch
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`having a transmissive blazed grating and a pixelated FLC SLM. Id. at 96
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`(Fig. 6.1). Parker Thesis describes that “[t]he currently unused extra
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`dimension of the SLM can also be used to add functionality to the switch,
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`such as to make it into a space-wavelength switch.” Id. at 97. Parker Thesis
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`describes that “[t]he switch acts as a 3 x 3 fibre cross-connect, but can also
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`perfectly shuffle wavelengths between the various fibres.” Id.
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`2. Overview of Warr Thesis
`
`Warr Thesis describes “the use of programmable computer-generated
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`holograms (CGHs) displayed on a ferroelectric liquid crystal (FLC) . . .
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`SLM.” Ex. 1006, viii. Warr Thesis describes that “[t]he SLM provides fast
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`2-dimensional binary modulation of coherent light and acts as a dynamically
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`reconfigurable diffraction pattern.” Id. “An array of dynamic holograms
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`can be used to achieve an arbitrary rout[]ing pattern between N inputs and M
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`outputs.” Id. at 4. Warr Thesis describes that “[e]ach spectral component of
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`the source is incident upon the grating at a slightly different angular
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`direction, according to which CGH frame is displayed from the set of pre-
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`19
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`IPR2014-0046
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