Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 26
`Entered: December 18, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`C-CATION TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00746
`Patent 5,563,883
`
`
`
`Before KRISTEN L. DROESCH, and KALYAN K. DESHPANDE, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`
`DROESCH, Administrative Patent Judge.
`
`
`
`DECISION ON REQUEST FOR REHEARING
`37 C.F.R. § 42.71(d)
`
`
`571-272-7822
`
`
`
`
`
`Paper 26
`Entered: December 18, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`C-CATION TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-00746
`Patent 5,563,883
`
`
`
`Before KRISTEN L. DROESCH, and KALYAN K. DESHPANDE, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`
`DROESCH, Administrative Patent Judge.
`
`
`
`DECISION ON REQUEST FOR REHEARING
`37 C.F.R. § 42.71(d)
`
`
`
`IPR2014-00746
`Patent 5,563,883
`
`I. INTRODUCTION
`
`
`
`Arris Group Inc. (“Petitioner”) filed a Request for Rehearing of our
`
`Decision of November 24, 2014 (Paper 22, “Decision” or “Dec.”). Paper 25
`
`(“Req. Reh’g”). Our Decision instituted trial only as to claim 14. Dec. 28.
`
`Petitioner requests rehearing of our Decision not to institute review of claims
`
`1, 3, and 4 of U.S. Patent No. 5,563,883 (“the ’883 Patent”). Req. Reh’g 1.
`
`For the reasons that follow, Petitioner’s request for rehearing is denied.
`
`II. STANDARD OF REVIEW
`
`In its request for rehearing, the dissatisfied party must identify,
`
`specifically, all matters the party believes the Board misapprehended or
`
`overlooked, and the place where each matter was addressed previously. 37
`
`C.F.R. § 42.71(d). Upon a request for rehearing, the decision on a petition
`
`will be reviewed for an abuse of discretion. 37 C.F.R. § 42.71(c).
`
`III. DISCUSSION
`
`
`
`Petitioner asserts that, in rendering our Decision, we overlooked or
`
`misapprehended the argument and supporting evidence showing that
`
`McNamara’s1 criticisms were directed to centralization of service provider
`
`equipment, not network control equipment. Req. Reh’g 5–6 (citing Dec. 20–
`
`21); see id. at 1–2, 7. Petitioner directs our attention to footnote 1 on page
`
`35 of the Petition which provides the following: McNamara “addresses
`
`many issues related to centralizing service provider equipment at the
`
`headend and does not specifically address co-location of network control.”
`
`Id. at 5 (citing Pet. 35 n.1 (citing Ex. 1007, col. 1, ll. 33–40; col. 3, ll. 1–7;
`
`
`
`1 Ex. 1007.
`
`2
`
`
`
`
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`IPR2014-00746
`Patent 5,563,883
`
`Ex. 1002 ¶ 164)). In further support of its argument, Petitioner reproduces
`
`paragraph 164 of Mr. Lipoff’s Declaration. Id. at 6–7. In particular, in
`
`paragraph 164 Mr. Lippoff asserts that “the purposes of [McNamara’s]
`
`invention [] was to decentralize the system as to the provision of services
`
`over the network (and not necessarily decentralizing the control of the
`
`network itself).” Id. (citing Ex. 1002 ¶ 164 (citing Ex. 1007, col. 1, ll. 33–40,
`
`46–50; col. 3, ll. 1–7)).
`
`
`
`We are not persuaded that we misapprehended or overlooked the
`
`teachings of McNamara, Petitioner’s arguments, and supporting evidence
`
`based on the footnote argument in the Petition asserting generally that
`
`McNamara “does not specifically address co-location of network control.”
`
`See Pet. 35 n.1. Petitioner utilizes this footnote, and Mr. Lipoff’s
`
`parenthetical statement not relied upon, specifically, in the Petition, as a
`
`springboard for presenting new arguments in its Request for Rehearing. See
`
`Req. Reh’g 1–2, 5–7. Petitioner does not identify where the following
`
`specific arguments were previously addressed in the Petition: (1) “the
`
`McNamara Patent does not disparage ‘co-location of network control,’” (id.
`
`at 2); (2)“the stated purpose of decentralization [in McNamara] relates to
`
`service provider equipment, not network control equipment,” (id. at 5); and
`
`(3) McNamara “taught away from centralizing service provider equipment,
`
`but it does not teach away from ‘co-location of network control,’” (id. at 7).
`
`Therefore, Petitioner has not met its burden to show that we misapprehended
`
`or overlooked these arguments and as such, has not shown that we have
`
`abused our discretion.
`
`
`
`In any event, we are not persuaded by Petitioner’s new arguments that
`
`McNamara’s criticisms are limited to centralization of service provider
`
`3
`
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`
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`IPR2014-00746
`Patent 5,563,883
`
`equipment, and do not include network control equipment. In addition to the
`
`McNamara criticisms focused on by Petitioner, McNamara explains that
`
`concentration (i.e., centralization) of network intelligence at the headend
`
`node in prior art systems has several disadvantages. Ex. 1007, col. 1, ll. 17–
`
`24. McNamara further explains the following disadvantages:
`
`(1) “centralized network architecture results in complex and cumbersome
`
`headend equipment,” (id. at col. 1, ll. 33–36, emphasis added); and (2)
`
`“system reliability is compromised when system intelligence is centralized:
`
`A single failure at the headend can disable all of the two way CATV
`
`services,” (id. at col. 1, ll. 43–45, emphasis added). McNamara also
`
`explains the following advantages of the disclosed invention: (1) “the
`
`present invention provides for decentralized system intelligence,” (id. at col.
`
`2, ll. 31–33, emphasis added); (2) “[d]ecentralized network intelligence in
`
`accordance with the present invention results in less complex headend
`
`equipment,” (id. at col. 2, ll. 46–48, emphasis added); and (3) “[s]ystem
`
`reliability is enhanced by use of the present invention,” (id. at col. 2, ll. 62–
`
`63). A person with ordinary skill in the art at the time of the invention of the
`
`claimed subject matter of the ’883 Patent, upon reading McNamara, would
`
`have understood that McNamara’s criticisms of centralized “network
`
`intelligence,” “network architecture,” and “system intelligence” at the
`
`headed are directed to centralized network monitoring and control
`
`equipment (e.g., Network Traffic Monitor (NTM), Network Access
`
`Controller (NAC), and Network Resource Manager (NRM)). This is
`
`consistent with our determination that a person of ordinary skill, upon
`
`reading McNamara, would be discouraged from following the path of using
`
`4
`
`
`
`
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`IPR2014-00746
`Patent 5,563,883
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`centralized intelligence at the headend due to the disadvantages discussed in
`
`McNamara. See Dec. 20–21.
`
`
`
`Petitioner also argues that our Decision overlooked Mr. Lipoff’s
`
`testimony about how a person of ordinary skill in the art would have viewed
`
`McNamara’s teachings. Req. Reh’g 8. Petitioner asserts that our conclusion
`
`that McNamara teaches away from centralized intelligence at the headend is
`
`contradicted by Mr. Lipoff’s testimony. Id. (citing Ex. 1002 ¶¶ 164–165; Pet.
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`35 n.1).
`
`
`
`We are not persuaded that we overlooked Mr. Lipoff’s testimony. We
`
`considered Petitioner’s arguments in the Petition, supported by Mr.
`
`Lippoff’s testimony, and were not persuaded. See Dec. 21; see also id. at 19
`
`(discussing Petitioner’s arguments supported by Mr. Lippoff’s testimony).
`
`Upon consideration and giving appropriate weight to the teachings of
`
`McNamara, Petitioner’s arguments, supported by Mr. Lipoff’s testimony,
`
`and Patent Owner’s arguments, we determined that the evidence was
`
`insufficient to support a reasonable likelihood that Petitioner would prevail
`
`in showing that claims 1, 3, and 4 are unpatentable. See Dec. 21. Therefore,
`
`Petitioner has not met its burden to show that we overlooked Mr. Lipoff’s
`
`testimony and as such, has not shown that we have abused our discretion.
`
`
`
`Lastly, Petitioner argues that we overlooked or misapprehended the
`
`fact that whether a reference teaches away is a question of fact, which
`
`should be resolved by way of trial. Req. Reh’g 8–9. A request for rehearing
`
`is not an opportunity to express disagreement with a decision. We note that
`
`our Decision denying institution of review of claims 1, 3, and 4 is not a final
`
`determination of the patentability of the claims. Rather, our Decision is a
`
`determination, based on the record before us, that the evidence is insufficient
`
`5
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`IPR2014-00746
`Patent 5,563,883
`
`to demonstrate a reasonable likelihood that Petitioner would prevail in
`
`showing that claims 1, 3, and 4 are unpatentable. Dec. 21.
`
`IV. DECISION ON REHEARING
`
`Petitioner’s Request for Rehearing is denied.
`
`
`
`
`
`
`
`6
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`
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`
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`7
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`IPR2014-00746
`Patent 5,563,883
`
`PETITIONER:
`
`Andrew R. Sommer
`Jonathan E. Retsky
`WINSTON & STRAWN LLP
`asommer@winston.com
`jretsky@winston.com
`
`
`
`PATENT OWNER:
`
`Lewis V. Popovski
`Jeffrey S. Ginsberg
`David J. Kaplan
`David J. Cooperberg
`KENYON & KENYON LLP
`lpopovski@kenyon.com
`jginsberg@kenyon.com
`djkaplan@kenyon.com
`dcooperberg@kenyon.com
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