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