Trials@uspto.gov
`Paper No. 21
` Date Entered: March 26, 2015
`571-272-7822
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01195
`Patent 7,787,431
`____________
`
`
`
`Before JAMESON LEE, JUSTIN BUSCH, and J. JOHN LEE,
`Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`
`
`DECISION ON REQUEST FOR REHEARING
`37 C.F.R. § 42.71
`
`Introduction
`Petitioner filed a petition for inter partes review (Paper 2, “Pet.”) of
`claims 1, 2, 8–12, and 18–22 of U.S. Patent No. 7,787,431 B2 (Ex. 1001,
`“the ’431 patent”) on July 22, 2014. We instituted an inter partes review
`(Paper 11, “Dec.”) of claims 1 and 2 and declined to institute review of
`
`
`Paper No. 21
` Date Entered: March 26, 2015
`571-272-7822
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ERICSSON INC. AND TELEFONAKTIEBOLAGET LM ERICSSON,
`Petitioner,
`
`v.
`
`INTELLECTUAL VENTURES II LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01195
`Patent 7,787,431
`____________
`
`
`
`Before JAMESON LEE, JUSTIN BUSCH, and J. JOHN LEE,
`Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`
`
`DECISION ON REQUEST FOR REHEARING
`37 C.F.R. § 42.71
`
`Introduction
`Petitioner filed a petition for inter partes review (Paper 2, “Pet.”) of
`claims 1, 2, 8–12, and 18–22 of U.S. Patent No. 7,787,431 B2 (Ex. 1001,
`“the ’431 patent”) on July 22, 2014. We instituted an inter partes review
`(Paper 11, “Dec.”) of claims 1 and 2 and declined to institute review of
`
`
`
`Case IPR2014-01195
`Patent 7,787,431
`claims 8–12 and 18–22. On February 18, 2015, Petitioner filed a request for
`rehearing (Paper 13, “Req. Reh’g”) of the Board’s decision, to the extent it
`did not institute review of claims 8–12 and 18–22. We authorized Patent
`Owner to file an opposition to Petitioner’s request for rehearing. Paper 16.
`On March 11, 2015, Patent Owner filed an opposition to Petitioner’s request
`for rehearing. Paper 17 (“Opp. To Req. Reh’g”). Petitioner’s request is
`denied.
`
`Discussion
`A party requesting rehearing has the burden of showing a decision
`should be modified by specifically identifying all matters the party believes
`the Board misapprehended or overlooked. 37 C.F.R. § 42.71(d). When
`rehearing a decision on a petition, a panel will review the decision for an
`abuse of discretion. 37 C.F.R. § 42.71(c).
`Petitioner argues we overlooked pages 9–12 of the Petition, which
`“describes [sic] the general operation of the Yamaura reference.” Req.
`Reh’g 1. Petitioner asserts the references to a 20 MHz transmission band
`and to subcarriers forming narrowband control signals, which is referenced
`in the analysis of claims 8 and 18 in the Petition, was “clearly intended to
`cover points in Yamaura common to all the claims, including the ‘core-
`band’ limitation.” Req. Reh’g 1–2, 4–5. Petitioner asserts in the rehearing
`request that the discussion of Yamaura on pages 9–12 of the Petition
`explains that the control signals “are transmitted on a frequency segment that
`is less than the 20 MHz operating channel bandwidth (the only operating
`channel bandwidth disclosed in the relevant embodiments of Yamaura),
`which satisfies the Board’s construction of ‘core-band.’” Id. at 6. Petitioner
`asserts, for the first time in its rehearing request, that 20 MHz is the only
`operating channel Yamaura discloses in relevant embodiments and also the
`2
`
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`
`
`Case IPR2014-01195
`Patent 7,787,431
`operating bandwidth with which Yamaura’s receivers are designed to
`operate. Id. Petitioner further argues that Figure 16 of Yamaura, which
`depicts the use of subcarriers in a transmission channel, discloses “an
`exemplary system intended to work at only a single operating channel
`bandwidth of 20 MHz,” and, thus, a skilled artisan “would have understood
`the control signal subcarrier [in Yamaura] is an example ‘core-band,’
`because the bandwidth or frequency segment containing the control signals
`is within, and not greater than, the 20 MHz bandwidth used to transmit and
`receive data.” Id. at 9–10.
`We did not overlook the portions of the Petition relating to the
`disclosure of Yamaura. Rather, we considered the entirety of the Petition
`and found Petitioner failed to meet its burden of showing where each
`element of the claims is found in the prior art, as required by 37 C.F.R.
`§ 42.104(b)(4). Dec. 11. Specifically, Petitioner failed to articulate clearly
`where Yamaura, or any reference, teaches a core-band that occupies “a
`frequency segment that is not greater than the smallest operating channel
`bandwidth among all the possible spectral bands that the receiver is designed
`to operate with.” As explained by Petitioner, pages 9–12 of the Petition
`provide a general description of Yamaura. Those pages of the Petition do
`not explain how the cited disclosures of Yamaura relate to the claims at issue
`and do not, on their own, meet Petitioner’s burden of establishing a
`reasonable likelihood of showing that the claimed core-band is taught by
`Yamaura.
`Furthermore, the fact that page 21 of the Petition refers to pages 9–12
`is not sufficient to meet Petitioner’s burden. The relevant portion merely
`states, “[a]s discussed above, Yamaura describes use of narrowband signals
`in an OFDM system for control and synchronization.” Pet. 21. We find
`3
`
`
`
`
`
`Case IPR2014-01195
`Patent 7,787,431
`nothing in the Petition, either in the analysis of the claims or the portion of
`the Petition discussing Yamaura’s general disclosures, that explains
`sufficiently that 20 MHz is the smallest operating channel bandwidth among
`all possible spectral bands with which Yamaura’s receivers are designed to
`operate. Even in the rehearing request, Petitioner asserts only implicitly that
`the 20 MHz bandwidth, referred to in the portion of the Petition discussing
`Yamaura’s general disclosures, is the smallest operating channel bandwidth.
`Moreover, advancing new arguments in a request for rehearing that were not
`set forth sufficiently in the Petition cannot establish that the Board abused its
`discretion in denying the Petition. Thus, the Petition did not show
`sufficiently that 20 MHz was “the smallest operating channel bandwidth
`among all the possible spectral bands with which the receiver is designed to
`operate. The Petition also did not show sufficiently that Yamaura transmits
`control signals in “a frequency segment that is not greater than the smallest
`operating channel bandwidth among all the possible spectral bands that the
`receiver is designed to operate with,” as required by the proper construction
`of core-band, recited in claims 8 and 18. In summary, the evidence
`submitted by Petitioner was not adequately explained in the Petition.
`Petitioner’s request for rehearing is denied.
`
`ORDER
`It is ORDERED that Petitioner’s request for rehearing is denied.
`
`4
`
`
`
`
`
`
`
`Case IPR2014-01195
`Patent 7,787,431
`PETITIONER:
`
`J. Andrew Lowes
`andrew.lowes.ipr@haynesboone.com
`
`David M. O’Dell
`David.odell.ipr@haynesboone.com
`
`John Russell Emerson
`russell.emerson.ipr@haynesboone.com
`
`Clint Wilkins
`clint.wilkins.ipr@haynesboone.com
`
`
`
`PATENT OWNER:
`
`Hebert Hart
`hhart@mcandrews-ip.com
`
`Sharon Hwang
`shwang@mcandrews-ip.com
`
`James R. Hietala
`jhietala@intven.com
`
`Tim R. Seeley
`tim@intven.com
`
`
`
`
`5
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