Paper 20
`Entered: November 6, 2015
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HUGHES NETWORK SYSTEMS, LLC and
`HUGHES COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`CALIFORNIA INSTITUTE OF TECHNOLOGY,
`Patent Owner.
`_______________
`
`Case IPR2015-00060
`Patent 7,421,032 B2
`____________
`
`
`
`Before KALYAN K. DESHPANDE, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`PERRY, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`Entered: November 6, 2015
`
`Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HUGHES NETWORK SYSTEMS, LLC and
`HUGHES COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`CALIFORNIA INSTITUTE OF TECHNOLOGY,
`Patent Owner.
`_______________
`
`Case IPR2015-00060
`Patent 7,421,032 B2
`____________
`
`
`
`Before KALYAN K. DESHPANDE, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`PERRY, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`IPR2015-00060
`Patent 7,421,032 B2
`
`
`INTRODUCTION
`Petitioner, Hughes Network Systems, LLC and Hughes Communications,
`Inc. (collectively, “Hughes”), filed a Request for Rehearing of the Board’s
`Decision (Paper 18, “Dec.”) , dated April 27, 2015, which denied institution of
`inter partes review of claims 1, 8, 10, 18, 19, and 22 of U.S. Patent No. 7,421,032
`B2 (Ex. 1005, “the ’032 patent”). Paper 19 (“Req. Reh’g”). Hughes contends that
`we (1) overlooked evidence establishing Frey as a publication reference (Req.
`Reh’g 2–10); and (2) misapprehended Hughes’s reliance on Divsalar (not Luby)
`as disclosing a summing required by the equation in claim 1 (Id. at 10–12). For
`the reasons stated below, Hughes’s Request for Rehearing is denied.
`
`STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition, a
`panel will review the decision for an abuse of discretion.” An abuse of discretion
`occurs when a “decision was based on an erroneous conclusion of law or clearly
`erroneous factual findings, or . . . a clear error of judgment.” PPG Indus. Inc. v.
`Celanese Polymer Specialties Co. Inc., 840 F.2d 1565, 1567 (Fed. Cir. 1988)
`(citations omitted). The request must identify specifically all matters that the
`dissatisfied party believes that the Board misapprehended or overlooked.
`37 C.F.R. § 42.71(d).
`
`DISCUSSION
`A. Frey as a Publication Reference
`We determined that Hughes did not establish that Frey (Ex. 1012) was
`available as a publication reference. Dec. 14–15. Hughes argues that we
`overlooked important unrebutted evidence that corroborates the publication date of
`Frey. Req. Reh’g 2–10.
`
` 2
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`IPR2015-00060
`Patent 7,421,032 B2
`
`At Req. Reh’g 4, Hughes quotes from Ex. 1060 ¶ 44:
`
`44. I published the article “Irregular Turbocodes” on my
`website no later than October 8, 1999. This is based on my
`recollection and information indicating the website paper was last
`modified on the MacKay Canadian and Cambridge Websites on this
`same date as shown in Exhibit 1040. The file name for the irregular
`turbocodes paper was “itc-al.ps.Z” which stands for Irregular Turbo
`Codes Allerton; “ps” stands for the document format “postscript” and
`“Z” stands for a UNIX compression file format. A copy of the
`“Irregular Turbocodes” paper as published on October 9, 1999 is filed
`herewith as Exhibit 1012.
`
`Ex. 1060, ¶ 44.
`The substance of the quoted paragraph was not given weight in our decision
`because it was not discussed at all in the Petition itself – not even in a single
`sentence. At page 2, the Petition states:
`
`Hughes relies upon the following patents and publications:
`
`Exhibit 1012 - “Irregular Turbocodes” by B. J. Frey and D. J.
`C. MacKay (“Frey”), published at least by October 8, 1999 and
`available as prior art under 35 U.S.C. § 102(a); see also Ex. 1060 at
`¶¶ 40–49.
`
`The Petition itself states only that Frey was published at least by October 8,
`1999. It makes no argument as to why that is so. The Petition includes only an
`unexplained cite to Ex. 1060, now quoted extensively and argued in the rehearing
`request. The Petition itself does not discuss that Frey was published on Dr.
`MacKay’s website and explain the facts and circumstances related to that
`publication. Instead, Hughes left it to us to read Dr. MacKay’s Declaration,
`without guidance or direction, and fashion a presentation that it did not make itself.
`
` 3
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`IPR2015-00060
`Patent 7,421,032 B2
`
`Accordingly, Hughes has not demonstrated that we misapprehended or
`overlooked Hughes’s arguments regarding the availability of Frey as a publication
`reference because Hughes did not present this information in the Petition.
`
`B. Reliance on Divsalar vs. Luby
`Hughes implies that the sole basis upon which our Decision declined to
`grant review under Grounds 6 and 7–9 is because Luby “does not describe a parity
`bit being computed by summing information bits and another parity bit.” Req.
`Reh’g 10 (citing Dec. 21). Hughes argues that in fact the Petition relied on
`Divsalar, not Luby, as disclosing the summing element. For example, with respect
`to Ground 6, asserting invalidity over Divsalar and Luby, the Petition states:
`
`Divsalar describes an encoder with two stages of encoding with a
`second encoding that is rate one. As discussed above in Ground 1,
`this limitation is met by Divsalar for regular encoding. The bits
`accumulated by Divsalar’s accumulator are not “randomly chosen
`irregular repeats of the message bits.”
`
`Petition at 45–46; Ex. 1010 ¶¶ 193–94.
`With respect to Ground 6, Hughes’s claim chart for claim 1 elements 1[b]
`(Pet. 43–44) relies upon both Divsalar and Luby and it proposed claim
`constructions of “irregular” and the claim 1 equation. We adopted the Hughes
`construction of the claim 1 equation with modification. Dec. 11.
`In its Preliminary Response (Paper 13, “Prelim. Resp.”), Patent Owner
`California Institute of Technology (“CIT”) argued Luby in the context of claim
`element 1[b]. Prelim. Resp. 54. Our statement that Luby “does not describe a
`parity bit being computed by summing information bits and another parity bit,”
`quoted by Hughes above, represents part of our reasoning that the Petition does not
`meet the required threshold as to Ground 6.
`
` 4
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`IPR2015-00060
`Patent 7,421,032 B2
`
`Hughes may be correct that CIT incorrectly alleged that Luby alone would
`meet all the limitations of this element [1[b]].” However, we did not rely on CIT’s
`characterization of Hughes’ statements in its Petition in making our decision.
`Rather, the Decision denied institution as to Grounds 6 and 7–9 because the
`Petition does not establish, to the threshold standard (reasonable likelihood), that
`Divsalar and Luby together render obvious the challenged claims. Claim 1
`requires receiving message bits having a first sequence; generating a sequence of
`parity bits in accordance with a formula; and making the parity bits available for
`transmission in a data stream. We construed the formula to require that a parity bit
`xj is determined by two components. The first component is the parity bit previous
`to the parity bit being determined (parity bit xj-1). The second component is the
`sum of “a” (“a” is a number) message bits (information bits) that have been
`randomly repeated. Dec. 11.
`Divsalar describes a data block being repeated and then scrambled. It does
`not describe irregular repeating. It does not describe obtaining a parity bit by
`summing two components as set forth in our claim construction. To the extent
`Divsalar describes summing, it is only summing regularly repeated message bits
`that have been scrambled. The Petition acknowledges that the bits accumulated by
`Divsalar’s accumulator are not “randomly chosen irregular repeats of the message
`bits.” Pet. 45.
`Luby Fig. 17, shown in Hughes’s claim chart for element 1[b] of claim 1,
`shows message bits at nodes 110 being summed with one another at nodes 110’
`based on various “edges.” The Petition describes Luby Fig. 17 as showing that
`“each parity bit on the right is computed by summing together (modulo 2) all of the
`information bits connected to that parity bit[s] by an edge in the graph.” Pet. 45. It
`does not show any parity bit being determined by two components as required by
`
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`IPR2015-00060
`Patent 7,421,032 B2
`
`our construction of the claim 1 formula. Thus, neither Divsalar nor Luby describe
`our construction of the formula of claim 1. Without regard to what CIT argued, the
`Petition itself does not demonstrate how Luby Fig. 17 and Divsalar together would
`meet our construction of the limitation of claim 1 including the formula.
`Accordingly, we did not misapprehend or overlook these arguments by Hughes.
`The same is true for claims depending from claim 1.
`Claims 18 and 22 differ from claim 1 in that the key limitation is expressed
`by a Tanner graph. Hughes relies upon Luby Fig. 17 in meeting the Tanner graph
`limitation. Pet. 51. We construed the Tanner graph as requiring each parity bit to
`be a function of its previous parity and information (message) bits. Dec. 13. As
`explained above, neither Divsalar nor Luby disclose our construction of the Tanner
`graph.
`
`ORDER
`
`Accordingly, it is hereby
`ORDERED that Hughes’s request for rehearing is denied.
`
`
`
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` 6
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`IPR2015-00060
`Patent 7,421,032 B2
`
`For PETITIONER:
`Eliot D. Williams
`G. Hopkins Guy
`Baker Botts, LLP
`eliot.williams@bakerbotts.com
`hop.guy@bakerbotts.com
`
`
`
`For PATENT OWNER:
`
`Michael T. Rosato
`Matthew A. Argenti
`Wilson Sonsini Goodrich & Rosati
`mrosato@wsgr.com
`margenti@wsgr.com
`
`
`
` 7
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