Trials@uspto.gov
`571-272-7822
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` Paper 18
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` Entered: April 27, 2015
`
`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 IPR2015-00067
`Patent 7,116,710 B1
`____________
`
`
`
`Before KALYAN K. DESHPANDE, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
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` Paper 18
`
`
` Entered: April 27, 2015
`
`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 IPR2015-00067
`Patent 7,116,710 B1
`____________
`
`
`
`Before KALYAN K. DESHPANDE, GLENN J. PERRY, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`Case IPR2015-00067
`Patent 7,116,710 B1
`
`
`I.
`INTRODUCTION
`Hughes Network Systems, LLC and Hughes Communications, Inc.
`(collectively, “Petitioner”) filed a Corrected Petition requesting an inter
`partes review of claims 1, 3, 4, 5, 6, 15, 16, 20, 21, and 22 of
`U.S. Patent No. 7,116,710 B1 (Ex. 1001, “the ’710 patent”). Paper 4
`(“Pet.”). California Institute of Technology (“Patent Owner”) timely filed a
`Preliminary Response. Paper 13 (“Prelim. Resp.”). We have jurisdiction
`under 35 U.S.C. § 314(a), which provides that an inter partes review may
`not be instituted “unless . . . there is a reasonable likelihood that the
`petitioner would prevail with respect to at least 1 of the claims challenged in
`the petition.” After considering the Petition, the Preliminary Response, and
`associated evidence, we conclude that Petitioner has not demonstrated a
`reasonable likelihood that it would prevail in showing unpatentability of all
`the challenged claims. Thus, we deny institution of an inter partes review of
`claims 1, 3, 4, 5, 6, 15, 16, 20, 21, and 22 of the ’710 patent.
`A. Related Proceedings
`Petitioner indicates that the ’710 patent is the subject of the
`
`proceedings in California Institute of Technology v. Hughes
`Communications, Inc., No. 13-cv-07245 (C.D. Cal.). Pet. 1–2.
`The ʼ710 patent is also the subject of IPR2015-00068. Additionally,
`Petitioner indicates that the ʼ710 patent is related to U.S. Patent No.
`7,421,032, U.S. Patent No. 7,916,781, and U.S. Patent No. 8,284,833, which
`are the subject of IPR2015-00059, IPR2015-00060, IPR2015-00061, and
`IPR2015-00081. Paper 7, 1–2.
`
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`Patent 7,116,710 B1
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`B. The ʼ710 Patent
`The ’710 patent describes the serial concatenation of interleaved
`convolutional codes forming turbo-like codes. Ex. 1001, Title. It explains
`some of the prior art with reference to its Fig. 1, reproduced below.
`
`
`Figure 1 is a schematic diagram of a prior “turbo code” system. Id. at 2:14–
`15. The ’710 patent specification describes Figure 1 as follows:
`
`A standard turbo coder 100 is shown in FIG. 1. A block
`of k information bits is input directly to a first coder 102. A k
`bit interleaver 106 also receives the k bits and interleaves them
`prior to applying them to a second coder 104. The second coder
`produces an output that has more bits than its input, that is, it is
`a coder with rate that is less than 1. The coders 102,104 are
`typically recursive convolutional coders.
`Three different items are sent over the channel 150: the
`original k bits, first encoded bits 110, and second encoded bits
`112. At the decoding end, two decoders are used: a first
`constituent decoder 160 and a second constituent decoder 162.
`Each receives both the original k bits, and one of the encoded
`portions 110, 112. Each decoder sends likelihood estimates of
`the decoded bits to the other decoders. The estimates are used to
`decode the uncoded information bits as corrupted by the noisy
`channel.
`
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`Patent 7,116,710 B1
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`Id. at 1:38–53(emphasis omitted).
`A coder 200, according to a first embodiment of the invention, is
`described with respect to Figure 2, reproduced below.
`
`
`Figure 2 of the ’710 patent is a schematic diagram of coder 200. Id. at2:16–
`17.
`
`The specification states that “coder 200 may include an outer coder
`202, an interleaver 204, and inner coder 206.” Id. at 2:34–35. It further
`states as follows.
`The outer coder 202 receives uncoded data. The data
`may be partitioned into blocks of fixed size, say k bits. The
`outer coder may be an (n,k) binary linear block coder, where
`n>k. The coder accepts as input a block u of k data bits and
`produces an output block v of n data bits. The mathematical
`relationship between u and v is v=T0u, where T0 is an n x k
`matrix, and the rate1 of the coder is k/n.
`
`
`The rate of the coder may be irregular, that is, the value
`of T0 is not constant, and may differ for sub-blocks of bits in the
`data block. In an embodiment, the outer coder 202 is a repeater
`that repeats the k bits in a block a number of times q to produce
`a block with n bits, where n=qk. Since the repeater has an
`irregular output, different bits in the block may be repeated a
`
`1 The “rate” of an encoder refers to the ratio of the number of input bits to
`the number of resulting encoded output bits related to those input bits. See
`Ex. 1010 ¶ 19.
`
`
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`4
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`Case IPR2015-00067
`Patent 7,116,710 B1
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`different number of times. For example, a fraction of the bits in
`the block may be repeated two times, a fraction of bits may be
`repeated three times, and the remainder of bits may be repeated
`four times. These fractions define a degree sequence, or degree
`profile, of the code.
`
`
`The inner coder 206 may be a linear rate-1 coder, which
`means that then-bit output block x can be written as x=TIw,
`where TI is a nonsingular n x n matrix. The inner coder 210 can
`have a rate that is close to 1, e.g., within 50%, more preferably
`10% and perhaps even more preferably within 1% of 1.
`
`Id. at 2:41–64 (emphasis omitted and footnote added). Codes characterized
`by a regular repeat of message bits into a resulting codeword are referred to
`as “regular repeat,” whereas codes characterized by irregular repeat of
`message bits into a resulting codeword are referred to as “irregular
`repeat.” The second (“inner”) encoder 206 performs an “accumulate”
`function. Thus, the two step encoding process illustrated in Fig. 2, including
`a first encoding (“outer encoding”) followed by a second encoding (“inner
`encoding”), results in either a “regular repeat accumulate” (“RRA”) code or
`an “irregular repeat accumulate (“IRA”) code, depending upon whether the
`repetition in the first encoding is regular or irregular.
`Figure 4 of the ’710 patent, reproduced below, shows an alternative
`embodiment in which the first encoding is carried out by a low density
`generator matrix.
`
`
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`Patent 7,116,710 B1
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`Figure 4 of the ’710 patent is a schematic of an irregular repeat and
`accumulate coder using a Low density generator matrix (LDGM)2 coder. Id.
`at 2:20–21, 3:25. The LDGM coder “performs an irregular repeat of the k
`bits in the block, as shown in FIG. 4.” Id. at 3:52–54. LDGM codes are a
`special class of low density parity check codes that allow for less encoding
`and decoding complexity. LDGM codes are systematic linear codes
`generated by a “sparse” generator matrix. No interleaver (as in the Figure 2
`embodiment) is required in the Figure 4 embodiment because the LDGM
`provides scrambling otherwise provided by the interleaver.
`
`C. Illustrative Claim
`Petitioner challenges claims 1, 3, 4, 5, 6, 15, 16, 20, 21, and 22 of the
`’710 patent. Pet. 3–4. Claim 1 is illustrative of the claims at issue and is
`reproduced below:
`1. A method of encoding a signal, comprising:
`obtaining a block of data in the signal to be
`encoded;
`
`
`2 A “generator” matrix (typically referred to by “G”) is used to create
`(generate) codewords. A parity check matrix (typically referred to by “H”)
`is used to decode a received message.
`6
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`Patent 7,116,710 B1
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`partitioning said data block into a plurality of sub-
`blocks, each sub-block including a plurality of data
`elements;
`first encoding the data block to from a first
`encoded data block, said first encoding including
`repeating the data elements in different sub-blocks a
`different number of times;
`interleaving the repeated data elements in the first
`encoded data block; and
`second encoding said first encoded data block
`using an encoder that has a rate close to one.
`D. The Alleged Grounds of Unpatentability
`The information presented in the Petition sets forth proposed grounds
`of unpatentability of claims 1, 2, 4, 6, 8, 9, 10, 11, and 13 of the ’710 patent
`as follows (see Pet. 15–50):
`
`Reference(s)
`
`Frey3
`Frey and Divsalar4
`Frey, Divsalar, and Hall5
`Frey, Divsalar, and Ping6
`Frey, Divsalar, Ping, and
`Hall
`
`Basis
`§ 102(a)
`§ 103(a)
`§ 103(a)
`§ 103(a)
`
`§ 103(a)
`
`Claim(s) Challenged
`1
`1, 3, 4, 5, 6, 15, 16, 21, and 22
`15, 16, 21, and 22
`20
`
`20
`
`
`3 Brendan J. Frey and David J.C. MacKay, Irregular Turbocodes,
`PROCEEDINGS OF THE 37TH ALLERTON CONFERENCE ON COMMUNICATION,
`CONTROL, AND COMPUTING (1999) at 1–7 (Ex.1012, “Frey).
`4 Dariush Divsalar, et al., Coding Theorems for “Turbo-Like” Codes,
`THIRTY-SIXTH ANNUAL ALLERTON CONFERENCE ON COMMUNICATION,
`CONTROL, AND COMPUTING, Sept. 23–25, 1998, at 201–209 (Ex. 1011,
`“Divsalar”).
`5 Eric K. Hall, et al., Stream-Oriented Turbo Codes, 48TH IEEE VEHICULAR
`TECHNOLOGY CONFERENCE 1998 at 71-75 (Ex. 1013, “Hall”).
`6 L. Ping, et al., Low Density Parity Check Codes with Semi-Random Parity
`Check Matrix, 35 ELECTRONIC LETTERS 38–39, 1999 (Ex. 1014, “Ping”).
`7
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`Case IPR2015-00067
`Patent 7,116,710 B1
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`
`II. ANALYSIS7
`A. Grounds based, in part, on Frey
`Petitioner contends that claim 1 is unpatentable under 35 U.S.C.
`§ 102(a) over Frey (Pet. 15–21) and that each of the challenged claims 1, 3,
`4, 5, 6, 15, 16, 20, 21, and 22 are unpatentable under 35 U.S.C. § 103(a) as
`obvious over Frey in combination with other asserted prior art (Pet. 21–50).
`Thus, whether Frey is a prior art printed publication is a dispositive issue in
`this proceeding.
`1. Frey (Ex. 1014)
`Petitioner describes Frey as disclosing “a generalized two-step
`irregular code involving (1) a permutation and (2) a convolution.” Pet. 10
`(citing Ex. 1014 at 3–4; Figs. 1 and 2). Petitioner states that Frey was
`published at least by May 11, 2000 without direct citation, citing only the
`Declaration of David J.C. Mackay, Ex. 1060 ¶¶ 40–49 for indirect support.
`Pet. 2. Petitioner’s list of Exhibits parenthetically notes that Frey was also
`“published no later than October 8, 1999 at the website of D.J.C. MacKay.”
`Pet. iii.
`Patent Owner challenges the availability of Frey as a printed
`publication as of the asserted date of May 11, 2000. Prelim. Resp. 21–24.
`Patent Owner argues that Petitioner makes no attempt to explain or support
`the contention that Frey was “published at least by May 11, 2000” other than
`the reference to the declaration of D.J.C. MacKay. Id. at 22. Patent Owner
`
`
`7 Patent Owner argues that, as a threshold matter, the Petition should be
`dismissed because Petitioner fails to identify all real parties in interest.
`Prelim. Resp. 3. Because we have determined that Petitioner has not
`demonstrated a reasonable likelihood of prevailing, we need not address the
`real parties in interest issue in this Decision.
`8
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`Case IPR2015-00067
`Patent 7,116,710 B1
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`contends that Petitioner has also failed to show that Frey was publicly
`accessible as of the asserted date. Id. (citing In re Wyer, 655 F.2d 221, 227
`(CCPA 1981)).
`Patent Owner states that the petition lacks any “discussion of the
`dissemination of Frey, such that a person of ordinary skill exercising
`reasonable diligence would have located this document as of the date
`alleged. Nor does the petition discuss whether Frey was sufficiently
`accessible to members of the public interested and ordinarily skilled in the
`art before the critical date. In re Cronyn, 890 F.2d 1158, 1160 (Fed. Cir.
`1989).” Prelim. Resp. 23.
`“Whether an anticipatory document qualifies as a ‘printed publication’
`under § 102 is a legal conclusion based on underlying factual
`determinations.” SRI Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186,
`1192 (Fed .Cir. 2008) (citation omitted); see In re Klopfenstein, 380 F.3d
`1345, 1347 (Fed. Cir. 2004) (“Where no facts are in dispute, the question of
`whether a reference represents a ‘printed publication’ is a question of law.”)
`In the present case, Petitioner has provided insufficient evidence and
`supporting argument that Frey, Ex. 1012, is a printed publication that was
`disseminated and sufficiently accessible to members of the public.8
`
`
`8 “Because there are many ways in which a reference may be disseminated
`to the interested public, ‘public accessibility’ has been called the touchstone
`in determining whether a reference constitutes a ‘printed publication’ bar
`under 35 U.S.C.§ 102(b).” SRI Int’l, Inc., 511 F.3d at 1194 (quoting In re
`Hall, 781 F.2d 897, 898–99 (Fed. Cir. 1986)). “A given reference is
`‘publicly accessible’ upon a satisfactory showing that such document has
`been disseminated or otherwise made available to the extent that persons
`interested and ordinarily skilled in the subject matter or art exercising
`reasonable diligence, can locate it.” Id. (quoting Bruckelmyer v. Ground
`9
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`Case IPR2015-00067
`Patent 7,116,710 B1
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`Although Petitioner’s asserted date for publication of Frey appears to
`rely on the Allerton Conference, the Declaration of Dr. David J.C.
`MacKay—a co-author (with Frey) of the paper—discusses only publication
`of Frey via the MacKay website (Ex. 1060 ¶ 44). Indeed, the paragraphs of
`MacKay’s testimony cited by Petitioner do not state that the Frey reference
`was published as part of the Allerton Conference, but merely indicates that it
`was submitted for publication. Ex. 1060 ¶ 43. We also note that although
`the first page of the Frey reference indicates that it was prepared for the 37th
`Allerton Conference in 1999 (Ex. 1012, 1), the pages of Exhibit 1012 do not
`indicate that it was taken from an Allerton Conference published proceeding
`as apparent from Divsalar (Ex. 1011). Compare Frey, Ex. 1012 with
`Divsalar, Ex 1011.
`The silence of the Petition on whether the paper was published as part
`of the Allerton Conference proceedings and whether such a publication was
`received or shelved by a library is telling. Petitioner’s sole reference to the
`MacKay declaration (Pet. 2, citing Ex. 1060 ¶¶ 40–49) does not provide
`sufficient support for the contention that Frey was published to the interested
`public as of May 11, 2000. Furthermore, the Petition provides insufficient
`testimony, evidence or argument with respect to the public accessibility of
`the MacKay website.
`
`
`Heaters, Inc., 445 F.3d 1374, 1378 (Fed. Cir. 2006)); see In re Cronyn, 890
`F.2d at 1160 (“[D]issemination and public accessibility are the keys to the
`legal determination whether a prior art reference was ‘published.’” (quoting
`Constant v. Advanced Micro-Devices, Inc., 848 F.2d 1560, 1568 (Fed. Cir.
`1988), cert. denied, 488 U.S. 892 (1988))).
`10
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`Case IPR2015-00067
`Patent 7,116,710 B1
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`
`Based on the record before us, Petitioner provides insufficient
`evidence by declaration or document to establish the public accessibility of
`Frey. Cf. In re Hall, 781 F.2d at 899 (examining affidavit in support of
`public availability of thesis). Petitioner’s naked assertion that Frey was
`published (Pet. 2) is not supported sufficiently by the record.
`Because each of Petitioner’s asserted grounds of unpatentability is
`based, in part, on Frey (Pet. 3–4), and Petitioner has not met its burden of
`establishing that Frey is a “printed publication” and, thus, satisfies the
`statutory requirement of 35 U.S.C. § 311(b), Petitioner has not shown a
`reasonable likelihood of prevailing on the asserted grounds.
`
`III. CONCLUSION
`For the foregoing reasons, we determine that the information
`presented in the Petition does not establish a reasonable likelihood that
`Petitioner would prevail in establishing the unpatentability of: (1) claim 1 as
`anticipated by Frey; (2) claims 1, 3, 4, 5, 6, 15, 16, 20, 21, and 22 as obvious
`over Frey, Divsalar and Hall; (3) claims 15, 16, 211, and 22 as obvious over
`Frey, Divsalar and Hall; (4) claim 20 as obvious over Frey, Divsalar, and
`Ping; and (5) claim 20 as obvious over Frey, Divsalar, Ping, and Hall.
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that pursuant to 35 U.S.C. § 314, an inter partes review is
`hereby denied as to all grounds raised in the Petition for the reasons stated
`above and no trial is instituted.
`
`
`
`
`
`
`11
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`
`Case IPR2015-00067
`Patent 7,116,710 B1
`
`For PETITIONER:
`Eliot Williams
`eliot.williams@bakerbotts.com
`
`G. Hopkins Guy III
`hop.guy@bakerbotts.com
`
`
`
`For PATENT OWNER:
`
`Michael Rosato
`mrosato@wsgr.com
`
`Matthew Argenti
`margenti@wsgr.com
`
`
`
`
`12
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