Trials@uspto.gov
`571.272.7822
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` Paper 16
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` Entered: September 23, 2014
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC.,
`SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, and
`SAMSUNG AUSTIN SEMICONDUCTOR, LLC,
`Petitioner,
`
`v.
`
`REMBRANDT WIRELESS TECHNOLOGIES, LP,
`Patent Owner.
`_______________
`
`Case IPR2014-00519
`Patent 8,023,580 B2
`_______________
`
`
`Before JAMESON LEE, HOWARD B. BLANKENSHIP, and
`JUSTIN BUSCH, Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`REMBRANDT EXHIBIT 2002
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`
`571.272.7822
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`
`
`
`
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` Paper 16
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`
`
` Entered: September 23, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC.,
`SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, and
`SAMSUNG AUSTIN SEMICONDUCTOR, LLC,
`Petitioner,
`
`v.
`
`REMBRANDT WIRELESS TECHNOLOGIES, LP,
`Patent Owner.
`_______________
`
`Case IPR2014-00519
`Patent 8,023,580 B2
`_______________
`
`
`Before JAMESON LEE, HOWARD B. BLANKENSHIP, and
`JUSTIN BUSCH, Administrative Patent Judges.
`
`BUSCH, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`REMBRANDT EXHIBIT 2002
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`
`
`IPR2014-00519
`Patent 8,023,580 B2
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`I.
`
`INTRODUCTION
`
`A. Background
`
`Samsung Electronics Co., Ltd., Samsung Electronics America, Inc.,
`
`Samsung Telecommunications America, LLC, and Samsung Austin
`
`Semiconductor, LLC (collectively, “Petitioner”) filed an Amended Petition
`
`requesting an inter partes review of claims 23, 25, 29, 30, 32, 34, 38, 40, 41,
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`43, 44, and 47 (“the challenged claims”) of U.S. Patent No. 8,023,580 B2
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`(“the ’580 patent,” Ex. 1301) on April 3, 2014. Paper 4 (“Pet.”). Rembrandt
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`Wireless Technologies, LP (“Patent Owner”) filed a Patent Owner
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`Preliminary Response on July 3, 2014. Paper 14 (“Prelim. Resp.”). We
`
`have jurisdiction under 35 U.S.C. § 314.
`
`Inter partes review may be instituted only if “there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of the
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`claims challenged in the petition.” 35 U.S.C. § 314. Upon consideration of
`
`the Petition and the Patent Owner Preliminary Response, we conclude
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`Petitioner has established a reasonable likelihood that it would prevail with
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`respect to claims 32, 34, 38, 40, 43, 44, and 47 of the ’580 patent.
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`Accordingly, we institute an inter partes review of claims 32, 34, 38, 40, 43,
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`44, and 47.
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`B.
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`Related Proceedings
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`Petitioner indicates that the ’580 patent was asserted against
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`Petitioner in Rembrandt Wireless Technologies, LP v. Samsung Electronics
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`Co., No. 2:13-cv-00213 (E.D. Tex.). Pet. 1–2. The same parties and patent
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`are involved in Samsung Electronics Co. v. Rembrandt Wireless
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`Technologies, LP, Case IPR2014-00514 (PTAB); Samsung Electronics Co.
`
`v. Rembrandt Wireless Technologies, LP, Case IPR2014-00515 (PTAB);
`
`and Samsung Electronics Co. v. Rembrandt Wireless Technologies, LP,
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`Case IPR2014-00518 (PTAB).
`
`C.
`
`The ’580 Patent (Ex. 1301) 1
`
`The specification of the ’580 patent describes “a data communications
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`system in which a plurality of modulation methods are used to facilitate
`
`communication among a plurality of modem types.” Ex. 1301, 1:21–23.
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`The ’580 patent explains that the invention addresses a problem that
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`conventional modem pairs can communicate successfully only when the
`
`modems use compatible modulation methods. Id. at 1:27–30, 1:45–47.
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`Of the challenged claims, claims 23, 32, and 40 are independent
`
`claims. Illustrative claim 23 is reproduced as follows:
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`23. A communications device, comprising:
`a processor; and
`a memory having stored therein executable instructions
`for execution by the processor, wherein the executable
`instructions direct transmission of a first data with a first
`modulation method followed by a second data with a second
`modulation method, wherein the first modulation method is
`different than the second modulation method, wherein the first
`data comprises an indication of an impending change from the
`first modulation method to the second modulation method,
`wherein the executable instructions direct transmission of a
`
`
`1 In our decision, we refer to the ’580 patent by its original column and line
`numbers, not the page numbers inserted by the Petitioner.
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`third data with the first modulation method after the second
`data, and wherein the third data indicates that communication
`has reverted to the first modulation method.
`
`D.
`
`Asserted Grounds of Unpatentability
`
`Petitioner asserts the following grounds of unpatentability under
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`35 U.S.C. §§ 102 and 103:
`
`Evidence
`Boer2
`Boer
`Boer and APA3
`
`
`Basis
`
`Challenged Claims
`
`§ 102(e)
`
`23, 25, 30, 32, 34, 40, 41, 43, and 44
`
`§ 103(a)
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`23, 25, 30, 32, and 34
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`§ 103(a)
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`29, 38, and 47
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`II. ANALYSIS
`
`A.
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`Claim Construction
`
`Petitioner and Patent Owner each propose a construction of “first
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`modulation method” and “second modulation method.” However, we do not
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`construe any term at this time because no term needs to be construed for
`
`purposes of this decision.
`
`B.
`
`Asserted Grounds Based on Boer
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`1. Overview of Boer (Ex. 1304)
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`Boer discloses “a method of operating a wireless local area network
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`station adapted to transmit and receive messages at a plurality of data rates.”
`
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`2 U.S. Patent No. 5,706,428 (filed Mar. 14, 1996, issued Jan. 6, 1998) (Ex.
`1304) (“Boer”).
`3 Petitioner alleges that Figures 1 and 2 of the ’580 patent and the
`accompanying descriptions are admitted prior art. Pet. 37–38 (citing Ex.
`1301, Figs. 1, 2, 2:16–20, 3:40–46) (“APA”).
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`Ex. 1304, 1:34–36. Boer’s local area network stations “may be data
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`processing devices (such as PCs) having a wireless communication ability.”
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`Id. at 1:13–15. Boer’s mobile stations may modulate the carrier signals
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`using differential binary phase shift keying (“DBPSK”) modulation when
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`communicating at 1 Megabit per second (“Mbps”) and differential
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`quadrature phase shift keying (“DQPSK”) modulation when communicating
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`at 2 Mbps. Id. at 2:16–27. Boer further discloses that other mobile stations
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`in the system also may be capable of operating at 5 or 8 Mbps by modulating
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`the carrier signals using pulse position modulation—DQPSK
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`(“PPM/DQPSK”). Id. at 2:34–43. Boer discloses that a typical message
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`includes various fields, including “signal,” “service,” “length,” and “CRC”
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`fields (collectively referred to as a header) and a “data” field. Id. at 3:42–54.
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`Boer further explains that the “header [is] always transmitted at the 1 Mbps
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`rate using DBPSK modulation [and t]he subsequent DATA field . . . may be
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`transmitted at a selected one of the four possible rates 1, 2, 5 or 8 Mbps,
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`using the modulation and coding discussed hereinabove.” Id. at 3:57–62.
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`2. Analysis of Asserted Anticipation Grounds of Claims 23, 25,
`and 30 Based on Boer
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`Petitioner argues Boer discloses each limitation of independent
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`claim 23 and provides claim charts, specifying where each of the limitations
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`is described in Boer. Pet. 12–24. Petitioner argues Boer’s communication
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`system is comprised of stations communicating with each other using
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`different modulation methods, and that each of the stations may be a PC,
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`including a processor and a memory to execute instructions in order for the
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`stations to communicate with each other. Id. at 12–13.
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`Petitioner argues that Boer’s transmission of its “service” and
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`“length” fields of a first message, “data” field of the first message, and
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`“service” and “length” fields of a subsequent message meet the recited “first
`
`data,” “second data,” and “third data,” respectively. Id. at 14–18. Petitioner
`
`argues Boer teaches sending headers of each message, which include the
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`“service” and “length” fields, using DBPSK and that the “service” and
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`“length” fields indicate which modulation method (DBPSK, DQPSK, or
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`PPM/DQPSK) is used to transmit the “data” field of the same message. Id.
`
`at 16–18.
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`Next, Petitioner argues Boer’s disclosure of sending and receiving
`
`multiple messages at more than one data rate indicates a succession of
`
`transmissions will be made where each message follows the same format.
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`Id. at 17. Petitioner argues Boer describes transmitting a first message’s
`
`“data” field using either DQPSK or PPM/DQPSK followed by a second
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`message with a header indicating that the “data” field of the second message
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`is transmitted using DBPSK. Petitioner asserts that sequence of messages
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`described by Boer discloses “direct[ing] transmission of a third data with the
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`first modulation method after the second data . . . indicat[ing] that
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`communication has reverted to the first modulation method” (the “third data
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`transmission limitation”). Id. at 17–18.
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`With respect to independent claim 23, Patent Owner argues Petitioner
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`“ignores the limitation of claim 23 that requires that the third data indicate
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`that ‘communication from the master to the slave has reverted to the first
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`modulation method.’” Prelim. Resp. 26. Patent Owner also argues “there is
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`no indication in Boer that a message . . . that is transmitted at a [second rate]
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`is followed by a message having . . . fields that would indicate that its
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`respective DATA 214 field shall be transmitted at” the first rate. Id.
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`Therefore, Patent Owner asserts the Petition fails to establish a reasonable
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`likelihood that Boer anticipates claim 23. Id. at 27.
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`Petitioner has presented sufficient evidence supporting its position
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`that Boer discloses each of the limitations of claim 23, except for the third
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`data transmission limitation. With respect to the third data transmission
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`limitation, we note first that a portion of Patent Owner’s assertions is not
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`commensurate with the scope of the claim language. Claim 23 of the
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`’580 patent does not recite communication from a master to a slave, but
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`rather it merely recites that “communication has reverted to the first
`
`modulation method.” Nevertheless, although the Petition sufficiently
`
`establishes that Boer discloses sending messages at multiple data rates and
`
`using multiple associated modulation methods, the Petition has not
`
`established sufficiently that Boer either expressly or inherently discloses the
`
`third data transmission limitation. We agree with Patent Owner that the
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`Petition has not established sufficiently
`
`that a message that includes a DATA field 214 that is
`transmitted at a rate other than 1 Mbps (i.e., transmitted at a rate
`
`
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`different than the rate at which the SIGNAL 206 and SERVICE
`208 fields of the message are transmitted) is followed by a
`message having SIGNAL 206 and SERVICE 208 fields that
`would indicate that its respective DATA 214 field shall be
`transmitted at a rate of 1 Mbps.
`
`Prelim. Resp. 26 (emphasis omitted).
`
`Boer’s system may be capable of transmitting a first message’s data
`
`field using either DQPSK or PPM/DQPSK followed, a subsequent
`
`message’s header field using DBPSK, where the subsequent message’s
`
`header field indicates that the subsequent message’s data field will be
`
`transmitted using DBPSK. However, the Petition has not established that
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`the specific series of transmissions as recited in independent claim 23 is
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`explicitly disclosed by or necessarily present in Boer.
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`Thus, based on the evidence and arguments submitted, Petitioner has
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`not demonstrated sufficiently that Boer discloses transmitting a third data—
`
`subsequent to a second data transmitted using a second modulation
`
`method—that indicates “communication has reverted to the first modulation
`
`method,” as recited in claim 23. Therefore, for the reasons discussed,
`
`Petitioner has not established a reasonable likelihood that claim 23 is
`
`anticipated by Boer. Dependent claims 25 and 30 depend from claim 23 and
`
`include all of the limitations recited in claim 23. Therefore, for the same
`
`reasons as discussed with respect to independent claim 23, Petitioner has not
`
`established a reasonable likelihood that claims 25 and 30 are anticipated by
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`Boer.
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`3. Analysis of Asserted Obviousness Grounds of Claims 23, 25,
`and 30 Based on Boer
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`Petitioner asserts that, to the extent Boer does not anticipate
`
`claims 23, 25, and 30, Boer renders those claims obvious. Pet. 12–25. With
`
`respect to claim 23, Petitioner merely makes a conclusory statement that “it
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`would have been obvious to a person of ordinary skill in the art to
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`implement Boer’s teachings with a processor and memory that stores
`
`executable instructions that implements Boer’s functionality.” Id. at 13.
`
`Claims 25 and 30 depend from claim 23, and Petitioner argues Boer renders
`
`obvious claims 25 and 30 for the same reasons as discussed with respect to
`
`claim 23. Id. at 18, 19, 25. Petitioner presents no other argument regarding
`
`what aspects of Boer would need to be modified in order to meet the recited
`
`limitations and why. The underlying factual inquiries necessary for a proper
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`obviousness analysis, as set forth in Graham v. John Deere Co., 383 U.S. 1,
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`17–18 (1966), have not been discussed sufficiently. In particular, Petitioner
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`has not submitted persuasive argument or evidence curing the deficiency
`
`identified with respect to its anticipation challenge. Therefore, on the
`
`record, Petitioner has not established a reasonable likelihood that claims 23,
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`25, and 30 would have been obvious in view of Boer.
`
`4. Analysis of Asserted Anticipation Grounds of Claims 32, 34, 40,
`43, and 44 Based on Boer
`
`Independent claim 32 is similar to claim 23, except claim 32 does not
`
`recite that “the third data indicates that communication has reverted to the
`
`first modulation method” and includes an additional recitation that
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`“transmission of the second data is according to a particular quantity of
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`data.” Petitioner argues Boer discloses that additional limitation because
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`Boer uses its “length” field to identify the number of bytes transmitted in its
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`“data” field, which Petitioner maps to the recited second data. Id. at 19, 25–
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`26. Dependent claim 34, which depends from claim 32, further recites a
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`transmitter. Petitioner argues Boer discloses RF transmitters 50 and 150,
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`shown in Figures 2 and 3. Pet. 18–19, 25–27. Therefore, Petitioner asserts
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`Boer discloses each limitation of independent claims 32 and 34 for the same
`
`reasons asserted with respect to claims 23 and because Boer discloses the
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`transmission according to a quantity of data and using a transmitter, as
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`recited in claims 32 and 34, respectively. Pet. 25–27.
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`Independent claim 40 recites limitations similar to those recited in
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`claim 32, except claim 40 recites a transceiver, which further comprises a
`
`modulator, instead of reciting a processor and a memory. Petitioner points
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`to Boer’s transceivers and argues the transceivers include a modulator. Pet.
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`27–28. Petitioner presents arguments for the remaining limitations of claim
`
`40 similar to those presented with respect to the commensurate limitations
`
`recited in claims 23 and 32. Id. at 27–29.
`
`Dependent claim 43, which depends from independent claim 40,
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`recites “the transceiver is configured to transmit the second sequence
`
`according to a particular quantity of data.” Petitioner argues Boer discloses
`
`that additional limitation because Boer uses its “length” field to identify the
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`number of bytes transmitted in its “data” field, which Petitioner maps to the
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`recited second data. Id. at 19, 30, 36–37. Dependent claim 44, which also
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`depends from independent claim 40, recites a processor and a memory and
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`instructions stored in the memory to cause the transmitter to transmit the
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`recited data. Petitioner argues Boer discloses that limitation because it
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`describes embodiments of devices including PCs or other data processing
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`devices, which have processors and memories and use instructions to cause
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`transceivers to transmit messages. Pet. 30, 37.
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`Claims 32, 34, 40, 43, and 44 do not recite a limitation similar to the
`
`limitation recited in claim 23 that Petitioner has failed to demonstrate is
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`disclosed by Boer. Therefore, Petitioner has presented sufficient evidence
`
`supporting its position that Boer discloses each of the limitations of claims
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`32, 34, 40, 43, and 44. Thus, Petitioner has demonstrated a reasonable
`
`likelihood that claims 32, 34, 40, 43, and 44 are anticipated by Boer.
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`5. Analysis of Asserted Obviousness Grounds of Claims 32 and 34
`Based on Boer
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`As discussed above, Petitioner does not identify specifically any
`
`differences between Boer’s disclosure and the subject matter recited in
`
`claims 32 and 34. Petitioner presents no other argument regarding what
`
`aspects of Boer would need to be modified in order to meet the recited
`
`limitations and why, thus failing to address the underlying factual inquiries
`
`necessary for a proper obviousness analysis. Therefore, we do not institute
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`review on the ground that claims 32 and 34 would have been obvious in
`
`view of Boer. See 37 C.F.R. § 42.108(a).
`
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`6. Analysis of Asserted Anticipation Grounds of Claim 41 Based
`on Boer
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`Dependent claim 41 recites that the “transceiver is configured to
`
`transmit a third sequence after the second sequence, wherein the third
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`sequence is transmitted in accordance with the first modulation method and
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`indicates that a subsequent communication has reverted to the first
`
`modulation method,” which is similar in scope to the third data transmission
`
`limitation recited in independent claim 23. Petitioner presents similar
`
`arguments regarding this limitation as presented with respect to the third
`
`data transmission limitation. Pet. 29–30, 35–36.
`
`Patent Owner presents arguments that Petitioner has not shown Boer
`
`anticipates claim 41, which are similar to the arguments it presented with
`
`respect to claim 23. We note that at least part of Patent Owner’s arguments
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`regarding Petitioner’s failure to demonstrate that claim 41 is anticipated are
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`not relevant or commensurate with the scope of the claims. See Prelim.
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`Resp. 29–30. For example, Patent Owner argues Petitioner ignores elements
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`recited in claim 23 and elements related to a master and a slave, which are
`
`not recited in claim 41. Id. at 29. Patent Owner also argues “Boer does not
`
`necessarily lead to the limitation of Claim 41 that ‘the third sequence
`
`indicates that communication from the master to the slave has reverted to the
`
`first modulation method.’” Id. at 30.
`
`For the same reasons discussed above with respect to the third data
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`transmission limitation of claim 23, Petitioner has not demonstrated
`
`sufficiently that Boer discloses “the transceiver is configured to transmit a
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`third sequence after the second sequence, wherein the third sequence is
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`transmitted in accordance with the first modulation method and indicates
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`that a subsequent communication has reverted to the first modulation
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`method,” as recited in dependent claim 41. Therefore, Petitioner has not
`
`established a reasonable likelihood that claim 41 is anticipated by Boer.
`
`C.
`
`Asserted Obviousness Grounds Based on Boer and APA
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`1. Overview of APA
`
`Petitioner argues that Figures 1 and 2, as well as the accompanying
`
`descriptions, are admitted prior art because the ’580 patent labeled Figure 1
`
`as prior art and provided a description of Figure 2 as “a ladder diagram
`
`illustrating the operation of the multipoint communication system of”
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`Figure 1. Pet. 5–7 (citing Ex. 1304, 3:40–44). Therefore, Petitioner asserts
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`that a multipoint communication system using a master and multiple slaves
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`is admitted prior art. Id. at 5–8, 37–38.
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`2. Analysis of Asserted Obviousness Grounds of Claims 29, 38,
`and 47 Based on Boer and APA
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`Petitioner asserts that an ordinarily skilled artisan would have
`
`combined Boer’s teachings with APA (the multipoint communication
`
`system) because they would have understood that the access points disclosed
`
`by Boer “often operate as a master” and integrating multi-modulation
`
`methods would have increased the flexibility and efficiency of a multipoint
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`communication system. Pet. 40 (citing Ex. 1318 ¶¶ 162–167).
`
`Dependent claims 29, 38, and 47 ultimately depend from independent
`
`claims 23, 32, and 40, respectively. Dependent claims 29, 38, and 47 merely
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`add the additional limitation that “the memory has stored therein program
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`code for a multipoint communications protocol,” which Petitioner asserts is
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`taught by APA. Pet. 41–43. Therefore, Petitioner asserts that it would have
`
`been obvious to combine Boer and the multipoint communications protocol
`
`of APA, resulting in the matter recited in claims 29, 38, and 47.
`
`Patent Owner argues Petitioner’s allegations of admitted prior art
`
`cannot serve as a basis for instituting trial because admitted prior art is not
`
`applicable to an inventor’s own work and the inventor’s identification of a
`
`problem that needs to be solved cannot be separated from the invention as a
`
`whole (and, thus, cannot be admitted prior art). Prelim. Resp. 9–15. In sum,
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`Patent Owner appears to argue that the identification of a problem leading to
`
`the ’580 patent cannot be prior art. Although the inventor of the ’580 patent
`
`identified a problem for which a system with stations communicating using
`
`multiple modulation methods provided a solution, Petitioner does not rely on
`
`identification of the problem as admitted prior art. Rather, based on the
`
`record, Petitioner merely relies on the ’580 patent’s disclosure of a
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`multipoint communication system using a master and multiple slaves being
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`well-known at the time of the invention. On the record currently before us,
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`we are not persuaded that anything in the specification of the ’580 patent
`
`indicates that invention of a multipoint communications system using a
`
`master and multiple slaves is the work of the inventor of the ’580 patent.
`
`On the evidence submitted, we are persuaded both that a multipoint
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`communications system is APA in the ’580 patent and that a person of
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`ordinary skill in the art would have combined Boer and such a multipoint
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`communications system. Therefore, on this record, Petitioner has
`
`demonstrated a reasonable likelihood that claims 38 and 47 are obvious in
`
`view of the combination of Boer and APA. However, because claim 29
`
`depends from and incorporates the limitations of claim 23 and Petitioner has
`
`not shown that APA cures the deficiencies of Boer with respect to claim 23,
`
`Petitioner has not demonstrated a reasonable likelihood that the subject
`
`matter of claim 29 would have been obvious in view of the combination of
`
`Boer and APA.
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`III. CONCLUSION
`
`For the foregoing reasons, we determine that Petitioner has shown a
`
`reasonable likelihood that it would prevail in demonstrating that claims 32,
`
`34, 38, 40, 43, 44, and 47 of the ’580 patent are unpatentable on at least one
`
`challenged ground, but Petitioner has not shown a reasonable likelihood that
`
`it would prevail in demonstrating that claims 23, 25, 29, 30, and 41 of the
`
`’580 patent are unpatentable on any ground. The Board has not made a final
`
`determination on the patentability of any challenged claim.
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`IV. ORDER
`
`For the reasons given, it is:
`
`ORDERED that pursuant to 35 U.S.C. § 314(a), an inter partes
`
`review is hereby instituted for the following alleged grounds of
`
`unpatentability:
`
`(a) claims 32, 34, 40, 43, and 44 of the ’580 patent are unpatentable,
`
`under 35 U.S.C. § 102(e), as anticipated by Boer; and
`
`(b) claims 38 and 47 of the ’580 patent are unpatentable, under
`
`35 U.S.C. §103(a), over the combination of Boer and APA;
`
`FURTHER ORDERED that no other ground of unpatentability
`
`alleged in the Petition for any claim is authorized; and
`
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and 37
`
`C.F.R. § 42.4, the trial commences on the entry date of this decision, and
`
`notice is hereby given of the institution of a trial.
`
`
`
`
`
`
`
`16
`
`REMBRANDT EXHIBIT 2002
`
`
`
`IPR2014-00519
`Patent 8,023,580 B2
`
`PETITIONER:
`
`Jeffrey Miller
`millerj@dicksteinshapiro.com
`
`Daniel G. Cardy
`cardyd@dicksteinshapiro.com
`
`
`
`PATENT OWNER:
`
`Thomas Engellenner
`engellennert@pepperlaw.com
`
`Reza Mollaaghababa
`mollaaghababar@pepperlaw.com
`
`Lana Gladstein
`gladsteinl@pepperlaw.com
`
`
`
`
`
`17
`
`REMBRANDT EXHIBIT 2002
`
`
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