`571-272-7822
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` Paper 15
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` Entered: August 27, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HUAWEI DEVICE USA, INC. and ZTE (USA), INC.,
`Petitioner,
`
`v.
`
`SPH AMERICA, LLC and ELECTRONICS AND
`TELECOMMUNICATIONS
`RESEARCH INSTITUTE,
`Patent Owner.
`____________
`
`Cases IPR2015-00203 (Patent 8,532,231 B2)
`IPR2015-00221 (Patent 8,565,346 B2)
`____________
`
`
`
`Before SALLY C. MEDLEY, BARBARA A. BENOIT, and
`BETH Z. SHAW, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`IPR2015-00203 (Patent 8,532,231 B2)
`IPR2015-00221 (Patent 8,565,346 B2)
`
`
`INTRODUCTION
`
`Huawei Device USA, Inc. and ZTE (USA), Inc. (collectively,
`“Petitioner”), filed a Request for Rehearing (IPR2015-00203, Paper 14,
`“Reh’g Req.” 1) of the Decision Denying Institution of Inter Partes Review
`(Paper 13, “Decision” or “Dec.”) in both proceedings. Because the
`rehearing arguments presented are the same for the two cases, we decide
`both rehearing requests in one decision. In the rehearing requests, Petitioner
`argues that we misapprehended or overlooked (1) Alamouti’s teachings of
`space-time block coding, (2) Alamouti’s express teaching that space-time
`block coding can be used in place of frequency-space coding, thus providing
`express motivation to combine Alamouti with Narasimhan, and (3) that
`Narasimhan’s semaphore or TX flag indicates a particular format of a data
`packet. IPR2015-00203, Paper 14, 6–14.
`
`ANALYSIS
`
`When rehearing a decision on petition, the Board will review the
`
`decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of
`discretion may be determined if a decision is based on an erroneous
`interpretation of law, if a factual finding is not supported by substantial
`evidence, or if the decision represents an unreasonable judgment in weighing
`relevant factors. Arnold Partnership v. Dudas, 362 F.3d 1338, 1340 (Fed.
`
`
`1 Citations are to IPR2015-00203.
`
`2
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`
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`IPR2015-00203 (Patent 8,532,231 B2)
`IPR2015-00221 (Patent 8,565,346 B2)
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`Cir. 2004). For the reasons that follow, Petitioner has not shown that the
`Board abused its discretion.
`In the Decision, we determined that Petitioner had shown that
`Alamouti describes space-time coding, but not space-time block coding as
`claimed. Dec. at 13–14. Petitioner argues that we overlooked the
`description in Jeon at pages 4 and 6 that show that Alamouti teaches space-
`time block coding. Reh’g Req. 8–9. Petitioner, however, did not rely on
`Jeon in its Petition in support of showing that Alamouti describes space-time
`block coding. Accordingly, we could not have overlooked or
`misapprehended Jeon in this light because this is a new theory advanced by
`Petitioner in its rehearing request.
`In any event, we are not persuaded that the portion of Jeon that
`Petitioner now points to, for the first time, describes that the “Alamouti
`[reference] teaches space-time block coding” as asserted. Id. at 9. Only
`page 6 of pages 4 and 6 of Jeon, to which Petitioner now directs us,
`mentions the word “Alamouti” and in the context of “Alamouti code” under
`the header “Space-Time Block Coding (STBC).” Ex. 1006. There is no
`description on Jeon page 6 that explains that “Alamouti code” is related at
`all to the Alamouti reference. Jeon is insufficient to establish that the
`Alamouti reference describes space-time block coding as asserted. Thus, we
`are not persuaded by Petitioner’s new argument.
`In similar vein, Petitioner argues that we overlooked the ETRI
`proposal (Exhibit 1023). Reh’g Req. 9–10. According to Petitioner, the
`ETRI proposal is evidence that Alamouti shows space-time block coding.
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`3
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`
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`IPR2015-00203 (Patent 8,532,231 B2)
`IPR2015-00221 (Patent 8,565,346 B2)
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`Again, a description of Alamouti space-time block code in a separate
`document bears little on whether a person of ordinary skill in the art would
`have understood the Alamouti reference to also convey space-time block
`code. There is no description in the ETRI proposal portion to which we are
`directed that explains that “Alamouti space-time block code” is related at all
`to the Alamouti reference. Such evidence is insufficient to establish that the
`Alamouti reference describes space-time block coding as asserted. Thus, we
`are not persuaded by Petitioner’s new argument.
`We also are not persuaded that we overlooked Dr. Williams’
`testimony on whether Alamouti describes space-time block code. We did
`consider his testimony, but gave it little weight because his testimony did not
`disclose the underlying facts on which his conclusory opinion was based.
`Dec. 13–14; Ex. 1002 ¶ 140.
`Petitioner argues that we misapprehended or overlooked that
`Narasimhan’s semaphore or TX flag indicates a particular format of a data
`packet. Reh’g Req. 12–13. We considered the description in Narasimhan
`and the supporting declaration testimony that Narasimhan’s semaphore or
`flag “is used to indicate if transmit diversity is being used to transmit the
`data portions of the frame.” Ex. 1002 ¶ 137. We found that Narasimhan and
`the characterization of Narasimhan by Petitioner’s declarant was insufficient
`to establish that Narasimhan describes information in a signal symbol that
`conveys whether a frame of data is transmitted using a particular type of
`coding. Dec. 15. Thus, we did not misapprehend or overlook Petitioner’s
`evidence in support of what Narasimhan describes.
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`4
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`
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`IPR2015-00203 (Patent 8,532,231 B2)
`IPR2015-00221 (Patent 8,565,346 B2)
`
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`Petitioner’s newly presented arguments (Reh’g Req. 12) with respect
`to similarities between the description of the involved patents and
`Narasimhan to show that Narasimhan describes a flag indicating a particular
`format of a data packet is misplaced because those arguments were not
`presented previously. We could not have overlooked or misapprehended
`arguments that were not presented previously. In any event, Petitioner’s
`newly presented arguments do not persuade us that we erred with respect to
`our findings regarding what Narsimhan describes.
`Petitioner argues that in making our determination that Petitioner did
`not provide support for a reason why one skilled in the art would have
`combined Narasimhan and Alamouti, we overlooked the fact that Alamouti
`is incorporated by reference in to the disclosure of Narasimhan. According
`to Petitioner, we also overlooked Alamouti’s own statement that data
`encoding can be done in space and time and may also be done in space and
`frequency. Reh’g Req. 13. We did not overlook these assertions. Rather
`we addressed Petitioner’s assertions that data encoding in space and time is
`exchangeable for data encoding done in space and frequency. Dec. 17. We
`further explained that, based on the record before us, something more was
`required: a rationale for making the substitution, which was lacking. Id. at
`17–18.
`For all of the above reasons, Patent Owner’s Requests for Rehearing
`are denied.
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`5
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`
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`IPR2015-00203 (Patent 8,532,231 B2)
`IPR2015-00221 (Patent 8,565,346 B2)
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`For PETITIONER:
`
`Paul Hunter
`Christopher C. Bolten
`Troy D. Smith
`Foley & Lardner LLP
`phunter@foley.com
`cbolten@foley.com
`tdsmith@foley.com
`
`Steven A. Moore
`Richard W. Thill
`Pillsbury Winthrop Shaw Pittman LLP
`steve.moore@pillsburylaw.com
`richard.thill@pillsburylaw.com
`
`For PATENT OWNER:
`
`SPH
`Wayne Helge
`Donald Jackson
`Davidson Berquist Jackson & Gowdey L.L.P.
`whelge@dbjg.com
`djackson@dbjg.com
`
`ETRI
`HUNTON & WILLIAMS LLP
`INTELLECTUAL PROPERTY DEPARTMENT
`sloftis@hunton.com
`
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