Trials@uspto.gov
`571-272-7822
`
`
`
`
`
`Paper 12
`Entered: June 11, 2015
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`MEDIATEK INC. and MEDIATEK USA, INC.,
`Petitioner,
`
`v.
`
`BANDSPEED, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00314
`Patent 7,477,624 B2
`____________
`
`
`
`
`
`Before BART A. GERSTENBLITH, DAVID C. McKONE, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
`
`BOUCHER, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`On November 26, 2014, Marvell Semiconductor, Inc., MediaTek Inc.,
`and MediaTek USA, Inc. (collectively, “Petitioner”) filed a Petition
`(Paper 1, “Pet.”) pursuant to 35 U.S.C. §§ 311–319 to institute an inter
`
`
`571-272-7822
`
`
`
`
`
`Paper 12
`Entered: June 11, 2015
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`MEDIATEK INC. and MEDIATEK USA, INC.,
`Petitioner,
`
`v.
`
`BANDSPEED, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00314
`Patent 7,477,624 B2
`____________
`
`
`
`
`
`Before BART A. GERSTENBLITH, DAVID C. McKONE, and
`PATRICK M. BOUCHER, Administrative Patent Judges.
`
`BOUCHER, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`On November 26, 2014, Marvell Semiconductor, Inc., MediaTek Inc.,
`and MediaTek USA, Inc. (collectively, “Petitioner”) filed a Petition
`(Paper 1, “Pet.”) pursuant to 35 U.S.C. §§ 311–319 to institute an inter
`
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`
`IPR2015-00314
`Patent 7,477,624 B2
`
`partes review of claims 1–4, 13–16, and 25–29 of U.S. Patent No. 7,477,624
`B2 (“the ’624 patent”). Bandspeed, Inc. (“Patent Owner”) did not file a
`Preliminary Response. Applying the standard set forth in 35 U.S.C.
`§ 314(a), which requires demonstration of a reasonable likelihood that
`Petitioner would prevail with respect to at least one challenged claim, we
`institute an inter partes review of claims 1–4, 13–16, and 25–29 of the
`’624 patent.
`
`
`I. BACKGROUND
`A. The ’624 Patent
`The ’624 patent was filed on April 3, 2006, as a continuation of U.S.
`Patent Application No. 09/948,488, which was filed on September 6, 2001,
`and issued as U.S. Patent No. 7,027,418. Ex. 1001 [63]. The ’624 patent
`also claims the benefit of the filing date of U.S. Provisional Application
`No. 60/264,594, filed on January 25, 2001. Id. at [60].
`The ’624 patent relates to managing the use of communications
`channels based on channel performance. Ex. 1001, col. 1, ll. 46–48.
`Figure 2 of the ’624 patent is reproduced below.
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`Figure 2 is a block diagram that depicts a communications network having
`“master” communications device 210 and multiple “slave” communications
`devices 220 and 230, each of which includes a memory, a processor, and a
`transceiver. Id. at col. 9, ll. 53–63. To manage the use of communications
`channels between the master and slaves via the respective transceivers, an
`initial set of channels is selected based on selection criteria at the start-up of
`the communications network. Id. at col. 6, ll. 19–21. Additional sets of
`channels then are selected periodically for adaptive avoidance of
`interference. Id. at col. 6, ll. 21–23.
`For example, master 210 may select a set of communications channels
`from default communications channels for a specified communications
`protocol, generate identification data for the selected set of channels, and
`transmit the identification data to slave 220. Id. at col. 9, l. 64–col. 10, l. 3.
`If slave 230 is incapable of using the selected set of channels, master 210
`communicates with slave 220 using the selected set of communications
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`channels and communicates with slave 230 using the default
`communications channels for the specified communications protocol. Id. at
`col. 10, ll. 4–15.
`The ’624 patent describes various techniques for assessing
`performance of communications channels that include the use of special test
`packets (id. at col. 10, l. 33–col. 12, l. 35), a received signal strength
`indicator (“RSSI”) (id. at col. 12, l. 37–col. 13, l. 2), and cyclic redundancy
`checks (“CRC”) (id. at col. 13, l. 50–col. 14, l. 6). Communications
`channels are classified based on channel performance as determined by such
`assessments and according to classification criteria. Id. at col. 14, ll. 63–65.
`In a particular implementation, a “referendum” approach is used in which
`participant devices “vote” whether to use a particular channel. Id. at col. 16,
`ll. 65–66. The votes may be used according to various approaches, such as
`through the use of weighted votes, in determining final channel
`classifications. Id. at col. 17, ll. 25–34.
`
`
`B. Illustrative Claim
`Independent claim 1 is illustrative of the claims at issue:
`1. A communications device for use in a network of devices,
`comprising:
`a memory for storing instructions;
`a processor that is communicatively coupled to the
`memory, wherein the memory includes instructions which,
`when processed by the processor, causes:
`selecting, based upon performance of a plurality of
`communications channels at a first time, a first set of two
`or more communications channels from the plurality of
`communications channels;
`selecting, based upon performance of the plurality
`of communications channels at a second time that is later
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`than the first time, a second set of two or more
`communications channels from the plurality of
`communications channels; and
`a transceiver that is communicatively coupled to the
`memory and that is configured to transmit to and receive from
`another communications device, wherein:
`for a first period of time, the first set of two or
`more communications channels is used to transmit to and
`receive from the other communications device; and
`for a second period of time that is after the first
`period of time, the second set of two or more
`communications channels is used to transmit to and
`receive from the other communications device instead of
`the first set of two or more communications channels,
`wherein the communications device is a first
`communications device, the other communications device is a
`second communications device, a default set of two or more
`communications channels is associated with a hopping
`sequence and is not changed based on the performance of the
`plurality of communications channels; and
`the transceiver is configured to transmit to and receive
`from a third communications device over the default set of two
`or more communications channels while transmitted to and
`receiving from the second communications device over the first
`set of two or more communications channels and while
`transmitting to and receiving from the second communications
`device over the second set of two or more communications
`channels.
`
`
`
`C. References
`Petitioner relies on the following references.
`Gerten
`US 6,760,319 B1
`July 6, 2004
`Cuffaro
`US 6,418,317 B1
`July 9, 2002
`Gendel
`US 6,115,407
`Sept. 5, 2000
`Haartsen
`US 7,280,580 B1
`Oct. 9, 2007
`Sage
`US 5,781,582
`July 14, 1998
`
`
`
`Ex. 1003
`Ex. 1004
`Ex. 1005
`Ex. 1006
`Ex. 1007
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`D. Asserted Grounds of Unpatentability
`Petitioner challenges claims 1–4, 13–16, and 25–29 of the ’624 patent
`on the following grounds. Pet. 2.
`Reference(s)
`Basis
`§ 102(e)
`§ 103(a)
`§ 103(a)
`§ 103(a)
`
`Gerten
`Gerten and Cuffaro
`Gendel and Haartsen
`Gendel, Haartsen, and Sage
`
`
`Claims Challenged
`1, 4, 13, 16, 25, 28, and 29
`2, 3, 14, 15, 26, and 27
`1, 3, 4, 13, 15, 16, 25, and 27–29
`2, 14, and 26
`
`E. Related Proceedings
`Petitioner asserts that the ’624 patent is involved in the following
`proceedings: Bandspeed, Inc. v. STMicroelectronics NV, No. 1:14-cv-00437
`(W.D. Tex.); Bandspeed, Inc. v. Broadcom Corp., No. 1:14-cv-00433 (W.D.
`Tex.); Bandspeed, Inc. v. Texas Instruments Inc., No. 1:14-cv-00438 (W.D.
`Tex.); Bandspeed, Inc. v. Qualcomm Inc., No. 1:14-cv-00436 (W.D. Tex.);
`Bandspeed, Inc. v. Marvell Semiconductor, Inc., No. 1:14-cv-00434 (W.D.
`Tex.); and Bandspeed, Inc. v. MediaTek, Inc. , No. 1:14-cv-00435 (W.D.
`Tex.). Pet. 1.
`The ’624 patent is also the subject of concurrently filed petitions for
`inter partes review in the following proceedings: IPR2015-00315 and
`IPR2015-00316. U.S. Patent No. 7,903,608 B2, which issued from a
`continuation application based on the application issuing as the ’624 patent,
`is the subject of IPR2015-00237.
`
`
`F. Claim Construction
`The Board interprets claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); In re Cuozzo Speed Techs., LLC,
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`778 F.3d 1271, 1279–82 (Fed. Cir. 2015); Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
`
`
`1. “hopping sequence”
`Each of challenged claims 1, 2, 14, 16, 26, and 28 recites a “hopping
`sequence.” Petitioner’s declarant, Dr. Zhi Ding, attests that the phrase is “a
`well-understood term of art.” Ex. 1002 ¶ 35 (citing Ex. 1016, 127–33). We
`credit Dr. Ding’s testimony that the term has a well-understood meaning of
`“the order in which the communications network hops among the set of
`frequencies” (id. citing Ex. 1001, col. 2, ll. 11–13), and adopt that
`construction for purposes of this Decision.
`
`
`2. “votes to use the particular communications channel”
`The noun phrase “votes to use the particular communications
`channel” is recited in each of challenged claims 3, 15, and 27. The term
`“vote” is not defined in the specification of the ’624 patent. Petitioner
`contends that “a ‘vote’ is a common term meaning an expression of choice
`(an indication),” citing the American Heritage Dictionary as support. Pet. 7
`(citing Ex. 1011, 1356). Petitioner proposes that a “vote to use the particular
`communications channel” should be construed to mean “at least an
`indication whether to use (or not to use) the communications channel or an
`indication whether the communication channel is good or bad.” Id.
`Although we agree that the first portion of Petitioner’s proposed
`construction is supported by the dictionary definition Petitioner provides,
`Petitioner has provided insufficient support for the second portion of its
`proposed construction. Specifically, Petitioner does not explain why “votes
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`to use” (emphasis added) should encompass indications whether
`communications channels are good or bad in addition to indications whether
`to use the communications channels.
`Accordingly, for purposes of this Decision, we construe “votes to use
`the particular communications channel” as “expressions of preference for
`using the particular communications channel.” See Marvell Semiconductor,
`Inc. v. Bandspeed, Inc., slip op. at 7, Case IPR2015-00237 (PTAB May 4,
`2015) (Paper 8).
`
`
`II. ANALYSIS
`A. Grounds Based on Gerten
`Gerten relates to improving noise and interference immunity by
`“removing channels in a frequency hopping scheme having strong
`interference or interferers in a wireless communication system.” Ex. 1003,
`col. 2, ll. 34–37. Figure 1 of Gerten is reproduced below.
`
`
`Figure 1 illustrates operation of three piconets 10, 12, and 14 that form a
`scatternet. Id. at col. 3, ll. 8–10. A piconet is a collection of devices that can
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`be connected via Bluetooth technology in an ad hoc fashion. Id. at col. 3,
`ll. 10–12. As shown in the drawing, first piconet 10 has a plurality of
`mobile units 20 that include a master mobile unit and multiple slave mobile
`units, one of which is also a slave of second piconet 12. Id. at col. 3, ll. 27–
`33. Gerten defines a “master unit” as a “device in a piconet whose clock and
`hopping sequence are employed to synchronize other devices in the
`piconet—devices in a piconet that are not the master are typically slaves.”
`Id. at col. 3, ll. 22–26.
`In determining channels to be avoided, a master device in the piconet
`determines which channels have the strongest interference. Id. at col. 4,
`ll. 50–51. This may be accomplished with “signal strength measurements on
`N number of channels (N being an integer) of the frequency hopping scheme
`to determine M number of channels (M being an integer less than or equal to
`N) to avoid.” Id. at col. 2, ll. 37–41. The frequency hopping scheme then is
`modified to avoid transmission over the M channels, and the M channels to
`avoid can be communicated to wireless units involved in the communication
`system, allowing members of the communication system to frequency hop
`together over the remaining N–M good channels in a modified frequency
`hopping scheme. Id. at col. 2, ll. 41–52, col. 4, ll. 47–58. “[T]he master
`device periodically updates the channels to be avoided,” resulting in a
`similar modification to the frequency hopping sequences. Id. at col. 4,
`ll. 58–65.
`
`
`1. Independent Claim 1
`In its analysis drawing a correspondence between the limitations of
`independent claim 1 and the disclosure of Gerten, Petitioner identifies the
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`piconet of Gerten as a “network of devices” and the master mobile unit as a
`(first) “communications device for use in the network of devices.” Pet. 11
`(italics omitted). Petitioner further draws a correspondence between recited
`“second” and “third” “communications devices” and the slave units
`disclosed by Gerten. Id. at 16. In addition, Petitioner identifies the recited
`selection of communications channels as disclosed by Gerten’s description
`of modified frequency hopping schemes, noting Gerten’s specific disclosure
`of periodic updating of the modified frequency hopping schemes to conclude
`that Gerten discloses selection at different times. Id. at 14, 15–16.
`Petitioner highlights this periodic updating to identify distinct “period[s] of
`time” during which different “set[s] of two or more communications
`channels [are] used to transmit and receive.” Id. at 15–16 (italics omitted).
`Independent claim 1 specifically requires that different sets of
`communications channels be used with the second and third communications
`devices:
`the transceiver is configured to transmit to and receive from a
`third communications device over the default set of two or
`more communications channels while transmitting to and
`receiving from the second communications device over the first
`set of two or more communications channels and while
`transmitting to and receiving from the second communications
`device over the second set of two or more communications
`channels
`
`(emphases added). In contending that this limitation is disclosed by Gerten,
`Petitioner reasons that the process summarized above may be applied by the
`master device to each of the slave devices separately: “the master device of
`Gerten performs a service discovery request to determine if each slave
`device has interference avoidance capabilities.” Id. at 18 (emphasis added)
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`(citing Ex. 1002 ¶ 53; Ex. 1003, col. 4, ll. 38–51). Thus, if one slave has
`such interference avoidance capabilities, communications with that slave
`may take place using a modified frequency hopping scheme; if another
`(legacy) slave lacks such interference avoidance capabilities,
`communications take place using a normal mode with default
`communications channels that are not changed based on channel
`performance. Id. at 18 (citing Ex. 1002 ¶ 55); see id. at 16–17. Petitioner
`supports this reasoning with testimony by Dr. Ding, which we credit for
`purposes of this Decision. Id. at 18 (citing Ex. 1002 ¶¶ 53–55).
`As part of its analysis, Petitioner asserts that “[t]he term ‘while’ is a
`common term meaning ‘during the time that,’” and consequently contends
`that “claim 1 does not require simultaneous communications–only that the
`master device can communicate with multiple devices during the same time
`period (e.g., interleaved communications).” Id. at 18 n.4 (citing Ex. 1012,
`1376). Applying the broadest reasonable interpretation of “while,” we
`accept Petitioner’s contention for purposes of this Decision.
`Although we have highlighted specific evidence and arguments for
`emphasis, we have reviewed the entirety of Petitioner’s analysis for
`independent claim 1, as well as the supporting testimony of Dr. Ding. We
`conclude that Petitioner has established a reasonable likelihood of prevailing
`on its challenge of claim 1 as anticipated by Gerten.
`
`
`2. Claim 4
`Dependent claim 4 recites memory instructions that cause the sets of
`communications channels to be loaded into registers of the communications
`devices after selecting the sets of communications channels. In addressing
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`these limitations, Petitioner observes that Gerten discloses that the master
`device and slave devices include register banks that are loaded with
`synthesizer code words. Id. at 18–20 (citing Ex. 1003, col. 2, ll. 47–52,
`col. 7, ll. 11–18). Petitioner contends that references in claim 4 to “causing
`the . . . set[s] of two or more communications channels to be loaded into . . .
`register[s]” does not require that the channels themselves be loaded into
`registers, but that channel identifiers be loaded. Id. at 20. For purposes of
`this Decision, we accept this contention. As Petitioner observes, its
`proposed construction is consistent with the specification of the ’624 patent,
`which explains that “‘after a participant has received the set of selected
`communications channels, the participant stores data that indicates the
`new set of selected channels.’” Id. (citing Ex. 1001, col. 19, ll. 27–30,
`emphasis by Petitioner). Petitioner’s reasoning that the synthesizer code
`words described by Gerten act to identify channels used in the frequency
`hopping sequences and are loaded in registers of the master and slave
`devices is supported by the declarant testimony of Dr. Ding. See Ex. 1002
`¶ 60.
`
`Accordingly, we conclude that Petitioner has demonstrated a
`reasonable likelihood of prevailing on its challenge of claim 4 as anticipated
`by Gerten.
`
`
`3. Claims 13, 16, 28, and 29
`Independent claim 13 and dependent claim 29 each recite a
`combination of limitations that appear in claims 1 and 4. Similarly,
`dependent claims 16 and 28 recite limitations from claim 1. Petitioner
`provides a chart, at pages 22–24 of the Petition, explaining where Petitioner
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`addresses these limitations in its analysis of claims 1 and 4. We reviewed
`that chart and conclude that Petitioner has demonstrated a reasonable
`likelihood of prevailing on its challenge of claims 13, 16, 28, and 29 as
`anticipated by Gerten.
`
`
`4. Claim 25
`In addition to reciting a combination of limitations that appear in
`claims 1 and 4, independent claim 25 additionally recites that “the number of
`channels in the first set of two or more communications channels varies
`from the number of channels in the second set of two or more
`communications channels.” Petitioner’s chart, at pages 22–24 of its Petition,
`explains where it addresses the limitations that appear in claims 1 and 4.
`With respect to the additional limitation, Petitioner notes that periodic
`updating of channels selected for avoidance by Gerten accounts for
`variations in interference patterns in the network. Id. at 24 (citing Ex. 1002
`¶ 102). Petitioner also points to a level scheme disclosed by Gerten in which
`different thresholds are used in evaluating channel strength. Id. at 24–25
`(citing Ex. 1003, col. 5, ll. 32–37, col. 5, ll. 40–63, col. 6, ll. 50–55).
`Petitioner reasons that “the number of channels to be avoided in Gerten can
`vary from M=0 (e.g., every channel being tested in a particular scan has an
`interference signal strength that is below the level one threshold) to
`M=maximum number for level 2.” Id. at 25. Petitioner concludes that “the
`number of channels in Gerten’s set of (N-M) frequency hopping channels
`can change from one scan to another scan over time.” Id. (citing Ex. 1002
`¶ 102). For purposes of this Decision, we are persuaded by this reasoning.
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`We conclude that Petitioner has demonstrated a reasonable likelihood
`of prevailing on its challenge of claim 25 as anticipated by Gerten.
`
`
`5. Claims 2, 14, and 26
`Each of dependent claims 2, 14, and 26 recites that “only one
`communications channel” of the first and second sets of two or more
`communications channels is used at each hop in the hopping sequence.
`Petitioner relies on Gerten’s disclosure of Bluetooth frequency hopping as
`an example, noting that “[i]n a hopping sequence based on a [frequency
`hopping] protocol such as used in Bluetooth, only one communications
`channel is used for communications between a first device and a second
`device at each hop.” Id. at 27 (citing Ex. 1001, col. 1, ll. 13–15, col. 1,
`ll. 39–55; Ex. 1002 ¶¶ 120, 121).
`Each of claims 2, 14, and 26, also recites that “the performance of the
`plurality of communications channels is based on channel performance data
`that is transmitted over one or more of the plurality of communications
`channels based on the hopping sequence according to the frequency hopping
`protocol.” Petitioner acknowledges that “Gerten does not explicitly disclose
`this limitation.” Id. at 28. For this limitation, Petitioner relies on Cuffaro,
`which relates to managing frequency allocations to a cell in cellular
`telephone systems. Ex. 1004, col. 1, ll. 7–9. Cuffaro discloses transmission
`of performance data from remote devices to a base station, which Petitioner
`respectively associates with the slave and master devices of Gerten.
`See Pet. 28–29. A quality metric is obtained from measurements of both
`assigned and unassigned frequency channels that are reported back to the
`base station. Ex. 1004, col. 7, ll. 23–47. Because Cuffaro does not limit the
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`type of communications link used for such reporting, Petitioner reasons that
`“one skilled in the art would consider it obvious for the slave device in
`Gerten to perform the interference signal strength measurements” and to
`communicate channel performance data measured by the slave device over
`one or more of the plurality of communications channels based on the
`hopping sequence. Pet. 30. Petitioner supports this reasoning with
`declaration testimony by Dr. Ding. Ex. 1002 ¶ 126.
`Petitioner further provides reasoning why a person of ordinary skill in
`the art would have combined the relevant teachings of Gerten and Cuffaro,
`including that “Cuffaro and Gerten are in the same field of endeavor” of
`selecting channels to avoid interference in a communications system; that
`measuring interference signal strength at a slave device such as described by
`Cuffaro provides a more accurate determination of the impact of the receiver
`unit from the interference on a given channel, and, therefore, would provide
`more accurate identification of bad channels in Gerten; and that Gerten
`suggests such a modification by describing that both a master and a slave
`can participate in identifying channels to avoid. Pet. 30–31. Petitioner
`supports this reasoning with declaration testimony by Dr. Ding. Ex. 1002
`¶¶ 128, 129. We find this reasoning sufficient for purposes of this Decision.
`Accordingly, we conclude that Petitioner has demonstrated a
`reasonable likelihood of prevailing on its challenge of claims 2, 14, and 26
`as unpatentable under 35 U.S.C. § 103(a) over Gerten and Cuffaro.
`
`
`6. Claims 3, 15, and 27
`In addition to reciting that selection of the sets of communications
`channels is based on the performance of the communications channels,
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`claims 3, 15, and 27 each recite that “the channel selection criteria specifies
`that for a particular communications channel to be selected, the particular
`communications channel receives a specified number of votes to use the
`particular communications channel from among a plurality of votes.”
`Petitioner acknowledges that Gerten does not disclose such voting criteria
`and relies on Cuffaro for this limitation. Pet. 32–37. Petitioner identifies a
`procedure described by Cuffaro in which wireless devices vote “for the
`unassigned frequency channel or the assigned idle frequency channels based
`upon the results of the measurements.” Id. at 33 (citing Ex. 1004, col. 8,
`ll. 10–12). Depending on the value of adjusted interference measurements,
`the Cuffaro procedure casts votes for or against particular frequencies.
`See Ex. 1004, col. 7, l. 55–col. 11, l. 6. The unassigned frequency channel
`that has the maximum number of positive votes is selected to replace the
`corresponding assigned frequency channel. Id. at col. 10, ll. 34–53.
`Although we have adopted a construction, for this Decision, of “votes
`to use a particular communications channel” that is narrower than advocated
`by Petitioner, we agree with Petitioner that Cuffaro discloses the narrower
`construction: “The votes of Cuffaro are ‘votes’ in the context of the
`’624 patent because they are each indications of whether to use (or not to
`use) one communications channel over another channel.” Pet. 34 (citing
`Ex. 1002 ¶ 134). We note our disagreement with Petitioner that “[t]he
`maximum number of positive votes is a ‘specified number of votes’ in the
`context of claims 3, 15, and 27.” See id. at 35 (emphases by Petitioner).
`The maximum number of positive votes may vary and is not a “specified
`number.” Nevertheless, Petitioner asserts an alternative position in its
`obviousness challenge that a person of ordinary skill in the art “would
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`recognize that instead of using the ‘maximum number of positive votes,’ a
`specific number of positive votes (e.g., +6) could be used to select channels
`for replacement in Cuffaro.” Id. at 36 (citing Ex. 1002 ¶ 136). Petitioner
`supports its alternative position with declaration testimony by Dr. Ding. Ex.
`1002 ¶ 136.
`We conclude that Petitioner has demonstrated a reasonable likelihood
`of prevailing on its challenge of claims 3, 15, and 27 as unpatentable under
`35 U.S.C. § 103(a) over Gerten and Cuffaro.
`
`
`B. Grounds Based on Gendel and Haartsen
`Gendel describes a frequency hopping communication system with
`error detection capabilities. Ex. 1005, col. 1, ll. 17–20. The communication
`system includes a primary system that performs frequency hopping
`communication with a plurality of secondary systems across communication
`links. Id. at col. 6, l. 65–col. 7, l. 4. The primary system and the secondary
`systems include subsystems “adapted to transmit and receive data according
`to a spreading code designating a segment hopping sequence or pattern (e.g.,
`S0, S2, S5, S6 and S7), with the hopping frequencies being contained within
`the used segments.” Id. at col. 7, ll. 14–18. Error values are stored for each
`segment used in the segment hopping sequence and modified in response to
`detection of reception errors. Id. at col. 7, ll. 20–28. When the error value
`of a particular used segment reaches or exceeds a predetermined threshold,
`the subsystems replace the used segment and all of its hopping frequencies
`with an unused segment, and notify the other communicating party of the
`replacement in the hopping pattern. Id. at col. 7, ll. 28–37.
`
`17
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`IPR2015-00314
`Patent 7,477,624 B2
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`
`Figures 2A (top) and 2B (bottom) of Gendel are reproduced below.
`
`
`
`Figure 2A (top) illustrates a sample division of a spectrum and Figure 2B
`(bottom) illustrates a sample segment hopping pattern at a point in time.
`Id. at col. 5, ll. 49–53. Each segment includes a contiguous subset of
`available frequencies, and Petitioner draws a correspondence between the
`“segments in Gendel (and their respective frequencies)” and the
`“communications channels” recited in the claims of the ’624 patent.
`Pet. 41–42.
`
`
`1. Independent Claim 1
`In its analysis drawing a correspondence between the limitations of
`independent claim 1 and the disclosure of Gendel, Petitioner identifies the
`combination of Gendel’s primary and secondary systems as a “network of
`
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`IPR2015-00314
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`devices,” with the primary system acting as the “first communications
`device” and different ones of the secondary systems acting as the “second”
`and “third” “communications devices.” Pet. 39, 46–47. In addition,
`Petitioner reasons that the recited “selecting” of sets of communications
`channels at the “first” and “second” times is “based upon performance” of
`the communications channels because Gendel teaches replacement of
`segments as a result of monitoring error values. Id. at 41–44. Different sets
`of communications channels, according to Petitioner, thus, are used for
`transmission and receipt during “first” and “second” periods of time. Id. at
`45–46. As part of its analysis, Petitioner contends that transmission to and
`receipt from “a third communications device” (a second secondary system)
`can occur over a default set of communications channels “while”
`transmitting to and receiving from a second communications device (a first
`secondary system) “over the first set of two or more communications
`channels” and “while” transmitting to and receiving from the second
`communications device “over the second set of two or more
`communications channels.” Id. at 47. Petitioner supports this contention
`with testimony by Dr. Ding that “this is achieved because [the] primary
`system . . . includes a separate subsystem to communicate with each
`secondary system and because FIG. 1 of Gendel illustrates separate links
`between [the] primary system . . . and each secondary system.” Ex. 1002
`¶ 162.
`Petitioner, thus, contends that
`Gendel discloses each and every limitation of claim[] 1 . . .
`except that Gendel does not expressly disclose “a memory for
`storing instructions” and “a processor that is communicatively
`coupled to the memory, wherein the memory includes
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`IPR2015-00314
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`
`instructions which, when processed by the processor, causes”
`certain recited actions to be performed.
`
`Pet. 37. Petitioner asserts that such use of a processor for executing stored
`instructions in a communications device “would be obvious to a person of
`skill in the art based on Gendel alone.” Id. (citing Ex. 1002 ¶ 145).
`Petitioner alternatively relies on Haartsen, which “relates to communication
`systems where transmitter and receiver make use of a hop sequence to
`remain in contact.” Ex. 1006, col. 1, ll. 8–10. Petitioner asserts that
`Haartsen “expressly discloses a communications device having a memory
`for storing instructions and processor for executing those instructions.”
`Pet. 37. Petitioner identifies, for example, disclosure in Haartsen that hop
`selection functions “‘may be embodied in any of a variety of forms,
`including but not limited to hard-wired circuits, or a processor executing a
`suitable set of program instructions stored on a computer readable
`storage medium such as a random access memory (RAM).’” Id. at 40
`(emphasis by Petitioner) (citing Ex. 1006, col. 10, ll. 56–65).
`We conclude that Petitioner has demonstrated a reasonable likelihood
`of prevailing on its contention that claim 1 is unpatentable under 35 U.S.C.
`§ 103(a) over Gendel and Haartsen.
`
`
`2. Claim 4
`In addressing the “register” limitations of dependent claim 4,
`Petitioner observes that Gendel teaches storing its used segments in a
`segment hopping table after the selection process is complete and updating
`the segment hopping table by replacing the particular used segment with the
`unused segment. Pet. 47 (citing Ex. 1005, col. 12, ll. 45–48; Fig. 6,
`
`20
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`IPR2015-00314
`Patent 7,477,624 B2
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`step 662); see Ex. 1002 ¶ 163. Petitioner acknowledges that “Gendel does
`not explicitly describe that the table is stored in a first register in the primary
`system . . . and a second register in the secondary system.” Pet. 49. But
`Petitioner supports its contention that “the use of a register to store a table
`would have been an obvious design choice for a person of ordinary skill in
`the art” with testimony by Dr. Ding, which we credit for purposes of this
`Decision. Id. (citing Ex. 1002 ¶ 165). In addition, Petitioner also observes
`that “Haartsen discloses a similar table stored in a memory . . . and Gendel
`discloses using registers to store maximum and minimum reception power
`levels for used segments.” Id. (citing Ex. 1006, col. 13, ll. 4–22; Ex. 1005,
`col. 14, ll. 9–16).
`We conclude that Petitioner has demonstrated a reasonable likelihood
`of prevailing on its challenge of claim 4 as unpatentable under 35 U.S.C.
`§ 103(a) over Gendel and Haartsen.
`
`
`3. Claims 13, 16, 28, and 29
`Similar to its analysis of claims 13, 16, 28, and 29 under the Gerten-
`based grounds, Petitioner provides a chart, at pages 50–52 of its Petition,
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