`571-272-7822
`
`
`
`
`
`Paper 14
`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 IPR2015-00315
`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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`IPR2015-00315
`Patent 7,477,624 B2
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`partes review of claims 5–8 and 17–20 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 5–8 and 17–20 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
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`communicates with slave 220 using the selected set of communications
`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 or not. 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 5 is illustrative of the claims at issue:
`5. A communications apparatus comprising:
`means for 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;
`means for causing the first set of two or more
`communications channels to be used for communications
`between a pair of participants;
`means for selecting, based upon performance of the
`plurality of communications channels at a second time that is
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`later than the first time, a second set of two or more
`communications channels from the plurality of communications
`channels; and
`means for causing the second set of two or more
`communications channels to be used for communications
`between the pair of participants instead of the first set of two or
`more communications channels, wherein at each hop in a
`hopping sequence based on a frequency hopping protocol, only
`one communications channel of the second set of two or more
`communications channels is used for communications between
`the pair of participants,
`wherein the pair of participants includes a first
`participant and a second participant, wherein a default set of
`two or more communications channels is associated with the
`hopping sequence and is not changed based on the performance
`of the plurality of communications channels, and the
`communications channel selector apparatus further comprises:
`means [for] the first participant to communicate with a
`third participant over the default set of two or more
`communications channels while communicating with the
`second participant over the first set of two or more
`communications channels and while communicating with the
`second participant 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
`
`D. Asserted Grounds of Unpatentability
`Petitioner challenges claims 5–8 and 17–20 of the ’624 patent on the
`following grounds. Pet. 2.
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`Reference(s)
`
`Gerten
`Gerten and Cuffaro
`Gendel and Haartsen
`Gendel, Haartsen, and Sage
`
`
`Basis
`§ 102(e)
`§ 103(a)
`§ 103(a)
`§ 103(a)
`
`Claims Challenged
`5, 8, 17, and 20
`6, 7, 18, and 19
`5, 7, 8, 17, 19, and 20
`6 and 18
`
`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: IPR2015-00314 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,
`778 F.3d 1271, 1279–82 (Fed. Cir. 2015); Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
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`1. “votes to use the particular communications channel”
`The (noun) phrase “votes to use the particular communications
`channel” is recited in each of challenged claims 7 and 19. 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 a choice (an
`indication),” citing the American Heritage Dictionary as support. Pet. 7
`(citing Ex. 1008, 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
`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).
`
`
`2. Means-Plus-Function Limitations
`Claims 5, 7, 8, 17, 19, and 20 recite several limitations that include the
`phrase “means for . . . .” Petitioner construes these terms in accordance with
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`35 U.S.C. § 112, ¶ 6, identifying an algorithm described in the specification
`corresponding to each “means” limitation. Pet. 7–9 (citing Ex. 1001, col. 8,
`l. 8–38, col. 8, ll. 49–col. 9, l. 16, col. 19, l. 25–col. 20, l. 67). Petitioner
`identifies a general purpose computer, processor 704 in Figure 7, as structure
`for “executing the instructions associated with the corresponding function”
`recited in each “means limitation,” except for the “means fro [sic] the first
`participant to communicate . . .” recited in claims 5 and 20. Pet. 7–9 (citing
`Ex. 1001, Fig. 7, col. 25, ll. 13–18). For the “means fro [sic] the first
`participant to communicate” limitation, Petitioner identifies transceiver 216,
`shown in Figure 2, reproduced supra. Pet. 9 (citing Ex. 1001, Fig. 2, col. 9,
`ll. 54–59).
`For purposes of this Decision, we agree with Petitioner’s
`identifications and adopt them as our constructions of the means-plus-
`function limitations. See Function Media, L.L.C. v. Google, Inc., 708 F.3d
`1310, 1318 (Fed. Cir. 2013) (“When dealing with a ‘special purpose
`computer-implemented means-plus-function limitation,’ [the Federal
`Circuit] require[s] the specification to disclose the algorithm for performing
`the function.”); Blackboard, Inc. v. Desire2Learn, Inc., 574 F.3d 1371, 1384
`(Fed. Cir. 2009) (“[W]hen a computer is referenced as support for a function
`in a means-plus-function claim, there must be some explanation of how the
`computer performs the claimed function.”).
`
`
`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
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`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
`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
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`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 5
` In its analysis drawing a correspondence between the limitations of
`independent claim 5 and the disclosure of Gerten, Petitioner identifies the
`master mobile unit of Gerten’s piconet as a “communication apparatus” that
`functions as the “first participant” and identifies the slave units as
`functioning as “second” and “third” participants. Pet. 11, 19. Petitioner
`further observes that the master mobile unit includes a central control system
`with a processor to perform various functions and a memory in which
`software instructions reside. Id. (citing Ex. 1003, col. 3, ll. 40–48, col. 4,
`ll. 1–6). In addition, Petitioner identifies the two recited “means for
`selecting” sets 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 selecting first and second sets of
`communications channels at different times. Id. at 13, 15–16. Because the
`wireless mobile units of Gerten modify their respective hopping sequences
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`and begin transmitting data using the modified hopping sequences at the
`respective times, Petitioner reasons that Gerten discloses the two “means for
`causing” the sets of communications channels to be used for
`communications between a pair of participants. Id. at 14–15, 16–17.
`Claim 5 recites that “only one communications channel of the second
`set of two or more communications channels is used for communications
`between the pair of participants.” 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 18 (citing
`Ex. 1002 ¶ 54).
`Independent claim 5 specifically requires that different sets of
`communications channels be used with the second and third participants:
`means [for] the first participant to communicate with a third
`participant over the default set of two or more communications
`channels while communicating with the second participant over
`the first set of two or more communications channels and while
`communicating with the second participant 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 mobile
`unit of Gerten performs a service discovery request to determine if each
`slave mobile unit has interference avoidance capabilities.” Id. at 21 (citing
`Ex. 1003, col. 4, ll. 38–51) (emphasis added). Thus, if one slave has such
`interference avoidance capabilities, communications with that slave may
`take place using a modified frequency hopping scheme; in another (legacy)
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`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 21. Petitioner supports
`this reasoning with testimony by its declarant, Dr. Zhi Ding, which we credit
`for purposes of this Decision. Id. (citing Ex. 1002 ¶ 65).
`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 5 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 21 n.6 (citing Ex. 1009,
`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 5, 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 5 as anticipated by Gerten.
`
`
`2. Claim 8
`Dependent claim 8 recites means for causing the sets of
`communications channels to be loaded into registers of the communications
`devices after selecting the sets of communications channels. In addressing
`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 22–23 (citing Ex. 1003, col. 2, ll. 47–52;
`col. 7, ll. 11–18). Petitioner contends that references in claim 8 to “causing
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`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 23. 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 ¶ 68.
`Accordingly, we conclude that Petitioner has demonstrated a
`reasonable likelihood of prevailing on its challenge of claim 8 as anticipated
`by Gerten.
`
`
`3. Claims 17 and 20
`Independent claim 17 and dependent claim 20 each recite a
`combination of limitations that appear in claims 5 and 8. Petitioner provides
`a chart, at pages 25–26 of the Petition, explaining where Petitioner addresses
`these limitations in its analysis of claims 5 and 8. We reviewed that chart
`and conclude that Petitioner has demonstrated a reasonable likelihood of
`prevailing on its challenge of claims 17 and 20.
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`4. Claims 6 and 18
`Each of claims 6 and 18 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 fails to explicitly disclose”
`this limitation. Pet. 26. 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. 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
`type of communications link used for such reporting, Petitioner reasons that
`“a person of ordinary skill 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. 31. Petitioner supports this
`reasoning with declaration testimony by Dr. Ding. Ex. 1002 ¶ 111.
`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
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`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. 31–32. Petitioner
`supports this reasoning with declaration testimony by Dr. Ding. Ex. 1002
`¶¶ 113, 114. We find this reasoning sufficient for purposes of this
`Decision.1
`Accordingly, we conclude that Petitioner has demonstrated a
`reasonable likelihood of prevailing on its challenge of claims 6 and 18 as
`unpatentable under 35 U.S.C. § 103(a) over Gerten and Cuffaro.
`
`
`5. Claims 7 and 19
`In addition to reciting that selecting the sets of communications
`channels is based on the performance of the communications channels,
`claims 7 and 19 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. 33–37. Petitioner identifies a
`
`1 Claims 6 and 18 additionally recite that “at each hop in the hopping
`sequence based on the frequency hopping protocol, only one
`communications channel of the first set of two or more communications
`channels is used for communications between the pair of participants.” This
`limitation is substantially a reproduction of a limitation that appears in
`underlying independent claims 5 and 17, and is addressed in the analysis of
`claim 5.
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`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 34 (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. 35 (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 7 and 19.” See id. at 36 (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
`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. Petitioner supports its alternative position
`with declaration testimony by Dr. Ding. Ex. 1002 ¶ 121.
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`We conclude that Petitioner has demonstrated a reasonable likelihood
`of prevailing on its challenge of claims 7 and 19 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. 4–18. 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.
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`Figures 2A (top) and 2B (bottom) of Gendel are reproduced below.
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`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. 39.
`
`
`1. Independent Claim 5
`In its analysis drawing a correspondence between the limitations of
`independent claim 5 and the disclosure of Gendel, Petitioner identifies each
`of Gendel’s primary and secondary systems as a “communications
`apparatus,” with the primary system acting as a “first participant” and
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`different ones of the secondary systems acting as the “second” and “third”
`“participants.” Id. at 38–39, 47, 48. In addition, Petitioner contends that it
`would have been obvious to a person having ordinary skill in the art to use
`the processor executing a suitable set of program instructions as taught by
`Haartsen to implement the spreading code control unit of Gendel in
`implementing various recited functions of the claim. Id. at 41–42, 43, 44,
`45. Petitioner reasons that the two recited “means for selecting” sets of
`communications channels at the “first” and “second” times are “based upon
`performance” of the communications channels because Gendel teaches
`replacement of segments as a result of monitoring error values. Id. at 39–42,
`43–44. In addition, because the spreading code control unit modifies the
`frequency hopping pattern by replacing or substituting a used segment to
`perform frequency hopping with a modified hopping pattern, Petitioner
`reasons that the combination of Gendel and Haartsen discloses the two
`“means for causing” the sets of communications channels to be used for
`communications between a pair of participants. Id. at 42–43, 44–45.
`Petitioner observes that Gendel discloses that each subsystem, in
`transmitting and receiving data according to a spreading code, may use a
`methodology in which a “hopping frequency may be randomly selected from
`a used segment or be a predetermined frequency from the used segment.”
`Id. at 46 (citing Ex. 1005, col. 7, ll. 18–20). Petitioner relies on testimony
`by Dr. Ding that “[i]n a hopping sequence based on a frequency hopping
`protocol, only one communications channel is used for communications
`between a first device and a second device at each hop.” Id. at 46 (citing
`Ex. 1002 ¶ 145). Petitioner reasons that Gendel discloses that only one
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`communications channel is used for communications between the primary
`and respective secondary systems. Id. at 46–47.
`As part of its analysis, Petitioner contends that communication with a
`“third participant” can occur over a default set of communications channels
`“while” communicating with the “second participant” over first and second
`sets of communications channels. Id. at 47–48. 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
`¶ 148.
`We conclude that Petitioner has established a reasonable likelihood of
`prevailing on its challenge of claim 5 as unpatentable under 35 U.S.C.
`§ 103(a) over Gendel and Haartsen.
`
`
`2. Claim 8
`In addressing the “register” limitations of dependent claim 8,
`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. 49 (citing Ex. 1005, col. 12, ll. 45–48, Fig. 6,
`step 662); Ex. 1002 ¶ 150. Petitioner acknowledges that “Gendel does not
`explicitly describe that the table is stored in a ‘register’ in each of the
`primary system . . . and the secondary system.” Pet. 50. 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]”
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`with testimony by Dr. Ding, which we credit for purposes of this Decision.
`Id. (citing Ex. 1002 ¶ 152). 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 8 as unpatentable under 35 U.S.C.
`§ 103(a) over Gendel and Haartsen.
`
`
`3. Claims 17 and 20
`Similar to its analysis of claims 17 and 20 under the Gerten-based
`grounds, Petitioner provides a chart, at pages 52–53 of its Petition,
`explaining where it addresses the various limitations of those claims in its
`analysis of claims 5 and 8. We reviewed that chart and conclude that
`Petitioner has demonstrated a reasonable likelihood of prevailing on its
`challenge of claims 17 and 20 as unpatentable under 35 U.S.C. § 103(a) over
`Gendel and Haartsen.
`
`
`4. Claims 7 and 19
`In addressing the voting limitations of claims 7 and 19, Petitioner
`contends that both the primary system of Gendel and the secondary system
`in communication with the primary system vote whether to use a channel.
`Pet. 54–55. First, Petitio