UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________________
`
`QUALCOMM INC.,
`Petitioner
`
`v.
`
`BANDSPEED, INC.
`Patent Owner
`_____________________
`
`IPR2015-003161
`U.S. Patent No. 7,477,624 B2
`_____________________
`
`PATENT OWNER BANDSPEED, INC.’S MOTION FOR OBSERVATION
`RELATED TO DEPOSITION TESTIMONY OF DR. ZHI DING
`
`
`
`
`
`Mail Stop
`Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`1 IPR2015-01581 has been joined with IPR2015-00316.
`
`
`
`____________________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________________
`
`QUALCOMM INC.,
`Petitioner
`
`v.
`
`BANDSPEED, INC.
`Patent Owner
`_____________________
`
`IPR2015-003161
`U.S. Patent No. 7,477,624 B2
`_____________________
`
`PATENT OWNER BANDSPEED, INC.’S MOTION FOR OBSERVATION
`RELATED TO DEPOSITION TESTIMONY OF DR. ZHI DING
`
`
`
`
`
`Mail Stop
`Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`1 IPR2015-01581 has been joined with IPR2015-00316.
`
`
`
`
`
`
`
`Bandspeed, Inc. (“Patent Owner”) submits this Motion for Observation
`
`Related to Deposition Testimony of Dr. Zhi Ding, identifying specific portions of
`
`Dr. Ding’s April 15, 2016 deposition transcript (Exhibit 2006) for the Patent Trial
`
`and Appeal Board’s consideration. Dr. Ding is a reply declarant of Petitioner
`
`Qualcomm Inc. Patent Owner submits the following observations:
`
`
`
`Observation No. 1
`
`
`
`In Exhibit 2006, 82:18-21 and 84:17-85:10, Dr. Ding testified that he did not
`
`see any examples in the ‘624 Patent in which votes to use communications
`
`channels come from non-participants and that Sage and Cuffaro also only show the
`
`communications terminals being used as participants. This testimony is relevant to
`
`Dr. Melendez’s Declaration (Exhibit 2001 at 10-12) and his statements regarding
`
`the proper claim construction for “vote to use the particular communications
`
`channel” in view of the ‘624 Patent specification and Dr. Ding’s testimony in
`
`paragraphs 6 and 7 of his supplemental declaration regarding the proper claim
`
`construction for that same limitation.
`
`
`
`Observation No. 2
`
`
`
`In Exhibit 2006, 85:24-86:16 and 88:13-89:22, Dr. Ding testified that a
`
`measurement of signal strength is not a vote but rather “a measurement regarding
`
`
`
`
`
`
`
`the quality.” When presented with claim 2 of the ‘624 Patent that includes a
`
`limitation related to performance data and claim 3 of the ‘624 Patent that includes
`
`a limitation related to voting and asked whether these limitations make it clear that
`
`performance data is being called one thing and voting is being called something
`
`else in the ‘624 Patent, Dr. Ding responded, “[t]o the extent that if one construed
`
`both as being binary, that would be correct.” This testimony is relevant to the
`
`proper claim construction of “vote to use the particular communications channel”
`
`in view of the ‘624 Patent specification and Dr. Ding’s testimony in paragraphs 6
`
`and 7 of his supplemental declaration regarding the proper claim construction for
`
`that same limitation.
`
`
`
`Observation No. 3
`
`
`
`In Exhibit 2006, 93:25-94:18 and 98:7-17, Dr. Ding testified, “I believe your
`
`question is whether I agree that the device being configured to transmit using
`
`default channels with one device while at the same time communicating using
`
`adaptive frequency hopping with another device needs to have its selection kernel
`
`preconfigured…[m]y answer is yes, that it would be correct.” When asked if he
`
`agreed whether Gerten required two selection kernel components, Dr. Ding further
`
`testified, “I agree.” This testimony is relevant to paragraphs 8-13 of Dr. Ding’s
`
`supplemental declaration regarding the alleged disclosure of Gerten of 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
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`set of two or more communications channels” limitation of the ‘624 Patent.
`
`
`
`Observation No. 4
`
`
`
`In Exhibit 2006, 101:10-102:1, Dr. Ding testified with respect to Fig. 1 of
`
`Gerten, “[i]n this figure at the time of the invention, …these two piconets would be
`
`using…the same two default channel sets.” This testimony is relevant to Dr.
`
`Ding’s assertions in paragraph 12 of his supplemental declaration regarding the
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`alleged ability of Gerten to permit a mobile unit to be configured to utilize adaptive
`
`frequency hopping in conjunction with Figure 1 of Gerten.
`
`
`
`Observation No. 5
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`
`
`In Exhibit 2006, 113:4-17, Dr. Ding testified that with the ‘624 Patent, it
`
`would be permissible to have three channels have the same specified number of
`
`votes and they could all be used whereas in Cuffaro you would not want to sub out
`
`multiple frequencies with a new single frequency. This testimony is relevant to
`
`paragraph 14 of Dr. Ding’s supplemental declaration wherein he discusses
`
`Cuffaro’s alleged disclosure of the limitation of the ‘624 Patent requiring that a
`
`
`
`
`
`
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`specified number of votes be received to select a channel for use.
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`
`
`Observation No. 6
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`
`
`In Exhibit 2006, 126:8-11, 127:17-128:12, 130:22-133:14 and 135:4-136:7,
`
`Dr. Ding testified that “there is no discussions as given in the specification of
`
`Gendel” regarding Block 126 of FIG. 1 and that the only disclosure regarding
`
`Block 126 of Gendel is in FIG. 1 which states “Segment management subsystem
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`(segment substitution mechanism not implemented).” This testimony is relevant to
`
`paragraphs 19-20 of Dr. Ding’s supplemental declaration and his assertion that
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`Block 126 of Gendel allegedly discloses support of legacy communications
`
`systems.
`
`
`
`Observation No. 7
`
`
`
`In Exhibit 2006, 136:14-137:19, Dr. Ding testified that he did not address in
`
`his supplemental declaration the “performance data over one of the channels”
`
`limitation in respect to Gerten and Cuffaro discussed in Dr. Melendez’s declaration
`
`(Exhibit 2001 at 23-26), meaning Dr. Melendez’s arguments related to this
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`limitation went unrebutted by Dr. Ding.
`
`
`
`Observation No. 8
`
`
`
`
`
`
`
`
`
`In Exhibit 2006, 137:20-138:12, Dr. Ding testified that he did not address in
`
`his supplemental declaration the “selecting, based upon performance of the
`
`plurality of communications channels at a second time that is later than the first
`
`time, a second set of two or more communications channels from the plurality of
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`communications channels” limitation in respect to Gendel and Haartsen discussed
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`in Dr. Melendez’s declaration (Exhibit 2001 at 30-32), meaning Dr. Melendez’s
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`arguments related to this limitation went unrebutted by Dr. Ding.
`
`
`
`
`
`
`
`By: /s/ Gregory S. Donahue
`DATED: April 21, 2016
` Gregory S. Donahue (Reg. No. 47,531)
` DiNovo Price Ellwanger & Hardy LLP
` 7000 North MoPac Expressway
` Suite 350
`
` Austin, TX 78731
` Telephone: (512) 539-2625
` Facsimile: (512) 539-2627
`
`
`Attorney for Patent Owner Bandspeed, Inc.
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies service pursuant to 37 C.F.R. § 42.6(e) of a copy
`
`of this Patent Owner Bandspeed, Inc.’s Motion for Observation Related to
`
`Deposition Testimony of Dr. Zhi Ding by electronic mail on April 21, 2016 on the
`
`counsel of record for Qualcomm:
`
`NORTON ROSE FULBRIGHT US LLP
`2200 Ross Avenue, Suite 3600
`Dallas, Texas 75201-7932
`nate.rees@nortonrosefulbright.com
`richard.zembek@nortonrosefulbright.com
`eric.hall@nortonrosefulbright.com
`ross.viguet@nortonrosefulbright.com
`daniel.leventhal@nortonrosefulbright.com
`
`
`
`
`
`DATED: April 21, 2016
`
`
`
`
`
`
`
`By: /s/ Gregory S. Donahue
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