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 IPR2015-00316
`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 IPR2015-00316
`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
`
`
`
`IPR2015-00316
`Patent 7,477,624 B2
`
`partes review of claims 9–12 and 21–24 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 9–12 and 21–24 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
`channels and communicates with slave 230 using the default
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`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 9 (as amended by a Certificate of Correction dated
`March 17, 2009) is illustrative of the claims at issue:
`9. A computer-readable medium carrying instructions for
`managing the use of communications channels for a
`communications system, wherein processing of the instructions
`by one or more processors 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;
`
`the first set of two or more communications channels to
`be used for communications between a pair of participants;
`
`selecting, based upon performance of the plurality of
`communications channels at a second time that is later than the
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`first time, a second set of two or more communications
`channels from the plurality of communications channels; and
`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 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 a
`hopping sequence and is not changed based on the performance
`of the plurality of communications channels, and the computer-
`readable medium further comprising instructions, which when
`processed by the one or more processors, cause:
`
`the first participant communicating 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 9–12 and 21–24 of the ’624 patent on the
`following grounds. Pet. 2.
`Reference(s)
`
`Gerten
`Gerten and Cuffaro
`Gendel and Haartsen
`Gendel, Haartsen, and Sage
`
`Basis
`§ 102(e)
`§ 103(a)
`§ 103(a)
`§ 103(a)
`
`Claims Challenged
`9, 12, 21, and 24
`10, 11, 22, and 23
`9, 11, 12, 21, 23, and 24
`10 and 22
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`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
`IPR2015-00315. 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).
`
`
`1. “hopping sequence”
`Each of challenged claims 9, 10, 22, and 24 recites a “hopping
`sequence.” Petitioner’s declarant, Dr. Zhi Ding, attests that the phrase is “a
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`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.), 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 11 and 23. 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. 8
`(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
`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,
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`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
`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
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`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 9
` In its analysis drawing a correspondence between the limitations of
`independent claim 9 and the disclosure of Gerten, Petitioner identifies the
`piconet of Gerten as a “communications system,” noting that the central
`control system in the master mobile unit includes a computer-readable
`medium and one or more processors to cause the device to perform
`functions. Pet. 13–14 (citing Ex. 1003, col. 3, ll. 8–12, 40–48, col. 3, ll. 1–
`6). Petitioner further draws a correspondence between the recited “first
`participant” and the master mobile unit of Gerten, and identifies the slave
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`units as functioning as “second” and “third” participants. Id. at 18. In
`addition, Petitioner identifies the recited selection of communications
`channels as disclosed by Gerten’s description of modified 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, 16–17. As Petitioner observes, the
`communications channels are used for communications between an
`identified pair of participants. Id. at 16, 17.
`Independent claim 9 specifically requires that different sets of
`communications channels be used with the second and third participants:
`the computer-readable medium further comprising instructions,
`which when processed by the one or more processors, cause:
`the first participant communicating 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 device of
`Gerten performs a service discovery request to determine if each slave
`device has interference avoidance capabilities.” Id. at 19 (emphasis added)
`(citing 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
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`based on channel performance. Id. at 18–20; see id. at 18–19. Petitioner
`supports this reasoning with testimony by Dr. Ding, which we credit for
`purposes of this Decision. Id. at 19–20 (citing Ex. 1002 ¶¶ 52–54).
`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 9 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 20 n.7 (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 9, 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 9 as anticipated by Gerten.
`
`
`2. Claim 12
`Dependent claim 12 recites instructions that cause 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 20–21 (citing Ex. 1003, col. 2, ll. 47–52,
`col. 7, ll. 11–18). Petitioner contends that references in claim 12 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
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`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. at 21 (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
`¶ 58.
`
`Accordingly, we conclude that Petitioner has demonstrated a
`reasonable likelihood of prevailing on its challenge of claim 12 as
`anticipated by Gerten.
`
`
`3. Claims 21 and 24
`Independent claim 21 and dependent claim 24 each recite a
`combination of limitations that appear in claims 9 and 12. Petitioner
`provides a chart, at pages 23–24 of the Petition, explaining where Petitioner
`addresses these limitations in its analysis of claims 9 and 12. We reviewed
`that chart and conclude that Petitioner has demonstrated a reasonable
`likelihood of prevailing on its challenge of claims 21 and 24 as anticipated
`by Gerten.
`
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`4. Claims 10 and 22
`Each of dependent claims 10 and 22 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 26 (citing Ex. 1001, col. 1, ll. 13–15, col. 1,
`ll. 39–55; Ex. 1002 ¶¶ 94, 95).
`Each of claims 10 and 22 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
`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
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`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. 29. Petitioner supports this reasoning with
`declaration testimony by Dr. Ding. Ex. 1002 ¶ 100.
`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. 29–31. Petitioner
`supports this reasoning with declaration testimony by Dr. Ding. Ex. 1002
`¶¶ 101, 102. 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 10 and 22 as
`unpatentable under 35 U.S.C. § 103(a) over Gerten and Cuffaro.
`
`
`5. Claims 11 and 23
`In addition to reciting that selection of the sets of communications
`channels is based on the performance of the communications channels,
`claims 11 and 23 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
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`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. 31–36. 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 32 (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. 33 (citing Ex. 1002
`¶ 108). 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 11 and 23.” See id. at 35 (emphasis 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
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`in Cuffaro.” Id. at 36. Petitioner supports its alternative position with
`declaration testimony by Dr. Ding. Ex. 1002 ¶ 110.
`We conclude that Petitioner has demonstrated a reasonable likelihood
`of prevailing on its challenge of claims 11 and 23 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.
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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. 40–42.
`
`
`1. Independent Claim 9
`In its analysis drawing a correspondence between the limitations of
`independent claim 9 and the disclosure of Gendel, Petitioner identifies the
`combination of Gendel’s primary and secondary systems as a
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`“communications system,” with the primary system acting as the “first
`participant” and different ones of the secondary systems acting as the
`“second” and “third” “participants.” Pet. 38, 44–45. 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 40–44. As part of its analysis,
`Petitioner contends that communications with a “third communications
`device” (a second secondary system) can occur over a default set of
`communications channels “while” communicating with a second
`communications device (a first secondary system) “over the first set of two
`or more communications channels” and “while” communicating with the
`second communications device “over the second set of two or more
`communications channels.” Id. at 45–46. 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
`¶ 133.
`Petitioner acknowledges that “Gendel does not explicitly disclose that
`[its] spreading code control unit . . . includes or is embodied in the form of
`‘[a] computer-readable medium carrying instructions’ and ‘one or more
`processors’ that, by processing the instructions, cause the channel selection
`functionality.” Pet. 39. Petitioner asserts “[a] person of ordinary skill in the
`art would have immediately recognized that the channel selection
`functionality of Gendel could be implemented using instructions stored in a
`
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`computer readable medium and executed on a processor in the
`communications device.” Id. (citing Ex. 1002 ¶ 119). 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
`explicitly discloses such an implementation.” Pet. 39. 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 39 (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 9 is unpatentable under 35 U.S.C.
`§ 103(a) over Gendel and Haartsen.
`
`
`2. Claim 12
`In addressing the “register” limitations of dependent claim 12,
`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. 46–47 (citing Ex. 1005, col. 12, ll. 45–48, Fig. 6,
`step 662); see Ex. 1002 ¶ 134. Petitioner acknowledges that “Gendel does
`not explicitly describe that the table is stored in a ‘register’ in each of the
`primary system (the first participant of ‘the pair of participants’) and the
`secondary system (the second participant of ‘the pair of participants’).”
`
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`Pet. 47–48. 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. at 48 (citing Ex. 1002 ¶ 135). In addition,
`Petitioner also observes that “Haartsen discloses a similar table stored in
`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 12 as unpatentable under 35 U.S.C.
`§ 103(a) over Gendel and Haartsen.
`
`
`3. Claims 21 and 24
`Similar to its analysis of claims 21 and 24 under the Gerten-based
`grounds, Petitioner provides a chart, at pages 49–50 of its Petition,
`explaining where it addresses the various limitations of those claims in its
`analysis of claims 21 and 24. We reviewed that chart and conclude that
`Petitioner has demonstrated a reasonable likelihood of prevailing on its
`challenge of claims 21 and 24 as unpatentable under 35 U.S.C. § 103(a) over
`Gendel and Haartsen.
`
`
`4. Claims 11 and 23
`In addressing the voting limitations of claims 11 and 23, 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. 51–53. First, Petitioner contends that “Gendel’s determination by the
`
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`
`primary device that a channel is bad and should be replaced (i.e., not used) is
`a vote.” Id. at 51. This contention is consistent with our construction of a
`“vote to use the particular communications channel” as an “expression of
`preference for using the particular communications channel.”
`Second, Petitioner contends that the secondary system’s
`acknowledgment of receipt of a message from the primary system to replace
`the segment is also a “vote to use the particular communications channel.”
`Id. at 52–53. We are not persuaded by this contention. Mere
`acknowledgment of receipt of a message is not itself an expression of
`preference for using the communications channel; it is, rather, an indication
`whether the message was received. Petitioner has not shown convincingly
`that a plurality of votes are made in Gendel, and, therefore, has not
`demonstrated adequately that Gendel discloses that “the particular
`communications channel receives a specified number of votes to use the
`particular communications channel from among a plurality of votes.”
`We conclude that Petitioner has not demonstrated a reasonable
`likelihood of prevailing on its challenge of claims 11 and 23 as unpatentable
`under 35 U.S.C. § 103(a) over Gendel and Haartsen.
`
`
`5. Claims 10 and 22
`In addressing the limitations recited in claims 10 and 22, 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 r
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