`Filed: August 24, 2016
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________
`
`ARRIS GROUP, INC., and COX COMMUNICATIONS, INC.,
`Petitioners
`
`v.
`
`C-CATION TECHNOLOGIES, LLC,
`Patent Owner
`____________________
`
`CASE IPR2015-006351
`Patent 5,563,883
`____________________
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`
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`1 Cox Communications, Inc., who filed a Petition in IPR2015-01796, has been
`joined as a petitioner in this proceeding.
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`Case IPR2015-00635
`U.S. Patent No. 5,563,883
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`Paper No. 56
`Filed: August 24, 2016
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`Patent Owner C-Cation Technologies, LLC (“C-Cation”) hereby gives
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`notice to the Director of the Patent and Trademark Office, pursuant to 35 U.S.C.
`
`§§ 141(c) and 142, and 37 C.F.R. §§ 90.2(a) and 90.3(a), that C-Cation hereby
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`appeals to the United States Court of Appeals for the Federal Circuit from the
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`Final Written Decision of the Patent Trial and Appeal Board (“Board”), entered
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`on July 28, 2016 (Paper No. 55) (“Decision”), and from all the Board’s
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`underlying orders, decisions, rulings, and opinions that are adverse to C-Cation.
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`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), C-Cation anticipates that
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`the issues on appeal may include, but are not limited to: (1) whether the Board
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`erred in its claim constructions for U.S. Patent 5,563,883 (“the ’883 patent”);
`
`(2) whether the Board erred in holding claims 1, 3 and 4 of the ’883 patent
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`unpatentable over the prior art; and (3) any other finding or determination
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`supporting or related to the foregoing issues, as well as other issues decided
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`adversely to C-Cation in any orders, decisions, rulings or opinions. A copy of
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`the Decision is attached hereto as Appendix A.
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`This appeal is being timely filed within sixty-three (63) days of the Final
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`Written Decision pursuant to 37 C.F.R. § 90.3(a)(1).
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`Simultaneously with this submission, a copy of this Notice of Appeal is
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`being filed with Board and with the Clerk of the Court for the United States
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`Paper No. 56
`Filed: August 24, 2016
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`Court of Appeals for the Federal Circuit, including the requisite docketing fee
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`of $500.
`
`Date: August 24, 2016
`
`
`
`Respectfully submitted,
`KENYON & KENYON LLP
`
`/Walter E. Hanley, Jr./
`
`Walter E. Hanley, Jr. (Reg. No. 28,720)
`whanley@kenyon.com
`Lead Counsel for Patent Owner
`
`Sheila Mortazavi (Reg. No. 43,343)
`smortazavi@kenyon.com
`Backup Counsel for Patent Owner
`
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004-1007
`Tel.: (212) 425-7200
`Fax: (212) 425-5288
`
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`Paper No. 56
`Filed: August 24, 2016
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`Appendix A
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`
`
`Trials@uspto.gov
`571-272-7822
`
`Paper 55
`Entered: July 28, 2016
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARRIS GROUP, INC. and COX COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`C-CATION TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-006351
`Patent 5,563,883
`____________
`
`
`Before BARBARA A. BENOIT, LYNNE E. PETTIGREW, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`1 Cox Communications, Inc., who filed a Petition in IPR2015-01796, has
`been joined as a petitioner in this proceeding.
`
`
`
`IPR2015-00635
`Patent 5,563,883
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`I. INTRODUCTION
`In this inter partes review, instituted pursuant to 35 U.S.C. § 314,
`ARRIS Group, Inc. and Cox Communications, Inc. challenge the
`patentability of certain claims of U.S. Patent No. 5,563,883 (Ex. 1001, “the
`’883 patent”), owned by C-Cation Technologies, LLC (“Patent Owner”).
`We have jurisdiction under 35 U.S.C. § 6(c). This Final Written Decision is
`entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73. For the
`reasons discussed below, Petitioner has shown by a preponderance of the
`evidence that claims 1, 3, and 4 of the ’883 patent are unpatentable.
`
`A. Procedural History
`ARRIS Group, Inc. filed a Petition for inter partes review of claims 1,
`3, and 4 of the ’883 patent. Paper 2 (“Pet.”). Patent Owner filed a
`Preliminary Response in both unredacted (confidential) form (Paper 16) and
`redacted form (Paper 18), along with a Motion to Seal its Preliminary
`Response and Certain Associated Exhibits (Paper 17). On July 31, 2015, we
`instituted an inter partes review of claims 1, 3, and 4 of the ’883 patent on
`asserted grounds of unpatentability and granted Patent Owner’s Motion to
`Seal. Paper 19 (“Institution Decision” or “Dec.”).
`Subsequent to institution, Cox Communications, Inc. filed a Petition
`and a Motion for Joinder with the instant proceeding. Cox Commc’ns, Inc.
`v. C-Cation Techs., LLC, Case IPR2015-01796, Papers 1, 3. We instituted
`an inter partes review and granted the Motion, joining Cox
`Communications, Inc. with ARRIS Group, Inc. (collectively, “Petitioner”) in
`this inter partes review. Paper 26.
`Patent Owner filed a Patent Owner Response to the Petition in both
`unredacted (confidential) form (Paper 28, “PO Resp.”) and redacted form
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`(Paper 30), along with a Motion to Seal the Patent Owner Response and
`Exhibit 2028 (Paper 29). Petitioner filed a Reply to the Patent Owner
`Response. Paper 38 (“Pet. Reply”).
`Petitioner filed a Motion to Exclude Exhibit 2028 (Paper 41), Patent
`Owner filed an Opposition to the Motion to Exclude (Paper 47), and
`Petitioner filed a Reply (Paper 48). Patent Owner filed a Motion to Exclude
`Exhibits 1005–07, 1014, 1015, 1018, 1019, and 1026–34 (Paper 43),
`Petitioner filed an Opposition to the Motion to Exclude (Paper 46), and
`Patent Owner filed a Reply (Paper 49). Patent Owner also filed objections
`to Exhibits 1035–1038. Paper 50.
`An oral hearing was held on April 26, 2016. A transcript of the
`hearing has been entered into the record. Paper 54 (“Tr.”).
`
`B. Related Matters
`The parties indicate that Patent Owner has asserted the ’883 patent
`against Petitioner ARRIS Group, Inc. and other defendants in C-Cation
`Technologies, LLC v. Time Warner Cable Inc., No. 2:14-cv-00059 (E.D.
`Tex.), and against Petitioner Cox Communications, Inc. and other
`defendants in C-Cation Technologies, LLC v. Atlantic Broadband Group
`LLC, No. 1:15-cv-00295 (D. Del.). Pet. 2; Paper 40, 1.
`The ’883 patent has been the subject of other petitions for inter partes
`review. In Cisco Systems, Inc. v. C-Cation Technologies, LLC, Case
`IPR2014-00454 (PTAB Aug. 29, 2014) (Paper 12), and Unified Patents Inc.
`v. C-Cation Technologies, LLC, Case IPR2015-01045 (PTAB Oct. 7, 2015)
`(Paper 15), the Board denied institution of inter partes review. In ARRIS
`Group, Inc. v. C-Cation Technologies, LLC, Case IPR2014-00746 (PTAB
`Nov. 24, 2014) (Paper 22), the Board instituted inter partes review of
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`claim 14 of the ’883 patent, and subsequently granted Patent Owner’s
`request for adverse judgment (Paper 28).
`
`C. The ’883 Patent
`The ’883 patent “pertains generally to methods and apparatus for
`facilitating the two-way multi-media communication based on a shared
`transmission media such as coaxial cable-TV network, and more specifically
`to methods and apparatus for signalling channel management and protocol.”
`Ex. 1001, 1:7–12.
`Figure 1 of the ’883 patent is reproduced below:
`
`
`Figure 1 illustrates a multiple access communication system architecture
`comprising central controller 10, shared transmission media 12, and a
`plurality of remote terminals 14. Id. at 5:8–11. Central controller 10
`interfaces with wide area networks 18 via a pool of communication
`channels 16. Id. at 5:12–14. A pool of communication channels 20—
`including forward signalling channels 22, forward traffic bearer channels 24,
`reverse signalling channels 26, and reverse traffic bearer channels 28—
`support communications between central controller 10 and remote
`terminals 14. Id. at 5:15–21.
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`The ’883 patent describes a method for dynamic signalling channel
`allocation, assignment of remote terminals to signalling channels, and
`terminal reassignment. Id. at 2:38–51. Figure 6 of the ’883 patent, as
`annotated by Petitioner to include reference numbers (see Ex. 1023), is
`reproduced below.
`
`
`Figure 6 is a logic flow diagram illustrating a process for terminal
`registration, channel allocation, terminal assignment, and terminal
`reassignment. Id. at 8:16–18. In a preferred embodiment, the central
`controller receives a registration message from a remote terminal and, if the
`remote terminal is newly registering and authorized, checks for available
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`signalling channels for the remote terminal. Id. at 8:18–23. Some factors
`for determining signalling channel availability include “the number of
`remote terminals using the signalling data channel, the traffic requirements,
`past collision count, channel error status, and bandwidth of the signalling
`data channel.” Id. at 8:35–39. If there are available signalling data channels
`in the forward and reverse directions, either from among signalling data
`channels already in use or newly allocated signalling data channels from the
`pool, the registering remote terminal will be assigned to those channels.
`Id. at 8:41–50. The central controller will complete the registration process
`by commanding the remote terminal to tune to the assigned channels.
`Id. at 8:50–53. “At any time, the central controller can initiate the terminal
`re-assignment process if deemed appropriate for the varying traffic demand
`or other system dynamics.” Id. at 8:32–34.
`
`D. Illustrative Claim
`Independent claim 1 of the ’883 patent is illustrative of the subject
`matter of the challenged claims:
`1. In a multiple access communication system
`comprising a central controller, a shared transmission means for
`signalling data and user information, and a plurality of remote
`terminals, a method of allocating signalling data channels
`between said central controller and said plurality of remote
`terminals from a plurality of communication channels and of
`assigning remote terminals comprising the steps of:
`(a) establishing communications between said central
`controller and said plurality of remote terminals via a plurality
`of signalling data channels, each of said remote terminals being
`initially assigned to a pair of predetermined signalling data
`channels;
`(b) monitoring the status of a plurality of the signalling
`data channels in use between said central controller and said
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`plurality of remote terminals for the usability of said signalling
`data channels;
`(c) determining whether one of said plurality of remote
`terminals needs to be reassigned to a different signalling data
`channel other than said predetermined signalling data channel;
`(d) determining whether a different and suitable
`signalling data channel is available other than said
`predetermined channel; and
`(e) reassigning by said central controller said remote
`terminal to a different and suitable signalling data channel for
`communication henceforward.
`
`Ex. 1001, 14:27–53.
`
`E. Asserted Grounds of Unpatentability
`We instituted an inter partes review of claims 1, 3, and 4 on the
`following grounds of unpatentability (Dec. 23):
`
`References
`
`Basis
`
`MPT 1343,2 MPT 1347,3 and
`MPT 13274
`MPT 1343, MPT 1347, MPT 1327,
`Zdunek,5 and Dufresne6
`
`
`
`Challenged
`Claim(s)
`1 and 4
`
`35 U.S.C. § 103(a)
`
`35 U.S.C. § 103(a)
`
`3
`
`
`2 MPT 1343 PERFORMANCE SPECIFICATION: SYSTEM INTERFACE
`SPECIFICATION FOR RADIO UNITS TO BE USED WITH COMMERCIAL TRUNKED
`NETWORKS OPERATING IN BAND III SUB-BANDS 1 AND 2 (1991) (Ex. 1006,
`“MPT 1343”).
`3 MPT 1347 RADIO INTERFACE SPECIFICATION FOR COMMERCIAL TRUNKED
`NETWORKS OPERATING IN BAND III, SUB-BANDS 1 AND 2 (1991) (Ex. 1007,
`“MPT 1347”).
`4 MPT 1327 A SIGNALLING STANDARD FOR TRUNKED PRIVATE LAND MOBILE
`RADIO SYSTEMS (1991) (Ex. 1005, “MPT 1327”).
`5 U.S. Patent No. 4,870,408, issued Sept. 26, 1989 (Ex. 1008, “Zdunek”).
`6 U.S. Patent No. 4,920,533, issued Apr. 24, 1990 (Ex. 1009, “Dufresne”).
`
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`II. DISCUSSION
`A. Claim Construction
`The ’883 patent has expired. Pet. 6; PO Resp. 19; Dec. 13. For
`claims of an expired patent, the Board’s claim construction analysis is
`similar to that of a district court. See In re Rambus, Inc., 694 F.3d 42, 46
`(Fed. Cir. 2012). In this context, claim terms “are generally given their
`ordinary and customary meaning” as understood by a person of ordinary
`skill in the art in question at the time of the invention. Phillips v. AWH
`Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). “In determining
`the meaning of the disputed claim limitation, we look principally to the
`intrinsic evidence of record, examining the claim language itself, the written
`description, and the prosecution history, if in evidence.” DePuy Spine, Inc.
`v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006)
`(citing Phillips, 415 F.3d at 1312–17). Extrinsic evidence is “less significant
`than the intrinsic record in determining the legally operative meaning of
`claim language.” Phillips, 415 F.3d at 1317 (internal quotation marks
`omitted).
`In our Institution Decision, we determined that no claim terms
`required express construction for purposes of deciding whether to institute
`trial. Dec. 13. Petitioner asserts in the Petition that all claim terms should
`have their ordinary and customary meaning. Pet. 6. Patent Owner submits
`that no claim terms require express construction, but complains that the
`Petition fails to apply the ordinary and customary meaning of the claims.
`PO Resp. 20. In its Reply, Petitioner contends that Patent Owner, despite
`urging that no express construction is necessary, nevertheless engages in
`claim construction by reading limitations into the claim and resorting to
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`extrinsic evidence to rewrite the claims. Pet. Reply 6. To the extent it is
`necessary for us to construe claim terms in this decision, we do so below in
`the context of analyzing whether the prior art renders the claims
`unpatentable.
`
`B. Principles of Law
`To prevail in challenging Patent Owner’s claims, Petitioner must
`demonstrate by a preponderance of the evidence that the claims are
`unpatentable. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). A claim is
`unpatentable under 35 U.S.C. § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time of the invention to a person
`having ordinary skill in the art. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
`406 (2007). The question of obviousness is resolved on the basis of
`underlying factual determinations including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of ordinary skill in the art; and (4) objective evidence
`of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`The level of ordinary skill in the art is reflected by the prior art of record.
`See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001);
`In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995).
`
`C. Asserted Obviousness Grounds Based on the MPT Specifications
`Petitioner contends that claims 1 and 4 are unpatentable under
`35 U.S.C. § 103(a) as obvious over MPT 1343, MPT 1347, and MPT 1327
`(collectively, “the MPT Specifications”). Pet. 19–51. Petitioner also
`contends that claim 3 is unpatentable under 35 U.S.C. § 103(a) as obvious
`over the MPT Specifications, as applied to claim 1, and further in view of
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`Zdunek and Dufresne. Id. at 51–60. In support of these asserted grounds of
`unpatentability, Petitioner explains how the references teach all of the
`limitations of the challenged claims and provides a rationale for combining
`the teachings of the MPT Specifications with each other and also with
`Zdunek and Dufresne. Id. at 17–19, 54, 56–57. Petitioner also relies on the
`testimony of Mr. Stuart Lipoff. Ex. 1002 ¶¶ 85–211.
`In response, Patent Owner argues that the MPT Specifications are not
`“printed publication[s]” under 35 U.S.C. § 102(b) and therefore not eligible
`as prior art in an inter partes review under 35 U.S.C. § 311(b). PO
`Resp. 23–26. Patent Owner also argues that the MPT Specifications fail to
`disclose certain limitations of claim 1, the only independent claim at issue in
`this proceeding. Id. at 34–51. For support, Patent Owner relies on the
`testimony of Dr. Chris Heegard. Ex. 2023 ¶¶ 91–127.
`Having reviewed the parties’ arguments and supporting evidence, we
`determine that Petitioner has shown by a preponderance of the evidence that
`(i) the MPT Specifications are printed publications within the meaning of
`35 U.S.C. § 102(b), (ii) claims 1 and 4 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over the MPT Specifications, and (iii) claim 3 is
`unpatentable under § 103(a) as obvious over the MPT Specifications,
`Zdunek, and Dufresne.
`
`1. Summary of the MPT Specifications
`The MPT Specifications (MPT 1343, MPT 1347, and MPT 1327),
`documents published by the United Kingdom Department of Trade and
`Industry, Radiocommunications Agency, provide standards for
`communications in trunked radio networks. See Ex. 1005, 1 (cover), 4
`(Foreword); Ex. 1006, 1 (cover), 4 (Foreword); Ex. 1007, 1 (cover), 5
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`(Foreword). The MPT Specifications define interrelated aspects of a trunked
`radio system, and the three documents reference one another explicitly. See,
`e.g., Ex. 1006 § 1.1 (“MPT 1343 is designed to be read in association with
`MPT 1327.”); id. § 2 (MPT 1343 referring to MPT 1327 and MPT 1347 as
`“associated documents”); Ex. 1005, 4 (MPT 1327 Foreword referring to
`MPT 1343 and MPT 1347); Ex. 1007, 5 (MPT 1347 Foreword stating that
`“[a] companion specification, MPT 1343, contains the requirement to be met
`by radio units to be used with these networks”).
`MPT 1343 provides definitions of various terms used in the MPT
`Specifications. Ex. 1006 § 3.1. For example, a “radio unit” is “[a] mobile or
`other user station contacting a system by normal land mobile radio in
`accordance with the specification.” Id. A “trunking system controller,” or
`“TSC,” is defined as “[t]he central control intelligence necessary to enable
`the trunking system to function according to MPT 1327.” Id. A “control
`channel” is defined as “[a] forward channel and return channel being used
`for the transmission of messages conforming to MPT 1327 with the primary
`purpose of enabling the [TSC] to control radio units.” Id.
`Together, the MPT Specifications describe processes for establishing
`and maintaining communications in a standards-compliant MPT-based
`network. The following figure from the Petition illustrates how certain
`sections of the MPT Specifications interrelate to one another to define
`specific system use cases:
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`Flowchart illustrating functionality defined by
`MPT Specifications (Pet. 10)
`
`When a radio unit in an MPT-compliant system is switched on or is
`initially selecting a network for connection, the radio unit attempts to
`“acquire a control channel emanated by the selected network.” Ex. 1006
`§ 9.3.3.1. Depending on various circumstances, such as the way the radio
`unit is configured and the information retained in its memory, the radio unit
`executes one or more control channel hunting procedures to locate an
`“appropriate control channel.” Id. For instance, when a radio unit is
`switched on and has valid registration information stored in memory from a
`prior use on a network, the radio unit executes a “single channel hunt
`sequence” and tunes to the control channel indicated in the previous record.
`Id. § 9.3.3.2.2. The radio then attempts to confirm the control channel by
`testing the channel in accordance with MPT 1343 § 9.3.4 before any
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`transmissions on the control channel are allowed. Id. § 9.3.3.2.2. For
`example, during control channel confirmation, the radio unit compares the
`LAB sub-field of the control channel’s system identification code (indicating
`the category of radio units allowed on that control channel) with the radio
`unit’s own categorization stored in its read only memory. Id. § 9.3.4.2.5.
`The radio unit also monitors the codeword error rate of the control channel
`and compares it against threshold requirements. Id. § 9.3.4.3. If the error
`check fails, the radio unit returns to the control channel hunting procedures.
`Id. § 9.4.1. If the testing succeeds, the hunt sequence is considered complete
`and the control channel is confirmed. Id. § 9.3.4.4.
`Once the control channel is confirmed, the radio determines whether it
`is required to register before it is able to transmit freely. Id. § 10.2.3. The
`radio unit makes this determination based on the current system mode as
`well as on data retained in memory and broadcast on control channels. Id.
`If the radio unit determines registration is not required, the radio is free to
`initiate calls, and normal operation proceeds. Id. If registration is required,
`however, the radio unit checks to see if it holds a successful registration. Id.
`If it does not hold a successful registration record, the radio unit executes the
`registration procedures of MPT 1343 § 10.2.4. Id. The TSC accepts, denies,
`or fails the registration attempt. Id. § 10.2.4; Ex. 1005 § 8.2.1.2. If
`registration is denied or failed, the radio unit defaults back to the control
`channel hunting procedures. Ex. 1006 §§ 10.2.4.1.2, 10.2.4.1.3. If
`registration is accepted, the radio unit enters normal operation on the
`network and is free to transmit. Id. § 10.2.3. During normal operation, a
`radio unit monitors its control channel for a variety of conditions to
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`determine whether it must leave that control channel and return to control
`channel hunting procedures. Id. § 9.4.1.
`In the event of network failure, the network may implement a fall-
`back procedure to provide reduced network capability until normal function
`is restored. Id. § 13. When fall-back operation is signaled, each radio unit
`relapses to a pre-programmed channel. Id. § 13.1. Modified procedures and
`limited call procedures are utilized while in fall-back mode. Id. § 13.4. A
`radio unit will exit from fall-back mode and enter the control channel
`acquisition procedures upon receiving a message from the network signaling
`exit from fall-back operation or a user initiating selection of a different
`network. Id. § 13.5.
`
`2. The MPT Specifications are Printed Publications
`The parties dispute whether the MPT Specifications qualify as prior
`art “printed publications” under 35 U.S.C. §§ 102(b) and 311(b). Pet. 16–
`17; PO Resp. 23–26; Pet. Reply 3–5. The determination whether a
`document is a “printed publication” involves a case-by-case inquiry into the
`facts and circumstances surrounding its disclosure to members of the public.
`In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). The key inquiry is
`whether the reference was made “sufficiently accessible to the public
`interested in the art” before the critical date. In re Cronyn, 890 F.2d 1158,
`1160 (Fed. Cir. 1989). “A given reference is ‘publicly accessible’ upon a
`satisfactory showing that such document has been disseminated or otherwise
`made available to the extent that persons interested and ordinarily skilled in
`the subject matter or art[,] exercising reasonable diligence, can locate it.”
`Suffolk Techs., LLC v. AOL Inc., 752 F.3d 1358, 1364 (Fed. Cir. 2014)
`(quoting Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378 (Fed.
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`Cir. 2006)). “[O]nce accessibility is shown, it is unnecessary to show that
`anyone actually inspected the reference.” In re Lister, 583 F.3d 1307, 1314
`(Fed. Cir. 2009).
`The MPT Specifications cited in the Petition were published in 1991.
`The version of MPT 1327 relied on in the Petition indicates on its cover
`page that the document was first published in January 1988 and reprinted
`and revised in November 1991. Ex. 1005, 1. Similarly, the cover pages of
`the versions of MPT 1343 and MPT 1347 cited in the Petition indicate they
`were first published in January 1988 and August 1988, respectively, and
`revised and reprinted in September 1991. Ex. 1006, 1; Ex. 1007, 1. Each
`document also bears a UK copyright notice showing the same publication
`dates as the cover pages. Ex. 1005, 3; Ex. 1006, 3; Ex. 1007, 3.
`Petitioner contends that the MPT Specifications were publicly
`accessible well before July 18, 1993, the § 102(b) critical date of the
`’883 patent. Pet. 16–17. In support of its position, Petitioner provides the
`1991–92 Annual Report of the Radiocommunications Agency (“RA”), the
`UK agency that published the MPT Specifications. Ex. 1010. According to
`the Annual Report, the RA published eleven new or revised MPT standards,
`including MPT 1327, MPT 1343, and MPT 1347, between April 1, 1991,
`and March 31, 1992. Id. at 24, 35. The specific publication dates set forth
`in the Report accord with the dates on the cover pages of the MPT
`Specifications relied on by Petitioner. Id. at 35. Moreover, the Report states
`that the MPT standards “continue to be available free of charge from [the
`RA’s] Library.” Id. at 24. The Report also provides a mailing address and
`telephone number for the RA’s Information and Library Service to allow
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`requests for free copies of various publications, including the MPT
`Specifications. Id. at 33.
`Patent Owner contends the MPT Specifications were not sufficiently
`accessible to the public as of the critical date. PO Resp. 24. According to
`Patent Owner, Petitioner has provided no evidence that the MPT
`Specifications were ever disseminated to anyone. Id. But proof of actual
`dissemination or viewing of a reference is not required in order to establish
`public accessibility. See Lister, 583 F.3d at 1314.
`Patent Owner also asserts that Petitioner has failed to provide
`evidence of the availability of the MPT Specifications to individuals other
`than those who already knew of their existence, or how interested persons of
`ordinary skill could have located the MPT Specifications or the Annual
`Report. PO Resp. 24. We are not persuaded by Patent Owner’s argument.
`Rather, we agree with Petitioner that the record is replete with evidence
`showing those working in the field were aware of the RA’s development of
`the MPT standards and how to obtain copies of them. See Pet. Reply 4–5.
`For example, a PCT application published in 1993 identifies MPT 1327,
`MPT 1343, and MPT 1347 as describing a “trunking technique” for mobile
`radio systems. Ex. 1018, 2. Another PCT application published in 1993
`refers to MPT 1327 and MPT 1343 as “de facto standards in Europe for
`private mobile radio networks.” Ex. 1019, 2.
`Further, as Petitioner points out, the MPT Specifications were cited in
`United States patents and a published EPO application, and mentioned in
`books as well. See Ex. 1026 (listing MPT 1327 among the Other
`Publications on the face of the patent); Ex. 1027, 2:47–54 (citing
`MPT 1327); Ex. 1028, 4:36–42 (citing MPT 1327); Ex. 1029, 3:9–27
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`(discussing MPT 1327); Ex. 1030, 297, 300 (discussing MPT
`Specifications); Ex. 1031 (mentioning MPT 1327 and MPT 1343).
`Although these references either refer to the 1988 version of the MPT
`Specifications, or do not specifically identify the 1991 version, they
`nevertheless support Petitioner’s assertion that persons of ordinary skill in
`the art were aware of the RA’s work in publishing and maintaining the MPT
`standards and knew how to obtain them. An order from the Federal
`Communications Commission explaining comments from Motorola,
`Ericsson, and Philips, among others, regarding the suggested use of
`MPT 1327 in the United States further supports Petitioner’s position.
`Ex. 1032, 3876.
`We also are not persuaded by Patent Owner’s contention that the
`Board in other cases has found similar evidence insufficient to establish
`public accessibility. See PO Resp. 25–26. Unlike the asserted reference in
`Samsung Electronics Co. v. Rembrandt Wireless Technologies, LP, Case
`IPR2014-00514, slip op. at 7–9 (PTAB Sept. 9, 2014) (Paper 18), the MPT
`Specifications are not draft standards, and there is no evidence that the MPT
`Specifications, available for free from the RA’s library, were password
`protected. The circumstances here are also unlike those in Groupon Inc. v.
`Blue Calypso, LLC, Case CBM2013-00033, slip op. at 25–30 (PTAB
`Dec. 17, 2014) (Paper 51), aff’d in relevant part, 815 F.3d 1331, 1349–51
`(Fed. Cir. 2016), which involved an undated, undistributed university
`departmental technical report mentioned publicly on a professor’s list of
`publications. In contrast, the evidence in the instant proceeding establishes
`that ordinarily skilled artisans working in the field knew the RA had set
`standards regarding trunked radio and made them freely available.
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`For the foregoing reasons, we determine Petitioner has demonstrated
`by a preponderance of the evidence that the MPT Specifications were
`publicly accessible as of the critical date. Therefore, the MPT Specifications
`qualify as prior art printed publications within the meaning 35 U.S.C.
`§§ 102(b) and 311(b).
`
`3. Obviousness of Claim 1
`As an initial matter, we adopt Petitioner’s proposed level of ordinary
`skill in the art as a person with an undergraduate degree in electrical
`engineering, or an equivalent education experience, and three or more years
`working in a relevant field employing digital communications technology to
`deliver telecommunication services, or alternatively a relevant field
`involving the manufacture of telecommunication products. See Pet. 9 (citing
`Ex. 1002 ¶ 31). Patent Owner’s proposed level of ordinary skill in the art,
`see Ex. 2023 ¶ 25, is, according to Patent Owner’s expert, “essentially the
`same” as Petitioner’s proposal, id. ¶ 27.
`We also agree with Petitioner that a person of ordinary skill in the art
`at the time of the alleged invention of the ’883 patent would have understood
`that the MPT Specifications define portions of an interrelated trunked radio
`system, such that their teachings naturally would have been combined to
`form an MPT-compliant network. See Pet. 17. The three documents relied
`on by Petitioner—MPT 1327, MPT 1343, and MPT 1347—explicitly
`reference one another. See, e.g., Ex. 1006 §§ 1.1, 2; Ex. 1005, 4 (Foreword);
`Ex. 1007, 5 (Foreword). In addition, those skilled in the art before the
`critical date of the ’883 patent referred to MPT 1327, MPT 1343, and
`MPT 1347 as “associated documents.” Ex. 1018, 2. Patent Owner does not
`challenge Petitioner’s assertion that a person of ordinary skill in the art
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`would have been motivated to combine the teachings of the MPT
`Specifications. Based on our review of the record, we agree with and adopt
`the rationale presented in the Petition for combining the MPT Specifications
`in the manner asserted. See Pet. 17–18; Ex. 1002 ¶¶ 170–72.
`We now turn to Petitioner’s contentions regarding how the MPT
`Specifications disclose all of the limitations of claim 1. Petitioner relies on
`two separate modes of operation described in the MPT Specifications to
`demonstrate that the MPT Specifications render the challenged claims
`obvious. See Pet. 24. The first is the single channel hunt sequence followed
`by normal operation on a control channel, which Petitioner contends
`describes all the limitations of claim 1. Id. at 26–29, 32–33, 35–36, 38–41,
`43–45. Patent Owner argues the Petition fails to show that this process
`includes steps (c) and (e) of claim 1. PO Resp. 34–48. As will be exp