Trials@uspto.gov
`571.272.7822
`
`
`
`
`
`
`
`Paper 10
`Filed: January 30, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
` SAMSUNG ELECTRONICS CO., LTD;
`SAMSUNG ELECTRONICS AMERICA, INC.;
`SAMSUNG TELECOMMUNICATIONS AMERICA, LLC;
`Petitioner,
`
`v.
`
` AFFINITY LABS OF TEXAS, LLC,
`Patent Owner.
`____________
`
`Case IPR2014-01182
`Patent 8,532,641 B2
`____________
`
`
`
`
`
`
`
`Before KEVIN F. TURNER, LYNNE E. PETTIGREW, and
`JON B. TORNQUIST, Administrative Patent Judges.
`
`TORNQUIST, Administrative Patent Judge.
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`Samsung Ex. 1422 p. 1
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`
`
`I. INTRODUCTION
`
`
`
`Samsung Electronics Co., Ltd., Samsung Electronics America, Inc.,
`
`and Samsung Telecommunications America, LLC, (collectively,
`
`“Petitioner”) filed a Corrected Petition (Paper 4, “Pet.”) requesting
`
`institution of inter partes review of claims 1–3 and 5–14 of U.S. Patent No.
`
`8,532,641 B2 (“the ’641 patent”). Affinity Labs of Texas, LLC (“Patent
`
`Owner”) timely filed a Preliminary Response (Paper 8, “Prelim. Resp.”) to
`
`the Petition.
`
`
`
`We have jurisdiction under 35 U.S.C. § 314(a), which provides that an
`
`inter partes review may not be instituted “unless . . . there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of the
`
`claims challenged in the petition.”
`
`
`
`For the reasons given below, on this record we find that Petitioner has
`
`established a reasonable likelihood of prevailing with respect to claims 1–3
`
`and 5–14 of the ’641 patent. Pursuant to 35 U.S.C. § 314, we authorize an
`
`inter partes review to be instituted as to these claims on the grounds set forth
`
`below.
`
`
`
`
`
`A. Related Proceedings
`
`Petitioner represents that the ’641 patent is being asserted in Affinity
`
`Labs of Texas, LLC v. Samsung Electronics Co., Ltd., 3:14-cv-3030 (N.D.
`
`Cal.) and Affinity Labs of Texas, LLC v. Blackberry, 5:14-cv-3031 (N.D.
`
`Cal.). Pet. 4. The ’641 patent is also the subject of co-pending IPR petitions
`
`IPR2014-01181 and IPR2014-01184. Paper 7, 1; Pet. 5.
`
`
`
`
`
`B. The ’641 Patent
`
`The ’641 patent is directed to a system and method for
`
`communicating selected information to an electronic device. Ex. 1101,
`
`
`
`
`2
`
`Samsung Ex. 1422 p. 2
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`1:21–23, 2:15–21. In the disclosed embodiments, a radio listener may create
`
`a personalized playlist and “listen to this playlist in a wireless atmosphere
`
`while enjoying CD quality sound.” Id. at 2:18–21. The audio information
`
`transmitted to a user may include “streaming audio.” Id. at 3:67–4:1.
`
`
`
`Electronic devices contemplated for use in the disclosed system
`
`include “a network radio, a modular device, an audio system, a personal
`
`digital assistant (PDA), a cellular phone, or other electronic devices operable
`
`to receive information wirelessly communicated” by a communications
`
`engine. Id. at 5:36–41. Wireless communication may be accomplished
`
`using various means, including cellular communications, AM or FM signals,
`
`and “high speed, low-power microwave wireless links,” such as a
`
`“Bluetooth link.” Id. at 2:33–43, 5:61–6:24.
`
`
`
`According to the ’641 patent, “conventional” wireless systems
`
`communicate information across a channel in “an asynchronous manner.”
`
`Id. 6:34–39. In addition to this conventional asynchronous method, the ’641
`
`patent also “advantageously allows for signals to be transmitted to an
`
`electronic device in a less than asynchronous manner.” Id. at 6:40–42.
`
`
`
`In one embodiment, the electronic device is operable to communicate
`
`received audio information to a different audio system, such as an audio
`
`radio receiver, using “a localized communications-signaling network.” Id. at
`
`9:44–56, 10:26–35, 12:29–35. The electronic device may also communicate
`
`with the audio system using a physical interface having at least two
`
`conductive paths, the first path for communicating information and the
`
`second path for providing power to the electronic device. Id. at 18:31–39.
`
`
`
`
`3
`
`Samsung Ex. 1422 p. 3
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`
`
`C. Illustrative Claims
`
`
`
`Claims 1–3 and 5–14 are at issue in this proceeding. Claims 1 and 8
`
`are independent. Claims 2, 3, and 5–7 depend, directly or indirectly, from
`
`claim 1 and claims 9–14 depend, directly or indirectly, from claim 8.
`
`Independent claims 1 and 8 are illustrative of the challenged claims and are
`
`reproduced below:
`
`1. A music enabled communication system, comprising: a
`wireless telephone device, the device having (1) a display at
`least partially defining a front surface of the device, (2) a
`housing component at least partially defining a back surface of
`the device, (3) an enclosure located between the front surface
`and the back surface, (4) a wireless communication module
`located within the enclosure, (5) a rechargeable power supply
`located within the enclosure, (6) a physical interface having a
`first and a second conductive path, the physical interface
`operable to communicate data via the first conductive path and
`to receive a recharging power for the rechargeable power
`supply via the second conductive path, and (7) a memory
`system, located within the enclosure; and
`
` a
`
` collection of instructions stored in the memory system, the
`collection of
`instructions operable when executed
`to
`communicate a collection of information about media content
`available from the wireless telephone device to a recipient
`device such that the recipient device can use the collection of
`information to generate a graphical menu comprising a
`selectable menu item associated with the available media
`content, to utilize the wireless communication module to stream
`a signal representing at least a portion of a song to the recipient
`device using a given asynchronous wireless channel of a
`localized communications signaling network, to recognize
`receipt of an incoming telephone call, and to alter an outputting
`of the signal in connection with recognizing receipt of the
`incoming telephone call.
`
`Ex. 1101, 19:29–57.
`
`
`
`
`
`4
`
`Samsung Ex. 1422 p. 4
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`
`8. A system for wirelessly communicating musical content,
`comprising:
`
` a
`
` portable electronic device having a processor operable to play
`an audio file that represents a song;
`
` a
`
` memory communicatively coupled to the processor and
`configured to store a plurality of audio files; and
`
` a
`
` wireless communication module communicatively coupled to
`the processor and operable to communicate a streaming audio
`signal that represents a playing of the song to a recipient device
`via a localized communications signaling network in response
`to a selection of a selectable menu item presented on a recipient
`device display, wherein the wireless communication module is
`compliant with a Bluetooth standard, further wherein the
`wireless communication module is configured to communicate
`at least a portion of the streaming audio signal to the recipient
`device using an asynchronous channel.
`
`Id. at 20:28–45.
`
`
`
`
`
`
`
`D. The Relied Upon Prior Art
`
`Petitioner relies upon the flowing prior art references, as well as the
`
`Declaration of Dr. Schuyler Quackenbush, Ph.D., dated July 23, 2014 (Ex.
`
`1123):
`
`Reference
`
`Publication
`
`Date
`
`Exhibit
`
`Abecassis
`
`US 6,192,340 B1
`
`Feb. 20, 2001
`
`Lau
`
`US 6,772,212 B1
`
`Aug. 3, 2004
`
`Chennakeshu
`
`US 6,542,758 B1
`
`Apr. 1, 2003
`
`1103
`
`1104
`
`1105
`
`Herrod
`
`US 6,405,049 B2
`
`June. 11, 2002
`
`1106
`
`Galensky
`
`US 6,845,398 B1
`
`Jan. 18, 2005
`
`Treyz
`
`US 6,526,335 B1
`
`Feb. 25, 2003
`
`Gladwin
`
`US 6,879,865 B1
`
`Apr. 12, 2005
`
`1107
`
`1109
`
`1110
`
`
`
`
`5
`
`Samsung Ex. 1422 p. 5
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`
`Reference
`
`Publication
`
`Date
`
`Exhibit
`
`Rydbeck
`
`US 7,123,936 B1
`
`Oct. 17, 2006
`
`1112
`
`
`
`
`
`E. The Asserted Grounds of Unpatentability
`
`References
`
`Basis
`
`Claim(s) challenged
`
`Abecassis and Chennakeshu
`
`§ 103
`
`1–3, 5, 8–11, 13, 14
`
`Abecassis, Chennakeshu, and Herrod § 103
`
`1–3, 5, 6, 9, 10, 14
`
`Abecassis, Chennakeshu, and Lau
`
`§ 103
`
`1–3, 5, 8–11, 13, 14
`
`Abecassis, Chennakeshu, Herrod, and
`Lau
`Abecassis, Chennakeshu, and
`Galensky
`Abecassis, Chennakeshu, Herrod, and
`Galensky
`Abecassis, Chennakeshu, Lau, and
`Galensky
`Abecassis, Chennakeshu, Herrod,
`Lau, and Galensky
`Treyz, Gladwin, Chennakeshu, and
`Rydbeck
`Treyz, Herrod, Gladwin,
`Chennakeshu, and Rydbeck
`Treyz, Gladwin, Chennakeshu,
`Rydbeck, and Galensky
`Treyz, Herrod, Gladwin,
`Chennakeshu, Rydbeck, and
`Galensky
`
`
`
`II. ANALYSIS
`
`§ 103
`
`1–3, 5, 6, 9, 10, 14
`
`§ 103
`
`7, 12
`
`§ 103
`
`6, 7
`
`§ 103
`
`7, 12
`
`§ 103
`
`6, 7
`
`§ 103
`
`1–3, 5, 8–11, 13, 14
`
`§ 103
`
`1–3, 5, 9, 10, 13, 14
`
`§ 103
`
`7, 12
`
`§ 103
`
`6, 7, 12
`
`
`
`
`
`A. Claim Construction
`
`In an inter partes review, “[a] claim in an unexpired patent shall be
`
`given its broadest reasonable construction in light of the specification of the
`
`patent in which it appears.” 37 C.F.R. § 42.100(b). In determining the
`
`
`
`
`6
`
`Samsung Ex. 1422 p. 6
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`broadest reasonable construction, we presume that claim terms carry their
`
`ordinary and customary meaning. See In re Translogic Tech., Inc., 504 F.3d
`
`1249, 1257 (Fed. Cir. 2007). This presumption may be rebutted when a
`
`patentee, acting as a lexicographer, sets forth an alternate definition of a
`
`term in the specification with reasonable clarity, deliberateness, and
`
`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`
`Streaming audio signal
`
`
`
`The term “streaming audio signal” is not expressly defined in the ’641
`
`patent. Petitioner contends that the term “stream” means to “transfer as a
`
`flow of data” and “streaming audio signal” should be construed to mean an
`
`“audio signal transferred as a flow of data.” Pet. 11; Ex. 1122, 4 (defining
`
`the term “stream” to mean “[t]o send data from one device to another”).
`
`
`
`Patent Owner contends that a “streaming audio signal” is a
`
`“signal/audio signal that is played as it arrives at a recipient device, not
`
`requiring that an entire file be transferred to and stored at a recipient device
`
`prior to initiating playback.” Prelim. Resp. 7. In support of this
`
`construction, Patent Owner cites to several portions of the ’641 specification
`
`that discuss transferring files and streaming audio broadcasts. Id. (citing Ex.
`
`1101, 3:67–4:1, 7:4–7, 8:25–26, 10:20, 13:8–9).
`
`
`
`The ordinary meaning of “streaming” is “relating to or being the
`
`transfer of data (as audio or video material) in a continuous stream
`
`especially for immediate processing or playback.” (Streaming Definition,
`
`MERRIAM-WEBSTER.com, http://www.merriamwebster.com
`
`/dictionary/streaming) (last visited Jan. 15, 2015). This is consistent with
`
`Petitioner’s proposed construction requiring transfer of the audio
`
`information “as a flow of data.” Although the ordinary meaning of
`
`
`
`
`7
`
`Samsung Ex. 1422 p. 7
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`“streaming” encompasses the immediate processing or playback of data, as
`
`asserted by Patent Owner, it is not limited to this method, and the ’641
`
`patent Specification does not set forth an alternate definition of the term with
`
`reasonable clarity, deliberateness, and precision sufficient to justify
`
`departing from the ordinary meaning of the term. See In re Paulsen, 30 F.3d
`
`at 1480. Accordingly, we construe “streaming audio signal” to mean “an
`
`audio signal that is transferred in a continuous stream.”
`
`
`
`
`
`B. Prior Art
`
`Petitioner asserts that claims 1–3 and 5–14 would have been obvious
`
`over various combinations of Abecassis, Chennakeshu, Herrod, Lau, and
`
`Galensky. Pet. 12.
`
`
`
`
`
`1. Abecassis
`
`Abecassis is directed to a system and method for “integrating a
`
`playing of music that is responsive to a user’s music preferences applied to
`
`the user’s audio library with a playing of real-time information that is
`
`responsive to the user’s information preferences.” Ex. 1103, 1:8–12. To
`
`implement this method, Abecassis discloses a portable Multimedia Player
`
`that also functions as “a stand alone cellular phone.” Id. at 9:26–30. The
`
`Multimedia Player may function “as a portable part of multiple-phone
`
`configuration, a radio, a remote control, as a digital audio player, and/or as a
`
`radio-on-demand player.” Id. at 9:28–31.
`
`
`
`The Multimedia player may be controlled by a remote control device
`
`having various function keys useful for “program selection, music and
`
`information preference selection, and source selection.” Id. at 9:47–55. The
`
`remote control may communicate directly with the Multimedia Player, using
`
`wired or wireless means, and may render a transmission “audible for the user
`
`
`
`
`8
`
`Samsung Ex. 1422 p. 8
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`through its built-in speaker.” Id. at 10:41–45, 12:28–39. In one
`
`embodiment, the Multimedia Player can be used in conjunction with a
`
`vehicle speaker system and may transfer information by “means of a cable
`
`or by direct insertion into a built-in docking bay.” Id. at 14:12–17.
`
`
`
`
`
`2. Chennakeshu
`
`Chennakeshu is directed to a mobile radio telephone for use in a
`
`vehicle. Ex. 1105, 1:9–12. The mobile telephone of Chennakeshu may
`
`communicate using a Bluetooth interface over an asynchronous data
`
`channel. Id. at 4:60–5:15. In at least one embodiment, the system of
`
`Chennakeshu is configured to allow for “hands-free operation once a call is
`
`established.” Id. at 1:22–24.
`
`
`
`
`
`3. Herrod
`
`Herrod is directed to a portable data device, or terminal, and a
`
`terminal docking device, or cradle. Ex. 1106, 1:5–7. The portable data
`
`device of Herrod “compris[es] cellular telephone means for conventional
`
`telephone communication.” Id. at 3:32–36, 16:8–11. The portable data
`
`device of Herrod contains a rechargeable battery that may be recharged at a
`
`cradle mounted in a user’s vehicle and a physical interface for connecting to,
`
`and communicating with, the cradle. Id. at 6:56–59, 18:66–19:14.
`
`
`
`
`
`4. Lau
`
`Lau is directed to a server for audio/visual data. Ex. 1104, 1:19–20.
`
`“In one embodiment, the audio/visual server stores music, emulates a disc
`
`changer, and communicates with an audio head unit,” such as “a standard
`
`automobile stereo head unit which is adapted to communicate with a disc
`
`changer.” Id. at 2:54–56, 4:35–37. In Lau, the head unit contains various
`
`buttons which may be pushed by a user, one of which may correspond to a
`
`playlist. Id. at 11:34–39. If the button corresponding to a particular playlist
`
`
`
`
`9
`
`Samsung Ex. 1422 p. 9
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`is selected, the music server will begin playing tracks from that playlist. Id.
`
`at 11:9–41.
`
`
`
`
`
`5. Galensky
`
`Galensky is directed to “[a] wireless device, system and method for
`
`receiving and playing multimedia files streamed from a multimedia server
`
`over a wireless telecommunications network.” Ex. 1107, Abstract.
`
`Galensky discloses that “to conserve bandwidth within the wireless
`
`network,” it is preferable to transmit data “at the highest data rate possible”
`
`to create a 5–10 second buffer and, once the desired buffer is created, to
`
`decrease the data transmission rate to the minimum rate necessary for
`
`adequate transmission of “streamed data.” Id. at 6:1–18.
`
`
`
`
`
`
`C. Obviousness of Claims 1–3, 5, 9, 10, and 14 over Abecassis,
` Chennakeshu, and Herrod
`
`
`
`Petitioner asserts that the combination of Abecassis, Chennakeshu,
`
`and Herrod discloses, or renders obvious, every limitation of claims 1–3, 5,
`
`9, 10, and 14. Pet. 12, 18–38. In particular, Petitioner asserts that Abecassis
`
`discloses: (1) a wireless telephone device having a display, housing, wireless
`
`communication module, and memory; (2) a collection of instructions
`
`operable to provide information about media content available from the
`
`wireless telephone device to a recipient device (in the form of a remote
`
`control) such that the recipient device can use the information to generate a
`
`graphical menu with a selectable menu item associated with the available
`
`media content; and (3) streaming at least a portion of a song to the recipient
`
`device. Pet. 18–23. Petitioner further asserts that Chennakeshu discloses
`
`both using a Bluetooth communication module to transmit information over
`
`an asynchronous channel and hands-free operation of the wireless telephone.
`
`Pet. 21–22, 27. Finally, Petitioner asserts that Herrod discloses a display
`
`
`
`
`10
`
`Samsung Ex. 1422 p. 10
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`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`that makes up more than half of the front surface of the device, a
`
`rechargeable power supply, and a physical interface operable to
`
`communicate data over a first path and receive power over a second path.
`
`Pet. 19.
`
`
`
`With respect to the reason to combine the references, Petitioner
`
`asserts that it would have been obvious to incorporate the communication
`
`methods of Chennakeshu in the Abecassis system because one of ordinary
`
`skill in the art would have understood that Bluetooth modules were an
`
`“economically feasible” method for connecting devices and communicating
`
`over an asynchronous channel provides “a simple, flexible, and cost-
`
`effective way to transmit data.” Pet. 15 (citing Ex. 1123 ¶¶ 73, 74, 83, 84,
`
`97, 114, 115, 126). Petitioner further asserts that it would have been obvious
`
`to combine the display, rechargeable power supply, and physical interface of
`
`Herrod in the wireless telephone of Abecassis because these elements were
`
`well known in the art and would allow for easier navigation of displayed
`
`menu items, “eliminate the need to replace batteries of the phone,” and
`
`permit the phone to recharge the batteries and communicate data using a
`
`single physical interface. Pet. 16 (citing 1123 ¶¶ 44, 52, 90, 99, 118, 119,
`
`122, 138).
`
`
`
`Patent Owner asserts that Petitioner has not demonstrated that claim 1
`
`would have been obvious because it has not explained why one of ordinary
`
`skill in the art would modify the Multimedia Player of Abecassis to include
`
`the rechargeable battery of Herrod. Prelim. Resp. 34. In particular, Patent
`
`Owner argues that the following discussion in Abecassis teaches away from
`
`using a rechargeable power supply:
`
`In a preferred embodiment of a Multimedia Player, every
`component and subsystem is added or replaced without
`
`
`
`
`11
`
`Samsung Ex. 1422 p. 11
`
`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`
`resorting to screwdrivers and the need to unplug and plug
`communications and power cables. The motherboard and
`cabinet permitting the replacement of, for example, the power
`supply 109 just as easily as a battery is replaced in a portable
`personal computer.
`
`Ex. 1103, 8:42–48; Prelim. Resp. 34.
`
`
`
`According to Patent Owner, by “explicitly teaching . . . a replaceable
`
`power supply Abecassis teaches away from using a rechargeable power
`
`supply.” Prelim. Resp. 34. Patent Owner does not explain, however, why a
`
`replaceable power supply, such as that found in a portable personal
`
`computer, is necessarily not rechargeable or would teach away from using a
`
`rechargeable power supply. See id. (citing Ex. 1103, 8:42–48).
`
`Accordingly, at this stage of the proceeding we are not persuaded that
`
`Abecassis teaches away from using a rechargeable power supply.
`
`
`
`With respect to the reason to combine the references, at this stage of
`
`the proceeding we credit Dr. Quackenbush’s testimony that rechargeable
`
`batteries, as disclosed in Herrod, were common in the art and one of
`
`ordinary skill in the art would have sought to implement such batteries in the
`
`wireless telephone of Abecassis in order to provide “true portability” to the
`
`Abecassis device and eliminate “the need to periodically replace ordinary
`
`(i.e., non-rechargeable) batteries.” Ex. 1123 ¶¶ 42–44.
`
`
`
`Patent Owner further asserts that Petitioner has not explained
`
`adequately why one of ordinary skill in the art would have combined
`
`Herrod’s interface—having two conducting paths for power and data—in the
`
`Multimedia Player of Abecassis. Prelim. Resp. 35. At this stage of the
`
`proceeding, however, given that Abecassis discloses communicating audio
`
`content using a wired connection, including a “built-in docking bay,” we
`
`credit Dr. Quackenbush’s testimony that one of ordinary skill in the art
`
`
`
`
`12
`
`Samsung Ex. 1422 p. 12
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`

`

`IPR2014-01182
`Patent 8,532,641 B2
`
`would have sought to implement Herrod’s physical interface in the
`
`Abecassis system in order to simultaneously recharge the power supply and
`
`send or receive data. Ex. 1123 ¶ 48–52; Ex. 1103, 14:12–16.
`
`
`
`Patent Owner next argues that Abecassis does not disclose
`
`transmitting information about media content available from the wireless
`
`telephone that may be used by a recipient device to generate a selectable
`
`menu item. Prelim. Resp. 36. In particular, Patent Owner asserts that the
`
`remote control device of Abecassis identified by Petitioner cannot be the
`
`recipient device of claim 1 “because the claimed ‘recipient device’ is the
`
`device to which a ‘signal representing at least a portion of a song’ can be
`
`streamed by the claimed wireless telephone device,” and “[u]nder
`
`Petitioners’ theory, the ‘remote control device’ of Abecassis corresponds to
`
`a wireless telephone device, not to a recipient device.” Id. at 36–37 (citing
`
`Pet. 22).
`
`
`
`Petitioner presents evidence, however, that the remote control device
`
`of Abecassis receives menu information from the Multimedia Player,
`
`displays various selectable, graphical menu items, and may directly receive
`
`from the Multimedia Player a transmission and render it audible for the user
`
`through its built-in speaker. Pet. 20, 22 (citing Ex. 1103, 9:31–33
`
`(disclosing that the remote control may operate using “any number of
`
`technologies both wired and non-wired”), 9:50–59 (“In particular the
`
`interactively defined and labeled function keys may be automatically
`
`configured and reconfigured by a specific transmission or other information
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`downloaded from, for example, the Multimedia Player”); 10:41–45 (noting
`
`that the remote control can directly receive a transmission from the
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`Multimedia Player and play it through its built-in speakers)). On this record,
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`therefore, we are not persuaded by Patent Owner’s argument that the remote
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`control device is not a “recipient device.”
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`
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`Patent Owner next argues that Abecassis does not disclose
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`“streaming” a song to the recipient device using an “asynchronous wireless
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`channel” and, to the extent Petitioner relies upon the disclosure of
`
`Chennakeshu, Petitioner has not explained why one of ordinary skill in the
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`art would have implemented Chennakeshu’s asynchronous communication
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`module in Abecassis, especially since Chennakeshu relates to
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`“communicating asynchronous data,” whereas the claims require
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`“stream[ing] a signal representing at least a portion of a song.” Prelim.
`
`Resp. 40.
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`
`
`
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`
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`Petitioner presents evidence that the devices of Abecassis may
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`retrieve a song “at the time of its playing, i.e., retrieved and played in a real-
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`time manner.” Pet. 22 (citing Ex. 1103, 11:1–8, 12:28–31, 13:62–67, 14:60–
`
`65). We are persuaded that this constitutes “streaming,” as we have
`
`construed that term. Moreover, although Petitioner does not identify a
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`disclosure in Abecassis of streaming audio content over an “asynchronous
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`channel,” the ’641 patent acknowledges that prior to the ’641 patent it was
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`“conventional,” if not in fact required, to transmit audio over a channel in an
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`asynchronous manner, as disclosed in Chennakeshu. Ex. 1101, 6:31–39
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`(noting that “conventional” wireless systems communicate “in an
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`asynchronous manner to provide a continuous audio signal to the recipient”
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`and “[t]he present invention may allow for a relative increase in transmission
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`speed by removing the requirement that information be communicated
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`asynchronously to an electronic device”). Finally, Patent Owner directs us
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`to no credible evidence to suggest a functional difference exists between
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`
`
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`streaming “data,” as disclosed in Chennakeshu, and a “song.” Indeed, the
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`’641 patent discloses wirelessly transmitting “data” representing selected
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`audio information. See, e.g., Ex. 1101, 2:15–51, 3:3–9. Accordingly, we are
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`not persuaded by Patent Owner’s argument.
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`
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`Claim 2 requires that “the wireless communication module is
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`compliant with a Bluetooth standard.” Ex. 1101, 19:58–59. Petitioner
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`contends that Abecassis in combination with Chennakeshu discloses this
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`limitation. Pet. 26. Patent Owner responds that Petitioner has not explained
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`why one of ordinary skill in the art would have implemented Chennakeshu’s
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`Bluetooth communication method in the Abecassis system. Prelim. Resp.
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`40. At this stage of the proceeding, we are not persuaded by this argument.
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`Ericsson,1 which is incorporated by reference in Chennakeshu, describes the
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`Bluetooth standard and its advantages over existing methods of short range
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`communications for portable devices. Ex. 1108A, 110 (noting that, in
`
`contrast to existing infrared links, Bluetooth provides greater range, does not
`
`require direct line-of sight, and can be used by more than two devices at one
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`time);2 Pet. 15–16 (citing to the disclosure in Ericsson). Given these
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`disclosed advantages, as well as Dr. Quackenbush’s testimony that
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`Bluetooth technology “was being widely adopted by many companies in the
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`industry” prior to March 28, 2000, at this stage of the proceeding we are
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`persuaded by Petitioner’s argument that one of ordinary skill in the art
`
`would have sought to implement Bluetooth functionality, as disclosed in
`
`
`1 Jaap Haartsen, Bluetooth–The Universal Radio Interface for Ad Hoc,
`Wireless Connectivity, Ericsson Review No. 3 (1998) at 110.
`2 Ericsson contains page numbers stamped on the lower right and original
`page numbers in the lower right and left sides of alternating pages. Our
`citations are to the original page numbers of the reference.
`
`
`
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`Chennakeshu, in the wireless device of Abecassis. Pet. 15; Ex. 1108A, 110;
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`Ex. 1123 ¶¶ 74, 84.
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`
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`Patent Owner further contends that Petitioner has not adequately
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`“explained the teaching or motivation to combine that would have led one of
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`ordinary skill in the art” to include Chennakeshu’s hand-free communication
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`method, as required in claim 5, in the Abecassis system. Prelim. Resp. 41–
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`42. Both Abecassis and Chennakeshu, however, disclose using a wireless
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`telephone in a vehicle. Ex. 1103, 14:8–18; Ex. 1105, 6:16–43. At this stage
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`of the proceeding, we are persuaded by Petitioner’s argument—supported by
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`the declaration testimony of Dr. Quackenbush—that one of ordinary skill in
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`the art would have recognized that Chennakeshu’s hands-free
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`communication method would provide an easier and safer way to operate the
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`Abecassis phone in a vehicle. Pet. 16; Ex. 1123 ¶ 97.
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`
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`Based on the foregoing, we are persuaded that Petitioner has set forth
`
`sufficient argument and evidence to demonstrate a reasonable likelihood that
`
`claims 1–3, 5, 9, 10, and 14 would have been obvious over Abecassis,
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`Chennakeshu, and Herrod.
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`
`
`
`
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`D. Obviousness of Claims 6 and 7 over Abecassis, Chennakeshu,
` Herrod, and Galensky
`
`Claim 6 depends from claim 1 and further requires a wireless
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`telephone having a display that “makes up more than half of the front
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`surface” and is operable to receive a collection of data at a hybrid of
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`communication rates. Ex. 1101, 20:11–15. Claim 7 depends from claim 1
`
`and further requires a wireless telephone having a buffer memory that is
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`“operable to cause a change in communication rates at which a given
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`component part is received based at least partially upon an amount of data
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`located in the buffer memory.” Ex. 1101, 20:16–27.
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`
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`
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`Petitioner asserts that claims 6 and 7 would have been obvious over
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`Abecassis, Chennakeshu, Herrod, and Galensky. Pet. 28–31. In particular,
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`Petitioner asserts that Herrod discloses a wireless telephone with a display
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`that makes up more than half of the front surface of the device and Galensky
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`discloses using two different communication rates, which are selected based
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`upon the amount of data in a buffer. Id. (citing Ex. 1106, Figs. 1, 2b; Ex.
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`1107, 2:21–47, 6:2–18; Ex. 1123 ¶¶ 98–102, 104–109). Petitioner further
`
`asserts that one of ordinary skill in the art would have implemented Herrod’s
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`larger display in the Abecassis device in order to “provide a larger screen for
`
`viewing menus, selecting audio files, and performing other tasks on the
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`device” and would have implemented Galensky’s varying communication
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`rates in order to conserve bandwidth within the network, as taught by
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`Galensky. Pet. 16–18 (citing Ex. 1123 ¶¶ 90, 99, 102, 109, 129; Ex. 1107,
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`5:66–6:15).
`
`
`
`Patent Owner asserts that Petitioner has not explained sufficiently
`
`what would have compelled one of ordinary skill in the art to implement
`
`Herrod’s larger display or Galensky’s method of using hybrid
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`communication rates in the device of Abecassis. Prelim. Resp. 42–43. In
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`particular, Patent Owner asserts that Petitioner ignores the fact that Galensky
`
`is concerned with altering communication rates in order to serve multiple
`
`subscribers, “which is not applicable here.” Prelim. Resp. 23. We are not
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`persuaded by this argument, however, because Patent Owner does not
`
`explain sufficiently why maximizing network resources in order to serve
`
`multiple subscribers “is not applicable here.” See Ex. 1103, 8:55–59 (noting
`
`that “the communications module supports cellular phone communications,
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`
`
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`the reception of broadcasted content . . . and access to a variety of
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`communication networks”).
`
`
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`Based on the foregoing, we determine that Petitioner has
`
`demonstrated a reasonable likelihood that claims 6 and 7 would have been
`
`obvious over Abecassis, Chennakeshu, Herrod, and Galensky.
`
`
`
`
`
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`E. Obviousness of Claims 8, 11, and 13 over Abecassis and
` Chennakeshu
`
`
`
`
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`Petitioner asserts that claims 8, 11, and 13 would have been obvious
`
`over Abecassis and Chennakeshu. In support of its argument, Petitioner
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`provides detailed claim charts and the testimony of Dr. Quackenbush. Pet.
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`32–33, 35–38; Ex. 1123 ¶¶ 110–115, 123–126, 130–137. With respect to
`
`claim 8, Patent Owner asserts the same general arguments regarding
`
`streaming, Bluetooth, asynchronous channels, and selection of a selectable
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`menu item as set forth for claims 1 and 2. Prelim. Resp. 36–41. Patent
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`Owner does not address claims 11 and 13 with particularity.
`
`
`
`For the reasons set forth above, at this stage of the proceedings we are
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`not persuaded by Patent Owner’s arguments. We are persuaded, therefore,
`
`that Petitioner has demonstrated a reasonable likelihood that claims 8, 11,
`
`and 13 would have been obvious over Abecassis and Chennakeshu.
`
`
`
`
`
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`F. Obviousness of Claim 12 over Abecassis, Chennakeshu, and
` Galensky
`
`
`
`Claim 12 depends from claim 8 and further requires, inter alia, a
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`wireless telephone device having a wide area communication module
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`“operable to receive a collection of data representing a media at a hybrid of
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`wireless communication rates” and a “buffer memory, wherein a change in
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`communication rates is at least partially based upon an amount of data
`
`located in the buffer memory.” Id. at 21:1–12. Petitioner asserts that claim
`
`
`
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`12 would have been obvious over Abecassis, Chennakeshu, and Galensky.
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`Pet. 12. In support, Petitioner provides a claim chart and the supporting
`
`testimony of Dr. Quackenbush. Pet. 36; Ex. 1123 ¶¶ 127–129.
`
`
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`Patent Owner asserts that Petitioner’s argument fails because
`
`Abecassis only discloses “temporary data buffering” and Petitioner has “not
`
`explained the te