IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`In re inter partes review of:
`
`U.S. Patent 7,477,624 to Gan, et al Atty. Docket: 3559.001IPR2
`
`Filed: Herewith
`
`For: Approach for Managing the Use
`of Communications Channels
`Based on Performance
`
`
`
`Declaration of Dr. Zhi Ding in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,477,624
`
`Mail Stop Inter Partes Review
`
`Attn: Patent Trial and Appeal Board
`Commissioner for Patents
`PO Box 1450
`Alexandria, VA 22313-1450
`
`Commissioner:
`
`
`
`I, Dr. Zhi Ding, declare as follows:
`
`1.
`
`I have been retained on behalf of Marvell Semiconductor, Inc., Medi-
`
`aTek Inc., and MediaTek USA, Inc. for the above-captioned inter partes review
`
`proceeding. I understand that this proceeding involves U.S. Patent No. 7,477,624
`
`to Gan, et al, titled “Approach for Managing the Use of Communications Channels
`
`Based on Performance” (“the ʼ624 patent”) and that the ’624 patent is currently as-
`
`signed to Bandspeed, Inc.
`
`
`
`- 1 -
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`Qualcomm Incorporated
`Exh. 1002
`
`
`In re inter partes review of:
`
`U.S. Patent 7,477,624 to Gan, et al Atty. Docket: 3559.001IPR2
`
`Filed: Herewith
`
`For: Approach for Managing the Use
`of Communications Channels
`Based on Performance
`
`
`
`Declaration of Dr. Zhi Ding in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,477,624
`
`Mail Stop Inter Partes Review
`
`Attn: Patent Trial and Appeal Board
`Commissioner for Patents
`PO Box 1450
`Alexandria, VA 22313-1450
`
`Commissioner:
`
`
`
`I, Dr. Zhi Ding, declare as follows:
`
`1.
`
`I have been retained on behalf of Marvell Semiconductor, Inc., Medi-
`
`aTek Inc., and MediaTek USA, Inc. for the above-captioned inter partes review
`
`proceeding. I understand that this proceeding involves U.S. Patent No. 7,477,624
`
`to Gan, et al, titled “Approach for Managing the Use of Communications Channels
`
`Based on Performance” (“the ʼ624 patent”) and that the ’624 patent is currently as-
`
`signed to Bandspeed, Inc.
`
`
`
`- 1 -
`
`Qualcomm Incorporated
`Exh. 1002
`
`
`
`2.
`
`I have reviewed and am familiar with the specification of the ’624 pa-
`
`tent filed on April 3, 2006. I will cite to the specification using the following for-
`
`mat: (’624 patent, 1:1-10). This example citation points to the ’624 patent specifi-
`
`cation at column 1, lines 1-10.
`
`3.
`
`I have reviewed and am familiar with the file history of the ’624 pa-
`
`tent. I have also reviewed the reexamination of U.S. Patent No. 7,027,418 (“the
`
`’418 patent”). I understand that the ’624 patent is a continuation of the ’418 pa-
`
`tent. I understand that the ’624 patent and the ’418 patent share a common specifi-
`
`cation.
`
`4.
`
`I have reviewed and am familiar with the following prior art used in
`
`the Petition for Inter Partes Review of the ’624 patent and/or referenced below:
`
`U.S. Patent No. 6,760,319 to Gerten, et al (“Gerten”), titled
`“Fixed Frequency Interference Avoidance Enhancement.” (Exhibit
`1003.)
`
`U.S. Patent No. 6,418,317 to Cuffaro, et al (“Cuffaro”), titled
`“Method and System for Managing Frequencies Allocated to a
`Base Station.” (Exhibit 1004.)
`
`U.S. Patent No. 6,115,407 to Gendel, et al (“Gendel”), titled “Fre-
`quency Hopping Communication Method and Apparatus for Modi-
`fying Frequency Hopping Sequence in Accordance with Counted
`Errors.” (Exhibit 1005.)
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`- 2 -
`
`
`
`U.S. Patent No. 7,280,580 to Haartsen, et al (“Haartsen”), titled
`“Hop Sequence Adaptation in a Frequency-Hopping Communica-
`tion System.” (Exhibit 1006.)
`
`U.S. Patent No. 5,781,582 to Sage, et al (“Sage”), titled “Frequen-
`cy Agile Transceiver with Multiple Frequency Synthesizers Per
`Transceiver.” (Exhibit 1007.)
`
`5.
`
`I have also reviewed the pages cited below from the Microsoft Dic-
`
`tionary, Third Edition (Microsoft Press 1997), provided as Exh. 1013.
`
`6.
`
`The ’624 patent describes “managing the use of communications
`
`channels based on channel performance” in a communications network. (’624 pa-
`
`tent, 1:46-48.) I am familiar with the technology described in the ’624 patent as of
`
`its earliest possible priority date of January 25, 2001.
`
`7.
`
`I have been asked to provide my technical review, analysis, insights,
`
`and opinions regarding the ’624 patent and the above-noted references that form
`
`the basis for the grounds of rejection set forth in the Petition for Inter Partes Re-
`
`view of the ’624 Patent.
`
`I.
`
`Qualifications
`8.
`
`I have 3 decades of experience in wireless communications and signal
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`processing and have authored over 100 journal papers and 2 technical books on
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`communication technologies.
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`- 3 -
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`9.
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`I earned a Bachelor of Engineering degree from Nanjing Institute of
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`Technology in Nanjing, China in 1982. I later received a Master of Applied Sci-
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`ence degree from the University of Toronto in Toronto, Canada in 1987 and a Doc-
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`tor of Philosophy degree from Cornell University in Ithaca, New York in 1990,
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`both in Electrical Engineering.
`
`10.
`
`I have been a professor of Electrical (and Computer) Engineering
`
`since 1990. For over two decades, I have taught classes that cover fundamentals of
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`signal detection, communications, and systems. I am currently a professor in the
`
`Department of Electrical and Computer Engineering at University of California at
`
`Davis in Davis, California.
`
`11.
`
`I have served as the steering committee chair of The Institute of Elec-
`
`trical and Electronics Engineers (IEEE) Transactions on Wireless Communications
`
`(1.2009 – 1.2011.). I was elevated to Fellow of IEEE in 2002 by the IEEE Signal
`
`Processing Society. I have also served as the Technical Program Chair of the IEEE
`
`Globecom 2006 (the flagship conference of the IEEE Communications Society). In
`
`2013, I received the IEEE Communications Society Wireless Communications
`
`Technical Committee Recognition Award. This annual award is presented to a per-
`
`son with a high degree of visibility and contribution in the field of “Wireless and
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`
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`Mobile Communications Thoery, Systems, and Networks” according to the WTC
`
`Award website http://bbcr.uwaterloo.ca/~wtc/awards.html.
`
`12.
`
`I am the co-author of the text book: B.P Lathi and Zhi Ding, “Modern
`
`Digital and Analog Communication Systems,” Fourth Edition, Oxford University
`
`Press, January 23, 2009. This textbook contains discussions on frequency hopping
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`and its application in Bluetooth.
`
`13. My Curriculum Vitae is provided as Exhibit 1014, which contains fur-
`
`ther details on my education, experience, publications, and other qualifications to
`
`render an expert opinion. My work on this case is being billed at a rate of $475 per
`
`hour, with reimbursement for actual expenses. My compensation is not contingent
`
`upon the outcome of this inter partes review.
`
`II. Level of Ordinary Skill in the Art
`14.
`I understand that the person of ordinary skill in the art is viewed at the
`
`time of invention. Based on the disclosure of the ’624 patent, one of ordinary skill
`
`in the art would have a B.S. degree in Electrical and/or Computer Engineering, or
`
`an equivalent field, as well as at least 3-5 years of academic or industry experience
`
`in the communications field.
`
`15. By equivalent field, I mean that the required levels of educational and
`
`industry experience are on a sliding scale relative to each other. For example, a
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`- 5 -
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`
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`person of ordinary skill could have a more advanced educational degree with less
`
`industry experience.
`
`16.
`
`In deciding the level of ordinary skill, I considered the following: the
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`levels of education and experience of persons working in the field; the types of
`
`problems encountered in the field; and the historical development and the sophisti-
`
`cation of the technology.
`
`III. My Understanding of Claim Construction
`17.
`I understand that, during an inter partes review, claims are to be given
`
`their broadest reasonable construction in light of the specification as would be read
`
`by a person of ordinary skill in the relevant art.
`
`IV. My Understanding of Anticipation
`18.
`I understand that a reference anticipates a claim if it discloses each
`
`and every element recited in the claim, arranged as in the claim, so as to enable one
`
`of ordinary skill in the art to make and use the claimed invention without the need
`
`for undue experimentation in light of the general knowledge available in the art.
`
`V. My Understanding of Obviousness
`19.
`I understand that a claim is obvious when the differences between the
`
`subject matter sought to be patented and the prior art are such that the subject mat-
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`- 6 -
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`
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`ter as a whole would have been obvious at the time the invention was made to one
`
`of ordinary skill in the art.
`
`20.
`
`I understand that to prove that prior art or a combination of prior art
`
`renders a claim obvious, it is necessary to (1) identify the particular references that,
`
`singly or in combination, make the claim obvious; (2) specifically identify which
`
`elements of the claim appear in each of the asserted references; and (3) explain
`
`how the prior art references could have been combined or modified in order to cre-
`
`ate the claimed invention.
`
`21.
`
`I understand that certain objective indicia can be important evidence
`
`regarding whether a claim is obvious or nonobvious. Such indicia include: com-
`
`mercial success of products covered by the claim; a long-felt need for the claimed
`
`invention; failed attempts by others to make the claimed invention; copying of the
`
`claimed invention by others in the field; unexpected results achieved by the
`
`claimed invention as compared to the closest prior art; praise of the claimed inven-
`
`tion by the infringer or others in the field; the taking of licenses under the patent by
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`others; expressions of surprise by experts and those skilled in the art at the time of
`
`the claimed invention; and the patentee proceeding contrary to the accepted wis-
`
`dom of the prior art.
`
`VI. Overview of the ’624 Patent
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`- 7 -
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`
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`22. The ’624 patent relates to “managing the use of communications
`
`channels based on channel performance” in a communications network. (’624 pa-
`
`tent, 1:46-48.) FIG. 2 of the ’624 patent depicts a communications network having
`
`a number of communications devices labeled master 210, slave 220, and slave 230.
`
`Each of the communications devices includes a memory, a processor that may exe-
`
`cute the instructions stored in the memory, and a transceiver that is configured to
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`transmit and receive communications with other devices of the communications
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`network. (Id., 9:53-59.)
`
`23. The ’624 patent generally relates to use of frequency hopping, and in
`
`particular frequency hopping in the context of Bluetooth communications. The
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`Background section of the ’624 patent describes that “[a] frequency hopping (FH)
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`protocol is an approach for wireless communications in a communications network
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`that uses a frequency hopping signal transmission technique in which information
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`or data is transmitted over a set of frequencies in a communications frequency
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`band.” (Id., 2:5-9.) “The order in which the communications network hops among
`
`the set of frequencies is known as the hopping sequence.” (Id., 2:11-13) “With the
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`FH approach, the frequency band is broken up into separate frequencies, often re-
`
`ferred to as ‘channels.’ The FH system transmits data on one channel, hops to the
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`next channel in the hopping sequence to transmit more data, and continues by
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`transmitting data on subsequent channels in the hopping sequence. The switching
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`- 8 -
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`of frequencies may occur many times each second. The use of an FH protocol
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`helps to reduce problems with interference from other communications systems
`
`and other interference sources.” (Id., 2:19-27.)
`
`24.
`
`“An example of a frequency hopping protocol is the Institute of Elec-
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`trical and Electronics Engineers (IEEE) 802.15.1 Wireless Personal Area Network
`
`Standard, which is based on the BluetoothTM wireless personal area network
`
`(WPAN) technology . . . . The Bluetooth protocol uses 79 individual randomly
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`chosen frequency channels numbered from 0 to 78 and changes the frequencies
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`1600 times per second.” (Id., 2:32-40.)
`
`25. To manage the use of communications channels under potential inter-
`
`ference, the system of the ’624 patent selects a first set of communications chan-
`
`nels “based on the performance of the communications channels and channel selec-
`
`tion criteria.” (Id., 4:11-13.) For example, at start-up of the communications net-
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`work, the system selects an initial set of channels. (Id., 6:19-21.) The system then
`
`periodically selects sets of channels based on later performance of the communica-
`
`tions channels. (Id., 4:14-16.)
`
`26. The ’624 patent describes various techniques for measuring perfor-
`
`mance of communications channels. (See id., 10:19-14:59.) The disclosed tech-
`
`niques include special test packets (Id.,10:33-12:35), received signal strength indi-
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`- 9 -
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`
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`cator (RSSI) (Id., 12:37-13:2), and cyclic redundancy checks (CRC) (Id., 13:50-
`
`14:6.) These were well-known techniques in the art prior to January 2001. The
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`special test packet technique involves sending a packet containing known content
`
`and calculating “[t]he number of error bits (NEB) that occur in the known con-
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`tent . . . to determine channel performance.” (Id., 10:42-47.) The RSSI technique
`
`involves a master listening on a return channel of a slave where the slave is not
`
`transmitting. (Id., 12:41-52.) “If there is interference, such as from another com-
`
`munications system, the RSSI will be high. Conversely, if there is no interference,
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`the RSSI will be low.” (Id., 12:52-55.) The CRC technique involves determining
`
`whether the complete contents of a packet or the payload of the packet are received
`
`correctly based on a CRC check. (Id., 13:54-13:57.) Regardless of the specific
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`technique used, not every channel in the set of available communications channels
`
`must be measured: “For example, for a communications system that uses 100
`
`channels, some or all of the 100 channels may be tested to determine channel per-
`
`formance.” (Id., 6:28-31.)
`
`27. The system of the ’624 patent classifies a communication channel
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`based on channel performance and one or more classification criteria. (Id., 14:63-
`
`65.) “For example, a channel may be classified as ‘good’ or ‘bad’ based on the re-
`
`sults of the channel performance testing by applying one or more performance
`
`measurements to specified performance criteria.” (Id., 14:65-15:2.)
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`- 10 -
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`28.
`
`“Channel testing and classification may be performed by a master”
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`(e.g., master 210) “or other participants, such as slaves” (e.g., slaves 220 or 230).
`
`(Id., 16:42-43.) “In addition, channel testing and classification from multiple par-
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`ticipants may be combined and/or weighted to determine an overall, or final, clas-
`
`sification for the channels of interest.” (Id., 16:43-46.) The ’624 patent describes
`
`one technique for this “‘referendum’ approach” involving voting by participants,
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`including the master. (Id., 16:47-49.)
`
`29.
`
`In the exemplary voting technique, a participant has a “‘vote’ on
`
`whether to use a channel or not.” (Id., 16:65-66.) For example, a vote may indi-
`
`cate that the participant prefers not to use the channel (e.g., participant finds chan-
`
`nel “bad”) or a vote may indicate that the participant prefers to use the channel
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`(e.g., participant finds channel “good”). (Id., 16:66-17:4.) A certain number of to-
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`tal votes “is required for the channel to be judged ‘good’ and therefore available
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`for use by the FH communications system.” (Id., 17:5-7.) “Not every participant
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`needs to have input for each channel under consideration.” (Id., 17:29-30.) As ex-
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`plained in the ’624 patent, participants “may collect and combine the channel per-
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`formance information, or votes, to determine the final channel classifications.”
`
`(Id., 17:30-34.)
`
`VII. Background of the Technologies Disclosed in the ’624 Patent
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`- 11 -
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`
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`A.
`Frequency Hopping
`30. Prior to January 2001, frequency hopping (FH) was one of two known
`
`major technologies designed for spread spectrum data communications. Spread
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`spectrum technologies were initially developed for the military and intelligence
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`communities to overcome shortcomings against interception and jamming. The
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`basic idea is to spread each user signal energy/power over a much broader spec-
`
`trum than necessary. For a fixed transmission power, broader spectrum means low-
`
`er signal power level as well as improved spectral redundancy. The low signal
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`power level makes the communication signals difficult to detect and intercept,
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`whereas high spectral redundancy makes the signals more resistant to (intentional
`
`or unintentional) partial band jamming.
`
`31. Prior to January 2001, there were two dominant spread spectrum
`
`technologies: frequency hopping (FH) spread spectrum and direct sequence (DS)
`
`spread spectrum.
`
`32. The concept of frequency hopping spread spectrum is in fact quite
`
`simple. Each user can still use a conventional modulation. The only change is that
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`now the transmitting user’s carrier frequency can vary over regular intervals. By
`
`letting each user vary its carrier frequency according to a pre-determined, pseudo-
`
`random pattern, its evasive signal would effectively be occupying a broader spec-
`
`trum band and become harder to intercept and jam. This pre-determined, pseudo-
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`
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`random carrier frequency variation pattern is known as the frequency hopping pat-
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`tern. To receive the FH transmission, a receiver can also synchronously change its
`
`own carrier frequency by following exactly the same FH pattern as the transmitter.
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`A simple analogy to FH transmission and reception is for a television (TV) show to
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`be broadcast over several TV stations in a sequential manner. In FH, a TV program
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`begins on station A, lasting 10 minutes, then moves to station B, lasting another 10
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`minutes, and so forth. TV viewers can simply follow this hopping pattern so long
`
`as they are aware of the hopping pattern.
`
`B.
`Bluetooth
`33. Prior to January 2001, Bluetooth was a short range communication
`
`technology used in electronic products such as cell-phones, computers, automo-
`
`biles, modems, headsets, and appliances. Replacing the line-of-sight infrared,
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`Bluetooth was acceptable for situations when two or more devices are in proximity
`
`to each other. Bluetooth was one of the most successful commercial wireless tech-
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`nologies that utilized the frequency hopping (FH) technology for data transmission.
`
`34. Prior to January 2001, Bluetooth devices operated in the license-free
`
`industrial, scientific, and medical (ISM) band of 2.4-2.4835 GHz. (See, e.g., Exhib-
`
`it 1016, Specification of the Bluetooth System Version 1.0B (“Bluetooth 1.0B”),
`
`December 1, 1999, p. 19.) To avoid interfering with other devices and networks in
`
`the ISM band, the prior art Bluetooth protocol divided the frequency band into 79
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`- 13 -
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`channels of 1 MHz bandwidth and executed frequency hopping at a rate up to 1600
`
`hops per second. (Id., p. 43.) Two Bluetooth devices communicated in a master-
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`slave mode relationship in order to synchronize transmission and reception fre-
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`quency hopping. (Id., pp. 41-42.) A network group of up to eight participant de-
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`vices form a piconet which is a local wireless network controlled by one master
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`node to facilitate data communications. (Id.) FIG. 1.2 from Bluetooth 1.0B illus-
`
`trates exemplary piconets.
`
`
`
`VIII. Claim Construction
`35. The term “hopping sequence” is used in claims 9, 10, 22, and 24.
`
`This term is a well-understood term of art. (See, e.g., Bluetooth Version 1.0B, pp.
`
`127-133.) The specification uses the term in accordance with its well-understood
`
`meaning stating that “[t]he order in which the communication network hops among
`
`the set of frequencies is known as the hopping sequence.” (’624 patent, 2:11-13.)
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`
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`IX. Gerten
`A. Overview of Gerten
`36. Gerten is directed “to a system and method for removing channels in a
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`frequency hopping scheme having strong interference or interferers in a wireless
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`communication system.” (Gerten, 2:34-37.) FIG. 1 of Gerten (reproduced below)
`
`depicts a network having three piconets 10, 12, and 14. (Id., 3:8-12.) As shown in
`
`FIG. 1, the first piconet 10 has a plurality of mobile units 20 including a master
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`mobile unit and a slave mobile unit. (Id., 3:27-31.) The master mobile unit in Ger-
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`ten is a device “whose clock and hopping sequence are employed to synchronize
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`other devices in the piconet —devices in a piconet that are not the master are typi-
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`cally slaves.” (Id., 3:22-26.)
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`37. The mobile device 20 of Gerten, depicted below in FIG. 2, includes a
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`transceiver 32, a frequency synthesizer 60 having a memory 62, and a central con-
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`trol system 30 that can include “a processor or the like that is programmed to con-
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`trol and operate various components within the mobile communication unit 20 in
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`order to carry out various functions.” (Id., 3:44-48.) The “frequency synthesizer
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`component 60 cooperates with the central control system 30 and a device clock 64
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`to provide frequency hopping for the mobile communication unit 20.” (Id., 3:65-
`
`4:1)
`
`
`
`38.
`
`In operation, a master device determines “which channels have [the]
`
`strongest interference.” (Id., 4:50-51.) For example, the master device may em-
`
`ploy “signal strength measurements on N number of channels (N being an integer)
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`of the frequency hopping scheme to determine M number of channels (M being an
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`- 16 -
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`integer less than or equal to N) to avoid.” (Id., 2:37-41.) The master device com-
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`municates the channels to be avoided (the bad channels) to a remote device. (Id.,
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`2:41-47.) The master and remote device then modify their respective hopping se-
`
`quences and begin transmitting data at the modified hopping sequence with the
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`remaining N-M good channels. (Id., 2:47-52.) As explained by Gerten, “[t]he fre-
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`quency hopping scheme can be modified by providing a first register bank storing
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`synthesizer codes for generating frequency hopping over the N total channels in
`
`normal mode with an alternate register bank storing synthesizer codes for generat-
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`ing frequency hopping over N-M channels for interference avoidance mode.” (Id.,
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`2:47-52.) The master device “periodically updates the channels to be avoided.”
`
`(Id., 4:58-59.) When a subsequent update occurs, the master device again com-
`
`municates the channels to be avoided to a remote device and they both modify
`
`their respective hopping sequences again. (Id., 4:62-65.)
`
`B.
`Independent claim 9
`39. Gerten discloses each and every limitation recited in claim 9. Claim 9
`
`is reproduced below. The claim limitations have been labeled for ease of discus-
`
`sion.
`
`9. [P] A computer-readable medium carrying instructions for manag-
`
`ing the use of communications channels for a communications system,
`
`wherein processing of the instructions by one or more processors causes:
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`[A] selecting, based upon performance of a plurality of communica-
`
`tions channels at a first time, a first set of two or more communications
`
`channels from the plurality of communications channels;
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`[B] the first set of two or more communications channels to be used
`
`for communications between a pair of participants;
`
`[C] selecting, based upon performance of the plurality of communica-
`
`tions channels at a second time that is later than the first time, a second set of
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`two or more communications channels from the plurality of communications
`
`channels; and
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`[D] the second set of two or more communications channels to be
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`used for communications between the pair of participants instead of the first
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`set of two or more communications channels,
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`[E] wherein the pair of participants includes a first participant and a
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`participant, wherein a default set of two or more communications channels is
`
`associated with a hopping sequence and is not changed based on the perfor-
`
`mance of the plurality of communications channels, and the computer-
`
`readable medium further comprising instructions, which when processed by
`
`the one or more processors, cause:
`
`[F] the first participant communicating with a third participant over
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`the default set of two or more communications channels while communi-
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`- 18 -
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`
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`cating with the second participant over the first set of two or more commu-
`
`nications channels and while communicating with the second participant
`
`over the second set of two or more communications channels.
`
`1. Gerten discloses “[a] computer-readable medium carrying in-
`structions for managing the use of communications channels
`for a communications system, wherein processing of the in-
`structions by one or more processors causes” [9P] a set of ac-
`tions to occur.
`
`40.
`
` Gerten includes a memory (a type of computer-readable medium)
`
`for storing (or carrying) instructions, and more specifically a memory storing in-
`
`structions that when processed by the processor of Gerten cause the channel selec-
`
`tion actions of limitations [9A] and [9C] and the channel use actions of limitations
`
`[9B], [9D], and [9F] (discussed below) to occur.
`
`41. As illustrated above in FIG. 1, a piconet of Gerten is “a collections
`
`[sic] of devices that can be connected via Bluetooth technology.” (Gerten, 3:8-12.)
`
`This collection of devices is a communications system. The master mobile unit of
`
`the piconet includes a central control system 30 that “is responsible for controlling
`
`general operations of the mobile communication unit 20.” (Gerten, 3:40-44.) One
`
`of the operations controlled by the central control system is the channel identifica-
`
`tion algorithm of Gerten. This operation is a function for managing the use of
`
`communications channels and is disclosed by Gerten as utilizing software in the
`
`central control system 30: “The identification algorithm can use hardware (e.g.,
`
`- 19 -
`
`
`
`measurement power component 66) and software (e.g., residing in central control
`
`system 30) to read signal strength of channels and determine which channels to
`
`avoid.” (Gerten, 5:20-24, emphasis added.)
`
`42. As was well-known to one of ordinary skill in the art well prior to
`
`January 2001, software consists of a set of instructions used to program a processor
`
`to perform a specific task. A processor retrieves the instructions from memory and
`
`executes them to carry out the task. Because Gerten discloses that the identifica-
`
`tion algorithm uses software residing in central control system 30 to read the signal
`
`strength of channels and to determine which channels to avoid, the set of instruc-
`
`tions that make up the software are necessarily stored in a memory and processed
`
`by a processor.
`
`43.
`
`In fact, Gerten discloses such a memory and processor. Specifically,
`
`Gerten discloses that “[t]he central control system 30 can include a processor or
`
`the like that is programmed to control and operate various components within the
`
`mobile communication unit 20 in order to carry out various functions.” (Id., 3:44-
`
`48, emphasis added.) Gerten further discloses that “[t]he memory component 62
`
`may include a plurality of register banks for storing synthesizer codes that are em-
`
`ployed to facilitate frequency hopping. Alternatively, the register banks may reside
`
`in the central control system 30 (e.g., in a memory component, onboard registers
`
`- 20 -
`
`
`
`or memory in a processor or in separate register components).” (Id., 4:1-6, em-
`
`phasis added.) In order for the software that resides in central control system 30 to
`
`be used for channel identification, the set of instructions making up the software is
`
`necessarily stored in memory and processed by the processor.
`
`2. Gerten discloses “selecting, based upon performance of a plu-
`rality of communications channels at a first time, a first set of
`two or more communications channels from the plurality of
`communications channels” [9A].
`
`44.
`
` Gerten selects a first set of two or more communications channels
`
`based upon scanning the performance of a plurality of communications channels.
`
`In Gerten, “the master device performs a channel scan at completion of its last
`
`transmission (step 120) and determines which channels have strongest interfer-
`
`ence.” (Gerten, 4:47-51.) As shown in the example in Gerten, the master unit of
`
`Gerten performs signal strength measurements on N channels in a frequency hop-
`
`ping scheme to determine each channel’s performance. (Id., 2:37-41.) Based on
`
`the performance data, the master unit determines “M number of channels (M being
`
`an integer less than or equal to N) to avoid.” (Id.) This selection process of Gerten
`
`occurs at a first time. The system of Gerten then “modif[ies] the frequency hop-
`
`ping scheme to avoid transmission over the M channels.” (Id., 2:41-42.) The re-
`
`sulting set of channels (N-M) used in the modified hopping sequence is the “first
`
`- 21 -
`
`
`
`set of two or more communications channels from the plurality of communications
`
`channels.” (See, e.g., id., 2:47-52.)
`
`3. Gerten discloses “the first set of two or more communications
`channels to be used for communications between a pair of par-
`ticipants” [9B].
`45. After the master unit of Gerten selects the first set of two or more
`
`communications channels, the master unit communicates the M channels to be
`
`avoided “to [remote mobile] units involved in the communication system, so that
`
`the members of the wireless communication system can frequency hop together
`
`over the modified frequency hopping scheme.” (Gerten, 2:43-47, emphasis add-
`
`ed.) Once the mobile units “modify their respective hopping sequences . . . [then
`
`i]n step 170, the master device and the remote device begin transmitting data at the
`
`modified hopping sequences.” (Id., 4:54-58.) Accordingly, in Gerten, “the first set
`
`of two or more communications channels [are] used for communications between a
`
`pair of participants.”
`
`4. Gerten discloses “selecting, based upon performance of the
`plurality of communications channels at a second time that is
`later than the first time, a second set of two or more communi-
`cations channels from the plurality of communications chan-
`nels” [9C].
`
`46.
`
` After establishing a modified hopping sequence “at a first time” (as
`
`discussed above), the master unit of Gerten “periodically updates the channels to
`
`be avoided.” (Gerten, 4:58-59, emphasis added; see also, Fig. 3 (block 180).)
`
`- 22 -
`
`
`
`When a subsequent update occurs, the master unit repeats the identification process
`
`described above: the master unit determines [M2] number of channels ([M2] being
`
`an integer less than or equal to N) to avoid. (Id., 2:37-52; see also id., 9:64-10:2,
`
`“[e]ach time the master decides to update the channels to be avoided, a new packet
`
`is sent . . . . Preferably, a master and slave can remain in the interference avoidance
`
`hop mode for the duration of their connection.”) The subsequent update occurs at
`
`a second time that is later than the first time. The system of Gerten then “mod-
`
`if[ies] the frequency hopping scheme to avoid transmission over the [M2] chan-
`
`nels.” (Id., 2:41-42, FIG. 3, block 180.) I use M2 to reflect that the value of M
`
`could change during a subsequent update. The resulting set of channels (N-M2) is
`
`the “second set of two or more communications channels from the plurality of
`
`communications channels.” (See, e.g., id., 2:47-52.)
`
`5. Gerten discloses “the second set of two or more communica-
`tions channels to be used for communications between the pair
`of participants instead of the first set of two or more communi-
`cations channels” [9D].
`
`47.
`
` The first set of two or more communications channel are used until
`
`the master device repeats the selection process and communicates a new set of M2
`
`channels to be avoided to remote mobile units involved in the communication sys-
`
`tem. (Id., 4:58-65.) The remote mobile units modify their respective hopping se-
`
`quences based on the new set of M2 channels, and then “the master device and the
`
`- 23 -
`
`
`
`remote device begin transmitting data at the modified hopping sequences.” (Id.,
`
`4:54-58.) In Gerten, “the second set of two or more communications channels
`
`[are] used for communications between the pair of participants instead of the first
`
`set of two or more communications channels.”
`
`6. Gerten discloses “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 perfor-
`mance of the plurality of communications channels” [9E].
`48. As illustrated in FIG. 1 above, the piconet 10 of Gerten includes “a
`
`plurality of mobile units 20 each wirelessly communicating with one another
`
`through an antenna 21.” (Gerten, 3:27-29.) Gerten explains that the piconet can
`
`start with “two connected devices . . . and may grow to eight connected devices.”
`
`(Id., 3:10-14.) Specifically, the piconet includes a master unit (first participant)
`
`and multiple slave units (second and third participants).
`
`49. The wireless communications devices of Gerten have two modes of
`
`operation – normal mode and interference avoidance mode: “The frequency hop-
`
`ping scheme can be modified by providing a first register bank storing synthesizer
`
`codes for generating frequency hopping over the N total channels in normal mode
`
`with a
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