Paper 11
`Entered: February 16, 2016
`
`Trials@uspto.gov
`571-272-7822
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`
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01724
`Patent 5,915,210
`____________
`
`Before MEREDITH C. PETRAVICK, SCOTT A. DANIELS, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`DECISION
`Decision on Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`Entered: February 16, 2016
`
`Trials@uspto.gov
`571-272-7822
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2015-01724
`Patent 5,915,210
`____________
`
`Before MEREDITH C. PETRAVICK, SCOTT A. DANIELS, and
`MIRIAM L. QUINN, Administrative Patent Judges.
`
`DANIELS, Administrative Patent Judge.
`
`DECISION
`Decision on Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
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`IPR2015-01724
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`I. INTRODUCTION
`
`A. Background
`Petitioner, Samsung Electronics Co., Ltd., filed a Petition to institute
`an inter partes review of claims 1, 7, 8, 10, 15–17, and 19 of U.S. Patent No.
`5,915,210 (“the ’210 patent”). Paper 1 (“Pet.”). Patent Owner, Mobile
`Telecommunications Technologies, LLC, timely filed a Preliminary
`Response. Paper 10 (“Prelim. Resp.”).
`We have authority to determine whether to institute an inter partes
`review under 35 U.S.C. § 314 and 37 C.F.R. § 42.4(a). Upon consideration
`of the evidence in the Petition and the Preliminary Response, we determine
`that Petitioner has established a reasonable likelihood of prevailing on the
`claims challenged in the Petition. Accordingly, we institute an inter partes
`review of claims 1, 7, 8, 10, 15–17, and 19 of the ’210 patent.
`B. Additional Proceedings
`Petitioner states that the ’210 patent is asserted against Petitioner in
`the U. S. District Court for the Eastern District of Texas Mobile
`Telecommunications Technologies, LLC v. Samsung Electronics Co., Case
`No. 2:15-CV-183. Pet. 1. Petitioner also notes that the ’210 patent is
`asserted against other parties in at least (1) Mobile Telecommunications
`Technologies, LLC v. Apple Inc., Case No. 2:13-CV-258; (2) Mobile
`Telecommunications Technologies, LLC v. Leap Wireless International, Inc.,
`Case No. 2-13-CV-885; (3) Mobile Telecommunications Technologies, LLC
`v. T-Mobile USA, Inc., Case No. 2-13-CV-886; and (4) Mobile
`Telecommunications Technologies, LLC v. AT&T Mobility LLC, Case No.
`2:14-CV-897, all in the Eastern District of Texas. Id. at 1–2.
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`Petitioner states further that the ’210 patent was also challenged in
`other inter partes review proceedings, namely Apple Inc. v. Mobile
`Telecommunications Technologies, LLC, Case IPR2014-01036 (PTAB June
`27, 2014); and T-Mobile USA Inc. v. Mobile Telecommunications
`Technologies, LLC, Case IPR2015-00015 (PTAB filed Oct. 3, 2014).1
`C. The ’210 Patent
`The ’210 patent (Ex. 1001), titled “Method and System for Providing
`Multicarrier Simulcast Transmission,” describes a system for two-way
`communication between a network operations center and a mobile device
`located somewhere in a wide geographic region. Ex. 1001, Abstract. The
`’210 patent explains that an important aspect of the invention is to “provide
`a communication system with wide area coverage and high message
`throughput while minimizing frequency bandwidth usage.” Id. at 4:46–48.
`Annotated Figure 6 of the ’210 patent, reproduced below, illustrates
`the major components of the communication system for sending a data
`signal between networks operation center 600, highlighted in yellow, and
`mobile unit 624, highlighted in green. Id. at 8:46–48.
`
`
`1 IPR2014-01036 and IPR2015-00015 were both terminated pursuant to
`settlement agreements between the respective parties. See T-Mobile USA,
`Inc. v. Mobile Telecomms. Techs., LLC, Case IPR2015-00015 (PTAB filed
`Oct. 3, 2014) (Paper 14); Apple Inc. v. Mobile Telecomms. Techs., LLC,
`Case IPR2014-01036 (PTAB filed June 27, 2014) (Paper 20).
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`Annotated Figure 6 is a schematic diagram of a communication
`system.
`As depicted by Figure 6 of the ’210 patent, above, the communication
`system provides network operations center 600 connected to satellite uplink
`602, which in turn, provides data to satellite 606. Id. at 8:48–51. Satellite
`606 communicates the received data to several satellite downlink stations
`608, 610. Id. at 8:52–53. Satellite downlink stations 608, 610 send the data
`signal to geographically spaced apart base transmitters 612, 614 which emit
`the signal via antennas 620 and 622, respectively, in different geographic
`defined regions, i.e., “zones,” for reception by mobile unit 624. Id. at 8:62–
`9:5. Dash line 660 indicates the boundary between zones 1 and 2, and each
`zone may include additional base transmitters 613, 615, respectively, as
`shown in Figure 6. Id. at 8:62–9:56. Mobile unit 624, shown in zone 1, is a
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`portable communication device, for instance, a pager, and can both receive
`and transmit a signal. Id. at 9:6–11.
`
`Observing Figure 6 of the ’210 patent, above, in one embodiment of
`the invention base transmitters 612, 614 receive a data signal from satellite
`606 via down link stations 608, 610, and then transmit the same data signal
`at the same time, i.e., in simulcast, in both zones 1 and 2, to be received by
`mobile unit 624. Id. at 10:35–41. The ’210 patent explains that this method
`is “useful to deliver the message if, for example, the location of mobile unit
`624 in zone 1 or zone 2 is unknown and broad coverage is desired.” Id. at
`10:41–44 (emphasis added). In another embodiment, if for instance the
`location of mobile unit 624 is known to be in zone 1, base transmitter 614
`transmits a data signal within zone 1, and at the same time, base transmitter
`612 can transmit different data for a different mobile unit within zone 2 to
`“increase information throughput and system efficiency.” Id. at 10:45–59.
`D. Illustrative Claim
`Claims 1, 10, and 19 are independent. Claim 1 illustrates the claimed
`subject matter and is reproduced below:
`1. A multi-carrier simulcast transmission system for transmitting
`in a desired frequency band at least one message contained in an
`information signal, the system comprising:
`a first transmitter configured to transmit a first plurality of
`carrier signals within the desired frequency band, each
`of the first plurality of carrier signals representing a
`portion of the information signal substantially not represented
`by others of the first plurality of carrier signals; and
`a second transmitter, spatially separated from the first
`transmitter, configured to transmit a second plurality of
`carrier signals in simulcast with the first plurality of
`carrier signals, each of the second plurality of carrier
`signals corresponding to and representing substantially
`the same information as a respective carrier signal of
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`the first plurality of carrier signals.
`
`
`E. The Alleged Grounds of Unpatentability
`Petitioner contends that the challenged claims are unpatentable on the
`following specific grounds.2
`
`References
`Saalfrank3
`Saalfrank and
`Nakamura4
`
`
`Basis
`§ 102
`§ 103
`
`Claims Challenged
`1, 7, 10, 16, 17, and 19
`8, 15, and 19
`
`II. CLAIM CONSTRUCTION
`A. Legal Standard
`The ’210 patent is expired, and “the Board’s review of the claims of
`an expired patent is similar to that of a district court’s review.” In re
`Rambus, Inc., 694 F.3d 42, 46 (Fed. Cir. 2012). In this context, claim terms
`generally are given their ordinary and customary meaning, as understood by
`a person of ordinary skill in the art, at the time of the invention, taking into
`consideration the language of the claims, the specification, and the
`prosecution history of record because the expired claims are not subject to
`
`
`2 Petitioner supports its challenge with a Declaration of Dr. Apostolos K.
`Kakaes, Ph.D. (Ex. 1003,“Kakaes Decl.”). See infra.
`3 Ex. 1008, DE 41 02 408 A1 (filed Jan. 28, 1991).
`4 Ex. 1009, Yasuhisa Nakamura, Yoichi Saito, and Satoru Aikawa, 256
`QAM Modem for Multicarrier 400 Mbit/s Digital Radio, IEEE JOURNAL ON
`SELECTED AREAS IN COMMUNICATIONS, Vol. SAC-5, NO. 3 April 1987, at
`329.
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`amendment. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir.
`2005) (en banc).
`The challenged claims also include means-plus-function limitations.
`The Office interprets limitations arising under 35 U.S.C. § 112, paragraph
`six, in light of the corresponding structure, material or acts described in the
`specification. In re Donaldson Co., 16 F.3d 1189, 1193 (Fed. Cir. 1994)
`(“[P]aragraph six applies regardless of the context in which the
`interpretation of means-plus-function language arises, i.e., whether as part of
`a patentability determination in the PTO or as part of a validity or
`infringement determination in a court.”).
`
`1. A . . .transmitter
`Petitioner asserts that “a . . . transmitter” as recited in independent
`claims 1 and 10 should be given its plain and ordinary meaning “with the
`understanding that transmitting multiple signals or outputs from a single
`structural unit is not itself sufficient to constitute a plurality of transmitters.”
`Pet. 5 (citing Ex. 1004, 6). After reviewing the Specification, and observing
`that Figure 13 discloses a schematic diagram of a base transmitter, we
`understand that a transmitter can include a plurality of modulators 1306,
`1308, 1310, 1314, each producing a respective carrier signal F1, F2, F3, and
`Fn. Ex. 1001, 15:49–63. The carrier frequencies from the modulators are
`combined by combiner 1316 into a single output signal, amplified, and then
`broadcast by antenna 1320. Id. at 15:67–16:13. Claim 1 also specifies that a
`transmitter (singular) “transmit[s] a . . . plurality of carrier signals.”
`We find Petitioner’s contention that “a . . . transmitter” be given its
`plain and ordinary meaning, to be reasonable. To be consistent with the
`usage of this term in the Specification and claim language of the ’210 patent,
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`the plain and ordinary meaning of “transmitter” (singular) includes a device
`capable of transmitting a plurality of carrier signals combined as a single
`output.
`
`2. Means for transmitting a [] plurality of carrier signals
`Independent claim 19 includes the limitations, “means for transmitting
`a first plurality of carrier signals,” and “means for transmitting a second
`plurality of carrier signals.” Petitioner proposes that under the Phillips
`standard, the function for the “means for transmitting” is “transmitting a first
`plurality of carrier signals within the desired frequency band.” Pet. 9. For
`the second plurality of carrier signals Petitioner proposes the function is
`“transmitting a second plurality of carrier signals in simulcast with the first
`plurality of carrier signals.” Id.
`For the first limitation, Petitioner asserts that the corresponding
`structure is either
`“base transmitter 1300 including data input 1302, control logic
`1304, modulators 1306-1314, combiner 1316, power amplifier
`1318, and an antenna 1320, as depicted in Figure 13; and
`equivalents thereof,” or “base transmitter 1400 including data
`input 1402, control logic 1404, modulators 1406-1414, power
`amplifiers 1416-1424, combiner 1426, and an antenna 1428, as
`depicted in Figure 14; and equivalents thereof.”
`Id. at 10. For the second limitation, Petitioner asserts that the corresponding
`structure is either
`“at least a second geographically separated base transmitter
`1300 including data input 1302, control logic 1304, modulators
`1306-1314, combiner 1316, power amplifier 1318, and an
`antenna 1320, as depicted in Figure 13; and equivalents
`thereof” or “at least a second geographically separated base
`transmitter 1400 including data input 1402, control logic 1404,
`modulators 1406-1414, power amplifiers 1416-1424, combiner
`1426, and an antenna 1428, as depicted in Figure 14; and
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`equivalents thereof.”
`
`Id.
`
`The presence of the term “means for” in these limitations
`presumptively invokes 35 U.S.C. § 112, paragraph six. CCS Fitness, Inc. v.
`Brunswick Corp., 288 F.3d 1359, 1369 (Fed. Cir. 2002). Absent evidence to
`the contrary, we agree that the claim should be construed under 35 U.S.C.
`§ 112, paragraph six, and we also agree with Petitioner’s identification of the
`functions, as they are essentially the specific functions unambiguously
`expressed in claim 19 for each limitation. Our review of the Specification
`reveals that the structure disclosed for performing the function of
`“transmitting a first plurality of carrier signals” is base transmitter 1300, and
`alternatively, base transmitter 1400 as shown in Figures 13 and 14. Ex.
`1001, 15:47–16:30; Figs. 13–14. Similarly, the Specification is
`unambiguous that embodiments of the base transmitter, for example, base
`transmitter 1300 and 1400 are “means for transmitting a second plurality of
`carrier signals,” as recited in claim 19. Id. at 8:51–64, 15:47–16:30; Figs. 6,
`13–14. As pointed out by Petitioner, the Specification also clearly indicates
`that each of the plurality of base transmitters are “spatially separated” across
`a geographic area. Id. at 8:63–9:5, Fig. 6. Although the Specification does
`not use specifically the term “geographically separated,” in the context of
`the disclosure of network transmitters and receivers having the “capability to
`uniformly cover a geographic region,” including the figures and the plain
`meaning of the written description in the ’210 patent, it is a reasonable
`interpretation that spatial separation is, in fact, geographic separation. See
`id. at 26–27.
`We find Petitioner’s proposed construction to be reasonable. For
`purposes of this Decision, the corresponding structure for “means for
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`transmitting a first plurality of carrier signals” includes base transmitter
`1300 having control logic system 1304, a plurality of modulators 1306, 1308
`. . . n, combiner 1316 for combination of modulated signals into a single
`output signal, amplifier 1318 and broadcast antenna 1320 as shown and
`described in Figure 13 of the ’210 patent and equivalents. Id. at 15:47–
`16:13, Fig. 13. The corresponding structure also includes base transmitter
`1400 having control logic system 1404, a plurality of modulators 1406, 1408
`. . .n, a plurality of amplifiers 1416, 1418 . . .n, combiner 1426 for
`combination of the modulated and amplified signals into a single output
`signal, and broadcast antenna 1428 as shown and described in Figure 14 of
`the ’210 patent and equivalents. Id. at 16:14–30, Fig.14. We identify the
`corresponding structure for “means for transmitting a second plurality of
`carrier signals” as a second geographically separated base transmitter
`including the same structure described above with respect to the
`embodiments of Figures 13 and 14 of the ’210 patent and equivalents. Id. at
`15:47–16:30, Figs. 13–14.
`3. Means for modulating
`Claim 7 depends directly from claim 1 and includes the phrases
`“means for modulating the first plurality of carrier signals,” and “means for
`modulating the second plurality of carrier signals.” We determine for
`purposes of this Decision that these phrases should also be construed under
`35 U.S.C. § 112, paragraph six, apart from the term “transmitter.” The
`function of “means for modulating” is explicit in the claim language as to
`modulating carrier signals and we identify the corresponding structure as a
`modulator as shown and described in Figures 11, 13, and 14 and its
`equivalents. Ex. 1001, 15:49–16:30.
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`4. Transmitting in simulcast
`Independent claims 1, 10, and 19 recite the phrases “transmitting . . .
`in simulcast,” and, “transmit . . . in simulcast.” According to Petitioner, the
`term “in simulcast” means: “at the same time.” Pet. 11. Patent Owner does
`not dispute this interpretation. Prelim. Resp. 9.
`The Specification describes that “[g]enerally, simulcast technology
`provides multiple transmitters, operating on substantially the same
`frequencies and transmitting the same information positioned to cover
`extended areas.” Ex. 1001, 1:52–55. Although the Specification does not
`specifically state that the information is transmitted “at the same time,” the
`plain meaning of the word “simultaneously” as used throughout the written
`description is, “at the same time.” See Id. at 1:46–65, 6:1–21, Figs. 7, 26.
`Accordingly, for purposes of this Decision, the plain meaning of
`“transmitting . . . in simulcast,” and “transmit . . . in simulcast” is:
`transmitting at the same time.
`5. Representing substantially the same information
`Patent Owner contends that the phrase “representing substantially the
`same information” as recited in claims 1, 10, and 19 means, “the first
`plurality of carrier signals and the second plurality of carrier signals
`substantially represent the same information.” Prelim. Resp. 7. This
`asserted claim construction by Patent Owner is, however, merely a
`restatement, essentially interchanging the words “representing” and
`“substantially,” of the express claim language. We are not persuaded, on the
`record before us at this point in the proceeding, that this phrase needs to be
`construed.
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`6. Each of the first plurality of carrier signals representing a
`portion of the information signal substantially not represented
`by others of the first plurality of carrier signals
`Patent Owner asserts that the phrase “each of the first plurality of
`carrier signals representing a portion of the information signal substantially
`not represented by others of the first plurality of carrier signals” as recited in
`claims 1, 10, and 19 means “each of the first plurality of carrier signals
`represent a different portion of the information signal,” without excluding
`the possibility of some slight overlap between the different portions.”
`Prelim. Resp. 9–10. Patent Owner does not explain sufficiently why this
`phrase needs interpretation. We are cognizant that the word “different” in
`the proposed construction may have the same or similar meaning as the
`recitation “not represented by others . . .,” but the plain meaning of the claim
`is readily apparent, that is, by and large different portions of the information
`signal are carried by each carrier signal. Also, we understand from reading
`the claims that the carrier signals are not excluded from carrying some of the
`same information. It is well settled that the term “substantially” is often
`used to mean largely but not wholly what is specified. See, e.g., York
`Prods., Inc., v. Central Tractor Farm & Family Center, 99 F.3d 1568, 1572-
`73 (Fed. Cir. 1996); See also Amhil Enterprises Ltd. v. Wawa, Inc., 81 F.3d,
`1554, 1562, (Fed. Cir. 1996). Accordingly, on the record before us, we are
`not persuaded this phrase requires construction.
`III. ANALYSIS
`We turn now to Petitioner’s asserted grounds of unpatentability to
`determine whether Petitioner has met the threshold standard of 35 U.S.C.
`§ 314(a).
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`A. Claims 1, 7, 10, 16, 17, and 19 – Anticipation by Saalfrank
`Petitioner asserts that claims 1, 7, 10, 16, 17, and 19 would have been
`anticipated by Saalfrank.5 Pet. 13–34. Claims 1, 10, and 19 are
`independent. Petitioner has established a reasonable likelihood of prevailing
`on its assertion that claims 1, 7, 10, 16, 17, and 19 are anticipated for the
`reasons explained below.
`1. Overview of Saalfrank
`Saalfrank discloses particular aspects of “common-wave radio
`operation of a transmitter,” including digital audio broadcasting (“DAB”) a
`digital radio broadcasting technology by which transmitter stations in a
`particular geographic region “simultaneously emit transmission signals with
`the same modulation content on the very same transmission frequency
`and/or the same carrier frequencies.” Ex. 1008, col. 1 ¶ 4. Saalfrank
`explains that broad area coverage is accomplished by providing at least 4
`different transmission channels in a particular bandwidth B, where the
`frequency bandwidth totals 4 x B. Id. at col. 1 ¶ 7– col. 2 ¶ 1.
`Saalfrank also describes a transmission procedure referred to as
`Coded Orthogonal Frequency Division Multiplex (“COFDM”) using a
`carrier frequency across a bandwidth of 1.5 MHz, and “[w]ithin the channel
`bandwidth available here a plurality of individual carriers (e.g., 448 carrier
`frequencies equidistantly spaced over the frequency axis) is impinged with a
`4-DPSK-modulation.” Id. at col. 1 ¶ 5. Referring to Figure 1a, Saalfrank
`explains that within a region of a larger area network, “carrier frequencies
`are transmitted simultaneously with equidistant frequency distances Δf in a
`
`5 Petitioner’s heading “[GROUND 1]” references claim 1, 7–8, 10, and 15–
`17. The Petition actually discusses with respect to anticipation, claims 1, 7,
`10, 16, 17, and 19. See Pet. 13–34.
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`frequency range with the bandwidth B. The individual carriers are each
`modulated with one part of the digital data, with the modulation content of
`the individual carriers being identical for all transmitter stations of the
`transmission region.” Id. at col. 2 ¶ 8.
`Although Saalfrank’s disclosure relates specifically to a radio
`network, the written description further explains that the transmitted data
`content is not limited to radio signals, and could include partial or complete
`information, or control data, as well as image data. Id.
`2. Discussion
`Independent Claims 1, 10, and 19
`Petitioner contends that Saalfrank discloses a network of transmitter
`stations that simultaneously transmit signals having the same modulation
`content. Pet. 13. Petitioner argues that 4-DPSK-modulation described in
`Saalfrank is a type of multicarrier modulation where, “each of the
`transmitted Saalfrank carrier signals represent a portion of the information
`signal substantially not represented by others of the plurality of carrier
`signals. Pet. 15 (citing Ex. 1015, col. 2 ¶ 9). Petitioner supports this
`argument with Dr. Kakaes’s Declaration, which states that in Saalfrank “the
`digital data that represents the multiple stereo radio programs is split into
`multiple ‘parts’ and each different ‘part’ is used to modulate one of the
`multiple carrier signals.” Ex. 1003 ¶ 26.
`Petitioner points to an annotated version of Saalfrank’s Figure 1a,
`reproduced below, contending that Figure 1a illustrates the signals
`transmitted by each of Saalfrank’s transmitters.
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`Annotated Figure 1a of Saalfrank illustrates carrier frequencies 1, 2, 3
`. . . n within the frequency band B, each of which carry a portion of the radio
`program. Based on Saalfrank’s explanation that the modulation content of
`the individual carriers is identical for all transmitter stations in a region,
`Petitioner concludes that “one of ordinary skill in the art would have
`[under]stood this to mean that each of the plurality of transmitters in a region
`of Saalfrank’s system transmits the same set of carrier signals illustrated in
`the previous annotation of FIG. 1a.” Pet. 16 (citing Ex. 1003 ¶ 26). Relying
`on Dr. Kakaes’s testimony, Petitioner also points out that one of ordinary
`skill in the art would understand from Saalfrank’s description of a
`“nationwide communication network,” that the transmitter stations in a
`given region are “spatially separated” to provide appropriate broadcasting
`coverage throughout the geographic region. Pet. 19 (citing Ex. 1003 ¶ 26).
`Patent Owner argues that “[n]othing in Saalfrank precludes
`modulating two carriers with the same part of the digital data.” Prelim.
`Resp. 10, 15–16. This is not persuasive because Saalfrank discloses that
`carrier frequencies 1, 2, 3. . . n, offset by ∆f, carry different portions of the
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`radio program for example as shown in annotated Figure 1a, above. It is not
`necessary that the reference teach what the ’210 patent teaches, but only that
`the claim read on something disclosed in the reference, i.e., that all of the
`limitations in the claim be found in or fully met by the reference. Kalman v.
`Kimberly-Clark Corp., 713 F.2d 760, 772 (1984).
`Patent Owner also asserts that Saalfrank does not teach “transmit[ing]
`[a] second plurality of carrier signals in simulcast with the first plurality of
`carrier signals” as recited in each of independent claims 1, 10, and 19. Id. at
`11, 16–18. We are not persuaded by this argument because Saalfrank states
`that “in a certain region all transmitter stations simultaneously emit
`transmission signals with the same modulation content.” Ex. 1015, 2.
`Patent Owner argues further that Saalfrank’s disclosure of carrier
`frequencies modulated with additional transmitter specific identification
`information means that “the information transmitted by each transmitter
`differs.” Prelim. Resp. 17. We are not persuaded, however, that the claim
`language precludes the transmitted information being somewhat different.
`Claim 1 recites for example “the second plurality of carrier signals
`corresponding to and representing substantially the same information as . . .
`the first plurality of carrier signals. Ex. 1001, 33:59–62 (emphasis added).
`We are persuaded by the evidence of record that Saalfrank discloses
`each of the limitations of claim 1, as well as the method steps of “generating
`. . . carrier signals,” and “transmitting . . . carrier signals,” as called for in
`claim 10. We are also persuaded that Saalfrank discloses the requisite
`function and structure of “means for transmitting a [] plurality of carrier
`signals” as recited in claim 19 and as interpreted under 35 U.S.C. § 112,
`paragraph six, in our claim construction above. For these reasons, Petitioner
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`has established a reasonable likelihood of prevailing on the ground of
`unpatentability of claims 1, 10, and 19 as anticipated by Saalfrank under
`35 U.S.C. § 102(b).
`
`Dependent Claims 7, 16, and 17
`Claim 7 depends directly from claim 1, and claims 16 and 17 each
`depend directly from independent method claim 10. Because these
`dependent claims similarly relate to using “modulation schemes” for
`modulating the first and second carrier signals, we address these dependent
`claims together.
`Claim 7, for example, depends from claim 1 and recites the additional
`limitations
`wherein the first transmitter comprises means for modulating
`the first plurality of carrier signals using a modulation scheme,
`and the second transmitter comprises means for modulating the
`second plurality of carrier signals using the modulation scheme.
`
`Ex. 1001, 34:18–22.
`Petitioner argues that should we interpret “means for modulating”
`under 35 U.S.C. § 112, paragraph six as “a transmitter, and equivalents” as
`purportedly asserted by Patent Owner in a related lawsuit, then Saalfrank
`anticipates. Pet. 21. Apart from this, Petitioner does not provide a specific
`claim construction for “means for modulating.”
`Patent Owner does not raise any substantive arguments with respect to
`claims 7, 16, and 17, but asserts that these claims are not anticipated because
`claims 1 and 10 are not anticipated. Prelim. Resp. 3.
`We are not apprised on this record, by either party, of any reason or
`explanation that the term “means for modulating” is not subject to
`interpretation as a means-plus-function limitation under 35 U.S.C. § 112,
`17
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`IPR2015-01724
`Patent 5,915,210
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`paragraph six. From the express claim language itself we understand the
`function to be “modulating the [] plurality of carrier signals using a
`modulation scheme.” We are not persuaded that the corresponding structure
`that performs this function, however, is specifically a “transmitter.”
`Conventionally, a modulator or “modem,” is a ubiquitous electronic device
`that performs modulation “whereby information is superimposed onto a RF
`carrier to transport signals through a communications channel.”
`http://ieeexplore.ieee.org/xpls/dictionary.jsp?stdDict=browse_keyword&pag
`eNumber=1&def_term=modulation&def_id=&stdDictionary_tarid=&stdDic
`tionary_tarn=null&stdDictionary_scn=Aerospace+Electronics&nav= (last
`visited Jan, 14, 2016). The Specification of the ’210 patent describes
`modulators, e.g. modulators 1306, 1308, 1310, as components of transmitter
`1300, referencing the modulators as distinct structures. See Ex. 1001,
`15:49–63; Fig. 13. Although a transmitter commonly includes a modulator,
`or modulators, to vary or regulate the characteristics of the carrier signal and
`thus transmit a signal including meaningful information through a channel to
`a receiver, a transmitter may also send un-modulated carrier signals. Thus,
`we understand a modulator to be a distinct component of a transmitter.
`Moreover, as described in our claim construction, “transmitter,” is explicitly
`recited in claim 7 as a different element from a “means for modulating.”
`Equating these terms, based on the record before us, would be contrary to a
`plain reading of the claim language.
`As discussed above, Saalfrank discloses modulation of carrier signals,
`for example, “[w]ithin the channel bandwidth available here a plurality of
`individual carriers (e.g., 448 carrier frequencies equidistantly spaced over
`the frequency axis) is impinged with a 4-DPSK-modulation (DPSK –
`
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`Patent 5,915,210
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`Differential Phase Shift Keying).” Ex. 1015, 2. Although Saalfrank does
`not explicitly state that the transmitter includes a “modulator,” in order to
`modulate a carrier signal, one of ordinary skill in the art would understand
`Saalfrank’s transmitter has a modulator. See Ex. 1003 ¶ 31, see also Scripps
`Clinic & Research Found. v. Genentech, Inc., 927 F.2d 1565, 1576
`(Fed.Cir.1991) (To anticipate “[t]here must be no difference between the
`claimed invention and the reference disclosure, as viewed by a person of
`ordinary skill in the field of the invention.”). On the record before us, we
`are persuaded that Saalfrank discloses a modulator using a modulation
`scheme, for example 4-DPSK-modulation, and thus anticipates dependent
`claims 7, 16, and 17.
`
`B. Claims 8, 15, and 19 – Obviousness over Saalfrank and
`Nakamura
`Petitioner has established a reasonable likelihood of prevailing on
`their assertion that claims 8, 15, and 19 are obvious for the reasons explained
`below.
`
`1. Overview of Nakamura
`Nakamura discloses a 256 QAM (“Quadrature Amplitude
`Modulation”) multicarrier modulator for encoding four carrier signals f1–f4
`which are provided to a hybrid circuit for combination into a single signal
`and then sent to a transmitter for broadcasting. Figure 1 of Nakamura is
`reproduced below:
`
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`Figure 1 illustrates a block diagram of the 256 QAM modulator.
`
`As shown by Nakamura’s Figure 1, above, the multicarrier modulator
`schematic includes essentially 4 modulators, with each modulator
`differentially encoding eight binary streams of 12.5 MBaud binary signals.
`Ex. 1019, 329. For each modulator a Digital/Analog converter provides
`quadrature 16 level signals to an oscillator and the 256 QAM signals are
`combined in the hybrid circuit H as a single signal, IF out, for broadcast by
`an antenna. Id.
`2. Discussion
`Petitioner reasons that the combination of Saalfank and Nakamura is
`appropriate because, where Saalfrank fails to disclose a particular type of
`multicarrier transmitter or specific transmitter structure for implementing the
`common-wave transmission system, one of ordinary skill in the art would
`have looked to another reference, such as Nakamura for a transmitter
`structure, for instance a 256 Quadrature Amplitude Modulation (“QAM”)
`based transmitter, to implement the functionality of the common-wave
`transmission system described in Saalfrank. Pet. 34–36. Relying on Dr.
`Kakaes’s Declaration, Petitioner supports this reasoning explaining that
`“Nakamura’s 256 QAM transmitters rely on slightly more complex
`technology than the 4-DPSK transmitters of the Saalfrank system and, as a
`result, would have been capable of transmitting at least the amount of data
`20
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`IPR2015-01724
`Patent 5,9
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