Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 8
`
` Entered: April 27, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HUGHES NETWORK SYSTEMS, LLC,
`Petitioner,
`
`
`
`
`
`
`
`
`
`v.
`
`ELBIT SYSTEMS LAND AND C4I LTD.,
`Patent Owner.
`____________
`
`Case IPR2016-00135
`Patent 7,245,874
`____________
`
`Before SALLY C. MEDLEY, RAMA G. ELLURU, and WILLIAM M.
`FINK, Administrative Patent Judges.
`
`ELLURU, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`571-272-7822
`
`
`
`Paper 8
`
` Entered: April 27, 2016
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HUGHES NETWORK SYSTEMS, LLC,
`Petitioner,
`
`
`
`
`
`
`
`
`
`v.
`
`ELBIT SYSTEMS LAND AND C4I LTD.,
`Patent Owner.
`____________
`
`Case IPR2016-00135
`Patent 7,245,874
`____________
`
`Before SALLY C. MEDLEY, RAMA G. ELLURU, and WILLIAM M.
`FINK, Administrative Patent Judges.
`
`ELLURU, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`IPR2016-00135
`Patent 7,245,874
`Hughes Network Systems, LLC (“Petitioner”) filed a petition (“Pet.”)
`to institute an inter partes review of claims 1 and 8–12 of U.S. Patent No.
`7,245,874 (Ex. 1001, the “’874 patent”). Paper 1. Patent Owner, Elbit
`Systems Land and C4I Ltd., filed a Preliminary Response (“Prelim. Resp.”).
`Paper 7. We have jurisdiction under 35 U.S.C. § 314, 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 that follow, we deny an
`inter partes review of claims 1 and 8–12 of the ’874 patent.
`BACKGROUND
`I.
`Related Proceedings
`A.
`Petitioner avers that the ’874 patent is involved in the following
`pending district court action: Elbit Systems Land and C4I Ltd. et al. v.
`Hughes et al., Case No. 2:15-CV-37 (E. D. Tx.).
`B. The ’874 Patent (Ex. 1001)
`The ’874 patent is directed toward infrastructure for a telephony
`network, including backbone and peripheral infrastructure for a cellular
`telephony network. Ex. 1001, 1:6–9. The Specification explains that the
`telephony system is generally based on “E1” or “T1” protocols, which are
`strongly synchronous in that the individual transmission to which
`a time slot is assumed to belong to is determined from its
`temporal position amongst the other time slots. Thus an
`individual transmission which does not have current data creates
`blank slots to reserve its current position.
`
`Id. at 1:26–33. The Specification also explains that “[m]uch available data
`carrying capacity is based on the TCP/IP” protocol,” which
`involves individual data packets being sent out over a network in
`accordance with destination information contained in a packet
`header. A single transmission is thus broken down into numerous
`
`
`
`2
`
`
`
`IPR2016-00135
`Patent 7,245,874
`packets which are each sent out independently over the network.
`The packets may be sent along different routes depending on
`availability and may not arrive in the order in which they have
`been sent. However the packet headers may be used by the
`receiving application to rebuild an original sequence from the
`packets.
`
`Id. at 1:34–43. The Specification contrasts the E1 (and T1) protocol, which
`it characterizes as depending on the preservation of a temporal relationship
`between time slots, with the TCP/IP protocol, which does not preserve
`timing information. Id. at 1:44–46.
`In addition, the Specification describes the problem in the prior art as
`not being able to use TCP/IP based capacity to transport E1 data because
`“synchronization is not preserved, rendering the E1 datastream
`irrecoverable.” Id. at 1:47–49. The objectives of the ’874 patent invention
`include providing IP based infrastructure and infrastructure backup for
`cellular telephony networks and providing IP based backbone infrastructure
`and infrastructure backup for cellular telephony based networks. Id. at 1:56–
`61.
`
` Illustrative Claim
`C.
`Of challenged claims 1 and 8–12, claim 1 is the only independent
`claim and claims 8–12 depend directly or indirectly from claim 1. Claim 1
`is illustrative of the challenged claims and is reproduced below with the
`claim language at issue highlighted:
`1. A branch of a cellular telephone network based on a first
`synchronous data communication protocol, comprising
`interfaces to a satellite link using a second, asynchronous,
`data communication protocol, wherein said
`interfaces
`comprise converters for converting data of a datastream
`between said first data communication protocol and said
`second data communication protocol, and wherein said
`synchronous data protocol allows non-data carrying time
`
`
`
`3
`
`
`
`IPR2016-00135
`Patent 7,245,874
`slots, and said interfaces comprising a non-data carrying time
`slot remover for removing said non-data carrying time slots
`during conversion into said asynchronous protocol and a time
`slot regenerator for regenerating non-data carrying time slots
`during reconstruction of said datastream.
`
`D. Prior Art Relied Upon
`Petitioner relies upon the following prior art references (Pet. 2–3), and
`
`the Declaration of Dr. Raymond Leopold (“Leopold Decl.”) (Ex. 1003):
`Reference Patent
`Date
`Exhibit
`Cox
`U.S. Patent No. 6,459,708
`December 21, 1999 Ex.
`
`1004
`Silverman U.S. Patent No. 6,731,649
`Ex.
`1005
`Application No. WO 95/29576 November 2, 1995 Ex.
`1006
`Ex.
`1008
`Ex.
`1009
`
`Arimilli
`
`Henkel
`
`Houde
`
`July 26, 2000
`
`Canadian Application No.
`CA 2,290,967
`U.S. Patent No. 5,623,532
`
`January 28, 1999
`
`April 22, 1997
`
`The Asserted Grounds of Unpatentability
`E.
`Petitioner challenges the patentability of claims 1 and 8–12 of the
`’874 patent based on the following grounds (Pet. 3):
`Reference(s)
`Basis
`Claim(s) challenged
`
`Cox and Arimilli
`
`Cox, Silverman, and Arimilli
`
`§ 103
`
`§ 103
`
`1
`
`1
`
`Cox, Silverman, and Arimilli
`
`§ 103
`
`8, 11, and 12
`
`Cox, Silverman, Arimilli, and
`Henkel
`Cox, Silverman, Arimilli, and
`Houde
`
`§ 103
`
`§ 103
`
`9
`
`10
`
`
`
`4
`
`
`
`IPR2016-00135
`Patent 7,245,874
`
`II. ANALYSIS
`A.
`Claim Interpretation
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the Specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b), see also Office Patent
`Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012); In re
`Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1277–78 (Fed. Cir. 2015) (“We
`conclude that Congress implicitly approved the broadest reasonable
`interpretation standard in enacting the AIA.”), cert. granted sub nom.
`Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 890 (2016). Under the broadest
`reasonable interpretation standard, claim terms are given their ordinary and
`customary meaning in view of the Specification, as would be understood by
`one of ordinary skill in the art at the time of the invention. In re Translogic
`Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for
`a claim term must be set forth in the Specification with reasonable clarity,
`deliberateness, and precision. In re Paulson, 30 F.3d 1475, 1480 (Fed. Cir.
`1994).
`
`“synchronous data communication protocol”
`Referring to a dictionary definition, Petitioner argues that the ’874
`patent Specification’s use of the term “synchronous data communications
`protocol” is consistent with the usage in the art at the time of the alleged
`invention. Pet. 12–13 (citing Ex. 1019, 727). Specifically, Newton’s
`Telecom Dictionary (14th Ed.) defines “synchronous,” in part, as:
`The condition that occurs when two events happen in a specific
`time relationship with each other and both are under the control
`of a master clock. Synchronous transmission means there is a
`constant time between successive bits, characters or events. . . . .
`
`
`
`5
`
`
`
`IPR2016-00135
`Patent 7,245,874
`In synchronous transmission, characters are spaced by time, not
`by start and stop bit.
`
`Ex. 1019, 727. Petitioner also refers to the Specification of the ’874 patent.
`Pet. 12 (citing Ex. 1001, 1:26–50). According to Petitioner, based on the
`Specification and knowledge of skilled artisans, the recited “synchronous
`data communications protocol” means “a data communications protocol that
`relies on the temporal relationship between time slots, such as E1 or T1
`protocols.” Pet. 13 (citing Ex. 1003 ¶¶ 44–45). Patent Owner does not take
`a position on the construction of this term. Prelim. Resp. 20.
`The ’874 patent Specification explains that the telephony system is
`generally based on E1 or T1 protocols for multiplexing transmissions into
`time slots. Ex. 1001, 1:26–28. The Specification further describes E1/T1
`protocols as “strongly synchronous” because “the individual transmission to
`which a time slot is assumed to belong to is determined from its temporal
`position amongst the other time slots.” Id. at 1:27–31. The Specification
`further states that “[t]he E1 (and T1) protocol thus depends on the
`preservation of a temporal relationship between time slots.” Id. at 1:44–45.
`
`For purposes of this decision, based on the ’874 patent Specification
`and the dictionary definition of “synchronous,” we accept Petitioner’s
`proposed construction and construe “synchronous data communication
`protocol” to mean “a data communications protocol that relies on the
`temporal relationship between time slots, such as E1 or T1 protocols.”
`“asynchronous data communication protocol”
`Petitioner notes that the ’874 patent Specification characterizes
`TCP/IP as an asynchronous protocol and contrasts TCP/IP with E1/T1
`protocols, which are characterized as synchronous protocols. Pet. 13
`(citations omitted). Petitioner further contends that the ’874 patent
`
`
`
`6
`
`
`
`IPR2016-00135
`Patent 7,245,874
`Specification’s use of the term “asynchronous data communications
`protocol” is consistent with the usage in the art at the time of the alleged
`invention given the dictionary definition of “synchronous.” Id. According to
`Petitioner, based on the Specification and the knowledge of skilled artisans,
`the broadest reasonable interpretation of the recited “asynchronous data
`communications protocol” is “a data communications protocol that does not
`rely on the temporal relationship between time slots, such as the TCP/IP
`protocol.” Id. (citation omitted). Patent Owner does not take a positon on
`the construction of this term. Prelim. Resp. 20.
`The Specification characterizes the TCP/IP protocol as an
`asynchronous protocol. Ex. 1001, 2:18–19. The Specification further
`contrasts the TCP/IP protocol with E1/T1 protocols, which are characterized
`as synchronous protocols, because “the TCP/IP protocol does not preserve
`timing information.” Id. at 1:44–46.
`For purposes of this decision, based on the ’874 patent Specification
`and the dictionary definition of “synchronous,” we accept Petitioner’s
`proposed construction and construe “asynchronous data communication
`protocol” to mean “a data communications protocol that does not rely on the
`temporal relationship between time slots, such as the TCP/IP protocol.”
`B.
`Claim 1
`Petitioner contends that claim 1 is obvious over the combination of
`Cox and Arimilli and over the combination of Cox, Silverman, and
`Arimilli1. Both grounds assert that the combination of Cox and Arimilli
`
`
`1 Petitioner argues that to the extent we determine the preamble of claim 1 is
`limiting, the combination of Cox, Silverman and Arimilli discloses each
`limitation of claim 1. Pet. 14. We need not reach this issue, however,
`because we determine that Petitioner has not shown sufficiently that two
`
`
`
`7
`
`
`
`IPR2016-00135
`Patent 7,245,874
`teaches or suggests the limitations “said synchronous data protocol allows
`non-data carrying time slots” and “said interfaces comprising a non-data
`carrying time slot remover for removing said non-data carrying time slots
`during conversion into said asynchronous protocol.” Pet. 23–28, 34.
`“said synchronous data protocol allows non-data carrying time slots”
`In support of its assertion that the combination of Cox and Arimilli
`teaches or suggests the limitation “said synchronous data protocol allows
`non-data carrying time slots,” Petitioner argues the following:
`The T1/E1 protocols supported by Cox allow non-data carrying
`time slots. Ex. 1003 at ¶ 124. For example, where the T1/E1
`protocols are used for telephonic communication T1/E1 time
`slots may correspond to silence and therefore not carry any data.
`Ex. 1003 at ¶ 124; Ex. 1004 2:18-34; Ex. 1006 at 28:8-15. That
`some voice time slots may be non-data carrying time slots is
`confirmed by Arimilli. Id.
`Pet. 23. We are not persuaded by this argument. See Prelim. Resp. 26–27.
`
`The cited disclosure from Cox (Ex. 1004, 2:18–34) discloses that “the
`T1 carrier protocol, prescribes a series of time-division multiplexed formats
`for the transmission of digitized telephone conversation data.” Although
`Petitioner asserts that Cox discloses a “synchronous” data communications
`protocol, Petitioner does not support sufficiently its contention that Cox
`allows “non-data carrying time slots.” The cited disclosure from Arimilli
`(Ex. 1006, 28:8–15) discloses:
`A silence detection algorithm 1205 is also included in the
`programmed code of the DSP 620. The silence detection function
`is a summation of the square of each sample of the voice signal
`over the frame. If the power of the voice frame falls below a
`preselected threshold, this would indicate a silent frame. The
`
`
`other limitations of claim 1 are taught or suggested in the prior art under
`either of these grounds.
`
`
`
`8
`
`
`
`IPR2016-00135
`Patent 7,245,874
`detection of a silence frame of speech is important for later
`multiplexing of
`the V-data
`(voice data) and C-data
`(asynchronous computer data) described below. During silent
`portions of the speech, data processor 318 will transfer
`conventional digital data (C-data) over the telephone line in lieu
`of voice data (V-data).
`Although Arimilli discloses detecting silence, which Petitioner equates with
`the recited “non-data,” Petitioner does not support sufficiently its contention
`that Arimilli teaches or suggests that the detected silence is part of a “time
`slot” in a “synchronous” data communications protocol. Furthermore,
`Petitioner has not satisfactorily demonstrated how Cox’s protocol can be
`modified to include “non-data carrying time slots.”
`
`Petitioner summarily asserts that “[a] person of ordinary skill in the
`art would understand that Arimilli’s ‘silent frame[’] is within the broadest
`reasonable interpretation of a ‘non-data carrying time slot.’” Pet. 24 (citing
`Ex. 1003 at ¶ 1252). As discussed above, however, we are not persuaded
`that Arimilli teaches or suggests the recited “non-data carrying time slots” in
`a “synchronous” data protocol. Referring to Arimilli (Ex. 1006, 28:8–15),
`Petitioner asserts that “the passa[ge] above further demonstrates that voice
`data is transmitted with a synchronous protocol, because it is contrasted with
`asynchronous computer data.” Id. We are not persuaded that the cited
`passage contrasts synchronous voice data with computer data. For example,
`as Patent Owner points out, Arimilli suggests voice is represented
`asynchronously. Prelim. Resp. 29–30 (citing Ex. 1006, 3:20–23). In any
`event, even assuming Petitioner’s assertion that Arimilli contrasts
`“synchronous” voice data with “asynchronous” computer data, Petitioner has
`
`
`2 We do not find Dr. Leopold’s testimony helpful because it merely mimics
`Petitioner’s argument.
`
`
`
`9
`
`
`
`IPR2016-00135
`Patent 7,245,874
`not persuaded us that Arimilli’s use of these terms is consistent with the
`constructions of these terms as proposed by Petitioner and adopted by us.
`See Prelim. Resp. 27–28. We construe “synchronous data communication
`protocol” as meaning “a data communications protocol that relies on the
`temporal relationship between time slots, such as E1 or T1 protocols.”
`According to Arimilli, however, “synchronous data is transmitted in a packet
`that first contains a header (which contains destination address), followed by
`a block of data characters and followed by trailer information (such as error
`checking codes, checks sums, etc.).” Ex. 1006, 10:1–4. In addition, we
`construe “asynchronous data communication protocol” to mean “a data
`communications protocol that does not rely on the temporal relationship
`between time slots, such as the TCP/IP protocol.” Arimilli, however, states
`that “asynchronous data is by definition formatted by framing each character
`with a start and stop bit.” Id. at 9:30–31.
`
`We therefore are not persuaded that Petitioner has shown that the
`combination of Cox and Arimilli teaches or suggests the recited “said
`synchronous data protocol allows non-data carrying time slots” of claim 1.
` “said interfaces comprising a non-data carrying time slot remover for
`removing said non-data carrying time slots during conversion into said
`asynchronous protocol”
`In support of its assertion that the combination of Cox and Arimilli
`teaches or suggests the limitation “said interfaces comprising a non-data
`carrying time slot remover for removing said non-data carrying time slots
`during conversion into said asynchronous protocol,” Petitioner cites
`disclosure from Arimilli, including the following portion:
`If the power PWR is lower than a preselected threshold, then the
`present voice frame is flagged as containing silence. The 128-
`sample silent frame is still processed by the voice compression
`
`
`
`10
`
`
`
`IPR2016-00135
`Patent 7,245,874
`algorithm; however, the silent frame packets are discarded by the
`data processor 318 so that asynchronous digital data may be
`transferred in lieu of voice data.
`Pet. 24–25 (citing Ex. 1006, 28:7–33). Petitioner subsequently summarily
`asserts the following:
`Arimilli’s flagging and discarding of silent frames is thus within
`the broadest reasonable interpretation of “said interfaces
`comprising a non-data carrying time slot remover for removing
`said non-data carrying time slots.”
`Pet. 26 (citation omitted). We are not persuaded by Petitioner’s argument.
`See Prelim. Resp. 33–35.
`
`As discussed above with respect to the previous limitation, Petitioner
`has not satisfactorily explained how Arimilli alone, or in combination with
`Cox, teaches or suggests “non-data carrying time slots” (emphasis added).
`Thus, based on the same reasoning, we are not persuaded that Arimilli or the
`combination of Arimilli and Cox, teaches or suggests “removing” “non-data
`carrying time slots” (emphasis added). In addition, Petitioner does not
`satisfactorily explain how the prior art teaches or suggests removing “non-
`data carrying time slots” “during conversion into said asynchronous
`protocol,” as recited in claim 1 (emphasis added). Specifically, Petitioner
`does not provide sufficient argument as to how Cox can be modified to
`remove “non-data carrying time slots” “during conversion into said
`asynchronous protocol” (emphasis added). Petitioner does contend that
`“Arimilli’s silence suppression algorithm could be implemented, for
`example, using the existing processors in the T1(E1)-to-IP Multiplexer 500
`of Cox.” Pet. 28 (citing Ex. 1004, Fig. 2; Ex. 1003 ¶ 133). Petitioner,
`however, provides insufficient factual bases to support this assertion.
`Although Petitioner cites to Dr. Leopold’s declaration testimony, that
`testimony merely restates Petitioner’s conclusory assertion. Ex. 1003 ¶ 133.
`
`
`
`11
`
`
`
`IPR2016-00135
`Patent 7,245,874
`For all of the foregoing reasons, we determine that Petitioner has not
`demonstrated a reasonable likelihood that it would prevail in demonstrating
`that claim 1 is unpatentable as obvious.
`C.
`Claims 8–12
`Petitioner’s challenges to dependent claims 8–12 (asserted grounds 3–
`5) incorporate its arguments with respect to claim 1. Pet. 35–60; see Prelim.
`Resp. 24, n.2. For the same reasons discussed above with respect to claim 1,
`we determine that Petitioner has not demonstrated a reasonable likelihood
`that it would prevail in demonstrating that claims 8–12 are unpatentable as
`obvious.
`III. CONCLUSION
`
`Petitioner has not demonstrated a reasonable likelihood that it would
`prevail in showing unpatentability of claims 1 and 8–12 of the ’874 patent.
`IV. ORDER
`In consideration of the foregoing, it is hereby:
`ORDERED that an inter partes review of claims 1 and 8–12 of the
`’874 patent is denied.
`
`
`
`
`
`
`12
`
`
`
`IPR2016-00135
`Patent 7,245,874
`
`PETITIONER:
`
`Eliot D. Williams
`G. Hopkins Guy
`eliot.williams@bakerbotts.com
`hop.guy@bakerbotts.com
`
`
`
`PATENT OWNER:
`
`Andrew G. Reister
`Jay I. Alexander
`Christopher K. Eppich
`areister@cov.com
`jalexander@cov.com
`ceppich@cov.com
`
`
`
`
`
`
`13
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