Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 10
`
` Entered: July 7, 2016
`
`
`
`
`
`DECISION
`Denying Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`
`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.
`
`
`571-272-7822
`
`
`
`Paper 10
`
` Entered: July 7, 2016
`
`
`
`
`
`DECISION
`Denying Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`
`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.
`
`
`
`IPR2016-00135
`Patent 7,245,874
`
`I.
`
`INTRODUCTION
`
`Hughes Network Systems, LLC (“Petitioner”) requests rehearing
`(“Reh. Req.,” Paper 9) of our Decision on Institution (“Dec.,” Paper 8)
`denying inter partes review of claims 1 and 8–12 of U.S. Patent No.
`7,245,874 (Ex. 1001, the “’874 patent”). In the Request for Rehearing,
`Petitioner argues that our decision misapprehended several matters in
`denying review. Because Petitioner merely reasserts the arguments raised in
`the petition, which we considered in our decision and determined were
`unpersuasive, the Request for Rehearing is denied.
`ANALYSIS
`II.
`When considering a request for rehearing, we review the Decision on
`Institution for an abuse of discretion. 37 C.F.R. § 42.71(c). The party
`requesting rehearing bears the burden of showing that the Decision on
`Institution should be modified, and “[t]he request must specifically identify
`all matters the party believes [we] misapprehended or overlooked.” 37
`C.F.R. § 42.71(d).
`With respect to Ground One, our Decision determined that Petitioner
`had not demonstrated that the combination of Cox and Arimilli teaches the
`claim limitation of “wherein said synchronous data protocol allow non-data
`carrying time slots.” Dec. 7–8. Petitioner argues that in doing so, we
`misapprehended that Cox’s T1 and E1 protocols disclosed this claim
`element. Reh. Req. 3. We considered this argument and determined that it
`was not persuasive. Dec. 7–8; compare with Reh. Req. 3–6. Specifically,
`we concluded that “[a]lthough 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.’”
`
`
`
`2
`
`
`
`IPR2016-00135
`Patent 7,245,874
`Dec. 8. Neither disagreeing with our analysis nor reasserting the arguments
`raised in the Petition is basis for granting a rehearing request. Although
`Patent Owner did not argue that Cox’s E1 protocol is not “any different from
`the E1 protocol described in the ’874 specification and/or claimed in claim
`8,” we may institute only if upon consideration of the Petition and
`Preliminary Response, there is a reasonable likelihood that the Petitioner
`would prevail. 35 U.S.C. § 314.
`With respect to Ground Two, Petitioner’s rehearing request argues
`that “Petitioner further demonstrated that Silverman also disclosed the E1
`protocol as the first synchronous protocol.” Reh. Req. 6. Petitioner’s claim
`chart for this asserted ground, however, does not clearly refer to Silverman
`for the “first synchronous data protocol” limitation. Pet. 34. Rather, for this
`limitation, the claim chart refers to its assertions with respect to Ground One
`based on Cox and Arimilli. Id.
`Petitioner also reasserts its argument that Arimilli teaches the claim
`limitation at issue. Reh. Req. 7–8. We also considered Petitioner’s
`argument with respect to Arimilli and found it to be unpersuasive. Dec. 8–
`10. Petitioner further asserts our determination that Arimilli’s silent frames
`were not within the broadest reasonable interpretation of the claimed non-
`data carrying time slots “is an insufficient basis on which to rest the Board’s
`Decision, because the Petition also demonstrated that Cox and Silverman
`disclose this limitation.” Reh. Req. 8. But as discussed above, we also
`determined that the Petition did not demonstrate that either Cox or
`Silverman taught the limitation at issue.
`Petitioner points out that it provided a declaration from Dr. Leopold in
`support of its arguments that the prior art references disclosed the limitation
`at issue. Reh. Req. 8–10; 12–14. As Petitioner acknowledges, however, we
`
`
`
`3
`
`
`
`IPR2016-00135
`Patent 7,245,874
`did not find Dr. Leopold’s testimony helpful because “it merely mimics
`Petitioner’s argument.” Dec. 9, n. 2; see also Dec. 11 (stating that Dr.
`Leopold’s declaration testimony is conclusory). Petitioner argues that “Dr.
`Leopold’s testimony stands as unrebutted evidence that should be given its
`full weight.” Id. at 10. Petitioner further argues that “[t]he Board’s action
`effectively excluded Dr. Leopold’s testimony,” and that “any such exclusion
`should only take place after Patent Owner has objected, and Petitioner has
`been provided with the ability to correct any defect in the form of
`supplemental evidence.” Id. at 10. Our Decision did not exclude Dr.
`Leopold’s testimony. Rather, we determined that it was not “helpful”
`because it merely repeated that asserted in the petition. Dec. 9, n.2. As
`such, for the same reasons we determined the Petition was insufficiently
`persuasive in establishing a reasonable likelihood that Petitioner would
`prevail, so was the declaration insufficient.
`Petitioner’s rehearing request lastly argues that we erred in
`determining that the references did not teach the claimed “said interfaces
`comprising a non-data carrying time slot remover for removing said non-
`data carrying time slots during conversion into said asynchronous protocol.”
`Reh. Req. 10 (citing Dec. 10–12). On rehearing, Petitioner reasserts its
`argument that Cox, not Arimilli, performs the conversion from the
`synchronous protocol to the asynchronous protocol, and that Arimilli
`provided the removal function. Reh. Req. 11–12. We considered this
`argument, but determined that Petitioner provided insufficient factual basis
`to support its assertion. Dec. 11. We are not persuaded we erred in making
`this determination.
`
`
`
`4
`
`
`
`IPR2016-00135
`Patent 7,245,874
`
`III. CONCLUSION
`The Request for Rehearing does not demonstrate that we
`misapprehended or overlooked any matters raised in the Petition when
`determining there was not a reasonable likelihood that Petitioner would
`prevail with respect to its asserted grounds of unpatentability.
`IV. ORDER
`In consideration of the foregoing, it is hereby:
`
`ORDERED that the Request for Rehearing is denied.
`
`
`
`
`
`5
`
`
`
`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
`
`
`
`
`
`
`6
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