Trials@uspto.gov Paper 11
`571-272-7822
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`Date Entered: April 29, 2016
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`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 IPR2016-00141
`Patent 6,240,073 B1
`____________
`
`Before SALLY C. MEDLEY, RAMA G. ELLURU, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`FINK, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`571-272-7822
`
`Date Entered: April 29, 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 IPR2016-00141
`Patent 6,240,073 B1
`____________
`
`Before SALLY C. MEDLEY, RAMA G. ELLURU, and
`WILLIAM M. FINK, Administrative Patent Judges.
`
`FINK, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
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`IPR2016-00141
`Patent 6,240,073 B1
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`I. INTRODUCTION
`Hughes Network Systems, LLC (“Petitioner”) filed a corrected
`
`Petition requesting an inter partes review of claims 2–8, 28, and 29 of U.S.
`Patent No. 6,240,073 B1 (Ex. 1001, “the ’073 patent”). Paper 6 (“Pet.”).
`Patent Owner, Elbit Systems Land and C4I Ltd., filed a Preliminary
`Response. Paper 10 (“Prelim. Resp.”). We have jurisdiction under 35
`U.S.C. § 314, which provides that an inter partes review may not be
`instituted “unless . . . the information presented in the petition . . . and any
`response . . . shows that 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 determine that Petitioner has not
`established a reasonable likelihood of prevailing with respect to claims 2–8,
`28, and 29 of the ’073 patent. Accordingly, we deny the Petition and do not
`institute an inter partes review.
`
`A. Related Matters
`Petitioner and Patent Owner identify the following pending matter as
`relating to the ’073 patent: Elbit Systems Land and C4I Ltd. et al. v. Hughes
`et al., No. 2:15-CV-37 (E.D. Tx.). Pet. 1; Paper 5, 1.
`
`B. The ’073 Patent
`The ’073 patent relates to a satellite-based communication system
`with a return link suitable for an Internet access network. Ex. 1001,
`Abstract, 1:5–9. Figure 1 is reproduced below:
`
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`Figure 1 of the ’073 patent depicts two satellite communication networks. Id.
`at 8:56–57. In network B 14, satellite 17 forwards communications between
`hub 22 and a plurality of VSAT user terminals 24 to form a forward link. Id.
`at 8:62–64. A reverse link is established via satellite between hub 22 and
`terminals 24. Id. at 8:64–66. The reverse link comprises:
`two separate communication schemes used in combination . . . .
`The first communication scheme uses a random access method
`based on a non-synchronous frequency hopping code division
`multiple access technique (NS/FH/CDMA).
` The second
`communication scheme uses a channel assignment method based
`on a frequency division multiple access (FDMA) technique.
`Data generated by a user is transmitted using one of the two
`communication schemes in accordance with the content and
`amount of data generated.
`
`
`Id. at 4:50–61. Data requiring a relatively low transmission rate, such as short
`bursty messages, uses the random access method, while data requiring a
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`higher transmission rate, such as video conferencing, uses the channel
`assignment method. Id. at 4:61–65.
`
`C. Illustrative Claim
`Claims 2–8, 28, and 29 are independent claims. Claim 28 is
`reproduced below, and is illustrative of the challenged claims.
`
`28. A multiple access communications system for use in a
`satellite communication network, comprising:
`a plurality of user terminals for transmitting and receiving data
`over said multiple access communication system;
`at least one hub for transmitting and receiving data over said
`multiple access communication system to and from said plurality
`of user terminals;
`a forward communication link for transmitting data from said at
`least one hub to said plurality of user terminals;
`a return communication link for transmitting data from said
`plurality of user terminals to said at least one hub, said return
`communication link including a first communication means for
`transmitting short bursty data in combination with second
`communication means for continuous transmission of data;
`switching means within said plurality of user terminals for
`switching transmission between said first communication means
`and said second communication means in accordance with
`predefined criteria; and
`receiver means within said at least one hub adapted to receive
`data transmitted by said plurality of terminals utilizing either said
`first communication means or said second communication
`means,
`wherein each user terminal comprises means for generating a
`request to be sent over said return communications link in order
`to utilize said second communication means.
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`D. Asserted Ground of Unpatentability
`Petitioner asserts that claims 2–8, 28, and 29 are unpatentable based
`on the following grounds:
`References
`Rudrapatna1
`Rudrapatna and Quick2
`Rudrapatna and Kou3
`Rudrapatna and Nakamura4
`Rudrapatna and Beal5
`Rudrapatna and Wilkinson6
`
`
`Challenged Claims
`28
`29
`2, 3, and 5–7
`3 and 6
`4
`8
`
`Basis
`§ 102(b)
`§ 103(a)
`§ 103(a)
`§ 103(a)
`§ 103(a)
`§ 103(a)
`
`II. DISCUSSION
`
`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 In re Cuozzo
`Speed Techs., LLC, 793 F.3d 1268, 1278–79 (Fed. Cir. 2015) (“Congress
`implicitly approved the broadest reasonable interpretation standard in
`enacting the AIA,” and “the standard was properly adopted by PTO
`regulation”), cert. granted sub nom. Cuozzo Speed Techs., LLC v. Lee, 136
`
`
`1 EP 0719062, published June 26, 1996 (Ex. 1004) (“Rudrapatna”)
`2 U.S. Patent No. 5,673,259, filed May 17, 1995, issued September 30, 1997
`(Ex. 1005) (“Quick”)
`3 U.S. Patent No. 5,172,375, issued December 15, 1992 (Ex. 1006) (“Kou”)
`4 U.S. Patent No. 5, 377,184, issued December 27, 1994 (Ex. 1007) (“Beal”)
`5 WO 95/10920, published April 20, 1995 (Ex. 1008) (“Nakamura”)
`6 U.S. Patent No. 4,532,636, issued July 30, 1985 (Ex. 1009) (“Wilkinson”)
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`S. Ct. 890 (mem.) (2016). Under the broadest reasonable construction
`standard, claim terms are given their ordinary and customary meaning, as
`would be understood by one of ordinary skill in the art in the context of the
`entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
`Cir. 2007).
`“switching means”
`Petitioner proposes the term “switching means . . . for switching
`transmission between said first communication means and said second
`communication means in accordance with predefined criteria,” in claims 2–
`8, 28, and 29 be construed according to 35 U.S.C. § 112, paragraph 6. Pet.
`7–9. According to Petitioner, the function corresponding to the switching
`means is the recited “switching transmission between said first
`communication means and said second communication means in accordance
`with predefined criteria,” and the corresponding structure is “hub and VSAT
`terminals performing the decision-making described at 10:56–11:40 and
`equivalents.” Id. at 9 (also citing, Ex. 1001, 8:37–48, 8:56–66, Fig, 1).
`Relying on its proposed declarant, Dr. Leopold, Petitioner contends no
`smaller structure is indicated as performing the recited function. Id. (citing
`Ex. 1003 ¶ 80).
`Patent Owner agrees with Petitioner that the “switching means are
`located within VSAT terminals,” but argues Petitioner’s proposed structure
`ignores the required structure disclosed in the Specification for performing
`the recited function. Prelim. Resp. 18 (citing In re Donaldson Co., 16 F.3d
`1189, 1194 (Fed. Cir. 1994). According to Patent Owner, Petitioner ignores
`the driver and modem within the VSAT terminal, which are described as
`monitoring the random-access channel and switching to the channel-
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`assignment mode if necessary. Id. (citing Ex. 1001, 17:28–18:31, Fig. 8).
`Further, Patent Owner contends Petitioner misreads the Specification in
`arguing that the hub is also a corresponding structure. According to Patent
`Owner, the hub does not perform the decision making described at 10:56–
`11:40. Id.
`We disagree with Petitioner’s proposed construction of the structure
`corresponding to the recited “switching means.” As an initial matter, the
`“switching means” in claims 2–8 is expressly recited as “coupled to said
`transmitter means,” which itself resides “within each user terminal.” E.g.,
`Ex. 1001, 23:30–37 (claim 2). Similarly, the “switching means” in claims
`28 and 29 is expressly recited as “within said plurality of user terminals.”
`E.g., id. at 28:3 (claim 28). The switching means is not recited as within the
`“hub,” which is recited as a separate claim limitation and contains the
`receiving means for receiving data transmitted by the user terminals. Id.,
`23:27–29 (claim 2). Accordingly, by the express requirements of the claims
`themselves, we are not persuaded that the structure corresponding to the
`switching means is, as Petitioner proposes, “the hub and VSAT terminals,”
`but is either within or coupled to the VSAT terminals.
`Even limiting the structure to the VSAT terminals, we disagree with
`Petitioner’s construction, “VSAT terminals performing the decision-making
`described at 10:56–11:40 and equivalents,” as not sufficiently specific. It is
`well established that “the corresponding structure for a § 112 ¶ 6 claim for a
`computer-implemented function is the algorithm disclosed in the
`specification.” Aristocrat Techs. Austl. Party. Ltd. v. Int’l Game Tech., 521
`F.3d 1328, 1333 (Fed. Cir. 2008) (quoting Harris Corp. v. Ericsson Inc., 417
`F.3d 1241, 1249 (Fed. Cir. 2005)).
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`Here, Patent Owner directs us to the driver and modem components
`within the VSAT terminal as performing the function of monitoring the
`random-access channel and switching the channel-assignment mode if
`necessary. Prelim. Resp. 18 (Ex. 1001 at 17:28–18:31, Fig. 8). We agree
`that driver 158 of the VSAT terminal performs the switching function.
`The cited portion of the Specification contains an explanation of the
`flow chart of Figure 8 setting forth the structure of the switching means
`function within driver 158. Moreover, we observe the driver is coupled to
`“modem 160 which comprises the random access transmitter 70 (FIG. 5) and
`the channel assignment transmitter 110 (FIG. 6)” Ex. 1001, 17:25–27, Fig.
`7—the alleged transmitter means according to Petitioner, Pet. 7–8 (citing Ex.
`1001, Figs. 5–6). Consequently, Patent Owner’s proposed construction
`locating the switching means in the driver, is reasonable given the driver is
`“coupled to said transmitter means,” as at least claims 2–8 require.
`Accordingly, we determine the structure of the “switching means” to be the
`VSAT terminal driver depicted in Figure 8 and described at 17:28–18:31.
`remaining terms
`Petitioner proposes construction of the remaining means-plus-function
`terms and Patent Owner proposes construction of the preamble as a claim
`limitation. Pet. 7–10; Prelim. Resp. 15–17. However, we have reviewed the
`parties’ contentions and, in view of our determination below, we determine
`construing these terms is unnecessary for purposes of this Decision.
`
`B. Alleged Anticipation of Claim 28 by Rudrapatna
`Petitioner contends claim 28 is anticipated by Rudrapatna. Pet. 11–
`25. Petitioner relies upon its declarant, Dr. Raymond J. Leopold, to support
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`its contentions. Ex. 1003. We begin our discussion with a brief summary of
`Rudrapatna and then address the parties’ contentions.
`
`1. Rudrapatna (Ex. 1004)
`
`Rudrapatna generally discloses a wireless broadband communication
`system for providing an “array of narrowband and broadband services to an
`end user on demand.” Ex. 1004, Abstract. Figure 2 of Rudrapatna is
`reproduced below:
`
`
`
`Figure 2 illustrates an architecture for the disclosed broadband wireless
`network for communications to an end user. Id. at 3:48–50. Specifically,
`national headend 201 originates video or multimedia broadcast information
`and local headend 211 (or access director 107) receives the information for
`local distribution. Id. at 4:38–42. Local headend 211 is connected to
`intelligent microport 106 via access nodes 105. Id. at 3:20–23, Fig. 2.
`Intelligent microports 106 may communicate with customer premise
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`equipment (e.g., telephone, TV, PC, etc.) by way of access director 107. Id.
`at 3:23–32. Intelligent microports 106 may communicate with access
`director 107 via multiple air interfaces supporting static and dynamic
`channel allocation. Id. at 4:44–51.
`
`
`
`2. Analysis
`Petitioner presents a proposed mapping of Rudrapatna to the
`limitations of claim 28. Pet. 11–25. For example, Petitioner contends the
`“user terminals [of claim 28] correspond to Rudrapatna’s intelligent
`microport 106 and associated access director 107.” Id. at 12 (citing, e.g., Ex.
`1004, 16:52–54, 3:20–34). Petitioner contends the “hub” of claim 28
`corresponds to access node 105, service node 103, signaling server 213. Id.
`at 14 (citing, e.g., Ex. 1004, 4:31–37, 4:42–44).
`Claim 28 also requires a “switching means within said plurality of
`user terminals for switching transmission between said first communication
`means and said second communication means in accordance with predefined
`criteria.” Ex. 1001, 28:3–6. Petitioner contends:
`The assignment of service classes to communications, as
`taught by Rudrapatna, includes switching from Rudrapatna’s
`first communications means
`(CDMA)
`to
`its
`second
`communications means (TDM). Ex. 1003 at ¶ 353. Because the
`channel allocation server 222 controls static and dynamic
`reallocations of spectrum to individual services, the predefined
`criteria are the types of service to use. Id. For example, for a
`narrowband service such as Basic Voice, CDMA
`is
`implemented; but, for Video-On-Demand, TDM transmission is
`used. Id.
`. . .
`Rudrapatna discloses an equivalent structure to the
`“switching means” in the Intelligent Microport and the Channel
`Allocation Server, which switches between the communication
`means based on predefined criteria, using hardware and software
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`structures that are equivalent to the hub and/or VSAT terminals
`performing the decision-making of the ’073 Patent. See, e.g., Ex.
`1001 at 10:56-11:40; Ex. 1003 at ¶ 355-356.
`
`
`
`Pet. 21–22 (emphasis added).
`
`Patent Owner contends “Rudrapatna does not disclose a ‘switching
`means within said plurality of user terminals,’” as claim 28 requires. Prelim.
`Resp. 23. Among other contentions, Patent Owner argues:
`Petitioner alleges that “Rudrapatna discloses an equivalent
`structure to the ‘switching means’ in the . . . Channel Allocation
`Server, which switches between the communication means based
`on predefined criteria.” Pet. at 21. But Petitioner ignores that the
`“Channel Allocation Server 222” is not located “within” the user
`terminals 108, as recited by the claim, but is instead part of the
`centralized servers that Petitioner analogizes to the ‘073 patent’s
`“hub.” . . . Further, Petitioner presents no evidentiary support
`for its argument that “Rudrapatna discloses an equivalent
`structure to the ‘switching means,’” Pet. at 21. The only
`purported evidentiary basis is the identical conclusory statement
`in the Leopold Declaration, Ex. 1003 at ¶¶ 355-56, which fails to
`disclose any facts or underlying rationale and therefore should be
`given no weight. See 37 C.F.R. § 42.65(a).
`
`
`Prelim. Resp. 23–24.
`
`We agree with Patent Owner. As an initial matter, we disagree with
`Petitioner’s identification of the claimed “user terminals” as Rudrapatna’s
`intelligent microport 106 and associated access director 107. See Pet. 12.
`As Figures 1–2 indicate, intelligent microport 106 is wired to access node
`105 and servers (i.e., Petitioner’s alleged “hub”) and only wirelessly
`connected to access director 107 (itself connected to TV and telephone).
`Consequently, intelligent microport 106 is more properly associated with the
`alleged “hub.” This is confirmed by Petitioner’s mapping of Rudrapatna’s
`“multiple air interfaces” to the claimed “return communication link for
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`transmitting data from said plurality of user terminals to said at least one
`hub,” see Pet. 15–17 (citing, e.g., Ex. 1004, 4:44–47). The multiple air
`interfaces, however, wirelessly connect intelligent microports 106 to access
`directors 107. Ex. 1004, 3:23–25, 4:26–27, Figs. 1–2. The air interface
`between access director 107 and intelligent microport 106 can only
`constitute a return link for transmitting data from a user terminal to a hub, as
`Petitioner contends, if intelligent microport 106 is part of the hub.
`Consequently, we determine intelligent microports 106 are properly
`considered part of the hub, as reflected by the following annotated Figure 2:
`
`
`Annotated Figure 2 depicts Rudrapatna’s network mapped to the recited hub
`and user terminals consistent with our findings. Annotated Figure 2 also
`indicates the position of the claimed “return communications link for
`
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`transmitting data from said plurality of user terminals to said at least one
`hub.” See Pet. 15–17 (citing, e.g., Ex. 1004, 4:44–47).
`
`As discussed above, claim 28 requires the switching means be located
`“within said plurality of user terminals.” Ex. 1001, 28:3. Under Petitioner’s
`proposed mapping of the switching means to channel allocation server 222
`and intelligent microports 106, the switching means is located in the hub, not
`within the user terminals as the claim requires. This is depicted in the above
`annotated Figure 2 (see highlighted elements). Accordingly, for this reason,
`Petitioner has not demonstrated that Rudrapatna discloses “switching means
`within said plurality of user terminals.”
`Moreover, even disregarding the location of the alleged switching
`means, we also agree Petitioner does not support its contention that
`Rudrapatna contains an equivalent structure to the switching means. See
`Prelim. Resp. 24. As discussed above, we construe the switching means to
`have the structure of the VSAT terminal driver as depicted in the flow chart
`of Figure 8 and described at 17:28–18:31 in the ’073 Patent Specification, or
`equivalents. Other than a conclusory assertion that Rudrapatna contains “an
`equivalent structure,” see Pet. 21–22, neither Petitioner nor Dr. Leopold
`provides further evidence or analysis.7 As such, Petitioner has not shown
`sufficiently why Rudrapatna’s alleged switching means is equivalent to the
`claimed switching means. See Fresenius USA, Inc. v. Baxter Intern., Inc.,
`582 F.3d 1288, 1299 (Fed. Cir. 2009) (“[A] challenger who seeks to
`demonstrate that a means-plus-function limitation was present in the prior
`
`
`7 We observe that Dr. Leopold’s assertions merely mimic Petitioner’s
`conclusory assertions (see Ex. 1003 ¶¶ 355–356).
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`art must prove that the corresponding structure—or an equivalent—was
`present in the prior art.”).
`For the foregoing reasons, we find the Petitioner’s proposed ground of
`anticipation is deficient with respect to claim 28 of the ’073 patent. We
`decline to institute inter partes review as to claim 28 on the proposed
`grounds of anticipation.
`
`
`
`C. Alleged Obviousness of Claims 2–8 and 29
`Claims 2–8 and 29, which Petitioner contends are obvious over
`Rudrapatna and additional references, recite a similar switching means
`limitation. For claim 29, which recites an identical switching means,
`Petitioner’s obviousness analysis does not address the deficiencies identified
`above. Claims 2–8 require the switching means to be coupled to said
`transmitter means (itself “within each user terminal”). However, there is no
`analysis in the Petition that Rudrapatna’s alleged switching means (which is
`in the hub) is “coupled to said transmitter means” (within each user
`terminal). See Pet. 36–38. Consequently, Petitioner’s obviousness analysis
`for these claims, which is substantially the same as discussed above
`regarding the switching means, see id., does not address the identified
`deficiencies. Accordingly, we decline to institute inter partes review as to
`claims 2–8 and 29 on the proposed grounds of obviousness.
`
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`III. CONCLUSION
`For the foregoing reasons, we are not persuaded that Petitioner has
`demonstrated a reasonable likelihood that at least one of the challenged
`claims of the ’073 patent is unpatentable based on the asserted grounds.
`
`
`
`IV. ORDER
`In consideration of the foregoing, it is
`ORDERED that the Petition is denied.
`FURTHER ORDERED that no inter partes review will be instituted
`pursuant to 35 U.S.C. § 314(a) with respect to any of the challenged claims
`of the ’073 patent on the ground of unpatentability asserted in the Petition.
`
`
`
`15
`
`
`FOR PETITIONER:
`Eliot D. Williams
`eliot.williams@bakerbotts.com
`
`G. Hopkins Guy III
`hop.guy@bakerbotts.com
`
`
`
`FOR PATENT OWNER:
`Andrea G. Reister
`areister@cov.com
`
`Jay I. Alexander
`jalexander@cov.com
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