Paper 9
`Trials@uspto.gov
`571-272-7822
`
`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 IPR2016-00142
`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
`
`
`
`
`
`
`
`Trials@uspto.gov
`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 IPR2016-00142
`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
`
`
`
`
`
`
`
`
`IPR2016-00142
`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 8 (“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
`Quick1
`Quick
`Quick and Kou2
`Quick and Nakamura3
`Quick and Beal4
`Quick and Wilkinson5
`
`
`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
`S. Ct. 890 (mem.) (2016). Under the broadest reasonable construction
`
`
`1 U.S. Patent No. 5,673,259, filed May 17, 1995, issued September 30, 1997
`(Ex. 1005) (“Quick”)
`2 U.S. Patent No. 5,172,375, issued December 15, 1992 (Ex. 1006) (“Kou”)
`3 U.S. Patent No. 5, 377,184, issued December 27, 1994 (Ex. 1007) (“Beal”)
`4 WO 95/10920, published April 20, 1995 (Ex. 1008) (“Nakamura”)
`5 U.S. Patent No. 4,532,636, issued July 30, 1985 (Ex. 1009) (“Wilkinson”)
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`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.
`6–8. 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 8 (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. 15–16 (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-assignment mode if necessary. Id. at 16 (citing Ex. 1001, 17:28–
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`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 (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. 6–10; Prelim. Resp. 13–17. 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 Quick
`Petitioner contends claim 28 is anticipated by Quick. Pet. 10–24.
`Petitioner relies upon its declarant, Dr. Raymond J. Leopold, to support its
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`contentions. Ex. 1003. We begin our discussion with a brief summary of
`Quick and then address the parties’ contentions.
`
`
`
`1. Quick (Ex. 1005)
`
`Quick generally discloses a communication system for
`communicating digital information having a forward link and a reverse link.
`Ex. 1005, Abstract. Figure 2 of Quick is reproduced below:
`
`Figure 2 is a schematic overview of an embodiment of a cell site (base
`station) and user in accordance with the invention of Quick. Id. at 6:24–27,
`8:54–58. The mobile or fixed users in Quick may use TDMA, CDMA or
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`other modulation techniques to communicate with the base stations. Id. at
`6:19–24. The base stations, in turn, are connected to a switching station by
`way of back-haul 140. Id. at 6:41–43. In Quick’s invention, both random
`access channel 208 and dedicated channel 214 may be implemented such
`that users 202 can communicate with both types of channels. Id. at 10:54–
`59. If a user has a large amount of data to be transferred, dedicated channel
`214 may be used, but if a short burst of data is to be transferred, random
`access channel 208 may be used. Id. at 10:60–11:4.
`
`2. Analysis
`Petitioner presents a proposed mapping of Quick to the limitations of
`claim 28. Pet. 10–24. For example, Petitioner contends the “remote users”
`in Quick disclose the “plurality of user terminals for generating data to be
`transmitted.” Id. at 13 (citing, e.g., Ex. 1005, 6:18–23). Petitioner also
`contends the “hub” of claim 28 corresponds to “cell-site” or “base–station”
`108 in Quick. Id. at 14 (citing, e.g., Ex. 1005, 6:24–27).
`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 cites processor 302, which will
`switch user 202 from traffic channel 214 (i.e., second communication
`means”) to random access channel 208 (i.e., first communication means).
`Pet. 19 (citing, e.g., Ex. 1004, 11:38–42). Petitioner further contends:
`the processor is the switch and the functionality is switching from
`random access (bursty) channel to the dedicated (continuous)
`channel, also referred to as the “Traffic Channel.” Ex. 1005 at
`11:20-25, 11:38-42; Ex. 1003 at ¶ 570. . . .
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`Also, Quick discloses an equivalent structure to the
`“switching means” . . . . The processor of the switching station
`coupled to the base station are a structural equivalent to the hub
`and VSAT terminals of the ’073 Patent because both accomplish
`the switching between the various communications schemes. Ex.
`1003 at ¶ 571.
`
`Id. at 20–21 (emphasis added).
`
`Patent Owner contends Petitioner’s mapping of Quick’s processor to
`the “switching means” means the switching mans is not “within the user
`terminal” as claim 28 requires:
`[A]s Petitioner explicitly concedes in discussing Ground 3, the
`“switching means for selecting the communication pathway is
`not within the user terminal of Quick.” Pet. at 38 (emphasis
`added). Petitioner reaches this conclusion after contending that
`the “equivalent structure to the ‘switching means’ for this claim
`element” in Quick is “the switching station including processor
`302, which is coupled to the base station.” Pet. at 21.
`
`Prelim. Resp. 23. As further support, Patent Owner provides the following
`annotated version of Figure 3 of Quick:
`
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`Figure 3, annotated by Patent Owner, depicts Petitioner’s mapping of claim
`28 to the invention of Quick. Id. Patent Owner also contends Petitioner
`provides insufficient support for its contention that the processor of the
`switching station is the “structural equivalent” to the hub and VSAT
`terminals of the ’073 patent. Id. at 24.
`
`We agree with Patent Owner. 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
`processor 302, the switching means is located in the hub or coupled to the
`hub, not within the user terminals as the claim requires. This is depicted
`above in Patent Owner’s annotated Figure 3. There is no contention that
`remote users in Quick contain the recited switching means. See Pet. 19–21.
`Accordingly, for this reason, Petitioner has not demonstrated that Quick
`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 Quick
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`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 Quick contains “an
`equivalent structure,” see Pet. 21, neither Petitioner nor Dr. Leopold
`provides sufficient further evidence or analysis.6 As such, Petitioner has not
`shown sufficiently why Quick’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
`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 Quick
`alone or in combination with 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
`
`6 Although Dr. Leopold directs us to the “processor” described in Quick (see
`Ex. 1003 ¶ 571), this is insufficient to prove Quick discloses equivalent
`structure to the switching means, which we determine to have the structure
`of Figure 8 in driver 158. See Harris, 417 F.3d at 1253–55 (citing WMS
`Gaming v. Int’l Game Tech., 184 F.3d 1339, 1348–49 (Fed. Cir. 1999)).
`13
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`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 Quick’s alleged switching means (which is in the
`hub) is “coupled to said transmitter means” (within each user terminal). See
`Pet. 33–35. Consequently, Petitioner’s obviousness analysis, which is
`substantially the same for these claims 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.
`
`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.
`
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`IPR2016-00142
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`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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