Trials@uspto.gov
`571-272-7822
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` Paper 9
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` Entered: July 1, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-00430
`Patent 8,238,412 B2
`____________
`
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`DECISION
`Decision Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`

`
`IPR2016-00430
`Patent 8,238,412 B2
`
`
`I.
`
`INTRODUCTION
`
`Arris Group, Inc. (“Petitioner”) filed a Petition requesting an inter
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`partes review of claims 1‒21 of U.S. Patent No. 8,238,412 B2 (Ex. 1001,
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`“the ’412 patent”). Paper 1 (“Pet.”). TQ Delta, LLC (“Patent Owner”) filed
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`a corrected Preliminary Response. Paper 8 (“Prelim. Resp.”). We have
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`jurisdiction under 35 U.S.C. § 314(a), which provides that an inter partes
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`review may not be instituted “unless . . . there is a reasonable likelihood that
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`the petitioner would prevail with respect to at least 1 of the claims
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`challenged in the petition.” After considering the Petition, the Preliminary
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`Response, and associated evidence, we conclude that Petitioner has not
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`demonstrated a reasonable likelihood that it would prevail in showing
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`unpatentability of at least one of the challenged claims. Thus, we do not
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`authorize institution of an inter partes review of claims 1‒21 of the ’412
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`patent.
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`A. Related Proceedings
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`
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`Petitioner indicates that the ’412 patent is the subject of proceedings,
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`including TQ Delta LLC v. 2Wire Inc., Case No. 1-13-cv-01835 (D. Del.).
`
`Pet. 2.
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`B. The ʼ412 Patent (Ex. 1001)
`
`
`
`The ’412 patent discloses systems and methods for reliably
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`exchanging diagnostic and test information between transceivers over a
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`digital subscriber line in the presence of disturbances. Ex. 1001, 1:59‒62.
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`The systems and methods include the use of a diagnostic link mode in the
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`communication of diagnostic information from a remote terminal (RT)
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`transceiver or modem to the central office (CO) transceiver or modem,
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`where either model transmits a message to the other modem to enter
`
`
`
`2
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`

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`IPR2016-00430
`Patent 8,238,412 B2
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`diagnostic link mode. Id. at 2:60‒64, 3:34‒42. In diagnostic mode, the RT
`
`modem sends diagnostic and test information as bits to the CO modem. Id.
`
`at 3:48‒53.
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`
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`Figure 1 illustrates the additional modem components associated with
`
`the diagnostic link mode, and is reproduced below:
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`
`
`
`
`Figure 1 illustrates a diagnostic mode system, where CO modem 200 and RT
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`modem 300 are connected via link 5 to splitter 10 for a phone switch, and a
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`splitter 30 for a phone 40. Id. at 4:58‒5:5. CO modem 200 includes CRC
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`checker 210, diagnostic device 220, and diagnostic information monitoring
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`device 220. Id. RT modem includes message determination device 310,
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`power control device 320, diagnostic device 330, and diagnostic information
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`storage device 340. Id.
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`C. Illustrative Claim
`
`Petitioner challenges claims 1‒21 of the ’412 patent. Pet. 4–60.
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`Claims 1, 3, 5, 7, 9, 11, and 13‒21 are independent claims. Claim 2 depends
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`from independent claim 1, claim 4 depends from independent claim 3, claim
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`
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`3
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`IPR2016-00430
`Patent 8,238,412 B2
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`6 depends from independent claim 5, claim 8 depends from independent
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`claim 7, claim 10 depends from independent claim 9, and claim 12 depends
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`from independent claim 11. Claim 1 is illustrative of the claims at issue and
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`is reproduced below:
`
`1. A transceiver capable of transmitting test information
`over a communication channel using multicarrier modulation
`comprising:
`a transmitter portion capable of transmitting a message,
`wherein the message comprises one or more data variables that
`represent the test information, wherein bits in the message are
`modulated onto DMT symbols using Quadrature Amplitude
`Modulation (QAM) with more than 1 bit per subchannel and
`wherein at least one data variable of the one or more data
`variables comprises an array representing power level per
`subchannel information.
`
`Ex. 1001, 8:45–56.
`
`D. The Alleged Grounds of Unpatentability
`
`The information presented in the Petition sets forth proposed grounds
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`of unpatentability of claims 1‒21 of the ’412 patent under 35 U.S.C.
`
`§ 103(a) as follows (see Pet. 4–60):1
`
`References
`
`Hughes-Hartogs,2 Baran,3
`and Frenkel4
`
`Claims
`Challenged
`
`1, 3, 5, 7, 9, 11, and 16‒21
`
`
`1 Petitioner supports its challenge with the Declaration of Lance McNally.
`Ex. 1002.
`2 U.S. Patent No. 4,679,227; issued July 7, 1987 (Ex. 1004) (“Hughes-
`Hartogs”).
`3 U.S. Patent No. 4,438,511; issued Mar. 20, 1984 (Ex. 1005) (“Baran”).
`4 U.S. Patent No. 5,838,268; issued Nov. 17, 1998 (Ex. 1006) (“Frenkel”).
`
`
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`4
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`IPR2016-00430
`Patent 8,238,412 B2
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`
`References
`
`Hughes-Hartogs, Baran,
`Frenkel, and Wu5
`Hughes-Hartogs, Baran,
`Frenkel, and TR-0246
`
`Claims
`Challenged
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`2, 4, 6, 8, 10, and 12
`
`13‒15
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`II. ANALYSIS
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`A. 35 U.S.C. § 315(b)
`
`Petitioner represents, at the time of filing the Petition, that Petitioner
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`does not own the ’412 patent and that “[n]either Petitioner nor any real
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`party-in-interest filed a civil action challenging validity of a claim in the
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`‘412 Patent.” Pet. 4. Petitioner further represents that “[n]one of the
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`Petitioner nor any real party-in-interest or privy of the Petitioner, has been
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`served with a complaint alleging infringement of the ‘412 Patent.” Id.
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`Patent Owner argues that the Petition should be denied because
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`“Petitioner Arris is simply the successor-in-interest of another company,
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`2Wire, Inc. [(2Wire)], which has been involved in litigation with Patent
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`Owner for over two years.” Prelim. Resp. 11. Patent Owner argues that on
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`February 7, 2014, Patent Owner served 2Wire a Second Amended
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`Complaint alleging infringement by 2Wire (“2Wire Lawsuit”). Id.; see also
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`Ex. 2007. At the time of filing of that complaint, 2Wire, as alleged by
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`Patent Owner, is a wholly-owned subsidiary of Pace Plc. (“Pace”). Id.
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`Patent Owner argues that 2Wire and Pace are barred from filing a petition
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`for an inter partes review of the ’412 patent under
`
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`5 U.S. Patent No. 6,219,378 B1; issued Apr. 17, 2001 (Ex. 1008) (“Wu”).
`6 ADSL Forum Technical Report TR-024, DMT Line Code Specific MIB for
`Network Management Working Group (June 1999) (Ex. 1011) (“TR-024”).
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`IPR2016-00430
`Patent 8,238,412 B2
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`35 U.S.C. § 315(b). Patent Owner further argues that Petitioner and Pace
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`entered a “Co-operation Agreement to implement a Scheme for the
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`Acquisition and Merger of Pace/2Wire and Arris” and the final closing of
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`the merger occurred on January 4, 2016. Id. at 12‒13 (citing Ex. 2001; Ex.
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`2005). This Petition was filed on January 2, 2016. See id. Patent Owner
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`argues that “the Board cannot institute review here, where Arris has acquired
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`a company that otherwise was barred from filing a petition under § 315(b).”
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`Id. at 13‒15.7
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`We disagree with Patent Owner that Petitioner is barred under 35
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`U.S.C. § 315(b). Section 315(b) states “[a]n inter partes review may not be
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`instituted if the petition requesting the proceeding is filed more than 1 year
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`after the date on which the petitioner, real party in interest, or privy of the
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`petitioner is served with a complaint alleging infringement of the patent.”
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`Specifically, section 315(b) precludes institution if the petition is filed “more
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`than 1 year after the date on which . . . privy of the petitioner is served with a
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`complaint.” Accordingly, § 315(b) is concerned with privity relationships
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`up until the time a petition is filed. See Synopsys, Inc. v. Mentor Graphics
`
`Corp., Case IPR2012-00042, slip op. at 12 (PTAB February 22, 2014)
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`(Paper 60 ) (“This rule makes clear that it is only privity relationships up
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`until the time a petition is filed that matter; any later-acquired privies are
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`irrelevant.”).
`
`
`7 Patent Owner cited to VMWare, Inc. v. Good Technology Software, Inc.,
`Case IPR2015-00027, slip op. at 2 (PTAB March 6, 2015) (Paper 11).
`However, that case is distinguished from this case because the Petitioner in
`VMWare admitted a barred party was in privity at the time of the filing of
`the Petition. Id. at 2 (“Petitioner admits that AirWatch became its privy . . .
`at least since February 2014 . . . Petitioner filed the Petition challenging the
`’386 patent on October 6, 2014.”).
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`IPR2016-00430
`Patent 8,238,412 B2
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`Patent Owner fails to demonstrate that Petitioner and 2Wire/Pace
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`were in privity on the filing date of the Petition. Patent Owner
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`acknowledges that the Petition was filed on January 2, 2016, whereas the
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`merger between 2Wire/Pace and Petitioner allegedly occurred on January 4,
`
`2016. Patent Owner fails to demonstrate that Petitioner had control over the
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`2Wire Lawsuit at the time of filing the Petition, or that 2Wire/Pace had
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`controlled, or had an opportunity to control, this proceeding. Although
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`Patent Owner argues that Petitioner and Pace/2Wire entered a “Common
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`Defense Agreement dated 5/20/15” (Prelim. Resp. 12 (citing Ex. 2003)),
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`Patent Owner does not provide evidence that this agreement gave Petitioner
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`control or the right to control the 2Wire Lawsuit at the time of the filing of
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`the Petition, or that 2Wire/Pace controlled, or had an opportunity to control,
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`this proceeding. Moreover, Patent Owner has not demonstrated that there
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`was a relationship between Petitioner and 2Wire at the time the complaint
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`was served on 2Wire.
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`Patent Owner additionally argues that Petitioner “controls or has the
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`ability to assume control of the 2Wire Lawsuit.” Prelim. Resp. 16‒17 (citing
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`Ex. 2006). Patent Owner argues that “it is not necessary that Arris actually
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`control the 2Wire Lawsuit. It is sufficient if Arris has a ‘legal right, to
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`assume control’ of the on-going 2Wire Lawsuit.” Id. (citing Aruze Gaming
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`Macau, Ltd. v. MGT Gaming, Inc., Case IPR2014-01288, slip op. 4 (PTAB
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`February 20, 2015) (Paper 13)). Although we have considered that
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`Petitioner was in the process of acquiring 2Wire/Pace at the time the Petition
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`was filed, Patent Owner has not directed us to sufficient evidence to show
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`that Petitioner had control or had the legal right to assume control over the
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`2Wire lawsuit at the time of filing the Petition.
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`IPR2016-00430
`Patent 8,238,412 B2
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`Accordingly, we are not persuaded by Patent Owner that Petitioner is
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`barred from filing a petition under section 315(b).
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`B. Claim Construction
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`The Board interprets claims of an unexpired patent using the broadest
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`reasonable construction in light of the specification of the patent in which
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`they appear. See 37 C.F.R. § 42.100(b); see Cuozzo Speed Techs., LLC v.
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`Lee, No. 15-446, 2016 WL 3369425, at *10-14 (U.S. June 20, 2016). Under
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`the broadest reasonable construction standard, claim terms are given their
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`ordinary and customary meaning, as would be understood by one of ordinary
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`skill in the art in the context of the entire disclosure. In re Translogic Tech.
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`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
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`Petitioner argues that “all terms should have their ordinary and
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`customary meaning read in light of the ‘412 Patent’s specification, as would
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`have been understood by a person of ordinary skill in the art.” Pet. 4‒5.
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`However, as discussed above, we interpret claims of an unexpired patent
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`using the broadest reasonable construction in light of the patent’s
`
`specification. Accordingly, we apply the broadest reasonable interpretation
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`standard in construing the claims. See Pet. 4‒5; Prelim. Resp. 10. However,
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`we agree with Petitioner and Patent Owner that there is no need to construe
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`expressly any of the claim terms under the broadest reasonable interpretation
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`in light of the patent’s specification at this time. See Pet. 5‒6; Prelim. Resp.
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`10.
`
`C. Obviousness of Claims 1‒21
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`Petitioner contends that claims 1, 3, 5, 7, 9, 11, and 16‒21 of the ’412
`
`patent are unpatentable under 35 U.S.C. § 103(a) as obvious over Hughes-
`
`Hartogs, Baran, and Frenkel. Pet. 15–41. Petitioner also contends that
`
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`8
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`IPR2016-00430
`Patent 8,238,412 B2
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`claims 2, 4, 6, 8, 10, and 12 of the ’412 patent are unpatentable under 35
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`U.S.C. § 103(a) as obvious over Hughes-Hartogs, Baran, Frenkel, and Wu.
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`Id. at 41‒42. Petitioner additionally contends that claims 13‒15 of the ’412
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`patent are unpatentable under 35 U.S.C. § 103(a) as obvious over Hughes-
`
`Hartogs, Baran, Frenkel, and TR-024. Id. at 43‒60.
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`1. Hughes-Hartogs (Ex. 1004)
`
`Hughes-Hartogs is directed to the field of data communications and to
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`a high speed modem for use with dial-up voice frequency (VF) telephone
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`lines. Ex. 1004, 1:7‒9, 2:43‒44. The modem utilizes a multicarrier
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`modulation scheme and variably allocates data and power to the various
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`carriers to maximize the overall data transmission rate. Id. at 2:44‒47. The
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`modem includes a variable allocation system for sharing control of a
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`communication link between two modems according to user requirements.
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`Id. at 2:50‒54. Quadrature amplitude modulation (QAM) is utilized to
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`encode data elements of varying complexity on each carrier. Id. at 2:58‒60.
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`2. Baran (Ex. 1005)
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`Baran discloses a high speed, full duplex modem in the field of data
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`communications. Ex. 1005, 1:7‒9. An ensemble of sixty-four orthogonally
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`modulated carriers is digitally generated such that each carrier or tone is
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`individually modulated to contain five bits. Id. at 4:45‒48. One carrier
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`serves as the pilot tone for coordination between the transmitter and receiver
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`sections of the modem, and maintains timing and frequency calibration or
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`“alignment” irrespective of the telephone network’s carrier heterodyne
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`errors or changes in transmission paths length. Id. at 4:48‒55. All
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`significant signal parameters are measured and corrective signals are
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`returned to the originating modem on a simultaneous reverse channel. Id. at
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`IPR2016-00430
`Patent 8,238,412 B2
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`4:60‒62. Test signal arrangement in the modem permit ready use of packets
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`containing only test data, which are useful in providing remote diagnostics
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`and to pinpoint transmission failures. Id. at 5:55‒59.
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`3. Frenkel (Ex. 1006)
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`Frenkel is directed to an apparatus and methods for modulation and
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`demodulation of data. Ex. 1006, 1:6‒7. Frenkel discloses a data modulating
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`system that includes a mapper that generates a stream of complex-valued
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`vectors from an input stream. Id. at 7:55‒58. An array of narrow band pass
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`filters receive and filter complex-valued vectors to generate a single stream
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`of complex samples. Id. at 7:58‒61. An interpolator receives output from
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`the filter array and an up-converter converts this stream to an analog front-
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`end. Id. at 8:22‒41. The analog front-end generates the final radio
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`frequency (RF) output signal to be transmitted. Id. at 8:39‒41.
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`4. Wu (Ex. 1008)
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`Wu is directed to the initialization of communications between high-
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`speed modems. Ex. 1008, 1:17‒20. The modems include analog filters at
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`the analog front end, which both reduce costs and increase the channel
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`impulse response. Id. at 3:30‒34. A session is initiated between the central
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`office modem and remote modems, and training of the modems is carried
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`out in order to establish synchronization of the modems. Id. at 3:34‒40.
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`Measurement of the signal-to-noise ratio over each subcarrier channel is
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`then effected, followed by exchange of bit loading information for each
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`subchannel between the two modems. Id. at 3:44‒47.
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`5. TR-024 (Ex. 1011)
`
`TR-024 defines a standard Simple Network Management Protocol
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`(SNMP) Management Information Base (MIB) for the Discrete Multi-Tone
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`
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`10
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`(DMT) line code. Ex. 1011, 1. Configuration profiles and current
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`performance statistics are defined. Id. at 3. Configuration, statistics,
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`performance and history count are defined elements for DMT coded lines.
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`Id. at 1. These elements cover use during normal operation of asymmetric
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`digital subscriber lines (ADSL), as well as detailed measurements for fault
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`prediction and location. Id.
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`6. Analysis
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`The evidence set forth by Petitioner indicates there is not a reasonable
`
`likelihood that Petitioner will prevail in showing that claims 1‒21 are
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`unpatentable under 35 U.S.C. § 103(a) as obvious. Pet. 15–60. Petitioner
`
`provides a detailed analysis, supported by evidence, identifying alleged
`
`sections of the prior art as disclosing claims 1‒21. Id. For example,
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`Petitioner argues that Hughes-Hartogs discloses all of the limitations of
`
`claim 1, except for the limitations “the message comprises one or more data
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`variables that represent the test information” and “bits in the message are
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`modulated on to DMT symbols using Quadrature Amplitued Modulation
`
`(QAM) with more than 1 bit per subchannel.” Pet. 16‒23. Petitioner argues
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`that the combination of Hughes-Hartogs and Baran teaches or suggests “the
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`message comprises one or more data variables that represent the test
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`information.” Id. at 18‒19. Petitioner further argues that the combination of
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`Hughes-Hartogs and Frenkel teaches or suggests “bits in the message are
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`modulated on to DMT symbols using Quadrature Amplitued Modulation
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`(QAM) with more than 1 bit per subchannel.” Id. at 20‒21. However, as
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`argued by Patent Owner, Petitioner fails to provide articulated reasoning
`
`with some rational underpinning to support the legal conclusion of
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`obviousness. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
`
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`11
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`IPR2016-00430
`Patent 8,238,412 B2
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`Specifically, Patent Owner argues that Petitioner does not provide
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`“sufficient factual or reasoned analysis for why a person of ordinary skill in
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`the art would have combined . . . Hughes, Baran, and Frenkel.” Prelim.
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`Resp. 32‒39. We agree with Patent Owner that Petitioner has not provided a
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`sufficient reason for combining the asserted prior art. See Purdue Pharma
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`L.P. v. Depomed, Inc., Nos. 2015-2029, 2015-2030, 2015-2032, 2016 WL
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`1161229, at *5 (Fed. Cir. March 24, 2016) (nonprecedential). “[A] patent
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`composed of several elements is not proved obvious merely by
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`demonstrating that each of its elements was, independently, known in the
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`prior art.” KSR, 550 U.S. at 418.
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`Petitioner generally states the subject matter of the claims was
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`described by Hughes-Hartogs, Baran, and Frenkel “in a manner that would
`
`have led a person of ordinary skill in the art to the claimed subject matter
`
`through the exercise of only routine skill.” Pet. 15. Petitioner further states
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`that “the modification of ‘227 Patent [Hughes-Hartogs] to include the
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`teachings of ‘511 Patent [Baran] and ‘268 Patent [Frenkel] is demonstrative
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`of the application of a known technique to a known device to yield
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`predictable results under 35 U.S.C. §103.” Id. at 15‒16. However,
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`Petitioner does not point to evidence or make any other argument explaining
`
`why a person with ordinary skill in the art would have combined Hughes-
`
`Hartogs, Baran, and Frenkel, why such a combination would have required
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`only “routine skill,” or even why the results of such a combination would
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`have been predictable. See Prelim. Resp. 33‒34. Accordingly, Petitioner
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`has not provided any reason that would have prompted a person with
`
`ordinary skill in the art to combine Hughes-Hartogs, Baran, and Frenkel in
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`the manner proposed by Petitioner.
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`At best, Petitioner directs us to pages 42‒44 of the Declaration of Mr.
`
`Lance McNally. Id. at 18‒19, 22‒23. Although we decline to incorporate
`
`Mr. McNally’s Declaration into the Petition, we note that pages 42‒44 of
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`Mr. McNally’s Declaration consist of several paragraphs discussing the
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`application of the cited prior art to independent claim 1 of the ’412 patent.
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`Ex. 1002 ¶¶ 52–60. Only paragraph 58 discusses the combination of
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`Hughes-Hartogs and Baran. Id. ¶ 58. Paragraph 58 states “[a] POSA would
`
`combine the ‘227 [Hughes-Hartogs] and ‘511 [Baran] patents to show a test
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`mode with messages comprising one or more data variables that represent
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`the test information.” Id. However, the statement is conclusory,
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`unsupported by a sufficient rationale or reason to combine Hughes-Hartogs
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`and Baran. This statement additionally does not provide a sufficient reason
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`for a person of ordinary skill in the art to combine Frenkel with Hughes-
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`Hartogs and Baran. As such, even if we were to incorporate this passage
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`from Mr. McNally’s Declaration into the Petition, which we do not, this
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`single statement is insufficient to support the legal conclusion of
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`obviousness.
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`Accordingly, we determine that Petitioner has not established a
`
`reasonable likelihood it would prevail in demonstrating the obviousness of
`
`claim 1 over Hughes-Hartogs, Baran, and Frenkel. The Petition suffers
`
`similar deficiencies in its challenge to independent claims 3, 5, 7, 9, 11, and
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`16‒21 (see Pet. 24‒41), and, therefore, we determine that Petitioner has not
`
`established a reasonable likelihood in prevailing in its challenge to these
`
`claims for the same reasons discussed above. Patent Owner argues that
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`Petitioner’s challenge to dependent claims 2, 4, 6, 8, 10, and 12 as obvious
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`over Hughes-Hartogs, Baran, Frenkel, and Wu, and Petitioner’s challenge to
`
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`IPR2016-00430
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`independent claims 13‒15 as obvious over Hughes-Hartogs, Baran, Frenkel,
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`and TR-024 are deficient for the same reasons. Prelim. Resp. 42‒45, 55‒59.
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`We agree with Patent Owner that the Petition suffers the same deficiencies
`
`in its challenge to claims 2, 4, 6, 8, 10, and 12‒15, and, accordingly, we
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`determine that Petitioner has not established a reasonable likelihood in
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`prevailing in its challenge to these claims for the same reasons discussed
`
`above.
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`7. Conclusion
`
`On this record, we are not persuaded that Petitioner has shown a
`
`reasonable likelihood that claims 1, 3, 5, 7, 9, 11, and 16‒21 are obvious
`
`over a combination of Hughes-Hartogs, Baran, and Frenkel.
`
`On this record, we are not persuaded that Petitioner has shown a
`
`reasonable likelihood that claims 2, 4, 6, 8, 10, and 12 are obvious over a
`
`combination of Hughes-Hartogs, Baran, Frenkel, and Wu.
`
`On this record, we are not persuaded that Petitioner has shown a
`
`reasonable likelihood that claims 13‒15 are obvious over a combination of
`
`Hughes-Hartogs, Baran, Frenkel, and TR-024.
`
`D. Conclusion
`
`For the foregoing reasons, we are persuaded that Petitioner has met its
`
`burden of showing a reasonable likelihood that claims 1‒21 of the ’412
`
`patent are unpatentable.
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`III. ORDER
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`Accordingly, it is
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`ORDERED that the Petition is denied; and
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`FURTHER ORDERED that no inter partes review will be instituted
`
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`IPR2016-00430
`Patent 8,238,412 B2
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`pursuant to 35 U.S.C. § 314(a) with respect to any of the challenged claims
`
`of the ’412 patent on the grounds of unpatentability asserted in the Petition.
`
`
`
`For PETITIONER:
`
`Dan Gresham
`Thomas I Horstemeyer, LLP
`dan.gresham@thomashorstemeyer.com
`
`Charles Griggers
`Thomas I Horstemeyer, LLP
`charles.griggers@thomashorstemeyer.com
`
`Bob Starr
`ARRIS Group, Inc.
`bob.starr@arris.com
`
`For PATENT OWNER:
`
`Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`pmcandrews@mcandrews-ip.com
`
`Thomas J. Wimbiscus
`McAndrews, Held & Malloy, Ltd.
`twimbiscus@mcandrews-ip.com
`
`Scott P. McBride
`McAndrews, Held & Malloy, Ltd.
`smcbride@mcandrews-ip.com
`
`Christopher M. Scharff
`McAndrews, Held & Malloy, Ltd.
`cscharff@mcandrews-ip.com
`
`
`
`15