trials@uspto.gov
`571-272-7822
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`IPR2016-00768, Paper No. 50
`July 24, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARRIS GROUP, INC., ARUBA NETWORKS, INC.,
`HEWLETT PACKARD ENTERPRISE COMPANY,
`and HP, INC.,
`Petitioner,
`
`v.
`
`MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-007681
`Patent 5,659,891
`____________
`
`Held: June 20, 2017
`____________
`
`
`
`
`BEFORE: MEREDITH C. PETRAVICK, SCOTT A. DANIELS,
`and MIRIAM L. QUINN, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Tuesday, June
`20, 2017, commencing at 10:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`1 Case IPR2016-00766 has been joined with the instant
`proceeding.
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`571-272-7822
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`IPR2016-00768, Paper No. 50
`July 24, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`ARRIS GROUP, INC., ARUBA NETWORKS, INC.,
`HEWLETT PACKARD ENTERPRISE COMPANY,
`and HP, INC.,
`Petitioner,
`
`v.
`
`MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-007681
`Patent 5,659,891
`____________
`
`Held: June 20, 2017
`____________
`
`
`
`
`BEFORE: MEREDITH C. PETRAVICK, SCOTT A. DANIELS,
`and MIRIAM L. QUINN, Administrative Patent Judges.
`
`
`The above-entitled matter came on for hearing on Tuesday, June
`20, 2017, commencing at 10:00 a.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`1 Case IPR2016-00766 has been joined with the instant
`proceeding.
`
`
`
`Case IPR2016-00768
`Patent 5,659,891
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
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`JOHN R. KASHA, ESQ.
`Kasha Law LLC
`14532 Dufief Mill Road
`North Potomac, Maryland 20878
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`and
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`HENNING SCHMIDT, ESQ.
`Reed & Scardino LLP
`301 Congress Avenue, Suite 1250
`Austin, Texas 78701
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`and
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`MICHAEL R. CARPER, ESQ.
`United Wireless
`515 Congress Avenue, Suite 1850
`Austin, Texas 78701
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`ON BEHALF OF PATENT OWNER:
`
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`GABRIELLE E. HIGGINS, ESQ.
`KATHRYN HONG, ESQ.
`Ropes & Gray LLP
`1900 University Avenue, 6th Floor
`East Palo Alto, California 94303-2284
`
`and
`
`DAN GRESHAM, ESQ.
`CHARLES GRIGGERS, ESQ.
`Thomas Horstemeyer
`3200 Windy Hill Road, SE, Suite 1600E
`Atlanta, Georgia 30339
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`and
`
`BOB STARR, ESQ.
`Arris Group, Inc.
`3871 Lakefield Drive
`Suwanee, Georgia 30024
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`and
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`ANTHONY BACA, ESQ.
`Hewlett-Packard Company
`11311 Chinden Boulevard
`Boise, Idaho 83714
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`Case IPR2016-00768
`Patent 5,659,891
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`P R O C E E D I N G S
`- - - - -
`JUDGE PETRAVICK: We're here today for a hearing
`in IPR2016-00768, which is joined with IPR2016-00766. I am
`Judge Petravick, and joining us on the screen from Dallas is
`Judge Miriam Quinn, and from New Hampshire is Judge Scott
`Daniels.
`So, if we can know who's here for Petitioner.
`MS. HIGGINS: Good morning, Your Honors.
`Gabrielle Higgins and Kathryn Hong on behalf of Aruba, Hewlett
`Packard Enterprise and HP, Inc., and with us today is
`representative Tony Baca from HP, Inc. We also have from
`Arris, John -- Charles Griggers, sorry, Dan Gresham and Bob
`Starr.
`
`JUDGE PETRAVICK: Thank you.
`MS. HIGGINS: Thank you, Your Honor.
`JUDGE PETRAVICK: And for Patent Owner?
`MR. KASHA: Good morning, Your Honor. My name
`is John Kasha, I am lead counsel for the Patent Owner. I am from
`Kasha Law. With me today is Henning Schmidt, he is from Reed
`& Scardino, and he will be arguing today on behalf of the Patent
`Owner. We also have Mr. Mike Carper from MTEL here.
`JUDGE PETRAVICK: Thank you. Before you all
`leave today, if you could give a business card to the court reporter
`so she has the correct spelling of your name. Thank you.
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`Before we get started today, we're going to talk about
`the objections to the Patent Owner's demonstratives. Petitioner
`objected to slide 14 and 23 through 25 because of references to
`testimony of Dr. Min, which is in Exhibit 2005. And so my
`question, Patent Owner, Petitioner tells us that you contend that
`this material is supported by its corrected response paper 42 at 22,
`Exhibit 2011, paragraphs 49 through 51, 130, Exhibit F, and
`Exhibit 2005. Is that correct?
`MR. SCHMIDT: Yes, Your Honor.
`JUDGE PETRAVICK: All right. We have reviewed
`those portions of Patent Owner's corrected response and exhibits
`and we are going to sustain the objections. Those arguments and
`the testimony of Dr. Min is not cited in the Patent Owner's
`response, so this would be new argument. That's not allowed in
`the demonstrative. So you will not be allowed to address or argue
`slides 14, 23 through 25.
`And after the hearing, we will be expunging this slide
`deck from the record.
`MR. SCHMIDT: I'm sorry?
`JUDGE PETRAVICK: And you will be allowed to
`refile a slide deck minus slides 14 and 23 through 25. I am going
`to remind all the parties that new arguments will not be
`considered during any of the oral arguments and that the final
`decision will be written based on the arguments made in the
`briefs and the other substantive papers of record.
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`All right. So, each side has 30 minutes today. We will
`first hear from Petitioner as they have the burden. You are
`allowed to reserve time for rebuttal. Would you like to reserve
`time?
`
`MS. HIGGINS: Yes, Your Honor. May Petitioners
`reserve 12 minutes for rebuttal?
`JUDGE PETRAVICK: All right. So Petitioner will go
`first, and then we will hear from Patent Owner. You may begin
`when you're ready.
`MS. HIGGINS: Thank you, Your Honor. May it
`please the Board. Petitioners have provided our positions and our
`evidence in our briefing, but to assist the Board in considering the
`record, we plan to address today in our opening discussions four
`topics, and they can be found on slide 4 of Petitioners'
`demonstratives, and I trust Your Honors have copies of the
`demonstratives, which is Exhibit 1022.
`I would propose to address the issues of band edge,
`same location, and overlap, and to the extent we have time, my
`colleague, Ms. Hong, will address motivation to combine.
`Before we jump in, I would like to make two brief
`observations about the kinds of evidence and arguments that
`Patent Owner has put before this Board. First, Patent Owner
`merely rehashes arguments already rejected by the Board; and
`second, Patent Owner repeatedly urges claim constructions that
`add extraneous limitations to the claims and simply have no
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`support in the specification. And even under these incorrect
`constructions, the claim limitations are still met. And we ask the
`Board to bear these issues in mind as we go forward.
`Turning first to slide 6, which is the claim construction
`for the band edge of the mask, the Board correctly construed the
`band edge of the mask as a single -- excuse me, as a band edge of
`the single mask-defined, bandlimited channel, and this is
`consistent with the claims, the specification and the
`understanding of a person of ordinary skill.
`Patent Owner's construction, on the other hand,
`impermissibly reads limitations into the claims and should
`therefore be rejected. The Board's construction is consistent with
`the claims, and as we see on slide 6 in the middle, we have the
`language of claim 1, which recites the band edge as the band edge
`of the mask defining said channel, and it refers back to the claim
`language above it of a single mask-defined bandlimited channel.
`And as Petitioners' expert, Dr. Kakaes explained, and
`that's in the box on the bottom of the slide, the band edge of the
`mask defining the channel must be in a place where the channel
`has been included or else it wouldn't be the band edge of the mask
`defining the channel.
`Turning the page to slide 7, the Board's construction is
`also consistent with the specification, and as we see on slide 7,
`the specification refers to FCC masks attenuated at at least 70
`decibels at the band edge, and the specification specifically
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`describes figure 4 as attenuated at least 70 dB at the band edge,
`and it shows the band edge of the mask at plus or minus 10
`kilohertz from the center frequency.
`Turning to slide 8, the Board's construction is also
`consistent with the understanding of a person of skill in the art.
`As Dr. Kakaes explained, figure 4 depicts the band edge of the
`mask at plus or minus 10 kilohertz, which defines the channel and
`includes the entire channel.
`Turning to slide 9, and now with respect to Patent
`Owner's construction, and I think it's important to look at Patent
`Owner's corrected brief at 21, where they explain what they mean
`by their proposed construction of the nearest band edge of the
`mask. And that's what's set forth on the center of slide 9. And
`Patent Owner's construction of the band edge of the mask should
`be rejected because it improperly reads in limitations that the
`band edge must be the band edge that is nearest to the center
`frequency of the outermost carrier, and at the highest power level
`of each outermost carrier. And this is simply a construction that
`has no support in the claims or the specification.
`Turning to slide 10, Patent Owner argues the
`specification describes the band edge as the nearest band edge out
`of multiple band edges on a given side of the mask. Patent
`Owner has shifted its construction from the first point of
`attenuation, the innermost frequency, and now they're saying that
`it's a point along the diagonal line of figure 3B, but the
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`specification doesn't describe multiple band edges and uses
`nearest to distinguish the left from the right band edge relative to
`its respective carrier.
`And column 4 describes this relationship, you know, as
`the Board has acknowledged, between the band edge of the mask
`and the nearest respective carrier. And we can see this
`relationship in figure 3B. In figure 3B, we have the vertical line
`on the far left depicting the band edge of the mask on the left
`side, which is nearest to the center frequency of the left-most
`carrier 32A, and that's compared with the vertical line depicting
`the right band edge, which is farther away.
`Now, Patent Owner argues that the band edge must also
`be determined according to the highest power level of each
`outermost carrier, but as Dr. Kakaes explained, when you apply
`the correct placement of figure 4's mask over 5A, which is what is
`shown on the right-hand side of slide 11, it shows that Patent
`Owner's construction is wrong. This would place the nearest
`band edge, according to Patent Owner, at seven and a half
`kilohertz, and that contradicts the specification that says that the
`band edge is within 10 kilohertz from the center frequency.
`Now, turning to slide 12, under the Board's correct
`construction of the band edge, Petrovic discloses the band edge
`limitation. And we see in the express language of Petrovic, at the
`top left of slide 12, that Petrovic discloses a 50 kilohertz channel
`with a 35 kilohertz passband in the middle of the channel, and
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`seven and a half kilohertz guard bands on each side. Petrovic
`further states that eight subcarriers are placed 5 kilohertz apart.
`And as Dr. Kakaes explained in his opening declaration
`at paragraph 22, and that's set forth in the center of the slide,
`Petrovic meets the band edge limitation. Dr. Kakaes explained
`that the frequency difference between the center frequency of the
`outermost of the carriers and the band edge of the mask defining
`said channel, which is greater than 7.5 kilohertz, that's the guard
`band of the 50 kilohertz channel, that's more than half the
`frequency difference between the center frequencies of each
`adjacent carrier, as claimed.
`Now, if Your Honor has no questions with respect to
`the band edge limitation, I will move on to same location.
`(No response.)
`MS. HIGGINS: So, turning to slide 16, Patent Owner's
`construction of transmitting said carriers from the same location
`improperly reads in an additional limitation at the same time, but
`as the Board correctly found, the claims don't recite any temporal
`requirement, and indeed, Patent Owner concedes that the claims
`lack the temporal requirement. And there's no dispute that under
`the plain and ordinary meaning that Petrovic discloses
`transmitting said carriers from the same location. That's the
`common antenna as set forth explicitly in Petrovic. And even
`under Patent Owner's incorrect construction, the claim limitations
`are met.
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`
`Let's move ahead to adjacent carriers overlap with each
`other, which is slide 22. As the Board correctly found, Petrovic
`discloses that adjacent carriers overlap with each other. As
`Dr. Kakaes explained, and as shown in Petrovic figure 1, carrier 1
`overlaps with carrier 2, and that's the area that is circled in blue in
`Petrovic's figure 1 on slide 22.
`And in response to Patent Owner's arguments,
`Dr. Kakaes has further explained in his rebuttal declaration,
`paragraph 64, that in figure 1, the signal contributions of carrier 1
`and 2 are sufficiently strong to overlap.
`Now, turning to slide 23, as with respect to the other
`claim terms, Patent Owner improperly reads limitations into the
`claims. It argues that this overlap must be above what Dr. Kesan
`calls a power level P, and that is shown in Dr. Kesan's drawing 13
`on the right-hand side of slide 23. But neither the claims nor the
`specification say anywhere that the overlap has to be at a power
`level P. And, in fact, as Dr. Kakaes explained, Dr. Kesan's
`drawing 13 contradicts the '891 patent figure 6A, where looking
`at the figure on the left-hand side of the page, we see the overlap,
`the overlap has been circled in red between the two subcarriers,
`and at that point, the overlap is below Dr. Kesan's power level, as
`Dr. Kakaes explained.
`Moreover, turning to slide 24, if we look to Patent
`Owner's briefing, and Dr. Kesan's declaration at Exhibit 2011 at
`paragraph 43, we see that Dr. Kesan admitted that overlap of
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`adjacent carriers can occur below his power level P. If we look at
`his drawing 9, Dr. Kakaes has circled in blue where the overlap
`is, and Dr. Kesan says, in drawing 9, carrier 1 and carrier 3
`overlap, and carrier 3 and carrier 2 overlap. And that's at
`approximately 70 decibels, which is below where Dr. Kesan says
`you, you know, can't have overlap.
`So, we submit that there is -- it's inconsistent with both
`the specification and the claims to add this additional limitation,
`which what it is, into the claims, and that Dr. Kesan's extrinsic
`evidence doesn't provide a basis to do so and, in fact, contradicts
`the specification.
`Now, turning to slide 26, Patent Owner also argues that
`carriers 4 and 8 of Petrovic figure 1 don't overlap, but carriers 4
`and 8 are not adjacent carriers. As Dr. Kakaes explained, when
`carriers 4 and 5 are on, carriers 4 and 5 are adjacent carriers, and
`overlap with each other.
`And turning to slide 27, even under Patent Owner's
`incorrect reading of the claims, requiring transmission at the same
`time, Petrovic discloses adjacent carriers overlap with each other,
`per the claims. As Dr. Kakaes explains, and this is how the
`permutation modulation technique disclosed in Petrovic works, as
`Petrovic discloses, there's 70 different symbols, and that occurs
`for every different permutation modulation you get out of four.
`And so we've charted 3, 4, 5, 6, are on, each pair of adjacent
`carriers overlaps with each other.
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`And Dr. Kakaes explained this more fully in his
`deposition, which is Exhibit 12, page 113, line 14, through page
`114, line 6. Moreover, also in his deposition, Dr. Kakaes
`explained that in Petrovic, figure 2, which is showing -- also
`shows that each pair of adjacent carriers overlaps, and figure 2
`shows that overlap well above Dr. Kesan's power level P.
`If Your Honors have no questions with respect to those
`
`three --
`
`JUDGE QUINN: I have a question for you, counsel.
`So, from what we understand Patent Owner's argument is that the
`overlap needs to be over all the carriers, such that all the carriers
`are transmitting at the same time. Is Petrovic abdicating in its
`modulation scheme the on/off frequency shift keying, that there
`isn't any modulation position in which all the carriers are
`transmitting at any given time?
`MS. HIGGINS: Yes, Your Honor. I would start by
`saying that, respectfully, I think that Patent Owner's attempt to
`add the additional limitation into the claims, the claims don't say
`"all" adjacent carriers overlap, and I believe they're reading that
`word in. So, the claims talk about a plurality of carriers, which is
`at least two.
`Claim 3 talks about two subcarriers and, you know,
`starting with Petrovic figure 1, that shows that carriers 1 and 2
`overlap. But to answer Your Honor's question, and as Dr. Kakaes
`explained, and as I was saying, during permutation modulation,
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`which is described as you said, as this technique, where at any
`given time you could have any permutation of four subcarriers
`on. And as Dr. Kakaes explained, when you have carriers 3, 4, 5,
`6 on, there is all adjacent carriers overlap, even under Patent
`Owner's -- what I submit is an incorrect construction. And
`furthermore, as we've explained in our briefing, with respect to
`figure 2, and also in Dr. Kakaes' testimony at Exhibit 2012, 117,
`18 to 24, and if we look at figure 2, which is actually the
`spectrum of the signal carrying pseudorandom data, if we look at
`figure 2, we can see that it accounts for all -- all eight carriers, all
`adjacent carriers overlapping.
`So, there is -- as I said, the claim construction is not
`correct. The claim construction is talking about the situation, the
`claim language is that the carriers overlap with each other. It
`doesn't say all. We believe that a pair of carriers overlapping
`meets the claim language, but even if you require all carriers to
`overlap, Petrovic discloses that, as we've described in our
`briefing.
`JUDGE QUINN: Thank you.
`MS. HIGGINS: Thank you. I'm going to cede the rest
`of my time over to Ms. Hong to address motivation to combine.
`MS. HONG: Good morning, Your Honors, Kathryn
`Hong on behalf of Petitioners.
`If you'll turn to slide 28, please. With respect to claim
`5, Patent Owner does not dispute the combination discloses the
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`claimed limitation, rather Patent Owner argues against the
`combination, and this is Petrovic in combination with Raith and
`Alakija, but those arguments should be rejected because they
`ignore the record evidence and rationale expressly set forth in the
`petition.
`Turning to slide 29, Patent Owner argues that
`Petitioners have not set forth sufficient rationale for combining
`Petrovic with Raith and Alakija, but ignores the motivation
`expressly laid out in the petition at 35, that a person of ordinary
`skill would have been motivated to make the combination to
`advantageously provide messaging services to a larger geographic
`area and a larger number of mobile devices, and that the
`combination would have worked as shown in slide 29.
`Furthermore, in slide 30, Patent Owner also ignores the
`rationale provided in the petition with respect to the Alakija
`reference. And just quickly as to slide 31, Patent Owner argues
`the combination renders Petrovic inoperable, but provides no
`evidence of inoperability, and Dr. Kakaes, as shown in this slide,
`has testified that the combination would have worked.
`And finally, with respect to slide 32, Patent Owner
`argues that the combination would reduce the spectral efficiency
`of Raith and Alakija, but Patent Owner gets the combination
`backwards. Petitioners' applying Raith and Alakija to Petrovic's
`system, and not doing the reverse, which is what we understand
`Patent Owner bases its argument on.
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`So, unless the Board has any further questions with
`regard to motivation, we will reserve the rest of the time for
`rebuttal.
`JUDGE PETRAVICK: I have no questions.
`Judge Quinn?
`(No response.)
`JUDGE PETRAVICK: There appears to be no
`questions.
`JUDGE QUINN: Oh, I had a question about your slide
`31. Dr. Kakaes has said that this would be a matter of design
`choice. Does he set forth all of the criteria for meeting a design
`choice rationale for combination? And where is that?
`MS. HONG: Yes. So, with respect to the design choice
`argument with regard to collocating the transmitters, so that's on
`slide 29. So, Dr. Kakaes does explain in his declaration, and this
`is also in the petition as well, that Raith describes that
`transmitters are conventionally collocated, and that it was well
`known in the art to collocate transmitters in the same location.
`And furthermore, provides the rationale and motivation to make
`such a combination.
`So, as shown on slide 29, the motivation for doing so
`would be to provide messaging services to a larger geographic
`area by expanding this cell system for the communications, and
`this we believe is sufficient rationale to establish this motivation
`for combining.
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`Patent 5,659,891
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`JUDGE PETRAVICK: Thank you.
`MS. HONG: Thank you.
`MR. SCHMIDT: Your Honor, before I start, I have a
`quick question.
`JUDGE PETRAVICK: Sure.
`MR. SCHMIDT: So, references of Exhibit 2 of
`Petrovic were objected to by Patent Owner in the demonstratives
`and removed by Petitioner as a result of these objections, but in
`the argument, Petitioner referred to figure 2 of Petrovic after all.
`I just wanted to make that --
`JUDGE PETRAVICK: Did you file objections to their
`demonstratives?
`MR. SCHMIDT: After they agreed to remove those
`from the demonstratives.
`JUDGE PETRAVICK: They filed the demonstratives
`on Friday the 16th.
`MR. SCHMIDT: So the offending figure was in the
`oral argument, not in the demonstrative.
`JUDGE PETRAVICK: As to figure 2 of Petrovic?
`MR. SCHMIDT: Right.
`MS. HIGGINS: May I just say, Your Honor?
`JUDGE PETRAVICK: Sure.
`MS. HIGGINS: So, figure 2 of Petrovic is discussed
`and argued in our reply brief, and also as I set forth while I was
`standing up there, I also referenced pages of the deposition
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`Case IPR2016-00768
`Patent 5,659,891
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`transcript of Dr. Kakaes where counsel elicited testimony with
`respect to figure 2, so we believe that the figure 2 and the
`disclosures that are in the record are in the record.
`JUDGE PETRAVICK: Was figure 2 discussed in your
`Patent Owner's corrected response?
`MR. SCHMIDT: In the corrected response? No. And
`it was also not discussed in the petition.
`JUDGE PETRAVICK: Okay.
`MS. HIGGINS: But as I said, Your Honor, there is
`deposition testimony and we cited the deposition testimony in our
`reply brief. It's proper rebuttal, and it was elicited testimony from
`counsel, so it's properly in the record.
`JUDGE PETRAVICK: The standard is not whether it's
`cited in the petition, it's whether it's properly within the scope of
`the reply, it is cited in the reply, and of course that means that you
`are allowed to respond to things that are within the Patent
`Owner's response.
`MR. SCHMIDT: I'm sorry?
`JUDGE PETRAVICK: The standard is not whether it's
`cited in the petition or not, the standard is whether something is
`within the proper scope of the reply brief, which means that they
`get to reply to whatever arguments were made in the Patent
`Owner's response. That doesn't mean that they can bring in new
`arguments, but they can bring in new evidence to show to rebut
`whatever is in the Patent Owner's response.
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`Patent 5,659,891
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`
`I have now heard both of you, and so when we go back
`to consider this issue, we will look through the papers and make a
`determination, and if that is, indeed, a new argument or outside
`the proper scope of the reply, that argument will not be
`considered.
`MS. HIGGINS: And further, Your Honor, for the
`record, pages 34 and 35 of our reply brief and the testimony of
`Dr. Kakaes is cited there. Thank you, Your Honor.
`JUDGE PETRAVICK: Thank you. I will make note of
`the pages.
`All right, you can begin when you're ready.
`MR. SCHMIDT: Okay. Thank you, Your Honors. I
`will start by addressing motivation to combine first, since that
`was most recently discussed. Raith and Alakija are both cellular
`systems. It says so in Raith in the title and in Alakija in the first
`paragraph or two. Petrovic explicitly states in its conclusion, "the
`permutation modulation technique delivers higher bid rates and
`better spectral efficiency than modulation techniques currently
`used for paging. The higher efficiencies obtained in cellular
`networks is a result of the inherent differences in the type of
`services offered."
`So, Petrovic specifically says that its disclosure is not
`applicable to cellular systems, and therefore we believe that there
`would have been no motivation to combine this with any type of
`cellular system.
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`Case IPR2016-00768
`Patent 5,659,891
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`
`If you don't have any questions, I'll move on to single
`mask-defined bandlimited channel. So, this was one of the terms
`that was suggested for construction but the Board has declined to
`construe it up till now. And I would like to point out to the Board
`why -- and the Board in its decision to institute said -- sort of
`explained, hey, we don't really see why there is an argument
`about this term, so I would like to explain that.
`The background of the '891 patent states that the goal of
`the patent is to improve spectral deficiency by spacing carriers
`closer together. I think that's undisputed. The '891 patent is all
`about how close can we space the carriers together in order to
`maximize spectral efficiency.
`So, with that goal, that raises two questions: One is
`how close can we space carriers; and the second question for the
`patent is how can we teach someone how to space the carriers.
`So, what the -- this is where the asymmetric condition
`came from. So the Petitioner -- the patentees looked at the design
`and decided, okay, how can we make a reference point as to --
`that can be measured. So, what they've defined is the distance
`between adjacent carriers, which we've called DC, as in distance
`carriers, and the distance between the outermost carrier and the
`band edge of the mask defining the channel.
`So note, this is to the mask defining -- the band edge of
`the mask defining the channel, not to the band edge of the
`channel itself. And this becomes important later on.
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`Case IPR2016-00768
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`
`So, Dr. Kakaes has been asked about this in his
`deposition, and he acknowledged the formula, I think that is
`undisputed as well, that the claims recite the formula using the
`notation DM and DC. They state DM, the distance between the
`outermost carrier and the mask, must be greater than half the
`distance between adjacent carriers. And in the discussion of that
`formula, Dr. Kakaes also acknowledged that given this inequality,
`if you decrease DM, the distance from the outermost carrier to the
`mask, the band edge of the mask, defining channel, that
`necessarily forces you to decrease the difference between the
`adjacent carriers in order to continue meeting the equality.
`So that's the whole point of the '891 patent, is how close
`can we space carriers and still meet the condition of the mask. So
`that's the backdrop.
`So, for the single mask-defined bandlimited channel, I
`think it is also undisputed that the carriers are arranged in a
`channel, and that the channel is bandlimited, meaning it's a set
`amount of frequency range that is part of this channel. The
`exemplary channel discussed in Petrovic is 25 kilohertz, but the
`channel can be any number of ranges.
`So, for the 25 kilohertz channel in Petrovic, that's the
`bandlimited part of this term. So, the term is single mask-defined
`bandlimited channel. So we've got the bandlimited channel, 25
`kilohertz of frequency spectrum. Now we've got to figure out
`what mask-defined means.
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`Case IPR2016-00768
`Patent 5,659,891
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`So, the mass-defined means that band edge of the
`channel is further defined by a mask, and the Board has said as
`much in its institution -- in its decision to institute. So that means
`that the mask supplies another limitation to that bandlimited
`channel. And the purpose of a mask, and I think this is also
`undisputed, is that it is intended to avoid intra channel --
`interchannel interference, meaning it prevents the signal from
`spilling over or straying into adjacent channels.
`So how does the mask accomplish that? The mask
`requires the signal to be attenuated within the channel in order to
`assure that at the edge of the channel, the same amount is
`sufficiently attenuated. So, this is shown, for example, in slide 39
`of Patent Owner's presentation. Slide 39 is the mask of figure 4.
`Now, Dr. Kakaes and Petitioners have indicated the
`vertical lines at negative 10 and 10 as the band edge. Now, if you
`look at the section between negative 5 and 10, and the
`corresponding section between 5 and 10, those diagonal lines are
`also part of the mask. So that is undisputed. The only part that is
`disputed is where is the band edge of the mask.
`Now, Dr. Kakaes says the mask must be outside of the
`channel. It must include the whole channel. Now, if we take a
`look at -- if you still have in front of you, if you take a look at
`slide 6 of Petitioners' slides, please. So, slide 6 of Petitioners'
`demonstratives at the very bottom of the slide, Dr. Kakaes says
`the band edge of the mask defining the channel must be in a place
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`Case IPR2016-00768
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`where the channel has been included, or else it will not be the
`band edge defining the channel.
`Now, Patent Owner disagrees with that statement, and
`I'll explain why. But it turns out, Dr. Kakaes also disagrees with
`that statement. Let's look at claim -- slide 7 of Petitioners' slide
`show. Slide 7 is again figure 4 annotated in red where the band
`edge of the mask is, and Petitioners argued, and Dr. Kakaes has
`testified that it is at 10 and negative 10 kilohertz here.
`Well, the channel in Petrovic is 25 kilohertz, so the edge
`of the channel would be at plus/minus 12.5. So the band edge
`identified by Dr. Kakaes here is inside the channel, and that
`makes sense. If you have carriers, you can't place the carrier at
`the edge of the channel, because the modulated carrier doesn't just
`transmit at one exact frequency, it has a skirt, and the skirt means
`that some of the frequencies adjacent to the carrier are going t
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