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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`________________
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`SPRINT SPECTRUM L.P., CELLCO PARTNERSHIP D/B/A VERIZON
`
`WIRELESS, AND AT&T MOBILITY LLC,
`
`Petitioners
`
`v.
`
`ADAPTIX, INC.,
`
`Patent Owner
`
`U.S. Patent No.: 8,934,375
`
`Issue Date: January 13, 2015
`
`OFDMA WITH ADAPTIVE SUBCARRIER-CLUSTER
`
`CONFIGURATION AND SELECTIVE LOADING
`
`______________________
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`Case IPR2016-00823
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`____________________________________________________________
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`ADAPTIX, INC.
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`PATENT OWNER’S PRELIMINARY RESPONSE
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`i
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`TABLE OF CONTENTS
`
`
`LIST OF EXHIBITS .................................................................................................. v
`STATEMENT OF MATERIAL FACTS IN DISPUTE .......................................... vi
`I.
`INTRODUCTION. ............................................................................................. 1
`A. Grounds of the Petitioners’ proposed rejections. ....................................... 2
`II. BACKGROUND. ............................................................................................... 3
`A. Summary of the prosecution of the ‘375 patent. ........................................ 3
`B. Summary of the claimed subject matter of the ‘375 patent ....................... 4
`III. STANDARD FOR GRANTING INTER PARTES REVIEW ........................... 8
`IV. CLAIM CONSTRUCTION OF THE CHALLENGED CLAIMS .................... 9
`A. Claim construction. ...................................................................................... 9
`V. THE CLAIMS OF THE ‘375 PATENT ARE PATENTABLE OVER THE
`PETITIONERS’ PROPOSED REJECTIONS BASED ON OBVIOUSNESS.
` .......................................................................................................................... 10
`A.
`Independent claims 1 and 17 are patentable over the proposed
`obviousness rejection under 35 U.S.C. § 103(a) based on Ritter in view
`of Gesbert and Thoumy. ........................................................................... 10
`B. Claims 9 and 25 are patentable over the proposed obviousness rejection
`under 35 U.S.C. § 103(a) based on Ritter in view of Gesbert and Thoumy.
` .................................................................................................................. 23
`C. Claims 12 and 28 are patentable over the proposed obviousness rejection
`under 35 U.S.C. § 103(a) based on Ritter in view of Gesbert and Thoumy.
` .................................................................................................................. 27
`D. Dependent claims 15 and 31 are patentable over the proposed rejection
`under 35 U.S.C. § 103(a) based on Ritter in view of Gesbert and Thoumy
` .................................................................................................................. 28
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`ii
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`G.
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`E. Dependent claims 16 and 32 are also patentable over the proposed
`rejection under 35 U.S.C. § 103(a) based on Ritter in view of Gesbert and
`Thoumy ..................................................................................................... 29
`F. Dependent claims 3, 10, 19, and 26 are patentable over the proposed
`rejection under 35 U.S.C. § 103(a) based on Ritter in view of Gesbert,
`Thoumy, and Gitlin .................................................................................. 29
`Independent claims 1 and 17 are patentable over the proposed
`obviousness rejection under 35 U.S.C. § 103(a) based on Thoumy in
`view of Gesbert. ........................................................................................ 30
`H. Dependent claims 9 and 25 are patentable over the proposed rejection
`under 35 U.S.C. § 103(a) based on Thoumy in view of Gesbert ............. 41
`I. Dependent claims 15 and 31 are patentable over the proposed rejection
`under 35 U.S.C. § 103(a) based on Thoumy in view of Gesbert ............. 42
`J. Dependent claims 16 and 32 are patentable over the proposed rejection
`under 35 U.S.C. § 103(a) based on Thoumy in view of Gesbert ............. 43
`K. Dependent claims 3, 10, 12, 19, 26, and 28 are patentable over the
`proposed rejection under 35 U.S.C. § 103(a) based on Thoumy in view of
`Gesbert and Gitlin ..................................................................................... 43
`VI. CONCLUSION. ............................................................................................... 44
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`TABLE OF AUTHORITIES
`
`Cases
`Aristocrat Techs. Austl. PTY Ltd. v. Int’l Game Tech., 709 F.3d 1348 (Fed. Cir.
`2013) ..................................................................................................................... 25
`Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. ___ (2016) ................................ 9
`In re Ratti, 270 F.2d 810 (CCPA 1959) ............................................................ 11, 13
`In re Translogic Tech., Inc., 504 F.3d 1249 (Fed. Cir. 2007) ................................... 9
`Merck & Co. v. Teva Pharms. USA, Inc., 395 F.3d 1364 (Fed. Cir. 2005) ............. 25
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) .................................. 24, 25
`Statutes
`35 U.S.C. § 103(a) ........................................................................................... passim
`35 U.S.C. § 314(a) .............................................................................................. 8, 44
`35 U.S.C. § 325(d) ..................................................................................................... 1
`Other Authorities
`MPEP § 2143.01(VI) ........................................................................................ 11, 13
`Regulations
`37 C.F.R. § 42.100(b) ................................................................................................ 9
`37 C.F.R. § 42.108(c) ................................................................................................. 1
`37 C.F.R. § 42.23(a) ................................................................................................. vi
`37 C.F.R. § 42.24(d) ................................................................................................ 45
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`
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`iv
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`Exhibit No.
`2001
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`2002
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`LIST OF EXHIBITS
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`Exhibit
`Expert report of Thomas Fuja, Ph.D. regarding
`invalidity of U.S. Patent Nos. 6,947,748 and 7,454,212,
`July 7, 2014.
`Patent Trial and Appeal Board Decision Denying
`Institution of Inter Partes Review of U.S. Patent No.
`7,454,212, June 10, 2015.
`
`v
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`STATEMENT OF MATERIAL FACTS IN DISPUTE
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`
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`Petitioners, Sprint Spectrum L.P., Cellco Partnership D/B/A Verizon
`
`Wireless, and AT&T Mobility LLC (“Petitioners”), did not submit a specific
`
`articulated statement of material facts in the Petition. Accordingly, no response is
`
`due pursuant to 37 C.F.R. § 42.23(a), and no facts are admitted.
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`vi
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`I.
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`INTRODUCTION.
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`The Office has already considered and rejected three of the four references
`
`relied upon by the Petitioners in their proposed rejection. Unsatisfied with the
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`Office’s review, the Petitioners filed the present petition for inter partes review
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`(“Petition”) of Patent Owner’s U.S. Patent No. 8,934,375 (“‘375 patent”).
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`The Board should deny the Petition in its entirety based on procedural and
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`substantive defects. Under 35 U.S.C. § 325(d), the Board has broad discretion to
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`deny a petition that raises substantially the same prior art or arguments previously
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`presented to the Office. Furthermore, the Petitioners argue multiple alternate
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`grounds for each of the challenged claims and provide no meaningful distinction
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`between them. This runs counter to a petitioner’s obligation to present only its best
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`case in a petition for inter partes review.
`
`In order for the Board to grant review of the Petition, the Petitioners must
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`prove that there is a reasonable likelihood that at least one of the challenged claims
`
`is unpatentable. (See 37 C.F.R. § 42.108(c).) The Petition fails to meet this
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`requirement. Even if the Board identifies any grounds in the Petition that are not
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`redundant or cumulative, it should deny the Petition because the Petitioners have
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`failed to meet their threshold burden to prove that there is a reasonable likelihood
`
`that at least one of the claims challenged in the Petition is unpatentable.
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`1
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`A. Grounds of the Petitioners’ proposed rejections.
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`The Petition is directed to claims 1, 3, 9, 10, 12, 15-17, 19, 25, 26, 28, 31,
`
`and 32 (including independent claims 1 and 17), and proposes various grounds of
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`rejection under 35 U.S.C. § 103(a) against the subject claims including the
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`following:
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`1. Claims 1, 9, 12, 15-17, 25, 28, 31, and 32 (including independent
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`claims 1 and 17) are allegedly invalid under 35 U.S.C. § 103(a) as being
`
`obvious over German Patent No. DE19800953 to Ritter (Exhibit 1003)
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`(hereinafter “Ritter”) in view of U.S. Patent No. 6,760,882 to Gesbert et al.
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`(Exhibit 1005) (hereinafter “Gesbert”) and U.S. Patent No. 7,039,120 to
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`Thoumy et al. (Exhibit 1007) (hereinafter “Thoumy”);
`
`2. Claims 3, 10, 19, and 26 are allegedly invalid under 35 U.S.C.
`
`§ 103(a) as being obvious over Ritter in view of Gesbert, Thoumy, and U.S.
`
`Patent No. 6,018,528 to Gitlin et al. (Exhibit 1006) (hereinafter “Gitlin”);
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`3. Claims 1, 9, 15-17, 25, 31, and 32 (including independent claims 1
`
`and 17) are allegedly invalid under 35 U.S.C. § 103(a) as being obvious over
`
`Thoumy in view of Gesbert; and
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`4. Claims 3, 10, 12, 19, 26, and 28 are allegedly invalid under 35
`
`U.S.C. § 103(a) as being obvious over Thoumy in view of Gesbert and
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`Gitlin.
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`2
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`As explained below, Patent Owner submits that independent claims 1 and 17,
`
`and dependent claims 3, 9, 10, 12, 15, 16, 19, 25, 26, 28, 31, and 32 are patentable
`
`over the respective four (4) grounds of rejection proposed in the Petition.
`
`II. BACKGROUND.
`
`A.
`
`Summary of the prosecution of the ‘375 patent.
`
`
`
`The application for the ‘375 patent was filed on June 2, 2014 and published
`
`as U.S. Patent Publication No. 2014/0269396 on September 18, 2014. The ‘375
`
`patent is a continuation of Application No. 13/230,625, filed September 12, 2011,
`
`now U.S. Patent No. 8,964,719; which is a continuation of Application No.
`
`12/748,781, filed March 29, 2010, now U.S. Patent No. 8,036,199; which is a
`
`continuation of Application No. 11/931,926, filed October 31, 2007, now U.S.
`
`Patent No. 7,715,358; which is a continuation of Application No. 11/199,586, now
`
`U.S. Patent No. 7,454,212 (“’212 patent”); which is a continuation of Application
`
`No. 09/738,086, filed December 15, 2000, now U.S. Patent No. 6,947,748 (“’748
`
`patent”).
`
`Three of the four references relied on by the Petitioners were considered by
`
`the Examiner during the prosecution of the ‘375 patent. (Exhibit 1013 at 118, 122,
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`127.) The Petitioners acknowledge that these references were considered but insist
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`that they were “not substantively discussed during prosecution.” (Petition at 7, 9,
`
`and 10.) However, the examiner during the prosecution of the ‘375 patent,
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`3
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`Examiner Zewdu, was also the examiner in all five (5) of the applications to which
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`the ‘375 patent claims priority. Examiner Zewdu did substantively discuss Ritter
`
`in at least two of the prior applications. In addition, Examiner Zewdu considered
`
`Gesbert in three of the prior applications and considered Gitlin in one of the prior
`
`applications. Moreover, Patent Owner notified Examiner Zewdu that the ‘212 and
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`‘748 patents (both of which were examined by Examiner Zewdu) were the subject
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`of fifty (50) litigations and that each of the ‘212 and ‘748 patents were the subject
`
`of two inter partes reviews. (Exhibit 1013 at 107-112.) Furthermore, Patent
`
`Owner explained that Ritter, Gesbert, and Gitlin were identified by defendants in
`
`the various litigations that asserted those references were pertinent to the issue of
`
`validity of the ‘212 and ‘748 patents. (Exhibit 1013 at 111, 118, 122, 127.)
`
`Given that Examiner Zewdu examined all five (5) prior applications, relied
`
`upon Ritter to support rejections in two (2) prior applications, and was informed
`
`that two applications he examined were involved in numerous litigations and inter
`
`partes reviews, Patent Owner submits that Examiner Zewdu was acutely aware of
`
`Ritter, Gesbert, and Gitlin, and determined that the claims of the ‘375 patent are
`
`patentable over them.
`
`B.
`
`Summary of the claimed subject matter of the ‘375 patent.
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`
`
`The ‘375 patent is related to a method and apparatus for adaptive subcarrier
`
`allocation for systems employing orthogonal frequency division multiple access
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`4
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`(“OFDMA”). The first half of independent claim 1 recites “measuring, at a first
`
`time by a subscriber unit, a first channel information for a plurality of subcarriers
`
`based on a first plurality of pilot symbols,” then “providing, by the subscriber unit,
`
`a first feedback information relating to a plurality of feedback clusters based on at
`
`least the measuring of the first channel information…each feedback cluster of the
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`plurality of feedback clusters being at least two subcarriers, the first feedback
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`information…includes an index corresponding to a first modulation and coding
`
`rate associated with each feedback cluster of the plurality of feedback clusters,”
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`next “receiving, by the subscriber unit, a first allocation of OFDMA subcarriers
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`based on at least the providing of the first feedback information selected by the
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`base station for use by the subscriber unit…including an indication of a modulation
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`and coding rate.” As explained by the specification, each subscriber unit is
`
`measuring channel information across a plurality of subcarriers, and from the
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`plurality of subcarriers, each subscriber unit selects a subset of preferred clusters
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`and informs the base station of the subscriber unit’s preferred clusters, the quality
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`of each of the preferred clusters, and each cluster’s corresponding preferred
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`modulation and coding rates. From the preferred clusters, the base station selects a
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`subset of clusters for use by each subscriber unit, and sends an allocation of
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`subcarriers to each subscriber unit, including an indication of modulation and
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`coding rates for use with the allocated subcarriers. (‘375 patent at 3:24-57.)
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`5
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`The second half of independent claim 1 recites the subscriber unit repeating
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`the entire process, starting over with measuring the channel information for “the
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`plurality of subcarriers,” i.e., all the same subcarriers initially measured, not just
`
`the subcarriers already allocated to the subscriber unit. That is, the subscriber unit
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`is repeatedly monitoring the quality of other subcarriers, even those allocated to
`
`other users, and constantly feeding back updated information in search of better
`
`subcarriers. (‘375 patent at 6:63-7:8.) Independent claim 17 recites an apparatus
`
`configured to perform the same process.
`
`This process is shown at least in Fig. 1B (reproduced below), and the
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`process is described at least at column 5, line 29 to column 7, line 35 of the ‘375
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`patent.
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`6
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`This “retraining” process is described in the ‘375 specification:
`
`
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`From time to time, processing logic performs retraining by repeating
`
`the process described above (processing block 106). The retraining
`
`may be performed periodically. This retraining compensates for
`
`subscriber movement and any changes in interference. In one
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`embodiment, each subscriber reports to the base station its updated
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`selection of clusters and their associated SINRs. Then the base station
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`7
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`further performs the reselection and informs the subscriber about the
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`new cluster allocation.
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`(‘375 patent at 6:63-7:4, emphasis added.) This process was very counterintuitive
`
`at the time because it would consume a large amount of bandwidth and would be
`
`very computationally intensive.
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`III. STANDARD FOR GRANTING INTER PARTES REVIEW.
`
`
`
`The standard for granting/denying inter partes review is controlled by 35
`
`U.S.C. § 314(a), which indicates the following:
`
`The Director may not authorize an inter partes review to be instituted
`
`unless the Director determines that the information presented in the
`
`petition filed under section 311 and any response filed under section
`
`313 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.
`
`(35 U.S.C. § 314(a).) As discussed below, independent claims 1 and 17 and
`
`dependent claims 3, 9, 10, 12, 15, 16, 19, 25, 26, 28, 31, and 32 are patentable over
`
`the respective four (4) proposed grounds of rejection. As such, the Petitioners have
`
`failed to meet their burden under 35 U.S.C. § 314(a), and thus, Patent Owner
`
`respectfully requests that the Board deny institution of an inter partes review based
`
`on the Petition.
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`8
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`IV. CLAIM CONSTRUCTION OF THE CHALLENGED CLAIMS.
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`A. Claim construction.
`In an inter partes review, claim terms of 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, Cuozzo Speed Technologies, LLC v.
`
`Lee, 579 U.S. ___, ___ (2016) (slip op., at 13).) Furthermore, under the broadest
`
`reasonable interpretation standard, claims are given their ordinary and customary
`
`meaning in view of the specification as would be understood by one of ordinary
`
`skill in the art at the time of the invention. (In re Translogic Tech., Inc., 504 F.3d
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`1249, 1257 (Fed. Cir. 2007).)
`
`1. Meaning of the claim recitation of “cluster.”
`The Petitioners argue that “the broadest reasonable construction of ‘cluster’
`
`is ‘a logical unit that contains at least one physical subcarrier.’” (Petition at 7.)
`
`Patent Owner notes that both independent claims 1 and 17 recite that “each
`
`feedback cluster of the plurality of feedback clusters being at least two subcarriers.”
`
`Accordingly, Patent Owner submits that “cluster” as recited in the claims should
`
`properly be construed as “being at least two subcarriers.”
`
`In the event that the Board preliminarily adopts any claim term definitions
`
`not consistent with the Patent Owner’s position, Patent Owner reserves the right to
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`further argue its positions in a Response if an inter partes review is instituted.
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`9
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`V.
`
`THE CLAIMS OF THE ‘375 PATENT ARE PATENTABLE OVER
`THE PETITIONERS’ PROPOSED REJECTIONS BASED ON
`OBVIOUSNESS.
`
`Independent claims 1 and 17 are patentable over the proposed
`A.
`obviousness rejection under 35 U.S.C. § 103(a) based on Ritter in view
`of Gesbert and Thoumy.
`
`The Petitioners allege that claims 1, 9, 12, 15-17, 25, 28, 31, and 32
`
`(including independent claims 1 and 17) are unpatentable under 35 U.S.C. § 103(a)
`
`as being obvious over Ritter in view of Gesbert and Thoumy. In response, Patent
`
`Owner submits that the combination of Ritter in view of Gesbert and Thoumy does
`
`not result in every aspect of the claimed invention of independent claims 1 and 17,
`
`and that one of ordinary skill would not combine the references in the manner
`
`proposed by the Petitioners. Thus, independent claims 1 and 17 are patentable
`
`over the proposed rejection thereof for at least the reasons set forth herein.
`
`The Petitioners’ proposed combination of Ritter and
`1.
`Gesbert is impermissible and therefore cannot be relied upon to
`disclose “measuring, at a first time by a subscriber unit, a first
`channel information for a plurality of subcarriers based on a first
`plurality of pilot symbols received from a base station,” as recited
`in independent claim 1, or “a processor configured to: measure, at
`a first time, a first channel information for a plurality of
`subcarriers based on a first plurality of pilot symbols received
`from a base station,” as recited in independent claim 17.
`
`The Petitioners assert that “Ritter teaches that each subscriber unit measures
`
`channel quality information for subcarriers between it and a base station.” (Petition
`
`at 12.) While Ritter does disclose a mobile station measuring the quality of various
`
`segments of the frequency spectrum, Ritter does not utilize pilot symbols received
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`10
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`from the base station to do so, as required by the claims of the ‘375 patent. Instead,
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`the Petitioners argue that “[t]o the extent the Patent Owner argues that Ritter does
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`not explicitly disclose ‘measuring … based on a first plurality of pilot symbols,’ it
`
`would have nevertheless been obvious to measure channel quality using pilot
`
`symbols in view of Gesbert.”1 (Petition at 13.) Ritter does not disclose the above-
`
`quoted recitation, and as discussed below, the Petitioners’ proposed combination of
`
`Ritter in view of Gesbert is improper under the law. (Fuja Report, Exhibit 2001 at
`
`para. 261 and see In re Ratti, 270 F.2d 810, 813 (CCPA 1959).)
`
`“If the proposed modification or combination of the prior art would change
`
`the principle of operation of the prior art invention being modified, then the
`
`teachings of the references are not sufficient to render the claims prima facie
`
`obvious.” (MPEP § 2143.01(VI) citing In re Ratti at 813, emphasis added.)
`
`According to the Petitioners’ expert, Dr. Fuja, from a related litigation, “Ritter did
`
`not disclose the use of pilot symbols to make those measurements – proposing a
`
`more sophisticated ‘blind’ approach based on amplitude variations.” Rather than
`
`using pilot symbols, Dr. Fuja explains:
`
`1 This statement implies that Petitioners believe Ritter may disclose measuring
`
`based on pilot symbols. This position directly contradicts Petitioners’ own expert
`
`who definitively stated that Ritter does not. (Fuja Report, Exhibit 2001 at para.
`
`261.)
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`11
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`Part of Ritter’s novelty is that it proposes to derive the channel and
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`interference measurements from data symbols (which are typically
`
`unknown to the receiver in advance) rather than pilot symbols (which
`
`are typically known to the receiver in advance). Making such
`
`measurements from data is a much more challenging problem than
`
`making them from pilots; estimating channel quality without the
`
`benefit of a known transmitted signal is an example of blind
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`processing, and it is valuable because it does not require the
`
`“overhead” implied by estimating the channel quality from known
`
`(non-data-bearing) pilot symbols.
`
`(Fuja Report, Exhibit 2001 at paras. 245, 263, and 261, emphasis in original.)
`
`Indeed, Ritter explains that the first step of the disclosed method is to “[m]easure
`
`the quality of various segments of the frequency spectrum” and how it is done:
`
`An especially simple method to measure quality consists of so [sic]
`
`determining the relative deviations of the amplitudes of the data
`
`symbols, that the absolute amplitude difference from data symbol to
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`data symbol is added up and the addition result is normalized with the
`
`average amplitude of all data symbols transmitted on a given
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`subcarrier.
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`12
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`(Ritter at 4 and 9.) Given that Ritter departed from the use of pilot symbols, and
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`instead invented a novel method of measurement to save valuable “overhead,”
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`Patent Owner submits that the novel method of measurement is a basic principle
`
`under which Ritter was designed to operate. Thus, replacing the novel approach
`
`invented by Ritter with the teachings of Gesbert would change the basic principles
`
`under which Ritter was designed to operate. Accordingly, under Ratti, such a
`
`combination of Ritter in view of Gesbert is “not sufficient to render the claims
`
`prima facie obvious.” (MPEP § 2143.01(VI) citing In re Ratti at 813.)
`
`The Petitioners’ proposed combination of Ritter, Gesbert,
`2.
`and Thoumy does not disclose “measuring, at a second time by the
`subscriber unit, a second channel information for the plurality of
`subcarriers based on a second plurality of pilot symbols,” as
`recited in independent claim 1, or “measure, at a second time, a
`second channel information for the plurality of subcarriers based
`on a second plurality of pilot symbols received from the base
`station,” as recited in independent claim 17.
`
`In an attempt to show that Ritter discloses the above-quoted recitations, the
`
`Petitioners falsely assert that “both Ritter and Gesbert describe performing
`
`repeated channel quality measurements for the plurality of subcarriers to obtain
`
`current and reliable channel quality measurements.” (Petition at 26-27.) However,
`
`one of ordinary skill in the art would recognize that Ritter has no need to take
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`additional measurements after the initial priority list is sent by each user because
`
`Ritter explicitly states that the method is “especially advantageous” for
`
`“applications with low movement speeds.” (Ritter at 7.) In other words, Ritter’s
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`13
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`procedure is most useful where bandwidth demands might change, but the channel
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`conditions are not likely to change dramatically, and therefore, there is no need to
`
`waste valuable overhead continually measuring and reporting the channel
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`conditions, when the bandwidth can be modified based on the initial priority list.
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`Regardless, the Petitioners aim to support their false assertion by pointing to
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`various sections of Ritter, none of which disclose performing a second
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`measurement.
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`First, the Petitioners point to the following statement in Ritter:
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`In the process, the quality of the actual communication link plays a
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`decisive role with respect to the frequency situation which according
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`to the procedure of the invention can be individually changed after the
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`determination of the best suitable segments in each mobile station
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`overseen by a base station and can thereby be improved.
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`(Petition at 27, quoting Ritter at 6.) Note that this passage does not mention
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`performing a second measurement by a mobile station. This passage states that the
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`allocations can be changed “after the determination of the best suitable segments in
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`each mobile station overseen by a base station.” (Ritter at 6.) Ritter discloses that
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`the determination of the best suitable segments in each mobile station is performed
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`after each mobile station transmits its own list of preferred segments. (Ritter at 8
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`and 12-14.) Ritter does not disclose this process repeating.
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`Second, the Petitioners point to the statement that “the best suited segments
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`for communication can be determined at any time for individual communications
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`links which differ from each other and they can be changed as needed.” (Petition
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`at 27, quoting Ritter at 7-8.) Again, Ritter does not mention performing a second
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`measurement. Instead, the sentence preceding the section quoted by the Petitioners
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`explains that “[t]he flexibility of the procedure of the invention can be especially
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`used in an advantageous manner, if segments of the frequency spectrum are
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`allocated to the mobile stations by the base station whose bandwidths vary or a
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`different number of time slots for the transmission of data symbols are assigned to
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`the allocated segments.” (Ritter at 7.) In other words, Ritter touts the procedures
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`ability to modify a user’s bandwidth; a modification that can be accomplished
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`based on the initial priority lists.
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`Third, the Petitioners point to the statement that “[i]n addition, for each
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`mobile station the number of assigned sub-carriers in a time slot can be variably
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`adjusted by the base station.” (Petition at 27, quoting Ritter at 16.) Again, there is
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`no mention of performing a second measurement. This is just another example of
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`Ritter’s disclosed ability to modify each user’s bandwidth based on the initial
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`priority list.
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`Patent Owner notes that the ‘375 patent discloses a similar method of
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`allocating additional subcarriers to a subscriber unit to increase bandwidth without
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`taking another measurement:
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`In an alternative embodiment, the base station first allocates multiple
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`clusters, referred to herein as the basic clusters, to establish a data link
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`between the base station and the subscriber. The base station then
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`subsequently allocates more clusters, referred to herein as the
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`auxiliary clusters, to the subscriber to increase the communication
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`bandwidth.
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`(‘375 patent at 6:42-48.) However, this embodiment is NOT what is claimed in the
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`‘375 patent. What the ‘375 patent claims is the retraining process, wherein the
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`subscriber unit is repeatedly monitoring the quality of other subcarriers, even those
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`allocated to other users, and constantly feeding back updated information in search
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`of better subcarriers. (‘375 patent at 6:63-7:8.) “Retraining” is not disclosed by
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`Ritter, whether alone or in any proper combination with Gesbert and Thoumy.
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`Gesbert never discloses how the carriers discussed therein are allocated.
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`Furthermore, Gesbert has nothing to do with subcarrier reallocation. In fact,
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`Gesbert discloses a method of dealing with channel degradation without the need
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`to allocate different subcarriers. In the background section, Gesbert explains:
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`Wireless communications channels between transmit and receive
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`devices are inherently variable and their quality fluctuates.
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`Specifically, the quality parameters of such communications channels
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`vary in time. Under good conditions wireless channels exhibit good
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`communication parameters, e.g., large data capacity, high signal
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`quality, high spectral efficiency and throughput. At these times
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`significant amounts of data can be transmitted via the channel reliably.
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`However, as the channel changes in time, the communication
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`parameters also change. Under altered conditions former data rates,
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`coding techniques and data formats may no longer be feasible. For
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`example, when channel performance is degraded the transmitted data
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`may experience excessive corruption yielding unacceptable
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`communication parameters.
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`(Gesbert at 1:21-35, emphasis added.) Gesbert acknowledged that channels may
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`become unacceptable with the initially prescribed modulation and coding rates
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`over time, but rather than switching channels, Gesbert proposed to solve the
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`problem by “provid[ing] a mode selection technique which allows the system to
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`rapidly and efficiently select the appropriate mode for encoding data in a quickly
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`changing channel.” (Gesbert at 2:45-48.) Accordingly, Gesbert allows for
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`maximizing the efficiency of the assigned channel so that the user does not need to
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`Case IPR2016-00823; U.S. Patent No. 8,934,375
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`change subcarriers. (Gesbert at 3:48-50, “the subsequent mode can maximize data
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`capacity, signal quality, spectral efficiency or throughput of the channel.”) Gesbert
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`is clear that the disclosed adaptive coding and modulation is for an already
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`allocated communication channel, rather than for a prospective allocation:
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`The present invention provides a method for selecting a mode for
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`encoding data for transmission in a wireless communication channel
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`between a transmit unit and a receive unit. The data is first encoded
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`in accordance with an initial mode and transmitted from the transmit
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`unit to the receive unit. One or more quality parameters are sampled
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`in the data received by the receive unit. Then, a first-order statistical
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