Trials@uspto.gov
`571.272.7822
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`Paper No. 9
`Filed: September 20, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SPRINT SPECTRUM L.P., CELLCO PARTNERSHIP D/B/A VERIZON
`WIRELESS, and AT&T MOBILITY LLC,
`Petitioner,
`
`v.
`
`ADAPTIX, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00824
`Patent 8,934,375 B2
`____________
`
`
`
`Before KALYAN K. DESHPANDE, TREVOR M. JEFFERSON, and
`J. JOHN LEE, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`37 C.F.R. § 42.108
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`
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`571.272.7822
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`Paper No. 9
`Filed: September 20, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SPRINT SPECTRUM L.P., CELLCO PARTNERSHIP D/B/A VERIZON
`WIRELESS, and AT&T MOBILITY LLC,
`Petitioner,
`
`v.
`
`ADAPTIX, INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00824
`Patent 8,934,375 B2
`____________
`
`
`
`Before KALYAN K. DESHPANDE, TREVOR M. JEFFERSON, and
`J. JOHN LEE, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`IPR2016-00824
`Patent 8,934,375 B2
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`I.
`INTRODUCTION
`Sprint Spectrum L.P., Cellco Partnership d/b/a Verizon Wireless, and
`AT&T Mobility LLC (collectively, “Petitioner”) filed a Petition requesting
`an inter partes review of claims 2, 4–8, 11, 13, 14, 18, 20–24, 27, 29, and 30
`of U.S. Patent No. 8,934,375 B2 (Ex. 1101, “the ’375 patent”). Paper 4
`(“Pet.”). Adaptix, Inc. (“Patent Owner”) filed a Preliminary Response.
`Paper 8 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 314(a),
`which provides that an inter partes review may not be instituted “unless . . .
`there is a reasonable likelihood that the petitioner would prevail with respect
`to at least 1 of the claims challenged in the petition.” After considering the
`Petition, the Preliminary Response, and associated evidence, we conclude
`that Petitioner has demonstrated a reasonable likelihood that it would prevail
`in showing unpatentability of claims 2, 4, 6, 8, 18, 20, 22, and 24 of the ’375
`patent. Thus, we institute an inter partes review of claims 2, 4, 6, 8, 18, 20,
`22, and 24 of the ’375 patent. We further conclude that Petitioner has not
`demonstrated a reasonable likelihood that it would prevail in showing the
`unpatentability of claims 5, 7, 11, 13, 14, 21, 23, 27, 29, and 30 of the ’375
`patent. Therefore, we do not institute an inter partes review of claims 5, 7,
`11, 13, 14, 21, 23, 27, 29, and 30 of the ’375 patent.
`A. Related Proceedings
`Petitioner indicates that the ’375 patent is the subject of the following
`
`proceedings: Adaptix, Inc. v. AT&T Mobility LLC, Case No. 6:15-cv-43
`(E.D. Texas), Adaptix, Inc. v. Sprint Spectrum, L.P., Case No. 6:15-cv-44
`(E.D. Texas), and Adaptix, Inc. v. Cellco Partnership d/b/a Verizon
`Wireless, Case No. 6:15-cv-45 (E.D. Texas). Pet. 59–60.
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`IPR2016-00823, filed concurrently, also challenges the ’375 patent.
`Sprint Spectrum L.P. v. Adaptix, Inc., Case IPR2016-00823 (PTAB date)
`(Paper 9) (“IPR2016-00823 Inst. Dec.”).
`B. The ’375 Patent (Ex. 1101)
`The ’375 patent discloses methods and apparatuses for allocating
`
`subcarriers in an orthogonal frequency division multiple access (OFDMA)
`system. Ex. 1101, 2:27–29. Accordingly, each of multiple subscribers
`measures performance parameters for a plurality of subcarriers, selects
`multiple candidate subcarriers with good performance, and provides
`information regarding respective candidate subcarriers to a base station.
`Id. at 3:24–29. The performance parameter measurements may be based
`upon pilot symbols provided by the base station. Id. at 5:36–46. Upon
`receiving the information from the subscribers, the base station selects
`subcarriers from the candidate subcarriers to be allocated for use by each
`subscriber. Id. at 3:37–39. Subsequently, the base station informs each
`subscriber of its respective subcarrier allocation. Id. at 3:55–57. This
`process is repeated periodically and/or when channel deterioration is
`observed. Id. at 6:63–7:15.
`Figure 1B, reproduced below, is a flow diagram of one embodiment
`of the process for allocating clusters of subcarriers to subscribers.
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`In accordance with the process depicted above in Figure 1B, each base
`station periodically broadcasts pilot OFDM symbols to every subscriber
`(step 101). Id. at 5:36–38. Each subscriber continuously monitors the
`reception of the pilot symbols and measures associated performance
`parameters (step 102). Id. at 5:47–50. Then, each subscriber selects one or
`more clusters with good performance and feeds back to the base station
`information regarding these candidate clusters (step 103). Id. at 5:50–55.
`The base station then selects, for each subscriber, one or more clusters from
`among the candidate clusters (step 104). Id. at 6:18–20. The base station
`notifies each subscriber about the cluster allocation at step 105. This process
`may be repeated, as further depicted in Figure 1B. Id. at 6:63–65.
`C. Illustrative Claims
`Petitioner challenges claims 2, 4–8, 11, 13, 14, 18, 20–24, 27, 29, and
`30 of the ’375 patent. Pet. 4–58. All of the challenged claims depend,
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`directly or indirectly, from independent claims 1 and 17. Claims 2 and 5 are
`illustrative of the claims at issue and are reproduced below:
`2.
`The method of claim 1, wherein the plurality of feedback
`clusters at the second time is different than the plurality of
`feedback clusters at the first time.
`
`Ex. 1101, 17:54–56.
`The method of claim 4, wherein at least one subcarrier of the
`5.
`first plurality of subcarriers in the first time slot is different than all of
`the subcarriers of the second plurality of subcarriers in the second
`time slot.
`
`Ex. 1101, 18:1–4.
`D. The Alleged Grounds of Unpatentability
`The information presented in the Petition sets forth proposed grounds
`of unpatentability of claims 2, 4–8, 11, 13, 14, 18, 20–24, 27, 29, and 30 of
`the ’375 patent under 35 U.S.C. § 103(a) as follows (see Pet. 7–58):1
`Claims
`Challenged
`2, 8, 14, 18, 24, and 30
`
`References
`
`Ritter,2 Gesbert,3 and Thoumy4
`Ritter, Gesbert, Thoumy, and
`Gitlin5
`Thoumy, Gesbert, and Gitlin
`Thoumy, Gesbert, and Ritter
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`4–7, 11, 13, 20–23, 27, and 29
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`6–8, 11, 13, 22–24, 27, and 29
`2, 14, 18, and 30
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`1 Petitioner supports its challenge with the Declaration of Richard D. Gitlin,
`Sc.D. (Ex. 1102).
`2 The parties refer to Exhibit 1104 as “Ritter,”' which is an English
`translation of DE 198 00 953 Cl. The German patent document has been
`entered as Exhibit 1103.
`3 U.S. Patent No. 6,760,822 B1; issued July 6, 2004 (Ex. 1105) (“Gesbert”).
`4 U.S. Patent No. 7,039,120 B1; issued May 2, 2006 (Ex. 1107) (“Thoumy”).
`5 U.S. Patent No. 6,018,528; issued January 25, 2000 (Ex. 1106) (“Gitlin”).
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`References
`Thoumy, Gesbert, Gitlin, and
`Ritter
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`Claims
`Challenged
`4, 5, 20, and 21
`
`II. ANALYSIS
`A. 35 U.S.C. § 325(d)
`Patent Owner argues that “[t]hree of the four references relied on by
`the Petitioners were considered . . . during the prosecution of the ‘375
`patent.” Prelim. Resp. 3 (citing Ex. 1113,6 118, 122, 127). Specifically,
`Patent Owner argues that the ’375 patent claims priority to five applications,
`and the Examiner substantively discussed Ritter in at least two of the prior
`applications. Id. at 4. Patent Owner further argues that the Examiner
`“considered Gesbert in three of the prior applications and considered Gitlin
`in one of the prior applications.” Id. Patent Owner represents that the
`Examiner has been notified that two of the prior applications, now two
`patents, were the subject of two inter partes reviews, and additionally
`represents that Ritter, Gesbert, and Gitlin were identified by defendants in
`various litigation proceedings. Id. Patent Owner appears to rely on this
`information in arguing that the Board should deny the Petition under
`35 U.S.C. § 325(d) because it raises substantially the same prior art or
`arguments previously presented to the Office. Id. at 1.
`Petitioner seeks inter partes review of claims 2, 4–8, 11, 13, 14, 18,
`20–24, 27, 29, and 30 of the ’375 patent. Pet. 1. Petitioner does not
`
`
`6 Patent Owner cites Exhibit 1013, which is not in the record for IPR2016-
`00824. We understand this to be a typographical error and assume Patent
`Owner intended to cite Exhibit 1113.
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`specifically address 35 U.S.C. § 325(d) in its Petition, but does note that
`during prosecution of the ’375 patent, Patent Owner submitted five
`Information Disclosure Statements, citing over 1,400 references. Id. at 3‒4.
`Petitioner asserts that the Examiner noted “the number of references
`submitted is unreasonably large in quantity and without any indication of
`relevancy.” Id. (quoting Ex. 1113).
`The Board has discretion to decline to institute an inter partes review
`under 35 U.S.C. § 314(a). One factor the Board may take into account when
`exercising that discretion is whether “the same or substantially the same
`prior art or arguments previously were presented to the Office.” 35 U.S.C.
`§ 325(d) (“[i]n determining whether to institute or order a proceeding”
`for inter partes review, “the Director may take into account” that factor, and
`“reject the petition” on that basis).
`We are not persuaded to use our discretion to deny this Petition under
`35 U.S.C. § 325(d). Patent Owner merely asserts that Gesbert has been
`considered in three prior applications and Gitlin has been considered in one
`prior application. Prelim. Resp. 4. Patent Owner similarly asserts only that
`the Examiner substantively discussed Ritter in at least two prior applications.
`Id. Patent Owner, however does not discuss to what extent Ritter, Gesbert,
`and Gitlin have been considered in the prosecution of the ’375 patent. The
`fact that Gesbert and Gitlin were considered in other patent applications, and
`Ritter was discussed separately in other applications, is not determinative as
`to whether “the same or substantially the same prior art or arguments” were
`presented in the prosecution of the ’375 patent. That is, absent persuasive
`evidence that Ritter, Gesbert, and Gitlin were presented to, and considered
`by, the Examiner during the prosecution of the ’375 patent, we do not
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`consider Ritter, Gesbert, and Gitlin to have been previously presented before
`the Office in a manner sufficient to warrant denial of the Petition.
`Accordingly, we decline to use our discretion and deny this Petition
`because only some of the prior art were considered during the prosecution of
`other related patent applications.
`B. Claim Construction
`The Board interprets claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); see Cuozzo Speed Techs., LLC v.
`Lee, 136 S. Ct. 2131, 2142–46 (2016). Under the broadest reasonable
`construction standard, claim terms are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. In re Translogic Tech. Inc., 504 F.3d 1249,
`1257 (Fed. Cir. 2007).
`1. “Pilot Symbols”
`Petitioner argues that the term “pilot symbols” should be construed to
`mean “symbols, sequences, or signals known to both the base station and
`subscriber.” Pet. 5 (citing Exs. 1111, 1112). Petitioner asserts that the ’375
`patent specification discloses that “pilot symbols, often referred to as a
`sounding sequence or signal, are known to both the base station and the
`subscribers.” Id. (citing Ex. 1101, 5:38‒40). Patent Owner does not proffer
`a construction for this term.
`Although the ’375 patent does not provide an express definition for
`“pilot symbols,” we adopt Petitioner’s construction of “pilot symbols” as
`“symbols, sequences, or signals known to both the base station and
`subscriber,” for the purposes of this decision.
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`2. “Cluster”
`Petitioner argues that the term “cluster” is expressly defined in the
`’375 patent specification as “a logical unit that contains at least one physical
`subcarrier.” Pet. 5‒6 (citing Ex. 1101, 5:20‒21). Patent Owner argues that
`the term “cluster” should be construed as “being at least two subcarriers”
`because each of independent claims 1 and 17 recite that “each feedback
`cluster of the plurality of feedback clusters being at least two subcarriers.”
`Prelim. Resp. 9.
`On this record, we construe “cluster” to mean “a logical unit that
`contains at least one physical subcarrier” based on the ’375 patent
`specification’s express definition for “cluster.” Indeed, independent claims
`1 and 17 recite “each feedback cluster of the plurality of feedback clusters
`being at least two subcarriers” and, therefore, impart the limitation of “at
`least two subcarriers.” However, on this record, we do not import this
`limitation into the term “cluster” itself.
`Additionally, we note that the term “cluster” is not synonymous with
`“subcarrier.” The claims recite the terms “cluster” and “subcarrier,” and the
`’375 patent specification provides a different context for each of these terms.
`For example, claim 1 recites “each feedback cluster . . . being at least two
`subcarriers,” and the ’375 patent specification discloses a “cluster can
`contain consecutive or disjoint subcarriers. The mapping between a cluster
`and its subcarriers can be fixed or reconfigurable.” Ex. 1101, 5:22‒24.
`Therefore, a cluster is a “logical unit that contains at least one physical
`subcarrier,” but is different than a “subcarrier.”
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`3. “Diversity Cluster”
`Petitioner argues that the term “diversity cluster” should be construed
`to mean “a cluster containing multiple subcarriers with at least some of the
`subcarriers spread far apart over the spectrum.” Pet. 6 (citing
`Ex. 1102 ¶ 34). Petitioner asserts that the ’375 patent specification describes
`a “diversity cluster” as a cluster “containing multiple subcarriers with at
`least some of the subcarriers spread far apart over the spectrum.” Id. (citing
`Ex. 1101, 14:28‒30). Patent Owner does not proffer a construction for this
`term. For the purposes of this decision, we adopt Petitioner’s construction
`of “diversity cluster” as “a cluster containing multiple subcarriers with at
`least some of the subcarriers spread far apart over the spectrum.”
`4. “Coherence Cluster”
`Petitioner argues that the term “coherence cluster” should be
`construed to mean “a cluster containing multiple subcarriers close to each
`other.” Pet. 6 (citing Ex. 1102 ¶ 35). Petitioner asserts that the ’375 patent
`specification describes a “coherence cluster” as a cluster “containing
`multiple subcarriers close to each other.” Id. (citing Ex. 1101, 14:27–28).
`Patent Owner does not proffer a construction for this term. For the purposes
`of this decision, we adopt Petitioner’s construction of “coherence cluster” as
`“a cluster containing multiple subcarriers close to each other.”
`5. “Coherence Bandwidth”
`Petitioner argues that the term “coherence bandwidth” should be
`construed to mean “the bandwidth within which the channel response
`remains roughly the same.” Pet. 6 (citing Ex. 1102 ¶ 36). Petitioner asserts
`that the ’375 patent specification describes “coherence bandwidth” as a “the
`bandwidth within which the channel response remains roughly the same.”
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`Id. (citing Ex. 1101, 11:55–60). Patent Owner does not proffer a
`construction for this term. For the purposes of this decision, we adopt
`Petitioner’s construction of “coherence bandwidth” as “the bandwidth within
`which the channel response remains roughly the same.”
`C. Obviousness of Claims 2, 8, 14, 18, 24, and 30 over Ritter, Gesbert, and
`Thoumy
`Petitioner contends that claims 2, 8, 14, 18, 24, and 30 of the ’375
`patent are unpatentable under 35 U.S.C. § 103(a) as obvious over Ritter,
`Gesbert, and Thoumy. Pet. 10–33. For the reasons discussed below, the
`evidence on this record indicates there is a reasonable likelihood that
`Petitioner would prevail in showing that claims 2, 8, 18, and 24 of the ’375
`patent are unpatentable under 35 U.S.C. § 103(a) as obvious. Petitioner
`provides a detailed analysis, supported by evidence, identifying sections of
`the prior art as teaching the limitations of claims 2, 8, 18, and 24. Id.
`Petitioner further provides the Declaration of Dr. Richard D. Gitlin in
`support of its analysis. See Ex. 1102. For the reasons discussed below,
`based on the evidence of record, there is not a reasonable likelihood that
`Petitioner would prevail in showing that claims 14 and 30 of the ’375 patent
`are unpatentable under 35 U.S.C. § 103(a) as obvious.
`1. Ritter (Ex. 1104)
`Ritter discloses methods and systems for allocating radio resources in
`an OFDMA system comprising a base station and multiple mobile stations.
`Ex. 1104, 3–5, 13–14. 7 As described in Ritter, each mobile station measures
`the quality of various segments of the frequency spectrum, determines a
`
`7 Exhibit 1104 includes page numbers indicated by the publication itself, and
`different page numbers provided by Petitioner. Our references are to the
`page numbers of the exhibit as provided by Petitioner.
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`preferred segment to use for communications with the base station, and
`provides information to the base station regarding the preferred segment.
`Id. at 5–6, 13–14. The quality measurements may be based on the relative
`amplitudes of data symbols received on all sub-channels by a mobile station.
`Id. at 9–10. The base station evaluates the received information and
`allocates a respective segment for communications with each mobile station.
`Id. at 6–7.
`
`2. Gesbert (Ex. 1105)
`Gesbert discloses methods and systems for selecting a mode for
`encoding data for transmission in a wireless communication channel
`between a transmit unit and a receive unit. Ex. 1105, Abstract, 2:56–59.
`Data encoded in accordance with an initial mode is transmitted from the
`transmit unit to the receive unit. Id. at 2:59–61. Quality parameters are
`sampled in the data received by the receive unit. Id. at 2:61–62. And a
`subsequent mode for encoding the data is selected based on first-order and
`second-order statistical parameters of the quality parameters. Id. at 2:59–65.
`As described in Gesbert, a mode may include a modulation rate and a coding
`rate. Id. at 3:6–37. The modulation rate and data rate of a mode may be
`indexed by a mode number for identification. Id. at 3:37–39. Quality
`parameters may include signal-to-interference and noise ratio (SINR),
`signal-to-noise ratio (SNR), and/or power level. Id. at 3:1–3. The
`subsequent mode may be selected in order to maximize a channel
`communication parameter such as maximum data capacity, signal quality
`spectral efficiency, and/or channel throughput. Id. at 3:46–51.
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`3. Thoumy (Ex. 1107)
`Thoumy discloses methods and systems for dynamic allocation of
`carrier frequencies in systems using multi-carrier type modulation.
`Ex. 1107, 1:9–12. As described in Thoumy, the transmission reliability of
`carrier frequencies is dynamically estimated, and a significance
`measurement is attributed to each group of data to be transmitted via the
`carrier frequencies. Id. at Abstract. The most significant data are
`transmitted over the most reliable carrier frequencies at that time, and less
`significant data are transmitted over carrier frequencies of decreasing
`reliability in decreasing order of significance. Id. at Abstract, 5:29–35.
`4. Analysis
`The evidence set forth by Petitioner indicates there is a reasonable
`likelihood that Petitioner will prevail in showing that claims 2, 8, 18, and 24
`are unpatentable under 35 U.S.C. § 103(a) as obvious. See Pet. 10–33. The
`evidence set forth by Petitioner does not indicate that there is a reasonable
`likelihood that Petitioner will prevail in showing that claims 14 and 30 are
`unpatentable under 35 U.S.C. § 103(a) as obvious. Id.
`Petitioner and Patent Owner present the same arguments, based on the
`same evidence, as those presented in IPR2016-00823. As discussed in our
`Decision on Institution in IPR2016-00823, Petitioner has demonstrated a
`reasonable likelihood it will prevail in showing claims 1 and 17 of the ’375
`patent are obvious under 35 U.S.C. § 103(a) in view of Ritter, Gesbert, and
`Thoumy. IPR2016-00823 Inst. Dec., 13–22. We, therefore, incorporate our
`analysis from IPR2016-00823 for independent claims 1 and 17 of the ’375
`patent and determine Petitioner has shown sufficiently that the combination
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`of Ritter, Gesbert, and Thoumy teaches or suggests each limitation of
`independent claims 1 and 17, for the same reasons. See id.
`Claims 2, 8, 14, 18, 24, and 30 depend from independent claims 1 and
`17, and are discussed below.
`a. Claims 2 and 18
`Claims 2 and 18 recite “the plurality of feedback clusters at the second
`time is different than the plurality of feedback clusters at the first time.”
`Petitioner argues Ritter discloses a mobile station taking measurements of
`the quality of various segments, and because Ritter’s segments comprise
`multiple subcarriers, one of skill in the art would understand Ritter’s
`disclosure of measuring the quality of “various segments” to mean that the
`subscriber unit can measure different segments at different times. Pet. 30
`(citing Ex. 1104, 13, 28). Petitioner additionally argues that Ritter
`recognizes that the best suited segments for communication vary with
`changing channel conditions, and, therefore, one of ordinary skill in the art
`would understand that the “system described in Ritter could include a
`different plurality of feedback clusters at a second time.” Id. (citing Ex.
`1104, 14, 16; Ex. 1102 ¶ 110).
`Patent Owner argues Ritter fails to disclose performing the
`measurement “at a second time,” as recited by claims 2 and 18. Prelim.
`Resp. 24‒25 (citing Ex. 1104, 14). Patent Owner argues that because Ritter
`fails to disclose a second measurement at a second time, Ritter cannot
`disclose the plurality of feedback clusters at the second time is different than
`the plurality of feedback clusters at the first time. Id.
`We are not persuaded by Patent Owner’s argument. Petitioner argues
`that Ritter discloses measuring “various segments.” Pet. 30 (Ex. 1104, 13,
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`28). As discussed in our analysis of claim 1, Petitioner also shows Ritter
`discloses that “the best suited segments for communication can be
`determined at any time,” and Gesbert further discloses repeating the
`measurement steps to account for changing conditions of the channel. Pet.
`24‒25 (citing Ex. 1104, 8‒9; Ex. 1105, 11:20‒25); see IPR2016-00823 Inst.
`Dec., 15‒16. On this record, we determine that Petitioner has demonstrated
`a reasonable likelihood that a person with ordinary skill in the art would
`understand that the measurements at different times, as disclosed by Ritter
`and Gesbert, combined with Ritter’s disclosure of segments or clusters,
`teaches a different plurality of feedback clusters at a second time. See Pet.
`30.
`
`b. Claims 8 and 24
`Claim 8 recites “the receiving of the first allocation of OFDMA
`subcarriers is receiving a first allocation of at least one coherence cluster.”
`Claim 24 recites similar limitations. As discussed above, Petitioner argues
`that “coherence cluster” means “a cluster containing multiple subcarriers
`close to each other.” Petitioner argues that Ritter discloses subcarriers with
`a separation of only several kilohertz between adjacent carriers, and,
`accordingly, discloses a “coherence cluster.” Pet. 31 (citing Ex. 1104, 16;
`Ex. 1102 ¶¶ 102–103); see section II.B.4. On this record, we determine that
`Petitioner has demonstrated a reasonable likelihood it will prevail in
`demonstrating that claims 8 and 24 are unpatentable.
`Patent Owner argues that dependent claims 8 and 24 depend from
`independent claims 1 and 17, and, thus, are patentable due to their
`dependency from patentable independent claims. Prelim. Resp. 10. We are
`not persuaded by this argument for the same reasons discussed with respect
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`to claims 1 and 17 in IPR2016-00823. See IPR2016-00823 Inst. Dec., 12‒
`22.
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`c. Claims 14 and 30
`Claims 14 and 30 depend from claims 9 and 25 respectively. We
`determine that Petitioner has not demonstrated a reasonable likelihood of
`prevailing with respect to claims 9 and 25 in IPR2016-00823 based on the
`same arguments and evidence presented here. See IPR2016-00823 Inst.
`Dec., 22‒24. Accordingly, we determine that Petitioner has not
`demonstrated a reasonable likelihood it will prevail as to claims 14 and 30
`for the same reasons. Id.
`5. Conclusion
`On this record, we are persuaded that Petitioner has shown a
`reasonable likelihood that claims 2, 8, 18, and 24 of the ’375 patent are
`obvious over a combination of Ritter, Gesbert, and Thoumy.
`On this record, we are not persuaded that Petitioner has shown a
`reasonable likelihood that claims 14 and 30 of the ’375 patent are obvious
`over a combination of Ritter, Gesbert, and Thoumy.
`D. Obviousness of Claims 4–7, 11, 13, 20–23, 27, and 29 over Ritter,
`Gesbert, Thoumy, and Gitlin
`Petitioner contends that claims 4–7, 11, 13, 20–23, 27, and 29 of the
`’375 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
`Ritter, Gesbert, Thoumy, and Ritter. Pet. 33–42. For the reasons discussed
`below, the evidence, on this record, indicates there is a reasonable likelihood
`that Petitioner would prevail in showing that claims 4, 6, 20, and 22 of the
`’375 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
`Ritter, Gesbert, Thoumy, and Gitlin. Id. Petitioner provides a detailed
`analysis, supported by evidence, identifying sections of the prior art as
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`teaching the limitations of claims 4, 6, 20, and 22. Id. Petitioner further
`cites Dr. Gitlin’s Declaration in support of its analysis. See Ex. 1102. For
`the reasons discussed below, the evidence, on this record, indicates there is
`not a reasonable likelihood that Petitioner would prevail in showing that
`claims 5, 7, 11, 13, 21, 23, 27, and 29 of the ’375 patent are unpatentable
`under 35 U.S.C. § 103(a) as obvious.
`1. Gitlin (Ex. 1106)
`Gitlin discloses methods and systems for allocating a communications
`medium using time-frequency-code slicing. Ex. 1106, Abstract. As
`described in Gitlin, a communications medium may be divided into a
`plurality of time-frequencies slices that may be allocated to users according
`to their various transmission requirements. Id. at 3:1–5. Time-frequency
`slices may be allocated on non-contiguous or contiguous frequency bands.
`Id. at Abstract, 3:5–7.
`2. Analysis
`The evidence set forth by Petitioner indicates there is a reasonable
`likelihood that Petitioner will prevail in showing that claims 4, 6, 20, and 22
`are unpatentable under 35 U.S.C. § 103(a) as obvious. Pet. 10–33. The
`evidence set forth by Petitioner does not indicate that there is a reasonable
`likelihood that Petitioner will prevail in showing that claims 5, 7, 11, 13, 21,
`23, 27, and 29 are unpatentable under 35 U.S.C. § 103(a) as obvious. Id.
`a. Claims 4 and 20
`Claim 4 depends from claim 3, which depends from independent
`claim 1. Claim 20 depends from claim 19, which depends from independent
`claim 17. As discussed in our Decision on Institution in IPR2016-00823, we
`determine that Petitioner has shown a reasonable likelihood that the
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`limitations of claims 1 and 17 were taught or suggested by the combination
`of Ritter, Gesbert, and Thoumy, and the limitations of claims 3 and 19 were
`taught or suggested by the combination of Ritter, Gesbert, Thoumy, and
`Gitlin. IPR2016-00823 Inst. Dec., 12‒22, 25‒27.
`Claim 4 recites:
`the first allocation of OFDMA subcarriers includes a
`cluster identifier that identifies a first plurality of subcarriers in a
`first time slot and a second plurality of subcarriers in a second
`time slot, at least two subcarriers of the first plurality of
`subcarriers and of the second plurality of subcarriers being
`disjoint.
`
`Claim 20 recites similar limitations. Petitioner argues Ritter teaches “a
`subscriber unit receiving allocations of OFDMA subcarriers that include a
`cluster identifier.” Pet. 35–36. Petitioner specifically argues that “Ritter
`describes the base station assigning segments of subcarriers, where the
`segments (clusters) are identified as Sx, Sa, and Sm.” Id. at 36 (citing Ex.
`1104 14, 19–20). Petitioner argues that “Sx, Sa, and Sm each constitutes a
`cluster identifier that identifies a plurality of subcarriers in a time slot.” Id.
`Petitioner argues that “Gitlin teaches allocations wherein some subcarriers of
`an allocation are disjoint from other subcarriers, both within the same time
`slot and across two different time slots.” Id. (citing Ex 1106, Fig. 6).
`Accordingly, Petitioner argues that the combination of Ritter, Gesbert,
`Thoumy, and Gitlin discloses the limitations of claims 4 and 20. Id. (citing
`Ex. 1102 ¶¶ 115‒118, 122). In view of Petitioner’s arguments and
`associated evidence, we are persuaded that Petitioner is reasonably likely to
`prevail in demonstrating that claims 4 and 20 are obvious in view of Ritter,
`Gesbert, Thoumy, and Gitlin.
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`Patent Owner argues that dependent claims 4 and 20 depend from
`dependent claims 3 and 19, which depend from independent claims 1 and
`17, and, thus, are patentable due to their dependency from patentable
`independent claims. Prelim. Resp. 29‒30. We are not persuaded by this
`argument for the same reasons discussed with respect to claims 1, 3, 17, and
`19 in IPR2016-00823. See IPR2016-00823 Inst. Dec., 12‒22, 25‒27.
`b. Claims 5 and 21
`Claims 5 and 21 recite “at least one subcarrier of the first plurality of
`subcarriers in the first time slot is different than all of the subcarriers of the
`second plurality of subcarriers in the second time slot.” Petitioner argues
`that a frequency band as disclosed in Gitlin is a cluster of subcarriers. Pet.
`35. Petitioner then argues that the combination of Ritter, Gesbert, Thoumy,
`and Gitlin teaches the limitations of claims 5 and 21 because one of ordinary
`skill in the art would understand from Gitlin that a user could be allocated
`one frequency band (i.e., cluster of subcarriers) in the first time slot and a
`different frequency band (i.e., cluster of subcarriers) in the second time slot.
`Pet. 37. Petitioner points to Figure 6 of Gitlin, reproduced below, as
`depicting an example of such an allocation, where frequency band F1 is
`assigned in time slot S1 and frequency band F2 is assigned in time slot S2.
`Id.
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`Figure 6 is an illustration of frequency band and time
`slot assignments for various users, with frequency
`bands depicted along the vertical axis, and time slots
`depicted along the horizontal axis.
`
`As depicted in Figure 6 of Gitlin, user F is allocated frequency bands
`F1‒F2 in time slot S1 and user G is allocated frequencies bands F0‒F6 in
`time slot S2. Ex. 1106, Fig. 6, 5:47–60. Petitioner argues that this
`configuration shows that a user could be allocated one frequency band (i.e.,
`F1) in the first time slot (i.e., S1) and a different frequency band (i.e., F2) in
`the second time slot (i.e., S2). Pet. 37. From this, Petitioner concludes that
`Gitlin discloses subcarriers allocated in the first time slot are different from
`all of the subcarriers allocated in the second time slot. Id.
`We, however, are not persuaded by Petitioner’s argument. Figure 6 of
`Gitlin discloses that in time slot S1, frequency bands F1 and F2 are assigned
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`to user F. Ex. 1106, Fig. 6. In time slot S2, frequency bands F0, F1, F2, F3,
`F4, F5, and F6 are assigned to user G. Id. Therefore, frequency bands F1
`and F2 are assigned in both time slots S1 and S2. Therefore, all of the
`frequency bands (i.e., cluster of subcarriers) between time S1 and S2 are not
`different, as required by claims 5 and 21.
`
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