Filed on behalf of TQ Delta LLC
`By: Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail:
`pmcandrews@mcandrews-ip.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`Case IPR2016-010061
`Patent No. 7,835,430 B2
`_____________
`
`PATENT OWNER’S MOTION FOR OBSERVATION
`
`
`
`
`
`
`
`1 DISH Network, L.L.C., who filed a Petition in IPR2017-00251, and Comcast
`Cable Communications, L.L.C., Cox Communications, Inc., Time Warner Cable
`Enterprises L.L.C., Verizon Services Corp., and ARRIS Group, Inc., who filed a
`Petition in IPR2017-00420, have been joined in this proceeding.
`1
`
`
`
`
`By: Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail:
`pmcandrews@mcandrews-ip.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_____________
`Case IPR2016-010061
`Patent No. 7,835,430 B2
`_____________
`
`PATENT OWNER’S MOTION FOR OBSERVATION
`
`
`
`
`
`
`
`1 DISH Network, L.L.C., who filed a Petition in IPR2017-00251, and Comcast
`Cable Communications, L.L.C., Cox Communications, Inc., Time Warner Cable
`Enterprises L.L.C., Verizon Services Corp., and ARRIS Group, Inc., who filed a
`Petition in IPR2017-00420, have been joined in this proceeding.
`1
`
`
`
`
`
`Patent Owner’s Motion for Observation
`IPR2016-01006
`Patent No. 7,835,430
`
`
`Patent Owner TQ Delta, LLC (“Patent Owner”) submits this motion for
`
`observation regarding cross-examination of Sayfe Kiaei, a reply declarant for
`
`Petitioners. Patent Owner submits the following Observation based on Dr. Kiaei’s
`
`testimony taken on June 26, 2017.
`
`Observation #1: In Ex. 2011, page 135, line 6 to page 143, line 7, in
`
`response to a line of questioning regarding how the Chang reference discloses
`
`measuring background noise, Dr. Kiaei testified that it does so by generating a
`
`“known signal” or a “signal that’s reflected back.” When asked to point to such
`
`disclosure in Chang, Dr. Kaiei pointed to disclosure of measuring SNR rather than
`
`background noise and confirmed that the disclosure does not teach that measuring
`
`signal-to-noise ratio measures the background noise on the wire. See Ex. 2011,
`
`page 146, lines 9-20 (“Q. So that is what you’re pointing me to is labeled in Chang
`
`as a section called signal-to-noise ratio; is that correct? What you read back to me
`
`just now? A. That is one of the teachings of Chang that talks about another way of
`
`measuring signal by sending a tone from one end to another end to measure signal-
`
`to-noise ratio and based on that, looking at the background noise of the system.”);
`
`and Exhibit 2011, page 149, lines 6-9 (“Q. It [Chang at 12:59] does not say
`
`expressly signal-to-noise ratio measures the background noise on the wire. Is that
`
`correct? A. That is correct.”) This testimony is relevant because it undermines Dr.
`
`
`
`2
`
`
`
`Patent Owner’s Motion for Observation
`IPR2016-01006
`Patent No. 7,835,430
`
`Kiaei’s credibility and his opinion that Chang’s disclosure of measuring
`
`background noise is compatible with Milbrandt. See Ex. 1100 at ¶¶ 81-83.
`
`Observation #2: In Ex. 2011, page 154, line 1 to page 157, line 4, in
`
`response to a line of questioning regarding where the Chang reference teaches or
`
`discloses any method for measuring background noise that does not require
`
`terminating the transmission line, Dr. Kiaei testified that he was only relying on
`
`Chang for its “general teachings of measuring idle channel noise.” In particular, at
`
`page 156, lines 12 to 25, in response to a question regarding whether he was
`
`“relying on Chang only for the phrase ‘background noise’”, Dr. Kiaei testified that
`
`a POSITA would have “understood how to apply Chang’s general teaching of
`
`measuring idle channel noise to Milbrandt . . . .” This testimony is relevant to Dr.
`
`Kiaei’s opinion that Chang’s “general teachings” would have rendered obvious
`
`other methods for measuring background noise that are not disclosed in Chang,
`
`because obviousness does not require “physical incorporation of elements.” See
`
`Ex. 1100 at ¶¶ 72-73 (“The proposed combination looks to the teachings and does
`
`not require physical incorporation of elements. Persons of skill as of 1999 would
`
`have understood how to apply Chang’s general teachings of measuring idle
`
`channel noise to Milbrandt’s ADSL system . . . .”).
`
`
`
`3
`
`
`
`Patent Owner’s Motion for Observation
`IPR2016-01006
`Patent No. 7,835,430
`
`
`Observation #3: In Ex. 2011 at pages 157, line 8 to page 158, line 23, Dr.
`
`Kiaei testified that “the factual basis” for his conclusion that “[a] POSITA would
`
`have understood how to apply Chang’s general teaching of measuring idle channel
`
`noise to Milbrandt ADSL without a physical incorporation of Chang’s elements”
`
`was that “[he] personally performed background noise measurements at different
`
`modes of the system when [he] was in Motorola.” He testified, however, that he
`
`would not discuss the nature of this alleged work at Motorola. See id. This
`
`testimony is relevant to Dr. Kiaei declaration testimony that: “Indeed, I personally
`
`measured idle channel noise in ADSL systems, as of 1999, in connection with my
`
`work. This was performed without a truck roll. Therefore, it is my opinion that, a
`
`POSITA would have found it within his or her technical grasp to predictably apply
`
`Chang’s teachings of measuring idle channel/background noise to Milbrandt’s
`
`ADSL system without physical incorporation.” Ex. 1100 at ¶ 73. This testimony
`
`is relevant because 37 C.F.R. § 42.65 states, inter alia that “Expert testimony that
`
`does not disclose the underlying facts or data on which the opinion is based is
`
`entitled to little or no weight . . .”
`
`Observation #4: In Ex. 2011, page 132, line 10 to page 134, line 15, in
`
`response to a line of questioning, with reference to Fig. 5 at page 24 of Ex. 1014,
`
`regarding whether, when no user data is transmitted in a DSL modem, the modem
`
`
`
`4
`
`
`
`Patent Owner’s Motion for Observation
`IPR2016-01006
`Patent No. 7,835,430
`
`will still transmit “idle packets” or “super frames” such that there is no idle period
`
`during which idle channel noise can be measured, Dr. Kiaei responded that he was
`
`unable to respond to those questions, did not “have an opinion on that,” and/or did
`
`not “remember.” Specifically, Dr. Kiaei testified that “what happened in idle
`
`protocol to deal with these issues I'm not prepared to answer, meaning the
`
`superframes and so on.” Id. page 134, lines 13-15. This testimony is relevant to
`
`Dr. Kiaei’s declaration testimony that “Milbrant’s ADSL modem will experience
`
`idle periods during the day—that is when the no information is being transmitted
`
`by the subscriber,” and idle channel/background noise measurement can be
`
`performed during these “idle periods.” Ex. 1100 at ¶ 82. This testimony is
`
`relevant because it undermines Dr. Kiaei’s credibility and the accuracy of his
`
`opinions in at least paragraph 82 of his declaration.
`
`Observation #5: In Ex. 2011, page 162, line 2 to page 165, line 9, Dr.
`
`Kiaei testified that at his prior deposition he was not able to identify any reason for
`
`measuring SNR at a subscriber modem rather than calculating it at the central
`
`office modem, but that he did provide such an opinion in his later reply
`
`declaration. This testimony is relevant because it undermines Dr. Kiaei’s
`
`credibility and qualifications as an expert in DSL communications.
`
`
`
`5
`
`
`
`Patent Owner’s Motion for Observation
`IPR2016-01006
`Patent No. 7,835,430
`
`
`Observation #6: In Ex. 2011 at page 15, lines 2-10, Dr. Kiaei testified that
`
`“in general, a person with a background in mathematics and statistics would, and
`
`having a background in other areas” would qualify as a person of ordinary skill in
`
`the art. This testimony is relevant to Dr. Kiaei declaration testimony that “the level
`
`of a POSITA needed to have the capability of understanding multicarrier
`
`communications and engineering principles applicable to the ’412 patent is (i) a
`
`Master’s degree in Electrical and/or Computer Engineering, or equivalent training,
`
`and
`
`(ii) approximately
`
`five years of experience working
`
`in digital
`
`telecommunications. Lack of work experience can be remedied by additional
`
`education, and vice versa. Such academic and industry experience would be
`
`necessary to appreciate what was obvious and/or anticipated in the industry and
`
`what a POSITA would have thought and understood at the time.” Ex.1009 at ¶ 36.
`
`This testimony is relevant to Dr. Kaiei credibility and Dr. Kaiei’s obviousness
`
`analysis, specifically, evaluation of the patents and the pertinent art.
`
`Dated: July 5, 2017
`
`
`
`/Peter J. McAndrews/
`
`
`
`
`
`
`
`Peter J. McAndrews
`Registration No. 38,547
`McANDREWS, HELD & MALLOY,
`LTD.
`500 West Madison St., Suite 3400
`Chicago, IL 60661
`Telephone: (312) 775-8000
`
`6
`
`
`
`
`
`
`
`Patent Owner’s Motion for Observation
`IPR2016-01006
`Patent No. 7,835,430
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify, pursuant to 37 C.F.R. Section 42.6, that a complete copy of
`
`the attached PATENT OWNER’S MOTION FOR OBSERVATION is being
`
`served via electronic mail on July 5, 2017 to the following:
`
`Lead Counsel
`David L. McCombs
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Tel. 214-651-5533
`Fax 214-200-0853
`david.mccombs.ipr@haynesboone.com
`
`Heidi L. Keefe
`hkeefe@cooley.com
`zpatdcdocketing@cooley.com
`Cooley LLP
`Patent Group
`1299 Pennsylvania Ave., NW, Ste 700
`Washington, DC 20004
`
`John M. Baird
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington, DC 20004
`Tel. 202-776-7819
`
`
`
`
`
`Back-up Counsel
`Theodore M. Foster
`Tel. 972-739-8649
`Gregory P. Huh
`Tel. 972-739-6939
`Russell Emerson
`Tel. 214-651-5328
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Fax 972-692-9156
`ipr.theo.foster@haynesboone.com
`gregory.huh.ipr@haynesboone.com
`russell.emerson.ipr@haynesboone.com
`Stephen McBride
`smcbride@cooley.com
`Cooley LLP
`Patent Group
`1299 Pennsylvania Ave., NW, Ste 700
`Washington, DC 20004
`
`
`Christopher Tyson
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington, DC 20004
`Tel. 202-776-7819
`
`7
`
`
`
`Patent Owner’s Motion for Observation
`IPR2016-01006
`Patent No. 7,835,430
`
`Fax 202-776-7801
`JMBaird@duanemorris.com
`
`Fax 202-776-7801
`CJTyson@duanemorris.com
`
`Dated: July 5, 2017
`
`
`
`
`
`/Peter J. McAndrews/
`
`
`
`
`
`
`
`Peter J. McAndrews
`Registration No. 38,547
`McANDREWS, HELD & MALLOY,
`LTD.
`500 West Madison Street, 34th Floor
`Chicago, Illinois 60661
`Telephone: (312) 775-8000
`
`8
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`
`
`
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`
`
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