Trials@uspto.gov
`571-272-7822
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` Paper 7
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` Entered: November 4, 2016
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01006
`Patent 7,835,430 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`
`
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`
`
`
`
`
`
`
` Paper 7
`
`
`
` Entered: November 4, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01006
`Patent 7,835,430 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2016-01006
`Patent 7,835,430 B2
`
`
`I.
`
`INTRODUCTION
`
`Cisco Systems, Inc. (“Petitioner”) filed a Petition requesting an inter
`
`partes review of claims 1‒6 of U.S. Patent No. 7,835,430 B2 (Ex. 1001, “the
`
`’430 patent”). Paper 2 (“Pet.”). TQ Delta, LLC (“Patent Owner”) filed a
`
`Preliminary Response. Paper 6 (“Prelim. Resp.”). Institution of an inter
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`partes review is authorized by statute when “the information presented in the
`
`petition . . . and any response . . . 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); see 37 C.F.R. § 42.108.
`
`Upon consideration of the Petition and Preliminary Response, we conclude
`
`the information presented shows there is a reasonable likelihood that
`
`Petitioner would prevail in establishing the unpatentability of claims 1–6 of
`
`the ’430 patent.
`
`A. Related Proceedings
`
`
`
`Petitioner indicates that the ’430 patent is the subject of several
`
`pending judicial matters. Pet. 1‒2. In addition, a different Petitioner filed a
`
`petition for inter partes review of the ’430 patent, but we did not institute
`
`trial. See Arris Group, Inc. v. TQ Delta, LLC, Case IPR2016-00428 (PTAB
`
`June 22, 2016) (Paper 8).
`
`B. The ʼ430 Patent (Ex. 1001)
`
`
`
`The ’430 patent discloses systems and methods for reliably
`
`exchanging diagnostic and test information between transceivers over a
`
`digital subscriber line in the presence of disturbances. Ex. 1001, 1:44‒47.
`
`The systems and methods include the use of a diagnostic link mode in the
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`communication of diagnostic information from a remote terminal (RT)
`
`transceiver or modem to the central office (CO) transceiver or modem,
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`2
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`IPR2016-01006
`Patent 7,835,430 B2
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`where either modem transmits a message to the other modem to enter
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`diagnostic link mode. Id. at 2:44‒48, 3:19‒29. Each modem includes a
`
`transmitter section for transmitting data and a receiver section for receiving
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`data, and is of the discrete multitone (DMT) type (the modem transmits data
`
`over a multiplicity of subchannels of limited bandwidth). Id. at 1:58‒62. In
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`diagnostic mode, the RT modem sends diagnostic and test information as
`
`bits that are modulated to the CO modem. Id. at 3:32‒34. One described
`
`modulation technique includes Differential Phase Shift Keying (DPSK) on a
`
`subset or all the carriers, as specified in ITU standard G.994.1, higher order
`
`Quadrature Amplitude Modulation (QAM) (>1 bit per carrier). Id. at 3:38‒
`
`41.
`
`
`
`Figure 1 illustrates the additional modem components associated with
`
`the diagnostic link mode, and is reproduced below:
`
`
`
`Figure 1 illustrates a diagnostic mode system, where CO modem 200 and RT
`
`modem 300 are connected via link 5 to splitter 10 for a phone switch 20, and
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`a splitter for a phone 40. Id. at 4:48‒62. CO modem 200 includes CRC
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`checker 210, diagnostic device 220, and diagnostic information monitoring
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`device 230. Id. RT modem includes message determination device 310,
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`power control device 320, diagnostic device 330, and diagnostic information
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`storage device 340. Id.
`
`C. Illustrative Claim
`
`Claims 1‒6 are independent claims. Claims 1 and 2 are reproduced
`
`below.
`
`1. A transceiver capable of transmitting test information
`over a communication channel using multicarrier modulation
`comprising:
`a transmitter portion capable of transmitting a message,
`wherein the message comprises one or more data variables that
`represent the test information, wherein bits in the message are
`modulated onto DMT symbols using Quadrature Amplitude
`Modulation (QAM) with more than 1 bit per subchannel and
`wherein at least one data variable of the one or more data
`variables comprises an array representing frequency domain
`received idle channel noise information.
`
`Ex. 1001, 8:33–44.
`
`2. A transceiver capable of receiving test information over a
`communication channel using multicarrier modulation
`comprising:
`a transmitter portion capable of receiving a message,
`wherein the message comprises one or more data variables that
`represent the test information, wherein bits in the message are
`modulated onto DMT symbols using Quadrature Amplitude
`Modulation (QAM) with more than 1 bit per subchannel and
`wherein at least one data variable of the one or more data
`variables comprises an array representing frequency domain
`received idle channel noise information.
`
`Id. at 8:45–56.
`
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`D. The Alleged Ground of Unpatentability
`
`The information presented in the Petition sets forth the proposed
`
`ground of unpatentability of claims 1‒6 of the ’430 patent under 35 U.S.C.
`
`§ 103(a) as follows (Pet. 11):1
`
`References
`
`Milbrandt2, Chang3,
`Hwang4, and ANSI T1.4135
`
`Claims
`Challenged
`
`1‒6
`
`II. ANALYSIS
`
`A. 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); Office Patent Trial Practice Guide,
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`77 Fed. Reg. at 48,766. Under the broadest reasonable construction
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`standard, claim terms are given their ordinary and customary meaning, as
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`would be understood by one of ordinary skill in the art in the context of the
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`entire disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed.
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`Cir. 2007).
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`“frequency domain received idle channel noise information”
`
`
`1 Petitioner supports its challenge with the Declaration of Dr. Sayfe Kiaei.
`Ex. 1009.
`2 U.S. Patent No. 6,636,603 B1; issued Oct. 21, 2003 (Ex. 1011)
`(“Milbrandt”).
`3 U.S. Patent No. 6,891,803 B1; issued May 10, 2005 (Ex. 1012) (“Chang”).
`4 U.S. Patent No. 6,590,893 B1; issued July 8, 2003 (Ex. 1013) (“Hwang”).
`5 “Network and Customer Installation Interfaces – Asymmetric Digital
`Subscriber Line (ADSL) Metallic Interface,” American National Standards
`Institution (ANSI) T1.413-1995 Standard (Ex. 1014) (“ANSI T1.413”).
`
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`
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`Each one of independent claims 1–6 recites an array representing
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`“frequency domain received idle channel noise information.” Petitioner
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`proposes that we interpret the phrase to mean “information about the
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`background noise present in each of a plurality of frequency subchannels
`
`when the subchannels are not in use.” Pet. 8‒9. Petitioner arrives at its
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`proposed interpretation by explaining that although the phrase is not used in
`
`the specification of the ’430 patent, the phrase “frequency domain received
`
`idle channel” is described in the context of a type of test information. Pet. 8
`
`(citing Ex. 1001, 5:59‒6:2). Petitioner contends that a person having
`
`ordinary skill in the art would have understood that “frequency domain”
`
`generally refers to analysis of a signal on a frequency basis. Pet. 8 (citing
`
`Ex. 1017, 377; Ex. 1009, 17‒19). Petitioner also contends that a person
`
`having ordinary skill in the art would have understood “idle channel noise,”
`
`which is sometime referred to as “background noise,” to refer to noise that
`
`exists in a communication path when no signals are present. Pet. 8 (citing
`
`Ex. 1017, 438; Ex. 1009, 19‒20).
`
`Patent Owner argues that the phrase “frequency domain received idle
`
`channel noise information” need not be interpreted to render a decision on
`
`whether to institute trial. Prelim. Resp. 7. Patent Owner, however, does not
`
`submit that Petitioner’s proposed interpretation of the phrase is incorrect.
`
`Based on the record before us, at this stage of the proceeding, we adopt
`
`Petitioner’s interpretation of “frequency domain received idle channel noise
`
`information” to mean “information about the background noise present in
`
`each of a plurality of frequency subchannels when the subchannels are not in
`
`use.”
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`
` “array”
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`Each one of independent claims 1–6 recites an “array.” Petitioner
`
`proposes that we interpret array to include “an ordered collection of multiple
`
`data items of the same type.” Pet. 9. Petitioner arrives at its proposed
`
`interpretation by explaining that although the specification of the ’430 patent
`
`does not provide a definition of the term, the specification uses the term in
`
`accordance to its ordinary meaning. Pet. 9 (citing Ex. 1001, 4:30–35).
`
`Petitioner also directs attention to dictionary definitions of the term array
`
`and based on those definitions and the specification’s description arrives at
`
`its proposed interpretation. Pet. 9 (citing Ex. 1017, 71; Ex. 1018, 9; Ex.
`
`1009, 20–21).
`
`Patent Owner argues that the term “array” need not be interpreted to
`
`render a decision on whether to institute trial. Prelim. Resp. 7. Patent
`
`Owner, however, does not submit that Petitioner’s proposed interpretation of
`
`the term “array” is incorrect. Based on the record before us, at this stage of
`
`the proceeding, we adopt Petitioner’s interpretation of “array” to include “an
`
`ordered collection of multiple data items of the same type.”
`
` “transceiver”
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`Each one of independent claims 1–6 recites a “transceiver.” Petitioner
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`proposes that we interpret transceiver to include “a device, such as a modem,
`
`with a transmitter and receiver.” Pet. 9. Petitioner arrives at its proposed
`
`interpretation by explaining that the word “transceiver” is a combination of
`
`the words transmitter and receiver and that the specification of the ’430
`
`patent refers to transceivers as modems. Id. (citing Ex. 1009, 22; Ex. 1001,
`
`1:48‒62).
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`Patent Owner argues that the term “transceiver” need not be
`
`interpreted to render a decision on whether to institute trial. Prelim. Resp. 7.
`
`Patent Owner, however, does not submit that Petitioner’s proposed
`
`interpretation of the term “transceiver” is incorrect. Based on the record
`
`before us, at this stage of the proceeding, we adopt Petitioner’s interpretation
`
`of “transceiver” to include “a device, such as a modem, with a transmitter
`
`and receiver.”
`
`B. Asserted Obviousness over Milbrandt, Chang,
`
`Hwang, and ANSI T1.413
`
`Petitioner contends that claims 1‒6 are unpatentable under 35 U.S.C.
`
`§ 103(a) as obvious over Milbrandt, Chang, Hwang, and ANSI T1.413. Pet.
`
`24–49. Relying on the testimony of Dr. Sayfe Kiaei, Petitioner explains how
`
`the combination of Milbrandt, Chang, Hwang, and ANSI T1.413 allegedly
`
`meets all of the claim limitations. Id. (citing Ex. 1009). Patent Owner
`
`counters that Petitioner has not (1) established that the combination of
`
`Milbrandt, Chang, Hwang, and ANSI T1.413 meets all of the limitations of
`
`claims 1‒6, or (2) provided a sufficient rationale or reason why the separate
`
`references would have been combined. Prelim. Resp. 10‒34.
`
`Milbrandt (Ex. 1011)
`
`Milbrandt describes a system for determining the transmit power of a
`
`communication device operating on digital subscriber lines. Ex. 1011, 1:20–
`
`23. A communication server, coupled to a first subscriber line and a second
`
`subscriber line, includes a communication device that communicates a signal
`
`using the first subscriber line. Id. at 2:24–27. The system includes a
`
`memory coupled to the communication server that stores noise information
`
`and cross-channel-coupling information for the first subscriber line and the
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`second subscriber line. A processor coupled to the memory determines the
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`transmit power of the communication device based on the noise and cross-
`
`channel coupling information. Id. at 2:26–35. Figure 1 shows details of the
`
`system hardware and is reproduced below.
`
`
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`
`
`Figure 1 of Milbrandt illustrates a block diagram of a communication
`system that provides telephone and data service to subscribers
`
`
`
`Communication system 10 includes system management server 18
`
`coupled to central offices 14, which are coupled to several subscribers’
`
`premises 12 using subscriber lines 16. Id. at 4:6‒9. Database 22 stores
`
`subscriber line information 28 and communication device information 29
`
`defining the physical and operating characteristics of the subscriber lines 16
`
`and communication devices 60. Id. at 4:9‒15. System management server
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`18 determines the data rate capacity of selected subscriber lines 16 using
`
`subscriber line information 28 stored in database 22, and the optimal
`
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`IPR2016-01006
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`transmit power for a communication device operating on a subscriber line
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`16. Id. at 4:15‒21.
`
`Modem 42 extrapolates subscriber line information 28 to central
`
`office 14 over any achievable range of sub-frequencies using any suitable
`
`communication protocol. Id. at 4:45‒53. As one described embodiment,
`
`subscriber line 16 and components of subscriber 12 and central office 14
`
`support communication using ADSL techniques that comply with ANSI
`
`Standard T1.413, such as discrete multi time (DMT) modulation. Id. at
`
`9:31‒34. Modem 42 of subscriber 12, receives a data signal that is
`
`communicated by modem 60 and determines subscriber line information 28,
`
`such as attenuation information, noise information, received signal power
`
`spectrum density, or other information describing the physical or operating
`
`characteristics of subscriber line 16 at the one or more sub-frequencies over
`
`which connection between modems 42 and 60 is established. Id. at 11:38‒
`
`45.
`
`Chang (Ex. 1012)
`
`
`
`Chang describes a telecommunications transmission test set for testing
`
`digital communications networks. Ex. 1012, 1:6–8. The test set is capable
`
`of performing line qualification testing including digital multimeter (DMM)
`
`tests, time domain reflection (TDR) test, and line impairment tests. The line
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`impairment tests include insertion loss, signal-to-noise, background noise,
`
`and loop resistance. Id. at 2:56–61.
`
`Hwang (Ex. 1013)
`
`Hwang describes an adaptive transmission system used in a network.
`
`Ex. 1013, 1:6‒8. The system includes a computer network including
`
`network nodes capable of transmitting and receiving data over a channel
`
`
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`10
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`using a transmitter and receiver. Id. at 5:1‒8. The computer network
`
`utilizes discrete multi-tone (DMT) technology to transmit data over the
`
`channels. Id. at 5:12‒14. A DMT-based system utilizes 256 distinct
`
`carriers, or tones, where each tone is capable of transmitting up to 15 bits of
`
`data on the tone waveform. Id. at 5:22‒24. Within each carrier, data is
`
`encoded using quadrature amplitude modulation (QAM) signals. Id. at 3:1‒
`
`3. Hwang’s techniques provide effective high-speed data communications
`
`over twisted pair wiring between customer premises and corresponding
`
`network-side units, for example located at a central office of a telephone
`
`network. Id. at 3:15‒19.
`
`ANSI T1.413 (Ex. 1014)
`
`
`
`ANSI T1.413 is a standard specification presenting the electrical
`
`characteristics of the Asymmetric Digital Subscriber Line (ADSL) signals
`
`appearing at a network interface. Ex. 1014, Abstract. The standard provides
`
`the minimal set of requirements for satisfactory transmission between the
`
`network and the customer installation. Id. Among the features of ADSL is
`
`the encoding to data into discrete multitone (DMT) symbols. Id. at 23‒34.
`
`Within each DMT subchannel, an ADSL transmitter encodes a variable
`
`number of bits of data using a constellation encoder. Id. at 43‒45.
`
`Analysis
`
`Claim 1 recites a “transceiver capable of transmitting test information
`
`over a communication channel using multicarrier modulation.” Petitioner
`
`contends that Milbrandt describes a modem 42 that “comprises any suitable
`
`communication device that transmits and receives data.” Pet. 24 (citing
`
`Ex. 1011, 4:64‒65). Petitioner further contends that the modem 42 measures
`
`the received signal power spectrum density, noise information, attenuation
`
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`information, and communicates such information to modem 60 using line
`
`40. Id. at 24‒25; Ex. 1011, 11:20‒53, 12:65‒13:16. Petitioner contends that
`
`the subscriber line information is test information as claimed. Pet. 25; Ex.
`
`1009, 46. Petitioner directs attention to Milbrandt’s description of how
`
`modem 42 employs communication techniques like discrete multi tone
`
`(DMT) modulation. Pet. 25; Ex. 1011, 9:31‒34. Petitioner also directs
`
`attention to Hwang’s description that a DMT signal is the sum of N
`
`independently quadrature amplitude modulated (QAM) signals, each carried
`
`over a distinct carrier frequency channel. Pet. 25; Ex. 1013, 2:67‒3:3.
`
`Petitioner argues, with supporting evidence, that a person having ordinary
`
`skill in the art would have understood that DMT modulation is an example
`
`of multicarrier communication that is used by modem 42 to transmit test
`
`information. Pet. 25‒26; Ex. 1009, 47‒49.
`
`Claim 1 recites “a transmitter portion capable of transmitting a
`
`message.” Petitioner contends that Milbrandt describes a modem 42 that
`
`transmits and receives data. Pet. 26; Ex. 1011, 4:64‒65. Claim 1 also
`
`recites “wherein the message comprises one or more data variables that
`
`represent the test information.” For this limitation, Petitioner contends that
`
`Milbrandt describes “subscriber line information 28,” that includes power
`
`spectrum density per sub-frequency, attenuation information per sub-
`
`frequency, and noise information per sub-frequency. Pet. 26: Ex. 1011,
`
`11:31‒43. Petitioner contends, with supporting evidence, that it would have
`
`been obvious to a person having ordinary skill in the art that the values
`
`representing the test information are “one or more data variables.” Pet. 27;
`
`Ex. 1009, 51‒52.
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`Claim 1 recites “wherein bits in the message are modulated onto DMT
`
`symbols using Quadrature Amplitude Modulation (QAM) with more than 1
`
`bit per subchannel.” Petitioner contends that Milbrandt describes that
`
`modem 42 supports “communication using ADSL techniques that comply
`
`with … discrete multi tone (DMT) modulation.” Ex. 1011, 9:31‒34.
`
`Petitioner further contends that Milbrandt explains that DMT technology
`
`divides a subscriber line into individual “sub-bands or channels,” and “uses
`
`a form of quadrature amplitude modulation (QAM) to transmit data in each
`
`channel simultaneously.” Pet. 28 (citing Ex. 1011, 11:60‒64). Petitioner
`
`concludes, with supporting evidence, that a person having ordinary skill in
`
`the art would have understood that Milbrandt’s modem 42 transmits a
`
`message (including subscriber line information) whose bits are modulated
`
`onto DMT symbols using QAM. Pet. 28; Ex. 1009, 53‒54. Petitioner also
`
`relies on Hwang for its description that a “DMT signal is basically the sum
`
`of N independently quadrature amplitude modulated (QAM) signals, each
`
`carried over a distinct carrier frequency channel.” Pet. 28 (citing Ex. 1013,
`
`2:67‒3:3). Hwang further explains, as pointed out by Petitioner, that ANSI
`
`standard provides for a total number of 256 carriers or tones where each tone
`
`is QAM to carry up to 15 bits of data on each cycle of the tone waveform
`
`(symbol). Pet. 28 (citing Ex. 1013, 3:4‒12). Petitioner concludes that it
`
`would have been obvious to transmit Milbrandt’s message (including
`
`subscriber line information) by modulating bits in the message onto DMT
`
`symbols using QAM with more than 1 bit per subchannel, as taught by
`
`Hwang. Pet. 28; Ex. 1009, 55.
`
`Claim 1 further recites “wherein at least one data variable of the one
`
`or more data variables comprises an array representing frequency domain
`
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`received idle channel noise information.” Petitioner contends Milbrandt
`
`describes that modem 42 determines noise information for a received signal
`
`at one or more sub-frequencies. Ex. 1011, 11:38‒45, 12:65‒13:16.
`
`Petitioner further contends that Milbrandt describes that noise information is
`
`stored in a grid as a function of frequency. Pet. 29‒30; Ex. 1011, 23:51‒57,
`
`Fig. 3. Petitioner argues that a person having ordinary skill in the art would
`
`have recognized Milbrandt’s grid as an array as claimed. Pet. 30; Ex. 1009,
`
`56‒57. Petitioner directs attention to Chang for its description of measuring
`
`background noise on a communication line when no signals are being
`
`transmitted. Pet. 30; Ex. 1012, Figs. 1, 5, 12:59‒66, 13:7‒21. Petitioner
`
`contends, with supporting evidence, that a person having ordinary skill
`
`would have recognized that Chang is measuring frequency domain received
`
`idle channel noise information. Pet. 31‒32; Ex. 1009, 60‒61. Petitioner
`
`concludes that it would have been obvious for Milbrandt to measure
`
`background channel noise, for the purpose of assessing system interactions
`
`from different sources of noises and to address any problems. Pet. 32;
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`Ex. 1009, 35‒37.
`
`Lastly, Petitioner argues that while Milbrandt teaches that noise
`
`information is stored in a grid (array), Milbrandt does not explicitly describe
`
`that the information is transmitted as an array. Pet. 33. ANSI T1.413,
`
`Petitioner contends, describes transmitting data variables that have a value
`
`for a plurality of frequency sub-carriers. Pet. 33; Ex. 1009, 62‒63.
`
`Petitioner argues that a person having ordinary skill in the art would have
`
`recognized that a frequency sub-carrier in the ANSI T1.413 standard
`
`corresponds to Milbrandt’s sub-frequency, and that both of these terms
`
`correspond to the claimed “subchannel.” Pet. 33‒34; Ex. 1009, 62‒63.
`
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`Petitioner concludes, with supporting evidence, that it would have been
`
`obvious to a person having ordinary skill in the art to transmit Milbrandt’s
`
`power spectrum density and attenuation information using the same array
`
`data format taught by ANSI T1.413, which would have resulted in the
`
`benefit of allowing the receiving modem to receive and access the
`
`information on a per channel basis, without the need for additional
`
`processing or reordering of the received information. Pet. 34; Ex. 1009, 62‒
`
`63.
`
`Petitioner provides reasonable rationale for combining Milbrandt,
`
`Chang, Hwang, and ANSI T1.413. Pet. 14‒24. For example, Petitioner
`
`contends that it would have been obvious to combine the teachings of Chang
`
`(of assessing background noise over a communications channel when not in
`
`use) with Milbrandt for the purpose of assessing interactions from other
`
`sources, including thermal effect, inductive coupling, and power spikes.
`
`Pet. 16; Ex. 1009, 35‒36. Petitioner further contends, for example, that a
`
`person having ordinary skill in the art would have understood that taking
`
`appropriate remedial measures to address system noise would maximize
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`throughput and reliability, improve service to customers, and also make the
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`system as a whole commercially desirable in the marketplace. Pet. 16‒17;
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`Ex. 1009, 35‒36.
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`Petitioner further contends that combining Hwang with the
`
`Milbrandt/Chang combination would have been obvious. Pet. 20‒22.
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`Petitioner begins by explaining that Hwang provides additional details about
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`ADSL services, beyond those expressly disclosed in Milbrandt, by
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`explaining that multitoned (DMT) symbols are modulated using QAM.
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`Pet. 20. Petitioner contends that a person having ordinary skill in the art
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`15
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`would have found it obvious to combine the teachings of Milbrandt and
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`Hwang, because Hwang provides additional details of ADSL
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`communication technology, such as using up to 15 bits for each subchannel
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`for the purpose of transmitting more data on each subchannel. More data
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`per subchannel, Petitioner contends, would have been recognized by a
`
`person having ordinary skill in the art as resulting in a more efficient system
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`that has higher throughput. Pet. 20‒21; Ex. 1009, 39.
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`Lastly, Petitioner contends that it would been obvious to combine the
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`teachings of Milbrandt, Chang, and Hwang with the teachings of ANSI
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`T1.413, because each reference describes ADSL communications systems,
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`and ANSI T1.413 defines the ADSL communication standard. Pet. 22;
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`Ex. 1009, 40. Petitioner further contends that a person having ordinary skill
`
`in the art would have utilized the teachings of ANSI T1.413 in the combined
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`communication system for the purpose of making the system compliant with
`
`the ANSI T1.413 standard. Pet. 27; Ex. 1009, 41.
`
`Independent claims 2‒6 are similar to claim 1. Petitioner has made a
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`showing with respect to those claims similar to its showing with respect to
`
`claim 1. See, e.g., Pet. 34. To the extent that claims 2‒6 are different from
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`claim 1, Petitioner has accounted for such differences. Based on the current
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`record before us, and notwithstanding Patent Owner’s arguments, which we
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`address below, we determine that there is a reasonable likelihood that
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`Petitioner would prevail in establishing that claims 1‒6 would have been
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`obvious over Milbrandt, Hwang, Chang, and ANSI T1.413.
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`Patent Owner’s Contentions
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`Patent Owner argues that Petitioner has not shown that the
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`combination meets the limitation required of all claims 1‒6 of transmitting
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`or receiving test information by modulating bits in the message onto DMT
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`symbols using QAM with more than 1 bit per subchannel. Prelim.
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`Resp. 10‒13. In particular, Patent Owner argues that Petitioner has not
`
`shown how any of the four references expressly describes transmitting or
`
`receiving a test message using DMT/QAM. Id. at 11.
`
`Claim 1 recites transmitting a message wherein “the message
`
`comprises one or more data variables that represent the test information” and
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`“wherein bits in the message are modulated onto DMT symbols using
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`Quadrature Amplitude Modulation (QAM) with more than 1 bit per
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`subchannel.” Independent claims 2‒6 recite similar language. As explained
`
`above, Petitioner accounts for these phrases. For example, and with respect
`
`to claim 1, Petitioner contends that Milbrandt’s modem communicates
`
`subscriber line information (test information) by transmitting a message
`
`including one or more data variables representing the subscriber line
`
`information. Pet. 27; Ex. 1011, 11:31‒43. Petitioner further contends that
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`Milbrandt teaches that modem 42 “communicates the determined subscriber
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`line information 28 to central office 14 . . . using any suitable
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`communication protocols,” and that such protocols include DMT
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`modulation. Pet. 27; Ex. 1011, 11:45‒53. Petitioner contends, that it would
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`have been obvious to a person of ordinary skill in the art that modem 42
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`communicates the determined subscriber line information by transmitting a
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`message including one or more data variables representing the subscriber
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`line information using DMT. Pet. 27; Ex. 1009, 52‒53.
`
`Petitioner further explains that modem 60 and modem 42 transmit and
`
`receive data by modulating data onto DMT symbols using QAM. Pet. 28;
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`Ex. 1011, 9:31‒34, 11:60‒64. Dr. Kiaei opines that a person having
`
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`17
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`ordinary skill in the art would have understood from Milbrandt that modem
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`42 transmits a message (including subscriber line information) whose bits
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`are modulated onto DMT symbols using QAM to modem 60. Ex. 1009, 54.
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`Petitioner relies on Hwang for meeting the “more than 1 bit per subchannel”
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`phrase, as explained above.
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`Patent Owner’s argument that Milbrandt only expressly teaches
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`transmitting test information using V.90 communication protocol is
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`premised on a narrow view of Milbrandt. First, the embodiment to which
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`Patent Owner directs attention indicates that V.90 protocol is just an
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`example. Milbrandt describes that any suitable communication protocol
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`would suffice. Ex. 1011, 11:44‒53. Moreover, Milbrandt describes that
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`communication system 10, which would include modems 60 and 42,
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`supports data service over subscriber lines using ADSL, which is described
`
`as one of the suitable protocols, complying with ANSI Standard T1.413,
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`such as discrete multi tone (DMT) modulation. Ex. 1011, 9:31‒34. And
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`further, Milbrandt describes that modem 42 may communicate measured
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`noise information to modem 60 using any suitable communication protocol
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`and frequencies supported by subscriber lines 16. Id. at 13:11‒15. Based on
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`such disclosures, and the current record before us, a person having ordinary
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`skill in the art at the time of the invention would have readily understood
`
`that Milbrandt reasonably suggests transmitting a test message using
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`DMT/QAM. See, e.g., Ex. 1009, 53‒54.
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`Patent Owner argues that none of the references teaches transmitting,
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`as part of a test message, “frequency domain received idle channel noise
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`information.” Prelim. Resp. 14. First, Patent Owner argues that Milbrandt
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`does not describe that its noise measurement is measured on a per
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`subchannel basis, but rather is on a per channel basis. Id. The argument is
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`misplaced since Petitioner relies on the combination of Milbrandt, Hwang,
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`Chang, and ANSI T1.413 for the claimed “more than 1 bit per subchannel.”
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`See, e.g., Pet. 29. We also are not persuaded by Patent Owner’s arguments
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`that Petitioner fails to provide evidence that Chang’s background noise is
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`transmitted. Prelim. Resp. 14‒15, 17. The argument is misplaced, as
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`Petitioner does not rely on Chang in isolation for transmitting test
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`information.
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`Patent Owner argues that Petitioner fails to establish that Chang’s
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`background noise is idle channel noise. Id. at 15‒17. Patent Owner’s
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`argument is not persuasive. As explained above in the claim interpretation
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`section, and at this juncture of the proceeding, we adopt Petitioner’s
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`proposed interpretation of the phrase “frequency domain received idle
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`channel noise information” to mean “information about the background
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`noise present in each of a plurality of frequency subchannels when the
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`subchannels are not in use.” In arriving at that interpretation, Petitioner
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`explains that a person having ordinary skill in the art would have understood
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`that “idle channel noise,” was sometimes referred to as “background noise.”
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`Pet. 8 (citing Ex. 1017, 97, 438; Ex. 1009, 19‒20). Patent Owner does not
`
`indicate that such interpretations and understandings of the words of its
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`claims are misplaced. Indeed, Patent Owner does not indicate in its
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`Preliminary Response that it disagrees with Petitioner’s proffered
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`interpretation and understandings in that regard. See, e.g., Prelim. Resp. 7.
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`For similar reasons, Patent Owner’s argument at page 17 of its Preliminary
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`Response that it is not enough for Petitioner to show that Chang’s
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`“background noise” is the same general concept as “frequency domain
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`received idle channel noise” is misplaced, because Petitioner does not
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`propose interpreting “frequency domain received idle channel noise” as
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`background noise. Rather, Petitioner proposes interpreting “frequency
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`domain received idle channel noise” to mean “information about the
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`background noise present in each of a plurality of frequency subchannels
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`when the subchannels are not in use.”
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`Patent Owner argues Petitioner does not provide sufficient articulated
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`reasons to combine the asserted references. Prelim. Resp. 18. First, Patent
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`Owner argues that Petitioner provides no logical reason to incorporate
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`Chang’s method of measuring background noise into Milbrandt because
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`M
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