Paper No. 8
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`Trials@uspto.gov
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`571.272.7822
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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 IPR2016-01007
`Patent 8,432,956 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and TREVOR
`M. JEFFERSON, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`INTRODUCTION
`I.
`Cisco Systems, Inc. (“Petitioner”), filed a Petition (Paper 2, “Pet.”) to
`institute an inter partes review of claims 1–10 of U.S. Patent No. 8,432,956
`B2 (Ex. 1001, “the ’956 patent”). Patent Owner, TQ Delta, LLC (“Patent
`Owner”), filed a Preliminary Response to the Petition. Paper 7 (“Prelim.
`Resp.”). We have jurisdiction under 35 U.S.C. § 314(a), which provides in
`part that an inter partes review may not be instituted “unless . . . there is a
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`Trials@uspto.gov
` Filed: November 4, 2016
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`
`571.272.7822
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_______________
`
`Case IPR2016-01007
`Patent 8,432,956 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and TREVOR
`M. JEFFERSON, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`INTRODUCTION
`I.
`Cisco Systems, Inc. (“Petitioner”), filed a Petition (Paper 2, “Pet.”) to
`institute an inter partes review of claims 1–10 of U.S. Patent No. 8,432,956
`B2 (Ex. 1001, “the ’956 patent”). Patent Owner, TQ Delta, LLC (“Patent
`Owner”), filed a Preliminary Response to the Petition. Paper 7 (“Prelim.
`Resp.”). We have jurisdiction under 35 U.S.C. § 314(a), which provides in
`part that an inter partes review may not be instituted “unless . . . there is a
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`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 the
`information presented demonstrates a reasonable likelihood that Petitioner
`would prevail in showing unpatentability of claims 1–10 of the ’956 patent.
`
`A. Related Proceedings
`The parties state that the ’956 patent has been asserted in TQ Delta
`LLC v. Comcast Cable Commc’ns LLC, Case No. 1:15-cv-00611-RGA (D.
`Del); TQ Delta LLC v. Coxcom LLC et al., Case No. 1:15-cv-00612-RGA
`(D. Del.); TQ Delta LLC v. DirecTV LLC, Case No. 1:15-cv-00613-RGA
`(D. Del.); TQ Delta LLC v. DISH Network Corp. et al., Case No. 1:15-cv-
`00614-RGA (D. Del.); TQ Delta LLC v. Time Warner Cable Inc., et al.,
`Case No. 1:15-cv-00615-RGA (D. Del.); TQ Delta LLC v. Verizon Servs.
`Corp., Case No. 1:15-cv-00616-RGA (D. Del.); TQ Delta LLC v. 2Wire,
`Inc., Case No. 13-cv-1835-RGA (D. Del.); TQ Delta LLC v. Zhone Techs.,
`Inc., Case No. 13-cv-1836-RGA (D. Del.); TQ Delta LLC v. ZyXEL
`Commc’ns, Inc. and ZyXEL Commc’ns Corp., Case No. 13-cv-02013-RGA
`(D. Del.); TQ Delta LLC v. ADTRAN, Inc., Case No. 1:14-cv-00954-RGA
`(D. Del.); ADTRAN, Inc. v. TQ Delta LLC, 15-cv-00121-RGA (D. Del.);
`Arris Group, Inc. v. TQ Delta, LLC, IPR2016-00428; Arris Group, Inc. v.
`TQ Delta, LLC, IPR2016-00429; and Arris Group, Inc. v. TQ Delta, LLC,
`IPR2016-00430. Paper 6, 3–4; Pet. 1–2. In addition, a different Petitioner
`filed a petition for inter partes review of the ’956 patent, but we did not
`institute trial. Id.
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`B. The ʼ956 Patent (Ex. 1001)
`The ’956 patent generally describes exchanging diagnostic and test
`information between transceivers over a digital subscriber line. Ex. 1001,
`1:62–66. A transceiver or modem (remote terminal (RT)) is located at a
`customer premises downstream from a central office (CO), while a
`transceiver or modem is also located upstream from the customer premises
`at the CO. Id. at 2:1–5. Figure 1, below, is a functional block diagram of
`the communication system of the invention.
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`Figure 1, reproduced above, shows modem components associated with the
`diagnostic link mode, that comprise central office (CO) modem 200 and
`remote terminal (RT) modem 300, both connected via link 5 to splitter 10 to
`phone switch 20 and splitter 30 to phone 40. Id. at 4:61–5:7. CO modem
`200 includes CRC checker 210, diagnostic device 220, and diagnostic
`information monitoring device 230. Id. The RT modem 300 includes
`message determination device 310, power control device 320, diagnostic
`device 330 and diagnostic information storage device 340. Id.
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`“In the diagnostic link mode, the RT modem sends diagnostic and test
`information in the form of a collection of information bits to the CO
`modem.” Id. at 3:50–52. In one method, system diagnostic and test
`information are exchanged using multiple carriers with a higher order
`quadrature amplitude modulation (QAM) with more than 1 bit per carrier.
`Id. at 3:56–59.
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`C. Illustrative Challenged Claims
`Claims 1, 3, 5, 7, and 9 of the ’956 patent are independent. Claims 1,
`5, and 9 are illustrative and reproduced below (Ex. 1001, 8:47–58; 9:8–18,
`10:3–28):
`1. A transceiver capable of transmitting diagnostic
`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 diagnostic
`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 power
`level per
`subchannel information.
`
`In a transceiver capable of transmitting diagnostic
`5.
`information over a communication channel using
`multicarrier modulation, a method comprising:
`transmitting a message, wherein the message
`comprises one or more data variables that represent the
`diagnostic 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
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`one or more data variables comprises an array representing
`power level per subchannel information.
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`9. A communications system for DSL service
`comprising a first DSL transceiver capable of transmitting
`diagnostic information over a communication channel
`using multicarrier modulation and a second DSL
`transceiver
`capable of
`receiving
`the diagnostic
`information over the communication channel using
`multicarrier modulation comprising:
`a transmitter portion of the first transceiver capable
`of transmitting a message, wherein the message comprises
`one or more data variables that represent the diagnostic
`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 Signal to
`Noise ratio per subchannel during Showtime information;
`and
`
`a receiver portion of the second transceiver capable
`of receiving the message, wherein the message comprises
`the one or more data variables that represent the diagnostic
`information, wherein the bits in the message were
`modulated onto the DMT symbols using Quadrature
`Amplitude Modulation (QAM) with more than 1 bit per
`subchannel and wherein the at least one data variable of
`the one or more data variables comprises the array
`representing Signal to Noise ratio per subchannel during
`Showtime information.
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`D. Asserted Ground of Unpatentability
`The information presented in the Petition sets forth that claims 1–10
`of the ’956 patent are obvious under 35 U.S.C. § 103(a) over Milbrandt,1
`Hwang,2 and ANSI T1.413.3 Pet. 7–8.
`
`II. ANALYSIS
`A. Claim Interpretation
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed
`Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). Under this standard,
`we interpret claim terms using “the broadest reasonable meaning of the
`words in their ordinary usage as they would be understood by one of
`ordinary skill in the art, taking into account whatever enlightenment by way
`of definitions or otherwise that may be afforded by the written description
`contained in the applicant’s specification.” In re Morris, 127 F.3d 1048,
`1054 (Fed. Cir. 1997). We presume that claim terms have their ordinary and
`customary meaning. See Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1062
`(Fed. Cir. 2016) (“Under a broadest reasonable interpretation, words of the
`claim must be given their plain meaning, unless such meaning is inconsistent
`
`1 U.S. Patent No. 6,636,603 B1; issued Oct. 21, 2003 (Ex. 1011)
`(“Milbrandt”).
`2 U.S. Patent No. 6,590,893 B1; issued July 8, 2003 (Ex. 1013) (“Hwang”).
`3 AMERICAN NATIONAL STANDARDS INSTITUTE, Network and Customer
`Installation Interfaces – Asymmetric Digital Subscriber Line (ADSL)
`Metallic Interface, 1–186 (1995) (ANSI T1.413-1995) (Ex. 1014) (“ANSI
`T1.413”).
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`with the specification and prosecution history”); In re Translogic Tech., Inc.,
`504 F.3d 1249, 1257 (Fed. Cir. 2007) (“The ordinary and customary
`meaning is the meaning that the term would have to a person of ordinary
`skill in the art in question” (internal citation and quotation marks omitted)).
`1. “during Showtime” (claims 9 and 10)
`Petitioner asserts that “during Showtime” as recited in claims 9 and 10
`is described in the ’956 patent specification by example as “e.g. the normal
`steady state transmission mode, or the like.” Pet. 9 (citing Ex. 1001, 3:37–
`38). Petitioner contends that “showtime” is a term of art in DSL
`communication standards. Pet. 9 (citing Declaration of Dr. Sayfe Kiaei (Ex.
`1009, 19)). Petitioner cites extrinsic evidence in support of the contention
`that “normal communications” is known as “showtime.” Pet. 9 (citing Ex.
`1019, 379; Ex. 1014, 108). Petitioner argues that “during Showtime”, under
`the broadest reasonable interpretation in light of the ’956 patent
`specification, includes “during normal communications of an ANSI T1.413-
`compliant device.” Id. (citing Ex. 1009, 20). Patent Owner does not dispute
`Petitioner’s proposed construction, asserting that “none of Petitioner’s
`proposed constructions are necessary in deciding whether or not to institute
`trial.” Prelim. Resp. 9.
`We are persuaded by Petitioner, and, on this record, we interpret
`“during Showtime” to include “during normal communications of an ANSI
`T1.413-compliant device.”
`2. “array” (claims 1–10)
`Petitioner asserts that the ’956 patent does not define array, but that
`contemporaneous dictionary sources define array to be “ordered collection
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`of identical structures” or a “collection of data items . . . [that are] arranged
`in a particular order or pattern and are all of the same type.” Pet. 10
`(quoting Ex. 1017, 71; Ex. 1018, 9). In accordance with these sources,
`Petitioner argues that the term “array” should be construed to mean “an
`ordered collection of multiple data items of the same type.” Pet. 10. Patent
`Owner declines to propose a construction for this term, arguing that “none of
`Petitioner’s proposed constructions are necessary in deciding whether or not
`to institute trial.” Prelim. Resp. 8–9.
`At this stage of the proceeding, we adopt Petitioner’s construction and
`interpret “array” to include “an ordered collection of multiple data items of
`the same type.”
`
`3. “transceiver” (claims 1–10)
`Petitioner argues that the term “transceiver,” under the broadest
`reasonable interpretation in light of the ’956 patent specification, includes a
`“device, such as a modem, with a transmitter and receiver.” Pet. 10 (citing
`Ex. 1009, 22; see Ex. 1017, 913). Patent Owner argues that “none of
`Petitioner’s proposed constructions are necessary in deciding whether or not
`to institute trial” and declines to propose a construction for this term.
`Prelim. Resp. 8–9.
`We are persuaded by Petitioner, and, on this record, we interpret
`“transceiver” to include “a device, such as a modem, with a transmitter and
`receiver.”
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`B. Obviousness Based on Milbrandt (Ex. 1011), Hwang (Ex. 1013), and
`ANSI TI.413 (Ex. 1014)
`1. Milbrandt (Ex. 1011)
`Milbrandt describes a system and method for determining the transmit
`power of a communication device operating on digital subscriber lines.
`Ex. 1011, 1:20‒24. An example of the system as illustrated in Figure 1 is
`reproduced below as follows:
`
`
`Figure 1, reproduced above, 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
`transmit power for a communication device operating on a subscriber line
`16. Id. at 4:15‒21.
`Modem 42 at subscriber premises 12 receives the data signal
`communicated by modem 60 and determines the subscriber line information
`28, such as attenuation information, noise information, received signal
`power spectrum density, or any other information describing the physical or
`operating characteristics of subscriber line 16 at the one or more sub-
`frequencies over which the connection between modem 60 and 42 is
`established. Id. at 11:38‒45. 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.
`2. Hwang (Ex. 1013)
`Hwang discloses 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
`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 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
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`units, for example located at a central office of a telephone network. Id. at
`3:15‒19. If a channel characteristics are poor and the receiving node is
`unable to receive the transmitted data without errors, the transmitting node is
`able to adapt the transmission rate to ensure error-free data is received. Id.
`at 7:3‒7.
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`3. ANSI TI.413 (Ex. 1014)
`ANSI T1.413 discloses electrical characteristics of Asymmetric
`Digital Subscriber Line (ADSL) signals appearing at a network interface.
`Ex. 1014, Abstract. ADSL allows for the provision of Plain Old Telephone
`Service (POTS) and a variety of digital channels. Id. at 1. Digital channels
`consist of full duplex low-speed channels and simplex high-speed channels
`in the direction from the network to the customer premises, and low-speed
`channels in the opposite direction. 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.
`4. Petitioner’s Contentions
`Petitioner contends that that claims 1‒10 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Milbrandt, Hwang, and ANSI T1.413.
`Pet. 19–50. Petitioner sets forth evidence and argument that Milbrandt and
`Hwang teach the preamble of claim 1, which recites “[a] transceiver capable
`of transmitting diagnostic information over a communication channel using
`multicarrier modulation.” Pet. 19–20. Petitioner argues that “Milbrandt
`teaches a modem 42 that ‘comprises any suitable communication device that
`transmits and receives data,’” where “[t]he modem 42 has a ‘diagnostic
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`mode” that “‘measures the received signal power spectrum density’ and
`‘communicates this and other subscriber information 28 to modem 60’
`‘using data line 40.’” Pet. 19 (quoting Ex. 1011, 4:64–65, 4:64, 11:20–24,
`27:26–27). Petitioner further provides supporting evidence and argument
`that Milbrandt teaches multicarrier communication using a modem
`employing DMT technology, which Hwang explains involves N independent
`quadrature amplitude modulated (QAM) signals carried over distinct carrier
`frequency channels. Pet. 20 (citing Ex. 1011, 10:58–11:4; Ex. 1013, 2:67–
`3:3).
`Petitioner contends that Milbrandt teaches “a transmitter portion
`capable of transmitting a message, wherein the message comprises one or
`more data variables that represent the diagnostic information.” Pet. 21–22.
`Petitioner provides declarant testimony and citation to the evidence that
`Milbrandt teaches a modem capable of transmitting a message using DMT,
`determining subscriber line information, and communicating that
`information to a central office. Id. (citing Ex. 1011, 11:19–24, 12:54,
`11:31–43, 11:45–53, 13:12–15; Ex. 1009, 45–46).
`Petitioner further contends that Milbrandt and Hwang teach “wherein
`bits in the message are modulated onto DMT symbols using Quadrature
`Amplitude Modulation (QAM) with more than 1 bit per subchannel”
`(Pet. 22–24), and that Milbrandt and ANSI T1.413 teach “wherein at least
`one data variable of the one or more data variables comprises an array
`representing power level per subchannel information,” as recited in claim 1
`(id. at 24–28). Petitioner asserts that “[a] person of ordinary skill in the art
`would have recognized that a frequency sub-carrier in the ANSI T1.413
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`standard corresponds to Milbrandt’s sub-frequency, and that both of these
`terms correspond to the claimed ‘subchannel.’” Pet. 27–28 (citing Ex. 1009,
`55).
`
`With respect to independent claims 3, 5, 7, and 9 and dependent
`claims 2, 4, 6, 8 and 10, Petitioner provides argument and evidence similar
`to the presentation related to claim 1, demonstrating that Milbrandt, Hwang,
`and ANSI T1.413 teach the limitations of the challenged claims. Pet. 28–33
`(ind. claim 3), 33–35 (ind. claim 5), 36–38 (ind. claim 7), 38–47 (ind. claim
`9); and 48–50 (dep. claims 2, 4, 6, 8, and 10).
`Petitioner also argues that a person with ordinary skill in the art would
`have found it obvious to combine Milbrandt/Hwang with ANSI T1.413
`because Milbrandt/Hwang describe communication systems, and ANSI
`T1.413 defines the ADSL communication standard applicable to those
`systems. Pet. 15‒19 (citing Ex. 1009, 33‒36). Thus, Petitioner argues that
`both Milbrandt and Hwang refer to the ADSL standard set forth by ANSI
`T1.413, such that a person with ordinary skill in the art would have been
`directed to combine the teachings of all three references. Id. at 15–16 (citing
`Ex. 1009, 33–34). Petitioner also argues that it would have been
`advantageous to modify the teachings of Milbrandt and Hwang with the
`teachings of ANSI T1.413 in order to “improve signal quality and
`reliability,” “adjust its automatic gain control (AGC) to an appropriate
`level,” and “allow for interoperability with other devices that are ANSI
`T1.413 standard compliant, mak[ing] the overall system more robust.” Id. at
`16‒17 (citing Ex. 1009, 34‒35). Specifically, Petitioner argues that
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`a person of ordinary skill in the art would have recognized that
`transmitting per-subchannel data as an array, as taught by ANSI
`T1.413, would advantageously [allow] the receiving modem to
`receive and access the information on a per sub-channel basis,
`without the need for additional processing or reordering of the
`received information.
`
`Id. at 28 (citing Ex. 1009, 55–56).
`Based on the present record at this stage of the proceeding, we
`determine that there is a reasonable likelihood that Petitioner would prevail
`in establishing that claims 1‒10 of the ’956 patent would have been obvious
`over Milbrandt, Hwang, and ANSI T1.413.
`5. Patent Owner’s Contentions
`Patent Owner contends that the Milbrandt, Hwang, and ANSI T1.413
`fail to disclose “an array representing power level per subchannel
`information” as recited in claim 1 (and in independent claims 3, 5, and 7).
`Prelim. Resp. 12–13. Specifically, Patent Owner argues that Milbrandt
`discloses attenuation and power spectrum density over one or more “sub-
`frequencies,” but does not disclose measuring attenuation and power
`spectrum density “per subchannel,” as recited by claim 1 and related claims.
`Id. at 13. Thus, Patent Owner argues that Milbrandt, discloses only
`“measuring attenuation and power spectrum density for each ‘channel’—not
`‘sub-channel.’” Id.
`We are not persuaded by Patent Owner’s argument based on the
`present record. As argued by Petitioner, Milbrandt discloses measuring
`attenuation and power spectrum density for “sub-frequencies,” and a person
`with ordinary skill in the art would have understood Milbrandt’s power
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`spectrum density per sub-frequency is representative of “power level per
`subchannel information.” Pet. 24‒28 (citing Ex. 1011, 11:19‒24, 11:38‒45,
`12:14‒31, 23:51‒57, Fig. 3; Ex. 1009, 50–53; Ex. 1021, 126‒127; Ex. 1022,
`34). Milbrandt explains that ADSL modems using DMT technology, divide
`the bandwidth of a subscriber line, which is generally referred to as the
`frequency spectrum, into many individual sub-bands or channels. Ex. 1011,
`10:58‒63. The frequency range from 25 kHz to 1.1 MHz is divided into
`sub-frequencies, where each sub-frequency is an independent channel and
`supports transmission of its own stream of data signals. Id. at 11:2‒6.
`Milbrandt further states that “DMT technology is very useful for ADSL
`technology where the sub-channels are divided into groups and one group of
`channels is allocated for the uplink transmission of data and the other for the
`downlink transmission of data.” Id. at 11:6‒10. Petitioner’s declarant, Dr.
`Kiaei explains that Milbrandt’s “sub-frequency” corresponds to the claimed
`“subchannel.” Pet. 24–25 (citing Ex. 1009, 50–52). Accordingly, we are
`persuaded that Petitioner has demonstrated a reasonable likelihood that it
`will prevail in demonstrating that the combination of Milbrandt, Hwang, and
`ANSI T1.413 discloses “an array representing power level per subchannel
`information.”
`Patent Owner further argues that Milbrandt, Hwang, and ANSI
`T1.413 fail to teach or suggest “wherein bits in the message are modulated
`onto DMT symbols using Quadrature Amplitude Modulation (QAM) with
`more than 1 bit per subchannel” as recited in claims 1, 3, 5, and 7. Prelim.
`Resp. 17–20. Patent Owner specifically argues that Petitioner fails to
`demonstrate that the combination of Milbrandt, Hwang, and ANSI T1.413
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`teaches or suggests “transmitting a diagnostic message using DMT/QAM.”
`Id. at 17 (bold emphasis omitted). Patent Owner asserts that “Petitioner
`must show that transmitting a diagnostic message using DMT/QAM is
`somehow inherent in Milbrandt or Hwang.” Id. at 19.
`Based on the present record, we find that Petitioner has shown that the
`cited art teaches “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 discloses
`communicating subscriber line “diagnostic information” using suitable
`communication protocols. Pet. 21‒22. Petitioner further argues that
`Milbrandt discloses a modem that “transmits and receives data” using DMT
`technology and measures the received power spectrum density and other
`subscriber line information, which are the claimed “diagnostic information.”
`Id. at 19‒20 (quoting Ex. 1011, 4:64‒65; citing Ex. 1011, 5:39–40, 10:58–
`11:4; Ex. 1009, 39). As discussed above, Petitioner contends that Milbrandt
`discloses communication using DMT modulation, where “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.’” Id. at 23 (quoting Ex. 1011, 11:60‒64); Ex. 1009,
`48. As further discussed above, Petitioner argues that Hwang discloses that
`a “DMT signal is basically the sum of N independently quadrature amplitude
`modulated (QAM) signals, each carried over a distinct carrier frequency
`channel,” and the ANSI standard provides for 256 carriers or tones, where
`“[e]ach tone is QAM to carry up to 15 bits of data on each cycle of the tone
`waveform (symbol).” Pet. 23 (quoting Ex. 1013, 2:67‒3:12). On the present
`16
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`record, Petitioner has demonstrated a reasonable likelihood it will prevail in
`demonstrating that the combination of Milbrandt, Hwang, and ANSI T1.413
`teaches or suggests “wherein bits in the message are modulated onto DMT
`symbols using Quadrature Amplitude Modulation (QAM) with more than 1
`bit per subchannel.”
`Patent Owner further contends that “Petitioner has . . . not provided a
`reason with sufficient rational underpinnings to support combining Hwang’s
`disclosure of modulating onto DMT symbols using Quadrature Amplitude
`Modulation (QAM) with Milbrandt to send a diagnostic message.” Prelim.
`Resp. 20‒24 (emphasis omitted). Patent Owner argues that Petitioner’s
`rationale for combining Milbrandt and Hwang — namely, that “the resulting
`system ‘is overall more efficient and has [a] higher throughput’” — is
`conclusory and unsupported by evidence. Id. at 22‒23 (quoting Pet. 14–15).
`We are not persuaded by Patent Owner’s argument. On this record,
`we find that Petitioner articulates a reasoning with a rational underpinning in
`support of its conclusion of obviousness. Petitioner argues that a person
`with ordinary skill in the art would have combined Hwang’s teaching of
`using up to 15 bits for each subchannel with Milbrandt’s communication
`system in order to transmit more data on each subchannel. Pet. 13 (citing
`Ex. 1009, 32). Petitioner also argues that a person would have been
`motivated to make such a combination in order to achieve a system that is
`“overall more efficient and has [a] higher throughput.” Id. That is, it
`follows that by using up to 15 bits for each subchannel, the system transmits
`more data on each subchannel, and, therefore, the system will be more
`efficient. This conclusion of obviousness is based on the teachings of
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`Milbrandt and Hwang, and, therefore, is supported by the evidence and not
`conclusory. See id. at 23–24 (citing Ex. 1013, 2:67‒3:12; Ex. 1009, 49).
`Thus, we are not persuaded by Patent Owner’s argument on this record.
`With respect to dependent claims 2, 4, 6, and 8, Patent Owner relies
`on the arguments presented for independent claims 1, 3, 5, and 7. Prelim.
`Resp. 24. We, however, are not persuaded by Patent Owner’s arguments
`with respect to independent claims 1, 3, 5, and 7, and, therefore, are not
`persuaded by these arguments here for the same reasons.
`In addition, Patent Owner further asserts that the combination of
`Milbrandt, Hwang, and ANSI T1.413 fails to disclose “power level per
`subchannel information . . . based on a Reverb signal” as recited by
`dependent claims 2, 4, 6, and 8. Prelim. Resp. 25‒27. Our discussion above
`addresses Patent Owner’s first contention that the combination of Milbrandt,
`Hwang, and ANSI T1413 fails to teach or suggest “power level per
`subchannel information.” Prelim. Resp. 25‒26. Patent Owner’s second
`contention asserts that “Petitioner never alleges that [power level per
`subchannel information] is transmitted or received from one modem to
`another in ANSI T1.413.” Id. at 27 (citing Pet. 48–50). At this stage of the
`proceeding, we are not persuaded by Patent Owner’s argument on this
`record. Petitioner asserts that Milbrandt, not ANSI T1.413, teaches modems
`that transmit and receive test messages. See Pet. 19‒20. As such, Patent
`Owner’s argument is tantamount to an attack on ANSI T1.413 individually
`even though Petitioner’s challenge is based on the combination of Milbrandt,
`Hwang, and ANSI T1.413. We also note that Patent Owner acknowledges
`that ANSI T1.413 discloses “calculating ‘PSD’ (i.e., ‘power spectrum
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`density’) based on a Reverb signal.” Prelim. Resp. 25 (citing Pet. 48 (citing
`Ex. 1014, 94)). Accordingly, we are not persuaded by Patent Owner’s
`argument on this record.
`Patent Owner additionally argues that Petitioner fails to set forth any
`reasons with sufficient rational underpinnings to support combining
`Milbrandt, Hwang, and ANSI T1.413 to “allegedly enable Milbrandt to
`transmit or receive ‘power level per subchannel information based on a
`Reverb signal.’” Prelim. Resp. 27‒32. Patent Owner argues that ANSI
`T1.413 discloses that “it is not the power level per subchannel information
`based on Reverb that allows a subscriber modem to adjust its automatic gain
`control (AGC) to an appropriate level or [to] adjust signal equalization.” Id.
`at 28. Instead, Patent Owner argues, the power spectrum density calculation
`identified by Petitioner is calculated based on a different Reverb signal (R-
`REVERB1) than the one Petitioner identifies (C-REVERB1 or C-
`REVERB2). Id.
`On this record, we are not persuaded by Patent Owner’s arguments.
`Petitioner explains that:
`It would have been obvious to a person of ordinary skill in the
`art that to perform automatic gain control and to adjust the signal
`equalization, it would be expedient for the receiving modem
`(Milbrandt’s modem 42) to measure the power level on each
`subchannel. Ex. 1009, p.58-59. This is because the purpose of
`an equalizer in a multicarrier receiver is to adjust the frequency-
`dependent gain applied to the received signal so that the signal
`power
`level
`is approximately equal across all received
`frequencies. Ex. 1009, p.59. In order to adjust the equalizer
`settings, therefore, the receiving modem would need to measure
`the relative power level of the received signal as a function of
`frequency (i.e., subchannel). Id.
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`Pet. 49–50. Indeed, ANSI T1.413 discloses that C-REVERB1 is a signal
`used to adjust the gain control. Ex. 1014, 94. Furthermore, ANSI T1.413
`discloses two different transceivers, ATU-C and ATU-R, and the
`distinctions between R-REVERB1 and C-REVERB1 are based on which
`transceiver receives which signal. Id. Therefore, on this record, Patent
`Owner’s distinctions between C-REVERB1 and R-REVERB1 are
`misplaced.
`Patent Owner further argues that the combination of Milbrandt,
`Hwang, and ANSI T1.413 fails to teach or suggest a diagnostic message
`comprising “an array representing Signal to Noise ratio per subchannel
`during Showtime information,” as recited in claims 9 and 10. Prelim. Resp.
`32‒35. Patent Owner specifically argues that Petitioner defines “during
`Showtime” as during “normal communications of an ANSI T1.413-
`compliant device,” and Milbrandt discloses measuring noise during modem
`training, not during normal communications. Id. at 33–34 (citing Ex. 1011,
`11:10‒53); see Section II.A.1 (construing “during Showtime”). We are not
`persuaded by Patent Owner’s argument. As argued by Petitioner, Milbrandt
`discloses that the modem of a subscriber may operate as a spectrum analyzer
`during operation in order to measure the noise characteristics of a subscriber
`line during operation. Pet. 42 (citing Ex. 1001, 12:58‒63). This is
`consistent with our claim construction of “during Showtime” discussed
`above in Section II.A.1. Patent Owner does not address this argument
`presented by Petitioner, but rather highlights a d
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