`
` 
`
` 
`Filed on behalf of TQ Delta, LLC
`By: Peter J. McAndrews
`Thomas J. Wimbiscus
`Scott P. McBride
`Christopher M. Scharff
`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, INC.
`Petitioner
`
`v.
`
`TQ DELTA, LLC
`Patent Owner
`_____________
`
`
`Case No. IPR2016-01008
`Patent No. 8,238,412
`_____________
`
`
`PATENT OWNER’S RESPONSE UNDER 37 CFR §42.120
`
`
`
`
`
` 
`
`
`
`

`

` 
`
`
`
`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`
`THE ’412 PATENT ......................................................................................... 3
`
` 
`
`I.
`
`II.
`
`III. CLAIM CONSTRUCTION ............................................................................ 5
`
`IV. PETITIONER HAS NOT SHOWN UNPATENTABILITY BASED ON
`THE SINGLE GROUND INSTITUTED ........................................................ 9
`
`A.
`
`The Asserted References Do Not Render Obvious
`Transmitting/Receiving a Test Message Comprising “Power
`Level Per Subchannel Information” (Claims 1-8, 19-20) ................... 12
`
`1. Milbrandt’s Power Spectrum Density And Attenuation
`Are Wholly Different From the Claimed Parameter ................ 12
`
`2.
`
`Petitioner Did Not Present A Back-Up Obviousness
`Argument For Transmitting PLPSC Information
`in
`Milbrandt
`Instead of PSD Per Sub-Frequency
`Information ................................................................................ 19
`
`B.
`
`The Asserted References Do Not Render Obvious
`Transmitting/Receiving a Test Message Comprising “Power
`Level Per Subchannel Information . . . Based on a Reverb
`Signal” (Claims 2, 4, 6, 8) ................................................................... 20
`
`1.
`
`2.
`
`ANSI T1.413 Does Not Disclose The Claimed Parameter ....... 20
`
`Petitioner’s Obviousness Arguments For Transmitting
`ANSI T1.413’s PSD Based
`on Reverb Are
`Technologically Meritless ......................................................... 21
`
`C.
`
`The Asserted References Do Not Render Obvious
`Transmitting/Receiving a Test Message Comprising “Signal
`to Noise Ratio Per Subchannel During Showtime
`Information” (Claims 13-14) ............................................................... 24
`
`1.
`
`2.
`
`None of the References Disclose Measuring Noise or
`Signal to Noise Ratio “Per Subchannel” .................................. 24
`
`None of the References Disclose Measuring Noise or
`Signal to Noise Ratio “During Showtime Information” ........... 25
`
` 
`
`i
`
`

`

`3.
`
`4.
`
`Patent Owner’s Response
`IPR2016-01008
`ANSI T1.413’s “Signal to Noise Ratio Margin” is Not
`the Claimed “Signal to Noise Ratio” ........................................ 27
`
`Petitioner’s Obviousness Arguments for Transmitting or
`Receiving “Signal to Noise Ratio During Showtime
`Information”
`In Milbrandt’s Test Messages Are
`Technologically and Legally Erroneous ................................... 28
`
`V. NO WEIGHT SHOULD BE GIVEN TO THE UNQUALIFIED
`CONCLUSORY OPINIONS OF PETITIONER’S EXPERT ...................... 31
`
`VI. CONCLUSION .............................................................................................. 33
`
`CERTIFICATE OF WORD COUNT ...................................................................... 35
`
`
`
`
`
` 
`
`
`
`ii
`
`

`

`
`
`Ex. 2001
`
`Ex. 2002
`
`Ex. 2003
`
`Ex. 2004
`
`Ex. 2005
`
`Ex. 2006
`
`Patent Owner’s Response
`IPR2016-01008
`
`EXHIBIT LIST
`
`Declaration of Douglas Chrissan, PhD for Inter Partes Review
`Nos. IPR2016-01006, -01007, -01008, -01009
`
`Hargrave’s Communications Dictionary (2001) at pp. 404, 485
`
`U.S. Pat. Pub. No. 20050190826
`
`Webster’s Unabridged Dictionary of the English Language (1989
`ed.) at p. 1217
`
`Transcript of 2/8/17 Deposition of Sayfe Kiaei
`
`ITU-T G.992.1 (6/99) Series G: Transmission Systems and
`Media, Digital Systems and Networks – Asymmetric Digital
`Subscriber Line (ADSL) Transceivers
`
` 
`
`iii
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
` 
`I.
`
`INTRODUCTION
`
`The Board has instituted inter partes review of claims 1-8, 13-14, and 19-20
`
`of U.S. Pat. No. 8,238,412 (“the ’412 patent”) based on a single Ground—
`
`Petitioner’s allegations of obviousness in view of a combination of Milbrandt,
`
`Hwang, and ANSI T1.413.1 Patent Owner, however, respectfully submits that for
`
`purposes of institution the Board accepted as true numerous unsupported factual
`
`statements by Petitioner’s expert that are demonstrably incorrect. Indeed, based on
`
`his testimony at his deposition, Petitioner’s expert (Dr. Sayfe Kiaei) is
`
`unknowledgeable and unqualified regarding the technical issues in this proceeding.
`
`Patent Owner provides in this Response additional detail, technical explanations
`
`from its own qualified expert (Dr. Douglas Chrissan), and further legal support to
`
`clarify the deficiencies in the Petition.
`
`First, Petitioner has not shown that it would have been obvious in a
`
`multicarrier transceiver (such as a DSL modem) to transmit or receive a test
`
`                                                            
`1 “Petitioner” refers to Petitioner Cisco, Inc. In connection with separate petitions
`
`(IPR2017-00253 and IPR2017-00419), Dish Network, LLC and Comcast Cable
`
`Communications have requested joinder with this proceeding, a request that Patent
`
`Owner does not oppose. Decisions on those petitions and motions for joinder,
`
`however, have not yet issued. 
`
` 
`
`1
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`message having “an array representing power level per subchannel information”
`
`(“PLPSC”), as required by claims 1-8 and 19-20. None of the asserted references
`
`disclose anything
`
`that represents PLPSC—Petitioner
`
`incorrectly points
`
`to
`
`measured parameters in the references that convey very different information
`
`(namely, Milbrandt’s “power spectrum density” per “sub-frequency” and
`
`“attenuation” per “sub-frequency”). Moreover, Petitioner has not filled in this
`
`missing limitation via a sufficient obviousness argument—Petitioner does not even
`
`allege that it would have been obvious to transmit or receive PLPSC itself, much
`
`less provide a reason why one of ordinary skill in the art would have done so.
`
`Second, Petitioner has not shown that it would have been obvious to more
`
`specifically
`
`transmit or receive PLPSC
`
`information wherein
`
`the PLPSC
`
`information is “based on a Reverb signal,” as required by dependent claims 2, 4, 6,
`
`and 8. What Petitioner points to in the references for this element—ANSI
`
`T1.413’s measurement of total (or aggregate) power—is not representative of
`
`“power level per subchannel” information. And Petitioner’s rationales for why it
`
`allegedly would have been obvious to transmit this parameter between modems
`
`rely on technological and factual errors.
`
`Third, Petitioner has not shown that it would have been obvious to transmit
`
`or receive in a test message “signal to noise ratio [“SNR”] per subchannel during
`
`Showtime information,” as required by claims 13-14. Contrary to Petitioner’s
`
` 
`
`2
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`incorrect characterizations, none of the references disclose transmitting/receiving
`
`SNR, or measuring any SNR or other noise information, “during Showtime.” And
`
`once again, Petitioner’s rationales for adding that ability to modems rest on
`
`technologically meritless theories.
`
`Accordingly, Petitioner fails to show unpatentability of the challenged
`
`claims for numerous independent reasons. Petitioner cannot rely on the Board to
`
`fill in the gaps or defects in its Petition, or to infer or read into the Petition
`
`arguments that Petitioner did not make. See, e.g., In re Magnum Oil Tools Int'l,
`
`Ltd., 829 F.3d 1364, 1380 (Fed. Cir. 2016) (The Board is not “free to adopt
`
`arguments on behalf of petitioners that could have been, but were not, raised by the
`
`petitioner during an IPR. Instead, the Board must base its decision on arguments
`
`that were advanced by a party, and to which the opposing party was given a chance
`
`to respond.”). Nor can Petitioner fix the deficiencies and failures of proof in the
`
`Petition at a later stage by offering new arguments or new evidence. See
`
`Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., 821 F.3d 1359, 1369
`
`(Fed. Cir. 2016) (“the expedited nature of IPRs bring with it an obligation for
`
`petitioners to make their case in their petition to institute”).
`
`II. THE ’412 PATENT
`
`The ’412 patent is directed to communicating specific diagnostic and test
`
`information concerning a multicarrier communication channel between
`
` 
`
`3
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`multicarrier transceivers within a multicarrier communication network, digital
`
`subscriber line (DSL) network, for example. In the case of a DSL network, the
`
`transceivers correspond to a customer modem (remote transceiver) and a central
`
`office modem (near transceiver). The test and diagnostic information may be
`
`transmitted by the remote transceiver and received by the near transceiver. The
`
`test and diagnostic information may be used to characterize the multicarrier
`
`communication channel between the two transceivers. (See Ex. 1001, ’412 patent
`
`at Abstract.) The ’412 patent recognizes that in prior art systems, analyzing the
`
`condition of the communication channel required a technician to visit the remote
`
`transceiver, i.e. a truck roll. (See Ex. 1001, 1:36-37.) The ’412 patent recognizes
`
`that truck rolls are expensive and time consuming. (id.) The claims require the
`
`communication of specific test and diagnostic parameters by the remote
`
`transceiver to the near transceiver. The information received may be used to
`
`analyze the communication channel without requiring a truck roll to the remote
`
`transceiver. (See Ex. 1001, ’412 patent at 2:26-38.)
`
`In particular, claims 1-8, 19-20 of the ‘412 patent require transmitting and
`
`receiving information representing “power level per subchannel information.”
`
`(See e.g., Ex. 1001, ’412 patent at claims.) The power level per subchannel
`
`information represents the power level measured by the remote transceiver at the
`
`different subchannels of the multicarrier communication channel. The power
`
` 
`
`4
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`level per subchannel information may be used to identify subchannels that are
`
`experiencing excessive attenuation. (See Ex. 2001, Chrissan Decl. at ¶17.)
`
`Separately, Claims 13-14 of the ‘412 patent require transmitting and
`
`receiving information representing “Signal to Noise ratio per subchannel during
`
`Showtime information.” This information may be used, for example, to analyze
`
`link condition to identify service degradation as system deployment grows with
`
`the addition of new communication links (e.g., from adding new customers) that
`
`create increased crosstalk. (See Ex. 2001, Chrissan Decl. at ¶ 20.)
`
`III. CLAIM CONSTRUCTION
`
`In its Institution Decision, the Board adopted Petitioner’s proposed
`
`constructions. (See Paper 8, Institution Decision at pp. 6-8.) In particular, the
`
`Board construed the terms “during Showtime,” “array,” and “transceiver.” (See
`
`Paper 8, Institution Decision at pp. 6-8.)
`
`At least Petitioner’s proposed construction for the term “during Showtime”
`
`is incorrect as a technical matter. It also appears to be a blatant attempt by
`
`Petitioner to obtain a beneficial claim construction that it can point to in future
`
`District Court proceedings to support alleged noninfringement. Specifically,
`
`Petitioner proposed that “during Showtime” should be construed as “during normal
`
`communications of an ANSI T1.413 compliant device.” (Pet. at 8-9.) There are
`
`two things wrong with this construction, however.
`
` 
`
`5
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`First, it is well accepted in the art that “during Showtime” does not include
`
`any modem initialization or modem training. (See Ex. 2001, Chrissan Decl. at ¶
`
`31.) Petitioner’s own expert, Dr. Kiaei, even agreed in his declaration that
`
`“Showtime” is a term of art that is “used to refer to the mode that follows the
`
`completion of initialization and handshake . . . .” (Ex. 1009, Kiaei Decl. at ¶ 43.)
`
`Petitioner’s proposed construction does not take into account this aspect of the
`
`term “Showtime” and, thus, could be incorrectly understood to cover modem
`
`initialization and training.
`
`Second, neither the phrase “during Showtime” nor the claims of the ’412
`
`patent are limited to an “ANSI T1.413 compliant device.” Petitioner cites to only
`
`the opinion of Dr. Kiaei in this regard. (See Pet. at 9, citing Ex. 1009, Kiaei Decl.
`
`at 20.) Dr. Kiaei, however, admitted at his deposition that he simply has no
`
`knowledge or experience with multicarrier communications other than with respect
`
`to ANSI T1.413 compliant devices, and he had no idea if “Showtime” was a
`
`concept used in communication protocols other than ANSI T1.413. (See Ex. 2005,
`
`Kiaei Dep. Tr. at 65:13-66:15, 71:19-72:12.) In fact, however, “Showtime” is term
`
`that is used consistently in connection with many different communications
`
`protocols to refer to a state of communications reached after initialization and
`
`training. (See Ex. 2001, Chrissan Decl. at ¶ -; see also Ex. 2005, ITU-T G.992.1
`
`(“Showtime” is a “state of either ATU-C or ATU-R reached after all initialization
`
` 
`
`6
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`and training is completed.”)). And the challenged ‘412 patent claims recite a
`
`transceiver “capable of transmitting test information over a communication
`
`channel using multicarrier modulation”—not just an ANSI T1.413 compliant
`
`transceiver. (See Ex. 1001, ’412 patent at claims.) Dr. Kiaei showed at his
`
`deposition that he was importing the example of an ANSI T1.413 compliant device
`
`from the ‘412 specification into the claims. (See Ex. 2005, Kiaei Dep. Tr. at
`
`67:10-18, 68:7-11, 68:18-69:15, 70:21-72:6.)
`
`Accordingly, the phrase “during Showtime” in the ’412 patent should be
`
`construed to mean: during normal data communication that occurs after
`
`initialization. (See supra; see also Ex. 2001, Chrissan Decl. at ¶ 31.)
`
`With respect to other claim terms, the Board construed the term “array,” as
`
`“an ordered collection of multiple data items of the same type.” (Id. at 6.)
`
`“Transceiver” was construed as “a device, such as a modem, with a transmitter and
`
`receiver.” (Id. at 7.) Neither of these constructions, however, is dispositive of any
`
`of Petitioner’s or Patent Owner’s arguments. Patent Owner respectfully submits,
`
`therefore, that no constructions should be necessary. See Wellman, Inc. v. Eastman
`
`Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (claim terms should only be
`
`construed “to the extent necessary to resolve the controversy”). By doing so,
`
`Patent Owner does not concede to any of Petitioner’s proposed constructions or
`
`agree that they are correct.
`
` 
`
`7
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`At least one other claim term, however, requires construction at this point.
`
`Although Petitioner did not propose a construction for “subchannel” (a term that
`
`appears in all challenged claims), the Board in its Institution decision cited certain
`
`of Petitioner’s arguments that misapplied this term. Specifically, Petitioner
`
`incorrectly argued that Milbrandt’s “sub-frequency” (i.e., a wide band of
`
`frequencies) is the same thing as the claimed “subchannel.” (See infra at §IV.A.1.)
`
`The ’412 patent claims, however, recite a “subchannel” in the context of a
`
`“communication channel using multicarrier modulation.” (See Ex. 1001 at claims.)
`
`Specifically, communication between ADSL transceivers “is accomplished by
`
`modulating the data to be transmitted onto a multiplicity of discrete frequency
`
`carriers which are summed together and then transmitted over the subscriber loop.
`
`Individually,
`
`the carriers
`
`form discrete, non-overlapping communication
`
`subchannels of limited bandwidth.” (Ex. 1001, ’412 patent, 1:44-45 (emphasis
`
`added).) The ‘412 patent explains that “[c]ollectively, the carriers form what is
`
`effectively a broadband communications channel.” (Id. at 1:45-47.) As such, in
`
`light of the claims and the specification, the term “subchannel” recited in the
`
`claims refers to a “carrier of a multicarrier communication channel.” See PPC
`
`Broadband, Inc. v. Corning Optical Commc'ns RF, LLC, 815 F.3d 747, 755 (Fed.
`
`Cir. 2016) (“[T]he broadest reasonable interpretation must be reasonable in light of
`
`the claims and specification.”)
`
` 
`
`8
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`IV. PETITIONER HAS NOT SHOWN UNPATENTABILITY BASED ON
`THE SINGLE GROUND INSTITUTED
`
`The Petition proposed one ground against the ’412 patent, based on a
`
`combination of four different prior art references. The Board granted review
`
`based on this ground, specifically:
`
`
`
`Ground 1. Unpatentability of claims 1-8, 13, 14, 19, 20 under 35
`
`U.S.C. § 103(a) over U.S. Patent No. 6,636,603 to Milbrandt (“Milbrandt”), in view
`
`of U.S. Pat. No. 6,590,893 to Hwang et al. (“Hwang”) and American Nat. Standards
`
`Inst. (ANSI) T1.413-1995 Standard, entitled “Network and Customer Installation
`
`Interfaces—Asymmetric Digital Subscriber Line (ADSL) Metallic Interface”
`
`(“ANSI T1.413”).
`
`Patent Owner respectfully submits that Petitioner has not carried its burden
`
`of proving that claims 1-8, 13, 14, 19, and 20 are unpatentable. Petitioner has first
`
`of all not met its burden of establishing that the three asserted references can be
`
`pieced together to satisfy all of the elements of the challenged claims—the Board
`
`relied on several demonstrably incorrect factual/technical mischaracterizations by
`
`Petitioner in this regard. Second, even if the references had separately disclosed all
`
`elements of the challenged claims, Petitioner has not met its burden that it would
`
`have been obvious to mix-and-match those elements—Petitioner’s purported
`
`reasons for doing so are conclusory, based on incorrect assumptions, and violate
`
`several basic tenets of controlling Federal Circuit law on obviousness.
`9
`
` 
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`Specifically, independent claim 1 of the ’412 patent recites:
`
`1. A transceiver capable of transmitting test information over a communication
`channel using multi carrier 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 sub channel and wherein at least one data variable of
`the one or more data variables comprises an array representing power
`level per subchannel information.
`
`(See Ex. 1001, ’412 patent at claim 1.) Claims 3, 5, and 7 are similar, varying only
`
`in reciting a receiver rather than a transmitter, or in reciting a method rather than
`
`an apparatus. (See id. at claims 3, 5, 7.) Claims 19 and 20 are also similar, but vary in
`
`that they recite both a transmitter and receiver, or both transmitting and receiving a
`
`message. (See id. at claims 19-20.)
`
`
`
`Dependent claim 2 adds an additional limitation to claim 1 and reads as
`
`follows:
`
`2. The transceiver of claim 1, wherein the power level per subchannel
`information is based on a Reverb signal.
`
`(See id. at claim 2.) Claims 4, 6, and 8 recite the same additional limitation and
`
`variously depend from claims 3, 5, and 7. (See id. at claims 3, 5, 7.)
`
`
`
`Claim 13 recites a different transmitted/received parameter (Signal to Noise
`
`ratio per subchannel during Showtime information):
`
`
`
` 
`
`10
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`13. A communications system for DSL service comprising a first DSL
`transceiver capable of transmitting test information over a communication channel
`using multi carrier modulation and a second DSL transceiver capable of receiving
`the test 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 test information, wherein bits in the message are modulated
`onto DMT symbols using Quadrature Amplitude Modulation (QAM) with
`more than 1 bit per sub channel 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 test information, wherein the bits in the message were
`modulated onto the DMT symbols using Quadrature Amplitude Modulation
`(QAM) with more than 1 bit per sub channel and wherein the at least one
`data variable of the one or more data variables comprises the array
`representing Signal to Noise ratio per sub channel during Showtime
`information. 
`
`(See id. at claim 13.) Claim 14 recites a method that involves transmitting/receiving that
`
`parameter. (See id. at claim 14.)
`
`For the reasons discussed below, Petitioner has not shown that a
`
`combination of Milbrandt, Hwang, and ANSI T1.413 would have rendered obvious
`
`transmitting or receiving a test message comprising (A) “power level per
`
`subchannel information” (claims 1-8, 19-20), (B) “power level per subchannel
`
`information [] based on a Reverb signal” (claims 2, 4, 6, 8), or (C) “signal to noise
`
`ratio per subchannel during Showtime information” (claims 13-14).
`
`
`
` 
`
`11
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`A. The Asserted References Do Not Render Obvious
`Transmitting/Receiving a Test Message Comprising “Power Level
`Per Subchannel Information” (Claims 1-8, 19-20)
`
`Petitioner’s Ground 1 first fails with respect to claims 1-8 and 19-20 because
`
`the combination of references fails to disclose or render obvious transmitting or
`
`receiving test information over a communication channel, where the test
`
`information includes “an array representing power level per subchannel
`
`information.” (See Ex. 1001, ’412 patent at claims 1-8, 19-20.)
`
`1. Milbrandt’s Power Spectrum Density And Attenuation Are
`Wholly Different From the Claimed Parameter
`Petitioner only points to Milbrandt for disclosure of this claim limitation.
`
`Namely, Petitioner alleges that Milbrandt discloses determining “power spectrum
`
`density,” which Petitioner asserts is “representative” of “power level per
`
`subchannel information.” (See Pet. at 23-24.) Additionally, Petitioner alleges that
`
`Milbrandt discloses transmitting “attenuation” information, which Petitioner
`
`asserts is “related” to the “power spectrum density” that Milbrandt had determined
`
`(and therefore also allegedly “representative” of “power level per subchannel
`
`information.” (See id.) But in fact, Milbrandt’s PSD and attenuation parameters
`
`are not the same thing as or “representative” of the claimed PLPSC information,
`
`for three reasons.
`
`First, Milbrandt does not disclose any information on a “per subchannel”
`
`basis. Petitioner points to where Milbrandt discloses determining “power spectrum
`
` 
`
`12
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`density for a received signal at ‘one or more sub-frequencies over which the
`
`connection between modem 60 and 42 is established.” (Pet. at 23, citing Ex. 1011,
`
`Milbrandt at 11:38-45.) Petitioner also points to where Milbrandt discloses
`
`transmitting “attenuation information per sub-frequency.” (Id. at 24, citing Ex.
`
`1011, Milbrandt at 12:14-31.) For each of these parameters, Petitioner alleges that
`
`“Milbrandt’s disclosure of ‘sub-frequencies’ . . . would have been understood to be
`
`‘subchannels.’” (Pet. at 23.) But Petitioner cites to only the conclusory say-so of
`
`its expert, Dr. Kiaei, in this regard. (See id., citing Ex. 1009, Kiaei Decl. at 59.)
`
`The Board should not credit Dr. Kiaei’s conclusory representations. See 37 C.F.R.
`
`§ 42.65(a); In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004)
`
`(explaining that “the Board has broad discretion” to weigh declarations and
`
`“conclude that the lack of factual corroboration warrants discounting the opinions
`
`expressed”); Rohm & Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir.
`
`1997) (“Nothing in the [federal] rules [of evidence] or in our jurisprudence
`
`requires the fact finder to credit the unsupported assertions of an expert witness.”);
`
`Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 294 (Fed. Cir.
`
`1985) (“Lack of factual support for expert opinion going to factual determinations .
`
`. . may render the testimony of little probative value . . . .”). And it turns out that
`
`Dr. Kiaei’s conclusion is incorrect.
`
` 
`
`13
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`As explained in detail by Patent Owner’s expert (Dr. Chrissan), Milbrandt’s
`
`“sub-frequency” is demonstrably not the same thing as a “subchannel” under the
`
`’412 patent. (See Ex. 2001, Chrissan Decl. at ¶¶ 37-46.) The ’412 patent’s
`
`“subchannels” are the smallest division of the data transmission in a multicarrier
`
`communication system that uses DMT modulation. (See Ex. 1001, 1:42-51
`
`(“Individually,
`
`the carriers form discrete, non-overlapping communication
`
`subchannels of limited bandwidth. Collectively, the carriers form what is
`
`effectively a broadband communication channel.”). For example, ADSL1 has 256
`
`subchannels, while ADSL2+ has 512 subchannels and VDSL2 has 4096
`
`subchannels. (See Ex. 2001, Chrissan Decl. at ¶ 38.) This concept of DMT
`
`subchannels in ADSL is illustrated below:
`
`
`
`
`
`For example, the ADSL frequency spectrum is divided into the voice spectrum
`
`(“POTS” or “plain old telephone service”), “guard bands” to prevent interference,
`
`an upstream band, and a downstream band. (See id. at ¶ 39) Within those
`14
`
` 
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`upstream and downstream bands are individual “subchannels” that carry data. (See
`
`id. at ¶¶ 38-39.)
`
`Milbrandt, on the other hand, clearly does not use the term “sub-frequency”
`
`to refer to a multicarrier “subchannel.” (See Ex. 2001, Chrissan Decl. at ¶¶ 40-45.)
`
`For example, Milbrandt itself precisely uses the terms “sub-frequency” and “sub-
`
`channel” to refer to different things. (See id. at ¶ 40.) Milbrandt refers to dividing
`
`the ADSL spectrum into “sub-frequencies” for downstream and upstream
`
`transmission (i.e., large bands of frequencies), but refers to “sub-channels” when
`
`discussing DMT multicarrier units. (See id.; see also Ex. 1011, Milbrandt at 11:2-
`
`9.) Moreover, Milbrandt uses the term “sub-frequency” in multiple instances
`
`where it is flatly impossible that it could mean “sub-channel.” (See Ex. 2001,
`
`Chrissan Decl. at ¶ 41.) For example, Milbrandt refers to transmitting “over a sub-
`
`frequency in the voice frequency spectrum using the V.90 communication
`
`protocol.” (Ex. 1011, Milbrandt at 11:35-36.) The V.90 protocol is not a
`
`multicarrier communication protocol and does not have any subchannels. (See Ex.
`
`2001, Chrissan Decl. at ¶ 41.) The core concept of “multicarrier” communications,
`
`however, requires multiple subchannels (which may also be referred to as
`
`“carriers”) to transmit data. (See id. at ¶ 32.) Because Milbrandt uses the term
`
`“sub-frequency to refer to the frequency spectrum of communication protocols that
`
`are not necessarily multicarrier, V.90 for example, Milbrandt’s sub-frequency
`
` 
`
`15
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`cannot be the same as the claimed “subchannel” of a multicarrier communication
`
`channel. Additionally, Milbrandt discloses computing power spectrum density and
`
`attenuation information for each sub-frequency in a chart. (See Ex. 1011,
`
`Milbrandt at Fig. 3, 3:51-52, 23:36-40.) But Milbrandt only indicates six sub-
`
`frequencies—far less than the hundreds of subchannels needed for multicarrier
`
`communication such as ADSL. (See id. at Fig. 3; Ex. 2001, Chrissan Decl. at ¶¶
`
`42-44.) This confirms that Milbrandt’s “sub-frequency” is not the same as the
`
`claimed “subchannel.”
`
`Petitioner has no support for its contrary position—that Milbrandt’s “sub-
`
`frequency” is the allegedly the same thing as the claimed “subchannel.” Petitioner
`
`cites only to the declaration of Dr. Kiaei on this point. (See Pet. at 23, citing Kiaei
`
`Decl. at 59 and at 27-28, citing Kiaei Decl. at p. 55.) Dr. Kiaei, however, revealed
`
`at his deposition that he erroneously believes that Milbrandt was interchangeably
`
`using each of
`
`the
`
`terms “sub-frequency,” “sub-band,” “channel,” and
`
`“subchannels” to simply referred to any bandwidth of frequency. (See Ex. 2005,
`
`Kiaei Dep. Tr. at 90:11-17, 91:12-19.) For example, he indicated that he believes
`
`that the entirety of the upstream and downstream frequency bands within the
`
`ADSL spectrum are both “channels” and “subchannels,” as are the spectrums for
`
`communications protocols (e.g., VDSL, SDSL, xDSL). (See id. at 91:12-94:4.)
`
`Thus, he revealed that he does not understand the concept of a DMT “subchannel.”
`
` 
`
`16
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`Second, Milbrandt’s “power spectrum density” per sub-frequency and
`
`“attenuation” per sub-frequency are very different from the claimed “power level
`
`per subchannel.” (See Ex. 2001, Chrissan Decl. at ¶¶ 47-50.) Milbrandt’s power
`
`spectrum density per sub-frequency measurement is a measurement of the total
`
`“power the signal carries in a unit bandwidth around frequency f,” i.e., the total
`
`power for an entire bandwidth divided by the number of frequencies in the
`
`bandwidth. (See Pet. at p. -, citing Ex. 1021 (“the PSD Sg (w) represents the
`
`power per unit bandwidth . . .”).) (See also Ex. 2001, Chrissan Decl. at ¶ 47.) As
`
`such, Milbrandt’s PSD is a single value having the units of power per frequency,
`
`which indicates the average power level for an entire spectrum or band of
`
`frequencies. (See Ex. 2001, Chrissan Decl. at ¶ 48.) Petitioners’ argument about
`
`attenuation is also unavailing because Milbrandt similarly provides a single
`
`attenuation value that is “related” to Milbrandt’s PSD value, i.e., one value for an
`
`entire spectrum or band of frequencies, rather than “per subchannel.” (See Pet. at
`
`24-25, citing Ex. 1011, Milbrandt at 12:14-31; Ex. 2001, Chrissan Decl. at ¶ 48.)
`
`Both of these parameters are very different from the ’412 patent’s “power
`
`level per subchannel information.” The ’412 patent discloses an array representing
`
`the separate power level for each subcarrier in a multicarrier system—for example,
`
`an array having 32 different power number entries for an ADSL uplink stream and
`
`256 power number entries for the downlink stream. (See Ex. 1001, ’412 patent at
`
` 
`
`17
`
`

`

`Patent Owner’s Response
`IPR2016-01008
`
`4:38-40 (“For example, the Average Reverb Signal contains the power levels per
`
`tone, up to, for example, 256 entries, detected during the ADSL Reverb signal.”)
`
`(emphasis added); see also Ex. 2001, Chrissan Decl. at ¶¶ 32, 48.)
`
` Third, Petitioner cannot save its mischaracterizations of Milbrandt by
`
`latching onto the fact that claims 1-8 of the ’412 patent require transmitting or
`
`receiving “an array representing power level per subchannel information.” (Ex.
`
`1001, ’412 patent at claims 1, 3, 5, 7.) Contrary to Petitioner’s cavalier treatment,
`
`the term “representing” is not arguably or reasonably the same thing as the term
`
`“related to.” (See Ex. 2002, Webster’s Unabridged Dictionary of the English
`
`Language (1989 ed.) at p. 1217 (“represent: 1. to serve to express, designate, stand
`
`for, or denote, as a word, symbol, or the like does; symbolize: In this painting the
`
`cast represents evil and the bird, good. 2. To express or designate by some term,
`
`character, symbol, or the like: to represent musical sounds by notes. ”).
`
`Here, as Dr. Chrissan explains, persons of ordinary skill in the art would not
`
`regard PSD or attenuation information for a broad sub-frequency (as in Milbrandt)
`
`as being representative of the power levels of individual subchannels. (See Ex.
`
`2001, Chrissan Decl. at ¶ 49.) Milbrandt’s PSD and attenuation information
`
`indicate just the ave