Trials@uspto.gov
`571.272.7822
`
`
`
`
`
`
`
`
`
`
`
`
` Paper No. 7
`
`
` Filed: 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 IPR2016-01008
`Patent 8,238,412 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`571.272.7822
`
`
`
`
`
`
`
`
`
`
`
`
` Paper No. 7
`
`
` Filed: 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 IPR2016-01008
`Patent 8,238,412 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`
`I.
`
`INTRODUCTION
`
`Cisco Systems, Inc. (“Petitioner”) filed a Petition requesting an inter
`
`partes review of claims 1‒8, 13, 14, 19, and 20 of U.S. Patent No. 8,238,412
`
`B2 (Ex. 1001, “the ’412 patent”). Paper 2 (“Pet.”). TQ Delta, LLC (“Patent
`
`Owner”) filed a corrected Preliminary Response. Paper 7 (“Prelim. Resp.”).
`
`We have jurisdiction under 35 U.S.C. § 314(a), which provides that an inter
`
`partes review may not be instituted “unless . . . there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of the
`
`claims challenged in the petition.” After considering the Petition, the
`
`Preliminary Response, and associated evidence, we conclude that Petitioner
`
`has demonstrated a reasonable likelihood that it would prevail in showing
`
`the unpatentability of claims 1‒8, 13, 14, 19, and 20 of the ’412 patent.
`
`Thus, we authorize institution of an inter partes review of claims 1‒8, 13,
`
`14, 19, and 20 of the ’412 patent.
`
`A. Related Proceedings
`
`
`
`Petitioner indicates that the ’412 patent is the subject of several
`
`proceedings. See Pet. 1. Petitioner also indicates that the ’412 patent is the
`
`subject of IPR2016-00430. Id. at 1‒2. Petitioner additionally indicates that
`
`the ’412 patent is related to U.S. Patent No. 8,432,956 B2 and U.S. Patent
`
`No. 7,835,430 B2, which are the subject of IPR2016-00428 and IPR2016-
`
`00429. Id.
`
`B. The ʼ412 Patent (Ex. 1001)
`
`
`
`The ’412 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, 1:59‒62.
`
`The systems and methods include the use of a diagnostic link mode in the
`
`
`
`2
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`communication of diagnostic information from a remote terminal (RT)
`
`transceiver or modem to the central office (CO) transceiver or modem,
`
`where either model transmits a message to the other modem to enter
`
`diagnostic link mode. Id. at 2:60‒64, 3:34‒42. In diagnostic mode, the RT
`
`modem sends diagnostic and test information as bits to the CO modem. Id.
`
`at 3:48‒53.
`
`
`
`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, and a
`
`splitter 30 for a phone 40. Id. at 4:58‒5:5. CO modem 200 includes CRC
`
`checker 210, diagnostic device 220, and diagnostic information monitoring
`
`device 220. Id. RT modem includes message determination device 310,
`
`power control device 320, diagnostic device 330, and diagnostic information
`
`storage device 340. Id.
`
`
`
`3
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`
`C. Illustrative Claim
`
`Petitioner challenges claims 1‒8, 13, 14, 19, and 20 of the ’412 patent.
`
`Pet. 7–55. Claims 1, 3, 5, 7, 13, 14, 19, and 20 are independent claims.
`
`Claims 2, 4, 6, and 8 depend from independent claims 1, 3, 5, and 7. Claims
`
`13 and 19 are illustrative of the claims at issue and are reproduced below:
`
`13. A communications system for DSL service comprising a
`first DSL transceiver capable of transmitting test information
`over a communication channel using multicarrier 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 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 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 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.
`
`19. A communications system for DSL service comprising a
`first DSL transceiver capable of transmitting test information
`over a communication channel using multicarrier modulation
`and a second DSL transceiver capable of receiving the test
`information over the communication channel using multicarrier
`modulation comprising:
`
`4
`
`
`
`
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`
`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 power level per
`subchannel information; and
`
`a receiver portion capable of receiving the message,
`wherein the message comprises the one or more data variables
`that represent the test information, wherein bits in the message
`were 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.
`
`Ex. 1001, 9:56–10:15, 11:63–12:21.
`
`D. The Alleged Grounds of Unpatentability
`
`The information presented in the Petition sets forth proposed grounds
`
`of unpatentability of claims 1‒8, 13, 14, 19, and 20 of the ’412 patent under
`
`35 U.S.C. § 103(a) as follows (see Pet. 7–55):1
`
`References
`
`Milbrandt,2 Hwang,3 and
`ANSI T1.4134
`
`Claims
`Challenged
`
`1‒8, 13, 14, 19, and 20
`
`
`1 Petitioner supports its challenge with the Declaration of Sayfe Kiaei, PhD.
`(Ex. 1009).
`2 U.S. Patent No. 6,636,603 B1; issued Oct. 21, 2003 (Ex. 1011)
`(“Milbrandt”).
`3 U.S. Patent No. 6,590,893 B1; issued July 8, 2003 (Ex. 1013) (“Hwang”).
`4 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”).
`
`
`
`5
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`
`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); see Cuozzo Speed Techs., LLC v.
`
`Lee, 136 S. Ct. 2131, 2142–46 (2016). Under the broadest reasonable
`
`construction standard, claim terms are given their ordinary and customary
`
`meaning, as would be understood by one of ordinary skill in the art in the
`
`context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
`
`1257 (Fed. Cir. 2007).
`
`1. “Array”
`
`Petitioner argues that the ’412 patent specification uses the term
`
`“array” consistent with its ordinary meaning, which dictionaries define as an
`
`“ordered collection 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. 9 (quoting Ex. 1017, 71; Ex. 1018, 9). Accordingly, Petitioner
`
`argues that the term “array” should be construed to mean “an ordered
`
`collection of multiple data items of the same type.” 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. 9.
`
`We are persuaded by Petitioner, and, on this record, we interpret
`
`“array” to mean “an ordered collection of multiple data items of the same
`
`type.”
`
`
`
`
`
`
`
`6
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`
`2. “Transceiver”
`
`Petitioner argues that the term “transceiver,” under the broadest
`
`reasonable interpretation in light of the ’412 patent specification, includes “a
`
`device, such as a modem, with a transmitter and receiver.” Pet. 9‒10 (citing
`
`Ex. 1009, 24‒25; 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. 9.
`
`We are persuaded by Petitioner, and, on this record, we interpret
`
`“transceiver” to mean “a device, such as a modem, with a transmitter and
`
`receiver.”
`
`3. “during Showtime”
`
`Petitioner argues that the ’412 patent specification describes an
`
`example of “during Showtime” as “the normal steady state transmission
`
`mode, or the like.” Pet. 8‒9 (citing Ex. 1001, 3:32‒34). Petitioner argues
`
`that “during Showtime” is a term of art in ADSL and in that art it means
`
`“each modem notifies its peer that it is ready to enter normal
`
`communications, known in the standard as ‘showtime.’” Id. (citing Ex.
`
`1019, 379). Accordingly, Petitioner argues that, under the broadest
`
`reasonable interpretation in light of the ’412 patent specification, “during
`
`Showtime” includes “during normal communications of an ANSI T1.413-
`
`compliant device.” Id. (citing Ex. 1009, 22). 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. 9.
`
`
`
`7
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`
`We are persuaded by Petitioner, and, on this record, we interpret
`
`“during Showtime” to mean “during normal communications of an ANSI
`
`T1.413-compliant device.”
`
`B. Obviousness of Claims 1‒8, 13, 14, 19, and 20 over
`Milbrandt, Hwang, and ANSI T1.413
`
`Petitioner contends that claims 1‒8, 13, 14, 19, and 20 of the ’412
`
`patent are unpatentable under 35 U.S.C. § 103(a) as obvious over Milbrandt,
`
`Hwang, and ANSI T1.413. Pet. 18–55. For the reasons discussed below,
`
`the evidence, on this record, indicates there is a reasonable likelihood that
`
`Petitioner would prevail in showing that claims 1‒8, 13, 14, 19, and 20 of
`
`the ’412 patent are unpatentable under 35 U.S.C. § 103(a) as obvious.
`
`1. Milbrandt (Ex. 1011)
`
`Milbrandt discloses 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 is illustrated in Figure 1 as
`
`follows:
`
`
`
`8
`
`
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`
`Figure 1 illustrates a communication system that provides both
`
`telephone and data services. Id. at 4:4‒5. 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 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
`
`
`
`9
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`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. 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.
`
`3. ANSI T1.413 (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.
`
`4. Analysis
`
`The evidence set forth by Petitioner indicates there is a reasonable
`
`likelihood that Petitioner will prevail in showing that claims 1‒8, 13, 14, 19,
`
`and 20 are unpatentable under 35 U.S.C. § 103(a) as obvious. Pet. 18–55.
`
`For example, the claim 19 preamble recites “a communications
`
`system for DSL service comprising” that includes “a first DSL transceiver
`
`capable of transmitting test information over a communication channel using
`
`multicarrier modulation” and “a second DSL transceiver capable of
`
`receiving the test information over the communication channel using
`
`multicarrier modulation.” Petitioner argues that Milbrandt discloses a
`
`“communication system [] that provides both telephone and data services to
`
`subscribers” and a “communication device that transmits and receives data
`
`
`
`10
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`in [a] communication system [] using any suitable digital subscriber line
`
`technology (xDSL).” Pet. 37‒38 (quoting Ex. 1011, 4:3‒4, 4:64‒67)
`
`(emphasis omitted). Petitioner also argues that Milbrandt discloses a modem
`
`that “transmits and receives data” and discloses measuring the values of the
`
`power spectrum density per sub-frequency and noise information per sub-
`
`frequency, which are the claimed “test information.” Id. at 18‒19 (quoting
`
`Ex. 1011, 4:64‒65; citing Ex. 1011, 11:20‒53, 12:65‒13:16, 16:40‒50).
`
`Petitioner further argues that Milbrandt discloses a central office modem that
`
`receives “communication using ADSL techniques that comply with ANSI
`
`Standard T1.413, such as discrete multi tone (DMT) modulation.” Id. at 30
`
`(quoting Ex. 1011, 9:58‒65). Petitioner further argues that Hwang discloses
`
`a “DMT signal is basically the sum of N independently quadrature amplitude
`
`modulated (QAM) signals, each carried over a distinct carrier frequency
`
`channel.” Id. at 19‒20 (quoting Ex. 1013, 2:67‒3:3).
`
`Claim 19 additionally recites “a transmitter portion capable of
`
`transmitting a message, wherein the message comprises one or more data
`
`variables that represent the test information.” Petitioner argues that
`
`Milbrandt discloses this limitation. Pet. 20‒21, 49‒50. Petitioner explains
`
`that Milbrandt discloses a “[m]odem [] comprises any suitable
`
`communication device that transmits and receives data.” Id. at 20 (quoting
`
`Ex. 1011, 4:64‒655) (emphasis omitted). Petitioner argues that Milbrandt
`
`discloses a modem that transmits data using any suitable communication
`
`
`5 Petitioner cites to Exhibit 1011 pages 64‒65. Pet. 20. We, however,
`understand this to be a typographical error, and understand that Petitioner
`intended to cite to Exhibit 1011 column 6 lines 46‒49, as evidenced by
`Petitioner’s citation on page 31 of the Petition.
`
`
`
`11
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`protocols, and a person with ordinary skill in the art would have understood
`
`the modem can transmit a message using DMT and the message using DMT
`
`includes one or more data variables representing the subscriber line
`
`information. Id. at 20‒21 (citing Ex. 1011, 11:45‒54, 13:12‒15; Ex. 1009,
`
`53‒54, 56). Petitioner further argues that Milbrandt discloses “subscriber
`
`line information” that includes power spectrum density per sub-frequency Sf,
`
`attenuation information per sub-frequency Hf, and noise information per sub-
`
`frequency Nf, and it would have been obvious to a person with ordinary skill
`
`in the art that these values represent “one or more data variables.” Id. at 21
`
`(citing Ex. 1011, 11:31‒43, Ex. 1009, 56).
`
`Claim 19 also recites “wherein bits in the message are modulated onto
`
`DMT symbols using Quadrature Amplitude Modulation (QAM) with more
`
`than 1 bit per subchannel.” Petitioner argues that the combination of
`
`Milbrandt and Hwang discloses this limitation. Id. at 22‒23, 49‒50.
`
`Petitioner contends that Milbrandt discloses communicating 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
`
`22 (quoting Ex. 1011, 11:60‒64) (emphasis omitted). 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).” Id. (quoting Ex. 1013, 2:67‒3:12;
`
`citing Ex. 1009, 58) (emphasis omitted). Accordingly, Petitioner argues that
`
`Milbrandt discloses modulating bits using DMT and QAM, and Hwang
`
`
`
`12
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`discloses that DMT and QAM provide for transmission of up to 15 bits of
`
`data per subchannel. Id. at 22‒23.
`
`With respect to the combination of references, Petitioner contends that
`
`a “person of ordinary skill in the art would have found it obvious to combine
`
`the teachings of Milbrandt and Hwang because Hwang provides additional
`
`details of ADSL communication technology” and a person with ordinary
`
`skill in the art would “refer to all of their teachings in implementing an
`
`ADSL communication system for the purpose of obtaining a more complete
`
`understanding.” Pet. 12‒13. 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. Id. at 13 (citing Ex. 1009, 41).
`
`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. (citing Ex. 1009, 41). Accordingly,
`
`Petitioner argues that the combination of Hwang’s known technique of using
`
`up to 15 bits per subchannel to Milbrandt’s communication system renders
`
`nothing more than the predictable results of, for example, “transmitting data
`
`more efficiently, increasing throughput, improving service for customers,
`
`and making the system as [a] whole commercially desirable in the
`
`marketplace.” Id. at 14 (citing Ex. 1009, 42).
`
`Claim 19 further recites “wherein at least one data variable of the one
`
`or more data variables comprises an array representing power level per
`
`subchannel information.” Petitioner argues that Milbrandt discloses this
`
`entire limitation (see id. at 23‒26 (citing Ex. 1011, 11:19‒24, 11:38‒45,
`
`12:14‒31, 23:51‒57, Fig. 3; Ex. 1009, 59‒62; Ex. 1021, 126‒127; Ex. 1022,
`
`
`
`13
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`34), except “Milbrandt does not expressly state that the information is
`
`transmitted as an array.” Id. at 26. Milbrandt does disclose, according to
`
`Petitioner, “using ADSL techniques that comply with ANSI Standard
`
`T1.413.” Id. (quoting Ex. 1011, 9:31‒34). Petitioner argues that ANSI
`
`T1.413 discloses “transmitting data variables that have a value for a plurality
`
`of frequency sub-carriers.” Id. at 26–27. Petitioner argues that ANSI
`
`T1.413 discloses transmitting bit values and gain values “{b1, g1, b2, g2,
`
`. . . b255, g255},” where each available frequency sub-carrier has its own bit
`
`value and gain value. Id. at 26‒27 (citing Ex. 1014, 110) (emphasis
`
`omitted). Petitioner further argues that a person with 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.’” Id. at 27 (citing Ex. 1009,
`
`64). Accordingly, Petitioner contends that “it would have been obvious to a
`
`person of ordinary skill in the art to transmit Milbrandt’s power spectrum
`
`density per sub-frequency and attenuation information per sub-frequency
`
`using the same array data format taught by ANSI T1.413.” Id. (citing Ex.
`
`1009, 64).
`
`Claim 19 additionally recites “a receiver portion capable of receiving
`
`the message.” Petitioner argues that Milbrandt discloses this limitation. Pet.
`
`31‒32, 49‒50. Petitioner explains that Milbrandt discloses a “modem []
`
`comprises any suitable communication device that transmits and receives
`
`data.” Id. at 31 (quoting Ex. 1011, 6:46‒49) (emphasis omitted). Claim 19
`
`additionally recites the contents of the received message, which is the same
`
`contents of the transmitted message discussed above. Petitioner argues that
`
`it would have been obvious to a person with ordinary skill in the art, that the
`
`
`
`14
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`message transmitted by the subscriber modem of Milbrandt is the same
`
`message that is received by the central office modem. Id. at 32 (citing Ex.
`
`1009, 74‒75). Accordingly, Petitioner provides the same analysis for the
`
`contents of the received message as presented for the contents of the
`
`transmitted message. Pet. 32‒33.
`
`Petitioner 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. Pet. 14‒15 (citing Ex.
`
`1009, 42‒43). Petitioner further argues that both Milbrandt and Hwang refer
`
`to the ADSL standard set forth by ANSI T1.413, and, therefore, a person
`
`with ordinary skill in the art would have been directed to combine the
`
`teachings of all three references. Id. at 15 (citing Ex. 1009, 43). Petitioner
`
`argues that it would have been advantageous to modify Milbrandt/Hwang
`
`with the teachings of ANSI T1.413 in order to “improve signal quality and
`
`reliability,” “adjust its gains to appropriate levels,” and “allow for
`
`interoperability with other devices that are ANSI T1.413 standard compliant,
`
`mak[ing] the overall system more robust.” Id. at 15‒16 (citing Ex. 1009,
`
`43‒44). Specifically, Petitioner argues that
`
`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-subchannel basis,
`without the need for additional processing or reordering of the
`received information.
`
`Id. at 27‒28.
`
`Patent Owner argues that the combination of Milbrandt, Hwang, and
`
`ANSI T1.413 fails to teach or suggest “an array representing power level
`
`
`
`15
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`per subchannel information.” Prelim. Resp. 12‒15. Specifically, Patent
`
`Owner argues that Milbrandt discloses attenuation and power spectrum
`
`density over one or more “sub-frequencies,” but fails to disclose power
`
`levels “per subchannel,” as recited by claim 19. Id. at 13‒14. Accordingly,
`
`Patent Owner argues that Milbrandt, at best, discloses “measuring
`
`attenuation and power spectrum density for each ‘channel’ – not ‘sub-
`
`channel.’” Id.
`
`On this record, we are not persuaded by Patent Owner’s argument. 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 spectrum density per sub-
`
`frequency is representative of “power level per subchannel information.”
`
`Pet. 23‒26 (citing Ex. 1011, 11:19‒24, 11:38‒45, 12:14‒31, 23:51‒57, Fig.
`
`3; Ex. 1009, 59‒62; 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, in
`
`to 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. Dr. Kiaei explains that Milbrandt’s
`
`“sub-frequency” corresponds to the claimed “subchannel.” Pet. 27 (citing
`
`Ex. 1009, 64). Accordingly, on this record, we are persuaded that Petitioner
`
`
`
`16
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`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 Petitioner has not shown that a test
`
`message comprising “an array representing power level per subchannel
`
`information” would have been obvious over Milbrandt, Hwang, and ANSI
`
`T1.413. Prelim. Resp. 15‒17. Specifically, Patent Owner argues that
`
`Petitioner has not established that “it would have been obvious to add to
`
`Milbrandt the ability to transmit ‘power level per subchannel information.’”
`
`Id. at 16. Patent Owner additionally argues that Petitioner has not provided
`
`any reasons, with sufficient rational underpinnings, to support combining
`
`Milbrandt, Hwang, and ANSI T1.413 to “allegedly enable Milbrandt to
`
`transmit or receive ‘Signal to Noise Ratio per subchannel information during
`
`SHOWTIME information.’” Prelim. Resp. 36‒40.
`
`We are not persuaded by Patent Owner. As discussed above,
`
`Petitioner argues that it would have been advantageous to modify
`
`Milbrandt/Hwang with the teachings of ANSI T1.413 in order to “improve
`
`signal quality and reliability,” “adjust its gains to appropriate levels,” and
`
`“allow for interoperability with other devices that are ANSI T1.413 standard
`
`compliant, mak[ing] the overall system more robust.” Pet. at 15‒16 (citing
`
`Ex. 1009, 43‒44). Specifically, Petitioner argues that
`
`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-subchannel basis,
`without the need for additional processing or reordering of the
`received information.
`
`
`
`17
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`Id. at 27‒28. Accordingly, on this record, Petitioner has demonstrated a
`
`reasonable likelihood that it will prevail in showing a rationale to combine
`
`Milbrandt, Hwang, and ANSI T1.413.
`
`Patent Owner additionally argues that the combination of Milbrandt,
`
`Hwang, and ANSI T1.413 fails 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.” Prelim.
`
`Resp. 17‒20, 40‒41. Patent Owner specifically argues that Petitioner fails to
`
`demonstrate that the combination of Milbrandt, Hwang, and ANSI T1.413
`
`teaches or suggests the “whole claimed concept— transmitting a message
`
`comprising test information via DMT using QAM with more than 1 bit per
`
`subchannel.” Id. at 17‒18. Patent Owner argues that “Petitioner must still
`
`show that transmitting a test message using DMT/QAM is somehow
`
`inherent.” Id. at 21.
`
`On this record, we are not persuaded by Patent Owner’s argument.
`
`Petitioner argues that Milbrandt discloses transmitting a message comprising
`
`test information. Pet. 20‒21. As discussed above, Petitioner argues that
`
`Milbrandt discloses a modem that “transmits and receives data” and
`
`discloses measuring the values of the power spectrum density per sub-
`
`frequency and noise information per sub-frequency, which are the claimed
`
`“test information.” Id. at 18‒19 (quoting Ex. 1011, 4:64‒65; citing Ex.
`
`1011, 11:20‒53, 12:65‒13:16, 16:40‒50). That is, Petitioner argues that the
`
`data transmitted by the modem that includes “test” information is a message
`
`comprising “test information.” As also discussed above, Petitioner contends
`
`that Milbrandt discloses communication using DMT modulation, where
`
`“DMT technology divides a subscriber line into individual ‘sub-bands or
`
`
`
`18
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`channels,’ and ‘uses a form of quadrature amplitude modulation (QAM) to
`
`transmit data in each channel simultaneously.’” Id. at 22 (quoting Ex. 1011,
`
`11:60‒64) (emphasis omitted). 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).” Id. (quoting Ex. 1013,
`
`2:67‒3:12; citing Ex. 1009, 58) (emphasis omitted). Accordingly, on this
`
`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 test message.” Prelim. Resp.
`
`20‒24 (emphasis omitted). Patent Owner argues that Petitioner’s rationale
`
`for combining Milbrandt and Hwang — “the resulting system ‘is overall
`
`more efficient and has [a] higher throughput’” — is conclusory and
`
`unsupported by evidence. Id. at 22‒23.
`
`We are not persuaded, on this record that Petitioner fails to articulate a
`
`reasoning with a rational underpinning in support of its conclusion of
`
`obviousness. As discussed above, Petitioner argues that a person with
`
`ordinary skill in the art would have combined Hwang’s teaching of using up
`
`
`
`19
`
`
`
`IPR2016-01008
`Patent 8,238,412 B2
`
`to 15 bit
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
