UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
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`
`
`
`
`
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`CISCO SYSTEMS, INC.,
`Petitioner
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner
`
`_____________________
`
`Case IPR2016-01009
`Patent 8,238,412 B2
`_____________________
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`
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`PETITIONER’S REPLY
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`Petitioner’s Reply, IPR2016-01009
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`TABLE OF CONTENTS
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`PETITIONER’S EXHIBIT LIST .............................................................................. 4
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`I. 
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`Introduction ........................................................................................................ 7 
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`II.  Claim Construction ............................................................................................ 7 
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`A. 
`
`B. 
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`“subchannel” ............................................................................................. 7 
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`“during Showtime” .................................................................................... 9 
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`III.  The Independent Claims Are Obvious .............................................................. 9 
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`A.  Milbrandt teaches “power level per subchannel information”–
`independent claims 9, 11, and 21 ............................................................ 10 
`
`1.  Milbrandt’s “sub-frequency” teaches a “subchannel” .................... 10 
`
`2.  Milbrandt’s PSD per sub-frequency teaches “power level per
`subchannel” ..................................................................................... 14 
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`B.  Milbrandt in combination with ANSI T1.413 teaches “an array
`representing Signal to Noise Ratio per subchannel during Showtime
`information”—independent claim 15 ...................................................... 16 
`
`1.  Milbrandt in combination with ANSI T1.413 teaches signal
`noise ratio (SNR) per “subchannel” ................................................ 16 
`
`2.  Milbrandt in combination with ANSI T1.413 teaches “during
`Showtime” ........................................................................................ 17 
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`3.  ANSI T1.413’s “SNR” discloses “Signal to Noise
`Ratio…information” ........................................................................ 18 
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`4.  ANSI T1.413’s “SNR margin test parameters” discloses
`“Signal to Noise Ratio…information” ............................................. 19 
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`5.  There are numerous and distinct reasons to combine the
`teachings of Milbrandt and ANSI T1.413 to measure and
`transmit SNR during Showtime ...................................................... 20 
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`Petitioner’s Reply, IPR2016-01009
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`C.  Milbrandt in combination with Chang renders obvious “idle channel
`noise information”—independent claims 16-18 ..................................... 22 
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`1.  Milbrandt does not “teach away” from Chang ............................... 22 
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`2.  A POSITA would have had a reasonable expectation of success
`in combining the teachings of Chang with Milbrandt .................... 23 
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`3.  The teachings of Chang do not change Milbrandt’s principle of
`operation .......................................................................................... 25 
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`4.  There are numerous distinct reasons to combine the teachings
`of Milbrandt and Chang .................................................................. 26 
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`IV.  The Dependent Claims Are Also Obvious ...................................................... 28 
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`A.  Dependent claims 10 and 12 ................................................................... 29 
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`1.  Milbrandt in combination with ANSI T1.413 teaches that “the
`power level per subchannel information is based on a Reverb
`signal” ............................................................................................. 29 
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`2.  There are numerous and distinct reasons to combine the
`teachings of Milbrandt and ANSI T1.413 to measure PSD
`based on a Reverb signal ................................................................. 31 
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`V.  TQ Delta’s Attack on Dr. Kiaei Has No Merit ................................................ 33 
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`VI.  Conclusion ....................................................................................................... 34 
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`3
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`Petitioner’s Reply, IPR2016-01009
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`PETITIONER’S UPDATED EXHIBIT LIST
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`June 8, 2017
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`1001 U.S. Patent No. 8,238,412 to Krinsky et al.
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`1002 Prosecution File History of U.S. 8,432,956
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`1003 Prosecution File History of U.S. 8,238,412
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`1004 Prosecution File History of U.S. 7,835,430
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`1005 Prosecution File History of U.S. 7,570,686
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`1006 Prosecution File History of U.S. 6,658,052
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`1007 U.S. Provisional Application No. 60/224,308
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`1008 U.S. Provisional Application No. 60/174,865
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`1009 Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68
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`1010 Curriculum Vitae of Dr. Sayfe Kiaei
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`1011 U.S. Patent No. 6,636,603 to Milbrandt
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`1012 U.S. Patent No. 6,891,803 to Chang et al.
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`1013 U.S. Patent No. 6,590,893 to Hwang et al.
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`1014 ANSI T1.413-1995 Standard
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`1015 Charles K. Summers, ADSL STANDARDS, IMPLEMENTATION, AND
`ARCHITECTURE (CRC Press 1999) (selected pages)
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`1016 Walter Goralski, ADSL AND DSL TECHNOLOGIES (McGraw-Hill 1998)
`(selected pages)
`1017 Harry Newton, Newton’s Telecom Dictionary, 16th Ed. (2000)
`(selected pages)
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`Petitioner’s Reply, IPR2016-01009
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`1018 Valerie Illingworth and John Daintith, THE FACTS ON FILE
`DICTIONARY OF COMPUTER SCIENCE (Market House Books 2001)
`(selected pages)
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`1019 Thomas Starr, John M. Cioffi, Peter J. Silverman, Understanding
`Digital Subscriber Line Technology, (Prentice Hall 1999) (selected
`pages)
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`1020 Andrew S. Tanenbaum, COMPUTER NETWORKS (Prentice Hall 1996)
`(selected pages)
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`1021 B. P. Lathi, Modern Digital and Analog Communication Systems
`(Oxford University Press 1998) (selected pages)
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`1022 Behzad Razavi, RF MICROELECTRONICS (Prentice Hall 1997) (selected
`pages)
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`1023 Declaration of David Bader
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`1100 Second Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68
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`1101 George Abe, RESIDENTIAL BROADBAND (Cisco Press, Second Edition
`2000) (selected pages)
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`1102 Martin Rowe, ADSL Testing Moves Out of the Lab (April 1, 1999)
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`1103 Declaration of Robert Short
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`1104 U.S. 6,625,219
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`1105 U.S. 7,292,627
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`1106 Douglas Chrissan, Uni-DSL: One DSL for Universal Service, White
`Paper (June 2004)
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`1107 U.S. 6,374,288
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`1108 Ata Elahi, Network Communications Technology (Delmar Thomson
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`Learning 2001) (selected pages)
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`1109 FCC Filing for Alcatel Model 1000 ADSL Modem, 1999
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`1110 Deposition Transcript of Douglas Chrissan
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`1111 Second Declaration of David Bader
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`I.
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`Introduction
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`Petitioner’s Reply, IPR2016-01009
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`TQ Delta attempts to distinguish claims 19-12, 15-18, and 21 (the
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`“Challenged Claims”) from the prior art on four bases: (1) that Milbrandt does not
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`teach “power level per subchannel information;” (2) that Milbrandt and ANSI
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`T1.413 do not render obvious “power level per subchannel information [] based on
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`a Reverb signal;” (3) that Milbrandt and ANSI T1.413 do not render obvious
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`“signal to noise ratio per subchannel during Showtime information;” and (4) that
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`Milbrandt and Chang do not render obvious “idle channel noise.” Each of these
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`arguments is incorrect. TQ Delta’s attempt to distinguish the prior art incorrectly
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`relies on a narrow interpretation of “subchannel,” mischaracterizes Milbrandt’s
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`disclosure of a “sub-frequency,” analyzes Milbrandt and ANSI T1.413 separately,
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`and distorts the motivations for combining the references articulated in the
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`Petition. For at least these reasons, TQ Delta’s arguments fail to refute the
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`obviousness of the Challenged Claims.
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`II.
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`Claim Construction
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`A.
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`“subchannel”
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`TQ Delta argues that “subchannel” should be construed as a “carrier of a
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`multicarrier communication channel.” Resp., 10. TQ Delta’s interpretation should
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`not be adopted since it is not the broadest reasonable interpretation. Ex-1100, ¶5.
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`TQ Delta’s proposed interpretation it is limited to a “carrier” and ignores portions
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`of the ‘412 patent that uses the term “tone” interchangeably with “subchannel.”
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`Ex-1001, 4:35-39; Ex-1100, ¶¶6-8. TQ Delta also ignores that both of its own
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`experts testified that a person of ordinary skill in the art (“POSITA”) would have
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`understood the terms “subchannel,” “channel,” “carrier,” “subcarrier,” “band,”
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`“subband,” “tone,” to be equivalent and interchangeable. Ex-1100, ¶8; Ex-1110,
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`43:13-49:15, 53:20-54:1; Ex-1103, ¶ 36.
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`Dr. Kiaei agreed that these terms are equivalent and interchangeable. Ex-
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`1100, ¶¶6-8; see also, Ex-1101, 69; Ex-1102, 3; Ex-1104, 1:41; Ex-1105, 1:36; Ex-
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`1106, 13; Ex-1014, 46.1 Dr. Kiaei also testified that the term “‘sub-frequency,’ in
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`the ADSL context, would also be understood to be equivalent and interchangeable
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`with the term ‘subchannel.’” Ex-1100, ¶¶8-9;Ex-1107, 1:29-33 (“sub-frequency”
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`“channel”); Ex-1108, p. 108-109, (“subchannels” “subfrequency” “channel”); Ex-
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`1011, 11:2-4. (“sub-frequency” “channel.”).
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`TQ Delta’s proposed interpretation should also not be adopted because it is
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`circular and confusing. The proposed interpretation refers to both a “carrier” and a
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`“channel,” but even TQ Delta’s expert, Dr. Chrissan, “equate[s], channel [and]
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`carrier.” Ex-1110, 53:20-54:1; Ex-1100, ¶10.
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`Therefore, a POSITA would have understood that the term “subchannel”
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`1 Petitioner’s evidence introduced in this Reply is responsive to arguments raised
`by TQ Delta and therefore proper. 37 C.F.R. § 42.23(b); Genzyme Therapeutic
`Prods. Ltd. v. BioMarin Pharm. Inc., 825 F.3d 1360 (Fed. Cir. 2016).
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`Petitioner’s Reply, IPR2016-01009
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`includes a tone, carrier, subcarrier, band, sub-band, sub-frequency, or channel, of a
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`multicarrier frequency spectrum. Ex-1100, ¶11. In this context, a “subchannel”
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`would be understood to be “a portion of a frequency spectrum used for
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`communication.” Id.
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`B.
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`“during Showtime”
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`The Petition construed “during Showtime” because—as TQ Delta’s Dr.
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`Chrissan conceded—it is a term of art specific to DSL technology. Ex-1110,
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`79:21-24. Dr. Chrissan supplements Cisco’s construction and testifies that “during
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`Showtime” is also applicable to “ITU-T G.992.1 and G.992.2 DSL” and the
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`“ADSL2 and VDSL2” communication standards. Ex-2001, ¶31; Ex-1110, 80:2.
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`Therefore, to the extent that revision is necessary, the term of art “during
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`Showtime” should be construed as “during normal communications of a device
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`compliant with the ANSI T1.413, ITU-T G.992.1, G.992.2, ADSL2, or VDSL2
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`communication standards.” Ex-1100, ¶12.
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`III. The Independent Claims Are Obvious
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`TQ Delta does not dispute that a majority of the claim limitations of the
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`independent claims were well known before the effective date of the ‘412 patent
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`and are taught by the prior art. Resp., 11-13; Ex-1110, 39:7-11; 56:12-14; 57:1-5;
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`67:8-13; 70:3-9; 73:6-22; and 135:9-136:9. The remaining disputes as to the
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`independent claims are addressed below.
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`Petitioner’s Reply, IPR2016-01009
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`A. Milbrandt teaches “power level per subchannel information”–
`independent claims 9, 11, and 21
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`TQ Delta argues that “power level per subchannel information” is not
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`taught because: (1) Milbrandt “does not use the term ‘sub-frequency’ to refer to a
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`multicarrier ‘subchannel,’” and (2) Milbrandt’s “‘power spectrum density’ per sub-
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`frequency [is] very different from the claimed ‘power level per subchannel.’”
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`Resp., 14-18. The arguments are based on a mischaracterization of Milbrandt. Ex-
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`1100, ¶13.
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`1. Milbrandt’s “sub-frequency” teaches a “subchannel”
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`The Board already considered and correctly rejected TQ Delta’s argument
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`that Milbrandt’s “sub-frequency” is not a “subchannel,” in the Decision on
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`Institution. Paper 8, 18-19. Nevertheless, TQ Delta continues to mischaracterize
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`Milbrandt as “refer[ing] to dividing the ADSL spectrum into ‘sub-frequencies’ for
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`downstream and upstream transmission (i.e., large bands of frequencies).” Resp.,
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`17. That is, TQ Delta incorrectly asserts that a “sub-frequency” in Milbrandt refers
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`to the whole upstream or downstream frequency spectrum. Ex-1100, ¶¶13, 21.
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`There is no is no dispute that Milbrandt describes “subchannels,” which
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`Milbrandt refers to as “channels.” Ex-1011, 10:15-65. And Milbrandt equates
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`these “channels” (which are “subchannels”) with “sub-frequencies.” Ex-1011,
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`11:2-6; Ex-1100, ¶14.
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`Petitioner’s Reply, IPR2016-01009
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`a. Milbrandt’s “channel” is a “subchannel”
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`Milbrandt’s ADSL modem uses DMT to divide the subscriber line into
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`many individual “channels” and uses QAM “to transmit data in each channel
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`simultaneously.” Ex-1011, 10:58-65. As Dr. Kiaei explains, “because Milbrandt
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`uses discrete multitone technology to divide the ADSL frequency spectrum into
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`channels, a POSITA would have understood that there would be, for example, 256
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`tones/channels.” Ex-1100, ¶15; Ex-1013, 2:66-3:5.
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`Furthermore, “a POSITA would understand that Milbrandt is describing how
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`its ADSL modem performs QAM modulation on each of the individual 256
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`tones/channels to transmit the data simultaneously as a single signal. In ADSL,
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`QAM does not operate on the upstream or downstream frequency spectrum as a
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`whole—it operates at the tone/channel level.” Ex-1100, ¶¶15-17.
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`Dr. Chrissan agrees with this understanding, testifying that he
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`“personally…equate[s] channel [and] subchannel” and conceding that, in
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`Milbrandt’s ANSI T1.413 standard compliant device, "the QAM modulation is
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`performed on each individual subchannel.” Ex-1110, 53:20-54:1, 62:2-3, 65:6-
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`12; Resp., 30 n.1 (TQ Delta agreeing that Milbrandt “complie[s] with the ANSI
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`T1.413 standard.”)
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`Accordingly, it is undisputed that Milbrandt’s “channel” discloses a
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`“subchannel,” as construed by TQ Delta. Ex-1100, ¶18.
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`Petitioner’s Reply, IPR2016-01009
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`b. Milbrandt’s “channel” (which is a “subchannel”) is a
`“sub-frequency”
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`Milbrandt explains that the frequency range from 25 kHz to 1.1 MHz is
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`divided into sub-frequencies and that “[e]ach sub-frequency is an independent
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`channel.” Ex-1011, 11:2-10. As Dr. Kiaei testifies, “here Milbrandt equates the
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`earlier discussed ‘channel’ of ADSL modem (which is a ‘subchannel’) with a ‘sub-
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`frequency’ and that each independent sub-frequency/channel is a discrete non-
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`overlapping portion of a multicarrier frequency spectrum from 25 kHz to 1.1
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`MHz.” Ex-1100, ¶19. Therefore, Milbrandt’s “sub-frequency” is a “subchannel.”
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`Id.
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`This understanding is further confirmed by Milbrandt’s statement that “the
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`sub-channels are divided into groups and one group of channels is allocated for
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`the uplink transmission of data and the other for the downlink transmission of
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`data.” Ex-1011, 11:2-10. Since “Milbrandt provides a ‘group of channels’ for
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`uplink and another ‘group of channels’ for downlink transmission…Milbrandt’s
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`sub-frequency/channel is not the whole upstream and downstream frequency
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`spectrum.” Ex-1100, ¶¶20-21.
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`Dr. Kiaei illustrates Milbrandt’s ADSL frequency spectrum using the below
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`figure, which demonstrates that the terms “channel,” “sub-channel,” and “sub-
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`frequency” are used interchangeably.
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`Petitioner’s Reply, IPR2016-01009
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`“DMT technology to divide the bandwidth...into many individual
`… channels.” Ex-1011, 10:58-63
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`“subchannels are divided into groups
`“subchannels are divided into
`and...other [group of channels is
`groups and one group of channels is
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`allocated] for the downlink.” Ex-1011,
`allocated for the uplink” Ex-1011,
`11:6-10
`11:6-10
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`
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`“frequency range from 25 kHz to 1.1 MHz...divided into sub-frequencies.
`Each sub-frequency is an independent channel.” Ex-1011, 11:2-5
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`
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`Ex-1100, ¶¶22-24. As shown above, the terms sub-frequency/channel describe a
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`discrete non-overlapping portion (e.g., one of 256 carriers) of the frequency
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`spectrum from 25 kHz to 1.1 MHz that uses DMT/QAM modulation for
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`communication. Id.
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`Therefore—even under TQ Delta’s narrow construction—Milbrandt’s “sub-
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`frequency” does disclose a “subchannel.” Ex-1100, ¶24.
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`c.
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`V.90 protocol is an alternative to ADSL protocol
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`TQ Delta further argues that Milbrandt’s disclosure of a “sub-frequency” is
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`Petitioner’s Reply, IPR2016-01009
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`not a “subchannel” because, allegedly, Milbrandt also uses the term “sub-
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`frequency” to describe the “voice frequency spectrum using the V.90…protocol.”
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`Resp., 17. This argument misses the point since “the V.90 protocol is an
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`alternative to the ADSL protocol.” Ex-1100, ¶25; Ex-1110, 142:2-11; Ex-1011,
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`11:58-64. Therefore, Milbrandt’s use of the term “sub-frequency” in theV.90
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`protocol context has no bearing on the use of that term in the context of the ADSL
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`protocol. Ex-1100, ¶25.
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`d. Milbrandt’s Figure 3 example is not limiting
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`TQ Delta also incorrectly argues that Milbrandt’s “sub-frequency” is not the
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`same as a “subchannel,” because Milbrandt’s Figure 3 illustrates six columns of
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`“sub-frequencies” instead of hundreds. Resp., 17. Milbrandt plainly states that
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`“FIG. 3 illustrates one example,” that there are “many individual...channels,” and
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`that “[e]ach sub-frequency is an independent channel,” without specifying an upper
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`limit. Ex-1011, 3:51-52, 10:58-11: 4; Ex-1100, ¶26. Moreover, Dr. Chrissan
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`testified that a POSITA “would not interpret this to mean exactly six columns” and
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`provides no reason to deviate from that understanding. Ex-2001, ¶44. Dr. Kiaei
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`concurred on this point. Ex-1100, ¶¶26-27.
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`2. Milbrandt’s PSD per sub-frequency teaches “power level per
`subchannel”
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`Petitioner’s Reply, IPR2016-01009
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`TQ Delta’s second point—that Milbrandt’s power spectrum density (PSD)2
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`per sub-frequency is different from “power level per subchannel”—continues with
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`the mischaracterization of the first point; namely, TQ Delta argues that Milbrandt’s
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`PSD per sub-frequency represents the “power level over a wide swath of
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`subchannels.” Resp., 15, 18-19; Ex-1100, ¶28.
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`As explained, Milbrandt’s “sub-frequency” is a “subchannel,” even under
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`TQ Delta’s narrow construction. Section III.A.1, supra. And the Petition
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`explained that Milbrandt’s PSD per sub-frequency is representative of how much
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`the power the signal carries in that sub-frequency/subchannel. Pet., 34; Ex-1009,
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`pp.59, 65, 113. Power and PSD are related as each other’s integral/derivative.
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`Specifically, the power in Milbrandt’s sub-frequency is represented by the integral
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`of PSD across that sub-frequency, per the following equation:
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`
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`where:
`Power Level between ω1 and ω2 is ΔPg;
`PSD is Sg;
`ω1 is the lower frequency bound; and
`ω2 is upper frequency bound.
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`Ex-1100, ¶29; Ex-1021, 126-127. Dr. Chrissan conceded that if PSD is integrated
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`2 TQ Delta does not dispute that “power spectral density” represents “power level,”
`per se.
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`Petitioner’s Reply, IPR2016-01009
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`“you would have a measure of power.” Ex-1110, 104:2-15. Accordingly,
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`Milbrandt’s PSD per sub-frequency is representative of the power level per
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`subchannel. Ex-1100, ¶¶30-31.
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`B. Milbrandt in combination with ANSI T1.413 teaches “an array
`representing Signal to Noise Ratio per subchannel during Showtime
`information”—independent claim 15
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`TQ Delta’s expert conceded that measuring “Signal to Noise Ratio per
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`subchannel during Showtime information,” was not a novel aspect of the ‘412
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`patent. Ex-1110, 121:3-125:14-16. Notwithstanding the lack of novelty, TQ Delta
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`presents four arguments regarding this limitation. 1100, ¶¶41-42.
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`1. Milbrandt in combination with ANSI T1.413 teaches signal noise
`ratio (SNR) per “subchannel”
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`TQ Delta incorrectly argues that the references do not “teach measuring any
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`noise or signal to noise ratio parameters on a ‘per subchannel’ basis, as opposed to
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`for an entire communication channel.” Resp., 25-26; Ex-1100, ¶43.
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`As discussed above, Milbrandt’s “sub-frequency” discloses a “subchannel,”
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`even under TQ Delta’s narrow construction. Section III.A.1, supra. And the
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`Petition explained that Milbrandt measures noise information on a per sub-
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`frequency basis. Pet., 44-45.
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`Further, the Petition relied on ANSI T1.413’s “signal-to-noise ratio (SNR)
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`margin test parameters” and also on “SNR, as measured” to show SNR per
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`subchannel. Pet., 45-46. During deposition, Dr. Chrissan conceded that ANSI
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`Petitioner’s Reply, IPR2016-01009
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`T1.413 measures “SNR for each tone” and that a “tone [is] the same as [a]
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`subchannel.” Ex-1110, 88:5-7, 125:23-126:12, 127:13-15. Therefore, ANSI
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`T1.413 also teaches measuring SNR per “subchannel.” Ex-1100, ¶¶45-46.
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`2. Milbrandt in combination with ANSI T1.413 teaches “during
`Showtime”
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`TQ Delta also erroneously argues that that the references fail to teach
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`“during Showtime.” Resp., 25; Ex-1100, ¶47.
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`Cisco cited to Milbrandt at 12:58-63 to show this limitation. Pet., 44; Ex-
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`1011, 12:58-63. TQ Delta ignores these cited portions and identifies other portions
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`to assert that Milbrandt does not teach “during Showtime.” Resp., 25-26. The
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`Board already rejected this argument, explaining that “Patent Owner does not
`
`address this argument presented by Petitioner, but rather highlights a different
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`disclosure of Milbrandt unrelated to Petitioner’s argument.” Paper 8, 25. TQ
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`Delta presents no evidence to alter the Board’s earlier determination. See Resp.,
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`26-28 (Section IV.C.2, only citing to Dr. Chrissan’s declaration, Ex-2001, ¶31, for
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`the construction of “Showtime.”) As Dr. Kiaei explains, “Milbrandt measures noise
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`information during and after initialization; that is, also ‘during Showtime.’” Ex-
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`1100, ¶47.
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`TQ Delta also argues that “Petitioner alleges that ANSI T1.413 discloses
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`measuring ‘signal to noise ratio’ (but not necessarily during Showtime).” Resp.,
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`27. This is wrong. The Petition relied on ANSI T1.413’s teaching of both “SNR[]
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`Petitioner’s Reply, IPR2016-01009
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`margin test parameters” and “SNR, as measured.” Pet., 44. As explained, “ANSI
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`T1.413 discloses making ‘signal-to-noise ratio (SNR) margin test parameters’
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`available ‘at any other time following the execution of initialization and training
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`sequence of the ADSL system.’” Pet., 44; Ex-1014, 82. This disclosure in ANSI
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`T1.413 renders obvious measuring SNR margin test parameters “during
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`Showtime.” Ex-1100, ¶49.
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`Cisco also explained that “ANSI T1.413 [discloses that] ‘SNR, as measured
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`by the receivers at...the ATU-R shall be externally accessible from the ATU-C’”
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`Pet., 45-46; Ex-1014, 82. As Dr. Kiaei explains, “[m]odem initialization and
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`training does not require making externally accessible measured SNR at the central
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`office modem.” Ex-1100, ¶51; Ex-1014, 82. Further, that SNR is measured
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`“during Showtime” is made clear by ANSI T1.413, which describes unused “sub-
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`carriers where no data are currently to be transmitted, but the receiver may allocate
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`bits later (e.g., as a result of SNR improvement.)” Ex-1014, 108, 111. Dr. Kiaei
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`explains “that SNR per tone is being measured ‘during Showtime,’ to identify SNR
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`improvement and then allocate bits to previously unused sub-carriers.” Ex-1100,
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`¶50; see also Ex-1014, 106 (“SNR for each tone”); id., 109-110.
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`Thus, ANSI T1.413’s measurement of SNR per tone is also “during
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`Showtime.” Ex-1100, ¶52.
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`3.
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`ANSI T1.413’s “SNR” discloses “Signal to Noise
`Ratio…information”
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`TQ Delta additionally argues that Cisco does not identify any reference that
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`teaches measuring SNR. Resp., 28. This is incorrect since Dr. Chrissan conceded
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`that ANSI T1.413 measures “SNR for each tone,” which is a “subchannel.” Ex-
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`1110, 88:5-7, 125:23-127:15.
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`Further, TQ Delta’s argument is based on the incorrect premise that ANSI
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`T1.413 uses the terms “SNR margin” and “SNR” interchangeably. Resp., 28-29;
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`Ex-2001, ¶64; Ex-1100, ¶53. Dr. Kiaei explains that the terms “SNR Margin” and
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`measured “SNR,” are distinct concepts, and that “a POSITA would have
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`understood that ANSI T1.413 at page 82… neither uses these terms
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`interchangeably nor does it abbreviate ‘SNR margin’ as simply ‘SNR.’” Ex-1100,
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`¶¶54-56. TQ Delta’s expert, Dr. Chrissan agreed. Ex-1110, 111:11-14, 112:2-4.
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`Therefore, since TQ Delta only argues about “SNR Margin” (discussed further
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`below), it is undisputed that ANSI T1.413’s measured “SNR,” teaches “Signal to
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`Noise Ratio…information.” Ex-1100, ¶57.
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`4.
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`ANSI T1.413’s “SNR margin test parameters” discloses “Signal to
`Noise Ratio…information”
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`Further, TQ Delta’s argument that a POSITA “would not...say that an array
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`containing SNR margin values is an array representing SNR itself,” is wrong.
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`Resp., 27. As Dr. Kiaei explains, “in ANSI T1.413, SNR margin test parameters
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`are back off from the maximum SNR in each subchannel.” Ex-1100, ¶58. “SNR
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`margin is determined by measuring SNR per subchannel and subtracting from that
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`measured SNR an SNR required value that is function of the number of bits
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`allocated for that subchannel.” Id., ¶54. Based on this understanding, Dr. Kiaei
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`concludes that “an array of SNR margin test parameters would in fact represent
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`SNR per subchannel.” Id., ¶58. Thus, ANSI T1.413’s “SNR margin test
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`parameters” also discloses the “Signal to Noise Ratio …information.” Id.
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`5.
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`There are numerous and distinct reasons to combine the teachings
`of Milbrandt and ANSI T1.413 to measure and transmit SNR
`during Showtime
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`TQ Delta incorrectly argues that there is no valid rationale to combine
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`Milbrandt and ANSI T1.413, because, Milbrandt alone can already facilitate
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`system testing, and improve signal quality and reliability using the SNR calculated
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`“at the central office modem.” Resp., 29-31; Ex-1100, ¶59.
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`By measuring SNR at the subscriber’s modem and then transmitting SNR to
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`the central office modem, both modems can take action. The Petition explained
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`that it would have been obvious “to have Milbrandt’s subscriber modem to
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`determine and transmit to the central office modem its SNR on demand (as ANSI
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`T1.413 teaches), because [1] it would facilitate system testing, [2] improve signal
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`quality [3] and reliability, and [4] allow for Milbrandt’s system to comply with the
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`ANSI T1.413 standard.” Pet., 26; Ex-1100, ¶60.
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`As ANSI T1.413 teaches, the subscriber modem can use the measured SNR
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`for bit swapping to allocate bits on sub-carriers. Pet., 45; Ex-1014, 108; Ex-1110,
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`117:12-119:55 (Dr. Chrissan conceding this point). According to Dr. Kiaei, “by
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`allocating more bits on sub-carriers when SNR improves, throughput is maximized
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`and the perceived signal quality improves and by allocating less bits on sub-
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`carriers when SNR degrades, reliability is maximized since potential error rates are
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`reduced.” Ex-1100, ¶61; see also Ex-1014, 87; Ex-1110, 114:12-20. Therefore,
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`measuring SNR at the subscriber modem provides distinct benefits to Milbrandt.
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`Ex-1100, ¶¶62-64.
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`Further, as the Petition explained, Milbrandt already teaches that “modem 42
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`may communicate the measured noise information to…central office,” so that it
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`can calculate SNR. Pet., 44-45. As such, once Milbrandt’s subscriber modem
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`determines SNR, as ANSI T1.413 teaches, it would have been obvious to transmit
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`the SNR as an array, as ANSI T1.413 teaches, to the central office modem. Pet.,
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`46-47; Ex-1100, ¶65; Resp., 26. TQ Delta’s argument that there is no motivation
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`to transmit SNR improperly argues the references separately, when the Petition
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`relied on the combined teaching. Pet., 46-47.
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`Moreover, ANSI T1.413 teaches transmitting since the subscriber modem’s
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`SNR is made accessible externally by the central office modem. Pet., 46, 26; Ex-
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`1014, 82. As Dr. Kiaei, explains, this “facilitates system testing since it allows for
`
`a technician, using external equipment, to perform on demand SNR analysis to
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`identify and fix a system issue that affects multiple lines within a specific binder
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`group.” Ex-1100, ¶¶66-67. Milbrandt alone cannot achieve this benefit since it
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`does not describe making the subscriber modem SNR available on demand to
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`external equipment. Id.
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`TQ Delta further argues that “the ANSI T1.413 standard could not have
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`required the ability to transmit SNR in order to achieve compliance.” Resp., 20,
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`fn1. On the contrary, ANSI T1.413 states that “SNR, as measured [at]...the ATU-
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`R shall be externally accessible from the ATU-C.” Pet., 46; Ex-1014, 82. “[T]his
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`is an imperative requirement of making the measured SNR per tone available to the
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`ATU-C on demand during Showtime.” Ex-1100, ¶68. Therefore, a POSITA
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`would be motivated to comply with the standard and transmit the measured SNR.
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`Id.; Pet., 46; Ex-1011, 9:31-34.
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`C. Milbrandt in combination with Chang renders obvious “idle
`channel noise information”—independent claims 16-18
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`TQ Delta does not dispute that Chang teaches “idle channel noise
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`information.”3 Nevertheless, TQ Delta makes four meritless arguments regarding
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`the combinability of Milbrandt and Chang.
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`1. Milbrandt does not “teach away” from Chang
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`TQ Delta incorrectly argues that Milbrandt teaches away from Chang’s
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`“circuitry” and a “truck roll.” Resp., 33-39; Ex-1100, ¶¶69-70.
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`3 The construction of “idle channel noise information” is not in dispute. See Ex.
`2001, ¶30.
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`The Board already rejected this argument. Paper 8 at 29.The Board was
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`correct since the Petition explained that the “combination [] does not require,
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`physical incorporation.” Pet., 23; Ex-1009, ¶102. The Petition further
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`emphasized that it was “combin[ing] the teachings of Chang with those of
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`Milbrandt.” Pet., 20-22; Ex-1009, p.38; Ex-1100, ¶¶71-75. Cisco’s position is
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`supported by applicable law. See, In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985).
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`TQ Delta’s argument also fails because incorporating Chang’s “circuitry” in
`
`Milbrandt does not require a “truck roll.” That is, once Chang’s “circuitry” is
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`included in Milbrandt’s modem, it will measure noise irrespective of whether there
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`is a truck parked outside the subscriber’s premises. Ex-1100, ¶¶76-77.
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`Further, although Milbrandt prefers to not send a technician to a remote site
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`(2:14-16), Milbrandt’s embodiments include a truck roll. Ex-1011, 10:12-15. As
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`Dr. Kiaei explains, “using a truck roll falls squarely within the bounds of
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`Milbrandt’s invention.” Ex-1100, ¶78. Thus, Milbrandt’s disclosure does not
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`qualify as a “teaching away.” In re Gurley, 27 F.3d 551, 552-53 (Fed. Cir. 1994).
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`Importantly, Milbrandt does not discredit, discourage, or criticize measuring
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`idle channel/background noise—the actual teaching relied upon in the
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`combination. Ex-1100, ¶¶79-80.
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`2.
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`A POSITA would have had a reasonable expectation of success in
`combining the teachings of Chang with Milbrandt
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`TQ Delta also incorrectly argues that there is no reasonable expectation of
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`success even if “Chang’s overall concept” was applied because, allegedly, there is
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`no evidence that a POSITA would have known how to “measure background noise
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`[in] Milbrandt without a technician visit and truckroll.” Resp., 40-42.
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`The Petition explained that the combination would “yield predictable
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`results.” Pet., 20-22; Ex-1009, ¶102. Cisco’s Petition also explained that a
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`POSITA would have been motivated to combine the references for several reasons
`
`that would improve Milbrandt. Pet., 20-22. These passages reflect Cisco’s
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`position that a POSITA would have had a reasonable expectation of successfully
`
`combining Chang and Milbrandt.
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`Indeed, both experts agree that a POSITA would have known how to
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`measure idle channel/background noise in an ADSL system, without a “truck roll.”
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`Dr. Chrissan conceded that (1) “the embodiments of the [patent at issue] do not
`
`require a truckroll” and (2) that “meas