`
` 
`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. IPR2016-01009
`Patent No. 8,238,412
`_____________
`
`
`PATENT OWNER’S PRELIMINARY RESPONSE
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`
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`TABLE OF CONTENTS
`
`INTRODUCTION ........................................................................................... 1
`
`SUMMARY OF THE ’412 PATENT ........................................................... 10
`
` 
`
`I.
`
`II.
`
`III. CLAIM CONSTRUCTION .......................................................................... 11
`
`IV. NO REVIEW SHOULD BE INSTITUTED WITH RESPECT TO THE
`SINGLE GROUND RAISED BY PETITIONER—ALLEGED
`OVIOUSNESS UNDER 35 U.S.C. §103 BY MILBRANDT IN VIEW OF
`CHANG, HWANG AND ANSI T1.413 ....................................................... 12
`
`A. Petitioner Have Not Established a Reasonable Likelihood That
`Claims 9, 11, or 21 Would Have Been Obvious .................................... 14
`
`1. The Combination of Milbrandt, Hwang, and ANSI T1.413
`Would Still Fail to Disclose a Test Message Comprising “An
`Array Representing Power Level Per Subchannel
`Information” ...................................................................................... 14
`
`2. Petitioner Has Not Shown That a Test Message Comprising
`“An Array Representing Power Level Per Subchannel
`Information” Would Have Been Obvious From Milbrandt,
`Hwang, and ANSI T1.413 ................................................................ 17
`
`3. The Combination of Milbrandt, Hwang, and ANSI T1.413
`Would Still Fail to Disclose a Test Message “Wherein Bits in
`the Message Are Modulated Onto DMT Symbols Using
`Quadrature Amplitude Modulation (QAM) With More Than 1
`bit Per Sub Channel” ........................................................................ 19
`
`4. Petitioner Has Not Shown That a Test Message “Wherein Bits
`in the Message Are Modulated Onto DMT Symbols Using
`Quadrature Amplitude Modulation (QAM) With More Than 1
`bit Per Sub Channel” Would Have Been Obvious From
`Milbrandt, Hwang, and ANSI T1.413 .............................................. 22
`
`B. Petitioner Has Not Established a Reasonable Likelihood That
`Claims 10 or 12 Would Have Been Obvious ......................................... 26
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`Patent Owner’s Preliminary Response
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`1. The Combination of Milbrandt, Hwang, and ANSI T1.413
`Fails to Satisfy the Claims for the Same Reasons As
`Independent Claims 9 and 11 ........................................................... 26
`
`2. The Combination of Milbrandt, Chang, Hwang, and ANSI
`T1.413 Would Also Still Fail to Disclose a Test Message
`Comprising “Power Level Per Subchannel Information . . .
`Based on a Reverb Signal” ............................................................... 26
`
`3. Petitioner Has Not Shown That a Test Message Comprising
`“Power Level Per Subchannel Information . . . Based on a
`Reverb Signal” Would Have Been Obvious From Milbrandt,
`Hwang, and ANSI T1.413 ................................................................ 29
`
`C. Petitioner Has Not Established a Reasonable Likelihood That
`Claim 15 Would Have Been Obvious.................................................... 33
`
`1. The Combination of Milbrandt, Chang, Hwang, and ANSI
`T1.413 Would Still Fail to Disclose a Test Message
`Comprising “An Array Representing Signal to Noise Ratio
`Per Subchannel During Showtime Information” .............................. 33
`
`2. Petitioner Has Not Shown That a Test Message Comprising
`“An Array Representing Signal to Noise Ratio Per Subchannel
`During Showtime Information” Would Have Been Obvious
`From Milbrandt, Hwang, and ANSI T1.413 .................................... 37
`
`3. The Combination of Milbrandt, Hwang, and ANSI T1.413
`Would Still Fail to Disclose or Render Obvious a Test
`Message “Wherein Bits in the Message Are Modulated Onto
`DMT Symbols Using Quadrature Amplitude Modulation
`(QAM) With More Than 1 Bit Per Subchannel” .............................. 41
`
`D. Petitioner Has Not Established a Reasonable Likelihood That
`Claims 16-18 Would Have Been Obvious ............................................. 43
`
`1. The Combination of Milbrandt, Chang, Hwang, and ANSI
`T1.413 Fails to Disclose All Limitations of Claims 16-18 .............. 43
`
`2. Petitioner Does Not Provide Sufficient Articulated Reasons to
`Combine The Asserted References ................................................... 47
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`Patent Owner’s Preliminary Response
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`a) Because Milbrandt Already Discloses How To Determine
`Noise and When to Adjust Power/Gain, Combining
`Chang’s Teachings Would Have Been Redundant and
`Unneeded ..................................................................................... 48
`
`b) Chang’s Method of Measuring Background Noise With
`Additional Equipment and a Service Technician Visit Is
`Specifically Taught Away From by Milbrandt and Would
`Change the Fundamental Principle of Operation of
`Milbrandt ..................................................................................... 50
`
`c) There is No Evidence of a Reasonable Expectation of
`Success In Incorporating Chang’s Overall Concept of
`Measuring Background Noise Into Milbrandt, Without
`Using Chang’s Additional Equipment and Service
`Technician Visit ........................................................................... 50
`
`d) Petitioner Provides Only Circular and Illogical Reasons
`For Combining Hwang with Milbrandt/Chang ........................... 57
`
`V.
`
`CONCLUSION .............................................................................................. 60
`
`CERTIFICATE OF WORD COUNT ...................................................................... 61
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`Patent Owner’s Preliminary Response
`IPR2016-01009
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` 
`I.
`
`INTRODUCTION
`
`Patent Owner TQ Delta, LLC (“Patent Owner”) submits this preliminary
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`response to the Petition filed by Cisco, Inc. (“Cisco” or “Petitioner”) requesting
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`inter partes review of claims 9-12, 15-18, and 21 of U.S. Pat. No. 8,238,412 (“the
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`’412 patent”).
`
`This is the third IPR Petition filed against the ’412 patent (and the second
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`petition against the ’412 patent filed by Petitioner Cisco1). The first petition, filed
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`in IPR2016-00430 by Arris Group, Inc. (a party similarly situated with Cisco as a
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`supplier of products accused of infringement in the related litigation identified in
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`the Petition), was recently denied institution by the Board. (See IPR2016-00430 at
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`Paper 9, Decision Denying Institution.) In that decision, the Board found that
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`Arris had (1) failed to show that the asserted prior art disclosed all limitations of
`
`the claims of the ’412 patent (including the same claims challenged here), and/or
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`(2) failed to provide sufficient rationale to support obviousness. (See id.)
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`Now, Cisco is attempting another bite at the apple of attacking the ’412
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`patent, but using different prior art references than those asserted by Arris. This
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`Petition, however, is deficient for similar reasons. Here, Petitioner Cisco raises a
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`                                                            
`1 Cisco also filed a petition in IPR2016-001008, challenging claims 1-8, 13-14, and
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`19 of the ’412 patent. 
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`1
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`single Ground of alleged unpatentability for obviousness—but one relying on a
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`combination of four new references. Each of the asserted prior art references,
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`however, differs significantly from the inventions claimed by the ’412 patent. At
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`least several claim limitations are missing from each of the asserted prior art
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`references—Petitioner’s claims that most of the limitations are purportedly found
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`in a primary reference (Milbrandt) are facially incorrect. Petitioner, moreover,
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`unsuccessfully attempts to cobble together various discrete features from the
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`multiple different prior art references based on circular or conclusory reasoning, or
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`reasoning based on additional incorrect facts.
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`At this stage, the Board should decline instituting trial on the single
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`proposed obviousness Ground for any of several reasons.
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`Claims 9-12, 21: First, Petitioner’s asserted obviousness combination still
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`fails to disclose several limitations of claims 9-12 and 21 of the ‘412 patent. None
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`of the references discloses at least (a) “[transmitting/receiving] a message, wherein
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`the message comprises one or more data variables that represent the test
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`information . . . wherein at least one data variable of the one or more data
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`variables comprises an array representing power
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`level per subchannel
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`information” or (b) “wherein bits in the message were modulated onto DMT
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`symbols using Quadrature Amplitude Modulation (QAM) with more than 1 bit per
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`subchannel.” For these limitations, Petitioner either mischaracterizes features of
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`the prior art patents or makes unsupported assumptions.
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`For example, Petitioner
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`incorrectly asserts
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`that Milbrandt discloses
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`measuring “power level per subchannel information,” because Milbrandt’s “sub-
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`frequencies” were allegedly the same thing as the claimed “subchannels.” (See
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`infra at § IV.A.1.) But Petitioner offers nothing more than bald attorney argument
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`and the conclusory “say-so” of its expert in this regard (who merely repeats
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`verbatim the allegation in the Petition). In fact, Milbrandt expressly explains that
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`its “sub-frequencies” are each an “independent channel.” (See id.) Petitioner does
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`not cite to Hwang or ANSI T1.413 for this limitation of claims 9, 11, or 21. (See
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`id.) Nor does Petitioner allege that, if absent from Milbrandt, the ability to
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`transmit or receive “power level per subchannel information” would have been
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`obvious in view of Hwang or ANSI T1.413. (See id. at § IV.A.2.)
`
`Similarly, Petitioner points to disclosure in the references of transmitting or
`
`receiving primary Internet traffic using DMT/QAM. But Petitioner cites to
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`nothing in any of the references that expressly discloses transmitting or receiving a
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`test message in particular using DMT/QAM. At least Milbrandt discloses,
`
`however, that just because primary Internet traffic is transmitted using DMT does
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`not mean that a test message necessarily is or needs to be (i.e., Milbrandt discloses
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`transmitting test messages using the non-DMT V.90 protocol). (See infra at
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`§IV.A.3.) And each of Petitioner’s proposed obviousness reasons for transmitting
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`a test message via DMT are illogical and conclusory, or circular (e.g., illogically
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`alleging without evidentiary support that transmitting a test message via DMT
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`would increase system “efficiency” without explaining how or why, or circularly
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`alleging that it would have been obvious to transmit the test message via DMT so
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`that the test message is transmitted via DMT). (See id. at §IV.A.4.)
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`Claims 10, 12: Petitioner’s obviousness allegations regarding dependent
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`claims 10 and 12 first of all fail for the same reasons as independent claims 9 and
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`11. (See infra at §IV.A, B.1) But in addition, Milbrandt, Chang, Hwang, and
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`ANSI T1.413 also fail to render disclose or render obvious an additional limitation
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`required by each of these claims—transmitting a test message comprising “power
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`level per subchannel information . . . based on a Reverb signal.”
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`Petitioner acknowledges that Milbrandt does not satisfy this additional
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`limitation of claims 10 and 12—to the contrary, the power spectrum density and
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`attenuation information in Milbrandt that Petitioner relies on for claims 9 and 11 is
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`expressly calculated during operation and not based on a Reverb signal (and in any
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`event it is again not “power level per subchannel information”). (See infra at
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`IV.B.2.) Therefore, Petitioner turns to ANSI T1.413 for its disclosure of
`
`measuring power spectrum density information based on Reverb. But the power
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`spectrum density information in ANSI T1.413 is also not “power level per
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`subchannel information” under the ’412 patent—Petitioner does not even allege
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`that it is. (See id.) Nor does Petitioner cite to any disclosure in ANSI T1.413 that
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`the power spectrum density information is transmitted—to the contrary, ANSI
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`T1.413 discloses that power spectrum density is not transmitted as part of a test
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`message, but rather is merely calculated at a central office modem. (See id.)
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`In addition, however, Petitioner provides no rational, supported reason for
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`substituting Milbrandt’s non-Reverb power spectrum density information with that
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`disclosed in ANSI T1.413. (See §IV.B.3.) Each of Petitioner’s proffered reasons
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`for doing so is either factually wrong (e.g., that measuring power spectrum density
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`based on Reverb is necessary for Milbrandt to comply with ANSI T1.413), circular
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`(e.g.,
`
`that adding ANSI T1.413’s Reverb-based power spectrum density
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`information to Milbrandt would allow Milbrandt to transmit Reverb-based power
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`spectrum density information), or duplicative of Milbrandt’s already-existing
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`capabilities. (See id.)
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`Claim 15: Petitioner also fails to show that claim 15 would have been
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`obvious in view of Milbrandt, Chang, Hwang, and ANSI T1.413. Petitioner has
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`not shown that any of the references discloses transmitting/receiving a test message
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`comprising “an array representing Signal to Noise ratio per subchannel during
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`Showtime information.” Nor has Petitioner shown that the combination of
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`references would have rendered this limitation obvious.
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`For example, Petitioner points to disclosure in Milbrandt of measuring and
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`transmitting “noise” (not signal to noise ratio), and only on a per channel (not per
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`subchannel) basis. (See infra at § IV.D.1.) But Milbrandt discloses that its
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`“noise” information is measured and transmitted not “during Showtime,” but rather
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`during “modem training.” (See id.) And Milbrandt discloses that, rather than
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`being transmitted from a subscriber modem to a central office modem, “signal to
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`noise ratio” is instead calculated at the central office by a system management
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`server. (See id.) Similarly, while Petitioner points to ANSI T1.413’s disclosure of
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`measuring signal to noise ratio margin, Petitioner has not shown that ANSI
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`T1.413’s signal-to-noise ratio margin is the same thing as signal-to-noise ratio, nor
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`that it is determined on a per subchannel, rather than per channel, basis. (See id.)
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`Further, Petitioner can provide no reason, supported by evidence and logical
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`underpinnings, for transmitting signal to noise during Showtime information in a
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`test message from a subscriber modem to a central office, as opposed to merely
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`determining it at the central office. (See infra at §IV.C.2.) The only reasons
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`Petitioner alleges for specifically providing this capability is to “facilitate system
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`testing, improve signal quality and reliability, and to allow for Milbrandt’s system
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`to comply with the ANSI T1.413 standard.” (See id.) But Petitioner provides no
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`support or explanation for why or how transmitting SNR in a test message would
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`“facilitate system testing” or “improve signal quality and reliability” any more than
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`determining SNR at the central office modem would—Petitioner provides only a
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`conclusory say-so in the regard that is no more sufficient than baldly alleging that
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`the combination would make Milbrandt “beter.” And doing so is also not required
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`for compliance with ANSI T1.413—because ANSI T1.413 does not disclose
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`transmitting signal to noise ratio per subchannel information, much less during
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`Showtime. (See id.) In fact, Milbrandt states that it already complies with ANSI
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`T1.413. (See id.)
`
`Claims 16, 17, 18: Finally, Petitioner also fails to show that claims 16, 17,
`
`and 18 would have been obvious in view of Milbrandt, Chang, Hwang, and ANSI
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`T1.413. None of the references discloses (a) transmitting/receiving as part of a test
`
`message “frequency domain received idle channel noise information” or (b)
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`transmitting/receiving “a message, wherein the message comprises one or more
`
`data variable that represent the test information, wherein bits in the message are
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`modulated onto DMT symbols using Quadrature Amplitude Modulation (QAM)
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`with more than 1 bit per subchannel,” as required by each of these claims. Nor
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`would the combination of references have rendered this limitation obvious.
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`For example, Petitioner points to disclosure in Chang of testing “background
`
`noise” and alleges that this satisfies the claimed “frequency domain received idle
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`channel noise information” limitation of the ’412 patent claims. But Petitioner’s
`
`own expert opinion does not support this assertion; rather Petitioner’s expert
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`merely alleges that “background noise” and “frequency domain received idle
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`channel noise information” are the “same concept”—not that they are in fact the
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`same thing. (See infra at §IV.D.1.) The Board in IPR2016-00428 found that an
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`expert’s very similar hedging language there defeated institution. (See id.)
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`Similarly, Petitioner points to disclosure in the references of transmitting or
`
`receiving primary Internet traffic using DMT/QAM, but overlooks that it has
`
`pointed to no disclosure in any of the references that expressly discloses
`
`transmitting or receiving a test message in particular using DMT. In fact,
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`Milbrandt discloses
`
`transmitting
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`the alleged
`
`test
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`information using a
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`communication protocol (the V.90 protocol) that does not use DMT. (See id.)
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`Further, the Petition also fails because it does not provide a sufficient reason
`
`for why it allegedly would have been obvious to combine concepts from the four
`
`different references to arrive at the invention of claims 16, 17, and 18. For
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`example, Petitioner claims that it would have been obvious to add Chang’s
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`teaching of measuring “background noise” to Milbrandt. But the only tangible
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`reasons that Petitioner points to for measuring background noise are to determine
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`when to adjust power or adjust gain on different lines—things already met by
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`Milbrandt’s method of determining signal to noise ratio. In other words, Chang’s
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`method would have been superfluous in Milbrandt. Moreover, Petitioner leaves
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`out that the only way disclosed in Chang for measuring background noise required
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`additional “test sets” and manual operation by a service technician on site—both
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`things that Milbrandt expressly teaches that it wanted to avoid. (See infra at
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`§IV.D.2.b.) And Petitioner never alleges that the overall concept of measuring
`
`“background noise” in Chang could have been incorporated into Milbrandt without
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`Chang’s service technician visit or additional equipment, much less provides
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`support for a “reasonable expectation of success” in doing so. (See id.)
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`Likewise, Petitioner alleges that Milbrandt already discloses the use of
`
`discrete multi-tone (DMT) technology and that it would have been obvious to add
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`to Milbrandt the concept of modulating onto DMT symbols using Quadrature
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`Amplitude Modulation (QAM) with more than 1 bit per subchannel, as disclosed in
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`Hwang. (See infra at §IV.D.1.) But again, Petitioner does not cite to any
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`disclosure in either Milbrandt nor Hwang (or the other two references) of sending a
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`test message in particular using DMT/QAM. (See id.) Rather, Petitioner cites to
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`disclosure that the primary communications channel for primary Internet traffic
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`uses DMT or DMT/QAM. (See id.) Milbrandt again expressly discloses that test
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`messages can be transmitted and received using the non-DMT V.90 protocol, even
`
`though DMT is used for other transmissions. (See id.) Petitioner provides no
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`supported reason (only conclusory and circular arguments) for using DMT instead
`
`of the V.90 protocol for transmitting a test message. (See id.)
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`Accordingly, Petitioner has not carried its burden of showing that any of
`
`claims 9-12, 15-18, or 21 are unpatentable. Petitioner has failed to show that any
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`combination of printed publication prior art references expressly or inherently
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`discloses every element of the claims. With respect to several claim elements,
`
`Petitioner relies on bare assumptions regarding teachings of the prior art, based on
`
`incorrect readings of the references. But the burden of proving unpatentability of
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`the challenged claims always rests with the Petitioner (see, e.g., Magnum Oil Tools
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`Int’l, Ltd., No. 2015-1300, 2016 U.S. App. LEXIS 13461 (Fed. Cir. July 25, 2016))
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`and, thus, it was incumbent upon Petitioner to articulate and factually support one
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`or more sufficient reasons to combine. Because Petitioner did not meet its burdens
`
`of proof, the Board should decline to institute inter partes review.
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`Should the Board institute review, however, Patent Owner reserves the right
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`to provide further technical evidence and expert testimony as to why Petitioner’s
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`proposed combinations do not make sense from a technological standpoint.
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`Among other things, Patent Owner reserves the right to further explain how the
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`cited references are incompatible or would be rendered inoperable or unsuitable for
`
`their intended purposes, why the prior art teaches away from the combinations, and
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`why a person of ordinary skill in the art would have reasons not to make the
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`combinations.
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`II.
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`SUMMARY OF THE ’412 PATENT
`
`The ’412 patent is one of a series of patents by the named inventors
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`covering inventions that are applicable to digital subscriber line (“DSL”) and other
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`communications technologies. DSL is a technology that provides high-speed
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`broadband access over the wires of a telephone network.
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`The inventors were and are substantial contributors of core technology to
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`DSL standards on behalf of TQ Delta and its predecessor in interest, Aware, Inc., a
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`world-leading innovator and provider of DSL technologies. Some of the core
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`technologies developed by Aware, including the inventions of the ’412 Patent,
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`have been adopted for use in other communications systems, such as Multimedia
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`over Coax (“MoCA”), which is used for high-speed communication of content
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`over coaxial cables within a home. Petitioner has used the inventions of the ’412
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`patent in its products.
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`III. CLAIM CONSTRUCTION
`
`Petitioner has proposed constructions for the following terms: “during
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`Showtime,” “array,” and “transceiver.” (See Pet. at pp. 13-15.) Notably,
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`however, in ruling on the prior petition challenging the ’412 patent, the Board did
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`not find it necessary to construe any of these claim terms. (See IPR2016-00430,
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`Paper 9 (Decision Denying Institution).)
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`Patent Owner respectfully submits that nothing in the present Petition
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`requires a different approach at this stage. That is because none of Petitioner’s
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`proposed constructions are necessary in deciding whether or not to institute trial.
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`See Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011)
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`(claim terms need only be construed “to the extent necessary to resolve the
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`controversy”). Rather, for the reasons discussed below, even under the claim
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`constructions proposed by Petitioner, the prior art does not render any claims of the
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`’412 patent obvious.
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`IV. NO REVIEW SHOULD BE INSTITUTED WITH RESPECT TO THE
`SINGLE GROUND RAISED BY PETITIONER—ALLEGED
`OVIOUSNESS UNDER 35 U.S.C. §103 BY MILBRANDT IN VIEW
`OF CHANG, HWANG AND ANSI T1.413
`
`As explained in detail below, the Petition should be denied because it fails
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`to establish a reasonable likelihood that the challenged claims are unpatentable.
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`The Petition proposes only one ground against the ’412 patent, asserting
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`obviousness in view of a combination of four different references:
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`
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`Ground 1. Unpatentability of claims 9-12, 15-18, and 21 under 35
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`U.S.C. § 103(a) over U.S. Patent No. 6,636,603 to Milbrandt (“Milbrandt”), in view
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`of U.S. Patent No. 6,891,803 to Chang et al. (“Chang”), U.S. Pat. No. 6,590,893 to
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`Hwang et al. (“Hwang”) and American Nat. Standards Inst. (ANSI) T1.413-1995
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`Standard, entitled “Network and Customer Installation Interfaces—Asymmetric
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`Digital Subscriber Line (ADSL) Metallic Interface” (“ANSI T1.413”).
`
`Initially, as discussed in more detail below, the cited references do not,
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`individually or collectively, disclose, teach, or suggest all of the elements of claims
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`9-12, 15-18 and 21. Where none of the references disclose an element of the
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`claims, inter partes review for obviousness cannot be instituted. See Customplay,
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`LLC v. Clearplay, Inc., IPR2013-00484, Paper 29 at p. 12 (P.T.A.B. Nov. 5, 2014)
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`(claims not unpatentable where none of the asserted prior art references disclosed a
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`claim element); Du Pont v. Monsanto Tech., LLC, IPR2014-00334, Paper 16 at p. 8
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`(P.T.A.B. July 11, 2014) (denying institution where none of the asserted prior art
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`disclosed a claim element).
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`Additionally, the Petition fails to provide a sufficient rationale or reason why
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`the separate references would have been combined to arrive at the claimed
`
`inventions. “An obviousness analysis requires more than simply showing that each
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`limitation is found in the prior art.” Jacobs Corp. v. Genesis III, Inc., IPR2014-
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`01267, Paper 12 at p. 8 (P.T.A.B. January 22, 2015). “Petitioner must also show
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`‘whether there was an apparent reason to combine the known elements in the
`
`fashion claimed by the patent at issue.’” Id. “Petitioner must set forth sufficient
`
`articulated reasoning with rational underpinning
`
`to support
`
`its proposed
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`obviousness ground.” SAS Institute, Inc. v. Complementsoft, LLC, IPR2013-
`
`00581, Paper 15 at p. 12 (P.T.A.B. December 30, 2013) (emphasis added).
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`For the foregoing reasons and as further discussed below, the Petition fails
`
`to establish a prima facie case of obviousness on any ground. Accordingly, the
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`Petition does not establish a reasonable likelihood that the challenged claims are
`
`unpatentable, and the Board should therefore not institute an inter partes review.
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`Patent Owner’s Preliminary Response
`IPR2016-01009
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`A.
`
`Petitioner Has Not Established a Reasonable Likelihood That
`Claims 9, 11, or 21 Would Have Been Obvious
`
`1.
`
`The Combination of Milbrandt, Hwang, and ANSI T1.413
`Would Still Fail to Disclose a Test Message Comprising “An
`Array Representing Power Level Per Subchannel
`Information”
`
`
`Petitioner’s Ground 1 first and foremost fails with respect to independent
`
`claims 9, 11, and 21 because the combination of alleged prior art references would
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`still fail to disclose at least one element required by each of those claims—
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`transmitting or receiving test information over a communication channel, where
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`the test information includes “an array representing power level per subchannel
`
`information.” (See Ex. 1001, ’412 patent at claims 9, 11, 21.)
`
`Petitioner alleges
`
`that Milbrandt discloses measuring “attenuation”
`
`information and transmitting “power spectrum density,” which Petitioner asserts is
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`“representative” of “power level per subchannel information.” (See Pet. at p. 34.)
`
`Petitioner does not point to Hwang at all for disclosure of this limitation. (See id.
`
`at pp. 34-38.) And Petitioner only points to ANSI T1.413 for its alleged disclosure
`
`of transmitting information via an “array.” (See id. at pp. 36-38.) But Petitioner’s
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`strained arguments ignore a crucial fact—Milbrandt’s attenuation and power
`
`spectrum density are not measured “per subchannel” as required by the claims.
`
`Rather than measuring attenuation or power spectrum density on a
`
`subchannel basis, Milbrandt
`
`instead discloses measuring
`
`those and other
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`14
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`Patent Owner’s Preliminary Response
`IPR2016-01009
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`“subscriber line information” for each channel of a frequency spectrum. (See Ex.
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`1011, Milbrandt at 11:10-15 (“During modem training, an ADSL modem 60
`
`employing DMT modulation technology may collect subscriber line information
`
`28 used to determine attenuation information and noise information for each
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`channel of the data frequency spectrum for a particular subscriber line 16.”),
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`11:19-24 (“Modem 42 measures 20 the received signal power spectrum density, Sf'
`
`of the received data signal for each downlink channel and communicates this and
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`other subscriber line information 28 to modem 60.”) If a modem is unable to
`
`establish a connection over the entire frequency spectrum, the modem can connect
`
`over one or more “sub-frequencies” and measure the operating characteristics over
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`those “sub-frequencies.” (See id. at 11:39-45.) But contrary to Petitioner’s
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`mischaracterization, those sub-frequencies in Milbrandt are not the same thing as
`
`the ’412patent’s “subchannels.” Rather, Milbrandt itself explains that those “sub-
`
`frequencies” over which a connection is established are still each a separate
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`“channel.” (See Ex. 1011, 11:4–5 (“Each sub-frequency is an independent channel
`
`and supports transmission of its own stream of data signals.”).) Again, Milbrandt
`
`discloses only measuring attenuation and power spectrum density for each
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`“channel”—not “sub-channel.” (See supra.)
`
`Petitioner nevertheless alleges, without discussing this disclosure in
`
`Milbrandt, that “Milbrandt’s disclosure of ‘sub-frequencies,’ over which the
`
` 
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`15
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`Patent Owner’s Preliminary Response
`IPR2016-01009
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`connection between modem 60 and 42 is established, would have been understood
`
`to be ‘subchannels.’” (Pet. at p. 34.) But beyond being demonstrably wrong in
`
`this regard for the reasons discussed, Petitioner cites to nothing in the Petition for
`
`this conclusory statement, making it unsupported attorney argument. See, e.g.,
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`VSR Indus. v. Cole Kepro Intern., LLC, Case IPR2015-00182, Paper 33 (P.T.A.B.
`
`April 28, 2016) (“Petitioner argues that ‘adding a bracket to solidify a horizontal
`
`support is a well-known practice in cabinet making that would be obvious’ to a
`
`skilled artisan. However, as Patent Owner points out, Petitioner does not cite any
`
`evidence in the record to support this attorney argument.”)
`
`While Petitioner’s expert does also allege in his declaration that “a person of
`
`ordinary skill would have recognized that . . . Milbrandt’s ‘sub-frequency’ . . .
`
`correspond[s] to the ‘subchannel’ in the ‘412 patent,” neither that statement nor
`
`that page or paragraph of Dr. Kiaei’s declaration are cited anywhere in the Petition.
`
`(See Pet. at p. 34; see also Ex. 1009, Kiaei Decl. at ¶ 68.) And in any event, Dr.
`
`Kiaei’s’ incorrect statement is also merely conclusory and backed-up by no support
`
`or explanation for why Milbrandt’s sub-frequencies that are each “independent
`
`channels” somehow comprise “sub-channels”—he does nothing more than repeat
`
`the argument in the Petition and provides nothing more than his bare (and
`
`demonstrably incorrect) say-so. See Wowza Media Sys., LLC v. Adobe Sys., Inc.,
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`IPR2013-00054, Paper 16 at p. 4 (July 13, 2013) (“Expert testimony that does not
`
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`16
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`Patent Owner’s Preliminary Response
`IPR2016-01009
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`disclose the underlying facts or data on which the opinion is based is entitled to
`
`little or no weight.”); Green Cross Corp. v. Shire Human Genetic Therapies, Inc.,
`
`Case IPR2016-00258, Paper 12 (P.T.A.B. March 9, 2016) (“On the contrary,
`
`Green Cross's Petition relies entirely on conclusory attorney argument and
`
`unsubstantiated expert assertions. Indeed, with respect to several key issues, Green
`
`Cross's expert, Dr. Sands, does not identify any underlying facts, data,