Trials@uspto.gov
`571.272.7822
`
`
`
`
`
`
`
`
`
`
`
`
` Paper No. 8
`
`
` Filed: November 4, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01009
`Patent 8,238,412 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571.272.7822
`
`
`
`
`
`
`
`
`
`
`
`
` Paper No. 8
`
`
` Filed: November 4, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01009
`Patent 8,238,412 B2
`____________
`
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`TREVOR M. JEFFERSON, Administrative Patent Judges.
`
`DESHPANDE, Administrative Patent Judge.
`
`
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`I.
`
`INTRODUCTION
`
`Cisco Systems, Inc. (“Petitioner”) filed a Petition requesting an inter
`
`partes review of claims 9‒12, 15‒18, and 21 of U.S. Patent No. 8,238,412
`
`B2 (Ex. 1001, “the ’412 patent”). Paper 2 (“Pet.”). TQ Delta, LLC (“Patent
`
`Owner”) filed a corrected Preliminary Response. Paper 7 (“Prelim. Resp.”).
`
`We have jurisdiction under 35 U.S.C. § 314(a), which provides that an inter
`
`partes review may not be instituted “unless . . . there is a reasonable
`
`likelihood that the petitioner would prevail with respect to at least 1 of the
`
`claims challenged in the petition.” After considering the Petition, the
`
`Preliminary Response, and associated evidence, we conclude that Petitioner
`
`has demonstrated a reasonable likelihood that it would prevail in showing
`
`the unpatentability of claims 9‒12, 15‒18, and 21 of the ’412 patent. Thus,
`
`we authorize institution of an inter partes review of claims 9‒12, 15‒18, and
`
`21 of the ’412 patent.
`
`A. Related Proceedings
`
`
`
`Petitioner indicates that the ’412 patent is the subject of several
`
`proceedings. See Pet. 1. Petitioner also indicates that the ’412 patent was
`
`the subject of IPR2016-00430. Id. at 1‒2. Petitioner additionally indicates
`
`that the ’412 patent is related to U.S. Patent No. 8,432,956 B2 and U.S.
`
`Patent No. 7,835,430 B2, which are the subject of IPR2016-00428 and
`
`IPR2016-00429. Id.
`
`B. The ʼ412 Patent (Ex. 1001)
`
`
`
`The ’412 patent discloses systems and methods for reliably
`
`exchanging diagnostic and test information between transceivers over a
`
`digital subscriber line in the presence of disturbances. Ex. 1001, 1:59‒62.
`
`The systems and methods include the use of a diagnostic link mode in the
`
`
`
`2
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`communication of diagnostic information from a remote terminal (RT)
`
`transceiver or modem to the central office (CO) transceiver or modem,
`
`where either model transmits a message to the other modem to enter
`
`diagnostic link mode. Id. at 2:60‒64, 3:34‒42. In diagnostic mode, the RT
`
`modem sends diagnostic and test information as bits to the CO modem. Id.
`
`at 3:48‒53.
`
`
`
`Figure 1 illustrates the additional modem components associated with
`
`the diagnostic link mode, and is reproduced below:
`
`
`
`
`
`Figure 1 illustrates a diagnostic mode system, where CO modem 200 and RT
`
`modem 300 are connected via link 5 to splitter 10 for a phone switch, and a
`
`splitter 30 for a phone 40. Id. at 4:58‒5:5. CO modem 200 includes CRC
`
`checker 210, diagnostic device 220, and diagnostic information monitoring
`
`device 220. Id. RT modem includes message determination device 310,
`
`power control device 320, diagnostic device 330, and diagnostic information
`
`storage device 340. Id.
`
`
`
`3
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`C. Illustrative Claim
`
`Petitioner challenges claims 9‒12, 15‒18, and 21 of the ’412 patent.
`
`Pet. 13‒68. Claims 9, 11, 15‒18, and 21 are independent claims. Claims 10
`
`and 12 depend from independent claims 9 and 11, respectively. Claims 15,
`
`17, and 21 are illustrative of the claims at issue and are reproduced below:
`
`15. One or more non-transitory computer-readable
`information storage media having stored thereon instructions
`that, if executed, cause a communications system for DSL
`service to perform a method comprising:
`transmitting a message from a first transceiver, wherein
`the message comprises one or more data variables that represent
`the test information, wherein bits in the message are modulated
`onto DMT symbols using Quadrature Amplitude Modulation
`(QAM) with more than 1 bit per subchannel and wherein at
`least one data variable of the one or more data variables
`comprises an array representing Signal to Noise ratio per
`subchannel during Showtime information; and
`receiving the message at a second transceiver, wherein
`the message comprises the one or more data variables that
`represent the test information, wherein the bits in the message
`were modulated onto the DMT symbols using Quadrature
`Amplitude Modulation (QAM) with more than 1 bit per
`subchannel and wherein the at least one data variable of the one
`or more data variables comprises the array representing Signal
`to Noise ratio per subchannel during Showtime information.
`
`Ex. 1001, 10:40‒61.
`
`In a communications system for DSL service with
`17.
`a first DSL transceiver capable of transmitting test information
`over a communication channel using multicarrier modulation
`and a second DSL transceiver capable of receiving the test
`information over the communication channel using multicarrier
`modulation, a method comprising:
`transmitting a message, wherein the message comprises
`one or more data variables that represent the test information,
`wherein bits in the message are modulated onto DMT symbols
`
`
`
`4
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`using Quadrature Amplitude Modulation (QAM) with more
`than 1 bit per subchannel and wherein at least one data variable
`of the one or more data variables comprises an array
`representing frequency domain received idle channel noise
`information; and
`receiving the message, wherein the message comprises
`the one or more data variables that represent the test
`information, wherein the bits in the message were modulated
`onto the DMT symbols using Quadrature Amplitude
`Modulation (QAM) with more than 1 bit per subchannel and
`wherein the at least one data variable of the one or more data
`variables comprises the array representing frequency domain
`received idle channel noise information.
`
`Ex. 1001, 11:19‒41.
`
`21. One or more non-transitory computer-readable
`information storage media having stored thereon instructions
`that, if executed, cause a communications system for DSL
`service to perform a method comprising:
`transmitting a message, wherein the message comprises
`one or more data variables that represent the test information,
`wherein bits in the message are modulated onto DMT symbols
`using Quadrature Amplitude Modulation (QAM) with more
`than 1 bit per subchannel and wherein at least one data variable
`of the one or more data variables comprises an array
`representing power level per subchannel information; and
`receiving the message, wherein the message comprises
`the one or more data variables that represent the test
`information, wherein the bits in the message were modulated
`onto DMT symbols using Quadrature Amplitude Modulation
`(QAM) with more than 1 bit per subchannel and wherein at
`least one data variable of the one or more data variables
`comprises an array representing power level per subchannel
`information
`
`Ex. 1001, 12:44‒63.
`
`
`
`5
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`D. The Alleged Grounds of Unpatentability
`
`The information presented in the Petition sets forth proposed grounds
`
`of unpatentability of claims 9‒12, 15‒18, and 21 of the ’412 patent under
`
`35 U.S.C. § 103(a) as follows (see Pet. 7–55):1
`
`References
`
`Milbrandt,2 Chang,3
`Hwang,4 and ANSI T1.4135
`
`
`
`Claims
`Challenged
`
`9‒12, 15‒18, and 21
`
`II. ANALYSIS
`
`A. Claim Construction
`
`The Board interprets claims of an unexpired patent using the broadest
`
`reasonable construction in light of the specification of the patent in which
`
`they appear. See 37 C.F.R. § 42.100(b); see Cuozzo Speed Techs., LLC v.
`
`Lee, 136 S. Ct. 2131, 2142–46 (2016). Under the broadest reasonable
`
`construction standard, claim terms are given their ordinary and customary
`
`meaning, as would be understood by one of ordinary skill in the art in the
`
`context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
`
`1257 (Fed. Cir. 2007).
`
`
`1 Petitioner supports its challenge with the Declaration of Sayfe Kiaei, PhD.
`(Ex. 1009).
`2 U.S. Patent No. 6,636,603 B1; issued Oct. 21, 2003 (Ex. 1011)
`(“Milbrandt”).
`3 U.S. Patent No. 6,891,803 B1; issued on May 10, 2005 (Ex. 1012)
`(“Chang”).
`4 U.S. Patent No. 6,590,893 B1; issued July 8, 2003 (Ex. 1013) (“Hwang”).
`5 Network and Customer Installation Interfaces – Asymmetric Digital
`Subscriber Line (ADSL) Metallic Interface, AMERICAN NATIONAL
`STANDARDS INSTITUTION (ANSI) T1.413-1995 STANDARD (Ex. 1014)
`(“ANSI T1.413”).
`
`
`
`6
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`1. “Array”
`
`Petitioner argues that the ’412 patent specification uses the term
`
`“array” consistent with its ordinary meaning, which dictionaries define as an
`
`“ordered collection of identical structures” or a “collection of data items . . .
`
`[that are] arranged in a particular order or pattern and are all of the same
`
`type.” Pet. 15 (quoting Ex. 1017, 71; Ex. 1018, 9). Accordingly, Petitioner
`
`argues that the term “array” should be construed to mean “an ordered
`
`collection of multiple data items of the same type.” Patent Owner argues
`
`that “none of Petitioner’s proposed constructions are necessary in deciding
`
`whether or not to institute trial” and declines to propose a construction for
`
`this term. Prelim. Resp. 11.
`
`We are persuaded by Petitioner, and, on this record, we interpret
`
`“array” to mean “an ordered collection of multiple data items of the same
`
`type.”
`
`2. “Transceiver”
`
`Petitioner argues that the term “transceiver,” under the broadest
`
`reasonable interpretation in light of the ’412 patent specification, includes “a
`
`device, such as a modem, with a transmitter and receiver.” Pet. 15 (citing
`
`Ex. 1009, 24‒25; Ex. 1017, 913). Patent Owner argues that “none of
`
`Petitioner’s proposed constructions are necessary in deciding whether or not
`
`to institute trial” and declines to propose a construction for this term.
`
`Prelim. Resp. 11.
`
`We are persuaded by Petitioner, and, on this record, we interpret
`
`“transceiver” to mean “a device, such as a modem, with a transmitter and
`
`receiver.”
`
`
`
`
`
`7
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`3. “during Showtime”
`
`Petitioner argues that the ’412 patent specification describes an
`
`example of “during Showtime” as “the normal steady state transmission
`
`mode, or the like.” Pet. 14 (citing Ex. 1001, 3:32‒34). Petitioner argues that
`
`“during Showtime” is a term of art in ADSL and in that art it means “each
`
`modem notifies its peer that it is ready to enter normal communications,
`
`known in the standard as ‘showtime.’” Id. (citing Ex. 1019, 379).
`
`Accordingly, Petitioner argues that, under the broadest reasonable
`
`interpretation in light of the ’412 patent specification, “during Showtime”
`
`includes “during normal communications of an ANSI T1.413-compliant
`
`device.” Id. (citing Ex. 1009, 22). Patent Owner argues that “none of
`
`Petitioner’s proposed constructions are necessary in deciding whether or not
`
`to institute trial” and declines to propose a construction for this term.
`
`Prelim. Resp. 11.
`
`We are persuaded by Petitioner, and, on this record, we interpret
`
`“during Showtime” to mean “during normal communications of an ANSI
`
`T1.413-compliant device.”
`
`4. “frequency domain received idle channel noise information”
`
`Petitioner argues that although the ’412 patent specification does not
`
`use “frequency domain received idle channel noise information,” the ’412
`
`patent specification discusses “average idle channel noise.” Pet. 13‒14
`
`(citing Ex. 1001, 4:17). Petitioner further argues that a person with ordinary
`
`skill in the art would have understood that “frequency domain” refers to
`
`“analysis of a signal on a frequency basis,” and would have understood that
`
`“‘idle channel noise’ refer to noise that exists in a communication path when
`
`no signals are present.” Id. (citing Ex. 1017, 377, 438; Ex. 1009, 19).
`
`
`
`8
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`Accordingly, Petitioner argues that “frequency domain received idle channel
`
`noise information” encompasses “information about the background noise
`
`present in each of a plurality of frequency subchannels when the
`
`subchannels are not in use.” Id. at 14 (quoting Ex. 1009, 20). Patent Owner
`
`argues that “none of Petitioner’s proposed constructions are necessary in
`
`deciding whether or not to institute trial” and declines to propose a
`
`construction for this term. Prelim. Resp. 11.
`
`We are persuaded by Petitioner, and, on this record, we interpret
`
`“frequency domain received idle channel noise information” to encompass
`
`“information about the background noise present in each of a plurality of
`
`frequency subchannels when the subchannels are not in use.”
`
`B. Obviousness of Claims 9‒12, 15‒18, and 21 over
`Milbrandt, Chang, Hwang, and ANSI T1.413
`
`Petitioner contends that claims 9‒12, 15‒18, and 21 of the ’412 patent
`
`are unpatentable under 35 U.S.C. § 103(a) as obvious over Milbrandt,
`
`Chang, Hwang, and ANSI T1.413. Pet. 18–68. For the reasons discussed
`
`below, the evidence, on this record, indicates there is a reasonable likelihood
`
`that Petitioner would prevail in showing that claims 9‒12, 15‒18, and 21 of
`
`the ’412 patent are unpatentable under 35 U.S.C. § 103(a) as obvious.
`
`1. Milbrandt (Ex. 1011)
`
`Milbrandt discloses a system and method for determining the transmit
`
`power of a communication device operating on digital subscriber lines.
`
`Ex. 1011, 1:20‒24. An example of the system is illustrated in Figure 1 as
`
`follows:
`
`
`
`9
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`
`
`
`
`Figure 1 illustrates a communication system that provides both
`
`telephone and data services. Id. at 4:4‒5. Communication system 10
`
`includes system management server 18 coupled to central offices 14, which
`
`are coupled to several subscribers’ premises 12 using subscriber lines 16.
`
`Id. at 4:6‒9. Database 22 stores subscriber line information 28 and
`
`communication device information 29 defining the physical and operating
`
`characteristics of the subscriber lines 16 and communication devices 60. Id.
`
`at 4:9‒15. System management server 18 determines the data rate capacity
`
`of selected subscriber lines 16 using subscriber line information 28 stored in
`
`database 22, and the optimal transmit power for a communication device
`
`operating on a subscriber line 16. Id. at 4:15‒21.
`
`Modem 42 at subscriber premises 12 receives the data signal
`
`communicated by modem 60 and determines the subscriber line information
`
`
`
`10
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`28, such as attenuation information, noise information, received signal
`
`power spectrum density, or any other information describing the physical or
`
`operating characteristics of subscriber line 16 at the one or more sub-
`
`frequencies over which the connection between modem 60 and 42 is
`
`established. Id. at 11:38‒45. Modem 42 extrapolates subscriber line
`
`information 28 to central office 14 over any achievable range of sub-
`
`frequencies using any suitable communication protocol. Id. at 4:45‒53.
`
`2. Chang (Ex. 1012)
`
`Chang discloses a telecommunications transmission test set for testing
`
`digital communications networks. Ex. 1012, 1:7‒9. One embodiment of the
`
`test set includes a light emitting diode (LED) display, a graphical display, a
`
`keypad, and an integrated microphone and speaker. Id. at 5:8‒12. The
`
`system can further include a processor, a DMM (digital multimeter) test
`
`circuit, a TDR (time domain reflection) test circuit, and a transmission line
`
`impairment test circuit. Id. at 5:28‒31, 5:58‒60. The test circuits provide
`
`test signals or test tones, and perform test measurements for various line
`
`qualification tests. Id. at 5:60‒63. The system further includes a modem
`
`module interface that receives data and control signals. Id. at 6:1‒10. The
`
`test set performs both line qualification testing and connectivity testing to
`
`allow complete installation, maintenance, and repairs of a communications
`
`network. Id. at 9:29‒32.
`
`3. Hwang (Ex. 1013)
`
`Hwang discloses an adaptive transmission system used in a network.
`
`Ex. 1013, 1:6‒8. The system includes a computer network including
`
`network nodes capable of transmitting and receiving data over a channel
`
`using a transmitter and receiver. Id. at 5:1‒8. The computer network
`
`
`
`11
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`utilizes discrete multi-tone (DMT) technology to transmit data over the
`
`channels. Id. at 5:12‒14. A DMT-based system utilizes 256 tones, where
`
`each tone is capable of transmitting up to 15 bits of data on the tone
`
`waveform. Id. at 5:22‒24. If a channel characteristics are poor and the
`
`receiving node is unable to receive the transmitted data without errors, the
`
`transmitting node is able to adapt the transmission rate to ensure error-free
`
`data is received. Id. at 7:3‒7.
`
`4. ANSI T1.413 (Ex. 1014)
`
`ANSI T1.413 discloses electrical characteristics of Asymmetric
`
`Digital Subscriber Line (ADSL) signals appearing at a network interface.
`
`Ex. 1014, Abstract. ADSL allows for the provision of Plain Old Telephone
`
`Service (POTS) and a variety of digital channels. Id. at 1. Digital channels
`
`consist of full duplex low-speed channels and simplex high-speed channels
`
`in the direction from the network to the customer premises, and low-speed
`
`channels in the opposite direction. Id.
`
`5. Analysis
`
`The evidence set forth by Petitioner indicates there is a reasonable
`
`likelihood that Petitioner will prevail in showing that claims 9‒12, 15‒18,
`
`and 21 are unpatentable under 35 U.S.C. § 103(a) as obvious. Pet. 18–68.
`
`For example, the claim 21 preamble recites “[o]ne or more non-
`
`transitory computer-readable information storage media having stored
`
`thereon instructions that, if executed, cause a communications system for
`
`DSL service to perform a method.” Petitioner argues that Milbrandt
`
`discloses a “communication system [] that provides both telephone and data
`
`services to subscribers” and a “communication device that transmits and
`
`receives data in [a] communication system [] using any suitable digital
`
`
`
`12
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`subscriber line technology (xDSL).” Pet. 42 (quoting Ex. 1011, 4:3‒4,
`
`4:64‒67), 64 (citing Ex. 1009, 165) (emphasis omitted). Petitioner argues
`
`that Chang supplements Milbrandt because Chang discloses “a processor []
`
`that controls the operation of modem module [] according to program
`
`instructions stored in a memory,” where memory can be implemented as
`
`RAM, ROM, PROM, EPROM, FLASH memory, registers, or other memory
`
`devices. Id. at 30 (quoting Ex. 1012, 7:31‒34; citing Ex. 1012, 7:40‒46)
`
`(emphasis omitted). Petitioner argues that “[a] person of ordinary skill in the
`
`art would have understood that a ROM, a PROM, an EPROM, and FLASH
`
`are non-transitory computer readable memory since ‘ROM’ is an acronym
`
`for ‘Read Only Memory.’” Id. (citing Ex. 1009, 107).
`
`Petitioner argues that a person of ordinary skill in the art would have
`
`found it obvious to combine Milbrandt and Chang because both Milbrandt
`
`and Chang evaluate DSL communications and determine operational
`
`characteristics such as noise. Pet. 18‒19 (citing Ex. 1011, 8:53‒65, 9:31‒34;
`
`Ex. 1012, 1:6‒8, 2:59‒61; Ex. 1009, 34). Petitioner explains that a person
`
`with ordinary skill in the art would have recognized the advantages of
`
`measuring background noise using Chang’s techniques, where, for example,
`
`“when the system of Milbrandt updates the transmit power level for a device
`
`on one telephone line the impact on adjacent idle telephone lines within a
`
`binder group can be monitored using Chang’s approach.” Id. at 20.
`
`Petitioner further argues that “[t]hose of skill in the art would have
`
`understood that raising the transmit power level on a telephone line can
`
`improve [the] service quality by delivering a stronger signal to the far end.”
`
`Id. at 19‒20 (citing Ex. 1009, 37). Petitioner further provides several other
`
`
`
`13
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`advantages a person of ordinary skill in the art would have recognized as the
`
`benefits of combining Milbrandt and Chang. See id. at 20‒23.
`
`Claim 21 additionally recites “transmitting a message, wherein the
`
`message comprises one or more data variables that represent the test
`
`information.” Petitioner argues that Milbrandt discloses this limitation. Pet.
`
`31, 43, 64. Petitioner explains that Milbrandt discloses a “[m]odem []
`
`comprises any suitable communication device [] that transmits and receives
`
`data.” Id. at 31 (quoting Ex. 1011, 4:64‒65) (emphasis omitted). Petitioner
`
`further argues that Milbrandt discloses “subscriber line information” that
`
`includes power spectrum density per sub-frequency Sf, attenuation
`
`information per sub-frequency Hf, and noise information per sub-frequency
`
`Nf, and it would have been obvious to a person with ordinary skill in the art
`
`that these values represent “one or more data variables.” Id. at 31‒32 (citing
`
`Ex. 1011, 11:38‒45, Ex. 1009, 56).
`
`Claim 21 also recites “wherein bits in the message are modulated onto
`
`DMT symbols using Quadrature Amplitude Modulation (QAM) with more
`
`than 1 bit per subchannel.” Petitioner argues that the combination of
`
`Milbrandt and Hwang disclose this limitation. Id. at 32‒34, 65. Petitioner
`
`contends that Milbrandt discloses communication using DMT modulation,
`
`where “DMT technology divides a subscriber line into individual ‘sub-bands
`
`or channels,’ and ‘uses a form of quadrature amplitude modulation (QAM)
`
`to transmit data in each channel simultaneously.’” Id. at 32‒33 (quoting Ex.
`
`1011, 11:60‒64) (emphasis omitted). Petitioner argues that Hwang discloses
`
`that a “DMT signal is basically the sum of N independently quadrature
`
`amplitude modulated (QAM) signals, each carried over a distinct carrier
`
`frequency channel,” and the ANSI standard provides for 256 carriers or
`
`
`
`14
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`tones, where “[e]ach tone is QAM to carry up to 15 bits of data on each
`
`cycle of the tone waveform (symbol).” Id. at 33 (quoting Ex. 1013, 2:67‒
`
`3:12; citing Ex. 1009, 58) (emphasis omitted). Accordingly, Petitioner
`
`argues that Milbrandt discloses modulating bits using DMT and QAM, and
`
`Hwang discloses that DMT and QAM provide for transmission of up to 15
`
`bits of data per subchannel. Id.
`
`With respect to the combination of references, Petitioner contends that
`
`a “person of ordinary skill in the art would have found it obvious to combine
`
`the teachings of Milbrandt and Hwang because Hwang provides additional
`
`details of ADSL communication technology.” Petitioner further contends
`
`thata person with ordinary skill in the art would “refer to all of their
`
`[Milbrandt, Chang, and Hwang] teachings in implementing an ADSL
`
`communication system for the purpose of obtaining a more complete
`
`understanding.” Pet. 23‒25. Petitioner argues that a person with ordinary
`
`skill in the art would have combined Hwang’s teaching of using up to 15 bits
`
`for each subchannel with Milbrandt’s communication system in order to
`
`transmit more data on each subchannel. Id. (citing Ex. 1009, 41). Petitioner
`
`also argues that a person would have been motivated to make such a
`
`combination in order to achieve a system that is “overall more efficient and
`
`has [a] higher throughput.” Id. (citing Ex. 1009, 41). Accordingly,
`
`Petitioner argues that combining Hwang’s known technique of using up to
`
`15 bits per subchannel to Milbrandt’s communication system renders
`
`nothing more than the predictable results of, for example, “transmitting data
`
`more efficiently, increasing throughput, improving service for customers,
`
`and making the system as [a] whole commercially desirable in the
`
`
`
`15
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`marketplace.” Id. (citing Ex. 1009, 42). As such, a person with ordinary
`
`skill in the art would have combined Hwang with Milbrandt and Chang.
`
`Claim 21 further recites “wherein at least one data variable of the one
`
`or more data variables comprises an array representing power level per
`
`subchannel information.” Petitioner argues that Milbrandt discloses this
`
`entire limitation (see id. at 34‒37 (citing Ex. 1011, 11:19‒24, 11:38‒45,
`
`12:14‒31, 23:51‒57, Fig. 3; Ex. 1009, 59‒62; Ex. 1021, 126‒127; Ex. 1022,
`
`34), 65 (citing Ex. 1009, 166)), except “Milbrandt does not expressly state
`
`that the information is transmitted as an array.” Id. at 37. Milbrandt does
`
`disclose, according to Petitioner, “using ADSL techniques that comply with
`
`ANSI Standard T1.413.” Id. (quoting Ex. 1011, 9:31‒34). Petitioner argues
`
`that ANSI T1.413 discloses “transmitting data variables that have a value for
`
`a plurality of frequency sub-carriers.” Petitioner argues that ANSI T1.413
`
`discloses transmitting bit values and gain values “{b1, g1, b2, g2, [. . .] b255,
`
`g255},” where each available frequency sub-carrier has its own bit value and
`
`gain value. Id. (citing Ex. 1014, 110) (emphasis omitted). Petitioner further
`
`argues that a person with ordinary skill in the art would have “recognized
`
`that a frequency sub-carrier in the ANSI T1.413 standard corresponds to
`
`Milbrandt’s sub-frequency, and that both of these terms correspond to the
`
`claimed ‘sub-channel.’” Id. (citing Ex. 1009, 64). Accordingly, Petitioner
`
`contends that “it would have been obvious to a person of ordinary skill in the
`
`art to transmit Milbrandt’s power spectrum density per sub-frequency and
`
`attenuation information per sub-frequency using the same array data format
`
`taught by ANSI T1.413. Id. at 37‒38 (citing Ex. 1009, 64).
`
`Claim 21 additionally recites “receiving the message.” Petitioner
`
`argues that Milbrandt discloses this limitation. Pet. 40, 47, 65. Petitioner
`
`
`
`16
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`explains that Milbrandt discloses a “[m]odem [] [comprises any suitable]
`
`‘communication device that transmits and receives data.’” Id. at 40 (quoting
`
`Ex. 1011, 6:46‒49) (emphasis omitted). Claim 21 additionally recites the
`
`contents of the received message, which is the same contents of the
`
`transmitted message discussed above. Petitioner argues that it would have
`
`been obvious to a person with ordinary skill in the art, that the message
`
`transmitted by the subscriber modem of Milbrandt is the same message that
`
`is received by the central office modem. Id. at 38, 41‒42, 46‒47, 65‒66
`
`(citing Ex. 1009, 166). Accordingly, Petitioner provides the same analysis
`
`for the contents of the received message as presented for the contents of the
`
`transmitted message. Id.
`
`Petitioner argues that a person with ordinary skill in the art would
`
`have found it obvious to combine Milbrandt/Chang/Hwang with ANSI
`
`T1.413 because Milbrandt/Chang/Hwang describe communication systems,
`
`and ANSI T1.413 defines the ADSL communication standard. Pet. 25‒29
`
`(citing Ex. 1009, 42‒43). Petitioner further argues that both Milbrandt and
`
`Hwang refer to the ADSL standard set forth by ANSI T1.413, and, therefore,
`
`a person with ordinary skill in the art would have been directed to combine
`
`the teachings of all three references. Id. at 26 (citing Ex. 1009, 43).
`
`Petitioner argues that it would have been advantageous to modify
`
`Milbrandt/Chang/Hwang with the teachings of ANSI T1.413 in order to
`
`“improve signal quality and reliability,” “adjust its automatic gain control . .
`
`. to an appropriate level,” and “allow for interoperability with other devices
`
`that are ANSI T1.413 standard compliant, making the overall system more
`
`robust.” Id. at 26‒27 (citing Ex. 1009, 43‒44). Specifically, Petitioner
`
`argues that
`
`
`
`17
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`a person of ordinary skill in the art would have recognized that
`transmitting per-subchannel data as an array, as taught by ANSI
`T1.413, would advantageously allowed the receiving modem to
`receive and access the information on a per sub-channel basis,
`without the need for additional processing or reordering of the
`received information.
`
`Id. at 38.
`
`Patent Owner argues that the combination of Milbrandt, Chang,
`
`Hwang, and ANSI T1.413 fails to teach or suggest “an array representing
`
`power level per subchannel information.” Prelim. Resp. 14‒17 (emphasis
`
`omitted). Specifically, Patent Owner argues that Milbrandt discloses
`
`attenuation and power spectrum density over one or more “subfrequencies,”
`
`but fails to disclose power levels “per sub-channel,” as recited by
`
`independent claim 21. Id. at 14‒16. Accordingly, Patent Owner argues that
`
`Milbrandt, at best, discloses “measuring attenuation and power spectrum
`
`density for each ‘channel’—not ‘sub-channel.’” Id.
`
`On this record, we are not persuaded by Patent Owner’s argument. As
`
`argued by Petitioner, Milbrandt discloses measuring attenuation and power
`
`spectrum density for “sub-frequencies,” and a person with ordinary skill in
`
`the art would have understood Milbrandt’s power spectrum density per sub-
`
`frequency is representative of “power level per subchannel information.”
`
`Pet. 34‒37 (citing Ex. 1011, 11:19‒24, 11:38‒45, 12:14‒31, 23:51‒57, Fig.
`
`3; Ex. 1009, 59‒62; Ex. 1021, 126‒127; Ex. 1022, 34). Milbrandt explains
`
`that ADSL modems, using DMT technology, divide the bandwidth of a
`
`subscriber line, which is generally referred to as the frequency spectrum, in
`
`to many individual sub-bands or channels. Ex. 1011, 10:58‒63. The
`
`frequency range from 25 kHz to 1.1 MHz is divided into sub-frequencies,
`
`where each sub-frequency is an independent channel and supports
`
`
`
`18
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`transmission of its own stream of data signals. Id. at 11:2‒6. Milbrandt
`
`further states that “DMT technology is very useful for ADSL technology
`
`where the sub-channels are divided into groups and one group of channels is
`
`allocated for the uplink transmission of data and the other for the downlink
`
`transmission of data.” Id. at 11:6‒10. Dr. Kiaei explains that Milbrandt’s
`
`“sub-frequency” corresponds to the claimed “subchannel.” Pet. 37‒38
`
`(citing Ex. 1009, 117). Accordingly, on this record, we are persuaded that
`
`Petitioner has demonstrated a reasonable likelihood that it will prevail in
`
`demonstrating that the combination of Milbrandt, Chang, Hwang, and ANSI
`
`T1.413 discloses “an array representing power level per subchannel
`
`information.”
`
`Patent Owner further argues that Petitioner has not shown that a test
`
`message comprising “an array representing power level per subchannel
`
`information” would have been obvious over Milbrandt, Chang, Hwang, and
`
`ANSI T1.413. Prelim. Resp. 17‒19 (emphasis omitted). Specifically, Patent
`
`Owner argues that Petitioner has not established that “it would have been
`
`obvious to add to Milbrandt the ability to transmit ‘power level per
`
`subchannel information.’” Id. at 17. Patent Owner additionally argues that
`
`Petitioner has not provided any reasons, with sufficient rational
`
`underpinnings, to support combining Milbrandt, Chang, Hwang, and ANSI
`
`T1.413 to “allegedly enable Milbrandt to transmit or receive ‘power level
`
`per subchannel information based on a Reverb signal.’” Id. at 29‒33
`
`(emphasis omitted).
`
`We are not persuaded by Patent Owner. As discussed above,
`
`Petitioner argues that it would have been advantageous to modify
`
`Milbrandt/Chang/Hwang with the teachings of ANSI T1.413 in order to
`
`
`
`19
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`“improve signal quality and reliability,” “adjust its automatic gain control . .
`
`. to an appropriate level,” and “allow for interoperability with other devices
`
`that are ANSI T1.413 standard compliant, mak[ing] the overall system more
`
`robust.” Pet. 25‒29 (citing Ex. 1009, 43‒44). Specifically, Petitioner argues
`
`that “a person of ordinary skill in the art would have recognized that
`
`transmitting per-subchannel data as an array, as taught by ANSI T1.413,
`
`would [have] advantageously allowed the receiving modem to receive and
`
`access the information on a per sub-channel basis, without the need for
`
`additional proce
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
