throbber
UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner
`
`_____________________
`
`Case IPR2016-010201
`Patent 9,014,243
`
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION TO EXCLUDE
`
`
`
`
`
`
`
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`1 DISH Network, LLC, who filed a Petition in IPR2017-00254, and Comcast Cable
`Communications, LLC, Cox Communications, Inc., Time Warner Cable
`Enterprises LLC, Verizon Services Corp., and ARRIS Group, Inc., who filed a
`Petition in IPR2017-00418, have been joined in this proceeding.
`
`

`

`
`
`
`I.
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`Introduction
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`Patent Owner TQ Delta (“TQ Delta”) filed a motion to exclude numerous
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`exhibits as irrelevant, being based on insufficient facts or data, and/or untimely
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`filed. TQ Delta’s objections are without merit. Exhibits 1022, 1023, 1024, 1025,
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`1028, and portions of Exhibit 2013 are admissible under Fed. R. Evid. 402, Fed. R.
`
`Evid. 403, 37 C.F.R. § 42.23, and/or 37 C.F.R. § 42.61. Exhibit 1026 and portions
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`of Exhibit 2013 are admissible under Fed. R. Evid. 702 and Fed. R. Evid. 705.
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`Accordingly, TQ Delta lacks any legitimate grounds to exclude these exhibits.
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`II.
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`Argument
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`A. Exhibit 1022
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`Exhibit 1022 is a chapter titled “Physical Layer” from a book titled WiMedia
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`UWB. The author of Exhibit 1022 is TQ Delta’s expert declarant, Dr. Short.
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`1.
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`Exhibit 1022 is admissible because TQ Delta failed to timely
`preserve the objection.
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`TQ Delta argues that Exhibit 1022 is irrelevant and untimely under Fed. R.
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`Evid. 402, Fed. R. Evid. 403, 37 C.F.R. § 42.23, and/or 37 C.F.R. § 42.61. Patent
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`Owner’s Motion to Exclude Evidence (“Mot.”), Paper 28, p. 2.
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`The Office Patent Trial Practice Guide (“Practice Guide”) states that a
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`motion to exclude evidence must identify where in the record the objection was
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`originally made. Practice Guide, 77 Fed. Reg. 48765, 48767 (Aug. 14, 2012); see
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`2
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`also Liberty Mutual Ins. Co. v. Progressive Casualty Ins. Co., CBM 2012-00002,
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`Paper 66, p. 60, (P.T.A.B. 2014). For evidence introduced during a deposition,
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`“[a]n objection to the admissibility … must be made during the deposition.” 37
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`C.F.R. § 42.64(a).
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`TQ Delta failed to timely object to Exhibit 1022. Exhibit 1022 is deposition
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`evidence because it was first introduced during the deposition of Dr. Short. Ex.
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`1027, 81:12-16. TQ Delta, however, failed to object to Exhibit 1022 at that time.
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`Ex. 1027, 81:17-82:24. Because TQ Delta failed to timely object to Exhibit 1022,
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`TQ Delta failed to preserve this objection. Accordingly, TQ Delta cannot now use
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`its motion to exclude to suppress Exhibit 1022.
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`2.
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`Exhibit 1022 is Relevant
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`Even if TQ Delta had objected timely, TQ Delta still fails to show that
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`Exhibit 1022 is inadmissible under the cited rules. Initially, TQ Delta argues that
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`Exhibit 1022 is irrelevant under Fed. R. Evid. 402 and Fed. R. Evid. 403 because it
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`is not cited in the Petitioner’s Reply or Dr. Tellado’s Second Declaration. Mot., p.
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`2. But the standard for relevance is not whether a piece of evidence is cited in a
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`Petitioner’s Reply or an expert’s declaration. TQ Delta makes no attempt to
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`address the proper standard for admissibility under Fed. R. Evid. 402. TQ Delta
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`does not dispute that Exhibit 1022 meets the burden for relevant evidence under
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`Fed. R. Evid. 401. And TQ Delta does not explain how it would be unfairly
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`3
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`prejudiced under Fed. R. Evid. 403 by the admission of Exhibit 1022. Without
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`analysis or explanation, TQ Delta fails to carry its burden as the movant. See 37
`
`C.F.R. § 42.20(c).
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`TQ Delta also argues that Exhibit 1022 is irrelevant because it is not prior
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`art. Mot., p. 3. But, again, TQ Delta fails to address the proper standard for
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`relevance. See Fed. R. Evid. 401. Exhibit 1022 is relevant because Exhibit 1022
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`provides context and relevant information relating to Dr. Short’s opinions as to
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`what was known to a person of ordinary skill in the art at the time the ’243 Patent
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`was filed. Ex. 1027, 87:17-90:5.
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`Finally, TQ Delta provides no explanation or analysis regarding Exhibit
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`1022 vis-à-vis 37 C.F.R. § 42.23 and § 42.61. Thus, TQ Delta again fails to carry
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`its burden as the movant. See 37 C.F.R. § 42.20(c).
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`Because TQ Delta fails to show that Exhibit 1022 is irrelevant or unfairly
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`prejudicial, Exhibit 1022 is relevant and admissible under Fed. R. Evid. 402, Fed.
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`R. Evid. 403, 37 C.F.R. § 42.23, and 37 C.F.R. § 42.61.
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`B.
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`Exhibit 1025 is Relevant
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`Exhibit 1025 is a dissertation submitted to the Department of Electrical
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`Engineering and the Committee on Graduate Studies of Stanford University by
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`Petitioner’s expert Dr. Jose Tellado.
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`TQ Delta alleges that Exhibit 1025 is irrelevant and untimely filed under
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`4
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`Fed. R. Evid. 402, Fed. R. Evid. 403, 37 C.F.R. § 42.23, and/or 37 C.F.R. § 42.61
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`because it has not been cited in the Petition or Petitioner’s Reply. Mot., p. 4. TQ
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`Delta argues in the alternative that Exhibit 1025 is not relevant because it is not
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`prior art. Mot., p. 4. As already discussed above, such arguments do not address
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`the proper standard for determining whether evidence is relevant. See Fed. R. Evid.
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`401 and Fed. R. Evid. 402. TQ Delta also provides no explanation for its
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`contention that Exhibit 1025 would be unfairly prejudicial to TQ Delta under Fed.
`
`R. Evid. 403. Without addressing the proper standard or providing any explanation,
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`TQ Delta fails to carry its burden as a moving party. See 37 C.F.R. § 42.20(c).
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`Exhibit 1025 is relevant to the proceeding because it shows that phase
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`scrambling was known to reduce PAR before the ’243 Patent was filed. See
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`Petitioner’s Reply, Paper 17, p. 12-13; Ex. 2013, 8:2-8; 15:8-13; 17:5-8 (“My
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`thesis has a long list of people that were doing research in phase scrambling. That
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`was prior art for my thesis. It was well known when I wrote my thesis.”). Whether
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`phase scrambling was known to reduce PAR is an issue in this inter partes review.
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`Exhibit 1025 includes a list of references cited by Dr. Tellado that demonstrate that
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`phase scrambling was known to reduce PAR before the ’243 Patent was filed. Ex.
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`1025, p. 152 (citing to Ex. 1023 as [77]) & p. 153 (citing to Ex. 1024 as [82]); see
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`also Ex. 2013, 146:16-152:4 (testimony of Dr. Tellado explaining his citations in
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`Ex. 1025 that refer to Ex. 1023 and 1024). Therefore, Exhibit 1025 is relevant and
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`5
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`
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`admissible.
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`Finally, Petitioner can “respond to arguments raised in the … patent owner
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`response.” 37 C.F.R. § 42.23(b); see also 37 C.F.R. § 42.23(b); Genzyme
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`Therapeutic Prods. Ltd. v BioMarin Pharm. Inc., 825 F.3d 1360 (Fed. Cir. 2016)
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`(“The court has made clear that the Board may consider a prior art reference to
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`show the state of the art at the time of the invention regardless of whether that
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`reference was cited in the Board’s institution decision.”). Exhibit 1025 was filed in
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`response to TQ Delta’s contention that phase scrambling to reduce PAR was not
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`known. See Patent Owner’s Response, Paper 12, pp. 34, 43, and 49. Thus
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`submission of Exhibit 1025 does not violate 37 C.F.R. § 42.23 or 37 C.F.R. §
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`42.61. Accordingly, Exhibit 1025 is admissible.
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`C.
`
`Paragraphs 16, 29, 42, 43, and 52 of Exhibit 1026 and pages 46:19-
`47:16, 49:1-50:13, 51:5-56:23, 57:6-12, and 61:19-23 of Exhibit
`2013 are admissible.
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`Exhibit 1026 is a Second Declaration by Petitioner’s expert Dr. Jose Tellado.
`
`Exhibit 2013 is a deposition transcript from Dr. Tellado’s second deposition.
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`1.
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`Exhibit 1026 is admissible because TQ Delta failed to timely
`preserve the objection.
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`TQ Delta’s attempt to exclude Exhibit 1026 should be denied because TQ
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`Delta failed to preserve the objection it now raises. A motion to exclude must
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`identify where in the record an objection was originally made. Practice Guide, 77
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`Fed. Reg. at 48767; see also Liberty Mutual, CBM 2012-00002, Paper 66, p. 61.
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`6
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`Further, an objection to non-deposition evidence must identify the grounds for the
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`objection. 37 C.F.R. § 42.64 (b)(1); see Liberty Mutual, CBM 2012-00002, Paper
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`66, p. 61; see also LKQ Corp. v. ClearLamp, LLC, IPR 2013-00020, Paper 17, p. 4
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`(P.T.A.B. 2014).
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`TQ Delta failed to preserve the objection that it argues in its motion. In
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`particular, TQ Delta objected to paragraphs 16, 29, 42, 43, and 52 of Exhibit 1026
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`under relevance grounds, including Fed. R. Evid. 402, Fed. R. Evid. 403, and 37
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`C.F.R. § 42.61. Patent Owner’s Objections to Evidence, Paper 20, p. 2. But in its
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`motion to exclude, TQ Delta pursues entirely unrelated grounds, specifically, Fed.
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`R. Evid. 702, Fed. R. Evid. 705, 37 C.F.R. §§ 41.51(b)(1)(i) & 41.51(b)(1)(iii), and
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`37 C.F.R. § 42.65(b). Mot., p. 9. Because TQ Delta failed to properly object to
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`paragraphs 16, 29, 42, 43, and 52 on these grounds, TQ Delta has not properly
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`preserved this objection. Thus, TQ Delta cannot now use its motion to exclude as a
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`vehicle to suppress portions of Exhibit 1026.
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`2.
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`Exhibit 1026 and pages 46:19-47:16, 49:1-50:13, 51:5-56:23, 57:6-
`12, and 61:19-23 of Exhibit 2013 are based on sufficient facts and
`data and are admissible under Fed. R. Evid. 702.
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`Even if TQ Delta had timely objected to paragraphs 16, 29, 42, 43, and 52 of
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`Exhibit 1026 under Fed. R. Evid. 702, these paragraphs would remain admissible.
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`TQ Delta argues that portions of Exhibit 1026, together with pages 46:19-
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`47:16, 49:1-50:13, 51:5-56:23, 57:6-12, and 61:19-23 of Exhibit 2013, should be
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`7
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`excluded because they are based on insufficient facts or data. Mot., p. 9. TQ Delta
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`alleges that these portions of Dr. Tellado’s testimony rely on a Matlab simulation
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`for an 18,000-foot scenario and that the results of this simulation were not made
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`available to TQ Delta. Mot., p. 7.
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`But Dr. Tellado never relied on an 18,000-foot scenario. Indeed, nowhere in
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`his declaration does Dr. Tellado ever refer to or rely upon any simulation of an
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`18,000-foot scenario. Rather, Dr. Tellado’s opinions were based on his knowledge,
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`education, and experience in the field of telecommunications generally and
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`particularly in the area of PAR reduction. For example, Dr. Tellado provided a
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`detailed explanation, based on simple math and logic, showing why a system
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`employing Shively’s bit-spreading technique cannot be modeled using a Gaussian
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`approximation. See Ex. 1026, ¶¶ 17-28. Dr. Tellado relied on that explanation in
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`determining that Dr. Short’s use of a Gaussian approximation was unreliable and
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`inappropriate. Id., ¶¶ 16, 29, & 42. And, Dr. Tellado’s opinions in paragraphs 43
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`and 52 were driven by his analysis of a 12,000-foot scenario, for which all data and
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`the corresponding Matlab script were provided to TQ Delta. See Ex. 1026, ¶¶ 44-
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`51; Ex. 1034. Because all of the facts and data underlying Dr. Tellado’s opinions in
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`paragraphs 16, 29, 42, 43, and 52 were disclosed to TQ Delta, those paragraphs
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`remain admissible under Fed. R. Evid. 702 and 37 C.F.R § 42.65(b).
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`TQ Delta further alleges that the above paragraphs of Exhibit 1026 and
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`8
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`pages of Exhibit 2013 should be excluded because TQ Delta could not cross-
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`examine Dr. Tellado regarding his criticism of Dr. Short’s opinions reflected in
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`these paragraphs. Mot., p. 8. But TQ Delta had an opportunity to cross-examine
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`Dr. Tellado during the deposition held on June 20, 2017 (Ex. 2013). Further, prior
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`to the deposition, Dr. Tellado provided TQ Delta with a Matlab script (Exhibit
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`1034) that generated a simulation of the 12,000-foot scenario. TQ Delta was free to
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`modify Exhibit 1034 to simulate other scenarios, such as an 18,000-foot scenario.
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`In fact, TQ Delta stated that it had modified and run Dr. Tellado’s script to
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`generate a graph that included a new “Scenario 5.” Ex. 2013, 111:4-5; see Ex.
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`2011; but see Ex. 2013, 155:4-10 (“So this code [Ex. 2010] cannot generate this
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`plot [Ex. 2011]”). Thus, if TQ Delta believed that a simulation of an 18,000-foot
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`scenario would have supported its expert’s analysis, then TQ Delta could have
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`prepared such a scenario and challenged Dr. Tellado with it in deposition. In
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`summary, TQ Delta had a complete opportunity to cross-examine Dr. Tellado
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`regarding:
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` Dr. Tellado’s explanation (in Ex. 1026, ¶¶ 16-29) of why Dr. Short’s
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`Gaussian approximation was inappropriate and unreliable, and
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` Dr. Tellado’s simulation of a 12,000-foot scenario (in Ex. 1026, ¶¶ 42-
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`52), which demonstrates that Shively’s bit-spreading technique
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`significantly increases PAR.
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`9
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
`TQ Delta contends that Petitioner should have provided the simulation of an
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`18,000-foot scenario as routine discovery because it was “relied on or cited by Dr.
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`Tellado during his testimony”. Mot., p. 8; 37; C.F.R. § 41.51(b)(1)(i). TQ Delta’s
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`contention is overbroad. A mere reference to an experiment does not require a
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`production for the underlying data for that experiment. Corning Inc. v. DSM IP
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`Assets B.V., IPR2013-00050, Paper 23, p.3 (P.T.A.B. 2013). This is the case here,
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`because Dr. Tellado’s “quick estimate” of an 18,000-foot scenario amounts to
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`nothing more than a reference to an experiment. Dr. Tellado did not indicate he
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`ever relied on the “quick estimate” in his declaration (Ex. 1026). And, Petitioner
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`did not rely on the “quick estimate” in the Petitioner’s Reply. Thus, the underlying
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`data for the “quick estimate” is not subject to routine discovery under §
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`41.51(b)(1)(i).
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`Further, Dr. Tellado stated that he performed the “quick estimate” using
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`“similar techniques to the ones that I provided.” Ex. 2013, 47:10-11. These similar
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`techniques were provided to TQ Delta in Exhibit 1034. TQ Delta could have used
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`Exhibit 1034 to generate the 18,000-foot scenario. Thus, by providing Exhibit
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`1034, Petitioner complied with § 41.51(b)(1)(i).
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`Accordingly, paragraphs 16, 29, 42, 43, and 52 of Ex. 1026 and pages 46:19-
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`47:16, 49:1-50:13, 51:5-56:23, 57:6-12, and 61:19-23 of Exhibit 2013 are
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`admissible under Fed. R. Evid. 702.
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`10
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`3.
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
`Exhibits 1026 and 2013 should not be excluded under Fed. R.
`Evid. 705.
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`TQ Delta argues that portions of Exhibits 1026 and 2013 should be excluded
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`under Fed. R. Evid. 705, which requires an expert “to disclose facts or data on
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`cross-examination.” Fed. R. Evid. 705; see Mot., p. 9. But Dr. Tellado did not offer
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`any opinions based on a simulation of an 18,000-foot scenario in his first or second
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`declarations. Dr. Tellado first stated that he did a “quick estimate” of an “AWG26
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`loop of 18,000 feet” during his second deposition. Ex. 1026, 46:10-16. Because Dr.
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`Tellado did not rely on that “quick estimate” for any analysis or conclusion in his
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`declarations, Fed. R. Evid. 705 does not apply to Dr. Tellado’s opinions of the
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`“quick estimate” and should not be used to exclude portions of Exhibit 1026 or
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`Exhibit 2013.
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`Further, Dr. Tellado’s opinion that Gaussian approximation was unreliable
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`was based on the analysis included in his second declaration – which disclosed all
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`relevant facts. Ex. 1026, ¶¶17-28. TQ Delta fails to point to any instance where Dr.
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`Tellado refused to discuss or disclose any facts or data pertaining to the opinions
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`provided in his second declaration. Thus, Fed. R. Evid. 705 should not be used to
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`exclude paragraphs 16, 29, 42, 43, and 52 of Exhibit 1026.
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`D. Exhibits 1023, 1024, and 1028 and Portions of Exhibit 2013 are
`Relevant and Admissible
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`1.
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`Exhibits 1023, 1024, and 1028
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`11
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
`Exhibit 1023 is a technical article published in IEEE Transactions of
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`Communications. Exhibit 1024 is a technical article presented at IEEE Global
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`Telecommunications Conference. Exhibit 1028 includes selected pages from the
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`textbook titled Understanding Digital Subscriber Technology.
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`TQ Delta argues that Exhibits 1023, 1024, and 1028 should be excluded
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`under Fed. R. Evid. 402, Fed. R. Evid. 403, 37 C.F.R. § 42.23, and 37 C.F.R. §
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`42.61 because Exhibits 1023, 1024, and 1028 are irrelevant, serve to fill an alleged
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`shortcoming in the evidentiary record and were not timely submitted by the
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`Petitioner. Mot., pp. 9-12.
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`First, TQ Delta does not explain how Exhibits 1023, 1024, and 1028 fail to
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`satisfy the test for relevancy under Fed. R. Evid. 401 or show how Exhibits 1023,
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`1024, and 1028 are unfairly prejudicial under Fed. R. Evid. 403. With no
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`explanation provided, TQ Delta fails to carry its burden as the movant. See 37
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`C.F.R. § 42.20(c).
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`Second, Exhibits 1023, 1024, and 1028 are relevant to this proceeding
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`because they support Petitioner’s contention that phase-scrambling was a well-
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`known technique in the prior art for PAR reduction. As discussed above, whether
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`phase scrambling was known to reduce PAR is an issue in this inter partes review.
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`Exhibit 1023 explains how phase scrambling via a “fixed phasor-transformation”
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`was a way to reduce PAR. Exhibit 1023, p. 1234. Exhibit 1024 explains that phase
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`scrambling using “phase rotated signal parts” was another way to reduce PAR.
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`Exhibit 1024, p. 1. Exhibit 1028 explains that phase scrambling using techniques
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`described in Exhibit 1024 was a way to reduce PAR in DMT-based systems.
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`Exhibit 1028, p. 238. Thus, Exhibits 1023, 1024, and 1028 demonstrate the truth
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`behind Petitioner’s assertion that phase scrambling to reduce PAR was a known
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`technique before the ’243 Patent was filed. Petitioner’s Reply, p. 12.
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`Exhibit 1028 is also relevant to this proceeding for another reason. Exhibit
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`1028 supports Petitioner’s assertion that market forces would have prompted a
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`person of ordinary skill in the art to combine Shively and Stopler. Petitioner’s
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`Reply, pp. 16-17; Ex. 1028, p. 17. Whether Shively and Stopler could be combined
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`is an issue in this inter partes review. Thus, Exhibit 1028 refutes TQ Delta’s
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`contention that there were no market forces to prompt the combination of Shively
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`and Stopler. Patent Owner’s Response, pp. 55-57.
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`Third, TQ Delta does not explain how Exhibits 1023, 1024, and 1028 will be
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`unfairly prejudicial or why their probative value is minimal under Fed. R. Evid.
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`403.
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`Fourth, Exhibits 1023, 1024, and 1028 were filed in response to TQ Delta’s
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`contention that scrambling phases of signal carriers to reduce PAR was not known.
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`See Patent Owner’s Response, pp. 34, 43, and 49. Exhibit 1028 was also filed in
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`response to TQ Delta’s assertion that there were no market forces that would have
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`prompted a POSITA to combine Shively and Stopler. See Patent Owner’s
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`Response, pp. 55-57. Thus, submission of Exhibits 1023, 1024, and 1028 was
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`proper under 37 C.F.R. § 42.23 and 37 C.F.R. § 42.61 because the Petitioner can
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`“respond to arguments raised in the … patent owner response.” 37 C.F.R. § 42.23.
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`Accordingly, Exhibits 1023, 1024, and 1028 are relevant and admissible
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`under Fed. R. Evid. 402, Fed. R. Evid. 403, 37 C.F.R. § 42.23, and 37 C.F.R. §
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`42.61.
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`2.
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`Pages 146:20-149:7 and 149:8-152:25 of Exhibit 2013 are Relevant
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`Pages 146:20-149:7 and 149:8-152:25 of Exhibit 2013 pertain to Dr.
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`Tellado’s testimony regarding inclusion of Exhibits 1023 and 1024 in Dr.
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`Tellado’s thesis (Exhibit 1025).
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`TQ Delta alleges that pages 146:20-149:7 and 149:8-152:25 of Exhibit 2013
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`are inadmissible under Fed. R. Evid. 402, Fed. R. Evid. 403, 37 C.F.R. § 42.23,
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`and 37 C.F.R. § 42.61 because Petitioner failed to address Exhibits 1023 and 1024
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`in the Petition, and in Dr. Tellado’s first and second declarations. Mot., pp. 11-12.
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`TQ Delta also alleges that pages 146:20-149:7 and 149:8-152:25 of Exhibit 2013
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`are inadmissible because Exhibits 1023 and 1024 are irrelevant and were not
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`timely filed. Mot., pp. 11-12.
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`TQ Delta fails to analyze how pages 146:20-149:7 and 149:8-152:25 of
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`Exhibit 2013 fail the relevancy test under Fed. R. Evid. 401. TQ Delta also fails to
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` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
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`IPR2016-01020
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`explain how these pages are unfairly prejudicial to TQ Delta under Fed. R. Evid.
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`403. With no explanation provided, TQ Delta fails to carry its burden as the
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`movant. See 37 C.F.R. § 42.20(c).
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`As already discussed above, there is no authority that states that exhibits that
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`are not cited in the Petition or expert declarations are irrelevant. Further, as already
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`explained, Exhibits 1023 and 1024 are relevant and were properly filed under 37
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`C.F.R. § 42.23 and 37 C.F.R. § 42.61 in response to the Patent Owner’s arguments.
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`Thus information included in Exhibits 1023 and 1024 is relevant and timely for the
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`same reasons. Because Exhibits 1023 and 1024 are relevant the discussion of those
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`exhibits in Exhibit 2013 is also relevant.
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`Further, pages 146:20-149:7 and 149:8-152:25 of Exhibit 2013 are relevant
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`because they show that phase scrambling was a known way to reduce PAR before
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`the ’243 Patent was filed. See Petitioner’s Reply, Paper 17, p. 12-13. As discussed
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`above, phase scrambling is an issue in this inter partes review. These pages are
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`proper redirect testimony that responds to TQ Delta’s questions regarding Dr.
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`Tellado’s thesis and the research activity relating to “PAR reduction” in the 1990s.
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`Ex. 2013, 10:23-11:16, 14:21-15:22, 17:3-18. Dr. Tellado explains, for example,
`
`that the Muller paper (Ex. 1024) describes “two algorithms that use phase rotations
`
`to reduce PAR.” Ex. 2013, 152:2-3. Dr. Tellado also explains how the Mestdagh
`
`paper (Ex. 1023) describes how “each QAM-modulated carrier within a DMT
`
`15
`
`

`

` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
`
`
`IPR2016-01020
`
`symbol has a phase transformation to reduce PAR.” Ex. 2013, 148:18-20. Dr.
`
`Tellado’s testimony demonstrates the truth of his declaration statement that using a
`
`phase-scrambler to reduce PAR was well-known in the prior art. Ex. 1026, ¶4. The
`
`evidence also supports Dr. Tellado’s opinion that a POSITA would have
`
`recognized that the purpose of Stopler’s phase scrambler was to reduce PAR. Ex.
`
`1009, ¶60.
`
`Accordingly, Exhibit 2013 is relevant and admissible under Fed. R. Evid.
`
`402, Fed. R. Evid. 403, 37 C.F.R. § 42.23, and 37 C.F.R. § 42.61.
`
`III. Conclusion
`
`For the above noted reasons, Petitioner respectfully requests that the Board
`
`deny Patent Owner’s Motion to Exclude.
`
`July 14, 2017
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`
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`Respectfully submitted,
`
`/David L. McCombs/
`David L. McCombs
`Counsel for Petitioner
`Registration No. 32,271
`
`
`
`
`
`16
`
`

`

`
`
`
` Petitioner’s Opposition to Patent Owner’s Motion to Exclude
`
`IPR2016-01020
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.205, that
`service was made on the Patent Owner as detailed below.
`
`Date of service
`
`July 14, 2017
`
`
`
`
`
`
`
`Persons served
`
`
`
`
`
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`
`
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`
`
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`
`Manner of service
`Email: pmcandrews@mcandrews-ip.com;
`twimbiscus@mcandrews-ip.com; smcbride@mcandrews-ip.com;
`cscharff@mcandrews-ip.com; akarp@mcandrews-ip.com;
`TQD-CISCO@mcandrews-ip.com
`
`Documents served
`
`Petitioner’s Opposition to Patent Owner’s Motion
`to Exclude
`
`Peter J. McAndrews
`Thomas J. Wimbiscus
`Scott P. McBride
`Christopher M. Scharff
`Andrew B. Karp
`MCANDREWS, HELD & MALLOY, LTD
`500 West Madison Street, 34th Floor
`Chicago, IL 60661
`
`
`
`/David L. McCombs/
`David L. McCombs
`Counsel for Petitioner
`Registration No. 32,271
`
`17
`
`

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