`
`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
`
`Case IPR2016-010212
`Patent 8,718,158
`
`
`PETITIONER’S OPPOSITION TO PATENT OWNER’S
`MOTION FOR DISCOVERY
`
`
`
`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.
`
` DISH Network, LLC, who filed a Petition in IPR2017-00255, 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 IPR2017-00417, have been joined in this proceeding.
`
` 2
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`I.
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`
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
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` IPR2016-01020 and IPR2016-01021
`
`
`Introduction
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`The Board should deny Patent Owner TQ Delta’s extraordinary request for
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`information that was never cited or relied upon by Petitioner or Petitioner’s expert,
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`Dr. Jose Tellado. The requested information is not within the scope of routine
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`discovery, and Patent Owner fails to show how additional discovery would be in
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`the interests of justice. Notably, Patent Owner already has access to the same or
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`equivalent information. Accordingly, the Motion for Discovery should be denied.
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`II.
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`The 18,000-Foot Scenario is Not Subject to Routine Discovery
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`A. Neither Petitioner nor Dr. Tellado cited the requested information
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`Routine discovery requires that “any exhibit cited in a paper or in testimony
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`must be served with the citing paper or testimony.” 37 C.F.R. § 42.51(b)(1)(i).
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`TQ Delta requests discovery pertaining to the Matlab simulation code and results
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`for an 18,000-foot scenario (“requested information”). Patent Owner’s Motion for
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`Discovery (“Mot.”), p. 1; see Ex. 2015.
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`But the papers filed with Petitioner’s Reply—including Dr. Tellado’s
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`Second Declaration, Ex. 1026—do not cite to any exhibit relating to a simulation
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`of an 18,000-foot scenario. Indeed, Petitioner’s papers do not even discuss a
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`simulation of an 18,000-foot scenario. Patent Owner does not allege otherwise.
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`TQ Delta argues that Petitioner “necessarily relied” on an 18,000-foot
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`scenario because only a simulation could “quantify whether a PAR problem is
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`2
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
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` IPR2016-01020 and IPR2016-01021
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`created on a given loop.” Mot. pp. 4-5. But Dr. Tellado did not quantify the
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`amount of PAR increase from using Shively’s technique on an 18,000-foot loop.
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`Dr. Tellado explained that his “quick estimate” evaluated whether Dr. Short’s
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`“Gaussian approximation was correct” and that he “determined it was not.” Ex.
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`2013, 47:14-16; see also id., 49:7-10 & 50:6-51:20. As Dr. Tellado showed in his
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`second declaration, demonstrating that Dr. Short’s approach was wrong and
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`unreliable did not require a simulation. See Ex. 1026, ¶¶ 15-29.
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`Patent Owner’s citation to Lumentum v. Capella is plainly distinguished.
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`See Mot., p. 5. In Lumentum, the petitioner filed a paper “relying upon, expressly
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`referencing, and quoting” the document being sought in discovery. Lumentum
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`Holdings, Inc. v. Capella Photonics, Inc., IPR2015-00731, Paper 32, p. 3 (P.T.AB
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`2016). As discussed above, Petitioner’s Reply and Dr. Tellado’s second
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`declaration did not refer in any way to a simulation of an 18,000-foot scenario.
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`Because the requested information was not cited in Petitioner’s papers, the
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`motion for discovery under § 42.51(b)(1)(i) should be denied.
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`B.
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`Simulation of an 18,000-foot scenario would be consistent with Dr.
`Tellado’s testimony that Dr. Short’s analysis is flawed.
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`TQ Delta alleges that Petitioner should provide the “records of the 18,000
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`foot simulation” because the 18,000-foot scenario is “inconsistent with Petitioner’s
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`allegations that Dr. Short is wrong and Shively does have a PAR problem.” Mot.,
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`p. 6; see 37 C.F.R. § 42.51(b)(1)(iii).
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`3
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
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` IPR2016-01020 and IPR2016-01021
`However, Dr. Tellado did not testify that he performed a simulation that
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`showed effects of the Shively carriers on PAR for an 18,000-foot scenario.
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`Instead, Dr. Tellado testified that his “quick estimate” of an 18,000-foot scenario
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`looked at whether Dr. Short’s “Gaussian approximation was correct” and
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`confirmed that “it was not.” Ex. 2013, 47:14-16; see also 49:7:10 & 50:6-51:20.
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`When TQ Delta asked how the “quick estimate” would compare to another
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`scenario, Dr. Tellado emphasized that his “quick estimate” did not look at that
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`issue, but instead looked at the appropriateness of Dr. Short’s application of a
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`Gaussian approximation to a system having 88 “usable” and 16 “Shively” carriers:
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`Q. Are you suggesting that Dr. Short’s – if you had
`run a full simulation on Dr. Short’s 18,000-foot loop,
`assuming the 88 usable carriers and 16 Shively carriers
`and the remainder unusable, are you telling me that that
`would be worse than your Scenario 1 here?
`A.
`I didn’t say that. I just said it was diverging
`relative to a Gaussian process.
`Ex. 2013, 50:6-13.
`
`Q. Earlier, you said you observed this quick simulation
`diverging from something. Did you say that earlier?
`A. Dr. Short makes the statement that you could
`approximate -- I forget his exact number of carriers and
`Shively carriers -- and he said that you could
`approximate it with the Gaussian process. You asked me
`
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`4
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
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` IPR2016-01020 and IPR2016-01021
`if I checked that case. And I said I checked it, and it
`showed it was not a good approximation.
`Ex. 2013, 51:5-14; see also id., 53:8 (“88 plus 16 is not equal to 104 Gaussian”).
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`Regarding Shively, Petitioner’s position is that “Shively’s transmitter would
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`suffer from an increased peak-to-average power ratio [PAR].” IPR2016-01020,
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`Paper 2, p. 13; IPR2016-01021, Paper 2, p. 14. TQ Delta does not allege that the
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`“quick estimate” would show Shively’s technique decreasing PAR or be otherwise
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`inconsistent with such statements by Petitioner.
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`TQ Delta does not identify any statement in Petitioner’s Reply or in Dr.
`
`Tellado’s declaration or testimony that is allegedly inconsistent with what would
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`be shown by a “quick estimate” comparing (a) a scenario with 88 usable carriers
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`with 16 Shively carriers, and (b) a Gaussian process with the same power as 104
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`carriers. To the contrary, the quick estimate would be entirely consistent with Dr.
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`Tellado’s testimony. For example, Dr. Tellado’s declaration uses simple logic to
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`conclude that “Dr. Short’s analysis is flawed … in assuming a Gaussian approxi-
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`mation….” Ex. 1026, ¶ 29. Dr. Tellado testified that his “quick estimate” showed
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`the same conclusion: “it was not a good approximation.” Ex. 2013, 51:13-14.
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`Accordingly, Patent Owner’s motion fails to identify any “inconsistent
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`information” that would be discoverable under 37 C.F.R. § 42.51(b)(1)(iii).
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`III. The 18,000-Foot Scenario is Not Subject to Additional Discovery
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`TQ Delta bears the burden of showing that additional discovery is necessary
`5
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
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` IPR2016-01020 and IPR2016-01021
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`in the interests of justice. 37 C.F.R. § 42.51(b)(2)(i); 35 U.S.C. § 316(a)(5). The
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`Board’s Garmin factors weigh against additional discovery. See Garmin Int’l v.
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`Cuozzo Speed Tech., IPR2012-00001, Paper 26, p. 5 (P.T.A.B. 2013).
`
`A. Garmin Factor #1: TQ Delta has not shown that additional
`discovery will find anything useful
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`Additional discovery requires more than a mere possibility or allegation of
`
`finding something useful. During cross-examination, Dr. Tellado stated that he
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`was uncertain whether he still had the file with the code for the “quick estimate” or
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`the results of the “quick estimate.” Ex. 2013, 47:17-48:6 & 57:13-14. Dr. Tellado
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`explained that the he did not have revision control on the file, and that as he
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`developed the program he kept saving the code to the same file. Ex. 2013, 48:2-25.
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`Since then, Dr. Tellado has reviewed his records and has not located any versions
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`of the code that correspond to Dr. Short’s parameters for an 18,000-foot scenario
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`(i.e., 88 normal carriers and 16 “Shively” carriers).
`
`TQ Delta also fails to explain how or why a simulation analyzing Dr. Short’s
`
`use of a Gaussian approximation will be useful. TQ Delta is incorrect in its
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`contention that the requested information would show whether the “simulation
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`supports or negates Petitioner’s contention that a POSITA would recognize
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`Shively is suffering from a problematic increase in PAR.” Mot., p. 6. Dr. Tellado
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`did not state that his “quick estimate” investigated how Shively’s carriers affect
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`PAR. Instead, Dr. Tellado explained that the “quick estimate” investigated
`6
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`
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
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` IPR2016-01020 and IPR2016-01021
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`whether—and confirmed that—the Gaussian approximation used by Dr. Short is
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`flawed. Ex. 2016, ¶29; 2013, 49:4-5. TQ Delta does not explain why it believes
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`that further confirmation of Dr. Short’s error will be useful.
`
`B. Garmin Factor #3: Patent Owner has the ability to run a
`simulation of an 18,000-foot scenario
`
`Contrary to TQ Delta’s contention that it has no ability to generate
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`equivalent information by other means, TQ Delta has repeatedly stated that it has
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`successfully modified Dr. Tellado’s source code (provided as Ex. 1034) to
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`investigate alternative scenarios of its own choosing. Mot., p. 7 (“Patent Owner
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`has done its own 18,000 foot simulation”); Ex. 2016, 10:4-9 (“we can take that
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`script and plug in the right numbers ourselves… we have done it”); Ex. 2013,
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`108:7-111:12; Ex. 2010. TQ Delta also deposed Dr. Tellado about its own chosen
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`scenario. See Ex. 2013, 108:7-111:23. Thus, TQ Delta represents that it already
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`has simulation results for an 18,000-foot scenario. This fact, alone, is sufficient to
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`defeat the request for additional discovery. “Information a party can reasonably
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`figure out or assemble without a discovery request would not be in the interest of
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`justice to have produced by the other party.” Garmin, Paper 26 at 6.
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`TQ Delta argues that “it has no meaningful ability to get [its own simulation]
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`into the record.” Mot., p. 7. Whether true or not, that consideration is separate
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`from whether TQ Delta has other means for obtaining the information it seeks in
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`discovery. Furthermore, TQ Delta’s requested relief—an order compelling service
`7
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
`
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` IPR2016-01020 and IPR2016-01021
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`of information (Mot., p. 1)—would not address its concern about the record.
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`TQ Delta laments that Dr. Tellado declined to testify regarding the accuracy
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`of TQ Delta’s simulation. Mot., p. 7. But Dr. Tellado was appropriately skeptical
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`of the graph TQ Delta presented to him, since he saw that TQ Delta’s code
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`included more changes than it acknowledged (Ex. 2013, 108:24-109:1 (“I see an F
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`flash [sic, fflush()]”)), and its code could not have created the graph he was shown.
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`Ex. 2013, 155:10 (“this code [Ex. 2010] cannot generate this plot [Ex. 2011]”).
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`C. Garmin Factor #4: Patent Owner’s discovery request (Ex. 2015) is
`overly broad
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`TQ Delta’s discovery request (Ex. 2015) is not tailored according to the
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`genuine need. TQ Delta’s request for “a copy of each unique version” effectively
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`requests a keystroke-by-keystroke record of Dr. Tellado’s development of the
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`simulation. Such a request is unreasonable and unnecessary. The request also
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`encompasses code and results that may have been run by the Petitioner’s attorneys
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`and which are protected as attorney-work product.
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`IV. Conclusion
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`For the above noted reasons, Petitioner respectfully requests that the Board
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`deny Patent Owner’s Motion to Compel Discovery.
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`July 21, 2017
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`Respectfully submitted,
`/David L. McCombs/
`David L. McCombs
`Counsel for Petitioner
`Registration No. 32,271
`8
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`Petitioner’s Opposition to Patent Owner’s Motion for Discovery
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` IPR2016-01020 and IPR2016-01021
`
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`CERTIFICATE OF SERVICE
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`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
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`July 21, 2017
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`Manner of service
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`Documents served
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`Persons served
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`Email: pmcandrews@mcandrews-ip.com;
`twimbiscus@mcandrews-ip.com;
`smcbride@mcandrews-ip.com;
`cscharff@mcandrews-ip.com;
`akarp@mcandrews-ip.com; and
`TQD-CISCO@mcandrews-ip.com
`
`Petitioner’s Opposition to Patent Owner’s Motion
`for Discovery
`
`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
`
`
`
`9
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`
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