UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ARRIS GROUP, INC.
`Petitioner
`
` v.
`
`TQ DELTA, LLC
`PO
`
`
`
`Case: IPR2016-01160
`
`U.S. PATENT NO. 8,611,404 B2
`
`
`
`
`
`REQUEST FOR REHEARING UNDER 37 C.F.R. § 42.71(d)
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`
`
`
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`PO Box 1450
`Alexandria, Virginia 22313–1450
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`ARRIS GROUP, INC.
`Petitioner
`
` v.
`
`TQ DELTA, LLC
`PO
`
`
`
`Case: IPR2016-01160
`
`U.S. PATENT NO. 8,611,404 B2
`
`
`
`
`
`REQUEST FOR REHEARING UNDER 37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`PO Box 1450
`Alexandria, Virginia 22313–1450
`
`
`
`
`
`I.
`
`INTRODUCTION……………………………………………………………. 2
`
`CONTENTS
`
`II. APPLICABLE LEGAL STANDARDS……………………………………… 3
`
`III. ARGUMENT………………………………………………………………… 6
`
`A.
`
`
`
`B.
`
`
`C.
`
`
`
`
`
`
`
`D.
`
`
`
`
`The Final Written Decision Adopted a Construction of “Synchronization
`Signal” That Differed From the Parties’ Proposals and From the
`Institution Decision. ................................................................................... 6
`
`The Final Written Decision Limited Its Analysis of “Synchronization
`Signal” to the Petition. ................................................................................ 9
`
`The Record Includes Arguments Applicable to the “Synchronization
`Signal” That Were Not Considered in the Final Written Decision. .........10
`
`1. PO Admitted that Vanzieleghem’s “Pilot Tone” Teaches Frequency
` Synchronization. ................................................................................10
`
`2. Petitioner’s Reply Should Have Been Considered. ..........................11
`
`If the Board Concludes That the Evidence of Record Does Not Illustrate
`That the References Teach the “Synchronization Signal” as Construed in
`the Final Written Decision, Petitioner Should Be Given an Opportunity to
`Show Unpatentability Under That Construction. .....................................13
`
`
`IV. CONCLUSION…………………………………………………………….. 15
`
`CERTIFICATE OF SERVICE
`
`
`
`
`i
`
`
`
`TABLE OF AUTHORITIES
`
` CASES
`
`Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015)…………..4, 5
`Dell Inc. v. Acceleron, LLC, 818 F.3d 1293, 1298 (Fed. Cir. 2016)……………… 3
`Rodale Press, Inc. v. FTC, 407 F.2d 1252, 1256-57 (D.C. Cir. 1968)…………….. 5
`Rovalma, S.A. v. Bohler-Edelstahl GmbH & Co. KG, 856 F.3d 1019, 1026-28
`(Fed. Cir. 2017)………………………………………………………4, 5, 11, 13
`
`
`SAS Inst., Inc. v. ComplementSoft, LLC, 825 F.3d 1341, 1351 (Fed. Cir.
`2016)……………………………………………………………………...3, 5, 14
`
`STATUTES
`
`35 U.S.C. § 103(a)……………………………………………………………….... 1
`37 C.F.R. § 42.71(d)….....…………………………………………........................ 1
`5 U.S.C. § 554(b)(3)……………………………………………………………….. 5
`
`OTHER AUTHORITIES
`
`AMERICAN NATIONAL STANDARDS INSTITUTION (ANSI) T1.413-1995
`STANDARD……………………………………………………………...passim
`
`
`Network and Customer Installation Interfaces – Asymmetric Digital Subscriber
`Line (ADSL) Metallic Interface………………………………………………...1
`
`
`U.S. Patent No. 5,838,268…………………………………………………………. 1
`U.S. Patent No. 5,956,323…………………………………………………………. 1
`U.S. Patent No. 6,246,725 B1………………………………………………..passim
`U.S. Patent No. 8,611,404 B2……………………………………………………... 1
`
`
`
`ii
`
`
`
`Pursuant to 37 C.F.R. § 42.71(d), ARRIS Group, Inc. (“Petitioner”) hereby
`
`requests rehearing of that part of the Board’s Final Written Decision (Paper No. 34,
`
`December 13, 2017) regarding Statutory Ground 1 of the Petition1 which asserts
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`that claims 1-20 of the ‘404 patent2 are unpatentable under 35 U.S.C. § 103(a) as
`
`obvious over Bowie,3 Vanzieleghem,4 and ANSI T1.413.5
`
`Specifically, Petitioner requests that the Board (1) review whether evidence
`
`of record not addressed in the Final Written Decision demonstrates that the “pilot
`
`tone” disclosed by Vanzieleghem and ANSI T1.413 discloses the claimed
`
`“synchronization signal” of the ‘404 patent in view of the claim construction
`
`adopted by the Board for the first time in the Final Written Decision; (2) reconsider
`
`its determination that PO’s discussion of the “pilot tone” in its Reply “is beyond
`
`the scope of a proper reply;” and/or (3) permit Petitioner to show that the cited
`
`
`1 References and citations herein to “Petition” are to the Petition, Paper No. 1.
`
`2 U.S. Patent No. 8,611,404 B2 (Ex. 1001, “the ‘404 patent”).
`
`3 U.S. Patent No. 5,956,323; issued Sept. 21, 1999 (Ex. 1005) (“Bowie”).
`
`4 U.S. Patent No. 6,246,725 B1; issued June 12, 2001 (Ex. 1006)
`(“Vanzieleghem”).
`
` 5
`
` Network and Customer Installation Interfaces – Asymmetric Digital Subscriber
`Line (ADSL) Metallic Interface, AMERICAN NATIONAL STANDARDS
`INSTITUTION (ANSI) T1.413-1995 STANDARD (Ex. 1009) (“ANSI T1.413”).
`U.S. Patent No. 5,838,268 (Ex. 1011).
`
`
`
`1
`
`
`
`references disclose the claimed “synchronization signal” in view of the claim
`
`construction adopted by the Board for the first time in the Final Written Decision.
`
`I.
`
`INTRODUCTION
`
`Petitioner respectfully submits the Board erred as a matter of law in failing
`
`to address whether the pilot tone taught in Vanzieleghem and in ANSI T1.413
`
`teaches the “synchronization signal” recited in the ‘404 patent in view of the claim
`
`construction ultimately adopted by the Board in the Final Written Decision. As the
`
`Board recognized, the “pilot tone” is mentioned in paragraph 58 of the expert
`
`declaration of Lance McNally, filed with the Petition. The Board nevertheless
`
`declined to address whether the pilot tone teaches the claimed “synchronization
`
`signal” based on its conclusion that “Petitioner’s reliance, in the Reply, upon the
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`teachings of a pilot tone in Vanzieleghem and ANSI T1.413 constitutes a change in
`
`theory, and is therefore beyond the scope of a proper reply.” See Paper No. 34 –
`
`Final Written Decision at 16.
`
`Rehearing should be granted to address whether the references disclose the
`
`claimed “synchronization signal” for three reasons. First, the Board ignored the
`
`fact that the PO itself admitted in its Preliminary Response that “the ‘pilot tone’ of
`
`Vanzieleghem is sent out periodically to maintain synchronization between the
`
`transmitter and receiver. See Ex. 1006 at 6:36-41.” (Paper No. 7 – PO’s
`
`Preliminary Response at 30).
`
`
`
`2
`
`
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`Second, Petitioner also appropriately addressed the “pilot tone” in the Reply
`
`by properly responding to the alternative claim construction of “synchronization
`
`signal” proposed and argued by PO in its Response (Paper No. 16).6 Petitioner
`
`therefore respectfully submits that the Board erred in deeming that portion of the
`
`Reply as being beyond the scope of a proper reply.
`
`Third, the Final Written Decision adopted a construction of “synchronization
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`signal” that differed both from the construction proposed in the Petition - which
`
`also was originally adopted by the Board in the Institution Decision (Paper No. 8) -
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`and the construction proposed by the PO. Therefore, even if the Board declines to
`
`consider PO’s admission or the arguments in Petitioner’s Reply, Petitioner should
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`be permitted to show that the cited references teach the claimed “synchronization
`
`signal” under the construction adopted by the Board, for the first time, in the Final
`
`Written Decision.
`
`II. APPLICABLE LEGAL STANDARDS
`
`It is clearly established that “IPR proceedings are formal administrative
`
`adjudications subject to the procedural requirements of the Administrative
`
`Procedure Act (“ACA”).” SAS Inst., Inc. v. ComplementSoft, LLC, 825 F.3d 1341,
`
`1351 (Fed. Cir. 2016) (citing Dell Inc. v. Acceleron, LLC, 818 F.3d 1293, 1298
`
`
`6 Paper No.16.
`
`
`
`3
`
`
`
`(Fed. Cir. 2016); Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir.
`
`2015)).
`
`Three principles are applicable to this request for rehearing: First, the APA
`
`allows the Board to rely on the entire record, including a patent owner’s own
`
`submissions, in determining whether the challenged claims are unpatentable in
`
`view of the teachings of the prior art. Rovalma, S.A. v. Bohler-Edelstahl GmbH &
`
`Co. KG, 856 F.3d 1019, 1026-28 (Fed. Cir. 2017). Here, as discussed below, the
`
`PO admitted in its Preliminary Response that Vanzieleghem discloses a “pilot
`
`tone” to maintain synchronization in low power mode (e.g., Preliminary Response
`
`at 28-30). This admission, however, was not addressed or even mentioned in the
`
`Final Written Decision. Instead, the Board expressly declined entirely to “address
`
`whether the pilot tone taught in Vanzieleghem and in ANSI T1.413 teaches the
`
`recited ‘synchronization signal’” in view of its conclusion that the Petition itself
`
`did not identify the pilot tone as the synchronization signal and that the discussion
`
`of the pilot tone in Petitioner’s Reply was “beyond the scope of a proper reply.”
`
`Paper No. 34 - Final Written Decision at 16.
`
`Second, Petitioner submits that the Board erred in deeming the discussion in
`
`the Reply that the “pilot tone” of Vanzieleghem and ANSI T1.413 teaches the
`
`claimed “synchronization signal” as being “beyond the scope of a proper reply,”
`
`and thereby failing to consider that argument in the Final Written Decision.
`
`
`
`4
`
`
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`Contrary to the Board’s conclusion, however, because the discussion in the Reply
`
`was made to present a case for unpatentability under the proposed construction of
`
`“synchronization signal” argued in PO’s Response, it was properly the subject of
`
`the Reply and should have been considered by the Board. The Federal Circuit has
`
`recognized that when a patent owner argues for a claim construction in its PO
`
`Response, a petitioner can and should “present a case for unpatentability under that
`
`construction when it ha[s] the opportunity, in its Reply.” Rovalma, S.A, 856 F.3d
`
`at 1029. Otherwise, there is a risk of waiver or forfeiture if the Board ultimately
`
`adopts the construction proposed by the PO. Id. Accordingly, Petitioner’s
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`alternative argument in its Reply that the “pilot tone” teaches the “synchronization
`
`signal” was proper and should have been considered, along with the PO’s
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`admissions.
`
`Third, the Federal Circuit has interpreted “[5 U.S.C.] § 554(b)(3) in the
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`context of IPR proceedings to mean that ‘an agency may not change theories in
`
`midstream without giving respondents reasonable notice of the change’ and ‘the
`
`opportunity to present argument under the new theory.’” SAS Inst., 825 F.3d at
`
`1351 (citing Belden Inc., v. Berk-Tek LLC, 805 F.3d 1064, 1080 (Fed. Cir. 2015),
`
`quoting Rodale Press, Inc. v. FTC, 407 F.2d 1252, 1256-57 (D.C. Cir. 1968)).
`
`Thus, in SAS Inst., the Federal Circuit remanded to the Board for further
`
`proceedings a case in which the Board adopted a construction in its final written
`
`
`
`5
`
`
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`decision that differed from the construction adopted in the institution decision
`
`without allowing the Petitioner an opportunity to show unpatentability under the
`
`new construction. Id. at 1352.7
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`Accordingly, since the Board adopted a construction for “synchronization
`
`signal” in the Final Written Decision that differed from the construction adopted in
`
`the Institution Decision as well as from the constructions proposed by Petitioner
`
`and PO, in the event the Board does not deem the evidence of record sufficient to
`
`address the issue, Petitioner is entitled to the opportunity to show that the
`
`references teach the claimed “synchronization signal” under the Board’s
`
`construction.
`
`III. ARGUMENT
`
`A.
`
`The Final Written Decision Adopted a Construction of
`“Synchronization Signal” That Differed From the Parties’
`Proposals and From the Institution Decision.
`
`
`In the Petition, Petitioner proposed the following construction: “a signal
`
`allowing frame synchronization between the transmitter of the signal and the
`
`receiver of the signal.” (Paper No. 1 - Petition at 24).
`
`
`7 Judge Newman filed a separate opinion, concurring in part and dissenting in part,
`but joined the opinion fully as to this holding, “agree[ing] that principles of due
`process, as well as the strictures of the Administrative Procedure Act as applied to
`the American Invents Act (AIA) and the Patent and Trademark Office (PTO),
`require that the parties have the opportunity to adjust their arguments and evidence
`to the Patent Trial and Appeal Board’s (PTAB’s) change in claim construction.”
`Id. at 1353 (concurring statement of Judge Newman).
`
`
`
`6
`
`
`
`In its Preliminary Response, PO proposed the following alternative
`
`construction: “an indication used to establish or maintain a timing relationship
`
`between transceivers.” (Paper No. 7 - PO’s Preliminary Response at 6).
`
`Both parties agreed that the claimed “synchronization signal” apparently
`
`corresponds to the ‘404 Patent’s “timing reference signal” as a basis for claim
`
`construction. (Paper No. 1 - Petition at 24; Paper No. 16 - PO Response at 20).
`
`In the Institution Decision, the Board adopted the Petitioner’s construction,
`
`noting both that Petitioner’s construction “is based in light of the ‘404 patent
`
`specification” and that PO’s construction “is not inconsistent with Petitioner’s
`
`construction.” Institution Decision at 6. The Institution Decision further noted
`
`that Petitioner’s construction is based on the ‘404 patent’s disclosure that the
`
`timing reference signal “synchronizes the frame counter of the CPE transceiver to
`
`the corresponding frame counter of the CO transceiver.” (Paper No. 8 -Institution
`
`Decision at 6) (quoting Ex. 1001, 5:50-52).
`
`In its Response, PO again argued for its construction of “synchronization
`
`signal” as “an indication used to establish or maintain a timing relationship
`
`between transceivers.” (Paper No. 16 - PO Response at 19). In arguing for its
`
`proposed construction, PO characterized the “synchronization signal” as being
`
`addressed to “frequency synchronization,” while it argued that Petitioner’s
`
`construction was incorrectly directed to “frame synchronization.”
`
`
`
`7
`
`
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`In its Reply, Petitioner reiterated its position that the construction proposed
`
`in the Petition and adopted in the Institution Decision was correct. Petitioner also
`
`addressed PO’s proposed construction, arguing in the alternative that even under
`
`PO’s proposed construction, the references taught the “synchronization signal” in
`
`view of the teaching of a pilot tone in Vanzieleghem and ANSI T1.413. See Paper
`
`No. 34 - Final Written Decision at 15 (citing Pet. Reply 18-19).
`
`In the Final Written Decision, the Board again addressed the construction of
`
`“synchronization signal,” first noting that “[i]n our Decision on Institution, we
`
`adopted Petitioner’s proposed construction of this term to mean ‘a signal allowing
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`frame synchronization between the transmitter of the signal and the receiver of the
`
`signal.’” Paper No. 34 - Final Written Decision at 6. The Board then addressed
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`PO’s arguments against this construction, ultimately agreeing with PO that “our
`
`construction in the Decision to Institute is overly broad to the extent it
`
`encompasses a synchronization frame.” (Paper No. 34 - Final Written Decision at
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`7). Nevertheless, the Board also declined to adopt PO’s proposed construction
`
`because it “lacks support in the specification and would encompass the very
`
`synchronization frame we are persuaded should be excluded.” (Paper No. 34 -
`
`Final Written Decision at 9).
`
`Accordingly, the Final Written Decision concluded that the appropriate
`
`construction of “synchronization signal” is “a signal allowing synchronization
`
`
`
`8
`
`
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`between the clock of the transmitter of the signal and the clock of the receiver of
`
`the signal.” (Paper No. 34 - Final Written Decision at 10). As noted, this
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`construction differed from the construction adopted in the Institution Decision as
`
`well as the constructions proposed by Petitioner and PO.
`
`B.
`
`The Final Written Decision Limited Its Analysis of
`“Synchronization Signal” to the Petition.
`
`
`In addressing whether the claimed “synchronization signal” was taught by
`
`the references under the construction adopted in the Final Written Decision, the
`
`Board limited its analysis solely to the Petition itself, finding that the contentions
`
`in the Petition were based on Petitioner’s proposed construction “as encompassing
`
`a synchronization frame – i.e., ‘allowing for frame synchronization.’” In view of
`
`the construction adopted in the Final Written Decision, which excluded a
`
`synchronization frame, the Board concluded that the Petition did not show that the
`
`references teach the “synchronization signal.” (Paper No. 34 - Final Written
`
`Decision at 15-16).
`
`Since the Board limited its discussion to the Petition, which was based on
`
`Petitioner’s proposed construction, Petitioner was not given an opportunity to
`
`address the “synchronization signal” limitation under the construction adopted, for
`
`the first time, in the Final Written Decision.
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`Moreover, in reaching its conclusion, the Board also failed to address
`
`whether other evidence of record showed that the references taught the
`
`
`
`9
`
`
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`“synchronization signal” under its construction. Though admitting that the “pilot
`
`tone” taught by Vanzieleghem and ANSI T1.413 was mentioned in paragraph 58
`
`of Mr. McNally’s expert declaration, the Board concluded that “the Petition itself
`
`unambiguously identifies the synchronization frame, not a pilot tone, as the recited
`
`“synchronization signal.” (Paper No. 34 - Final Written Decision at 16). Although
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`the “pilot tone” was discussed in greater detail in the Reply in response to PO’s
`
`proposed construction, the Board deemed that discussion “beyond the scope of a
`
`proper reply” and declined to consider it. Id.
`
`The Record Includes Arguments Applicable to the
`“Synchronization Signal” That Were Not Considered
`in the Final Written Decision.
`
`C.
`
`
`
`1.
`
`PO Admitted that Vanzieleghem’s “Pilot Tone”
`Teaches Frequency Synchronization.
`
`In its Preliminary Response, PO summarized Vanzieleghem as follows,
`
`admitting that it teaches a “pilot tone” to “maintain frequency synchronization”:
`
`Vanzieleghem discloses a transmitter that reduces power dissipation
`
`depending on the type of input data it is being asked to transmit.
`
`The input data may be either effective data or idle data. See Ex. 1006
`
`at 5:33-35. When effective data is to be transmitted, the transmitter
`
`uses all of its carriers (e.g., 256 carriers) to send the data – along with
`
`a synchronization symbol – to a receiver. See id. at 5:66-6:15. When
`
`the transmitter has only idle data to transmit, it reduces power
`
`dissipation by transmitting a reduced number of carriers. See id. at
`
`6:30-41. If the set of carriers is reduced to a single carrier, the pilot
`
`
`
`10
`
`
`
`tone is chosen to maintain frequency synchronization with a
`
`receiver. See id.
`
`
`Paper No. 7 - PO’s Preliminary Response at 12 (emphasis added).
`
`
`
`Thus, PO admitted that Vanzieleghem’s “pilot tone” is used to maintain
`
`frequency synchronization between a transmitter and receiver. The Board can
`
`properly rely on this admission in determining that the “synchronization signal” is
`
`taught by Vanzieleghem in view of the construction adopted in the Final Written
`
`Decision. See Rovalma, S.A, 856 F.3d at 1026-28 (PO’s submissions are part of
`
`the record and may be relied upon essentially as admissions).
`
`
`
`
`
`2.
`
`Petitioner’s Reply Should Have Been Considered.
`
`In support of its claim construction argument, PO argued in its Response that
`
`the “synchronization signal” is directed to “frequency synchronization,” and
`
`criticized Petitioner’s construction as being directed to “frame synchronization.”
`
`(Paper No. 16 – PO’s Response at 20-22). PO argued that the construction
`
`proposed by Petitioner (and adopted in the Institution Decision) was incorrect
`
`because it was directed to “frame synchronization” as opposed to “frequency
`
`synchronization.” Id.
`
`In its Reply, Petitioner properly addressed PO’s claim construction
`
`argument, in part, as follows:
`
`
`
`11
`
`
`
`Both Vanzieleghem and the 1995 ADSL Standard disclose signals for
`
`the purpose of providing both frame and frequency synchronization,
`
`since they are both elements of the ADSL standard, as described in the
`
`‘404 patent and demonstrated in Vanzieleghem and the 1995 ADSL
`
`Standard. Pet. at 37; Ex. 1003 at ¶¶77-78; Ex. 1006 at 5:55-65; Ex.
`
`1009 at 46-47, 113.
`
`Paper No. 17 – Petitioner’s Reply at 4 (emphasis added).
`
`
`
`In further addressing PO’s claim construction argument, the Reply properly
`
`pointed out that even if PO’s proposed construction was adopted, Vanzieleghem
`
`nevertheless taught the synchronization signal in view of the “pilot tone”:
`
`
`
`Regarding the PO’s proposed construction of “synchronization signal”
`
`as “an indication used to establish or maintain a timing relationship
`
`between transceivers,” Petitioner notes even if this construction is
`
`adopted, that such a signal is expressly disclosed by Vanzieleghem
`
`and the 1995 ADSL Standard. For example, the 1995 ADSL standard
`
`discloses signals for the purpose of providing both frame and
`
`frequency synchronization during data transmissions. Ex. 1009 at 46-
`
`47, 113; Ex. 1003 at ¶160. Vanzieleghem discloses signals for the
`
`purpose of providing both frame and frequency synchronization in
`
`full and low power modes. Ex. 1006 at 5:55-65; Ex. 1003 at ¶77.
`
`Vanzieleghem expressly discloses “the frequency synchronization
`
`between the transmitter and a receiver at the other end of the
`
`telecommunication line is maintained owing to the presence of the
`
`pilot tone. By sending one synchronization symbol for every N
`
`symbols, the framing synchronization is also maintained between the
`
`transmitter and the receiver.” Ex. 1006 at 2-3:63-2; Pet. at 13-14.
`
`
`
`12
`
`
`
`Similarly, page 46 of the 1995 ADSL Standard describes the
`
`application of a pilot signal/tone during data transmissions.
`
`Paper No. 17 – Petitioner’s Reply at 9 (emphasis added).
`
`In the Final Written Decision, the Board agreed that “our construction in the
`
`Decision to Institute is overly broad to the extent it encompasses a synchronization
`
`frame.” (Paper No. 34 - Final Written Decision at 7). As noted in the Final
`
`Written Decision, Petitioner addressed
`
`the
`
`teaching of a pilot
`
`tone
`
`in
`
`Vanzieleghem and in ANSI T1.413 in its Reply. (Paper No. 34 - Final Written
`
`Decision at 15 (citing Pet. Reply 18-19)). But, the Board deemed this outside the
`
`scope of a proper reply. (Paper No. 34 - Final Written Decision at 16).
`
`Petitioner respectfully submits that the Board erred in not considering pages
`
`18-19 of the Reply, as well as the pages quoted above, in the context of its analysis
`
`of whether the references taught the “synchronization signal” because the
`
`argument was properly responsive to PO’s Response. See Rovalma, S.A, 856 F.3d
`
`at 1029 (noting that Reply provides opportunity for Petitioner to present case for
`
`unpatentability under construction argued in PO’s Response).
`
`D.
`
`If the Board Concludes That the Evidence of Record Does Not
`Illustrate That the References Teach the “Synchronization
`Signal” as Construed in the Final Written Decision, Petitioner
`Should Be Given an Opportunity to Show Unpatentability Under
`That Construction.
`
`
`As set forth above, Petitioner believes that upon consideration of all the
`
`
`
`evidence of record, the references teach the claimed “synchronization signal” as
`
`
`
`13
`
`
`
`well as all the other disputed elements of claims 1-20 of the ‘404 patent. If the
`
`Board concludes that the evidence is insufficient, however, Petitioner requests it be
`
`given the opportunity to show unpatentability of the ‘404 patent under the
`
`construction of “synchronization signal” adopted for the first time in the Final
`
`Written Decision. Since that construction differed from the constructions proposed
`
`by the parties and the construction adopted in the Institution Decision, Petitioner is
`
`entitled to be heard pursuant to SAS Inst., supra.
`
`
`
`14
`
`
`
`IV. CONCLUSION
`
`In light of the foregoing, Petitioner respectfully submits the Board rehear
`
`Statutory Ground 1, including specifically, whether the claimed “synchronization
`
`signal,” as construed in the Final Written Decision, and the other disputed claim
`
`elements are taught by the references in view of the evidence of record. If the
`
`Board maintains its position that the current evidence of record does not show that
`
`the references teach the claimed “synchronization signal,” Petitioner respectfully
`
`requests an opportunity to show unpatentability in view of the claim construction
`
`adopted for the first time in the Final Written Decision.
`
`Dated: January 12, 2018
`
`
`
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`Respectfully submitted,
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`/Charles W. Griggers/
`Charles W. Griggers
`Reg. No. 47,283
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`Robert Starr
`Reg. No. 53,634
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`Dan Gresham
`Reg. No. 41,805
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`Counsels for Petitioner
`ARRIS Group, Inc.
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`15
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 C.F.R. §§ 42.6, I hereby certify that on this 12th day of
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`January, 2018, the foregoing PETITIONER’S REQUEST FOR REHEARING
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`PURSUANT TO 37 C.F.R. § 42.71(d) was served via electronic mail on the
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`following counsel of record for PO.
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`Peter McAndrews (pmcandrews@mcandrews-ip.com)
`Thomas Wimbiscus (twimbiscus@mcandrews-ip.com)
`Scott McBride (smcbride@mcandrews-ip.com)
`Christopher Scharff (cscharff@mcandrews-ip.com)
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`MCANDREWS HELD & MALLOY
`500 West Madison St., Suite 3400
`Chicago, IL 60661
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`THOMAS | HORSTEMEYER, LLP
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` /Charles W. Griggers/
`Charles W. Griggers
`Reg. No. 47,283
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`Counsel for Petitioner
`ARRIS Group, Inc.
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`Dated: January 12, 2018
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