`
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`Filed on behalf of TQ Delta, LLC
`By: Peter J. McAndrews
`Thomas J. Wimbiscus
`Scott P. McBride
`Christopher M. Scharff
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail: pmcandrews@mcandrews-ip.com
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`DISH NETWORK, LLC
`Petitioner
`
`v.
`
`TQ DELTA, LLC
`Patent Owner
`_____________
`
`
`Case No. IPR2016-01469
`Patent No. 9,094,268
`_____________
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`PATENT OWNER’S PRELIMINARY RESPONSE
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`TABLE OF CONTENTS
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`I.
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`INTRODUCTION ........................................................................................... 1
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`III. CLAIM CONSTRUCTION ............................................................................ 9
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`IV. NO REVIEW SHOULD BE INSTITUTED WITH RESPECT TO
`THE GROUNDS RAISED BY PETITIONER ............................................. 10
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`A. Ground 1: Petitioner Fails to Establish Anticipation by Bowie
`(Claims 14 and 16) ................................................................................. 11
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`1. Bowie’s Low Power Method is Fundamentally Different
`Than The ‘268 Patent Method .................................................. 11
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`2. Bowie Fails to Disclose All Elements of the Claims ................ 14
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`(a) “entering the low power mode for the transmitter portion
`while the receiver portion remains in a full power mode”
`(Claims 14 and 16) .................................................................... 14
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`(b) “storing during the low power mode at least one parameter
`associated with the full power mode” (Claim 14) .................... 18
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`B. Ground 2: Petitioner Fails to Establish Obviousness by Bowie
`and ADSL 1995 (Claims 1, 11) ............................................................. 20
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`1. Bowie Fails to Disclose All Elements of the Claims ................ 21
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`(a) “entering the low power mode for a transmitter portion
`while the receiver portion remains in a full power mode”
`(Claim 11) ................................................................................. 21
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`(b) “a receiver portion of the transceiver receives data during
`the low power mode” (Claims 1) .............................................. 21
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`2. Petitioner Does Not Allege That ADSL 1995 Fills the
`Deficiencies in Bowie or Otherwise Allege In Ground 2
`That Features Missing in Bowie Would Have Been Obvious .. 25
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`C. Grounds 3 & 4: Petitioner Fails to Establish Alleged
`Obviousness by Bowie, Morelli, and ADSL 1995 (claims 1, 2,
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`i
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`Patent Owner’s Preliminary Response
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`11, 12) or Alleged Obviousness by Bowie and Morelli (claims
`4, 14, 16, 18) .......................................................................................... 26
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`1. Morelli is From Non-Analogous Art to the ‘268 Patent ........... 27
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`2. The Proposed Combinations Would Still Fail to Satisfy All
`Limitations of the Challenged Claims ...................................... 32
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`(a) “entering the low power mode for a transmitter portion
`while the receiver portion remains in a full power mode”
`(Claims 11-12, 14, 16) .............................................................. 32
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`(b) “Transmitting or receiving a message to enter a low power
`mode” and “entering the low power mode [wherein/while] . .
`. a receiver portion of the transceiver receives data during
`the low power mode” (claims 1-2, 4) or “Transmitting or
`receiving a message to enter a low power mode” and
`“entering the low power mode . . . while the receiver portion
`remains in the full power mode” (claims 11-12, 14, 16, 18) .... 34
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`(c) “maintaining synchronization with a second transceiver
`during the low power mode” (Claims 2, 12) ............................. 37
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`(d) “storing, during the low power mode, at least one parameter
`associated with a full power mode” (Claims 4, 14) .................. 41
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`3. Petitioner Provides No Non-Conclusory Rationales for
`Making the Proposed Combinations/Modifications ................. 42
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`4. Petitioner Fails to Provide a Reasonable Expectation of
`Success in Combining Morelli with Bowie and ADSL ............ 50
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`5. The Proposed Combinations Would Improperly Change the
`Fundamental Principle of Operation of the Asserted
`References ................................................................................. 55
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`V.
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`CONCLUSION .............................................................................................. 57
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`CERTIFICATE OF WORD COUNT ...................................................................... 58
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`Exhibit List
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`IEEE Dictionary (2001) at pp. 296, 703
`Merriam-Webster’s Collegiate Dictionary, 10th Ed. (2001) at 70
`
`Encyclopedia Britannica Online at
`https://www.britannica.com/technology/modulation-
`communications
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`Frenzel, “Understanding Modern Digital Modulation Techniques,”
`Electronic Design” (2012)
`
`Transcript of 10/18/16 Markman Hearing in TQ Delta, LLC v.
`Comcast Cable Communications, LLC, et al., No. 15-611 (D. Del.)
`at pp. 42, 149-150
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`U.S. Pat. No. 6,922,167
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`U.S. Pat. No. 7,272,307
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`U.S. Pat. No. 7,110,823
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`U.S. Pat. Pub. No. 20130185872
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`
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`Ex. 2001
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`Ex. 2002
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`Ex. 2003
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`Ex. 2004
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`Ex. 2005
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`Ex. 2006
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`Ex. 2007
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`Ex. 2008
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`Ex. 2009
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`I.
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`INTRODUCTION
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`Patent Owner TQ Delta, LLC (“Patent Owner”) submits this preliminary
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`response to the Petition filed by Dish, Inc. (“Petitioner”) requesting inter partes
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`review of claims 1, 2, 4, 11, 12, 14, 16, and 18 of U.S. Pat. No. 9,094,268 (“the
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`‘268 patent”). For the reasons discussed below, none of the asserted references,
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`alone or in combination, disclose the claimed invention of the ‘268 patent.
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` Contrary to Petitioner’s arguments, each of the asserted prior art references
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`differs in significant and fundamental ways from the ‘268 patent claims. Petitioner
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`first attempts to stretch the disclosures of the asserted references, but at least
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`several limitations of the claims are missing from the references. Petitioner also
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`attempts to manufacture those missing elements from the prior art by splitting the
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`limitations of ‘268 patent claims into separate parts (and ignoring the invention as
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`a whole) and then “modifying” the references in ways not disclosed or
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`contemplated by the prior art—but this approach fails to establish obviousness.
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`Further, Petitioner fails to provide any non-conclusory, non-hindsight
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`reasons for such wholesale modifications to the prior art, and Petitioner provides
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`no support that persons of ordinary skill in the art would have reasonably expected
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`those modifications to even work. In doing so, Petitioner ignores numerous ways
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`that the asserted combinations of references are incompatible.
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`At this stage, the Board can decline instituting trial because the Petition is
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`deficient for the following reasons:
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`Bowie Fails to Disclose Several Claim Elements (Grounds 1, 2): In
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`Ground 1, Petitioner first alleges that U.S. Pat. No. 5,956,323 to Bowie (“Bowie”)
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`anticipates claims 14 and 16. Similarly, in Ground 2, Petitioner relies solely on
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`Bowie for alleged disclosure of every element of claims 1 and 11 except for
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`“transmitting or receiving internet and video data” (which Petitioner alleges would
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`have been obvious in view of ADSL 1995). Bowie, however, fails to disclose at
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`least several limitations of the claimed low power methods for a transceiver,
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`including: (a) “entering the low power mode for the transmitter portion while the
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`receiver portion remains in a full power mode” (Claims 11, 14 and 16), (b) “a
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`receiver portion of the transceiver receives data during the low power mode”
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`(Claims 1), and (c) “storing during the low power mode at least one parameter
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`associated with the full power mode” (Claim 14).
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`Specifically, Bowie discloses a very different way of providing a low-power
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`mode for a transceiver compared to the ‘268 patent. Bowie discloses that, instead
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`of having its receiver remain in full power mode or continue to receive data while
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`the transmitter enters low power mode, its receiver also enters sleep mode. (See
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`infra at § III.A.2(a).) Petitioner mischaracterizes a different component of Bowie
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`as an alternative “receiver” that remains in full power mode during the
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`transceiver’s low power mode. (See id.) But in fact, what Petitioner points to in
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`Bowie is only a “detector” (not a receiver) that detects the presence of an
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`unmodulated (i.e., dataless) signal in order to determine when to re-activate full
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`power mode. (See id.) Bowie itself distinguishes that detector from a “receiver.”
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`(See id.) Moreover, even that detector does not “remain[] in a full power mode”
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`when the transceiver is otherwise in a low power mode—rather, it only ever
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`operates in a low power mode. (See id.) And Petitioner’s allegation that Bowie’s
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`detector “receives data during
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`the
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`low power mode” by detecting an
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`unmodulated16 kHz resume signal is 180-degrees opposite to what Petitioner
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`asserted during the co-pending litigation—that an unmodulated “signal” or “tone”
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`such as Bowie’s cannot constitute “data.” (See id.)
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`Similarly, while Bowie discloses storing certain information during low
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`power mode in order to reduce the time for resuming full power mode, it does not
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`disclose storing “at least one parameter associated with full power mode” (claim
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`14). The ‘268 patent discloses that such parameters relate to the actual
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`transmission (e.g., frequency and time-domain coefficients, transmitter gains,
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`transmission and reception data rates, coding parameters, fine gains, and bit
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`allocation). (See infra at § III.A.2(b).) Parameters such as these are “associated”
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`with the full power mode because they are connected or linked to the full power
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`mode—they inform how the full power mode is to be configured. Bowie’s stored
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`information, in contrast, relates only to “loop characteristics” (i.e., “loop length,
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`wire gauge, wire composition, and other factors”) that are independent of the
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`transceiver’s full power or low power modes. (See id.)
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`Petitioner has no support for its distorted characterizations of Bowie, which
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`are contrary to Bowie’s express disclosure. Nor does Petitioner provide any
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`explanation for the inconsistencies between its arguments here and its admissions
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`in the co-pending litigation (discussed below). Petitioner only points to the bare
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`(and incorrect) say-so of its expert, who simply repeats the arguments of the
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`Petition. But it is well-established that such conclusory expert testimony cannot
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`override the actual disclosure of a reference. (See infra at § III.A.1-2.)
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`Morelli Fails to Fill in the Deficiencies in Bowie (Grounds 3-4): Perhaps
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`recognizing that Bowie does not satisfy the above limitations of claims 1, 11, 14,
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`and 16, Petitioner argues in Grounds 3-4 that they would have been obvious in
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`view of Morelli. (See Pet. at 26-48.) Petitioner also argues that Morelli discloses
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`the additional limitations of claims 2, 4, 12, and 18. (See id.) But Morelli does
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`not, in fact, disclose the missing limitations. Petitioner’s obviousness arguments
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`with respect to Morelli are rife with further errors and deficiencies.
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`First, Petitioner fails to show that Morelli is analogous art to the ‘268 patent
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`to begin with. The ‘268 patent expressly states that it is applicable only to
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`“ADSL” and other forms of “point-to-point” communications. (See infra at §
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`III.C.1.) In point-to-point communications, there is only communication on one
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`line between a customer premises and one central office mode. (See id.) Morelli,
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`however, relates to a multi-point communication system (wireless devices in
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`communication with multiple base stations). (See id.) Petitioner fails to address
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`numerous incompatibilities between these two different types of systems. Rather,
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`Petitioner incorrectly over-generalizes the “field” of the ‘268 patent as simply
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`“power conservation” or “low power” in “multicarrier communication system[s]”
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`without any support, and summarily concludes that Morelli is ispo facto analogous
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`art. (See id.) Petitioner’s conclusory argument in this regard, however, is no more
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`supported than if Petitioner had alleged that the field was all “electronics.”
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`Second, Petitioner fails to show that Morelli in fact discloses or teaches the
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`limitations missing from Bowie. For example, Petitioner alleges that it would have
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`been obvious to modify Bowie so that its detector circuit receives “data packets” as
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`described in Morelli instead of just a 16 kHz signal. (See Pet. at 30.)
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`Alternatively, Petitioner alleges that it would have been obvious to modify Bowie
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`so that its receiver is operating in a full power mode as allegedly described in
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`Morelli while its transmitter is in low power mode. (Id. at 32.) In fact, Morelli
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`discloses neither of these things.
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`Contrary to Petitioner’s characterization of Morelli, Morelli discloses a low
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`power method for a wireless mobile device, where that device’s receiver is (just
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`like Bowie’s) powered down during the transceiver’s low power mode, except for
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`certain portions that remain active to detect whether there is a threshold incoming
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`signal ready to be received. (See infra at § III.C.2(a).) Morelli expressly describes
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`this as a low power “sleep mode” for the receiver. (See id.) Once a threshold
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`incoming signal is detected, then Morelli’s device resumes full power. (See id.)
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`Nowhere, however, does Morelli disclose that its receiver remains in full power
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`mode while the transceiver is otherwise in low power mode. (See id.) Nor does
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`Morelli disclose “transmitting or receiving a message to enter a low power mode”
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`and “entering the low power mode [wherein/while] . . . a receiver portion of the
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`transceiver receives data during the low power mode” (claims 1-2, 4) or
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`“transmitting or receiving a message to enter a low power mode” and “entering the
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`low power mode . . . while the receiver portion remains in the full power mode”
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`(claims 11-12, 14, 16, 18). (See id. at § III.C.2(b).)
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`Morelli likewise does not disclose “maintaining synchronization with a
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`second transceiver during the low power mode” (Claims 2, 12). Morelli discloses
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`that once it resumes full power, the data that is available to be received (which
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`triggered its threshold signal detector) will begin with a synchronization signal in
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`order to re-stabilize the communication connection. (See infra at § III.C.2(c).) But
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`Morelli never discloses that synchronization is “maintained” during the low power
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`mode. (See id.) Nor does Petitioner argue (because it cannot) that Morelli
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`discloses storing any sort of “parameter associated with the full power mode”
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`during low power mode.
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`Third, Petitioner provides no non-conclusory reasons for why a person of
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`ordinary skill in the art would have modified Bowie in view of Morelli to achieve
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`the claimed invention. (See infra at § III.C.3.) For example, Petitioner summarily
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`argues that its proposed modifications to Bowie would simply be applying a
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`“known technique” to “yield a predictable result.” (See Pet. at 30.) But Petitioner
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`provides no support that its proposed modifications were either a known technique
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`or predictable—particularly given that neither Bowie, Morelli, or anything else
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`cited by Petitioner actually discloses a “known technique” of keeping a receiver at
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`full power during a transceiver’s low power mode. (See infra at § III.C.3.)
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`Petitioner also argues that its proposed modification would have the benefit of
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`“maintaining synchronization.” (See Pet. at 31.) But that is merely a circular,
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`hindsight recitation of the very solution recited by the ‘268 patent claims. Further,
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`Petitioner argues that Bowie itself “suggests” keeping its receiver at full power
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`during the transceiver’s low power mode. (See Pet. at 32.) But that argument is
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`premised on a gross mischaracterization of Bowie. (See infra at § III.C.3.) And
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`throughout, Petitioner only relies on the conclusory say-so of its expert.
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`Fourth, Petitioner fails to provide evidence of a reasonable expectation of
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`success in modifying Bowie in the manner Petitioner proposes—to operate in a
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`way that is not disclosed in any of the asserted references. (See infra at § III.C.4.)
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`Petitioner’s proposed modification would cobble together disparate features from
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`Bowie and Morelli, without any regard as to whether those narrow features of
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`Morelli are compatible with other features of Bowie, and without any regard to
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`other components and functions that Morelli needed to make its low power method
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`work. (See id.) As discussed below, Bowie and Morelli operate in mutually
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`inconsistent ways, and if all one did was make Petitioner’s proposed modifications
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`to Bowie, the resulting device would in fact be inoperable. (See id.)
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`Fifth,
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`Petitioner
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`does
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`not
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`explain
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`how
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`its
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`proposed
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`modification/combination would not change the fundamental principle of operation
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`of Bowie. The entirety of Bowie’s disclosure (and even Bowie’s claims) are
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`directed to a low power method that involves powering down receiving,
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`demodulating, and processing circuitry, while only using a detector to detect an
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`unmodulated (i.e. dataless) resume signal. (See infra at § III.C.5.) Petitioner’s
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`proposed modification of keeping Bowie’s receiver at full power and/or enabling
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`its detector to receive data (i.e., modulated signals) is a wholesale different
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`“scheme.” (See id.)
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` Accordingly, Petitioner has not carried its burden to establish a reasonable
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`likelihood that any of claims 1, 2, 4, 11, 12, 14, 16, and 18 are unpatentable.
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`Should the Board institute review, however, Patent Owner reserves the right to
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`provide further technical evidence and expert testimony as to why Petitioner’s
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`asserted references do not satisfy the limitations of the claims and/or why
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`Petitioner’s proposed combinations would not have been obvious.
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`II. CLAIM CONSTRUCTION
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`Petitioner has proposed constructions for the following terms: “low power
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`mode” (all claims), “transceiver” (all petitioned claims), and “data” (claims 1, 4,
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`11, 16). (See Pet. at 9-10.)
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`Patent Owner submits, however, that no construction of these terms is
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`required. As illustrated in the arguments below, construction of these terms is not
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`necessary in deciding whether or not to institute trial. See Wellman, Inc. v.
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`Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (claim terms need only
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`be construed “to the extent necessary to resolve the controversy”); EDMIT Indus.,
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`Inc. v. Smartdoor Holdings, Inc., IPR2015-00013, Paper 31 (P.T.A.B. March 29,
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`2016) (although Petitioner proposed constructions, Board agreed with Patent
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`Owner that no constructions were necessary; “we determine that it is not necessary
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`to construe explicitly any claim terms for purposes of this inter partes
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`proceeding.”). Even under Petitioner’s constructions, however, Petitioner has not
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`shown that the prior art renders any claims of the ‘268 patent unpatentable.
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`III. NO REVIEW SHOULD BE INSTITUTED WITH RESPECT TO THE
`GROUNDS RAISED BY PETITIONER
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`As explained in detail below, the Petition should be denied because it fails
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`to establish a reasonable likelihood that the challenged claims are unpatentable.
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`The Petition proposes four grounds against the ‘268 patent:
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`Ground 1. Unpatentability of claims 14 and 16 under 35 U.S.C. § 102(b) by U.S.
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`Patent No. 5,956,323 to Bowie (“Bowie”).
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`Ground 2. Unpatentability of claims 1 and 11 under 35 U.S.C. §103(a) by Bowie
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`in view of “Network and Customer Installation Interfaces—Asymmetric Digital
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`Subscriber Line (ADSL) Metallic Interface” (“ADSL 1995”).
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`Ground 3. Unpatentability of claims 1, 2, 11, and 12 under 35 U.S.C. §103(a) by
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`Bowie in view of ADSL 1995 and U.S. Pat. No. 6,236,674 to Morelli, et al.
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`(“Morelli”).
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`Ground 4. Unpatentability of claims 4, 14, 16, and 18 under 35 U.S.C. § 103(a)
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`by Bowie in view of Morelli.
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`The cited references do not, however, individually or collectively, disclose,
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`teach, or suggest all of the elements of any of the foregoing claims. Additionally, for
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`Grounds 2-4, the Petition also fails to provide non-conclusory, supported rationales for
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`why the separate references would have been combined or modified. Petitioner’s
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`proposed obviousness combinations also run afoul of basic legal principles regarding
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`obviousness. For at least these and the following reasons, the Petition fails to
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`establish unpatentability of the challenged claims.
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`A. Ground 1: Petitioner Fails to Establish Anticipation by Bowie
`(Claims 14 and 16)
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`1.
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`Bowie’s Low Power Method is Fundamentally Different
`Than The ‘268 Patent Method
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`The ‘268 patent describes and claims a multi-carrier transmission system
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`(e.g., a Digital Subscriber Line (“DSL”) system) that has a low power sleep mode
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`and rapid-on capability. (See Ex. 1001, ‘268 patent at Title, Abstract, Claims.)
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`DSL transceivers consume a significant amount of power if maintained in the “on”
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`state, even when they are not actively transmitting or receiving data. (See id. at
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`2:60-65.) The ‘268 patent, therefore, recognized that it is desirable to limit this
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`power consumption, “both for environmental reasons as well as to prolong the life
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`of the equipment.” (Id. at 2:65-3:1.)
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`The ‘268 patent also recognizes, however, that reducing power consumption
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`is not simply a matter of just powering down components when they are not in use.
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`That is because due to “the complexity of DSL transceivers, and the conditions
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`under which they must operate, it is necessary to initialize them prior to the
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`transmission and reception of data.” (Id. at 3:11-13; see also id. at 3:14-20.) The
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`time required to initialize or re-initialize a powered-down system is generally
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`unacceptable, since it is “typically desired to have the modem respond to request
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`for service nearly instantaneously.” (Id. at 3:29-34.) The ‘268 patent inventors
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`developed a method for providing a low power mode for a Customer Premises
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`DSL transceiver (“CPE”) that would consume reduced power but nonetheless be
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`able to resume transmission or reception almost instantaneously, e.g., within a few
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`frames. (See id. at 3:66-4:4, 6:6-11.)
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`The power-down operation of the CPE transceiver begins on receipt of, for
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`example, “a power down command” from a Central Office (“CO”) transceiver.
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`(Id. at 6:32-43.) The CPE transceiver enters low power mode by storing its “state”
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`in memory, and then reducing power to its modulator/demodulator circuitry as well
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`as its transmitter drivers. (Id. at 49-52.) The receiver, however, continues to
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`receive synchronization data and is able to receive an “Awaken” signal. (See id. at
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`7:62-8:4, 7:18-20, 7:38-61.) Once the CPE transceiver exits low power mode, the
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`transceiver of the ‘268 is able to begin transmitting immediately or after only a few
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`frames delay, since it does not need to repeat initializations. (See id. at 8:9-18.)
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`Accordingly, the challenged ‘268 patent claims all first variously require that
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`during a “low power mode” for the transceiver, at least a “transmitter portion of the
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`transceiver does not transmit data” or the “transmitter portion” otherwise enters
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`“the low power mode.” (See Ex. 1001, ‘268 patent at independent claims 1, 4, 11,
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`14, 16, 18.) At the same time, however, the “receiver portion of the transceiver
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`receives data during the low power mode” (e.g., synchronization data) or the
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`“receiver portion remains in a full power mode.” (See id.) Certain claims further
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`require “storing during the low power mode at least one parameter associated with
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`the full power mode” (e.g., parameters relating to how data is to be transmitted in
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`full power mode, such as transmission coefficients, data rates, gain, and bit
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`allocation). (See id. at claim 14.)
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`Bowie describes a very different method for reducing power consumption in
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`a transceiver. Bowie describes a method that does not just power down the
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`transmitter and FFT/modulating circuitry. Bowie powers down “signal processing
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`111, transmitting 112, and receiving 113 circuitry.” (Ex. 1004, Bowie at 5:17-32
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`(emphasis added).) In order to exit low power mode, Bowie includes an extra
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`circuit (“resume signal detector 115”) that only remains active to “detect” an
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`unmodulated (i.e., dataless) 16 kHz AC signal. (See id. at Abstract, 2:9-29, 5:48-
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`6:2.) This “resume signal detector 115” is just a circuit that “employs conventional
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`frequency detection techniques.” (Id. at 5:52-55.) Below is Bowie’s transceiver:
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`(Id. at Fig. 1.)
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`Bowie specifically distinguishes its “resume signal detector 115” from the
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`separate “modulated data receive circuitry 113” that is powered down during the
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`transceiver’s low power mode. (See id.) In other words, Bowie distinguishes
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`between circuitry that only employs unmodulated (dataless) “frequency detection”
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`versus different circuitry that receives modulated data in full power mode. (See
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`id.) This is a fundamental difference between Bowie and the ‘268 patent.
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`Another key difference is that Bowie only discloses storing during low
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`power mode “loop characteristics” information such as “loop length, wire gauge,
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`wire composition, and other factors.” (Ex. 1004, Bowie at 5:1-3.) In other words,
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`Bowie discloses storing information regarding the transmission line. Bowie does
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`not disclose storing parameters relating to the transmission or transmission mode
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`(e.g., transmission coefficients, data rates, gain, or bit allocation). Rather, Bowie
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`discloses that the customer and central office units can exchange “handshaking
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`information” in order to resume full power, before exchanging data. (See Fig. 3.)
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`2.
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`Bowie Fails to Disclose All Elements of the Claims
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`(a) “entering the low power mode for the transmitter portion
`while the receiver portion remains in a full power mode”
`(Claims 14 and 16)
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`Contrary to Petitioner’s arguments in Ground 1, Bowie does not anticipate
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`claims 14 or 16 of the ‘268 patent. See 35 U.S.C. § 316(e) (as the party
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`challenging the patentability of claims, a petitioner bears the burden of proving
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`anticipation by a preponderance of the evidence); Verdegaal Bros., Inc. v. Union
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`Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987) (“A claim is anticipated only if
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`each and every element as set forth in the claim is found, either expressly or
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`inherently described, in a single prior art reference.”).
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`At the very least, Bowie fails to disclose “entering the low power mode for
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`the transmitter portion while the receiver portion remains in a full power mode,”
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`which is required by both of these claims. Instead of utilizing a receiver that
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`remains in full power mode while the transmitter enters low power mode, Bowie
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`discloses that its receiver also enters low power mode. (See Ex. 1004, Bowie at
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`25-27 (“Each unit 232 and 242 may then enter low-power mode by shutting off the
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`now unnecessary sections of signal processing 111, transmitting 112, and receiving
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`113 circuitry.”) (emphasis added).) Receiver 113 is the only component described
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`in Bowie which can receive data. (See id. at 1:37-40 (“Signal processing
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`electronics 111 . . . along with transmit circuitry 112 and receive circuitry 113, are
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`used to send and receive modulated data.”), Fig. 1 (distinguishing the “modulated
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`data receive circuitry 113” from the “resume signal detector 115”).)
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`When the signal processing 111, transmitter 112, and receiver 113 of Bowie
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`enter low power mode, only a “resume signal detector 115” circuit remains
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`powered and capable of detecting a signal. (Id. at 5:28-30.) The resume signal
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`detector 115 circuitry, however, just “detects” the presence of a 16 kHz signal
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`using conventional “frequency detection.” (Id. at 2:38-49.) In the telephone line
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`art, conventional “frequency detection” circuitry was well-known as a way of
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`simply determining the presence or absence of a dataless tone. (See Ex. 2001,
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`IEEE Dictionary (2001) at p. 296 (“detector: . . . (2) (electromagnetic energy) A
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`device for the indication of the presence of electromagnetic fields.”).) As such,
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`Bowie’s resume signal detector 115 is distinguishable and operates very differently
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`from its receiver 113. Indeed, Bowie uniformly refers to its “resume signal
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`detector 115” as only a “detector,” analogous to how a smoke alarm detects the
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`presence of smoke rather than receives any signal or data regarding smoke, or how
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`a baseball catcher’s eye detects an incoming ball while his mitt receives it. (See
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`Ex. 1004, Bowie at 2:38-49, 5:47-59, 6:27-33.) Further, Bowie describes the
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`“resume signal” as a signal that is “not a modulated data signal.” (See, e.g., id. at
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`Claim 24.) That is distinguished from the “modulated data receiver 113” that is
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`powered down during low power mode. (See id. at Fig. 1, 5:25-27.)
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`Petitioner cites to no support in the Petition in Ground 1—only attorney
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`argument—for its demonstrably incorrect argument that “the detector 115 receives
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`the resume signal” and is therefore a “considered a receiver.” (Pet. at p. 18)
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`Attorney argument is not evidence. See In re Geisler, 116 F.3d 1465, 1471 (Fed.
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`Cir. 1997). Likewise, Petitioner’s expert (although not cited in Ground 1 for this
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`proposition) simply assumes that Bowie’s detector 115 “is the claimed ‘receiver
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`portion’” of claims 14 and 16. (See Ex. 1002, Hoarty Decl. at ¶¶ 130, 139, 145.)
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`But Petitioner’s expert likewise provides no evidence or support that a person of
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`ordinary skill in the art would have regarded the “detector” in Bowie as a
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`“receiver.” (See Ex. 1002, Hoarty Decl. at ¶¶ 130, 139, 145.) To the contrary, he
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`cites only to Bowie, which expressly states that it has a “detector 115 that employs
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`conventional frequency detection techniques”—not a receiver. (See id. at ¶ 145.)
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`Petitioner’s conclusory expert assertions regarding Bowie’s disclosure are
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`also insufficient to carry Petitioner’s burden of proof. See Motorola, Inc. v.
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`Interdigital Tech. Corp., 121 F.3d 1461, 1473 (Fed. Cir. 1997) (“An expert’s
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`conclusory testimony, unsupported by the documentary evidence, cannot supplant
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`the requirement of anticipatory disclosure in the prior art reference itself.”);
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`Mobotix Corp. v. Comcam Intern., Inc., IPR2015-00093, Paper 21 (P.T.A.B. April
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`28, 2016) (“Dr. Lavian’s testimony makes a series of speculative leaps, with little
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`or no explanation, from
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`the
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`language of
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`the cited references
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`to his
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`assertions regarding what the references disclose and what a person of ordinary
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`skill in the art would have understood based on such disclosures.”); see also 37
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`C.F.R. § 42.65(a) (“Expert testimony that does not disclose the underlying facts or
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`data on which the opinion is based is entitled to little or no weight.”).
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`Additionally, even if one were to incorrectly characterizes Bowie’s resume
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`signal detector 115 as a “receiver,” it would still fail to satisfy claims 14 or 16.
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`Bowie’s detector 115 is not in “full power mode” when the
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