Trials@uspto.gov
`571-272-7822
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` Paper 7
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` Entered: February 13, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01493
`Patent 8,457,676 B2
`____________
`
`
`Before JUSTIN T. ARBES, BRYAN F. MOORE, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`
`
` Paper 7
`
`
`
` Entered: February 13, 2017
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01493
`Patent 8,457,676 B2
`____________
`
`
`Before JUSTIN T. ARBES, BRYAN F. MOORE, and
`GREGG I. ANDERSON, Administrative Patent Judges.
`
`MOORE, Administrative Patent Judge.
`
`DECISION
`Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2016-01493
`Patent 8,457,676 B2
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`I. INTRODUCTION
`Apple Inc., (“Petitioner”) filed a Petition (Paper 1, “Pet.”) pursuant to
`35 U.S.C. §§ 311–19 to institute an inter partes review of claims 1, 3, 19,
`and 21 (“the challenged claims”) of U.S. Patent No. 8,457,676 B2 (“the ’676
`patent,” Ex. 1001). The Petition is supported by the Declaration of Zygmunt
`J. Haas, Ph.D. (“Haas Declaration,” “Haas Dec.,” Ex. 1006). Cellular
`Communications Equipment LLC (“Patent Owner”) filed a Preliminary
`Response (“Prelim. Resp.,” Paper 6).
`For the reasons set forth below, we institute an inter partes review of
`claims 1, 3, 19, and 21 of the ’676 patent.
`A. Related Matters
`Patent Owner advises us that the following District Court lawsuits
`may affect or be affected by this proceeding: Cellular Communications
`Equipment LLC v. AT&T Inc., et al., 2:15-cv-00576 (E.D. Tex.); Cellular
`Commc’ns Equipment LLC v. Sprint Corp. et al., 2:15-cv-00579 (E.D. Tex.);
`Cellular Commc’ns Equipment LLC v. T-Mobile USA, Inc. et al., 2:15-cv-
`00580 (E.D. Tex.); and Cellular Commc’ns Equipment LLC v. Verizon
`Commc’ns, Inc. et al., 2:15-cv-00581 (E.D. Tex.). Paper 5, 2. In addition,
`there is one other inter partes review proceeding asserting unpatentability of
`the ’676 patent: HTC Corporation and HTC America, Inc. v. Cellular
`Communications Equipment LLC, Case IPR2016-01501 (“1501 IPR”).
`Paper 5, 3.
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`B. The ’676 Patent
`The ’676 patent generally relates to wireless communication
`technologies and the reporting of power headroom information from a
`mobile unit to a base station. The ’676 patent is directed to an apparatus and
`method that “provides specific reporting criteria that are an attractive trade-
`off between signaling overhead versus overall uplink performance for LTE
`[Long-Term Evolution].” Ex. 1001, 4:32–35. When the user equipment
`(UE) determines that a threshold from a set of one or more criteria has been
`reached, it triggers sending a power control headroom report to the base
`station. Id. at Abstract. The inventors state that the triggering criteria used
`in the invention “are found to be very efficient for sending a power control
`headroom report in the uplink, while optimizing uplink performance, and
`while minimizing signaling overhead.” Id. at 4:35–38. Further, the
`triggering criterion “includes a threshold having been reached, and the
`threshold is adjustable via a signal to the user equipment from a base
`station.” Id. at Abstract. The inventors state that measurement of path-loss
`“based on the DL [downlink] (e.g. DL pilot channel)” is an effective
`parameter to analyze for optimizing the tradeoffs. Id. at 4:6. The inventors
`found that “[e]ven if the frequency of potential power adjustments at the
`terminal is high but the measured path-loss is not changing, [then] UL
`signaling would be a waste of resources.” Id. at 4:7–9.
`C. Illustrative Claim
`Of the challenged claims, claims 1 and 19 are the only independent
`claims.
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`Claim 1, reproduced below, is illustrative.
`A method comprising:
`determining that a set of at least one triggering criterion is met;
`
`1.
`
`and
`
`providing a power control headroom report on an uplink from
`user equipment, in response to determining that the set is met,
`wherein said at least one triggering criterion include at least one
`threshold having been reached, wherein said at least one threshold is
`adjustable via a signal to the user equipment,
`wherein the set of at least one triggering criterion comprises a
`criterion being met based on reaching a threshold of the at least one
`threshold of k transmission time intervals following a previous power
`control headroom report, wherein k is an integer and wherein said at
`least one threshold adjustable via the signal comprises adjusting the
`threshold integer k.
`Ex. 1001, 6:26–40.
`
`
`
`D. Prior Art Relied Upon
`Petitioner relies upon the following prior art references:
`Patents
`Fong U.S. App. 2004/0223455 A1
`Bark U.S. 6,445,917 B2
`
`
`Nov. 11, 2004
`Sept. 3, 2002
`
`(Ex. 1003)
`(Ex. 1005)
`
`
`
`Other References
`R2-052744, FILTERING FOR UE POWER HEADROOM MEASUREMENT, 3GPP
`RAN WG2 #49 MEETING, SEOUL, KOREA, NOVEMBER 2, 2005 (Ex. 1004,
`“Ericsson”)
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`E. Asserted Grounds of Unpatentability
`Petitioner asserts the following grounds of unpatentability:
`
`Challenged Claims
`
`Basis
`
`References
`
`1 and 19
`
`3 and 21
`
`§ 103
`
`Fong and Ericsson
`
`§ 103
`
`Fong, Ericsson, and Bark
`
`
`
`I. ANALYSIS
`A. Claim Construction
`In an inter partes review, claim terms in an unexpired patent are given
`their broadest reasonable construction in light of the specification of the
`patent in which they appear. 37 C.F.R. § 42.100(b); Cuozzo Speed Techs.,
`LLC v. Lee, 136 S.Ct. 2131, 2144–46 (2016). Under the broadest reasonable
`interpretation standard, claim terms are given their ordinary and customary
`meaning as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
`1257 (Fed. Cir. 2007).
`Claim 19 recites “memory including software . . . configured, with the
`at least one processor, to cause the apparatus to at least: determine that a set
`of at least one triggering criterion is met,” and “memory including
`software . . . configured, with the at least one processor, to cause the
`apparatus to at least . . . provide a power control headroom report on an
`uplink from user equipment, in response to the set having been met.” The
`question raised regarding these “memory including software . . . configured
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`[with at least one] processor” terms (“processor terms”) is whether or not
`they require construction as means-plus-function terms under 35 U.S.C.
`§ 112 ¶ 6. Petitioner contends that Patent Owner’s position in the District
`Court Lawsuit is that the terms are not subject to section 112, paragraph 6
`construction and, if they are, the corresponding structure in the Specification
`of the ’676 patent is a “memory including software and at least one
`processor.” Pet. 12 (citing Ex. 1018,1 8). For purposes of the Petition,
`Petitioner assumes this is the broadest reasonable construction. Id.
`Patent Owner responds that “Petitioner offers no construction for this
`limitation other than to argue § 112 as is plainly not allowed under 35 U.S.C.
`§ 311(b).” Prelim. Resp. 16. Patent Owner contends that “the declaration of
`Petitioner’s expert cites no reasons and provides no support for his naked
`assertions. Thus, the Board should afford this testimony little or no weight.”
`Prelim. Resp. 16 (citations and emphasis omitted). Patent Owner offers no
`opinion on whether these terms are subject to section 112, paragraph 6 and
`offers no construction of these terms.
`On December 18, 2016, after Patent Owner filed its Preliminary
`Response, the District Court issued an Order construing the processor terms
`to have their plain meaning. Ex. 3001,2 38–40. The District Court concluded
`that the defendants, including Petitioner, “failed to overcome the
`
`
`1 Plaintiff’s P.R. 4–2 Disclosures in the District Court Lawsuit.
`2 Claim Construction Memorandum and Order in the District Court
`Lawsuit.
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`presumption against means-plus-function treatment” for terms that do not
`include the word “means.” Id. at 40.
`The processor terms do not contain the word “means” and are not
`presumptively subject to section 112, paragraph 6. See Williamson v. Citrix
`Online, LLC, 792 F.3d 1339, 1348 (Fed. Cir. 2015) (en banc in relevant
`part); Ex. 3001, 32 (citing Williamson). In general, a claim term that does
`not use the word “means” triggers a rebuttable presumption that section 112,
`paragraph 6 does not apply. Apex Inc. v. Raritan Comp., Inc., 325 F.3d
`1364, 1371–72 (Fed. Cir. 2003).
`Under Williamson, that presumption can be overcome “if the
`challenger demonstrates that the claim term fails to ‘recite sufficiently
`definite structure’ or else recites ‘function without reciting sufficient
`structure for performing that function.’” Williamson, 792 F.3d at 1349
`(citation omitted).
`The question turns on whether “the words of the claim are understood
`by persons of ordinary skill in the art to have a sufficiently definite meaning
`as the name for structure.” Id. The District Court concluded that, as used in
`the claims of U.S. Patent No. 8,867,472 B2, “‘processor’ is not a ‘nonce’
`term but rather connotes a class of structures.” Ex. 3001, 32 (citation
`omitted). The District Court implicitly treated “memory including software .
`. . configured [with at least one] processor” in claim 19 of the ’676 patent the
`same way. Id. at 40.
`At this stage of the proceeding, we agree that the processor terms are
`not means-plus-function limitations under section 112, paragraph 6. Neither
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`Petitioner nor Patent Owner has provided any argument or evidence tending
`to overcome the presumption against means-plus-function treatment for the
`processor terms. See Pet. 11–13; Prelim. Resp. 16.
`The parties should address the interpretation of the processor terms
`and provide their respective positions during trial. In summary, on this
`record, we determine that the presumption here has not been overcome, the
`processor terms are not construed as means-plus-function limitations, and no
`further construction of the terms is necessary at this time.
`For purposes of this Decision and based on the record before us, we
`determine it is unnecessary to provide express constructions for any other
`claim terms at this stage of the proceeding.
`B. Principles of Law
`A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
`factual determinations including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of ordinary skill in the art; and (4) objective evidence of
`nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`In that regard, an obviousness analysis “need not seek out precise
`teachings directed to the specific subject matter of the challenged claim, for
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`a court can take account of the inferences and creative steps that a person of
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see also
`Translogic, 504 F.3d at 1259.
`The level of ordinary skill in the art is reflected by the prior art of
`record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001);
`In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich,
`579 F.2d 86, 91 (CCPA 1978).
`C. Obviousness of Claims 1 and 19 over Fong and Ericsson
`
`
`
`Petitioner asserts that claims 1 and 19 are unpatentable under
`35 U.S.C. § 103(a) as obvious in view of Fong and Ericsson.3 Pet. 13. To
`support its contentions, Petitioner provides explanations as to how the prior
`art allegedly teaches each claim limitation. Id. at 13–41.
`Fong (Exhibit 1003) describes a wireless communication network,
`including a mobile station and a base station that communicate information
`over a wireless link. Ex. 1003, Abstract. Fong communicates “reverse
`request messages containing buffer status and data rate information over a
`reverse wireless link.” Id. at Fig. 2, ¶ 43. Initially, call setup messaging is
`
`
`3 Based on the current record, we are persuaded that Petitioner has made a
`threshold showing that Ericsson qualifies as a prior art printed publication
`under 35 U.S.C. § 102(b). See Pet. 7–8; Ex. 1012; Blue Calypso, LLC v.
`Groupon, Inc., 815 F.3d 1331, 1348 (Fed. Cir. 2016) (“A reference will be
`considered publicly accessible if it was ‘disseminated or otherwise made
`available to the extent that persons interested and ordinarily skilled in the
`subject matter or art exercising reasonable diligence, can locate it.’” (citation
`omitted)).
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`exchanged between base station 19 and mobile station 16, and base station
`19 allocates a reverse request channel (R-REQCH) to the mobile station. Id.
`Then, the base station sends “various messages to the mobile station, with
`such message(s) containing trigger parameters that are used by the mobile
`station to trigger the transmission of a reverse request message on R-
`REQCH.” Id. These trigger parameters “can be sent by the base station to
`the mobile station at any time during the active state of the mobile station.”
`Id.
`
`Next, the mobile station detects “whether a trigger has occurred to
`send a reverse request message.” Id. at Fig. 2, ¶ 50. “If a trigger has
`occurred, based on the trigger parameters sent by the base station to the
`mobile station, the mobile station sends . . . a reverse request message on
`R-REQCH.” Id. The reverse request message includes a field,
`MAXIMUM_TPR, or maximum traffic-to-pilot ratio, an indication of the
`maximum supportable data rate of the mobile station. Id. ¶¶ 34–35, 39.
`Fong also refers to MAXIMUM_TPR as a representation of power
`headroom, id. ¶¶ 40, 58, and describes power-related information as coming
`in various forms, including “the actual power headroom remaining in the
`mobile station,” id. ¶ 41.
`Ericsson (Exhibit 1004) describes the following regarding measuring
`the time between successive transmissions of power headroom information
`in an integer number of TTIs:
`The UPH [UE power headroom] information bits are sent in the
`Scheduling Information, SI, appended at the end of the MAC-e
`PDU. The periodicity of the Scheduling Information sent to node
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`B is defined in the order of TTI [transmission time interval], with
`1 TTI as the shortest report period and is configurable through
`RRC [radio resource control] signaling. Note that apart from the
`configurable periodicity, the inclusion of SI can be made
`arbitrarily, if for instance padding allows it or if triggered by
`higher priority data entering the UE buffer.
`
`Ex. 1004, 2 (brackets added).
`
`1. Analysis
`As to claim 1, Petitioner establishes sufficiently based on the current
`record that Fong teaches determining that a set of at least one triggering
`criterion is met. Pet. 20–22; Ex. 1003. Petitioner establishes sufficiently for
`purposes of this Decision that Fong teaches providing a power control
`headroom report on an uplink from user equipment, in response to
`determining that the set is met. Pet. 22–25; Ex. 1003. Petitioner establishes
`sufficiently for purposes of this Decision that Fong teaches that “said at least
`one triggering criterion include at least one threshold having been reached,
`wherein said at least one triggering criterion is adjustable via a signal to the
`user equipment.” Pet. 25–29; Ex. 1003.
`As discussed below, Petitioner also establishes sufficiently for
`purposes of this Decision that the combination of Fong and Ericsson teaches
`that “the set of at least one triggering criterion comprises a criterion being
`met based on reaching a threshold of the at least one threshold of k
`transmission time intervals following a previous power control headroom
`report, wherein k is an integer, and wherein said at least one threshold
`adjustable via the signal comprises adjusting the threshold k,” as recited in
`claims 1 and 19. Pet. 29–33; Ex. 1003. Petitioner asserts “Fong teaches
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`dividing up periods of data transmission into 10 ms periods (i.e., 10 ms
`transmission time intervals).” Pet. 30 (citing Ex. 1003 ¶ 78, Fig. 5). Figure
`5 of Fong, which depicts the timing requirements between the reverse
`request channel messages and frames transmitted on a reverse packet data
`channel when the mobile device is transmitting autonomously to the base
`station, is shown below as annotated by Patent Owner (Prelim. Resp. 19).
`
`Figure 5, above, as annotated by Patent Owner, shows time axis
`markings that Petitioner refers to as “uniform time periods.” Pet. 17–18.
`Patent Owner asserts “Fong refers to the offsets T1 and T2 as a ‘fixed’
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`amount of time that is used to allow the base station enough time to process
`the request.” Prelim Resp. 19. Thus, according to Patent Owner, “Fong
`does not disclose and is silent as to the timing between requests much less
`measuring that timing in ‘time intervals following a previous power control
`headroom report’ as claimed.” Id. However, Petitioner also relies on the
`combination of Fong and Ericsson (Pet. 31–33), which we discuss below.
`Thus, we are not persuaded by this argument based on the current record.
`Patent Owner also argues that Petitioner improperly combines Fong’s
`autonomous mode embodiment with Fong’s scheduling mode embodiment.
`Prelim. Resp. 20. Specifically, Patent Owner argues Petitioner does not
`explain how or why one of ordinary skill would modify “Fong’s
`autonomous mode embodiment to include the sending of power control
`headroom reports.” Id. Patent Owner argues that the combination would
`change Fong’s principle of operation. Id. Specifically, Patent Owner asserts
`the combination would decrease the uplink throughput. Id. Patent Owner
`does not explain sufficiently at this stage why the two modes of Fong are not
`compatible with each other with respect to the power headroom report.
`Additionally, Patent Owner does not support this argument with evidence or
`explain sufficiently why a certain uplink throughput is the principle of
`operation of Fong. Id. Thus, we are not persuaded by this argument based
`on the current record.
`Petitioner further explains why a person of ordinary skill in the art
`would have combined the teachings of Fong and Ericsson. Pet. 16–19, 31–
`36. For example, Petitioner asserts “a [person of ordinary skill in the art]
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`would have looked for how others in the field had defined the minimum
`amount of time between successive power headroom reports [and t]he
`Ericsson Contribution is one such document a [person of ordinary skill in the
`art] would have considered. Like Fong, Ericsson Contribution relates to
`reporting of power headroom in a wireless communication system.” Id. at
`17. Patent Owner argues that Petitioner has not shown “why a person of
`ordinary skill in the art would have combined the elements of the Fong and
`Ericsson references in the asserted manner despite the undesirable
`consequences resulting from such a combination.” Prelim. Resp. 21
`(citations omitted). Patent Owner then argues that Petitioner has not shown
`a proper motivation to combine and has not shown a reasonable likelihood
`of success. We are not persuaded, based on the current record, that sending
`the reports on a schedule rather than at fixed times as disclosed by Fong
`would result in undesirable consequences. See id. Thus, we are not
`persuaded by this argument based on the current record.
`As noted above, Ericsson contains the following language that
`Petitioner states meets the claim requirement of “at least one triggering
`criterion comprises a criterion being met based on reaching a threshold of
`the at least one threshold of k transmission time intervals”:
`The UPH [UE power headroom] information bits are sent in the
`Scheduling Information, SI, appended at the end of the MAC-e
`PDU. The periodicity of the Scheduling Information sent to node
`B is defined in the order of TTI [transmission time interval], with
`1 TTI as the shortest report period and is configurable through
`RRC [radio resource control] signaling. Note that apart from the
`configurable periodicity, the inclusion of SI can be made
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`arbitrarily, if for instance padding allows it or if triggered by
`higher priority data entering the UE buffer.
`
`Ex. 1004, 2 (brackets added). Patent Owner argues that this quote only
`shows that “the periodicity of the scheduling information sent to the base
`station ‘is configurable’” and that including scheduling information can be
`arbitrary. Prelim. Resp. 21–22. Based on the current record and the parties’
`arguments, we disagree. The quoted language uses permissive language to
`state that inclusion of scheduling information can be arbitrary, which at least
`suggests that it could also be non-arbitrary. Additionally, the quoted
`language specifically states that the periodicity is in the order of TTI, which
`suggests an integer multiple of 1 TTI. Thus, we are not persuaded by Patent
`Owner’s argument based on the current record.
`For the reasons above, Petitioner has shown sufficiently, at this stage
`of the proceeding, that Fong and Ericsson teach “at least one triggering
`criterion comprises a criterion being met based on reaching a threshold of
`the at least one threshold of k transmission time intervals,” as recited in
`claims 1 and 19, as well as the other limitations of claims 1 and 19. Based
`on the current record, we also are persuaded that Petitioner has provided a
`sufficient rationale for combining Fong and Ericsson. Thus, we determine
`that Petitioner has shown a reasonable likelihood of success as to its
`challenge to claims 1 and 19 as obvious over the combination of Fong and
`Ericsson.
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`D. Obviousness of Claims 3 and 21 over Fong, Ericsson, and Bark
`Petitioner contends that claims 3 and 21, which depend from claims 1
`and 19 respectively, are unpatentable under 35 U.S.C. § 103(a) as obvious
`over Fong, Ericsson, and Bark. Pet. 48. Claims 3 and 21 both recite, as an
`additional limitation, “wherein the set of at least one triggering criterion
`comprises a triggering criterion such that an absolute difference between
`current and most recent path loss measurements has reached a threshold of
`difference.”
`To support its contentions, Petitioner provides explanations as to how
`the prior art allegedly teaches each claim limitation. Id. at 48–60. Petitioner
`also relies upon the Declaration of Dr. Haas for support. Ex. 1006.
`Bark (Exhibit 1005) describes a balance in the trade-off between
`uplink signaling overhead and performance improvements that result from
`having measurement information available at the base station. Ex. 1005,
`2:65–3:8. Bark describes the use of triggers to prevent reports from being
`sent too frequently but still ensure the reports are not outdated. Id. at 3:26–
`40. “An adaptive set of predetermined ‘events’ and/or predetermined
`‘conditions’ may be defined that trigger measurement reports to be sent from
`the mobile station.” Id. at 6:47–50. The contents of a measurement report
`may contain “information such as the value of the measured parameter, other
`parameters, and even optional information may also be provided in that
`report.” Id. at 7:4–6. One of the measured and reported parameters can
`include “transmit power” of a mobile terminal. Id. at 8:32–41. The
`measured and reported parameters also may include “path loss.” Id. One of
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`the trigger events in Bark for sending a measurement report is whether a
`change of a measured parameter, such as path loss, exceeds a threshold. Id.
`at 11:11-20.
`
`1. Analysis
`Based on the current record, Petitioner establishes sufficiently that the
`combination of Fong, Ericsson, and Bark teaches “wherein the set of at least
`one triggering criterion comprises a triggering criterion such that an absolute
`difference between current and most recent path-loss measurements has
`reached a threshold of difference,” as recited in claim 3 and similarly recited
`in claim 21. Pet. 48–60; Ex. 1005.
`Petitioner asserts that Bark discloses that the triggering of a
`measurement report may be based on path loss. Pet. 48–50, 58. In Bark,
`“[t]he message [] identifies one or more predetermined events and/or
`conditions which trigger the transmission of a measurement report sent from
`the mobile station back to the radio network control node” including a
`trigger based on path loss.” Ex. 1005, 7:37–62. Petitioner also explains how
`one of ordinary skill in the art would recognize that Bark teaches
`determining an absolute difference between current and most recent
`parameter measurements which can be applied to path loss. Pet. 50–54.
`Patent Owner asserts that Petitioner’s explanation of how Bark meets
`the claim limitation is “winding” and contains too many “extrapolations” to
`be a correct explanation of how one of ordinary skill would have understood
`Bark. Prelim. Resp. 23–24. Based on the current record, we are not
`persuaded that this is the case. Rather, Petitioner walks through a step-by-
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`step mapping of Bark to the claim limitation. See Pet. 50–54. Patent Owner
`then argues that Bark does not disclose computing the absolute difference
`between current and most recent path loss measurements and comparing it
`with a threshold. Id. at 24–27. Bark does not explicitly do so but, as noted
`above, Petitioner explains how one of ordinary skill would recognize that
`computation based on Bark’s disclosures about triggering, including using
`path loss as a trigger and using absolute difference in a trigger. Id. at 50–54.
`Thus, we are not persuaded by Patent Owner’s argument based on the
`current record.
`For the reasons above, we determine that Petitioner has shown a
`reasonable likelihood of success as to its challenge to claims 3 and 21 as
`obvious over the combination of Fong, Ericsson, and Bark.
`II. CONCLUSION
`For the foregoing reasons, we determine Petitioner has demonstrated
`there is a reasonable likelihood it would prevail in establishing the
`unpatentability of claims 1, 3, 19, and 21 of the ’676 patent. At this stage of
`the proceeding, the Board has not made a final determination as to the
`patentability of any challenged claim.
`III. ORDER
`For the reasons given, it is
`ORDERED that, pursuant to 35 U.S.C. § 314(a), an inter partes
`
`review is hereby instituted as to claims 1, 3, 19, and 21 of the ’676 patent on
`the following asserted grounds: claims 1 and 19 under 35 U.S.C. § 103(a) as
`being unpatentable in view of the combination of Fong and Ericsson; and
`
`18
`
`
`
`IPR2016-01493
`Patent 8,457,676 B2
`
`
`claims 3 and 21 under 35 U.S.C. § 103(a) as being unpatentable in view of
`the combination of Fong, Ericsson, and Bark; and
`FURTHER ORDERED that pursuant to 35 U.S.C. § 314(c) and
`37 C.F.R. § 42.4, inter partes review of the ʼ676 patent shall commence on
`the entry date of this Decision, and notice is hereby given of the institution
`of a trial.
`
`PETITIONER:
`
`Andrew S. Ehmke
`Scott T. Jarratt
`Clint S. Wilkins
`HAYNES AND BOONE, LLP
`andy.ehmke.ipr@haynesboone.com
`scott.jarratt.ipr@haynesboone.com
`clint.wilkins.ipr@haynesboone.com
`
`
`PATENT OWNER:
`
`Terry A. Saad
`Nicholas C. Kliewer
`BRAGALONE CONROY PC
`tsaad@bcpc-law.com
`nkliewer@bcpc-law.com
`
`
`
`19
`
`
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