Filed on behalf of Cellular Communications Equipment LLC
`By: Terry A. Saad (tsaad@bcpc-law.com)
`
`Jeffrey R. Bragalone (jbragalone@bcpc-law.com)
`Daniel F. Olejko (dolejko@bcpc-law.com)
`Nicholas C. Kliewer (nkliewer@bcpc-law.com)
`Bragalone Conroy PC
`2200 Ross Ave.
`Suite 4500 – West
`Dallas, TX 75201
`Tel: 214.785.6670
`Fax: 214.786.6680
`
`
`
`
`
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`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC., HTC CORPORATION, HTC AMERICA, INC.,
`ZTE CORPORATION, AND ZTE (USA), INC.,
`Petitioners,
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT LLC,
`Patent Owner.
`
`Case IPR2016-014931
`U.S. Patent No. 8,457,676
`
`MOTION FOR OBSERVATION OF CROSS-EXAMINATION OF
`ZYGMUNT J. HAAS, PH.D.
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`
`
`1 HTC Corporation, HTC America, Inc., ZTE Corporation, and ZTE (USA), Inc. filed a petition
`in (now terminated) IPR2017-01081, and have been joined to the instant proceeding.
`
`
`By: Terry A. Saad (tsaad@bcpc-law.com)
`
`Jeffrey R. Bragalone (jbragalone@bcpc-law.com)
`Daniel F. Olejko (dolejko@bcpc-law.com)
`Nicholas C. Kliewer (nkliewer@bcpc-law.com)
`Bragalone Conroy PC
`2200 Ross Ave.
`Suite 4500 – West
`Dallas, TX 75201
`Tel: 214.785.6670
`Fax: 214.786.6680
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`APPLE INC., HTC CORPORATION, HTC AMERICA, INC.,
`ZTE CORPORATION, AND ZTE (USA), INC.,
`Petitioners,
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT LLC,
`Patent Owner.
`
`Case IPR2016-014931
`U.S. Patent No. 8,457,676
`
`MOTION FOR OBSERVATION OF CROSS-EXAMINATION OF
`ZYGMUNT J. HAAS, PH.D.
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`
`
`1 HTC Corporation, HTC America, Inc., ZTE Corporation, and ZTE (USA), Inc. filed a petition
`in (now terminated) IPR2017-01081, and have been joined to the instant proceeding.
`
`
`
`IPR2016-01493
`Patent 8,457,676
`Patent Owner Cellular Communications Equipment LLC (“CCE”) hereby
`
`files this motion for observation of the testimony of Dr. Zygmunt J. Haas obtained
`
`on October 26, 2017, during the cross-examination of his Second Declaration
`
`(Exhibit 1021). This motion includes one exhibit—the transcript of the testimony
`
`of Dr. Haas during his cross-examination on October 26, 2017 (Exhibit 2009).
`
`Observation No. 1
`
`In Exhibit 2009, on page 17, line 16 through page 18, line 4, the witness
`
`testified that his Supplemental Declaration does not respond to all of the opinions
`
`provided by Dr. Kesan, but instead only responds to a limited set of points on which
`
`he was requested to respond by Petitioners. That testimony is relevant to the opinions
`
`of Dr. Kesan on pages 37-42 and 61-68 of Ex. 2007 that Dr. Haas’ analysis is
`
`deficient because he has not addressed the problem sought to be solved by the
`
`inventors of the ’676 patent and properly considered the impact of how the power
`
`control implementations in the prior art systems differ from those of LTE. The
`
`testimony is relevant because Patent Owner has argued that the problem that the
`
`inventors sought to solve impacts the perspective of a person of skill in the art and
`
`the differences in power control schemes used in the prior art and LTE impact the
`
`obviousness analysis.
`
`Observation No. 2
`
`In Exhibit 2009, on page 18, lines 5-9, the witness testified that his lack of a
`
`
`
`IPR2016-01493
`Patent 8,457,676
`response to Dr. Kesan’s opinions does not necessarily mean that he agrees with those
`
`opinions. That testimony is relevant to the testimony of Dr. Haas in paragraph 8 of
`
`his Supplemental Declaration that Dr. Kesan has not contested the assumption of
`
`periodic sampling that Dr. Haas has applied to the disclosure of Bark. The testimony
`
`is relevant because it provides confirmation that Dr. Haas agrees that the lack of a
`
`response to a particular point, such as Dr. Kesan failing to address the accuracy of
`
`Dr. Haas’s assumption, does not mean that the point is agreed.
`
`Observation No. 3
`
`In Exhibit 2009, on page 30, line 25 through page 32, line 23, the witness
`
`testified that he considered Exhibits 2001 through 2005 in preparing his
`
`Supplemental Declaration, but did not cite to or refer to those exhibits in any portion
`
`of the Supplemental Declaration. That testimony is relevant to the opinions and
`
`testimony of Dr. Kesan on pages 14-20 regarding the relevant background of the
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`technology related to the ’676 patent. The testimony is relevant because Patent
`
`Owner has argued that the problem that the inventors sought to solve impacts the
`
`perspective of a person of skill in the art and the differences in power control
`
`schemes used in the prior art and LTE impact the obviousness analysis, but Dr. Haas
`
`has not addressed these points in the Supplemental Declaration.
`
`Observation No. 4
`
`In Exhibit 2009, on page 42, line 21 through page 43, line 11, the witness
`
`
`
`IPR2016-01493
`Patent 8,457,676
`testified that he was unable to answer a question regarding whether power headroom
`
`reports are useful in power control operations of a cellular system. That testimony is
`
`relevant to the credibility of the opinions provided by Dr. Haas in this proceeding.
`
`The testimony is relevant because power headroom reporting and how those reports
`
`are used in a cellular system are fundamental to an obviousness analysis regarding
`
`the claims of the ’676 patent.
`
`Observation No. 5
`
`In Exhibit 2009, on page 49, line 24 through page 51, line 6, the witness
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`testified that he has not cited to any specific reference to Figures 13 through 15 of
`
`Bark in his First or Supplemental Declarations. That testimony is relevant to Dr.
`
`Haas’ reliance on Bark as a reference disclosing triggering conditions for power
`
`headroom reports. The testimony is relevant because the ’676 is specifically directed
`
`to power control operations and Bark discusses specific events that are useful for
`
`power control operations in relation to Figures 13 through 15 of Bark, which are not
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`cited by Dr. Haas.
`
`Observation No. 6
`
`In Exhibit 2009, on page 51, line 16 through page 52, line 4, the witness
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`testified that he was unable to answer a question regarding the events triggering a
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`report discussed by Bark in association with Figures 13 through 15. That testimony
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`is relevant to Dr. Haas’ reliance on Bark as a reference disclosing triggering
`
`
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`IPR2016-01493
`Patent 8,457,676
`conditions for power headroom reports. The testimony is relevant because the ’676
`
`is specifically directed to power control operations and Bark discusses specific
`
`events that are useful for power control operations in relation to Figures 13 through
`
`15 of Bark, which are not cited by Dr. Haas. The testimony is also relevant to the
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`credibility of the opinions provided by Dr. Haas because he was unable, or unwilling,
`
`to answer questions regarding the Bark reference, which is relevant in its entirety to
`
`this proceeding.
`
`Observation No. 7
`
`In Exhibit 2009, on page 52, line 5-18, the witness testified that the only point
`
`he has responded to in his Supplemental Declaration, based on what he was “asked”
`
`to address, relates to “the fact that slope measurement is analogous to measurement
`
`of the parameter difference.” That testimony is relevant to the opinions provided by
`
`Dr. Kesan for which Dr. Haas has not provided a response. The testimony is relevant
`
`because Patent Owner has argued that the problem that the inventors sought to solve
`
`impacts the perspective of a person of skill in the art and the differences in power
`
`control schemes used in the prior art and LTE impact the obviousness analysis, but
`
`Dr. Haas has not addressed these points in the Supplemental Declaration.
`
`Observation No. 8
`
`In Exhibit 2009, on page 52, line 5-18, the witness testified that the only point
`
`he has responded to in his Supplemental Declaration, based on what he was “asked”
`
`
`
`IPR2016-01493
`Patent 8,457,676
`to address, relates to “the fact that slope measurement is analogous to measurement
`
`of the parameter difference.” That testimony is relevant to the opinions provided by
`
`Dr. Kesan for which Dr. Haas has not provided a response. The testimony is relevant
`
`because Patent Owner has argued that the problem that the inventors sought to solve
`
`impacts the perspective of a person of skill in the art and the differences in power
`
`control schemes used in the prior art and LTE impact the obviousness analysis, but
`
`Dr. Haas has not addressed these points in the Supplemental Declaration.
`
`Observation No. 9
`
`In Exhibit 2009, on page 55, line 15 through page 56, line 12, the witness
`
`testified that the triggering criterion and threshold value disclosed by Bark in Figure
`
`12 is based on the slope of the measured value. That testimony is relevant to the
`
`Petitioners’ argument that Bark discloses the limitations of claims 3 and 21. The
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`testimony is relevant because claims 3 and 21 of the ’676 patent recite that the
`
`triggering criterion and threshold value are based on the absolute difference between
`
`the current and most recent path loss measurements—not the slope of the
`
`measurements.
`
`Observation No. 10
`
`In Exhibit 2009, on page 60, line 23 through page 61, line 9, the witness
`
`testified that the trigger event disclosed by Bark in Figure 12 is based on how quickly
`
`the parameter changes. That testimony is relevant to the Petitioners’ argument that
`
`
`
`IPR2016-01493
`Patent 8,457,676
`Bark discloses the limitations of claims 3 and 21. The testimony is relevant because
`
`claims 3 and 21 of the ’676 patent recite that the triggering criterion and threshold
`
`value are based on the absolute difference between the current and most recent path
`
`loss measurements—not how quickly the measurements change.
`
`Observation No. 11
`
`In Exhibit 2009, on page 65, line 8 through page 66, line 8, the witness
`
`testified that slope is not the same as absolute difference. That testimony is relevant
`
`to the Petitioners’ argument that Bark discloses the limitations of claims 3 and 21.
`
`The testimony is relevant because claims 3 and 21 of the ’676 patent recite that the
`
`triggering criterion and threshold value are based on the absolute difference between
`
`the current and most recent path loss measurements—which is not the same as slope.
`
`Observation No. 12
`
`In Exhibit 2009, on page 67, lines 2-17, the witness testified that he does not
`
`know whether his opinion requires the change in time between parameter
`
`measurements in Bark to be constant, because he had not previously considered that
`
`question. That testimony is relevant to the opinions at paragraphs 9-12 of Dr. Haas’
`
`Supplemental Declaration that clearly assume periodic sampling (i.e., that the
`
`change in time between measurements is constant). The testimony is relevant
`
`because Dr. Haas’ opinions rely on this assumption, but it is not disclosed by Bark.
`
`This testimony is also relevant to the credibility of the opinions of Dr. Haas because
`
`
`
`IPR2016-01493
`Patent 8,457,676
`he was unable to explain on cross-examination whether his analysis required this
`
`assumption.
`
`Observation No. 13
`
`In Exhibit 2009, on page 67, line 18 through page 68, line 22, the witness
`
`testified Bark does not explicitly disclose that the time intervals between
`
`measurements is constant, but just that he “believes” that is how UE devices are
`
`built. That testimony is relevant to the opinions at paragraphs 9-12 of Dr. Haas’
`
`Supplemental Declaration that clearly assume periodic sampling (i.e., that the
`
`change in time between measurements is constant). The testimony is relevant
`
`because Dr. Haas’ opinions rely on this assumption, but it is not disclosed by Bark.
`
`Observation No. 14
`
`In Exhibit 2009, on page 74, lines 18-25, the witness testified that he “would
`
`have to think a little bit more about” whether his conclusion holds if the sampling is
`
`not periodic, and that he only considered the case of periodic sampling. That
`
`testimony is relevant to the opinions at paragraphs 9-12 of Dr. Haas’ Supplemental
`
`Declaration that clearly assume periodic sampling (i.e., that the change in time
`
`between measurements is constant). The testimony is relevant because Dr. Haas’
`
`opinions rely on this assumption, but it is not disclosed by Bark. This testimony is
`
`also relevant to the credibility of the opinions of Dr. Haas because he was unable to
`
`explain on cross-examination whether his analysis required this assumption.
`
`
`
`IPR2016-01493
`Patent 8,457,676
`Observation No. 15
`
`In Exhibit 2009, on page 75, line 25 through page 76, line 14, the witness
`
`testified unequivocally that Bark does not explicitly disclose the assumption that Dr.
`
`Haas has applied in his analysis that the sampling of parameter measurements is
`
`performed periodically and that he did not consider the case in which the sampling
`
`is not periodic. That testimony is relevant to the opinions at paragraphs 9-12 of Dr.
`
`Haas’ Supplemental Declaration that clearly assume periodic sampling (i.e., that the
`
`change in time between measurements is constant). The testimony is relevant
`
`because Dr. Haas’ opinions rely on this assumption, but it is not disclosed by Bark.
`
`This testimony is also relevant to the credibility of the opinions of Dr. Haas because
`
`he was unable to explain on cross-examination whether his analysis required this
`
`assumption.
`
`Observation No. 16
`
`In Exhibit 2009, on page 79, lines 3-12, the witness testified that the threshold
`
`value sent to the mobile device in Bark, which he represents in paragraph 10 of
`
`Exhibit 1021 as τ, is a slope and remains a slope even after the mathematical
`
`manipulations provided by Dr. Haas in paragraph 10. That testimony is relevant to
`
`Petitioners’ arguments that Bark discloses the limitations of claims 3 and 21, which
`
`rely on the opinions of Dr. Haas, including the Supplemental Declaration. The
`
`testimony is relevant because claims 3 and 21 recite a “threshold of difference,” not
`
`
`
`IPR2016-01493
`Patent 8,457,676
`a threshold of slope.
`
`Observation No. 17
`
`In Exhibit 2009, on page 86, lines 5-25, the witness testified that it is his
`
`opinion that Dr. Kesan’s example comparing slope to the speed of a vehicle and
`
`absolute difference to the distance a vehicle travels is flawed because it does not
`
`assume periodic sampling. That testimony is relevant to the opinions at paragraphs
`
`9-12 of Dr. Haas’ Supplemental Declaration that clearly assume periodic sampling
`
`(i.e., that the change in time between measurements is constant) even though it is not
`
`disclosed by Bark. The testimony is relevant because Dr. Haas is critical of the
`
`analogy provided by Dr. Kesan for the reason that Dr. Kesan has not applied the
`
`same assumption as Dr. Haas to his analogy, even though Dr. Haas has agreed that
`
`periodic sampling is not disclosed by Bark.
`
`Observation No. 18
`
`In Exhibit 2009, on page 87, line 9 through page 89, line 8, the witness
`
`testified that, if you do not assume a constant measurement window, then comparing
`
`speed to distance is the same as comparing “apples with oranges.” That testimony is
`
`relevant to the opinions at paragraphs 9-12 of Dr. Haas’ Supplemental Declaration
`
`that analogize measuring the absolute difference to measuring slope. The testimony
`
`is relevant because it confirms that without Dr. Haas’ assumption, which is not
`
`disclosed by Bark, comparing absolute difference of two measured parameters to the
`
`
`
`IPR2016-01493
`Patent 8,457,676
`slope of two measured parameters is the same, in Dr. Haas’ words, as comparing
`
`“apples with oranges.”
`
`
`
`
`Dated: November 3, 2017
`
`
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`Respectfully submitted,
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`________________________
`
`
`
`
`
`
`Terry A. Saad (Reg. No. 62,492)
`
`
`
`
`
`
`Attorney for Patent Owner
`
`
`
`
`
`Bragalone Conroy PC
`
`
`
`
`
`2200 Ross Ave.
`
`
`
`
`
`Suite 4500 – West
`
`
`
`
`
`Dallas, TX 75201
`
`
`
`
`
`
`
`
`
`IPR2016-01493
`Patent 8,457,676
`
`CERTIFICATE OF SERVICE
`
`
`
`The undersigned hereby certifies that this document has been served via
`
`electronic mail on November 3, 2017, to Petitioners at the following email addresses
`
`pursuant
`
`to
`
`their
`
`consent:
`
`andy.ehmke.ipr@haynesboone.com,
`
`scott.jarratt.ipr@haynesboone.com,
`
`clint.wilkins.ipr@haynesboone.com
`
`and
`
`jamie.mcdole@haynesboone.com,
`
`phillip.philbin.ipr.haynesboone.com,
`
`steve.moore@pillsburylaw.com,
`
`brian.nash@pillsburylaw.com,
`
`and
`
`rene.mai@pillsburylaw.com, with a courtesy copy to docket_ip@pillsburylaw.com.
`
`
`
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`
`
`________________________
`
`
`
`
`
`
`Terry A. Saad (Reg. No. 62,492)
`
`
`
`
`
`
`Attorney for Patent Owner
`
`
`
`
`
`Bragalone Conroy PC
`
`
`
`
`
`2200 Ross Ave.
`
`
`
`
`
`Suite 4500 – West
`
`
`
`
`
`Dallas, TX 75201
`
`
`
`
`
`
`
`
`
`
`
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