`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Paper No. 30
`
`____________
`
`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
`Patent 8,457,676
`
`____________
`
`PETITIONERS’ RESPONSE TO PATENT OWNER’S MOTION FOR
`OBSERVATION ON CROSS EXAMINATION
`
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`P.O. Box 1450
`Alexandria, VA 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.
`
`
`
`
`
`
`
`
`I.
`
`INTRODUCTION
`In accordance with the Board’s oral order, Petitioners HTC Corporation, HTC
`
`America, Inc., ZTE Corporation, and ZTE (USA), Inc. (“Petitioners”) hereby submit
`
`the instant Response to Patent Owner’s Motion for Observations on Cross
`
`Examination, filed by Patent Owner on November 3, 2017 (Paper No. 29).
`
`II. RESPONSE TO PATENT OWNER OBSERVATIONS 1-16
`A. Response to Observation 1
`Patent Owner suggests that Dr. Haas’s limited testimony is somehow relevant
`
`to issues he did not address in his Supplemental Declaration. Patent Owner’s
`
`observation is irrelevant. As Dr. Haas explained, he was only asked to provide an
`
`opinion on the areas addressed in his Supplemental Declaration. Ex. 2009 17:18-
`
`19:16; Ex. 1021 ¶4. Dr. Haas’s Supplemental Declaration does not address the issue
`
`raised in Patent Owner’s observation, and thus his cross examination is not relevant
`
`to that issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`B. Response to Observation 2
`Patent Owner suggests that Dr. Haas’s limited testimony is somehow relevant
`
`to issues he did not address in his Supplemental Declaration. Patent Owner’s
`
`observation is irrelevant. As Dr. Haas explained, he was only asked to provide an
`
`opinion on the areas addressed in his Supplemental Declaration. Ex. 2009 17:18-
`
`19:16; Ex. 1021 ¶4. Dr. Haas’s Supplemental Declaration does not address the issue
`
`1
`
`
`
`
`
`
`
`raised in Patent Owner’s observation, and thus his cross examination is not relevant
`
`to that issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`C. Response to Observation 3
`Patent Owner suggests that Dr. Haas’s limited testimony is somehow relevant
`
`to issues he did not address in his Supplemental Declaration. Patent Owner’s
`
`observation is irrelevant. As Dr. Haas explained, he was only asked to provide an
`
`opinion on the areas addressed in his Supplemental Declaration. Ex. 2009 17:18-
`
`19:16; Ex. 1021 ¶4. Dr. Haas’s Supplemental Declaration does not address the issue
`
`raised in Patent Owner’s observation, and thus his cross examination is not relevant
`
`to that issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`D. Response to Observation 4
`Patent Owner suggests that Dr. Haas’s limited testimony is somehow relevant
`
`to issues he did not address in his Supplemental Declaration. Patent Owner’s
`
`observation is irrelevant. As Dr. Haas explained, he was only asked to provide an
`
`opinion on the areas addressed in his Supplemental Declaration. Ex. 2009 17:18-
`
`19:16; Ex. 1021 ¶4. Dr. Haas’s Supplemental Declaration does not address the issue
`
`raised in Patent Owner’s observation, and thus his cross examination is not relevant
`
`to that issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`E. Response to Observation 5
`Patent Owner points to Dr. Haas’s testimony regarding Bark’s Figures 13
`
`through 15 and suggests that by not addressing those figures, Dr. Haas’s testimony
`2
`
`
`
`
`
`
`
`is incomplete or unreliable. Patent Owner’s observation is not relevant. Dr. Haas’s
`
`testimony relates to Figure 12, which Bark expressly states is an example of a
`
`triggering event or condition. See Ex. 1021; Ex. 1005 at 7:63-65, 8:56-58, 11:11-20.
`
`Further, Dr. Haas’s Supplemental Declaration does not address the issue raised in
`
`Patent Owner’s observation, and thus his cross examination is not relevant to that
`
`issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`F. Response to Observation 6
`Patent Owner points to Dr. Haas’s testimony regarding Bark’s Figures 13
`
`through 15 and suggests that by not addressing those figures, Dr. Haas’s testimony
`
`is incomplete or unreliable. Patent Owner’s observation is not relevant. Dr. Haas’s
`
`testimony relates to Figure 12, which Bark expressly states is an example of a
`
`triggering event or condition. See Ex. 1021; Ex. 1005 at 7:63-65, 8:56-58, 11:11-20.
`
`Further, Dr. Haas’s Supplemental Declaration does not address the issue raised in
`
`Patent Owner’s observation, and thus his cross examination is not relevant to that
`
`issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`G. Response to Observation 7
`Patent Owner suggests that Dr. Haas’s limited testimony is somehow relevant
`
`to issues he did not address in his Supplemental Declaration. Patent Owner’s
`
`observation is irrelevant. As Dr. Haas explained, he was only asked to provide an
`
`opinion on the areas addressed in his Supplemental Declaration. Ex. 2009 17:18-
`
`3
`
`
`
`
`
`
`
`19:16, 52:5-54:17; Ex. 1021 ¶4. Dr. Haas’s Supplemental Declaration does not
`
`address the issue raised in Patent Owner’s observation, and thus his cross
`
`examination is not relevant to that issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`H. Response to Observation 8
`Patent Owner suggests that Dr. Haas’s limited testimony is somehow relevant
`
`to issues he did not address in his Supplemental Declaration. Patent Owner’s
`
`observation is irrelevant. As Dr. Haas explained, he was only asked to provide an
`
`opinion on the areas addressed in his Supplemental Declaration. Ex. 2009 17:18-
`
`19:16, 52:5-54:17; Ex. 1021 ¶4. Dr. Haas’s Supplemental Declaration does not
`
`address the issue raised in Patent Owner’s observation, and thus his cross
`
`examination is not relevant to that issue. See 37 C.F.R. § 42.53(d)(5)(ii).
`
`I.
`Response to Observation 9
`Patent Owner argues that Dr. Haas’s testimony on Bark’s disclosure in the
`
`embodiment depicted in Figure 12 is somehow relevant to Patent Owner’s position
`
`that Bark does not disclose an absolute difference. Patent Owner’s observation is
`
`irrelevant. As the entirety of Dr. Haas’s testimony demonstrates, Bark’s disclosure
`
`teaches to those of ordinary skill in the art that the measured change in parameters—
`
`including path-loss—is an absolute difference based on, among other things, Bark
`
`expressly refers to measuring “change,” and slope in the context of a typical periodic
`
`4
`
`
`
`
`
`
`
`sampling would be understood to teach absolute difference. Ex. 1005 at 11:11-20;
`
`Ex. 1006 at 54-62; Ex. 1021.
`
`J.
`Response to Observation 10
`Patent Owner argues that Dr. Haas’s testimony on Bark’s disclosure in the
`
`embodiment depicted in Figure 12 is somehow relevant to Patent Owner’s position
`
`that Bark does not disclose an absolute difference. Patent Owner’s observation is
`
`irrelevant. As the entirety of Dr. Haas’s testimony demonstrates, Bark’s disclosure
`
`teaches to those of ordinary skill in the art that the measured change in parameters—
`
`including path-loss—is an absolute difference based on, among other things, Bark
`
`expressly refers to measuring “change,” and slope in the context of a typical periodic
`
`sampling would be understood to teach absolute difference. Ex. 1005 at 11:11-20;
`
`Ex. 1006 at 54-62; Ex. 1021.
`
`K. Response to Observation 11
`Patent Owner argues that Dr. Haas’s testimony on Bark’s disclosure in the
`
`embodiment depicted in Figure 12 is somehow relevant to Patent Owner’s position
`
`that Bark does not disclose an absolute difference. Patent Owner’s observation is
`
`irrelevant. As the entirety of Dr. Haas’s testimony demonstrates, Bark’s disclosure
`
`teaches to those of ordinary skill in the art that the measured change in parameters—
`
`including path-loss—is an absolute difference based on, among other things, Bark
`
`expressly refers to measuring “change,” and slope in the context of a typical periodic
`
`5
`
`
`
`
`
`
`
`sampling would be understood to teach absolute difference. Ex. 1005 at 11:11-20;
`
`Ex. 1006 at 54-62; Ex. 1021.
`
`L. Response to Observation 12
`Patent Owner contends that Dr. Haas’s testimony relies on a purported
`
`assumption. Patent Owner’s observation is irrelevant. As the entirety of Dr. Haas’s
`
`testimony demonstrates, his opinion does not rely on a purported assumption that
`
`“the change in time is constant.” Rather, Dr. Haas testified that those skilled in the
`
`art understand that measurements like those depicted in Figure 12 are taken
`
`periodically, not constantly. Ex. 1021; Ex. 2009, 67:18-68:12; Ex. 1006 at 54-58.
`
`M. Response to Observation 13
`Patent Owner contends that Dr. Haas’s testimony supports Patent Owner’s
`
`position that Bark’s disclosure does not teach an absolute difference. Patent Owner’s
`
`observation is irrelevant. Dr. Haas testified that those skilled in the art understand
`
`that measurements like those depicted in Figure 12 are taken periodically, not
`
`constantly, and that understanding supports his conclusions regarding what Bark’s
`
`disclosure teaches. Ex. 1021; Ex. 2009, 67:18-68:12; Ex. 1006 at 54-58.
`
`N. Response to Observation 14
`Patent Owner contends that Dr. Haas’s testimony supports Patent Owner’s
`
`position that Bark’s disclosure does not teach an absolute difference. Patent Owner’s
`
`observation is irrelevant. Dr. Haas testified that those skilled in the art understand
`
`that measurements like those depicted in Figure 12 are taken periodically, not
`6
`
`
`
`
`
`
`
`constantly, and that understanding supports his conclusions regarding what Bark’s
`
`disclosure teaches. Ex. 1021; Ex. 2009, 67:18-68:12; Ex. 1006 at 54-58.
`
`O. Response to Observation 15
`Patent Owner contends that Dr. Haas’s testimony supports Patent Owner’s
`
`position that Bark’s disclosure does not teach an absolute difference. Patent Owner’s
`
`observation is irrelevant. Dr. Haas testified that those skilled in the art understand
`
`that measurements like those depicted in Figure 12 are taken periodically, not
`
`constantly, and that understanding supports his conclusions regarding what Bark’s
`
`disclosure teaches. Ex. 1021; Ex. 2009, 67:18-68:12; Ex. 1006 at 54-58.
`
`P. Response to Observation 16
`Patent Owner contends that Dr. Haas’s testimony supports Patent Owner’s
`
`position that Bark’s disclosure does not teach an absolute difference. Patent Owner’s
`
`observation is irrelevant. Dr. Haas testified that those skilled in the art understand
`
`that measurements like those depicted in Figure 12 are taken periodically, not
`
`constantly, and that understanding supports his conclusions regarding what Bark’s
`
`disclosure teaches. Ex. 1021; Ex. 2009, 67:18-68:12; Ex. 1006 at 54-58.
`
`Q. Response to Observation 17
`Patent Owner contends that Dr. Haas’s testimony supports Patent Owner’s
`
`position that Dr. Kesan’s example demonstrates why slope is not the same as
`
`absolute difference. Patent Owner’s observation is irrelevant. As Dr. Haas testified,
`
`Dr. Kesan’s example is misleading because it does not account for the skilled
`7
`
`
`
`
`
`
`
`artisan’s understanding that measurements are taken periodically. Ex. 1021 ¶¶11-
`
`12; Ex. 2009, 86:12-89:8.
`
`R. Response to Observation 18
`Patent Owner contends that Dr. Haas’s testimony supports Patent Owner’s
`
`position that Dr. Kesan’s example demonstrates why slope is not the same as
`
`absolute difference. Patent Owner’s observation is irrelevant. As Dr. Haas testified,
`
`Dr. Kesan’s example is misleading because it does not account for the skilled
`
`artisan’s understanding that measurements are taken periodically. Ex. 1021 ¶¶11-
`
`12; Ex. 2009, 86:12-89:8.
`
`Date: November 7, 2017
`
`
`
`Respectfully submitted,
`
` /Brian C. Nash/
` Brian C. Nash , Reg. No. 58,105
`Pillsbury Winthrop Shaw Pittman LLP
`401 Congress Ave, Suite 1700
`Austin, Texas 78701-3343
`Tel: (512) 580-9629
`brian.nash@pillsburylaw.com
`
`
`Steven A. Moore (Reg. No. 55,462)
`Pillsbury Winthrop Shaw Pittman LLP
`501 W. Broadway, Suite 1100
`San Diego, CA 92101
`Telephone: 619.544.3112
`Facsimile: 619.236.1995
`Email: steve.moore@pillsburylaw.com
`
`
`Counsel for Petitioners
`
`8
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on November 7, 2017, I caused a true and correct copy
`
`of PETITIONER’S RESPONSE TO PATENT OWNER’S MOTION FOR
`
`OBSERVATION OF CROSS-EXAMINATION to be sent via email to the
`
`Edward R. Nelson, III
`NELSON BUMGARDNER, P.C.
`3131 West 7th St., Suite 300
`Fort Worth, TX 76107
`ed@nelbum.com
`
`
`following:
`
`Terry A. Saad
`Jeffrey R. Bragalone
`Daniel F. Olejko
`Nicholas C. Kliewer
`Jonathan H. Rastegar
`Bragalone Conroy PC
`2200 Ross Ave.
`Suite 4500 – West
`Dallas, TX 75201
`Email: tsaad@bcpc-law.com
`jbragalone@bcpc-law.com
`nkliewer@bcpc-law.com
`dolejko@bcpc-law.com
`jrastegar@bcpc-law.com
`BCPCserv@bcpc-law.com
`
`
`
`
`
`Date: November 7, 2017
`
`
`
` /Brian C. Nash/
` Brian C. Nash , Reg. No. 58,105
`Pillsbury Winthrop Shaw Pittman LLP
`401 Congress Ave, Suite 1700
`Austin, Texas 78701-3343
`Tel: (512) 580-9629
`brian.nash@pillsburylaw.com
`
`Counsel for Petitioners
`
`
`
`
`
`
`
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