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
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HTC CORPORATION and HTC AMERICA, INC.,
`Petitioners,
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT LLC,
`Patent Owner.
`
`
`
`Case IPR2016-01501
`U.S. Patent No. 8,457,676
`
`
`
`PATENT OWNER’S RESPONSE TO PETITION FOR INTER PARTES
`REVIEW OF U.S. PATENT NO. 8,457,676
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`
`
`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
`
`HTC CORPORATION and HTC AMERICA, INC.,
`Petitioners,
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT LLC,
`Patent Owner.
`
`
`
`Case IPR2016-01501
`U.S. Patent No. 8,457,676
`
`
`
`PATENT OWNER’S RESPONSE TO PETITION FOR INTER PARTES
`REVIEW OF U.S. PATENT NO. 8,457,676
`
`
`
`Mail Stop PATENT BOARD
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, Virginia 22313-1450
`
`
`
`IPR2016-01501
`Patent 8,457,676
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`
`
`TABLE OF CONTENTS
`
`INTRODUCTION ............................................................................................ 1
`
`
`I.
`
`II. OVERVIEW OF THE TECHNOLOGY OF THE ’676 PATENT .................. 2
`
`III. CLAIM CONSTRUCTION ........................................................................... 12
`
`IV. ARGUMENT .................................................................................................. 14
`
`A.
`
` The ’676 Patent Solves Problems Directed to 4th Generation LTE
`Systems, But Kwak Is Directed to a 3rd Generation WCDMA
`System. .................................................................................................. 14
`
`
`B.
`
` Petitioners Have Failed to Show by A Preponderance of Evidence
`That Kwak Renders Claims 1, 19, and/or 33 Obvious. ......................... 15
`
`
` Kwak does not disclose the limitation “wherein said at least one
`threshold is adjustable via a signal to the user equipment.” ............... 16
`
`
`
`
`
` Kwak does not disclose the limitation “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.” .............................................................................. 19
`
` Kwak does not disclose the limitation “wherein said at least one
`threshold adjustable via the signal comprises adjusting the threshold
`integer k.” ........................................................................................................ 25
`
`
`V. CONCLUSION .............................................................................................. 26
`
`
`
`
`
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`I
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`PATENT OWNER’S EXHIBIT LIST
`
`
`Exhibit No. Description
`
`Excerpts from LTE - The UMTS Long Term Evolution: From
`Theory to Practice, Stefania Sesia, Issam Toufik, Matthew
`Baker, John Wiley & Sons, 2011
`
`Excerpts from UMTS Networks: Architecture, Mobility and
`Services, Heikki Kaaranen, John Wiley & Sons, 2005
`
`Excerpts from Fundamentals of LTE, Arunabha Ghosh, Jun
`Zhang, Jeffrey G. Andrews, Rias Muhamed, Prentice Hall,
`2010
`
`Williams Deposition Transcript
`
`Declaration of Dr. Jay P Kesan
`
`2001
`
`2002
`
`2003
`
`2004
`
`2005
`
`
`
`II
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`I.
`
`INTRODUCTION
`
`Patent Owner Cellular Communications Equipment LLC (“CCE” or “Patent
`
`Owner”) hereby files this response (“Response”) to the Petition (Paper 1) (the
`
`“Petition”) for Inter Partes Review of U.S. Patent No. 8,457,676 (Ex. 1001) (the
`
`“’676 Patent”) in IPR2016-01501 filed by HTC Corporation and HTC America, Inc.
`
`(collectively “HTC” or “Petitioners”) on the grounds instituted for trial by the
`
`Decision (Paper 7) of the Patent Trial and Appeal Board.
`
`“In an inter partes review instituted under this chapter, the petitioner shall
`
`have the burden of proving a proposition of unpatentability by a preponderance of
`
`the evidence.” 35 U.S.C. § 316(e). Petitioner has failed to carry that burden for the
`
`reasons outlined below.
`
`In its Institution Decision, the Board instituted trial on Petitioner’s challenges
`
`to claims 1, 19, and 33 based on a single ground of unpatentability:
`
` Obviousness under 35 U.S.C. 103(a) of claims 1, 19, and 33 of the ’676
`
`patent in view of U.S. Patent App. Pub. No. 2006/0140154 A1
`
`(“Kwak”).
`
`However, the Petitioners’ challenge to the ’676 Patent claims should be
`
`rejected because U.S. Patent App. Pub. No. 2006/0140154 A1 (“Kwak”) fails to
`
`teach or suggest one or more material limitations of each of the challenged claims.
`
`Petitioner’s reliance on the testimony of Dr. Williams as evidence fails to result in a
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`showing by a preponderance of evidence that claims 1, 19, and/or 33 are obvious in
`
`view of Kwak.
`
`II. OVERVIEW OF THE TECHNOLOGY OF THE ’676 PATENT
`
`The following provides an introduction to the network technologies related to
`
`the ’676 Patent.
`
`
`
`Cellular networks are built on the principle of “cells.” They provide coverage
`
`over large areas by implementing an array of smaller cells that house equipment,
`
`known as base stations, supporting a relatively smaller service area. A large number
`
`of these “cells” are aggregated to provide coverage across a wide area. Base stations
`
`enable mobile devices such as cell phones to communicate with them wirelessly
`
`using certain electromagnetic radio frequencies known as the wireless spectrum.
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`Companies in this industry invest heavily in the design and optimization of cellular
`
`networks in order to make the most efficient use of the wireless spectrum and to
`
`ensure cellular technologies are implemented in a standardized and uniform manner.
`
`To this end, industry leaders participate in non-profit organizations, such as the
`
`Third-Generation Partnership Project (known as “3GPP”) and the European
`
`Telecommunications Standards Institute (known as “ETSI”), to share responsibility
`
`for developing and publishing cellular technology standards. An example of specific
`
`cellular standards relevant to the ’676 Patent are the LTE and LTE-Advanced
`
`standards. LTE is a fourth generation, or 4G network technology and provides
`
`advancements over the earlier second and third generation cellular technologies
`
`known as GSM, 2G, and UMTS, 3G. LTE supports data communication via packet-
`
`switched services such as web browsing, electronic mail, text chat sessions, file
`
`transfers, interactive game sessions, voice-over-IP (Internet Protocol) sessions, and
`
`so forth.
`
`In a multiuser environment, a number of users share the same radio resources.
`
`A consequence of the limited availability of radio channels in the network is that the
`
`same channel has to be assigned to many users. Thus, a signal intended for a certain
`
`user will reach other users, possibly introducing interference to their connection and
`
`degrading system quality. A mobile device with a very good quality connection may
`
`use lower power and still have acceptable quality. The advantage is that it will
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`disturb other users less, thereby improving the quality of their connection. Power
`
`control provides this power management in a controlled manner.
`
`In particular, the ’676 Patent describes techniques for sending power
`
`headroom reports to the base station if one or more conditions, known as triggers,
`
`are met. In an LTE system, multiple mobile devices in a single cell transmit
`
`simultaneously to the base station. One important consideration for these
`
`transmissions is power. All mobile device transmissions require power, and different
`
`circumstances may require higher or lower power transmissions.
`
`Managing power constraints presents several challenges. For example, in
`
`favorable conditions a low power level may suffice. However, a mobile device
`
`moving away from a cell may need to increase its power to maintain a set data
`
`transmission rate. Typically, for various reasons, mobile devices are subject to a
`
`maximum power level for their transmissions.
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`Additionally, a mobile device transmitting on a single code at a specified
`
`power may also need to concurrently transmit using a second code. This increases
`
`the total power output of the device, but again this cannot exceed the device’s
`
`
`
`maximum power level.
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`To avoid exceeding the maximum transmission power, mobile devices keep a
`
`power headroom, which represents the difference between the maximum power and
`
`the current transmission power. Before increasing the transmission power, the
`
`mobile device ensures that the increase does not exceed the existing power
`
`headroom.
`
`The Problem to be Solved
`
`In an LTE system, the base station, known as an e-Node B, must allocate
`
`resources such as bandwidth across numerous mobile devices known also as “User
`
`Equipment” or “UE.” Cellular phones represent one type of UE. As the ’676 Patent
`
`explains, in order for the base station to properly make these allocations, it needs to
`
`be aware of the power levels at which the UEs are transmitting. For instance, before
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`allocating additional resource to a UE, it would be helpful for the base station to
`
`know how much additional resource that UE can handle.
`
`
`
`To this end, the UEs send Power Headroom Reports to the base station. But
`
`there is a trade-off between the value of this information and the overhead of sending
`
`it to the base station. As such, any report from the UE to the base station comes at a
`
`cost to the overall throughput capacity (system uplink capacity) for the system. Thus,
`
`the inventors sought a way to eliminate unnecessary cost by implementing power
`
`headroom reporting on a limited, controlled basis.
`
`The Inventive Solution Provided by the ’676 Patent
`
`The solution, in one embodiment illustrated particularly in Figure 3 of the
`
`‘676 Patent, was to implement certain threshold parameters at the UE, which can be
`
`adjusted by the base station.
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`The ’676 Patent, titled “Power Headroom Reporting Method” was filed on
`
`June 23, 2008 and claims priority to its provisional application filed on June 20,
`
`2007 and was disclosed as potentially essential to the LTE standard. 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.” ’676 Patent at 4:32-35.
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`
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`When the UE determines that a threshold from a set of one or more criterion
`
`has been reached, it triggers sending a Power Headroom Report to the base station.
`
`The inventors discovered the following triggering criteria “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.” ’676 Patent
`
`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.
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`
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`After receiving the Power Headroom Report, the base station can provide a
`
`power control correction command to the UE, which adjusts its signals accordingly.
`
`By providing Power Headroom Reports on a specifically controlled basis, the ’676
`
`Patent allows the base station to make optimal radio resource management decisions,
`
`while minimizing the impact the power headroom reporting has on the throughput
`
`capacity for the system.
`
`One important goal of the ’676 Patent is “to (partly or fully) compensate the
`
`path-loss (including antenna-pattern, distance dependent path-loss and shadowing)
`
`between the eNode-B and the terminal.” ’676 Patent at 4:3-5. To this end, the
`
`inventors found that measurement of path-loss “based on the DL [downlink] (e.g.
`
`DL pilot channel)” was an effective parameter to analyze for optimizing the trade-
`
`offs. Id. at 4:2-7. The inventors found that “[e]ven if the frequency of potential power
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`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 4:7-14. The issue for reporting
`
`then becomes the potential misinterpretation of closed loop power control
`
`commands from the base station by the UE. Id. This would potentially be a problem
`
`where “relative closed loop power control commands are used (which is also the
`
`working assumption in 3GPP).” Id. at 4:14-17.
`
`To solve the above problems, the inventors came up with a method of
`
`triggering power headroom reports only under specific conditions as recited, for
`
`example, in claim 1 of the ’676 Patent:
`
`[1.] A method comprising:
`
`[1a] determining that a set of at least one triggering criterion is met; and
`
`[1b] providing a power control headroom report on an uplink from user
`
`equipment, in response to determining that the set is met,
`
`[1c-d] 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,
`
`[1e] 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.
`
`’676 Patent at 6:26-40. Claim 19 is a counterpart apparatus claim. Although claim
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`11
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`19’s language differs from claim 1, the analysis provided herein applies to both
`
`claims. Claim 33 recites a network element that receives a power headroom report
`
`in response to a triggering criterion being met and provides a signal for adjusting a
`
`threshold. Claim 33 shares similar claim limitations to claims 1 and 19.
`
`Additionally, the inventors found that adjusting for the path-loss by using a
`
`triggering criterion “such that an absolute difference between current and most
`
`recent path-loss measurements has reached a threshold of difference” for sending
`
`the power control headroom reports was a particularly beneficial parameter. See,
`
`e.g., ’676 Patent at 6:45-47 (claims 3, 21, and 34). In this case, a path loss change
`
`(e.g., entering or leaving a building causing a significant change in path loss)
`
`whether the path loss increases by a certain amount, or decreases by a certain
`
`amount, results in a power headroom report being triggered.
`
`III. CLAIM CONSTRUCTION
`
`The claim terms in the ’676 Patent are given their broadest reasonable
`
`interpretation in the instant proceeding, as the ’676 Patent is an unexpired patent.
`
`See 37 C.F.R. § 42.100(b). Although claim terms are given their broadest reasonable
`
`interpretation, claims are not interpreted in a vacuum but are part of and read in light
`
`of the specification. Slimfold Mfg. Co. v. Kinkead Indus., Inc., 810 F.2d 1113, 1116
`
`(Fed. Cir. 1987). Additionally, “claims mean precisely what they say.” Cent.
`
`Admixture Pharmacy Servs., Inc. v. Advanced Cardiac Sols., P.C., 482 F.3d 1347,
`
`12
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`1355 (Fed. Cir. 2007) (“We look to the words of the claims themselves ... to define
`
`the scope of the patented invention.”) (emphasis added). The words of the claim are
`
`given their ordinary and customary meaning, as would have been understood by one
`
`of ordinary skill in the art in the context of the specification. In re Trans logic Tech.,
`
`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). The construction that stays true to the
`
`claim language and most naturally aligns with the inventor’s description is likely the
`
`correct interpretation. Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243,
`
`1250 (Fed. Cir. 1998). A claim term is presumed to be given its ordinary and
`
`customary meaning absent the patent clearly setting forth a different definition of
`
`the term in the specification. In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997).
`
`However, the broadest reasonable interpretation must not be “unreasonably broad in
`
`light of the language of the claims and specification.” Microsoft Corp. v. Proxyconn,
`
`Inc., 789 F.3d 1292, 1299 (Fed. Cir. 2015) (reversing the PTAB’s final decision for
`
`applying an overbroad claim construction). “A construction that is ‘unreasonably
`
`broad’ and which does not ‘reasonably reflect the plain language and disclosure’ will
`
`not pass muster.” Id. at 1298 (quoting In re Suitco Surface, Inc., 603 F.3d 1255,
`
`1260).
`
`The Petition asks the Board to construe three claim terms: “power control
`
`headroom report,” “transmission time intervals” and “path loss.” In the Institution
`
`Decision, the Board declined to construe “power control headroom report” and “path
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`loss,” but adopted Patent Owner’s proposed construction of “transmission time
`
`intervals” as “time periods determined by the duration of a transmission of one or
`
`more transport blocks.” Inst. Dec., Paper 7 at 5-7. If the Board determines further
`
`consideration of the construction of any of these terms is necessary, Patent Owner
`
`incorporates its analysis from the Preliminary Response herein by reference (Patent
`
`Owner Preliminary Response, Paper 6 at 14-19) and reserves the right to further
`
`address any issues raised by the Board or Petitioners.
`
`IV. ARGUMENT
`
`A. The ’676 Patent Solves Problems Directed to 4th Generation LTE
`Systems, But Kwak Is Directed to a 3rd Generation WCDMA System.
`
`Kwak describes a method and apparatus for signaling the transmit power
`
`status (TPS) of a User Equipment (UE) for use in uplink packet transmission
`
`scheduling. Kwak at ¶ [0003]. Kwak’s disclosure is generally directed to
`
`“asynchronous Wideband Code Division Multiple Access
`
`(WCDMA)
`
`communications.” Kwak at ¶ [0003]. But 3rd Generation WCDMA systems did not
`
`reflect the same needs for power headroom reporting as LTE systems. Ex. 2005 at
`
`¶¶ 25-35. Nor do WCDMA systems use power headroom information for scheduling
`
`of resources in the same manner as in LTE. Id. at 29-35. Accordingly, Kwak does
`
`not offer a solution analogous to the power headroom reporting criteria that hold
`
`specific benefit to an LTE implementation, as described by the ’676 patent.
`
`Petitioners and Dr. Williams fail to account for the differences in power
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`control, resource allocation, and architecture between the LTE system of the ’676
`
`patent and the WCDMA systems of Kwak. See Williams Depo Tr., Exhibit 2004 at
`
`33:15-36:8 (“Q: So I’m trying to understand your opinion as it relates to how the
`
`third-generation power control differs from the LTE power control. A: I have not
`
`discussed this in my report. Again, with regards to the claim of the ’676 patent,
`
`there’s virtually no difference.”) This failure is reflected in Dr. Williams’s hindsight
`
`analysis
`
`that
`
`ignores
`
`the problems specifically confronting
`
`the wireless
`
`communications industry with the development and advancement of technologies in
`
`4th Generation LTE. These differences are inherent in the perspective of a person of
`
`ordinary skill in the art at the time of invention of the ’676 patent. Dr. Williams’s
`
`failure to consider the differences between the earlier generation of cellular systems
`
`that he compares to the newer technologies described by the ’676 patent results in
`
`an incomplete analysis from Dr. Williams on issues requiring analysis from the
`
`perspective of a person of ordinary skill in the art. In essence, Dr. Williams has not
`
`performed his analysis from that perspective, and accordingly, his opinions
`
`regarding obviousness that require such perspective are unreliable and should be
`
`given little weight.
`
`B. Petitioners Have Failed to Show by A Preponderance of Evidence
`That Kwak Renders Claims 1, 19, and/or 33 Obvious.
`
`Kwak does not disclose, or render obvious, all claim limitations of claims 1,
`
`19 and/or 33. Specifically, Kwak fails to disclose at least the following claim
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`limitations: (1) “wherein said at least one threshold is adjustable via a signal to the
`
`user equipment;” (2) “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 (3) “wherein said at least one threshold adjustable via
`
`the signal comprises adjusting the threshold integer k.”
`
`The Petition’s analysis of claims 1, 19, and 33 in view of Kwak’s disclosure
`
`consists mostly of conclusory statements with lengthy citations to either paragraphs
`
`within Kwak or to the testimony of Dr. Williams. The Petition is largely lacking in
`
`any analysis or comparison of the disclosure of Kwak to the invention of the ’676
`
`patent. Instead, it provides broad assertions regarding Kwak’s disclosure of the claim
`
`elements of claims 1, 19, and 33, divorced from the problem sought to be solved by
`
`the ’676 patent inventors. Additionally, the Petition provides a claim chart, devoid
`
`of analysis, and merely citing to paragraphs of text in Kwak for each claim element.
`
`The Petition relies heavily on the testimony of Dr. Williams which, as shown below,
`
`is insufficient to meet Petitioners’ burden.
`
` Kwak does not disclose the limitation “wherein said at least one
`threshold is adjustable via a signal to the user equipment.”
`
`Kwak does not disclose the limitation of claims 1, 19, and 33 requiring
`
`“wherein said at least one threshold is adjustable via a signal to the user equipment”
`
`and Dr. Williams has failed to show its disclosure, or that the limitation is obvious.
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`The Petition generally identifies the “TPS Period” of Kwak as a threshold that
`
`triggers the sending of TPS information. However, Petitioners and Dr. Williams rely
`
`only on the following statement from Kwak as evidence that the TPS Period is
`
`adjustable via a signal to the user equipment: “The TPS period 910 is a
`
`predetermined fixed value or notified to the UE and the Node B from the RNC by
`
`upper layer signaling using Radio Resource Control (RRC) and Node B Application
`
`Part (NBAP) protocols.” See Williams Decl. at ¶100 (citing Kwak at ¶¶¶ [0078],
`
`[0097], [0109] (each disclosing nearly identical language to the quoted language
`
`from ¶ [0078])). Dr. Williams provides no analysis as to why this statement
`
`establishes the adjustability of the TPS period. See Williams Decl. at ¶ 100. Instead,
`
`he merely asserts the conclusion that such disclosure from Kwak established that the
`
`TPS period is adjustable. Williams Decl. at ¶ 100 (“Kwak teaches that the TPS
`
`period trigger is adjustable through notification to the UE and the Node B from the
`
`RNC by upper layer signaling using RRC and NBAP protocols.”). This statement
`
`from Kwak, or the unsupported conclusion from Dr. Williams, is not evidence that
`
`the TPS Period is “adjustable.” See Kesan Decl. at ¶¶ 54-57. Accordingly,
`
`Petitioner’s reliance on Dr. Williams’ conclusory testimony does not establish that
`
`this limitation is rendered obvious by a preponderance of the evidence.
`
`Kwak first discloses that the “TPS Period 910 is a predetermined fixed value.”
`
`Kwak at ¶ [0078]. A person of skill in the art would understand that a “predetermined
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`fixed value” cannot be changed or adjusted. Kesan Decl. at ¶ 55. Dr. Williams
`
`agrees. See Williams Depo. Tr., Ex. 2004 at 61:13-63:7. Kwak also discloses that
`
`the TPS Period 910 can be “notified to the UE and the Node B by the RNC.” Kwak
`
`at ¶ [0078] (emphasis added). But the term “notified” indicates merely that the Node
`
`B provides the value of the TPS period to the UE, as opposed to the value being
`
`“predetermined.” Kesan Decl. at ¶ 55. “Notified,” as used by Kwak, indicates that
`
`the value of TPS Period is provided to the UE only once. Id. It does not, in any way,
`
`indicate that the parameter can be adjusted or changed once the UE is notified of its
`
`value. Id. Dr. Williams agrees that the term “adjustable,” as used in claims 1, 19, and
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`33 means that the “threshold” of claims 1, 19, and 33 “can be modified.” Williams
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`Depo. Tr. at 51:8-17. But there is no disclosure in Kwak that contemplates adjusting
`
`the TPS Period via a separate signal once the UE has been notified of its initial value.
`
`Kesan Decl. at ¶ 55.
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`Notably, Petitioners and Dr. Williams fail to explain how the disclosure of
`
`Kwak renders the “adjustable” limitation obvious, despite it clearly is not being
`
`disclosed expressly by Kwak. See Kesan Decl. at ¶ 56. Dr. Williams provides no
`
`explanation of how the RRC or NBAP protocols that are referred to by Kwak might
`
`support his opinion. Nor does Petitioner identify the adjustment “signal” that is
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`required by the claims. Petitioner simply provides no evidence, opinion, or argument
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`that addresses the requirement for the threshold (identified by Dr. Williams as the
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`TPS period) to be “adjustable.” See Kesan Decl. at ¶ 56.
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`Accordingly, Kwak does not disclose the limitation “wherein said at least one
`
`threshold is adjustable via a signal to the user equipment,” as recited in each of
`
`claims 1, 19, and 33. And Petitioners and Dr. Williams have not shown this
`
`limitation to be obvious by a preponderance of the evidence.
`
` Kwak does not disclose the limitation “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.”
`
`Kwak does not disclose “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.”
`
`As discussed above, Petitioner identifies the “TPS period” of Kwak as a
`
`threshold that triggers the sending of TPS information. But, Kwak never identifies
`
`the TPS Period as a “threshold of k transmission time intervals following a previous
`
`power control headroom report, wherein k is an integer.” See Kesan Decl. at ¶¶ 58-
`
`66. Indeed, Kwak does not describe anywhere the unit of measurement for the TPS
`
`period. The Petition relies on Dr. Williams unsupported conclusion that, based on
`
`Figure 9, 11, and 12 of Kwak, TPS Period 910, TPS Period 1111, and TPS Period
`
`1210 “are each measured in transmission time intervals from a previous TPS.” Pet.
`
`at 30 (citing Williams Decl. at ¶ 102). But, this is merely an unsupported assumption
`
`19
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`by Dr. Williams. See Kesan Decl. at ¶ 59. Kwak never states how the TPS Period is
`
`defined or identifies a unit of measure. The evidence provided by Kwak is simply
`
`ambiguous as to the relationship of TPS Period 910, 1111, or 1210 to any interval of
`
`time. Id. Because Dr. Williams relies on no further evidence and, instead, bases his
`
`opinion on an unsupported assumption, he has failed to show by a preponderance of
`
`evidence that this limitation is disclosed or rendered obvious by Kwak.
`
`Petitioner relies on Figures 9, 11, and 12 of Kwak, each in the same manner—
`
`namely, for disclosing that the TPS period is measured as a number of transmission
`
`time intervals. But these Figures of Kwak do not support such a conclusion. Looking
`
`to Figure 9 of Kwak, for example, all that can accurately be concluded regarding
`
`TPS Period 910 is that the start of TPS Period 910 corresponds to the start of time
`
`interval 901, the end of TPS Period 910 corresponds to the end of the “Data +
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`BO+TPS” time interval following time interval 911, and that during the duration of
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`TPS Period 910 four time intervals elapse. See Kesan Decl. at ¶ 60. All of the
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`additional conclusions drawn by Dr. Williams, and relied on by Petitioner, regarding
`
`TPS Period 910 are mere speculation or unsupported assumptions. Id.
`
`Dr. Williams’ conclusion also incorrectly assumes that each of the time
`
`intervals depicted in Figure 9 of Kwak (906, 907, 908, 909, 911) are equal in
`
`duration. See Kesan Decl. at ¶ 61. However, Kwak never discusses the duration of
`
`any time interval, never gives reason to assume that all intervals are equal, and
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`20
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`IPR2016-01501
`Patent 8,457,676
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`simply provides no discussion to support Dr. Williams’ assumption that all intervals
`
`are equal. Id. Even in regards to Figures 9, 11, and 12, Kwak never defines or
`
`describes the horizontal axis that, presumably, is the basis for Dr. Williams’s
`
`assumption. Id.
`
`In fact, it is clear from Figures 9, 11, and 12 (and the associated descriptions)
`
`that the time intervals correspond to the transmission of varying amounts of data.
`
`See Kesan Decl. at ¶ 62. For example, Kwak discloses that “in the presence of E-
`
`DCH data, the UE 904 transmits a TPS in the MAC-e header of a MAC-e PDU with
`
`the E-DCH data. In the absence of E-DCH data, the UE 904 transmits a MAC-e
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`PDU containing the TPS only.” Kwak at ¶ [0078] (emphasis added). Further, when
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`referring to the time intervals that Dr. Williams assumes to all be equal, Kwak uses
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`varying labels: “time intervals 907, 908 and 909;” “BO transmission time interval
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`911;” and “BO transmission time period 906.” See Kwak at ¶¶ [0078] – [0080].
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`Thus, a person of ordinary skill in the art would at least understand that the time
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`intervals shown in Figure 9 of Kwak are not necessarily equal, as required by Dr.
`
`Williams’s conclusion. See Kesan Decl. at ¶ 62. Dr. Williams’s conclusions that rely
`
`on his incorrect assumption that all time intervals of Kwak are equal are, therefore,
`
`deficient. Such fundamental flaws render Dr. Williams’ opinions that Kwak
`
`discloses this limitation unreliable. Without further supporting evidence, other than
`
`the opinions of Dr. Williams, Petitioners fail to show by a preponderance of the
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`21
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`IPR2016-01501
`Patent 8,457,676
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`evidence that this limitation is disclosed or rendered obvious.
`
`Because of Kwak’s lack of explicit disclosure, Petitioner again relies on Dr.
`
`Williams to show that the TPS period is disclosed as an integer number of
`
`transmission time intervals. But Dr. Williams cites to no evidence to establish that
`
`the TPS period is disclosed as an integer number of transmission time intervals. See
`
`Williams Decl. at ¶ 102. Instead, he merely concludes—without citation to Kwak,
`
`analysis, or explanation—that “Kwak teaches that the TPS period is set at a
`
`particular number of TTIs from a previous TPS report which in the Kwak examples
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`is an integer.” Id.; see also Kesan Decl. at ¶ 63. This is merely an unsupported
`
`conclusion that should be given no weight. He follows this statement with yet
`
`another unsupported conclusion: “Thus, one of ordinary skill in the art reading
`
`Kwak’s disclosure of a TPS period would have understood that disclosure in the
`
`context of a UMTS system to teach that the period is a value for k transmission time
`
`intervals measured from a previous TPS report, where k is an integer.” Williams
`
`Decl. at ¶ 102; see also Kesan Decl. at ¶ 63. He does not, however, state why a
`
`person of ordinary skill in the art would understand such facts, nor does he identify
`
`any disclosure in Kwak that would have led a person of ordinary skill to this
`
`conclusion. See Kesan Decl. at ¶ 63. This is merely a conclusory statement that
`
`restates the claim limitation as a foregone conclusion that would be drawn by a
`
`person of ordinary skill in the art. This is, by definition, improper hindsight analysis.
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`IPR2016-01501
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`Merely because Figure 9 shows four time intervals within TPS Period 910,
`
`does not meant that the TPS Period is defined as a multiple of these time intervals.
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`Kwak does not support this assumption. See Kesan Decl. at ¶ 64. For example, as
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`discussed above, Kwak does not support Dr. Williams’ unstated assumption that all
`
`time intervals in Figures 9, 11, and 12 are of equal duration. See
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