IN THE
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`HTC CORPORATION and HTC AMERICA, INC.,
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`Petitioners,
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`- vs. -
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`CELLULAR COMMUNICATIONS EQUIPMENT LLC,
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`Patent Owner.
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`Patent No. 8,457,676
`Issue Date: June 4, 2013
`Title: Power Headroom Reporting Method
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`Inter Partes Review No. ____
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`DECLARATION OF TIM A. WILLIAMS, PH.D. IN SUPPORT OF
`PETITION FOR INTER PARTES REVIEW OF
`U.S. PATENT 8,457,676
`UNDER 35 U.S.C. §§ 311-319 AND 37 C.F.R §§ 42.100
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`
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`Petitioner's Exhibit 1003
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`Table of Contents
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`I. INTRODUCTION ................................................................................................ 1
`B. Background and Qualifications ....................................................................... 1
`C. List of Cases Serving as Testifying Expert in Last Four Years ...................... 2
`D. Compensation .................................................................................................. 3
`E. Documents and Other Materials Relied Upon................................................. 3
`II. LEGAL PRINCIPLES .......................................................................................... 4
`A. Claim Interpretation ......................................................................................... 4
`B. Prior Art ........................................................................................................... 5
`C. Anticipation ..................................................................................................... 6
`D. Obviousness ..................................................................................................... 6
`1. Motivation to Combine ............................................................................... 9
`2. Secondary Considerations ........................................................................11
`E. Date of Invention ...........................................................................................12
`III. THE ’676 PATENT ............................................................................................13
`A. The ’676 Patent Technology Background and Disclosure ............................13
`B. Challenged Claims of the ’676 Patent ...........................................................16
`C. Person of Ordinary Skill in the Art for the ’676 Patent .................................16
`D. Claim Construction ........................................................................................17
`1. “power control headroom report” .............................................................18
`2. “transmission time interval” .....................................................................18
`3. “path loss” .................................................................................................19
`IV. PRIOR ART ...................................................................................................19
`A. U.S. Pat. App. Pub. No. 2004/0223455 (Fong) (Ex. 1004) ...........................19
`B. U.S. Pat. App. Pub. No. 2006/0140154 (Kwak) (Ex. 1005) .........................23
`C. U.S. Patent No. 6,928,102 (Zeira) (Ex. 1007) ...............................................26
`D. World Intellectual Property Organization International Publication No. WO
`1996/31009 (Otten) (Ex. 1006) .....................................................................28
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`V. INVALIDITY OF CLAIMS 1, 3, 19, 21, 33, AND 34 OF THE ’676 PATENT
`IN VIEW OF THE PRIOR ART ........................................................................32
`A. Ground 1: Claims 1, 19, and 33, Are Rendered Obvious By U.S. Pat. App.
`Pub. No. 2004/0223455 (Fong) (Ex. 1004) ...................................................32
`1. Claims 1 and 19 ........................................................................................33
`2. Claim 33 ...................................................................................................38
`3. Claim Charts for Claims 1, 19, and 33 .....................................................43
`B. Ground 2: Claims 1, 19, and 33, Are Rendered Obvious By U.S. Pat. App.
`Pub. No. 2006/0140154 (Kwak) (Ex. 1005)..................................................43
`1. Claims 1 and 19 ........................................................................................44
`2. Claim 33 ...................................................................................................52
`3. Claim Charts for Claims 1, 19, and 33 .....................................................59
`C. Ground 3: Claims 3, 21, and 34 Are Rendered Obvious Over Fong In View
`of Zeira and Otten ..........................................................................................60
`D. Ground 4: Claims 3, 21, and 34 Are Rendered Obvious Over Kwak In View
`of Zeira and Otten ..........................................................................................66
`VI. REVISION OR SUPPLEMENTATION .......................................................73
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`Petitioner's Exhibit 1003
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`I.
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`INTRODUCTION
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` My name is Tim A. Williams, Ph.D. I have been asked by HTC 1.
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`Corporation and HTC America, Inc. to provide my expert opinions in support of
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`their petition for inter partes review of Patent No. 8,457,676 (“the ’676 Patent”),
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`challenging the validity of claims 1-14 of the ’676 Patent.
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`2.
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`3.
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`I currently hold the opinions set forth in this declaration.
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`In summary, it is my opinion that the references cited below render
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`obvious the claims of the ’676 patent. My detailed opinions on the claims are set
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`forth below.
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`B.
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`4.
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`Background and Qualifications
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`I earned a Bachelor's Degree in Electrical Engineering from Michigan
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`Technological University in 1976. I obtained my Master’s Degree and Ph.D. in
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`Electrical Engineering from the University of Texas at Austin in 1982 and 1985,
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`respectively. I obtained a Masters of Business Administration from the University
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`of Texas at Austin in 1991.
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` My professional industry experience includes approximately 15 years
`5.
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`at Motorola Inc., where I was a Senior Engineer and Senior Member of the
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`Technical Staff working on the development of communications systems
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`technologies including the cellular architectures that included Global Systems
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`Petitioner's Exhibit 1003
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`Mobile (GSM) voice codecs and channel modem, as well as Code Division
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`Multiplexing (CDMA) voice codecs and channel modems to name a few.
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`6.
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`I was the co-founder, CTO, Vice President of Engineering and
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`Business Strategy CEO of Wireless Access, which developed PCS equipment for
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`2-way paging services. Wireless Access was sold to Glenarye Electronics. I
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`served as the CTO and Advisory Board Member of Picazo Communications. I was
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`also an Interim CEO and Advisory Board Member of Atheros Communications
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`which was acquired by Qualcomm Inc., in 2011. I was the founder and CEO of
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`JetQue Inc., which developed messaging solutions for mobile environments. I was
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`the founder and CEO of SiBEAM Inc., which developed high speed networking
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`ICs. SiBEAM was sold to Silicon Image in 2011. I have held numerous other
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`technical and leadership positions in industry that are detailed in my CV that is
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`attached hereto.
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`7.
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`I am a registered Patent Agent (USPTO Reg. No. 50,790). I am an
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`inventor and co-inventor on 26 issued patents which are listed in my CV.
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`8.
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`I have served as an expert witness in over 75 patent litigation cases
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`including cases in the Federal District Courts and the International Trade
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`Commission.
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`9.
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`A copy of my complete CV is attached hereto as Exhibit A.
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`C. List of Cases Serving as Testifying Expert in Last Four Years
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`Petitioner's Exhibit 1003
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`10.
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`In the past four years, I have provided technical consulting and expert
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`testimony on behalf of clients as shown in my attached CV and list of cases in
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`Exhibit A.
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`D. Compensation
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`11.
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`I am being compensated for my time at the rate of $675 per hour.
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`This compensation is not contingent upon my performance, the outcome of this
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`matter, or any issues involved in or related to this matter.
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`E. Documents and Other Materials Relied Upon
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`12.
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`In forming the opinions set forth in this declaration, I have reviewed
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`the ’676 patent, its prosecution history, and the prior art references described
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`below. Additionally, I have considered my own experience and expertise of the
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`knowledge of the person of ordinary skill in the relevant art in the timeframe of the
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`claimed priority date of the ’676 patent. In doing so, I have reviewed information
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`generally available to, and relied upon, by a person of ordinary skill at the time of
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`the invention.
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`13.
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`I anticipate using some of the above-referenced documents and
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`information, or other information and material that may be made available during
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`the course of this proceeding (such as by deposition testimony), as well as
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`representative charts, graphs, schematics, and diagrams, animations, and models
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`that will be based on those documents, information, and material, to support and to
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`explain my testimony before the PTAB regarding the invalidity of the ’676 Patent.
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`II. LEGAL PRINCIPLES
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`A. Claim Interpretation
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` While I am a registered Patent Agent, I am not a Patent Attorney and I
`14.
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`do not opine in this paper on any particular methodology for interpreting patent
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`claims. My opinions are limited to what I believe a person of ordinary skill in the
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`art would have understood the meaning of certain claim terms to be based on the
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`intrinsic evidence of the ’676 patent. I use the principles below, however, as a
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`guide in formulating my opinions.
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`15.
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`I am informed and understand that it is a basic principle of patent law
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`that assessing the validity of a patent claim involves a two-step analysis. In the
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`first step, the claim language must be properly construed to determine its scope and
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`meaning. In the second step, the claim as properly construed must be compared to
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`the alleged prior art to determine whether the claim is valid.
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`16.
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`I am informed and understand that the words of a patent claim have
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`their plain and ordinary meaning for a person skilled in the art at the time of the
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`invention. This meaning must be ascertained from a reading of the patent
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`documents, paying special attention to the language of the claims, the written
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`specifications, and the prosecution history. I understand that an inventor may
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`attribute special meanings to some terms by defining those terms or by otherwise
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`incorporating such meanings in these documents.
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` My methodology for determining the meaning of claim phrases was
`17.
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`first to carefully study the ’676 patent. In particular, I studied the claims
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`themselves, followed by a study of the background, detailed specification, figures,
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`and other patent content. Next, I reviewed the file history looking for any
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`clarifications or limitations that might be attached to claim terms. In some
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`circumstances, I looked at other documents, such as references applied by the
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`Patent Office.
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`B.
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`18.
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`Prior Art
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`It is my understanding that only information which satisfies one of the
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`categories of prior art set forth in 35 U.S.C. § 102 may be used in any invalidity
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`analysis under §§ 102 or 103. Therefore, if information is not properly classified
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`as prior art under one of the subsections of § 102, then it may not be considered in
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`an anticipation or obviousness determination. It is also my understanding that, for
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`inter partes review, applicable prior art is limited to patents and printed
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`publications.
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`19.
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`I am informed and understand that the earliest claimed priority date
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`for the ’676 patent is June 20, 2007. I also understand that prior art references
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`published on or before June 20, 2007 are always considered prior art to the ’676
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`patent, and that prior art references published after June 20, 2007 but before June
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`23, 2008 are considered prior art to the ’676 patent unless the patent owner can
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`prove that the purported invention was conceived before the publication of the
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`reference. I understand that a patent granted on an application for patent, filed in
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`the United States before June 20, 2007, is considered prior art to the ’676 patent
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`unless the patent owner can prove that the purported invention was conceived
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`before the filing date of the prior art reference or that the prior art reference and the
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`’676 patent shared common inventors, were co-owned, or under an obligation of
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`assignment to a common owner at the time the application was filed.
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`C. Anticipation
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`20.
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`I am informed and understand that to anticipate a patent claim under
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`35 U.S.C. § 102, a single asserted prior art reference must disclose each and every
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`element of the claimed invention, either explicitly or inherently, to a person of
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`ordinary skill in the art. I understand that a disclosure of an asserted prior art
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`reference can be “inherent” if the missing element must necessarily be present in
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`what is explicitly described in the asserted prior art reference and such would be
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`recognized by a person of ordinary skill in the art. However, I understand that
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`inherency cannot be established by mere probabilities or possibilities.
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`D. Obviousness
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`21.
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`I am also informed and understand that a patent claim is invalid under
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`35 U.S.C. § 103 if the differences between the invention and the prior art are such
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`that the subject matter as a whole would have been obvious at the time of the
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`invention to a person having ordinary skill in the art to which the subject matter
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`pertains. Obviousness, as I understand, is based on the scope and content of the
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`prior art, the differences between the prior art and the claim, the level of ordinary
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`skill in the art, and secondary indications of non-obviousness to the extent they
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`exist.
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`22.
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`I understand that whether there are any relevant differences between
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`the prior art and the claimed invention is to be analyzed from the view of a person
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`of ordinary skill in the art at the time of the invention. A person of ordinary skill in
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`the art is a hypothetical person who is presumed to be aware of all of the relevant
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`art at the time of the invention. The person of ordinary skill is not an automaton,
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`and may be able to fit together the teachings of multiple patents employing
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`ordinary creativity and the common sense that familiar items may have obvious
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`uses in another context or beyond their primary purposes.
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`23.
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`In analyzing the relevance of the differences between the claimed
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`invention and the prior art, I understand that I must consider the impact, if any, of
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`such differences on the obviousness or non-obviousness of the invention as a
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`whole, not merely some portion of it. The person of ordinary skill faced with a
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`problem is able to apply his or her experience and ability to solve the problem and
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`also look to any available prior art to help solve the problem.
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` An invention is obvious if a designer of ordinary skill in the art, facing
`24.
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`the wide range of needs created by developments in the field, would have seen an
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`obvious benefit to the solutions tried by the applicant. When there is a design need
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`or market pressure to solve a problem and there are a finite number of identified,
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`predictable solutions, it would be obvious to a person of ordinary skill to try the
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`known options. If a technique has been used to improve one device, and a person
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`of ordinary skill in the art would recognize that it would improve similar devices in
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`the same way, using the technique would have been obvious.
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`25.
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`I understand that I do not need to look for precise teaching in the prior
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`art directed to the subject matter of the claimed invention. I understand that I may
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`take into account the inferences and creative steps that a person of ordinary skill in
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`the art would have employed in reviewing the prior art at the time of the invention.
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`For example, if the claimed invention combined elements known in the prior art
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`and the combination yielded results that were predictable to a person of ordinary
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`skill in the art at the time of the invention, then this evidence would make it more
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`likely that the claim was obvious. On the other hand, if the combination of known
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`elements yielded unexpected or unpredictable results, or if the prior art teaches
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`away from combining the known elements, then this evidence would make it more
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`likely that the claim that successfully combined those elements was not obvious.
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`26.
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`In determining whether a claimed invention is invalid for obviousness,
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`one should consider the scope and content of the prior art, the level of ordinary
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`skill in the relevant art, the differences between the claimed invention and the prior
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`art, and whether the claimed invention would have been obvious to a person
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`having ordinary skill in the art in light of those differences. I understand that
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`hindsight must not be used when comparing the prior art to the invention for
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`obviousness.
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`1. Motivation to Combine
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`27.
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`I understand that a claimed invention may be obvious if some
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`teaching, suggestion or motivation exists that would have led a person of ordinary
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`skill in the art to combine the invalidating references. I also understand that this
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`suggestion or motivation may come from sources such as explicit statements in the
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`prior art, or from the knowledge of a person having ordinary skill in the art.
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`Alternatively, any need or problem known in the field at the time and addressed by
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`the patent may provide a reason for combining elements of the prior art. I also
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`understand that when there is a design need or market pressure, and there are a
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`finite number of predictable solutions, a person of ordinary skill may be motivated
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`to apply both his skill and common sense in trying to combine the known options
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`in order to solve the problem.
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` Obviousness may also be shown by demonstrating that it would have
`28.
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`been obvious to modify what is taught in a single piece of prior art to create the
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`patented invention. Obviousness may be shown by showing that it would have
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`been obvious to combine the teachings of more than one item of prior art. In
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`determining whether a piece of prior art could have been combined with other prior
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`art or with other information within the knowledge of a person having ordinary
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`skill in the art, the following are examples of approaches and rationales that may
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`be considered:
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`• Combining prior art elements according to known methods to yield
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`predictable results;
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`• Simple substitution of one known element for another to obtain
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`predictable results;
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`• Use of a known technique to improve similar devices (methods, or
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`products) in the same way;
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`• Applying a known technique to a known device (method, or product)
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`ready for improvement to yield predictable results;
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`• Applying a technique or approach that would have been “obvious to
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`try” (choosing from a finite number of identified, predictable
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`solutions, with a reasonable expectation of success);
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`• Known work in one field of endeavor may prompt variations of it for
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`use in either the same field or a different one based on design
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`incentives or other market forces if the variations would have been
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`predictable to a person having ordinary skill in the art; or
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`• Some teaching, suggestion, or motivation in the prior art that would
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`have led one of ordinary skill to modify the prior art reference or to
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`combine prior art reference teachings to arrive at the claimed
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`invention.
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`2.
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`Secondary Considerations
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`29.
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`I understand that certain objective factors, sometimes known as
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`“secondary considerations,” may also be taken into account in determining whether
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`a claimed invention would have been obvious. In most instances, these secondary
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`considerations of non-obviousness are raised by the patentee. In that context, the
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`patentee argues an invention would not have been obvious in view of these
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`considerations, which include: (a) commercial success of a product due to the
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`merits of the claimed invention; (b) a long-felt, but unsatisfied need for the
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`invention; (c) failure of others to find the solution provided by the claimed
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`invention; (d) deliberate copying of the invention by others; (e) unexpected results
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`achieved by the invention; (f) praise of the invention by others skilled in the art; (g)
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`lack of independent simultaneous invention within a comparatively short space of
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`time; (h) teaching away from the invention in the prior art. I also understand that
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`these objective indications are only relevant to obviousness if there is a connection,
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`or nexus, between them and the invention covered by the patent claims.
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`30.
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`I also understand that secondary considerations of non-obviousness
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`are inadequate to overcome a strong showing on the primary considerations of
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`obviousness. For example, where the inventions represented no more than the
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`predictable use of prior art elements according to their established functions, the
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`secondary considerations are inadequate to establish non-obviousness.
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`31.
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`I am not aware of any objective indicia of non-obviousness for the
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`’676 patent.
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`E. Date of Invention
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`32.
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`I understand that absent clear and convincing evidence of invention
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`date prior to the filing date of a patent, the invention date of the patent is presumed
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`to be its effective filing date. A prior invention requires a complete conception of
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`the invention and a reduction to practice of that invention. The patentee has the
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`burden of establishing by clear and convincing evidence a date of conception
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`earlier than the effective filing date of the patent.
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` Conception is the formation in the mind of the inventor of a definite
`33.
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`and permanent idea of the complete and operative invention. Conception must be
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`proved by corroborating evidence which shows that the inventor disclosed to
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`others his complete thought expressed in such clear terms as to enable those skilled
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`in the art to make the claimed invention. The inventor must also show possession
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`of every feature recited in the claims, and that every limitation was known to the
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`inventor at the time of the alleged conception. Furthermore, the patentee must
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`show that he or she has exercised reasonable diligence in later reducing the
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`invention to practice, either actual or constructive. The filing of a patent
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`application can serve as a constructive reduction to practice.
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`III. THE ’676 PATENT
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`A. The ’676 Patent Technology Background and Disclosure
`
` The ’676 patent generally relates to wireless communication
`34.
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`technologies and the reporting of power headroom information from a mobile unit
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`to a base station. There are two general types of power control used in mobile
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`communications: open-loop (OLPC) and closed-loop (CLPC). ’676 patent at 3:1-
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`14. The ’676 patent discusses a trend at that time to use uplink power control
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`techniques that included an OLPC mechanism at the mobile unit and an ability for
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`the base station to send CLPC correction commands to the mobile unit. Id. at 3:15-
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`22. The ’676 patent purports to claim both methods and apparatuses for the
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`reporting of power headroom information from user equipment based on triggering
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`criterion. See id. at claims 1, 19. The ’676 patent also purports to claim network
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`equipment, such as a base station, which receives a power headroom report from
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`user equipment that was generated based on triggering criterion and provides an
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`adjustment signal to the user equipment. See id. at claim 33.
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` Claim 1 is representative of the user equipment claims and is
`35.
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`reproduced below:
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`1. A method comprising:
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`determining that a set of at east [sic] one triggering criterion is met; and
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`providing a power control headroom report on an uplink from user
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`equipment, in response to determining that the set is met, wherein said
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`at least one triggering criterion include at least one threshold having
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`been reached, wherein said at least one threshold is adjustable via a
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`signal to the user equipment, wherein the set of at least one triggering
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`criterion comprises a criterion being met based on reaching a
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`threshold of the at least one threshold of k transmission time intervals
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`following a previous power control headroom report, wherein k is an
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`integer and wherein said at least one threshold adjustable via the
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`signal comprises adjusting the threshold integer k.
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`Petitioner's Exhibit 1003
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`Id. claim 1 at 6:26-40. Claim 33 is representative of the network element claims
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`and is reproduced below:
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`33. A network element comprising:
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`at least one processor; and
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`at least one memory including software, where the at least one memory and
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`the software are configured, with the at least one processor, to cause
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`the network element to at least:
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`receive a power control headroom report on an uplink from user equipment,
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`in response to the user equipment determining that a set of at least one
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`triggering criterion is met because at least one threshold has been
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`reached, wherein the set of at least one triggering criterion comprises
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`a criterion being met based on reaching a threshold of the at least one
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`threshold of k transmission time intervals following a previous power
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`control headroom report, wherein k is an integer and wherein said at
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`least one threshold adjustable via the signal comprises adjusting the
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`threshold integer k; and
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`provide a threshold adjustment signal to the user equipment in order to
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`adjust the at least one threshold.
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`Id. claim 33 at 9:12-10:9.
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`15
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`Petitioner's Exhibit 1003
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`36.
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`In the specification of the ’676 patent, the applicant described the
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`invention as generally related to the “field of wireless telecommunications.”
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`Exhibit 1001 at 1:11-13. The applicant further described improvements to the
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`UMTS standard being developed by the 3GPP art related to the invention. See
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`Exhibit 1001, ‘676 patent at 1:27-36. Thus, the applicant has admitted that
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`descriptions of the UMTS system and improvements to the UMTS system being
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`worked on by the 3GPP are analogous art to the invention of the ’676 patent. One
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`skilled in the art would also appreciate that based on the technology claimed in the
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`’676 patent.
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`B. Challenged Claims of the ’676 Patent
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`37.
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`I understand that the challenged claims of the ’676 patent are claims
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`1, 3, 19, 21, 33, and 34 Challenged claims 1, 19, and 33 are independent claims.
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`Challenged claims 3, 21, and 34 are dependent claims.
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`C.
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`38.
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`Person of Ordinary Skill in the Art for the ’676 Patent
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`I expect to offer testimony regarding the level of ordinary skill in the
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`art relevant to the ’676 patent.
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`39.
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`I understand that factors such as the education level of those working
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`in the field, the sophistication of the technology, the types of problems encountered
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`in the art, the prior art solutions to those problems, and the speed at which
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`innovations are made may help establish the level of skill in the art.
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`16
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`Petitioner's Exhibit 1003
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`
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` The ’676 patent relates to methods and apparatus for wireless
`40.
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`communications. The claimed priority date for the ’676 patent is June 27, 2007.
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`41.
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`In the 2007 time frame, I believe that a person of ordinary skill in the
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`art of the subject matter of the ’676 patent would have had a Bachelor’s degree in
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`electrical engineering or a similar degree, with 2-4 years of experience in the
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`design and implementation of such wireless communication systems, or the
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`equivalent.
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` Based on my education and experience in the field of wireless
`42.
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`communications relevant to the ’676 patent, I would have been at least a person of
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`ordinary skill in the art at the earliest priority date of the ’676 patent. Unless
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`otherwise stated below, when I provide my understanding and analysis below, it is
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`consistent with the level of ordinary skill in the technologies at or around the
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`priority date of the ’676 patent.
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`D. Claim Construction
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`43.
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`I understand that for the purpose of inter partes review, claim terms
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`are presumed to take on their broadest reasonable interpretation (BRI), to a person
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`of ordinary skill in the art, which is consistent with the specification. It is my
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`opinion that this presumption is appropriate for the interpretation of the challenged
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`claims of the ’676 Patent.
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`17
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`Petitioner's Exhibit 1003
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`
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` My opinions regarding the construction of certain claim terms are
`44.
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`limited only to this inter partes review, under the standard articulated above, and
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`should not be interpreted as my opinion regarding the construction of those certain
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`claim terms under the standard of claim construction used in a district court (or any
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`other) proceeding.
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`1.
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`“power control headroom report”
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` A “power control headroom report” appears in claims 1, 19, and 33,
`45.
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`as well as other challenged claims that depend from those claims. The broadest
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`reasonable interpretation of that term refers to a report that provides a measure of
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`how close the terminal’s transmission power is relative to its maximum
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`transmission power. Ex. 1001 at 3:31-37; see also id. 3:46-65. Indeed, power
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`control headroom is generally understood by those of ordinary skill in the art to
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`refer to any report regarding the transmission power conditions that may be
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`relevant to determining power control instructions.
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`2.
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`“transmission time interval”
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` A “transmission time interval” appears in claims 1, 19, and 33, as well
`46.
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`as other challenged claims that depend from those claims. The broadest reasonable
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`interpretation of that term refers to any specified period of time. Ex. 1001 at 2:27-
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`29, 4:39-43. That interpretation is demonstrated by the claim language itself, which
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`indicates that a transmission time interval is a period of time (an “interval”) that
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`18
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`Petitioner's Exhibit 1003
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`
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`can be measured. That definition is further demonstrated by the specification,
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`which refers to the transmission time interval as “a period of time.” Ex. 1001 at
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`2:27-29; see also id. at 4:39-43. Those skilled in the art would have understood
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`that transmission time intervals typically refers to a specified period of time, such
`
`as 20 microseconds, that is set for a communication system.
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`3.
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`“path loss”
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` The term “path loss” appears in challenged claims 3, 21, and 34. The
`47.
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`broadest reasonable interpretation of that term refers to any wireless signal loss.
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`Ex. 1001 at 4:2-12. There is not much description of path loss in the ’676 patent,
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`but those skilled in the art would have understood that term to mean degradation or
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`loss in the quality of a wireless signal, such as through distance, shadowing, or
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`other factors known well by those skilled in the art.
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`
`48.
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`I reserve the right to amend my opinions stated herein should the
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`Board order a construction of claim terms other than my opinion reflected herein
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`regarding their broadest reasonable interpretation to a person of ordinary skill in
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`the art at the time of the ’676 patent application.
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`IV. PRIOR ART
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`A. U.S. Pat. App. Pub. No. 2004/0223455 (Fong) (Ex. 1004)
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` The Fong publication, titled “Communicating in a Reverse Wireless
`49.
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`Link Information Relating to Buffer Status and Data Rate of a Mobile Station,”
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`was filed on March 12, 2004 and published on November 11, 2004. As such, it is
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`19
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`Petitioner's Exhibit 1003
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`my understanding that Fong qualifies as prior art to the ’676 patent under 35
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`U.S.C. § l02(b). Fong was not considered by the examiner during prosecution of
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`the ’676 patent.
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`50.
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`Fong discloses a wireless communication network, including a mobile
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`station and a base station that communicate information over a wireless link. Ex.
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`1004 at Abstract. Fong teaches communicating information relating to the
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`maximum supportable data rate of the mobi