UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HTC CORPORATION, HTC AMERICA, INC., ZTE CORPORATION
`AND ZTE (USA), INC.,
`Petitioners
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT, LLC
`Patent Owner
`
`Case IPR2016-014931
`Case IPR2016-015012
`Patent 8,457,676 B2
`Technology Center 3900
`____________
`
`Record of Oral Hearing
`Held: November 8, 2017
`____________
`
`
`
`Before BRYAN F. MOORE, GREGG I. ANDERSON, and JOHN A.
`HUDALLA, Administrative Patent Judges.
`
`
`
`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 IPR2016-01493.
`2 ZTE Corporation and ZTE (USA), Inc. filed a petition in (now terminated)
`IPR2017-01079, and have been joined to IPR2016-01501.
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`HTC CORPORATION, HTC AMERICA, INC., ZTE CORPORATION
`AND ZTE (USA), INC.,
`Petitioners
`
`v.
`
`CELLULAR COMMUNICATIONS EQUIPMENT, LLC
`Patent Owner
`
`Case IPR2016-014931
`Case IPR2016-015012
`Patent 8,457,676 B2
`Technology Center 3900
`____________
`
`Record of Oral Hearing
`Held: November 8, 2017
`____________
`
`
`
`Before BRYAN F. MOORE, GREGG I. ANDERSON, and JOHN A.
`HUDALLA, Administrative Patent Judges.
`
`
`
`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 IPR2016-01493.
`2 ZTE Corporation and ZTE (USA), Inc. filed a petition in (now terminated)
`IPR2017-01079, and have been joined to IPR2016-01501.
`
`
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`IPR2016-01493
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BRIAN C. NASH, ESQ.
`Pillsbury Winthrop Shaw Pittman, LLP
`401 Congress Avenue, Suite 1700
`Austin, TX 78701
`512.580.9629
`
`
`
`ON BEHALF OF PATENT OWNER:
`
`TERRY A. SAAD, ESQ.
`JONATHAN H. RASTEGAR, ESQ.
`Bragalone Conroy, P.C.
`2200 Ross Avenue, Suite 4500 W
`Dallas, TX 75201
`214.785.6671
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
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`November 8, 2017, at the U.S. Patent and Trademark Office, 600 Dulany
`Street, Alexandria, Virginia.
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`P R O C E E D I N G S
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`JUDGE MOORE: And, so, these are hearings in case
`IPR2016-01493 and -01501. To get started, why don't we
`do a roll call of who's here? And we'll start with the
`Petitioner.
`MR. NASH: Thank you, Your Honor. Brian Nash of
`Pillsbury, here on behalf of the HTC and ZTE petitioners.
`MR. SAAD: Good afternoon, Your Honors, Terry
`Saad from Bragalone Conroy PC on behalf of the Patent
`Owner, Cellular Communications Equipment LLC. And
`with me is my colleague, John Rastegar.
`JUDGE MOORE: Okay. The parties, I believe,
`should have received an e-mail, after becoming re-familiar
`with the cases, the fact that it's one patent, and at least the
`claims issues would be very similar, we're going to do one
`hour of total time for both cases. So Petitioner will go first.
`Let me know if you want to reserve time and how much
`time you want to reserve, and then Patent Owner will go
`and the Petitioner will finish with the time they have
`remaining.
`Before we get going, I know there's been a lot of
`issues with Apple leaving the case and, so, before we get
`started with the argument -- and I think we'll start with
`Patent Owner -- are there any other peripheral issues that
`you feel need to be discussed?
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`MR. SAAD: None for Patent Owner, Your Honor.
`JUDGE MOORE: Petitioner?
`MR. NASH: We don't have any issues, Your Honor.
`I guess I didn't receive the e-mail, but just so I understand
`it, from a procedural standpoint, are you anticipating that
`we would present both cases at once?
`JUDGE MOORE: Right.
`MR. NASH: I'm fine to do it that way, I just have it
`structured as two separate presentations. It may be a little
`bit of fumbling.
`JUDGE MOORE: I'm sorry that that didn't -- I
`believe an e-mail should have gone out from our staff.
`MR. SAAD: I didn't receive that e-mail either, Your
`Honor.
`JUDGE MOORE: All right. I'm not sure what
`happened there, but we will be understanding of how it
`goes.
`
`To the extent you want to -- there are two different
`pieces of prior art, to the extent you want to sort of do your
`first presentation and then sort of move to the second and
`cut it down to where you think it would be reasonable, I'm
`not asking you to totally merge them. We're going to be
`aware that this came as a surprise to me.
`MR. NASH: No problem, Your Honor.
`JUDGE MOORE: And how much time of the hour
`would you like to reserve?
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`MR. NASH: I guess 30 minutes. I haven't planned
`this out as being one long set. I'll try and be efficient and
`not re-cover anything that we've talked about, because I
`agree there's a lot of overlapping issues here. Thank you,
`Your Honor.
`May it please the Court, we'll begin with the 1493 --
`(Interruption in the proceedings.)
`
` May it please the Court, I'll start with the 1493 proceeding since
`that comes first in numerical order. And as Your Honor
`mentioned, we're talking about the same patent in both
`proceedings. That's the '676 Patent. And I'm starting here with
`slide one, just as a quick overview of that '676 Patent.
`The key elements at issue in this patent are power
`control headroom reporting and the triggering of those
`reports being based on the reaching of a threshold. That
`threshold needs to be adjustable. And the context of the
`independent claims, that threshold is going to involve k
`transmission time intervals. So we see that illustrated here
`on slide two. I've highlighted claim one to correspond with
`those key elements that we saw on the first slide.
`And we see then on slide three the dependent claim,
`which here is claim three. That introduces a different and
`additional criterion. Here that's an absolute difference
`between current and most recent path loss measurements
`reaching a threshold of difference. That's an additional
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`criteria. So that's claims one and three.
`And in the context of the 1493 proceeding, we have
`three pieces of relevant prior art that are at issue in this
`proceeding. The first is the Fong reference, and that's
`Exhibit 1003 in the 1493 proceeding. And Fong teaches the
`transmission of power headroom reports based on reaching
`a triggering criteria. And among those triggering criteria is
`one that's a threshold amount of time. So that's what Fong
`teaches.
`If we look at slide five, that's the Ericsson
`contribution. That's our second piece of prior art that's at
`issue here. And Ericsson, just like Fong, is teaching
`reporting power headroom information. You see that here
`in that blurb that I pulled out. That's the UPH information.
`That's being transmitted in the context of the scheduling
`information. And the scheduling information is being sent
`periodically. Those periods are in the order of TTIs and,
`specifically, there's an example given here of one TTI. So
`Ericsson, like Fong, is teaching reporting power headroom
`information, but Ericsson's adding this additional element
`about using TTIs as the measure for that threshold amount
`of time.
`JUDGE MOORE: So I note one of the issues that the
`other side is going to be arguing has to do with that, how
`Fong and Ericsson are being combined. I know you're
`going to get to that, but maybe we can just, right out of the
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`gate, explain to me what your position is in terms of what
`Fong does and what thresholds Fong uses and how you are
`combining the Ericsson into the Fong. For instance, they're
`arguing certain elements of Fong might be incompatible
`with Ericsson as you put them together. So if you could
`just explain how that combination works from your
`perspective?
`MR. NASH: Yes, absolutely, Judge. I think there's
`actually a slide that might address that. I think one of the
`arguments -- I'll just answer the question, which it's not that
`there's being -- I think they've argued that there's a
`substitution that's taking place with respect to Fong. What
`Fong teaches is this min-duration parameter. And that is a
`parameter that's measured as a threshold amount of time.
`And after the min-duration expires, then another power
`headroom report would be sent. It doesn't get into the
`specifics about how that time period's being measured. So
`it talks about it being based on time and the expiration of
`that amount of time, but it doesn't discuss where or how to
`measure that time. It talks about the mobile units being --
`measuring time in uniform time periods, and that's why that
`teaching would motivate one skilled in the art to look to
`something like Ericsson. So Ericsson's the one that's
`teaching us about those TTIs, the transmission time
`intervals, which are, themselves, a transmission time
`intervals. The combination is taking the teaching from
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`Fong and the teaching from Ericsson about a uniform time
`period, and that's TTIs, and combined with those two
`teachings together.
`Does that answer that question?
`JUDGE MOORE: Yes.
`MR. NASH: We've got Ericsson teaching the TTIs,
`and those TTIs, again, are a uniform time period.
`Bark's our third reference, and we'll get into that in
`the context of the dependent claims. And what Bark adds to
`the grounds is a discussion about some of the parameters
`that might be measured and the different types of events
`that might trigger reporting. As we see in Bark in this
`paragraph that I've highlighted from column 7, Bark
`discusses a number of measurable parameters. Included in
`those is path loss. And do you see that highlighted right
`there in the middle of that? It says non-limiting example
`parameters include path loss. And then it says example
`pre-determined events and/or conditions are described in
`the context of Figs. 6 through 15. As we see from column
`11 in the context of Fig. 12, it's describing one of those
`events, the triggering events. And that's when you have a
`parameter that has a quickly changing value. So it says here
`the event is defined based on how quickly the measured
`parameter value for a channel to change. So that's referring
`to a change in value. And because those parameters can
`include path loss, this is relevant and teaches the limitation
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`we saw in those dependent claims, claims three and claim
`21.
`
`A brief overview of the institution decision on slide
`7, Your Honor, claim construction, there was a conclusion
`that the processor terms are not means plus function terms,
`no other constructions, and Ericsson's prior art. So we've
`got our two instituting grounds; the first being claims 1 and
`19 in view of Fong and Ericsson, the second being claims 3
`and 21 in view of Fong, Ericsson and Bark.
`I think it's helpful to see what's not disputed because I
`think it plays into a lot of what we talk about in these
`combinations, Your Honor. On slide eight I've highlighted
`that claim construction's not in dispute, the status of Fong,
`Ericsson and Bark is being prior art under one and two B,
`not in dispute.
`And the fact that Fong's got this maximum TPR,
`that's a power control headroom report, and I don't think
`there's any dispute that that is a power control headroom
`report as it relates to the '676 Patent.
`So the disputed issues, one of the important ones the
`Patent Owners raised -- or one of the ones that the Patent
`Owner's trumpeted quite a bit is this contention that the '676
`Patent is somehow limited to LTE.
`The second issue that they've raised relates to Fong's
`thresholds and whether or not they're adjustable.
`The third relates to the combination of Fong and
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`Ericsson. And there's a number of arguments about why
`that's not teaching a threshold of k TTIs.
`And then finally we get into some of the disputes
`related to the Bark reference.
`Now, if Your Honor would prefer, I'd be happy to
`skip to those or I could walk briefly through some of these
`first couple of disputed items.
`JUDGE MOORE: Why don't you proceed the way
`you planned to proceed?
`MR. NASH: With respect to the dispute over
`whether or not the '676 is limited to LTE -- I'm on slide 11
`now -- and on slide 11 we've illustrated here that the '676 is
`expressly teaching 3G systems. And, specifically, it's
`teaching UMTS and UTRAN. It does that in the context of
`Fig. 1 as well as an extensive discussion in its background
`section about 3G systems. And as we see on slide 12, that's
`important to the '676 Patent because it says expressly in the
`context of its summary of invention that although the
`present invention is applicable to an LTE system, its
`principles are not limited to such an environment. And,
`instead, may also be applicable to various other current and
`future wireless telecommunication systems. So the '676
`Patent, on its own terms, is saying our invention's not
`limited to LTE and, in fact, it can include current systems,
`just like the 3G system we've previously described in our
`background.
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`Now, Patent Owner's expert agreed, there's also
`nothing in that claim language that limits this to an LTE
`system. That's important because as we see on slide 13,
`Fong's talking about its system, and it says this can be
`implemented in the context of systems like UMTS, which is
`the same type of UMTS system described in the '676
`background. And Fong also refers to specific UMTS
`protocol, the one that's defined by the 3GPP. That's the
`third generation partnership project.
`And, so, when we look on slide 14 at the Ericsson
`reference, Ericsson's also a 3G reference, it's also related to
`these same 3G systems, and it's also referring to that same
`3GPP protocol.
`So, with respect to the second issue -- I'm on slide 15
`now -- and Patent Owner's talking about this min-duration
`and contends that it's not adjustable. And one of the basis
`the Patent Owner says that demonstrates that Fong's
`min-duration isn't adjustable, according to the Patent
`Owner, is that it's only done once, it's done at call setup.
`But as we see in slide 16 -- and I've illustrated here and
`highlighted this portion of Fong -- it's very clear from Fong
`that you can send these triggering parameters in a message
`at call setup, certainly, but it also expressly teaches that
`these same messages can be sent by the base station to the
`mobile station at any time during the active state of the
`mobile station. And it gives an example. In fact, it gives a
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`couple of examples. And one of those examples of another
`time where you would send these trigging parameters is
`when you're having a handoff procedure. That's important
`because, as we see in slide 17, base stations don't always
`use the same threshold. When a UE is going to transition
`from one base station to the next, it needs to have the
`capability to adjust its thresholds to match the new base
`station after handoff.
`JUDGE MOORE: So this ability, is this explicitly
`talked about in Fong or is this something that you're taking
`from the expert? In other words, Fong talks about sending
`the message during a handoff; you're talking about there
`may be a different threshold because of what happens
`during handoff. Is that coming from the expert or from
`Fong?
`MR. NASH: Well, I think that's an understanding
`that one skilled in the art has when they view this reference.
`And I think that's an understanding that they appreciate
`when it's talking about handoff procedures.
`And, so, if we look back on slide 16 at that
`highlighted provision, it may not expressly say that there's
`an adjustment, but it's saying, for example, if we look at
`that first paragraph, the message sent at 104 can be
`performed as part of a call setup procedure. So we've got
`an initial parameter being sent at call setup. And then later
`it talks about having trigging parameters that can be sent
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`during handoff. So, it's talking about sending it at call setup
`and then it's talking about sending it at handoff. And I think
`that that right there is an express discussion about changing
`that parameter.
`In conclusion, on this adjustability I've got on slide
`18, Fong's teaching that it's not just at call setup but it can
`be at any time. And, in fact, it uses that example of handoff
`procedures, which one of skilled in the art understands is
`indicative of the reasons why you wouldn't want that to be
`adjustable.
`And there's one other aspect to Patent Owner's
`argument, and that relates to this predetermined time
`duration statement that's in Fong. Patent Owner contends
`that that term, predetermined, indicates that min-duration
`must be fixed. To illustrate why that's not the case, I've put
`up a highlighted portion here of the Bark reference. And
`this is a great example because this is showing how it's
`consistent understanding of those skilled in the art. In the
`Bark reference we see here, it first says you have a
`predetermined event, predetermined condition, and then it
`says later in that same paragraph, thereafter, the mobile
`station may receive another measurement control message
`from the radio network control mode that modifies
`measurement parameters or events. So the mobile station
`modifies the stored parameters or events, as instructed. So
`just because there's the use of the word predetermined up
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`front, it doesn't preclude that same parameter from being
`changed later.
`JUDGE HUDALLA: You're merely bringing that in
`to show us the concept of maybe something that's
`predetermined in a phone system and later changing?
`You're not actually using that as part of the ground, right?
`MR. NASH: That's right, Your Honor. This is just
`trying to be used as an example of how one skilled in the
`art, rather than having an expert simply say, I wouldn't
`consider predetermined to preclude this, I thought it was
`helpful that even one of the other references in this
`proceeding uses that same terminology and then shows that
`it's adjusted later.
`So if we turn to slide 20, this is getting into the third
`issue that's in dispute, and that's that threshold of k TTIs.
`And to unpack a little bit of what Patent Owner's arguing,
`as I've illustrated here on slide 20, one of the things they
`argue is that the person of the skill in the art wouldn't make
`the combination. They also argue that Fong, itself, doesn't
`teach TTIs. They also argued that the Ericsson reference
`teaches exceptions to periodic reporting and that Ericsson
`doesn't teach an integer number of TTIs. And I've briefly
`highlighted here that this is an issue that was addressed in
`the Board's institution decision, so it's not a new issue; it's
`one that the Board considered and arrived at a conclusion
`that the combination of Fong and Ericsson has evidence to
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`show this teaching and that there's a sufficient rationale for
`making that.
`JUDGE MOORE: Right. Of course that's
`preliminary under a different standard and doesn't preclude
`a different conclusion upon Fong.
`MR. NASH: Yes, of course. I think that it's helpful
`-- we can take a look at some of the evidence that kind of
`addresses each of these issues. So, first, on slide 21 --
`JUDGE ANDERSON: Counsel, before you proceed,
`you highlighted some language from the patent that was to
`the effect that the patent was not limited to LTE, I think,
`and you quoted that. I think it's slide 11. And you blew out
`some language that said that the terrestrial access network is
`a UTRAN. I wanted to ask you -- my understanding is
`UTRAN, if it is an LTE network, says LTE. So it would be
`a UTRAN with an extension, dash, LTE. So I'm not quite
`understanding why this shows that this is not limited to LTE
`because there is a specific UTRAN that is LTE. This
`doesn't have that extension on it. So what's the argument
`here that this is not limited to LTE?
`MR. NASH: Yes, Judge, I think I understand your
`question. And I think I need to clarify what I was trying to
`present with respect to slide 11. So slide 11 is not about an
`LTE system. Slide 11 is just a 3G system and it's teaching
`traditional UTRAN. So that description with respect to Fig.
`1 and its description about the UMTS terrestrial radio
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`access network, that is, indeed, a 3G system. So this
`disclosure alone isn't what demonstrates that it's not limited.
`I was kind of highlighting the fact that the '676 Patent
`begins by describing a 3G system.
`Now the patent goes on from there and says, by the
`way, there's some continued evolution happening here, and
`it talks about what I think the patent refers to as EUTRAN.
`I think that's consistent with what Your Honor's referencing,
`which is the UTRAN system in the context of LTE. And
`it's called evolved UTRAN, I think is the name for that.
`And I've got a different slide with respect to the 1501
`proceeding that highlights that provision. But it talks first
`about 3G, then it talks about 4G, or LTE, and says that LTE
`is the next step and it's moving all of this stuff further into
`the future.
`The important part, I think, Your Honor, is what's
`shown on slide 12. And on slide 12 there's that discussion
`about the summary of the invention. And it's here that I
`think is important because it makes clear that the '676
`Patentees did not want their invention to be limited to LTE.
`And they said that expressly in that very first sentence.
`They said: Although the present invention is applicable in
`the context of EUTRAN, which is an LTE system, its
`principles are not limited to that environment. Instead, they
`may also be applicable to other current and future wireless
`telecommunication systems. So I think that statement's a
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`pretty clear and express statement that it's contemplating
`this same invention in a 3G environment, just like that
`UMTS UTRAN system that it discussed in the context of its
`background.
`So I'm going to head back to slide 21, where we were
`talking about the k TTIs and, specifically, the combination
`of Fong with Ericsson. And there's a lot of evidence in the
`record related to why a person of ordinary skill in the art
`would make this combination. I thought it was helpful to
`highlight one of the pieces of that evidence here, which is
`what we were discussing earlier, Judge Moore, in response
`to your question. Fong's disclosing the min-duration
`parameter, and it also discloses that the mobile station
`tracks time in uniform time periods. So, again, it doesn't
`get into the min-duration and how the min-duration is being
`tracked in terms of its units of time, but it does say that
`those are uniform time periods. And that's important
`because it's evidence why one skilled in the art would look
`to implementations of uniform time periods. And here,
`when we look to Ericsson and Ericsson's disclosure of TTIs,
`that is a uniform time period. And, so, that's some evidence
`demonstrating why Fong would be combined with
`Ericsson's TTI's combination.
`With respect to what Ericsson teaches, we touched on
`this briefly up front, but Ericsson's teaching a UE power
`headroom measurement, the UPH. It teaches that UPH is
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`being sent in scheduling information. And that scheduling
`information is being sent periodically in the order of TTIs.
`And I've highlighted that portion of the Ericsson reference
`here on slide 22.
`Now, importantly, that's a disclosure about HSUPA,
`and I don't think there's any dispute that that's what Ericsson
`is talking about. It's also consistent with what the '676
`Patent talks about with respect to those systems. It says UE
`power headroom information, or UPH, is part of the
`scheduling information. So we see both Ericsson and the
`'676 Patent saying the UPH is part of the scheduling
`information.
`Now, with that understanding, when we look at slide
`23, I think this knocks out a lot of what Patent Owner's
`arguing with respect to this combination. So if one of those
`arguments, as I mentioned before, is that Fong fails to show
`TTIs, that ignores that it's not just Fong alone, but it's Fong
`in view of the teachings of Ericsson, and Ericsson teaches
`TTIs.
`
`Patent Owner points to that UPH and speculates that
`maybe that's not always in the scheduling information.
`That's contradictory, though, to what Ericsson itself teaches,
`as well as what the '676 pattern teaches because both of
`those contain statements saying UPH is in the scheduling
`information.
`They also point to some of the statements in Ericsson
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`about the sending of arbitrary scheduling information or
`about compressed mode. I think both of those are kind of
`irrelevant here because whether it's sent arbitrarily or not,
`you still have a disclosure in Ericsson about a periodic
`sending of scheduling information. You also have the
`disclosure that compressed mode is a limited situation, and
`Patent Owner's own expert agreed, it's not like it's always in
`compressed mode. So you'll have instances where it's not.
`So, moving to slide 24, with respect to their integer
`argument, that there isn't a disclosure of integers, I think it's
`important to take a look at this language and what's really
`not disputed. I don't think that they dispute that there's an
`express disclosure of one TTI because it says that right
`there in the yellow highlighted portion on slide 24 that it's
`defined in the order of TTI with one TTI as the shortest
`period. So that's an express disclosure. Also, as I've
`highlighted in blue, in this same provision, there's no
`dispute that this is an adjustable parameter because Ericsson
`says it's configurable through our RC signaling. So it's an
`integer and it can be changed, and their own experts agreed
`that that statement can include and would include two TTIs
`and three TTIs. So Ericsson's teaching a starting point, it's
`teaching adjustability, and that contemplates integers of
`TTIs.
`
`Now, briefly, I think, Your Honor, this related to
`your initial question, as well, which one of the arguments
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`Patent Owner's raised is related to substitution. They argue
`that there's something wrong about substituting. And I just
`wanted to clarify again. There's nothing about the
`combination that we're saying is substituting. We're not
`dropping something of Fong and replacing it with
`something of Ericsson. Instead, we're taking what Fong's
`teaching us, which is using a uniform time period, and we're
`using Ericsson's example of that. That's a TTI, which is a
`uniform time period.
`Now that fourth and final issue with respect to this
`1493 proceeding relates to the Bark reference. And they
`point to two things about Bark. First they say that Bark
`doesn't teach reporting power headroom information. And,
`second, they say that Bark isn't teaching an absolute
`difference of path loss; it's teaching a slope or a change of
`parameter instead.
`So in slide 27, I thought it would be helpful again if
`we touched on this a little bit, but to take a look again at
`what Bark does teach. So, as we see on slide 27, there's a
`paragraph in column 11, and this relates to the embodiment
`in Fig. 12, and it's discussing an event trigger. And in this
`embodiment, that event trigger is defined based on how
`quickly the measured parameter value for a channel
`changes. And it says that threshold value for the parameter
`change or slope is provided to the mobile station for the
`measurement control message.
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`And looking again at that same paragraph that's
`highlighted here on slide 28, we've got a paragraph from
`column seven that makes it clear that one of the parameters
`could include path loss. So there's an express statement
`about that, as well.
`So there's evidence in the record that demonstrates
`that what Bark is teaching with all this disclosure, combined
`with the knowledge that one skilled in the art has, is an
`absolute difference between current and most recent path
`loss measurements. I show some of that evidence right here
`on slide 29.
`Now going back to what Patent Owner disputed, I'll
`knock out the first one very quickly. They contend that
`Bark doesn't teach a power headroom report. Regardless of
`whether Bark does or doesn't, this isn't just Bark alone, it's
`Fong with Ericsson and Bark. And Fong, I don't think
`there's any dispute, we all agree that Fong's maximum TPR
`is power headroom report. So it's not needed for Bark to
`disclose that power headroom report.
`Turning to slide 31, with respect to the second issue
`the Patent Owner raised, I think it's important to bring in the
`perspective that one skilled in the art has with respect to
`what Fig. 12's depicting and what Bark is describing when
`it's talking about measured parameters. So -- and we've got
`testimony in the record about this -- but those skilled in the
`art understand that there's not going to be a continuous
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`measurement. You're not always at every instance
`measuring something like path loss. You're going to be
`taking a data point at some uniform space time. You may
`take it every millisecond or every five milliseconds or every
`ten milliseconds. But what you're doing is you're
`generating a data point. And those data points can
`ultimately then be graphed in a way that would depict what
`we see in Fig. 12. And this is from the record, as well.
`Those Xs that you see that have been added, those are
`annotations to indicate these uniform sampled data points
`that generate something like the graph we see in Fig. 12.
`And that's an important perspective to have because, as we
`see when we turn to slide 32, the skilled artisan brings that
`perspective. And, so, when Bark's talking about a slope or
`a change or how rapidly a quantity changes, that skilled
`artisan's appreciating that what Bark is talking about is how
`big is that difference between one value and then the next
`measured value. So it understands Bark to be talking about
`that difference in value change as being what's important.
`And that is what we're talking about, the absolute
`difference, whether it's positive or negative, Bark's teaching
`that that's what's important.
`JUDGE MOORE: Just to let you know, you wanted
`about 30 minutes, and you have about three minutes left
`before you're getting into your 30 minutes that you wanted
`for rebuttal.
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