UNITED STATES PATENT AND TRADEMARK OFFICE
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`———————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
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`
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`Cisco Systems, Inc.,
`Petitioner
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`———————
`
`Case IPR2016-_____
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`U.S. Patent No. 9,094,268
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`_____________________
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`
`
`DECLARATION OF DR. SAYFE KIAEI, UNDER
`37 C.F.R. § 1.68 IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 9,094,268
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`1
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`CSCO-1003
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`Cisco v. TQ Delta
`Page 1 of 63
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`I.
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`II.
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`
`TABLE OF CONTENTS
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`
`
`Introduction .................................................................................................... 3
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`Background and Qualifications ...................................................................... 5
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`III. Understanding of Patent Law ......................................................................... 7
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`IV. The ’268 Patent ............................................................................................. 10
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`A. Overview ............................................................................................ 10
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`B.
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`Prosecution History ............................................................................ 14
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`V.
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`Level of Ordinary Skill in the Pertinent Art ................................................. 15
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`VI. Broadest Reasonable Interpretation .............................................................. 17
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`A.
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`B.
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`“data” (claims 1, 4, 11, 16, 18) ........................................................... 17
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`“storing, during the low power mode” (claims 4, 14) ........................ 19
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`VII. Detailed Invalidity Analysis ......................................................................... 21
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`A.
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`Background on Prior Art References ................................................. 22
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`1.
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`2.
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`3.
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`Background on Bowie .............................................................22
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`Background on Yamano ..........................................................25
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`Modem States in Bowie and Yamano ......................................28
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`B.
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`Claims 1, 2, 4, 11, 12, 14, 16, and 18 are obvious over Bowie in
`view of Yamano. ................................................................................ 32
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`1.
`
`2.
`
`Reasons to Combine Bowie and Yamano ................................32
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`Analysis of Claims ...................................................................35
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`VIII. Conclusion .................................................................................................... 63
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`2
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`
`I, Sayfe Kiaei, do hereby declare as follows:
`
`I.
`
`INTRODUCTION
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`1.
`
`I have been retained as an independent expert witness on behalf of
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`Cisco Systems, Inc. (“Cisco”) for the above-captioned Petition for Inter Partes
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`Review (“IPR”) of U.S. Patent No. 9,094,268 (“the ’268 patent”). I am being
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`compensated at my usual and customary rate of $400 per hour for the time I spend
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`in connection with this IPR. My compensation is not affected by the outcome of
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`this IPR.
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`2.
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`I have been asked to provide my opinions regarding whether claims 1,
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`2, 4, 11, 12, 14, 16, and 18 (“the Challenged Claims”) of the ’268 patent are
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`unpatentable as they would have been obvious to a person having ordinary skill in
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`the art (“POSITA”) at the time of the alleged invention. It is my opinion that all of
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`the limitations of these claims would have been obvious to a POSITA after
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`reviewing the Bowie and Yamano references, as discussed further below.
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`3.
`
`The ’268 patent issued on July 28, 2015, from U.S. Patent App. No.
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`14/295,981, filed Jun. 4, 2014, and claims priority to a series of U.S. Patent and
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`Provisional Applications with the earliest being U.S. Prov. App. No. 60/072,447,
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`filed Jan. 26, 1998. See Ex. 1001.
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`3
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`Ex. 1003
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`4.
`
`The face of the ’268 patent names John A. Greszczuk, Richard W.
`
`
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`Gross, Halil Padir, and Michale A. Tzannes, as the inventors. Further, the face of
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`the ’268 patent identifies TQ Delta, LLC, as the assignee.
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`5.
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`In preparing this Declaration, I have reviewed:
`
`a)
`
`b)
`
`c)
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`the ’268 patent, Ex. 1001;
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`the file history of the ’268 patent, Ex. 1002; and
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`the prior art references discussed below: Ex. 1005 (Bowie) and
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`Ex. 1006 (Yamano), and
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`d)
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`prior art relevant DSL technology: Ex. 1009 (Fosmark).
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`6.
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`In forming the opinions expressed in this Declaration, I have relied
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`upon my education and experience in the relevant field of art, and have considered
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`the viewpoint of a POSITA, as of January 26, 1998. I have also considered:
`
`a)
`
`b)
`
`the documents listed above,
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`the additional documents and references cited in the analysis
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`below,
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`c)
`
`the relevant legal standards, including the standard for
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`obviousness provided in and any additional authoritative
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`documents as cited in the body of this declaration, and
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`d) my knowledge and experience based upon my work in this area
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`as described below.
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`4
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`7.
`
`I understand that claims in an IPR are given their broadest reasonable
`
`
`
`interpretation in view of the patent specification and the understandings of a
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`POSITA. I further understand that this is not the same claim construction standard
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`as one would use in a District Court proceeding.
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`II. BACKGROUND AND QUALIFICATIONS
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`8. My qualifications are set forth in my curriculum vitae, a copy of
`
`which is included as Exhibit 1004. As set forth in my curriculum vitae:
`
`9.
`
`I earned my B.S. in Computer and Electrical Engineering from
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`Washington State University-Northeastern in 1982, a M.S. in Electrical and
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`Computer Engineering from Washington State University in 1984, and a PhD. in
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`Electrical and Computer Engineering from Washington State University in 1987.
`
`10.
`
`I have been a Professor at Arizona State University (ASU) since 2001.
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`In this capacity, I have served as a Motorola Endowed Professor and Chair in
`
`analog and RF integrated circuits. I am also Director of ASU’s Center on Global
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`Energy Research and Director of NSF Connection One Research Center with a
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`focus on integrated communication systems.
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`11. From 2009 to 2012, and concurrent with my position at ASU, I was
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`the Associate Dean of Research at the Ira A. Fulton Schools of Engineering.
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`12. From 1993 to 2001, I was a senior member of technical staff with the
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`Wireless Technology Center and Broadband Operations at Motorola. In that
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`5
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`capacity, I was responsible for the development of RF and transceiver integrated
`
`
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`circuits, GPS RF IC and digital subscriber lines (DSL) transceivers.
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`13. From 1987 to 1993, I served as an Associate Professor at Oregon
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`State University.
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`14.
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`In addition to the above noted positions, I was the Co-Director of the
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`Industry-University Center for the Design of Analog/Digital ICs (CDADIC). Also,
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`I am an IEEE Fellow, and have been the Chair and on the Technical Program
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`Committee of several IEEE conferences including RFIC, MTT, ISCAS and other
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`international conferences.
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`15.
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`In total, I have more than thirty years of experience in research,
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`development, design, commercialization, evaluation, and testing, of wireless
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`technologies, products, and systems. My research interests include wireless
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`transceiver design, RF, and mixed-signal IC’s in CMOS and SiGe.
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`16.
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`I have published more than 100 journal and conference papers and
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`have been awarded several U.S. patents.
`
`17.
`
`I have organized and chaired international conferences on
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`electrochemical capacitor technology and taught short courses at Electrochemical
`
`Society and IEEE meetings.
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`
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`6
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`III. UNDERSTANDING OF PATENT LAW
`
`
`
`18.
`
`I am not an attorney. For the purposes of this declaration, I have been
`
`informed about certain aspects of the law that are relevant to my opinions. My
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`understanding of the law was provided to me by Cisco’s attorneys.
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`19.
`
`I understand that prior art to the ’268 patent includes patents and
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`printed publications in the relevant art that predate the priority date of the alleged
`
`invention recited in the ’268 patent. I have applied the date of January 26, 1998,
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`the filing date of the earliest provisional application in the chain of continuing
`
`applications resulting in the ’268 patent, as the priority date. I understand,
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`however, that the ’268 patent claims may not be entitled to this earlier date, and
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`that the actual entitled priority date may be later.
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`20.
`
`I understand that a claim is invalid if it would have been obvious.
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`Obviousness of a claim requires that the claim would have been obvious from the
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`perspective of a POSITA at the time the alleged invention was made. I understand
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`that a claim could have been obvious from a single prior art reference or from a
`
`combination of two or more prior art references.
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`21.
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`I understand that an obviousness analysis requires an understanding of
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`the scope and content of the prior art, any differences between the alleged
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`invention and the prior art, and the level of ordinary skill in evaluating the
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`pertinent art.
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`7
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`22.
`
`I further understand that certain factors may support or rebut the
`
`
`
`obviousness of a claim. I understand that such secondary considerations include,
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`among other things, commercial success of the patented invention, skepticism of
`
`those having ordinary skill in the art at the time of invention, unexpected results of
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`the invention, any long-felt but unsolved need in the art that was satisfied by the
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`alleged invention, the failure of others to make the alleged invention, praise of the
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`alleged invention by those having ordinary skill in the art, and copying of the
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`alleged invention by others in the field. I understand that there must be a nexus—a
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`connection—between any such secondary considerations and the alleged invention.
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`I also understand that contemporaneous and independent invention by others is a
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`secondary consideration tending to show obviousness.
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`23.
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`I further understand that a claim would have been obvious if it unites
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`old elements with no change to their respective functions, or alters prior art by
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`mere substitution of one element for another known in the field and that
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`combination yields predictable results. Also, I understand that obviousness does
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`not require physical combination/bodily incorporation, but rather consideration of
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`what the combined teachings would have suggested to persons of ordinary skill in
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`the art at the time of the alleged invention.
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`24. While it may be helpful to identify a reason for this combination,
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`common sense should guide and no rigid requirement of finding a teaching,
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`suggestion, or motivation to combine is required. When a product is available,
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`
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`design incentives and other market forces can prompt variations of it, either in the
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`same field or different one. If a POSITA can implement a predictable variation,
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`obviousness likely bars its patentability. For the same reason, if a technique has
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`been used to improve one device and a POSITA would recognize that it would
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`improve similar devices in the same way, using the technique would have been
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`obvious. I understand that a claim would have been obvious if common sense
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`directs one to combine multiple prior art references or add missing features to
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`reproduce the alleged invention recited in the claims.
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`25.
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`I am not aware of any allegations by the named inventor of the ’268
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`patent or any assignee of the ’268 patent that any secondary considerations tend to
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`rebut the obviousness of any Challenged Claim of the ’268 patent.
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`26.
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`I understand that in considering obviousness, it is important not to
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`determine obviousness using the benefit of hindsight derived from the patent being
`
`considered.
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`27. The analysis in this declaration is in accordance with the above-stated
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`legal principles.
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`9
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`IV. THE ’268 PATENT
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`A. Overview
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`
`
`28. The ’268 patent relates to a multicarrier transceiver “with a sleep
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`mode in which it idles with reduced power consumption when it is not needed to
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`transmit or receive data.” Ex. 1001, Abstract. The ’268 patent states that “[t]he full
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`transmission and reception capabilities of the transceiver are quickly restored when
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`needed, without requiring the full (and time-consuming) initialization commonly
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`needed to restore such transceivers to operation after inactivity.” Id. This
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`transceiver, according to the ’268 patent, may be included in “xDSL” systems
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`including “ADSL (asynchronous digital subscriber loop),” and “HDSL (high-speed
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`digital subscriber loop.” Id., 1:47-52. These systems are generally referred to in the
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`’268 patent as “DSL systems.” Id., 1:51-52.
`
`29. The ’268 patent states that in the DSL systems the data
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`communication occurs using a “first transceiver located at the site of a customer’s
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`premises” and the “second transceiver located at the central telephone office.” Id.,
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`3:67-4:4. The ’268 patent refers to the “first transceiver” as the “CPE transceiver,”
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`and to the “second transceiver” as the “CO transceiver.” Id. During normal
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`operation, the CPE transceiver and the CO transceiver exchange data using
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`“superframes.” Id., 5:15-16. Each “superframe” includes “a sequence of data
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`frames” followed “by a synchronization frame.” Id., 5:11-13. Also during normal
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`10
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`operation “[t]he timing reference signal 62a is transmitted to the [CPE] transmitter
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`
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`from the transmitter with which the receiver 16 communicated (e.g., the CO
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`transmitter)” which “is synchronized with the Master Clock in the transmitter” and
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`whose “frequency defines the frame rate of the transceivers.” Id., 5:44-50. The
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`specification states that “[t]his signal [62a] is advantageously a pure tone of fixed
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`frequency and phase” but “[o]ther forms of timing signal may, of course, be used.”
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`Id., 5:46-50.
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`30.
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`In the ’268 patent, the CO and CPE transceiver can enter a low power
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`consumption mode. Id., 6:27-30. While the description of the ’268 patent’s low
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`power mode is described below in terms of the CPE transceiver, the ’268 patent
`
`acknowledges that the process is the same for the CO transceiver. Id., 4:15-17.
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`31. To enter the low power mode, the CPE transceiver first transmits an
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`“Intend To Enter Sleep Mode” notification to the CO transceiver. Id., 6:46, 66-7:2.
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`If sleep mode is permissible, the CO transceiver responds to the notification “by
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`transmitting an ‘Acknowledge Sleep Mode’ notification.” Id., 6:57-59. The CPE
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`transceiver then transmits an “Entering Sleep Mode” notification to the CO
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`transceiver, which is reciprocated by the CO transceiver. Id., 6:66-7:3. Upon
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`receiving the “Entering Sleep Mode” notification from the CO transceiver, the
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`CPE transceiver then enters the sleep mode state. Id., 7:38-40. In the sleep mode
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`state, the CPE transceiver “stores its state” in connection with CO transceiver,
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`11
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`including “the transmission fine gains” and “the Bit Allocation Tables” parameters
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`
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`in the “state memory.” Id., 7:38-47. The CPE transceiver then “reduces power to
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`the digital modulator/demodulator circuitry comprising IFFT 20 and FFT 56, as
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`well as to and transmitter data line drivers 26” but “continues to advance the frame
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`counter 34 in accordance with the received synchronizing signal 62a.” Id., 7:50-54.
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`32. Likewise, upon receiving the “Entering Sleep Mode” notification, the
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`CO transceiver enters sleep mode. Id., 7:3-5. The CO transceiver then “stores its
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`state in its own state memory corresponding to the state memory 36 of CPE
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`transceiver 10.” Id., 7:5-8. The CO transceiver also “continues to advance the
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`frame count and superframe count during the period of power-down in order to
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`ensure synchrony with the remote CPE transceiver when communications are
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`resumed.” Id., 7:14-17.
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`33. To exit the low power mode, the CPE “receives an ‘Awaken’
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`indication.” Id., 7:64-67. “In response to the ‘Awaken’ signal, the CPE transceiver
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`retrieves its stored state from the state memory 38; restores full power to its
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`circuitry.” Id., 8:2-4. The CPE also transmits an “Exiting Sleep Mode” to the CO
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`transceiver, which upon “detecting the ‘Exit Sleep Mode’ notification from the
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`CPE transceiver . . . exits sleep mode by restoring its state and restoring its power.”
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`Id., 8:6-9.
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`34. The purported invention of the ’268 patent is the CPE transceiver’s
`
`
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`ability to “begin transmitting immediately or after only a few frames delay”
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`because “it need not repeat the initialization . . . to establish the requisite
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`parameters.” Id. 8:9-12.
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`35.
`
`Independent claims 1 and 11 are representative of the Challenged
`
`Claims:
`
`1. A method, in a multi carrier transceiver, comprising:
`transmitting or receiving a message to enter a low power
`mode; and
`entering the low power mode, wherein a transmitter
`portion of the transceiver does not transmit data during the
`low power mode and a receiver portion of the transceiver
`receives data during the low power mode, wherein the
`transceiver is a device that is capable of transmitting or
`receiving internet and video data.
`
`11. A method, in a multicarrier transceiver, comprising:
`transmitting or receiving a message to enter a low power
`mode for a transmitter portion while a receiver portion
`remains in a full power mode; and
`entering the low power mode for the transmitter portion
`while the receiver portion remains in the full power mode,
`wherein the transceiver is a device that is capable of
`transmitting or receiving internet and video data.
`
`
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`13
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`B.
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`36.
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`Prosecution History
`
`I have reviewed the prosecution history of the ’268 patent.
`
`
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`37. Application No. 14/295,981 (“the ’981 application”)—that issued as
`
`the ’268 patent—was filed on June 4, 2014. The ’981 application appears to claim
`
`priority to a string of applications the earliest of which is U.S. Provisional
`
`Application No. 60/072,447 filed on January 26, 1998. On June 6, 2014, a
`
`preliminary amendment was filed that cancelled claims 10-17. Ex. 1002 at 87-90.
`
`On July 2, 2014, a second preliminary amendment was filed canceling claims 1-17
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`and adding new claims 18-37. Id. at 72-76.
`
`38. On January 14, 2015, the Patent Office issued a non-final office action
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`that rejected claims 18, 19, 22, 23, 26, 27, 32, and 33 over U.S. Patent No
`
`5,842,028 to Vajapey. The office action, however, also indicated that the other
`
`claims would be allowable if rewritten in independent form. Id. at 45-47. On
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`March 20, 2015, the Applicants filed a response amending the claims as indicated
`
`by the Examiner to rewrite the allowable subject matter in independent form.
`
`39. On May 19, 2015, the Patent Office issued a Notice of Allowance,
`
`indicating claims. In the Allowance, the Examiner indicated that:
`
`none of the prior art discloses or suggests that a method, in a
`multicarrier transceiver, comprising: transmit data during the low
`power mode and a receiver portion of the transceiver receives data
`during the low power mode, wherein the transceiver is a device that is
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`14
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`capable of transmitting or receiving internet and video data; storing,
`during the low power mode, at least one parameter associated with a
`full power mode.
`
`
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`Ex. 1002 at 23.
`
`40. Thus, it appears that the claims where allowed without the Examiner
`
`applying any prior art against what was assumed to be allowable subject matter.
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`V. LEVEL OF ORDINARY SKILL IN THE PERTINENT ART
`
`41.
`
`I understand that the level of ordinary skill may be reflected by the
`
`prior art of record, and that a POSITA to which the claimed subject matter pertains
`
`would have the capability of understanding the scientific and engineering
`
`principles applicable to the pertinent art. I understand that one of ordinary skill in
`
`the art has ordinary creativity, and is not a robot.
`
`42.
`
`I understand there are multiple factors relevant to determining the
`
`level of ordinary skill in the pertinent art, including (1) the levels of education and
`
`experience of persons working in the field at the time of the invention; (2) the
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`sophistication of the technology; (3) the types of problems encountered in the field;
`
`and (4) the prior art solutions to those problems. There are likely a wide range of
`
`educational backgrounds in the technology field pertinent to the ’268 patent.
`
`43.
`
`I am very familiar with the knowledge and capabilities that a POSITA
`
`of multicarrier communication systems (such as digital subscriber line (DSL)
`
`communications) would have possessed during the late 90s and early 2000s,
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`15
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
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`especially as it pertains to testing lines for their support of multicarrier
`
`
`
`communications. Specifically, my experience in the industry, with colleagues from
`
`academia, and with engineers practicing in the industry during the relevant
`
`timeframe allowed me to become personally familiar with the knowledge and
`
`capabilities of a person of ordinary skill in the area of multicarrier
`
`communications. Unless otherwise stated, my testimony below refers to the
`
`knowledge of one of ordinary skill in the art in the field of multicarrier
`
`communications during the time period around the priority date of the ’268 patent.
`
`44.
`
`In my opinion, the level of a POSITA needed to have the capability of
`
`understanding multicarrier communications and engineering principles applicable
`
`to the ’268 patent is (i) a Master’s degree in Electrical and/or Computer
`
`Engineering, or equivalent training, and (ii) approximately five years of experience
`
`working in digital telecommunications. Lack of work experience can be remedied
`
`by additional education, and vice versa. Such academic and industry experience
`
`would be necessary to appreciate what was obvious and/or anticipated in the
`
`industry and what a POSITA would have thought and understood at the time. For
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`example, an understanding of the ’268 patent requires an appreciation of xDSL
`
`modems and communications between transceivers. Such knowledge would be
`
`within the level of skill in the art. I believe I possess such experience and
`
`knowledge, and am qualified to opine on the ’268 patent.
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`
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`16
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`Ex. 1003
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`Cisco v. TQ Delta
`Page 16 of 63
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`45. For purposes of this Declaration, in general, and unless otherwise
`
`
`
`noted, my statements and opinions, such as those regarding my experience and the
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`understanding of a POSITA generally (and specifically related to the references I
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`consulted herein), reflect the knowledge that existed in the field as of January
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`1998.
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`VI. BROADEST REASONABLE INTERPRETATION
`
`46.
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`It is my understanding that in order to properly evaluate the ’268
`
`patent, the terms of the claims must first be interpreted. It is my understanding that
`
`the claims are to be given their broadest reasonable interpretation in light of the
`
`specification. It is my further understanding that claim terms are given their
`
`ordinary and accustomed meaning as would be understood by a POSITA, unless
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`the inventor, as a lexicographer, has set forth a special meaning for a term.
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`47.
`
`In order to construe the claims, I have reviewed the entirety of the
`
`’268 patent along with its prosecution history.
`
`A.
`
`“data” (claims 1, 4, 11, 16, 18)
`
`48. The term “data” appears in claims 1, 4, 11, 16, and 18. Claims 1, 4,
`
`and 16 recite “does not transmit data during the low power mode,” but claim 16
`
`uses the term “user data” instead of “data;” claims 1, 4, and 18 recite “receives data
`
`during the low power mode;” and claims 1 and 11 recite “transmitting or receiving
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`internet and video data.”
`
`
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`17
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`Ex. 1003
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`Cisco v. TQ Delta
`Page 17 of 63
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`
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`49. The ’268 patent does not define the term “data” but it is used
`
`
`
`throughout the specification. For example, the specification describes using “a
`
`DSL transceiver 10 in accordance with the present invention . . . for transmitting
`
`data over a digital subscriber line 14 and . . . for receiving data from the line.” Ex.
`
`1001 at 4:18-21. In DSL systems, “data is communicated in the form of a sequence
`
`of data frames . . . , followed by a synchronization frame.” Id., 5:9-13.
`
`50. The specification also states that a transceiver can “enter a ‘sleep’
`
`mode in which it consumes reduced power when it is not needed for data
`
`transmission or reception.” Id., 6:6-9. In the sleep mode, data is not transmitted but
`
`power is maintained “to at least that portion of the analog driver circuitry which
`
`transmits the pilot tone and other control signals.” Id., 7:26-29. Upon exiting sleep
`
`mode, the transceiver “is capable of recovering full data transmission capabilities
`
`within a period of a few frames.” Id., 8:27-29.
`
`51. Based on this description, it appears that a transmitter must be fully
`
`powered to transmit data and a receiver must be fully powered to receive data.
`
`Also, it appears that control signals are excluded from “data” since they are
`
`transmitted or received while the transceiver is in sleep mode and incapable of
`
`transmitting or receiving “data.” Accordingly, consistent with the usage of the term
`
`“data” in the ’268 patent, I believe that a POSITA would have understood the
`
`
`
`18
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`Ex. 1003
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`Cisco v. TQ Delta
`Page 18 of 63
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`
`broadest reasonable interpretation of the “data” to be information, other than
`
`
`
`control signals.
`
`B.
`
`“storing, during the low power mode” (claims 4, 14)
`
`52. The term “storing, during a low power mode” appears in claims 4 and
`
`14.
`
`53. The ’268 patent specification does not use this term, but the
`
`specification does disclose a CO transceiver and a CPE transceiver that store their
`
`respective states in memory upon “Entering Sleep Mode” and retain these states in
`
`memory while in sleep mode. Ex. 1001 at 7:5-14; 7:40-47. Once the parameters are
`
`stored, the CO and CPE transceivers enter a low power mode by reducing power to
`
`their respective circuitry. Id., 7:20-25; 7:49-52.
`
`54. With respect to the CO transceiver:
`
`After it has received acknowledgment from the CO transceiver, the
`CPE transceiver transmits an “Entering Sleep Mode” notification (step
`86) to the CO transceiver and ceases transmission, either immediately
`or after a given number of frames. The CO transceiver detects this
`notification; transmits its own “Entering Sleep Mode” notification
`(step 88); and enters sleep mode (step 90). In pursuance of this,
`the CO transceiver stores its state in its own state memory
`corresponding to the state memory 36 of CPE transceiver 10. The
`state of the CO or CPE transceivers preferably includes at least the
`frequency and time-domain equalizer coefficients (FDQ; TDQ) and
`the echo-canceller coefficients (ECC) of its receiver portion and the
`
`
`
`19
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`Ex. 1003
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`Cisco v. TQ Delta
`Page 19 of 63
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`

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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`
`gain of its transmitter portion; the transmission and reception data
`rates;
`the
`transmission and reception coding parameters;
`the-
`transmission fine gains; and the Bit Allocation Tables.
`
`
`
`Ex. 1001, 6:66-7:14 (emphasis added). The CO transceiver can then “exit[] sleep
`
`mode by restoring its state and restoring power.” Id., 8:6-9 (emphasis added).
`
`55. With respect to the CPE transceiver:
`
`In response to the “Entering Sleep Mode” notification from the CO
`transceiver, the CPE transceiver enters the sleep mode (step 92). In
`particular, it stores its state (step 94) in state memory 38; as noted
`above in connection with the CO transceiver, this includes preferably
`at least the frequency and time-domain equalizer coefficients (FDQ;
`TDQ) and the echo-canceller coefficients (ECC) of its receiver and
`the gain of its transmitter; the transmission and reception data rates;
`the transmission and reception coding parameters; the transmission
`fine gains; and the Bit Allocation Tables.
`
`Id., 7:38-47. The CPE transceiver can then “retrieve[] its stored state from the state
`
`memory 38” and “restore[] full power to its circuitry.” Id., 8:3-4.
`
`56. Thus, while the CO and the CPE both store their respective states
`
`while entering sleep mode, they also retain these states during sleep mode such that
`
`they can be restored upon waking up. Accordingly, consistent with the usage of the
`
`term “storing, during the lower power mode” in the ’268 patent, I believe that a
`
`POSITA would have understood the broadest reasonable interpretation of the
`
`
`
`20
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`Ex. 1003
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`Cisco v. TQ Delta
`Page 20 of 63
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`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 9,094,268
`
`“storing, during the lower power mode” to include maintaining in memory while in
`
`
`
`a reduced power consumption mode.
`
`VII. DETAILED INVALIDITY ANALYSIS
`
`57.
`
`I have been asked to provide my opinion as to whether the Challenged
`
`Claims of the ’268 patent would have been obvious in view of the prior art. The
`
`discussion below provides a detailed analysis of how the prior art references
`
`identified below teach the limitations of the Challenged Claims of the ’268 patent.
`
`It is my opinion that the Bowie and Yamano references would have rendered
`
`obvious to a POSITA the subject matter of claims 1, 2, 4, 11, 12, 14, 16, and 18 of
`
`the ’268 patent.
`
`58. As part of my analysis, I have considered the scope and content of the
`
`prior art, and any differences between the alleged invention and the prior art. I took
`
`the time of the alleged invention to be the priority date of the earliest provisional
`
`application to which the application that issued as