Trials@uspto.gov
`571-272-7822
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` Paper 17
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` Entered: June 30, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CALIFORNIA INSTITUTE OF TECHNOLOGY,
`Patent Owner.
`_______________
`
`Case IPR2017-00219
`Patent 7,116,710 B1
`____________
`
`
`Before KEN B. BARRETT, TREVOR M. JEFFERSON, and
`JOHN A. HUDALLA, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`
`
`
`
`571-272-7822
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` Paper 17
`
`
`
` Entered: June 30, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`CALIFORNIA INSTITUTE OF TECHNOLOGY,
`Patent Owner.
`_______________
`
`Case IPR2017-00219
`Patent 7,116,710 B1
`____________
`
`
`Before KEN B. BARRETT, TREVOR M. JEFFERSON, and
`JOHN A. HUDALLA, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a) and 37 C.F.R. § 42.108
`
`
`
`
`
`
`IPR2017-00219
`Patent 7,116,710 B1
`
`INTRODUCTION
`I.
`Petitioner, Apple, Inc. (“Apple”), filed a Petition (Paper 5, “Pet.”)
`requesting an inter partes review of claims 1–8, 10–17, and 19–33 of U.S.
`Patent No. 7,116,710 B1 (Ex. 1201, “the ’710 patent”) pursuant to 35 U.S.C.
`§§ 311–319. Apple relies on the Declaration of James A. Davis, Ph.D.
`(Ex. 1206) with its Petition. Patent Owner, California Institute of
`Technology (“Caltech”), filed a Preliminary Response (Paper 16, “Prelim.
`Resp.”) to the Petition. Caltech relies on the Declaration of Dr. R. Michael
`Tanner (Ex. 2001) filed with its Preliminary Response.
`We have jurisdiction under 37 C.F.R. § 42.4(a) and 35 U.S.C. § 314,
`which provides that an inter partes review may not be instituted unless the
`information presented in the Petition “shows that there is a reasonable
`likelihood that the petitioner would prevail with respect to at least 1 of the
`claims challenged in the petition.” After considering the Petition and
`associated evidence, we conclude that Apple has demonstrated a reasonable
`likelihood that it would prevail in showing the unpatentability of claims 1–8,
`11–17, 19–22, and 24–33 of the ’710 patent.
`
`A. Related Proceedings
`The parties indicate that the ’710 patent was involved in the following
`active case, Cal. Inst. of Tech. v. Broadcom Ltd., No. 2:16-cv-03714 (C.D.
`Cal. filed May 26, 2016), and in concluded cases, Cal. Inst. of Tech. v.
`Hughes Commc’ns, Inc., No. 2:15-cv-01108 (C.D. Cal. filed Feb. 17, 2015);
`and Cal. Inst. of Tech. v. Hughes Commc’ns, Inc., 2:13-cv-07245 (C.D. Cal.
`filed Oct. 1, 2013). Pet. 3, Paper 8, 2–3.
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`IPR2017-00219
`Patent 7,116,710 B1
`The parties also identify co-pending cases IPR2017-00210 and
`IPR2017-00211, in which Apple has filed a petition for inter partes review
`of the ’710 patent. Pet. 3; Paper 8, 2–3. Inter partes review of the ’710
`patent was previously considered and denied in Hughes Network Sys. v. Cal.
`Inst. of Tech., Case IPR2015-00067 (PTAB April 27, 2015) (Paper 18)
`(“IPR2015-00067”) and Hughes Network Sys. v. Cal. Inst. of Tech., Case
`IPR2015-00068 (PTAB April 27, 2015) (Paper 18) (“IPR2015-00068”).
`Finally, certain patents related to the ’710 patent were challenged in
`IPR2015-00059, IPR2015-00060, IPR2015-00061, and IPR2015-00081.
`Pet. 3. A Final Written Decision cancelling claims 1 and 2 of U.S. Patent
`No. 7,916,781 B2 was issued in Hughes Network Sys. v. Cal. Inst. of Tech.,
`Case IPR2015-00059 (PTAB April 21, 2016) (Paper 42).
`
`B. The ʼ710 Patent
`The ’710 patent describes the serial concatenation of interleaved
`convolutional codes forming turbo-like codes. Ex. 1201, Title. It explains
`some of the prior art with reference to its Fig. 1, reproduced below.
`
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`Patent 7,116,710 B1
`Figure 1 is a schematic diagram of a prior “turbo code” system. Id. at 2:14–
`15. The ’710 patent specification describes Figure 1 as follows:
`
`A standard turbo coder 100 is shown in FIG. 1. A block
`of k information bits is input directly to a first coder 102. A
`k bit interleaver 106 also receives the k bits and interleaves
`them prior to applying them to a second coder 104. The second
`coder produces an output that has more bits than its input, that
`is, it is a coder with rate that is less than 1. The coders 102,104
`are typically recursive convolutional coders.
`Three different items are sent over the channel 150: the
`original k bits, first encoded bits 110, and second encoded bits
`112. At the decoding end, two decoders are used: a first
`constituent decoder 160 and a second constituent decoder 162.
`Each receives both the original k bits, and one of the encoded
`portions 110, 112. Each decoder sends likelihood estimates of
`the decoded bits to the other decoders. The estimates are used
`to decode the uncoded information bits as corrupted by the
`noisy channel.
`Id. at 1:38–53 (emphasis omitted).
`A coder 200, according to a first embodiment of the invention, is
`described with respect to Figure 2, reproduced below.
`
`
`Figure 2 of the ’710 patent is a schematic diagram of coder 200. Id. at 2:16–
`17.
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`IPR2017-00219
`Patent 7,116,710 B1
`The specification states that “coder 200 may include an outer coder
`202, an interleaver 204, and inner coder 206.” Id. at 2:34–35. It further
`states as follows.
`The outer coder 202 receives uncoded data. The data
`may be partitioned into blocks of fixed size, say k bits. The
`outer coder may be an (n,k) binary linear block coder, where
`n>k. The coder accepts as input a block u of k data bits and
`produces an output block v of n data bits. The mathematical
`relationship between u and v is v=T0u, where T0 is an n×k
`matrix, and the rate[1] of the coder is k/n.
`
`
`The rate of the coder may be irregular, that is, the value
`of T0 is not constant, and may differ for sub-blocks of bits in the
`data block. In an embodiment, the outer coder 202 is a repeater
`that repeats the k bits in a block a number of times q to produce
`a block with n bits, where n=qk. Since the repeater has an
`irregular output, different bits in the block may be repeated a
`different number of times. For example, a fraction of the bits in
`the block may be repeated two times, a fraction of bits may be
`repeated three times, and the remainder of bits may be repeated
`four times. These fractions define a degree sequence, or degree
`profile, of the code.
`
`
`The inner coder 206 may be a linear rate-1 coder, which
`means that then-bit output block x can be written as x=TIw,
`where TI is a nonsingular n×n matrix. The inner coder 210 can
`have a rate that is close to 1, e.g., within 50%, more preferably
`10% and perhaps even more preferably within 1% of 1.
`
`Id. at 2:41–64 (emphasis omitted). Codes characterized by a regular repeat
`of message bits into a resulting codeword are referred to as “regular repeat,”
`
`
`1 The “rate” of an encoder refers to the ratio of the number of input bits to
`the number of resulting encoded output bits related to those input bits. See
`Pet. 9.
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`5
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`IPR2017-00219
`Patent 7,116,710 B1
`whereas codes characterized by irregular repeat of message bits into a
`resulting codeword are referred to as “irregular repeat.” The second
`(“inner”) encoder 206 performs an “accumulate” function. Thus, the two
`step encoding process illustrated in Figure 2, including a first encoding
`(“outer encoding”) followed by a second encoding (“inner encoding”),
`results in either a “regular repeat accumulate” (“RRA”) code or an “irregular
`repeat accumulate (“IRA”) code, depending upon whether the repetition in
`the first encoding is regular or irregular.
`Figure 4 of the ’710 patent, reproduced below, shows an alternative
`embodiment in which the first encoding is carried out by a low density
`generator matrix.
`
`
`
`Figure 4 of the ’710 patent is a schematic of an irregular repeat and
`accumulate coder using a low density generator matrix (LDGM)2 coder. Id.
`at 2:20–21, 3:25. The LDGM coder “performs an irregular repeat of the k
`bits in the block, as shown in FIG. 4.” Id. at 3:52–54. LDGM codes are a
`special class of low density parity check codes that allow for less encoding
`
`2 A “generator” matrix (typically referred to by “G”) is used to create
`(generate) codewords. A parity check matrix (typically referred to by “H”)
`is used to decode a received message.
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`Patent 7,116,710 B1
`and decoding complexity. LDGM codes are systematic linear codes
`generated by a “sparse” generator matrix. No interleaver (as in the Figure 2
`embodiment) is required in the Figure 4 embodiment because the LDGM
`provides scrambling otherwise provided by the interleaver.
`
`C. Illustrative Claims
`Apple challenges claims 1–8, 10–17, and 19–33 of the ’710 patent, of
`which claims 1, 11, 15, and 25 are independent. Pet. 21. Claims 1, 3, 11,
`15, and 25 are illustrative of the claims at issue and are reproduced below:
`1. A method of encoding a signal, comprising:
`obtaining a block of data in the signal to be encoded;
`partitioning said data block into a plurality of sub-blocks,
`each sub-block including a plurality of data elements;
`first encoding the data block to from a first encoded data
`block, said first encoding including repeating the data elements
`in different sub-blocks a different number of times;
`interleaving the repeated data elements in the first encoded
`data block; and
`second encoding said first encoded data block using an
`encoder that has a rate close to one.
`3.
`The method of claim 1, wherein said first encoding is
`carried out by a first coder with a variable rate less than one, and
`said second encoding is carried out by a second coder with a rate
`substantially close to one.
`11. A method of encoding a signal, comprising:
`receiving a block of data in the signal to be encoded, the
`data block including a plurality of bits;
`first encoding the data block such that each bit in the data
`block is repeated and two or more of said plurality of bits are
`
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`IPR2017-00219
`Patent 7,116,710 B1
`repeated a different number of times in order to form a first
`encoded data block; and
`second encoding the first encoded data block in such a way
`that bits in the first encoded data block are accumulated.
`15. A coder comprising:
`a first coder having an input configured to receive a stream
`of bits, said first coder operative to repeat said stream of bits
`irregularly and scramble the repeated bits; and
`a second coder operative to further encode bits output from
`the first coder at a rate within 10% of one.
`25. A coding system comprising:
`a first coder having an input configured to receive a stream
`of bits, said first coder operative to repeat said stream of bits
`irregularly and scramble the repeated bits;
`a second coder operative to further encode bits output from
`the first coder at a rate within 10% of one in order to form an
`encoded data stream; and
`a decoder operative to receive the encoded data stream and
`decode the encoded data stream using an iterative decoding
`technique.
`Ex. 1201, 7:14–25, 7:28–32, 7:51–69, 8:1–6, 8:32–41.
`
`D. The Alleged Grounds of Unpatentability
`The information presented in the Petition sets forth the grounds of
`unpatentability of claims 1–8, 10–17, and 19–33 of the ’710 patent as
`follows (see Pet. 34–71):
`
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`IPR2017-00219
`Patent 7,116,710 B1
`
`Reference(s)
`Divsalar3 and Luby4
`Divsalar, Luby, and Luby975
`Divsalar, Luby, and Pfister
`Slides6
`Divsalar, Luby, Luby97, and
`Pfister Slides
`
`Basis
`§ 103(a)
`§ 103(a)
`
`§ 103(a)
`
`§ 103(a)
`
`Claim(s) Challenged
`1–8 and 11–14
`15–17, 19–22, and 24–33
`
`10
`
`23
`
`II. ANALYSIS
`A. Claim Interpretation
`We interpret claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); Cuozzo Speed Techs. LLC v. Lee,
`136 S. Ct. 2131, 2144–46 (2016). In applying a broadest reasonable
`construction, claim terms generally are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. See In re Translogic Tech., Inc., 504 F.3d
`
`
`3 Dariush Divsalar, et al., Coding Theorems for “Turbo-Like” Codes,
`PROCEEDINGS OF THE THIRTY-SIXTH ANNUAL ALLERTON CONFERENCE ON
`COMMUNICATION, CONTROL, AND COMPUTING, Sept. 23–25, 1998, at 201–
`209 (Ex. 1203, “Divsalar”).
`4 “Luby, M., et al, Analysis of Low Density Codes and Improved Designs
`Using Irregular Graphs, PROCEEDINGS OF THE THIRTIETH ANNUAL ACM
`SYMPOSIUM ON THEORY OF COMPUTING, May 23–26, 1997, at 249–258 (Ex.
`1204, “Luby”).
`5 Luby, M. et al., Practical Loss-Resilient Codes, PROCEEDINGS OF THE
`TWENTY-NINTH ANNUAL ACM SYMPOSIUM ON THEORY OF COMPUTING,
`May 4–6, 1997, at 150–159 (Ex. 1211, “Luby97”).
`6 Pfister, H., et al, The Serial Concatenation of Rate-1 Codes Through
`Uniform Random Interleavers, Presentation at Allerton Conference, Sept.
`22–24, 1999 (Ex. 1205, “Pfister Slides”).
`9
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`1249, 1257 (Fed. Cir. 2007). Any special definition for a claim term must
`be set forth in the specification with reasonable clarity, deliberateness, and
`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`1. “close to one” (claims 1 and 3)
`Apple argues that the broadest reasonable construction of “close to
`one” as recited in claims 1 and 3 is “within 50% of one.” Pet. 24–25. Apple
`argues that this is consistent with the ’710 patent specification, which states
`that the inner code 210 of Figure 1, “can have a rate that is close to one, e.g.,
`within 50%, more preferably 10% and perhaps even more preferably within
`1% of 1.” Pet. 24–25 (quoting Ex. 1201, 2:62–64 and citing Ex. 1206
`¶¶ 102–103). Caltech does not provide an express claim construction.
`For purposes of this Decision, we agree with Apple, determining that
`“close to one” as recited in claims 1 and 3 is construed as “within 50% of
`one.”
`
`B. Discretion to Institute Under 35 U.S.C. § 325(d)
`“Congress did not mandate that an inter partes review must be
`instituted under certain conditions. Rather, by stating that the Director—and
`by extension, the Board—may not institute review unless certain conditions
`are met, Congress made institution discretionary.” Intelligent Bio-Systems,
`Inc. v. Illumina Cambridge Ltd., Case IPR2013-00324, slip op. 4 (PTAB
`Nov. 21, 2013) (Paper 19). The Board’s discretion is guided by 35 U.S.C.
`§ 325(d), which provides, in part that:
`MULTIPLE PROCEEDINGS -- . . . In determining whether to
`institute or order a proceeding under this chapter, chapter 30, or
`chapter 31, the Director may take into account whether, and
`reject the petition or request because, the same or substantially
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`the same prior art or arguments previously were presented to the
`Office.7
`Accordingly, institution of an inter partes review is discretionary. See, e.g.,
`NVIDIA Corp. v. Samsung Elec. Co., Case IPR2016-00134 (PTAB May 4,
`2016) (Paper 9).
`Caltech asserts that the instant petition presents substantially the same
`prior art and arguments presented to the Board in Case Nos. IPR2015-00067
`and IPR2015-00068, both previously denied institution. Prelim. Resp. 3–6.
`Based on the facts and circumstances of this case, we decline to exercise our
`discretion under 35 U.S.C. § 325(d).
`We begin by noting that Apple was not a party to the prior IPRs and
`was sued for infringement of the ’710 patent by Caltech in May of 2016,
`which was after the decisions denying institution in IPR2015-00067 and
`IPR2015-00068. Pet. 3. Although not determinative, this factor weighs in
`favor of not exercising our discretion. Caltech argues that Apple recycles
`substantially the same prior art and arguments IPR2015-00067 and
`IPR2015-00068, which presented grounds based on Divsalar and U.S. Patent
`No. 6,081,909 issued to Luby. Prelim. Resp. 5–6. Although the present
`petitions differ in prior art, e.g., replacing a patent issued to Luby in
`IPR2015-00068 with the Luby reference in the present case, and different
`claims are challenged, Caltech argues that these changes are immaterial and
`fall within § 325(d). Prelim. Resp. 5–6.
`
`
`7 Although this provision appears in Chapter 32 of the Patent Act, which is
`directed to post-grant reviews, by its terms it is applicable also to
`proceedings under Chapter 31, which covers inter partes review
`proceedings.
`
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`Patent 7,116,710 B1
`Although similar art and arguments were asserted in IPR2015-00067
`and IPR2015-00068, we are persuaded that the present case brought by
`Apple, a different petitioner, challenging additional claims, and presenting
`arguments not fully addressed in the prior IPRs does warrant denial of the
`petition pursuant to § 325(d). Accordingly, we decline to deny Apple’s
`petition pursuant to the discretion in 35 U.S.C. § 325(d).
`
`C. Printed Publication Prior Art
`Caltech contends that Apple has not established that Frey, Divsalar,
`and the Pfister Slides are prior art. Prelim. Resp. 6–17. We address each of
`these allegations in turn below.
`1. Divsalar (Ex. 1203)
`With respect to Divsalar, Apple relies on the Board’s prior final
`written decision in IPR2015-00059 that found that Divsalar qualifies as prior
`art under 35 U.S.C. § 102(b) because the balance of evidence appeared to
`show that it was published before the effective filing date of the ’710 patent.
`Pet. 25–26 (citing Hughes Network Sys. v. Cal. Inst. of Tech., Case
`IPR2015-00059, slip op 13–22 (PTAB April 21, 2016) (Paper 42)
`(“IPR2015-00059 FWD”)). Apple also cites to Exhibit 1215 as “explaining
`that Divsalar was available to the public by March 30, 1999.” Id.
`Nonetheless, Exhibit 1215 is a table of contents for conference proceedings
`that do not contain any reference to Divsalar. Ex. 1215. To the extent
`Apple erred and intended to cite Exhibit 1212 (see Prelim. Resp. 9), the
`Declaration of Fradenburgh, Apple relies on the same declaration from a
`librarian prepared for use in IPR2015-00059, as evidence that Divsalar was
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`publicly available by April 30, 1999, in the University of Texas library. See
`Ex. 1212 ¶ 7; see also IPR2015-00059 FWD at 13–22.
`Caltech argues that Apple “misapprehends the scope of the Board’s
`prior decision in IPR2015-00059,” which did not find Divsalar to be a prior
`art printed publication based solely on the Fradenburgh Declaration (Ex.
`1212). Prelim. Resp. 9. We agree with Caltech that our previous
`determination regarding the prior art status of Divsalar was made under the
`particular factual and procedural circumstances of that case. IPR2015-
`00059 FWD at 13–22. In particular, our Final Written Decision in IPR2015-
`00059 relied, in part, on Caltech’s waiver of its objection to the Fradenburgh
`declaration and subsequent failure to move to strike the declaration. See
`IPR2015-00059 FWD at 31 (denying Caltech’s motion to strike
`Ms. Fradenburgh’s testimony on the basis of no timely evidentiary
`objection); Prelim. Resp. 9. Furthermore, our findings in IPR2015-00059
`relied on additional evidence, properly before the Board, in support of
`Divsalar as a prior art printed publication.
`Based on the evidence at this stage of the proceeding, Divisalar
`appears to be part of conference proceedings related to the 36th Allerton
`Conference held September 23–25, 1998. Ex. 1203, 1. The Fradenburgh
`declaration provides some evidence that Divsalar was available to the public
`on April 30, 1999.” See Exhibit 1212, 2. Although we find that Apple
`presents sufficient evidence at this stage of the proceeding to meet the
`burden that Divsalar is a prior art printed publication for purposes of this
`Decision, we expect that Apple’s evidence in support of Divsalar’s prior art
`status will be more completely evaluated in the context of a trial based on
`the complete record in this case.
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`2. Pfister Slides (Ex. 1205)
`Apple contends that Paul Siegel presented the Pfister Slides at the
`Allerton Conference in September 1999. Pet. 32 (citing Declaration of Paul
`Siegel, Ex. 1220, 3). Caltech correctly argues that Apple’s Petition is devoid
`of any explanation or argument as to why or how the Pfister Slides qualify
`as prior art. Prelim. Resp. 13–14. Indeed, Apple’s petition makes no
`attempt to show how the Pfister Slides qualify as a “printed publication”
`under 35 U.S.C. § 311(b), which limits IPRs to challenges based on patents
`and printed publications.
`Under 35 U.S.C. § 311(b), IPR challenges are limited to patents and
`printed publications. We look to the underlying facts to make a legal
`determination as to whether a reference is a printed publication. Suffolk
`Techs., LLC v. AOL Inc., 752 F.3d 1358, 1364 (Fed. Cir. 2014). The
`determination of whether a given reference qualifies as a prior art “printed
`publication” involves a case-by-case inquiry into the facts and circumstances
`surrounding its disclosure to members of the public. In re Klopfenstein, 380
`F.3d 1345, 1350 (Fed. Cir. 2004). The key inquiry is whether the reference
`was made “sufficiently accessible to the public interested in the art” before
`the critical date. In re Cronyn, 890 F.2d 1158, 1160 (Fed. Cir. 1989); In re
`Wyer, 655 F.2d 221, 226 (CCPA 1981). “A given reference is ‘publicly
`accessible’ upon a satisfactory showing that such document has been
`disseminated or otherwise made available to the extent that persons
`interested and ordinarily skilled in the subject matter or art exercising
`reasonable diligence, can locate it.” Bruckelmyer v. Ground Heaters, Inc.,
`445 F.3d 1374, 1378 (Fed. Cir. 2006) (citation omitted). With respect to
`slide presentations, Federal Circuit case law and a prior opinion from our
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`Board have found that the mere presentation of slides at a professional
`conference is not per se a prior art printed publication. Klopfenstein, 380
`F.3d at 1349 n.4; Temporal Power Ltd. v. Beacon Power, LLC, Case
`IPR2015-00146, slip op. at 8–11 (PTAB April 27, 2015) (Paper 10).
`In the present case, Apple’s evidence and argument in support of
`Pfister is insufficient to establish that the Pfister Slides qualify as a prior art
`printed publication. Pet. 32 (citing Ex. 1220 at 3). See, e.g., In re
`Klopfenstein, 380 F.3d at 1350 (addressing slide presentation); Temporal
`Power Ltd., IPR2015-00146 at 8–11. Despite Professor Siegel’s testimony
`that he presented the Pfister Slides at the Allerton Conference (see Ex. 1220,
`3), Apple makes no attempt to explain the manner in which the Pfister Slides
`were published or how the Pfister Slides were made accessible to the
`relevant public. Thus, Apple fails to meet the burden imposed under
`§ 314(a) to establish in its Petition a reasonable likelihood of success, which
`includes, among other things, making a threshold showing that the Pfister
`Slides are a prior art printed publication. Accordingly, we find that Apple
`has not demonstrated a likelihood of showing that grounds based on the
`Pfister Slides render the challenged claims unpatentable.
`
`D. Obviousness based on Luby and Divsalar: Claims 1–8 and 11–14
`Apple contends that claims 1–8 and 11–14 are obvious over the
`combination of Divsalar and Frey. Pet. 42–60 (citing Ex. 1206 ¶¶ 399–456).
`1. Divsalar
`Divsalar discloses “turbo-like” coding systems that are built from
`fixed convolutional codes interconnected with random interleavers,
`including both parallel concatenated convolutional codes and serial
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`concatenated convolutional codes as special cases. Ex. 1203, 1. With fixed
`component codes and interconnection topology, Divsalar demonstrates that
`as the block length approaches infinity, the ensemble (over all possible
`interleavers) maximum likelihood error probability approaches zero, if the
`ratio of energy per bit to noise power spectral density exceeds some
`threshold. Id.
`The general class of concatenated coding systems is depicted in
`Figure 1 of Divsalar as follows:
`
`
`
`Figure 1 illustrates that encoders C2, C3, and C4 are preceded by
`interleavers (permuters) P2, P3, and P4, except C1, which is connected to an
`input rather than an interleaver. Id. at 2–3. The overall structure must have
`no loops and, therefore, is called a “turbo-like” code. Id.
`Divsalar further discloses that “turbo-like” codes are repeat and
`accumulate (RA) codes. Id. at 5. The general scheme is depicted in
`Figure 3 as follows:
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`Figure 3 illustrates that information block of length N is repeated q
`times, scrambled by interleaver of size qN, and then encoded by a rate 1
`accumulator. Id. The accumulator can be viewed as a truncated rate-1
`recursive convolutional encoder. Id. Figure 3 further illustrates a simple
`class of rate 1/q serially concatenated codes where the outer code is a q-fold
`repetition code and the inner code is a rate 1 convolutional code with a
`transfer function 1/(1+ D). Id. at 1, 5.
`2. Luby
`Luby discloses derivation of irregular random graphs that improve
`upon the performance of Gallager’s low-density parity-check (LDPC) codes,
`and finds that irregular codes described in the paper resulted in codes with
`improved error correcting capabilities. Ex. 1204, 257. Luby discloses that
`irregular codes are represented by random irregular bipartite graphs, while
`regular codes are represented using regular graphs derived from Gallager
`codes based on sparse bipartite graphs. Id. at 249.
`Luby discloses that irregular codes are those represented by bipartite
`graphs in which different message nodes have different degrees (i.e., where
`different message nodes are connected to different numbers of check nodes).
`Luby. Id. at 257. Luby further states that message nodes with high degree
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`tend to correct their value quickly and then provide good information for
`check nodes. Id. at 253.
`
`3. Analysis
`Apple contends that claims 1–8 and 11–14 are obvious over the
`combination of Divsalar and Luby and provide an articulated reasoning with
`rational underpinning in support of the combination of Divsalar and Luby.
`Pet. 34–55 (citing Ex. 1206 ¶¶ 127–456). Apple contends that Luby was a
`significant advance in error-correcting codes using irregularity to design
`codes that were superior to regular codes. Id. at 34–35. Apple cites Frey,8
`which credits Luby for providing motivation to study irregular codes, in
`particular citing Luby’s advancements regarding irregular Gallager codes.
`Id. at 35 (citing Ex. 1202, 1 (discussing reference [1])). Apple notes that
`Luby is expressly discussed as motivation to incorporate irregularity into
`turbo-like codes, and identifies the codes in Divsalar as such turbo-like
`codes. Id. (citing Ex. 1206 ¶ 401). Apple argues that a person of ordinary
`skill following Frey “would have understood that incorporating irregularity
`into RA codes would be even more likely to produce favorable results. Id. at
`36 (citing Ex. 1206 ¶ 403). Apple relies on the Khandekar thesis (Ex. 1218),
`a thesis written by a co-inventor of the ’710 patent, to support the rationale
`to combine Divsalar and Luby. Pet. 35. Finally, Apple argues that a person
`of ordinary skill in the art would have combined Luby and Divsalar “for
`research” purposes to “study irregularity.” Id. at 36.
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`8 Brendan J. Frey and David J.C. MacKay, Irregular Turbocodes,
`PROCEEDINGS OF THE 37TH ALLERTON CONFERENCE ON COMMUNICATION,
`CONTROL, AND COMPUTING (1999) at 241–248 (Ex. 1202, “Frey).
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`Caltech argues that Apple’s argument for the combination “fails for
`being based on a fundamental misapprehension of the difference between
`‘irregular graphing’ of Luby and irregular repetition of information bits prior
`to interleaving, as recited in the [challenged] claims.” Prelim. Resp. 31–33.
`In addition, Caltech argues that Apple relies on non-prior art references,
`Frey (Ex. 1202) and the Khandekar thesis (Ex. 1218), to support the
`rationale to combine Divsalar and Luby. Prelim. Resp. 32–35; see Pet. 35.
`Caltech also contends that Apple’s argument that Luby and Divsalar could
`be combined to research and study irregularity by applying them to RA
`codes is unsupported hindsight analysis. Prelim. Resp. 35–36.
`We agree with Caltech that Apple’s arguments and evidence
`regarding the Khandekar thesis (Ex. 1218) and its arguments regarding
`combining the references for research purposes are unavailing. See Pet. 36
`(citing Ex. 1206 ¶ 404). Apple provides no arguments or evidence that
`explains how the thesis supports its contention about how or why a person of
`ordinary skill in the art would modify or combine Luby and Divsalar at the
`time of the ’710 patent. Indeed, Apple has not explained adequately why the
`thesis of a co-inventor of the ’710 patent, which appears to postdate the ’710
`patent’s priority date, is timely corroborating evidence of the application of
`Luby’s teachings to Divsalar by a person of ordinary skill in the art at the
`time of patenting. Similarly, Apple’s argument and evidence regarding
`research motivating the combination is not supported adequately by the
`declarant testimony (Ex. 1206 ¶ 405).
`Although we give no weight to Apple’s arguments regarding the
`researching of irregularity and the Khandekar thesis as motivations to
`combine, we nonetheless determine, on this record, that Apple has presented
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`sufficient evidence and argument that modifying Divsalar using the
`irregularity in the Tanner graphs disclosed in Luby would have been within
`the skill of a person of ordinary skill in the art and an easy modification.
`Pet. 23 (level of ordinary skill), 37–41 (ease of implementation).
`With respect to the limitations of independent claims 1 and 11 of the
`’710 patent, Apple contends that Divsalar teaches each of the encoding
`limitations, and relies on Luby to teach irregularity as it appears in the
`challenged claims. Pet. 41–55. Apple cites Figure 3 of Divsalar, noting the
`repeat, interleave, and accumulate steps used in the RA coder. Pet. 43–44
`(citing Ex. 1206 ¶¶ 416–418). With respect to the partitioning step of
`claim 1, Apple argues that Luby describes introducing irregularity by
`varying the degree of the message nodes in the Tanner graph. Pet. 46–47.
`Apple provides testimony and analysis that the irregular repeater of Luby
`adapted to Divsalar would de facto partition information into sub-blocks of
`bits with different degrees of repetition. Pet. 46–47. For claim 11, which
`does not recite partitioning, Apple relies on Luby in combination with
`Divsalar to teach that the information bits can be repeated a different number
`of time. Pet. 53–54.
`Caltech argues that Apple’s evidence that irregular repeating
`necessarily or de facto yields partitioning as recited in claim 1 is not
`supported by the record. Prelim. Resp. 14–15. On this record, we find that
`Apple has presented sufficient information to demonstrate a likelihood of
`showing that the irregular repeat teaches partitioning the data into blocks and
`sub-blocks based on the degree of repetition. Pet. 46–47.
`With respect to Luby teaching irregular repetition, Caltech, relying on
`the Declaration of Dr. Tanner (Ex. 2001), argues that Apple’s petition and
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`supporting declarant misunderstand the teachings of Luby. Prelim.
`Resp. 19–31. Caltech offers testimonial evidence from Dr. Tanner that
`Luby’s irregular graphing, which relies on Tanner graphing, does not teach
`irregular repeating, as Luby discloses repeating info bits and check bits. Id.
`at 19–31. Caltech, relying on Dr. Tanner, contends that irregular graphs
`such as those in Luby can be generated by regular repetition information. Id.
`at 28–29 (citing Ex. 2001 ¶ 31). Because the graphed “irregular codes” as
`described in Luby can be represented by regular repeating information bit
`graphs, Caltech contends that Luby does not teach irregular repeating or
`expressly disclose such repeating. Id. at 26, 28–29. Specifically, Caltech
`asserts “Luby’s disclosure of codes with irregular graphs includes codes
`with regular repetition of information bits, so Luby does not expressly
`disclose irregular repetition of information bits.” Id. at 30.
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