UNITED STATES PATENT AND TRADEMARK OFFICE
`
`———————
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
`
`
`
`
`
`Cisco Systems, Inc.,
`Petitioner
`
`———————
`
`Case IPR2016-_____
`
`U.S. Patent No. 8,238,412
`
`_____________________
`
`
`
`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. 8,238,412
`
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`Exhibit 1009 Page 1
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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. 8,238,412
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`TABLE OF CONTENTS
`
`I.
`
`II.
`
`Introduction .................................................................................................... 4
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`Background and Qualifications ...................................................................... 7
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`III. Understanding of Patent Law ......................................................................... 9
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`IV. The ’412 Patent ............................................................................................. 12
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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
`
`A.
`
`B.
`
`C.
`
`D.
`
`E.
`
`“frequency domain received idle channel noise information” ........... 17
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`“during Showtime” ............................................................................. 20
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`“array” ................................................................................................ 22
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`“transceiver” ....................................................................................... 23
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`Other Relevant Terms ........................................................................ 25
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`VII. Detailed Invalidity Analysis ........................... Error! Bookmark not defined.
`
`A.
`
`Background on Prior Art References ................................................. 30
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`1.
`
`2.
`
`3.
`
`4.
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`Background on Milbrandt ........................................................ 30
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`Background on Chang ............................................................. 31
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`Background on Hwang ............................................................ 32
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`Background on ANSI T1.413-1995 ......................................... 33
`
`B.
`
`Claims 1-21 are Obvious over Milbrandt, Hwang, and ANSI
`T1.413 ................................................................................................ 34
`
`1.
`
`2.
`
`3.
`
`Reasons to Combine Milbrandt and Chang ............................. 34
`
`Reasons to Combine Milbrandt/Chang with Hwang ............... 40
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`Reasons to Combine Milbrandt/Chang/Hwang with
`ANSI T1.413 .................................................
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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. 8,238,412
`
`VIII. Challenges ...................................................... Error! Bookmark not defined.
`
`A.
`
`B.
`
`Claims 1-8, 13, 14, 19, and 20, are obvious over the
`combination of Milbrandt, Hwang, and ANSI T1.413. ..................... 47
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`Claims 9-12, 15-18, and 21, are obvious over the combination
`of Milbrandt, Chang, Hwang, and ANSI T1.413 ............................. 104
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`IX. Conclusion .................................................................................................. 166
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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. 8,238,412
`
`I, Sayfe Kiaei, do hereby declare as follows:
`
`I.
`
`INTRODUCTION
`
`1.
`
`I have been retained as an independent expert witness on behalf of
`
`Cisco Systems, Inc. (“Cisco”) for the above-captioned Petition for Inter Partes
`
`Review (“IPR”) of U.S. Patent No. 8,238,412 (“the ’412 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.
`
`I have been asked to provide my opinions regarding whether claims 1-
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`21 (“the Challenged Claims”) of the ’412 patent are invalid as they would have
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`been obvious to a person having ordinary skill in the art (“POSITA”) at the time of
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`the alleged invention. It is my opinion that all of the limitations of claims 1-21
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`would have been obvious to a POSITA after reviewing the Milbrandt, Chang,
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`Hwang and ANSI T1.413 references, as discussed further below.
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`3.
`
`The ’412 patent issued on August 7, 2012, from U.S. Patent Appl. No.
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`12/779,660, filed May 13, 2010. The ’660 Application is a continuation U.S.
`
`Patent Appl. No. 12/477,742, filed on Jun. 3, 2009, which is a continuation of U.S.
`
`Patent Appl. No. 10/619,691, filed July 16, 2003, which is a continuation of U.S.
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`Patent Appl. No. 09/755,173, filed on January 8, 2001. The ’412 patent also claims
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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. 8,238,412
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`the benefit of U.S. Provisional Application No. 60/224,308, filed on August 10,
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`2000, and U.S. Provisional Application No. 60/174,865, filed on January 7, 2000.1
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`4.
`
`The face of the ’412 patent names David M. Krinsky and Robert
`
`Edmund Pizzano, Jr., as the inventors. Further, the face of the ’412 patent
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`identifies Aware, Inc., as the assignee of the ’412 patent.
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`5.
`
`In preparing this Declaration, I have reviewed:
`
`a)
`
`b)
`
`c)
`
`the ’412 patent, Ex. 1001;
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`the file history of the ’412 patent, Ex. 1003;
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`the file histories of the patent applications to which the ’412
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`patent is related, Ex. 1002 and 1004-1008;
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`d)
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`the prior art references discussed below: Ex. 1011 (Milbrandt),
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`Ex. 1012 (Chang), Ex. 1013, (Hwang), and Ex. 1014 (ANSI
`
`T1.413) ; and
`
`e)
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`selected portions of these references, as discussed below:
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`• Charles K. Summers, ADSL Standards, Implementation, and
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`Architecture (CRC Press 1999) (“Summers”),
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`1 Although it does not appear that the ’412 patent claims are entitled to the
`
`provisional date of January 7, 2000, this declaration presents prior art and analysis
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`which demonstrates that the Challenged Claims would have been obvious even as
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`of the provisional date.
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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. 8,238,412
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`• Walter Goralski, ADSL and DSL Technologies (McGraw-Hill
`
`1998) (“Goralski”),
`
`• Harry Newton, Newton’s Telecom Dictionary, 16th Ed. (2000)
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`(“Newton’s”),
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`• Valerie Illingworth and John Daintith, The Facts on File
`
`Dictionary of Computer Science (Market House Books 2001)
`
`(“Illingworth”),
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`• Thomas Starr, John M. Cioffi, Peter J. Silverman,
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`Understanding Digital Subscriber Line Technology, (Prentice
`
`Hall 1999) (“Starr”),
`
`• Andrew S. Tanenbaum, Computer Networks (Prentice Hall
`
`1996) (“Tanenbaum”),
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`• B. P. Lathi, Modern Digital and Analog Communication
`
`Systems (Oxford University Press 1998) (“Lathi”), and
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`• Behzad Razavi, RF Microelectronics (Prentice Hall 1997)
`
`(“Razavi”).
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`6.
`
`In forming the opinions expressed in this Declaration, I relied upon
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`my education and experience in the relevant field of art, and have considered the
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`viewpoint of a POSITA, as of January 7, 2000. I have also considered:
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`a)
`
`the documents listed above,
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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. 8,238,412
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`b)
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`the additional documents and references cited in the analysis
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`below,
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`c)
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`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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`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
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`which is attached as Ex. 1010 to this declaration. 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.
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`
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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. 8,238,412
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`10.
`
`I have been a Professor at Arizona State University (ASU) since 2001.
`
`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
`
`Energy Research and Director of NSF Connection One Research Center with a
`
`focus on integrated communication systems.
`
`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.
`
`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
`
`capacity, I was responsible for the development of RF and transceiver integrated
`
`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
`
`State University.
`
`14.
`
`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,
`
`I am an IEEE Fellow, and have been the Chair and on the Technical Program
`
`Committee of several IEEE conferences including RFIC, MTT, ISCAS and other
`
`international conferences.
`
`15.
`
`In total, I have more than thirty years of experience in research,
`
`development, design, commercialization, evaluation, and testing, of wireless
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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. 8,238,412
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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.
`
`I have published more than 100 journal and conference papers and
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`have been awarded several U.S. patents.
`
`17.
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`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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`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 ’412 patent includes patents and
`
`printed publications in the relevant art that predate the priority date of the alleged
`
`invention recited in the ’412 patent. I have applied the date of January 7, 2000, the
`
`filing date of the earliest provisional application in the chain of continuing
`
`applications resulting in the ’412 patent, as the priority date. I understand,
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`however, that the ’412 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.
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`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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`
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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. 8,238,412
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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
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`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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`22.
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`I further understand that certain factors may support or rebut the
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`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
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`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.
`
`I further understand that a claim would have been obvious if it unites
`
`old elements with no change to their respective functions, or alters prior art by
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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. 8,238,412
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`mere substitution of one element for another known in the field and that
`
`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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`suggestion, or motivation to combine is required. When a product is available,
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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 ’412
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`patent or any assignee of the ’412 patent that any secondary considerations tend to
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`rebut the obviousness of any Challenged Claim of the ’412 patent.
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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. 8,238,412
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`26.
`
`I understand that in considering obviousness, it is important not to
`
`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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`IV. THE ’412 PATENT
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`28. The ’412 patent relates to a “diagnostic information transmission
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`mode allow[ing] for two modems to exchange diagnostic and/or test information
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`that may not otherwise be exchangeable during normal communication.” ’412
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`patent, Abstract. The ’412 patent states that “[i]n the diagnostic link mode, the RT
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`[remote terminal] modem sends diagnostic and test information in the form of a
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`collection of information bits to the CO [central office] modem that are, for
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`example, modulated by using one bit per DTM [discrete multi-tone] symbol
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`modulation.” Id., 3:47-50. “Other exemplary modulation techniques include
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`Differential Phase Shift Keying (DPSK) on a subset or all the carriers, as specified
`
`in, for example, ITU standard G.994.1, higher order QAM [quadrature amplitude
`
`modulated] modulation (>1 bit per carrier), or the like.” Id., 3:53-56.
`
`29. The ’412 patent shows in Table 1, below, “an example of a data
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`message that can be sent by the RT to the CO during the diagnostic link mode.”
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`Id., 4:28-30.
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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. 8,238,412
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`’412 patent, 4:5-27.
`
`30. The ’412 patent describes communicating digital data using discrete
`
`
`
`multitone (DMT) signals. Those of skill in the art would have been familiar with
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`DMT, as it had been employed for over five years in various communication
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`systems, including asymmetric digital subscriber line (ADSL) standards such as
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`ANSI T1.413-1995 and ITU G.992.1. Summers, 26-27; ANSI T1.413, 1-2. DMT
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`divides the available communication bandwidth (range of frequencies) into
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`multiple distinct subchannels (or subcarriers). Goralski, 187. Ea
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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. 8,238,412
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`tested for its characteristic signal attenuation (or the reciprocal, its signal gain) and
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`for noise. Id., 188. The amount of data encoded into each subchannel is then
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`tailored to the subchannel’s characteristics. A subchannel with a strong signal and
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`low noise will have more bits of data encoded into it than another subchannel with
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`a weaker signal or greater noise. These ideas are illustrated in the figure below.
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`
`
`Goralski, Fig. 8-6, 189.
`
`
`
`31. As discussed above, the ’412 patent purports to provide for
`
`transmitting test or diagnostic information from one modem to another modem.
`
`32.
`
`Independent claim 1 is representative of the Challenged Claims:
`
`1. A transceiver capable of transmitting test information
`over
`a
`communication
`channel using multicarrier
`modulation comprising:
`
`a transmitter portion capable of transmitting a message,
`
`wherein the message comprises one or more data variables that
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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. 8,238,412
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`represent the test information, wherein bits in the message are
`modulated onto DMT symbols using Quadrature Amplitude
`Modulation (QAM) with more than 1 bit per subchannel and
`wherein at least one data variable of the one or more data
`variables comprises an array representing power level per
`subchannel information.
`
`V. LEVEL OF ORDINARY SKILL IN THE PERTINENT ART
`
`33.
`
`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.
`
`34.
`
`I understand there are multiple factors relevant to determining the
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`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
`
`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 ’412 patent.
`
`35.
`
`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,
`
`especially as it pertains to testing lines for their support of multi
`
`
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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. 8,238,412
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`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 ’412 patent.
`
`36.
`
`In my opinion, the level of a POSITA needed to have the capability of
`
`understanding multicarrier communications and engineering principles applicable
`
`to the ’412 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
`
`example, an understanding of the ’412 patent requires an appreciation of digital
`
`communications using discrete multitone (DMT) signals. 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 ’412 patent.
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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. 8,238,412
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`37. For purposes of this Declaration, in general, and unless otherwise
`
`noted, my statements and opinions, such as those regarding my experience and the
`
`understanding of a POSITA generally (and specifically related to the references I
`
`consulted herein), reflect the knowledge that existed in the field as of January
`
`2000.
`
`VI. BROADEST REASONABLE INTERPRETATION
`
`38.
`
`It is my understanding that in order to properly evaluate the ’412
`
`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
`
`the inventor, as a lexicographer, has set forth a special meaning for a term.
`
`39.
`
`In order to construe the claims, I have reviewed the entirety of the
`
`’412 patent along with its prosecution history.
`
`A.
`
`“frequency domain received idle channel noise
`information”
`
`40. The term “frequency domain received idle channel noise information”
`
`appears in each of claims 16-18.
`
`41. The ’412 patent does not provide an express definition for the term
`
`“frequency domain received idle channel noise information,” nor does the
`
`specification use this term.
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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. 8,238,412
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`42. The specification refers to portions of the overall term in several
`
`places. For example, the specification mentions “average idle channel noise” in a
`
`bulk enumeration of various types of message variables:
`
`’412 patent, 4: 4:5-27.
`
`
`
`43. The specification also mentions a “frequency domain received idle
`
`channel” as part of a bulk enumeration of kinds of test information:
`
`The diagnostic and/or test information can include, but is not
`limited to, the version number of the diagnostic link mode, the
`length of
`the diagnostic
`and/or
`test
`information,
`the
`communications standard, such as the ADSL standard, the chipset
`type, the vendor identifications, the ATU version number, the time
`domain received reverb signal, the frequency domain r
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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. 8,238,412
`
`the amplifier settings, the CO transmitter power spectral density,
`the frequency domain received idle channel, the signal to noise
`ratio, the bits and gains and the upstream and downstream
`transmission rates, or the like.
`’412 patent, 6:2-13.
`44. The ’412 specification does not, however, describe how “average idle
`
`channel noise” is measured, nor does it explain what tests are performed to gather
`
`information about “the frequency domain received idle channel.”
`
`45. A POSITA would have known that a waveform or signal represented
`
`in “time domain” can be converted to “frequency domain” representation. Time
`
`domain graphs show how the signal changes over time. Frequency-domain graphs
`
`show the signal in each given frequency band over a range of frequencies. Fourier
`
`Transformation—which is a mathematical operation—converts the time domain
`
`signal into a sum of sine waves at different frequencies, each of which represents a
`
`frequency component. Newton’s., 377. Thus, “frequency domain” refers generally
`
`to analysis of a signal on a frequency basis.
`
`46. Those of skill in the art also would have been familiar with the
`
`concept of an “idle channel noise,” which is a term commonly used within the
`
`telecommunications industry to refer to noise that exists in a communication path
`
`“when no signals are present.” See Newton’s, 438. This same concept is sometimes
`
`also referred to as “background noise.” See Id., 97.
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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. 8,238,412
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`47. As discussed above, those of skill in the art would have been familiar
`
`with the discrete multitone (DMT) techniques described in the ’412 patent, which
`
`allow for the number of bits encoded into each subchannel to be tailored to the
`
`noise present in that subchannel. Using DMT, fewer (or no) bits can be encoded
`
`into subchannels with lower signal to noise ratio. Also, a POSITA would have
`
`been familiar not to assign any bits to a subchannel, or not to send any signal in an
`
`idle subchannel. If there signal is not present in that subchannel, only the idle
`
`channel noise is present.
`
`48. Bringing these concepts together, a POSITA would have understood
`
`the entire phrase “frequency domain received idle channel noise information” to
`
`refer to information about the background noise present in each of a plurality of
`
`frequency subchannels when the subchannels are not in use.
`
`B.
`
`“during Showtime”
`
`49. The term “during Showtime” appears in each of claims 13-15.
`
`50. Aside from the claims, the term “during Showtime” appears in the
`
`’412 patent specification in only two locations. In the first location, the
`
`specification references “a forward error correction or a CRC error during
`
`showtime, e.g., the normal steady state transmission mode, or the like.” ’412
`
`patent, 3:32-34. The second reference is to “Signal to Noise during Showtime” in
`
`
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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. 8,238,412
`
`Table 1 as one of the exemplary message variables that may be sent as diagnostic
`
`information:
`
`’412 patent, 4: 4:5-27.
`
`
`
`51. The ’412 specification does not, however, describe how the “Signal to
`
`Noise during Showtime” information is measured, nor does it explain what tests
`
`are performed to gather information about a signal to noise ratio “during
`
`Showtime.”
`
`
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`21
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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. 8,238,412
`
`52. Those of skill in the art would have been familiar with the concept of
`
`“Showtime,” which is a term of art in the DSL space used to refer to the mode that
`
`follows the completion of initialization and handshake equipment: “Following C-
`
`SEGUE3 the ATU-C has completed initialization and enters state C-
`
`SHOWTIME.” ANSI T1.413, 108. Showtime is used to describe the mode where
`
`the remote and the central office DSL modems can conduct normal
`
`communications over the access network. For example, a contemporary reference
`
`book on DSL communications states, “The connection is tested in both directions
`
`after which each modem notifies its peer that it is ready to enter normal
`
`communications, known in the standard as ‘showtime.’” Starr, 379. Also, the
`
`fact that the term “Showtime” is capitalized would suggest to a person of ordinary
`
`skill that the term is being used in accordance with its term of art meaning.
`
`53. Thus, a POSITA would have understood the phrase “during
`
`Showtime” to refer to during normal communications of an ANSI T1.413-
`
`compliant device.
`
`C.
`
`“array”
`
`54. The term “array” appears in each of claims 1-21.
`
`55. Aside from the claims, the term “array” appears in the ’412 patent
`
`specification only once:
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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. 8,238,412
`
`Many variables that represent the type of diagnostic and test
`information that are used to analyze the condition of the link are
`sent from the RT modem to the CO modem. These variables can
`be, for example, arrays with different lengths depending on, for
`example, information in the initiate diagnostic mode message.
`
`’412 patent, 4:40-45.
`
`56. Thus, the ’412 patent does not provide an express definition for the
`
`term “array,” but instead uses it according to its ordinary meaning.
`
`57.
`
`In my opinion, a POSITA would have been familiar with the term
`
`“array,” which is commonly used in both the computer and mathematical arts.
`
`Contemporary technical dictionaries define array as an “ordered collection of
`
`identical structures” (Newton’s, 71) or a “collection of data items … [that are]
`
`arranged in a particular order or pattern and are all of the same type.” (Facts on
`
`File Dictionary of Computer Science, 9).
`
`58. Consistent with these dictionary definitions and the usage of the term
`
`“array” in the ’412 patent specification, I believe that a POSITA would have
`
`understood the broadest reasonable interpretation of “array” to mean an ordered
`
`collection of multiple data items of the same type.
`
`D.
`
`“transceiver”
`
`59. The term “transceiver” appears in the preamble of each of claims 1-
`
`21.
`
`
`
`23
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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. 8,238,412
`
`60. A POSITA would have been familiar with the term “transceiver” as
`
`being a combination of the words “transmitter” and “receiver.” Consistent with this
`
`ordinary understanding, the ’412 patent specification states that a “transceiver” is
`
`also referred to as a modem and includes a transmitter and a receiver:
`
`For simplicity of reference, the systems and methods of the
`invention will hereafter refer to the transceivers generically as
`modems. One such modem is typically located at a customer
`premises such as a home or business and is "downstream" from a
`central office with which it communicates. The other modem is
`typically located at the central office and is "upstream" from the
`customer premises. Consistent with industry practice, the modems
`are often referred to as "ATU-R" ("ADSL transceiver unit,
`remote," i.e., located at the customer premises) and "ATU-C"
`("ADSL transceiver unit, central office" i.e., located at the central
`office). Each modem
`includes a
`transmitter section for
`transmitting data and a receiver section for receiving data, and is
`of the discrete multitone type, i.e., the modem transmits data over a
`multiplicity of subchannels of limited bandwidth.
`
`’412 patent, 1:63-2:10. A POSITA would have understood that a modem, which
`
`stands for modulator/demodulator, is a transceiver since it modulates and
`
`demodulates for the