UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Cisco Systems, Inc.,
`Petitioner
`
`Case IPR2016-
`
`U.S. Patent No. 8,718,158
`
`DECLARATION OF DR. JOSE TELLADO, UNDER
`37 C.F.R. § 1.68 IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT NO. 8,718,158
`
`COMCAST-1 009
`
`Comcast Cable communications LLC, et. al. V. TQ Delta
`
`Page 1 of 99
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`TABLE OF CONTENTS
`
`Introduction .................................................................................................... ..4
`
`II.
`
`III.
`
`IV.
`
`Background and Qualifications ..................................................................... ..6
`
`Level of Ordinary Skill in the Pertinent Art .................................................. ..7
`
`Relevant Legal Standards ............................................................................ .. 10
`
`The ’l58 Patent ............................................................................................ ..12
`
`A.
`
`B.
`
`C.
`
`Overview ........................................................................................... .. 12
`
`Prosecution History of the ’ 158 Patent ............................................. .. 18
`
`Priority Date of the ’ 1 5 8 Patent......................................................... .. 1 8
`
`VI.
`
`Claim Construction ...................................................................................... ..18
`
`A.
`
`B.
`
`“multicarrier” ..................................................................................... ..18
`
`“transceiver” ...................................................................................... ..20
`
`VII.
`
`Challenge #1: Claims 1, 2, 4, 15, 16, & 18 are Unpatentable Over
`Shively and Stopler ...................................................................................... ..23
`
`A.
`
`B.
`
`C.
`
`D.
`
`Overview of Shively .......................................................................... ..23
`
`Overview of Stopler .......................................................................... ..25
`
`Reasons to Combine Shively and Stopler ......................................... ..27
`
`Detailed Analysis .............................................................................. ..30
`
`VIII.
`
`Challenge #2: Claims 3, 5, 14, 17, 19, and 28-30 are unpatentable
`over Shively, Stopler, and Gerszberg .......................................................... ..6l
`
`A.
`
`B.
`
`C.
`
`Overview of Gerszberg ..................................................................... ..61
`
`Reasons to Combine Shively and Stopler with Gerszberg ............... ..62
`
`Detailed Analysis .............................................................................. ..66
`
`Challenge #3: Claims 6, 9, 10, 12, 20, 23, 24, and 26 are unpatentable
`over Shively, Stopler, and Bremer .............................................................. ..72
`
`A.
`
`B.
`
`C.
`
`Overview of Bremer .......................................................................... ..73
`
`Reasons to Combine Shively and Stopler with Bremer .................... ..73
`
`Detailed Analysis .............................................................................. ..76
`
`Challenge #4: Claims 8, 11, 13, 22, 25 and 27 are unpatentable over
`Shively, Stopler, Bremer, and Gerszberg .................................................... ..85
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`A.
`
`Reasons to Combine Shively, Stopler, and Bremer with
`Gerszberg ........................................................................................... ..86
`
`B.
`
`Detailed Analysis .............................................................................. ..86
`
`XI.
`
`Challenge #5: Claims 7 and 21 are Unpatentable over Shively,
`Stopler, Bremer, and Flammer .................................................................... ..89
`
`A.
`
`B.
`
`Overview of Flammer ....................................................................... ..89
`
`Reasons to Combine Shively, Stopler, and Bremer with
`Flammer ............................................................................................. ..90
`
`C.
`
`Detailed Analysis .............................................................................. ..92
`
`XII. Conclusion ................................................................................................... ..98
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`I, Dr. Jose Tellado, do hereby declare as follows:
`
`I.
`
`INTRODUCTION
`
`1.
`
`I have been retained as an independent expert declarant on behalf of
`
`Cisco Systems, Inc. (“Cisco”) for the above—captioned Petition for Inter Partes
`
`Review (“IPR”) of U.S. Patent No. 8,718,158 (“the ’158 patent”). I am being
`
`compensated at my usual and customary rate for the time I spend in connection
`
`with this IPR. My compensation is not affected by the outcome of this matter.
`
`2.
`
`I have been asked to provide my opinions regarding whether claims 1-
`
`30 (“the Challenged Claims”) of the ’158 patent are invalid as they would have
`
`been obvious to a person having ordinary skill in the art (“POSITA”) at the time of
`
`the alleged invention. It is my opinion that all of the limitations of claims 1-30
`
`would have been obvious to a POSITA after reviewing the Shively, Stopler,
`
`Gerszberg, and Bremer references, as discussed further below.
`
`3.
`
`The ’158 patent issued on May 6, 2014, from U.S. Patent Appl. No.
`
`13/303,417 (“the ’4l7 Application”), filed on November 23, 2011. The ’417
`
`Application is a continuation of application No. 12/783,725, filed on May 20,
`
`2010, now U.S. Pat. No. 8,090,008, which is a continuation of U.S. Patent Appl.
`
`No. 12/255,713, filed Oct. 22, 2008, now U.S. Pat. No. 7,769,104, which is a
`
`continuation of U.S. Patent Appl. No. 11/863,581, filed Sep. 28, 2007, now U.S.
`
`Pat. No. 7,471,721, which is a continuation of U.S. Appl. No. 11/211,535, filed
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`Aug. 26, 2005, now U.S. Pat. No. 7,292,627, which is a continuation of U.S. Patent
`
`Appl. No. 09/710,310, filed Nov. 9, 2000, now U.S. Pat. No. 6,961,369.
`
`4.
`
`The ’ 1 58 patent also claims the benefit of U.S. Provisional
`
`Application No. 60/164,134, filed on November 9, 1999.
`
`5.
`
`The face of the ’15 8 patent names Marcos C. Tzannes as the
`
`purported inventor. Further, the face of the ’ 158 patent identifies TQ Delta, LLC as
`
`the initial assignee of the ’158 patent.
`
`6.
`
`In preparing this Declaration, I have reviewed:
`
`a)
`
`b)
`
`c)
`
`the ’158 patent, EX. 1001;
`
`the file history of the ‘158 patent, EX. 1002;
`
`the file histories of the patent applications to which the ’ 1 58
`
`patent claims priority, EX. 1003-1008; and
`
`d)
`
`the prior art references discussed below, EX. 1011-1013, 1017,
`
`and 1019.
`
`7.
`
`In forming the opinions expressed in this Declaration, I relied upon
`
`my education and experience in the relevant field of art, and have considered the
`
`Viewpoint of a POSITA, as of November 9, 1999 (the earliest claimed priority
`
`date). I have also considered:
`
`a)
`
`the documents listed above,
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`b)
`
`the additional documents and references cited in the analysis
`
`below,
`
`c)
`
`the relevant legal standards, including the standard for
`
`obviousness, and
`
`(1)
`
`my knowledge and experience based upon my work in this area
`
`as described below.
`
`8.
`
`I understand that claims in an IPR are given their broadest reasonable
`
`interpretation in View of the patent specification and the understandings of a
`
`POSITA. I further understand that this is not the same claim construction standard
`
`as one would use in a District Court proceeding.
`
`9.
`
`Unless otherwise noted, all bold italics emphasis in any quoted
`
`material has been added.
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`
`10. My qualifications are set forth in my curriculum Vitae, a copy of
`
`which is attached as EX. 1010 submitted with this declaration. As set forth in my
`
`curriculum vitae:
`
`l 1.
`
`I received a Ph.D. in Electrical Engineering from Stanford in 1999.
`
`The topic of my Ph.D. dissertation was peak—to-average ratio (PAR) power
`
`reduction for multicarrier modulation. I also received a Master of Science degree in
`
`Electrical Engineering from Stanford in 1994 and a Bachelor of Science degree in
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`Telecommunication Engineering from the University of Santiago de Compostela
`
`(Spain) in 1992.
`
`12.
`
`I have over twenty years of experience in a wide range of technologies
`
`and industries relating to signal processing and data communication. My industry
`
`experience includes development of multicarrier modulation advancements using
`
`technologies such as Discrete Multitone Modulation (DMT) and Quadrature
`
`Amplitude Modulation (QAM).
`
`13.
`
`I am listed as an inventor on over sixty patent applications, of which
`
`over thirty of the patent applications have been issued as patents.
`
`14.
`
`I authored the book “Multicarrier Modulation with Low PAR:
`
`Applications to DSL and Wireless” that was published in 2000. I am an author of
`
`fifteen IEEE publications, which include subject matter in the areas of XDSL,
`
`WiMAX, and Ethernet communication technologies. I submitted several PAR
`
`reduction contributions to XDSL standards at ANSI T1E1.4, ETSI TM6 and ITU. I
`
`was a key contributor to IEEE standardization efforts relating to 802.16 (WiMAX)
`
`and 802.3 an (10GBase-T).
`
`III. LEVEL OF ORDINARY SKILL IN THE PERTINENT ART
`
`15.
`
`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
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`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 ’ 158 patent.
`
`16.
`
`I am very familiar with the knowledge and capabilities that a person
`
`of ordinary skill in the art (POSITA) of multicarrier communications would have
`
`possessed during the late l990’s, especially as it relates to managing the peak—to-
`
`average ratio (PAR) of multicarrier signals. Specifically, through my PhD research
`
`work I interacted with numerous individuals working on reducing PAR for
`
`multicarrier communication systems, such as digital subscriber line (DSL). I
`
`attended meetings of the group that drafted the ANSI T1 .413 standard for
`
`asymmetric DSL (ADSL). At those meetings, I met and worked with engineers
`
`practicing in the industry who were actively working in the area of multicarrier
`
`communications.
`
`17.
`
`These experiences during the relevant timeframe allowed me to
`
`become personally familiar with the knowledge and capabilities of a POSITA in
`
`the area of multicarrier communications. Unless otherwise stated, my testimony
`
`below refers to the knowledge of a POSITA in the field of multicarrier
`
`communications during the time period around the priority date of the ’ 158 patent.
`
`18.
`
`In my opinion, the level of a POSITA needed to have the capability of
`
`understanding multicarrier communications and engineering principles applicable
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`to the ’158 patent is (i) a Master’s degree in Electrical and/or Computer
`
`Engineering, or equivalent training, and (ii) approximately five years of experience
`
`working with multicarrier communications systems. Lack of work experience can
`
`be remedied by additional education, and vice versa. This level of education and
`
`experience, in my opinion, represents the average education and experience level
`
`of the engineers working on multicarrier communications around November 1999.
`
`Such academic or 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 ofthe ’ 158 patent
`
`requires an appreciation of digital communications using discrete multitone (DMT)
`
`signals, and an appreciation for the potential for such multicarrier signals to have a
`
`high peak-to-average ratio, causing clipping during transmission. 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 ’158 patent.
`
`19.
`
`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 November
`
`1999.
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`IV. RELEVANT LEGAL STANDARDS
`
`20.
`
`I understand that prior art to the ’158 patent includes patents and
`
`printed publications in the relevant art that predate the earliest claimed priority date
`
`of the alleged invention recited in the ’158 patent.
`
`21.
`
`I understand that a claim is invalid if it is anticipated. Anticipation of
`
`a claim requires that every element of a claim be disclosed expressly or inherently
`
`in a single prior art reference, arranged in the prior art reference as arranged in the
`
`claim.
`
`22.
`
`I also understand that a claim is invalid if it would have been obvious.
`
`Obviousness of a claim requires that the claim would have been obvious from the
`
`perspective of a POSITA at the time the alleged invention was made. I understand
`
`that a claim could have been obvious from a single prior art reference or from a
`
`combination of two or more prior art references.
`
`23.
`
`I understand that an obviousness analysis requires an understanding of
`
`the scope and content of the prior art, any differences between the alleged
`
`invention and the prior art, and the level of ordinary skill in evaluating the
`
`pertinent art.
`
`24.
`
`I further understand that certain factors may support or rebut the
`
`obviousness of a claim. I understand that such secondary considerations include,
`
`among other things, commercial success of the patented invention, skepticism of
`
`10
`
`

`
`Declaration of Dr. Jose Tellado Under 37 CFR. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`those having ordinary skill in the art at the time of invention, unexpected results of
`
`the invention, any long~felt but unsolved need in the art that was satisfied by the
`
`alleged invention, the failure of others to make the alleged invention, praise of the
`
`alleged invention by those having ordinary skill in the art, and copying of the
`
`alleged invention by others in the field. I understand that there must be a nexus—a
`
`connection—between any such secondary considerations and the alleged invention.
`
`I also understand that contemporaneous and independent invention by others is a
`
`secondary consideration tending to show obviousness.
`
`25.
`
`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
`
`mere substitution of one element for another known in the field and that
`
`combination yields predictable results. While it may be helpful to identify a reason
`
`for this combination, common sense should guide and no rigid requirement of
`
`finding a teaching, suggestion, or motivation to combine is required. When a
`
`product is available, design incentives and other market forces can prompt
`
`variations of it, either in the same field or different one. If a POSITA can
`
`implement a predictable variation, obviousness likely bars its patentability. For the
`
`same reason, if a technique has been used to improve one device and a POSITA
`
`would recognize that it would improve similar devices in the same way, using the
`
`technique would have been obvious. I understand that a claim would have been
`
`11
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`obvious if common sense would have directed a POSITA to combine multiple
`
`prior art references or add missing features to reproduce the alleged invention
`
`recited in the claims.
`
`26.
`
`I am not aware of any allegations by the named inventor of the ’158
`
`patent or any assignee of the ’ 158 patent that any secondary considerations tend to
`
`rebut the obviousness of any Challenged Claim of the ’158 patent.
`
`V.
`
`THE ’158 PATENT
`
`A.
`
`Overview
`
`27.
`
`The ’l58 patent relates “to communications systems using
`
`multicarrier modulation.” Ex. 1001, 1:28-29. More specifically, the ’158 patent
`
`states that “the present invention features a system and a method that scrambles the
`
`phase characteristics of the modulated carrier signals in a transmission signal.” EX.
`
`1001, 2:36-38. This phase scrambling is described in the context of a digital
`
`subscriber line (DSL) communication system that includes a discrete multitone
`
`(DMT) transmitter. Ex. 1001, 3:27-31. While the purpose of the phase scrambling
`
`is not identified in the claims, the specification states that the phase scrambling is
`
`used to “produce a transmission signal with a reduced PAR.” Ex. 1001, Abstract.
`
`28.
`
`Fig. 1 of the ’158 patent illustrates a functional block diagram of an
`
`exemplary communication system capable of the claimed techniques.
`
`12
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`EX. 1001, FIG. 1
`
`'"
`
`'
`
`‘
`
`Phase
`E
`fscmmbler
`5
`p
`‘
`38
`/ Modulalm A
`*
`
`Receiver
`Phase _
`Descxambter
`
`.
`_:
`
`66.
`
`
`
`Receiver
`
`Transceiver 11)
`
`‘
`
`;
`
`Transmitter
`
`Remote
`Yranscelvor
`14.
`
`29.
`
`In the ’158 patent, the “conventional multicarrier communication
`
`systems” employ “multicarrier modulation or Discrete Multitone Modulation
`
`(DMT).” EX. 1001, 1:35-38. Multicarrier modulation and Discrete Multitone
`
`Modulation are described as communications that use a transmission signal
`
`“having a plurality of carrier signals.” Ex. 1001, 3:27-31. The plurality of carrier
`
`signals used for the transmission are also referred to interchangeably as “carriers,”
`
`“sub-channels” or “tones.” Ex. 1001, 1:38 (“carrier signals (carriers) or
`
`subchannels”), 3:34-36 (“Although described with respect to discrete multitone
`
`modulation, the principles of the invention also apply to other types of multicarrier
`
`modulation. . ..”) (emphasis added).
`
`30.
`
`The ’ 158 patent describes in its Background section that “generating a
`
`transmission signal with a Gaussian probability distribution is important in order to
`
`transmit a transmission signal with a low peak-to—aVerage ratio (PAR), or peak—to-
`
`13
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`average power ratio.” Ex. 1001, 1:64-67. And, in the Background section, the
`
`’158 patent indicates that a low PAR is desirable because “[a]n increased PAR can
`
`result in a system with high power consumption and/or with high probability of
`
`clipping the transmission signal.” EX. 1001, 2:27-29. Accordingly, in conventional
`
`multicarrier communication systems, the PAR of a transmission signal “is an
`
`important consideration in the design of the DMT communication system because
`
`the PAR of a signal affects the communication system’s total power consumption.”
`
`Ex.1001, 2:12-16.
`
`31. As part of DMT modulation, the communication systems in the ’158
`
`patent employ quadrature amplitude modulation or QAM. EX. 1001, 3:65-4:11.
`
`The ’158 patent describes how each of the multiple carrier signals is modulated to
`
`convey data using quadrature amplitude modulation (QAM). Ex. 1001, 3:65-4:11.
`
`QAM is a prior art technique, which a POSITA would have been familiar with,
`
`that manipulates both the amplitude and phase of the carrier. By using multiple
`
`amplitudes and phase shifts, one or more bits of data can be modulated onto the
`
`carrier simultaneously. A specific amplitude and phase combination is sometimes
`
`referred to as a QAM symbol, and the relationship between these QAM symbols
`
`and the data that they represent is called a constellation. Depicted below is an
`
`example of a 16-level QAM constellation showing 16 different combinations of
`
`phase and amplitude, each of which would represent a distinct 4-bit value.
`
`14
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`O
`
`O
`
`O
`
`O
`
`O
`
`0
`
`
`
`0000
`O
`
`0100
`O
`
`1100
`O
`
`1000
`O
`
`0001
`
`0101
`
`1101
`
`1001
`
`O
`
`O
`
`O
`
`O
`
`1
`j
`
`1
`
`0
`
`O
`
`0011
`O
`
`0111
`O
`
`1111
`O
`
`1011
`O
`
`0010
`
`0110
`
`1110
`
`1010
`
`32.
`
`The transceiver of the ’158 patent includes a QAM encoder 42. Ex.
`
`1001, Fig. 1. The QAM encoder 42 receives “an input serial data bit stream 54”
`
`and uses the data bit stream to generate “QAM symbols 5 8.” Ex. 1001, 3:65-67.
`
`For instance, the ’158 patent describes that “the QAM encoder 42 maps the input
`
`serial data bit stream 54 into N parallel quadrature amplitude modulation (QAM)
`
`constellation points 58, or QAM symbols 58” where “N represents the number of
`
`carrier signals generated by the modulator 46.” EX. 1001, 423-7. The ’158 patent
`
`also describes that the QAM encoder 42 can vary the number of bits per symbol
`
`using BAT 44 component which “is in communication with the QAM encoder 42
`
`to specify the number of bits carried by each carrier signal.” Ex. 1001, 427-9. And,
`
`like other conventional DMT systems, the ’158 patent acknowledges that the
`
`“QAM symbols 58 represent the amplitude and the phase characteristic of each
`
`carrier signal.” Ex. 1001, 4:9-11.
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`33.
`
`In order to modulate the QAM symbols 58 onto the N carrier signals,
`
`the ’158 patent employs modulator 46. Ex. 1001, 4:12-30. Modulator 46 is another
`
`component of the transceiver shown in Fig. 1 and “modulates each carrier signal
`
`with a different QAM symbol 58.” Ex. 1001, 4:15-16. And, according to the ’158
`
`patent, this modulation yields a conventional result where “carrier signals have
`
`phase and amplitude characteristics based on the QAM symbol 58 and therefore
`
`based on the input-bit stream 54.” Ex. 1001, 4:16-19.
`
`34.
`
`The ’l5 8 patent fiirther describes how a “bit scrambler is often used in
`
`the DMT transmitter to scramble the input data bits before the bits are modulated
`
`to assure that the transmitted data bits are random and, consequently, that the
`
`modulation of those bits produces a DMT transmission signal with a Gaussian
`
`probability distribution.” Ex. 1001, 1:57-61.
`
`35.
`
`The ’l58 provisional patent Application (Ex. 1008) describes in its
`
`Background that phases of the modulated carriers “may not be random enough to
`
`generate a ‘Gaussian distributed’ transmitted signal.” EX. 1008, p. 1. The ’158
`
`patent allegedly addresses this problem by including “a phase scrambler.” Ex.
`
`1001, 1:62-3:5. The “phase scrambler” “combines a phase shift computed for each
`
`QAM-modulated carrier signal with the phase characteristic of that carrier signal.
`
`EX. 1001, 4:31-34.
`
`16
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`36.
`
`Independent claim 1 is generally representative of the Challenged
`
`Claims:
`
`1. In a multicarrier modulation system including a first
`
`transceiver in communication with a second transceiver
`
`using a transmission signal having a plurality of carrier
`
`signals for modulating a plurality of data bits, each carrier
`
`signal having a phase characteristic associated with at least
`
`one bit of the plurality of data bits, a method for scrambling
`
`the phase characteristics of the carrier signals comprising:
`
`transmitting the plurality of data bits from the first
`
`transceiver to the second transceiver;
`
`associating a carrier signal with a value determined
`
`independently of any bit of the plurality of data bits carried
`
`by the carrier signal, the value associated with the carrier
`
`signal determined by a pseudo-random number generator;
`
`determining a phase shift for the carrier signal at
`
`least based on the value associated with the carrier signal;
`
`modulating at least one bit of the plurality of data
`
`bits on the carrier signal;
`
`modulating the at least one bit on a second carrier
`
`signal of the plurality of carrier signals.
`
`17
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`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`B.
`
`Prosecution History of the ’158 Patent
`
`37.
`
`I have reviewed the prosecution history of the ’158 patent and it is my
`
`understanding that none of the references cited in this declaration have been
`
`substantively considered by the United States Patent Office.
`
`C.
`
`Priority Date of the ’158 Patent
`
`38.
`
`I have been informed that the earliest claimed priority date for the
`
`’158 patent is November 9, 1999.
`
`VI. CLAIM CONSTRUCTION
`
`39.
`
`It is my understanding that in order to properly evaluate the ’ 158
`
`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.
`
`40.
`
`In order to construe the claims, I have reviewed the entirety of the
`
`’ 158 patent along with its prosecution history.
`
`A.
`
`“multicarrier”
`
`41.
`
`The term “multicarrier” appears in each of claims 1-30 either directly
`
`or by dependency.
`
`18
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`42.
`
`The ’158 patent’s specification does not provide an express definition
`
`for the term “multicarrier.” However, the background of the ’ 158 patent states:
`
`“In a conventional multicarrier communications system,
`
`transmitters communicate over a communication channel using
`
`multicarrier modulation or Discrete Multitone Modulation
`
`(DMT). Carrier signals (carriers) or sub—channels spaced
`
`within a usable frequency band of the communication
`
`channel are modulated at a symbol (i.e., block) transmission
`
`rate of the system. An input signal, which includes input data
`
`bits, is sent to a DMT transmitter, such as a DMT modem. The
`
`DMT transmitter typically modulates the phase characteristic,
`
`or phase, and amplitude of the carrier signals using an Inverse
`
`Fast Fourier Transform (IFFT) to generate a time domain
`
`signal, or transmission signal, that represents the input signal.
`
`The DMT transmitter transmits the transmission signal, which
`
`is a linear combination of the multiple carriers, to a DMT
`
`receiver over the communication channel.”
`
`EX. 1001, 1:35-49.
`
`43.
`
`A POSITA would have been familiar with the concept of an Inverse
`
`Fast Fourier Transform (IFFT) based multicarrier, which is described by the ’ 158
`
`patent as a “conventional multicarrier communication system.” Ex. 1001, 1:35-47.
`
`The general purpose of a multicarrier—as the specification suggests—is to
`
`communicate using multiple carrier signals. As identified by the ’l58 patent, it
`
`19
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`was known that Discrete Multitone (DMT) used multiple carriers for data
`
`transmission.
`
`44. While the ’ 1 58 patent uses the term “multicarrier” in the context of
`
`DMT, a multicarrier is not limited to DMT. For example, as described by the ’158
`
`patent’s specification, a multicarrier may also be implemented in technologies
`
`other than DMT:
`
`Although described with
`
`respect
`
`to discrete multitone
`
`modulation, the principles of the invention apply also to other
`
`types of multicarrier modulation, such as, but not limited to,
`
`orthogonally multiplexed quadrature amplitude modulation
`
`(OQAM), discrete wavelet multitone (DWMT) modulation, and
`
`orthogonal frequency division multiplexing (OFDM).
`
`Ex. 1001, 3:34-39.
`
`45.
`
`Consistent with these statements, I believe that a POSITA would have
`
`understood that the broadest reasonable interpretation of “multicarrier” includes
`
`“multiple carriers” that are not limited to any particular modulation technology.
`
`B.
`
`“transceiver”
`
`46.
`
`The term “transceiver” appears in claims 1-28.
`
`47.
`
`Claims 1 refers to the claimed transceiver “transmitting” a plurality of
`
`data bits.
`
`20
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`48.
`
`The ’158 patent’s specification does not provide an express definition
`
`for the term “transceiver.” However, the ’158 patent specification states that a
`
`“transceiver” may include a discrete multitone (DMT) transmitter and receiver, but
`
`that the transceiver may also be implemented using modulation technology other
`
`than DMT:
`
`FIG.
`
`1 shows a digital subscriber line (DSL) communication
`
`system 2 including a discrete multitone (DMT) transceiver 10
`
`in communication with a remote transceiver
`
`14 over a
`
`communication channel 18 using a transmission signal 38
`
`having a plurality of carrier signals. The DMT transceiver 10
`
`includes a DMT transmitter 22 and a DMT receiver 26. The
`
`remote transceiver 14 includes a transmitter 30 and a receiver
`
`34. Although described with respect to discrete multitone
`
`modulation, the principles of the invention apply also to other
`
`types of multicarrier modulation, such as, but not limited to,
`
`orthogonally multiplexed quadrature amplitude modulation
`
`(OQAM), discrete wavelet multitone (DWMT) modulation, and
`
`orthogonal frequency division multiplexing (OFDM).
`
`Ex. 1001, 3:27-39.
`
`49.
`
`The ’158 patent specification also states that a “transceiver” may be a
`
`modem, such as a wireless modem that uses an air communication channel:
`
`The
`
`communication channel
`
`18 provides
`
`a downstream
`
`transmission path from the DMT transmitter 22 to the remote
`
`receiver 34, and an upstream transmission path from the remote
`
`21
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`transmitter 30 to the DMT receiver 26. In one embodiment, the
`
`communication channel 18 is a pair of twisted wires of a
`
`telephone
`
`subscriber
`
`line.
`
`In
`
`other
`
`embodiments,
`
`the
`
`communication channel 18 can be a fiber optic wire, a quad
`
`cable, consisting of two pairs of twisted wires, or a quad cable
`
`that is one of a star quad cable, a Dieselhorst-Martin quad
`
`cable, and the like.
`
`In a wireless communication system
`
`wherein the transceivers 10, 14 are wireless modems,
`
`the
`
`communication channel 18 is the air through which the
`
`transmission signal 38 travels between the transceivers 10, 14.
`
`Ex. 1001, 3:40-53.
`
`50.
`
`The ’158 patent specification also refers to transmitting data using a
`
`DMT modem:
`
`An input signal, which includes input data bits,
`
`is sent to a
`
`DMT transmitter,
`
`such as a DMT modem. The DMT
`
`transmitter typically modulates the phase characteristic, or
`
`phase, and amplitude of the carrier signals using an Inverse Fast
`
`Fourier Transform (IFFT) to generate a time domain signal, or
`
`transmission signal, that represents the input signal. The DMT
`
`transmitter transmits the transmission signal, which is a linear
`
`combination of the multiple carriers, to a DMT receiver over
`
`the communication channel.
`
`EX. 1001, 1:41-49.
`
`51. A POSITA would have understood that the word “transceiver” is a
`
`combination of the words transmitter and receiver. Consistent with this
`
`22
`
`

`
`Declaration of Dr. Jose Tellado Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 8,718,158
`
`understanding, a contemporary technical dictionary, Newton ’s Telecom Dictionary
`
`(13th ed.), defines a “transceiver” as “any device that transmits and receives.” Ex.
`
`1 0 1 6, p. 709.
`
`52.
`
`B