. UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`Cisco Systems, Inc.,
`Petitioner
`
`Case IPR2016-
`
`U.S. Patent No. 7,835,430
`
`DECLARATION OF DR. SAYFE KIAEI, UNDER
`37 C.F.R. §- 1.68 IN SUPPORT OF PETITION FOR
`INTER PARTES REVIEW OF U.S. PATENT N0. 7,835,430
`
`1
`
`COMCAST-1 009
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`Comcast Cable Communications LLC, et. al.T V, TO Delta
`Page 1 of 88
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`

`
`Declaration of Dr. Sayfe Kiaei Under 37 CPR. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,835,430
`
`TABLE OF CONTENTS
`
`I.
`
`Introduction .................................................................................................. .. 4
`
`II.
`
`Background and Qualifications .................................................................... .. 7
`
`III. Understanding of Patent Law ....................................................................... .. 9
`
`IV.
`
`THE ’430 PATENT .................................................................................... .. 12
`
`V.
`
`Level of Ordinary Skill in the Pertinent Art ............................................... .. 15
`
`VI.
`
`Broadest Reasonable Interpretation ............................................................ .. 17
`
`A.
`
`B.
`
`C.
`
`“frequency domain received idle channel noise information” ......... .. 17
`
`“array” .............................................................................................. .. 20
`
`“transceiver” ..................................................................................... .. 21
`
`D.
`
`Other relevant terms ......................................................................... .. 23
`
`VII. Detailed Invalidity Analysis ....................................................................... .. 27
`
`A.
`
`Background on Prior Art References ............................................... .. 28
`
`1.
`
`2.
`
`3.
`
`4.
`
`Background on Milbrandt ...................................................... ..28
`
`Background on Chang ........................................................... ..29
`
`Background on Hwang .......................................................... ..30
`
`Background on ANSI Tl.413-1995 ....................................... ..31
`
`B.
`
`Claims 1-6 are Obvious over Milbrandt, Chang, Hwang, and
`ANSI T1.413 .................................................................................... .. 32
`
`1.
`
`2.
`
`3.
`
`Reasons to Combine Milbrandt and Chang ........................... ..32
`
`Reasons to Combine Milbrandt/Chang With Hwang ...............38
`
`Reasons to Combine Milbrandt/Chang/Hwang with
`ANSI T1.413 ......................................................................... ..40
`
`VIII. Challenges .................................................................................................. .. 43
`
`

`
`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. 7,835,430
`
`IX.
`
`Conclusion .................................................................................................. .. 88
`
`

`
`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § l.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,835,430
`
`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. 7,835,430 (“the ’430 patent”). I am being
`
`compensated at my usual and customary rate of $400 per hour for the time I spend
`
`in connection with this IPR. My compensation is not affected by the outcome of
`
`this IPR.
`
`2.
`
`I have been asked to provide my opinions regarding whether claims 1-
`
`6 (“the Challenged Claims”) of the ’430 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 1-6 would
`
`have been obvious to a POSITA after reviewing the Milbrandt, Chang, Hwang and
`
`ANSI Tl.4l3 references, as discussed further below.
`
`3.
`
`The ’430 patent issued on November 16, 2010, from U.S. Patent Appl.
`
`No. l2/477,742 (“the ’742 Application”), filed on June 3, 2009. The ’742
`
`Application is a continuation of U.S. Patent Appl. No. 10/619,691 (“the ’69l
`
`Application”), filed July 16, 2003, which is a continuation of U.S. Patent Appl. No.
`
`09/755,173, filed on January 8, 2001. The ’430 patent also claims the benefit of
`
`

`
`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. 7,835,430
`
`U.S. Provisional Application No. 60/224,308, filed on August 10, 2000, and U.S.
`
`Provisional Application No. 60/174,865, filed on January 7, 2000.1
`
`4.
`
`The face of the ’430 patent names David M. Krinsky and Robert
`
`Edmund Pizzano, Jr., as the inventors. Further, the face of the ’430 patent
`
`identifies Aware, Inc. as the assignee of the ’430 patent.
`
`5.
`
`In preparing this Declaration, I have reviewed:
`
`a)
`
`b)
`
`c)
`
`the ’43O patent, Ex. 1001;
`
`the file history of the ’430 patent, Ex. 1004;
`
`the file histories of the patent applications to which the ’430
`
`patent is related, EX. 1002-1003 and 1005-1008;
`
`(1)
`
`the prior art references discussed below: Ex. 1011 (Milbrandt),
`
`EX. 1012 (Chang), Ex. 1013 (Hwang), and Ex. 1014 (ANSI
`
`Tl.4l3); and
`
`e)
`
`selected portions of these references, as discussed below:
`
`° Charles K. Summers, ADSL Standards, Implementation, and
`
`Architecture (CRC Press 1999) (“Summers”),
`
`1 Although it does not appear that the ’430 patent claims are entitled to the
`
`provisional date of January 7, 2000, this declaration presents prior art and analysis
`
`which demonstrates that the Challenged Claims would have been obvious even as
`
`of the provisional date.
`
`

`
`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. 7,835,430
`
`' Walter Goralski, ADSL and DSL Technologies (McGraW-Hill
`
`1998) (“Goralski”),
`
`' Harry Newton, NeWton’s Telecom Dictionary, 16th Ed. (2000)
`
`(“Newton’s”),
`
`° Valerie Illingworth and John Daintith, The Facts on File
`
`Dictionary of Computer Science (Market House Books 2001)
`
`(“Illingworth”),
`
`° Thomas Starr, John M, Cioffi, Peter J. Silverman,
`
`Understanding Digital Subscriber Line Technology, (Prentice
`
`Hall 1999) (“Starr”),
`
`° Andrew S. Tanenbaum, Computer Networks (Prentice Hall
`
`1996) (“Tanenbaum”),
`
`° B. P. Lathi, Modern Digital and Analog Communication
`
`Systems (Oxford University Press 1998) (“Lathi”), and
`
`° Behzad Razavi, RF Microelectronics (Prentice Hall 1997)
`
`(“Razavi”).
`
`6.
`
`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 January 7, 2000. I have also considered:
`
`a)
`
`the documents listed above,
`
`

`
`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § 1.68 in Support of
`Petition for Inter Partes Review of US. Patent No. 7,835,430
`
`b)
`
`the additional documents and references cited in the analysis
`
`below,
`
`c)
`
`the relevant legal standards, including the standard for
`
`obviousness provided in and any additional authoritative
`
`documents as cited in the body of this declaration, and
`
`(1)
`
`my knowledge and experience based upon my work in this area
`
`as described below.
`
`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
`
`POSITA. I further understand that this is not the same claim construction standard
`
`as one would use in a District Court proceeding.
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`
`8.
`
`My qualifications are set forth in my curriculum vitae, a copy of
`
`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
`
`Washington State University-Northeastern in 1982, a M.S. in Electrical and
`
`Computer Engineering from Washington State University in 1984, and a PhD. in
`
`Electrical and Computer Engineering from Washington State University in 1987.
`
`

`
`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. 7,835,430
`
`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.
`
`ll.
`
`From 2009 to 2012, and concurrent with my position at ASU, I was
`
`the Associate Dean of Research at the Ira A. Fulton Schools of Engineering.
`
`12.
`
`From I993 to 2001, I was a senior member of technical staff with the
`
`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.
`
`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
`
`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
`
`

`
`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. 7,835,430
`
`technologies, products, and systems. My research interests include wireless
`
`transceiver design, RF, and mixed-signal IC’s in CMOS and SiGe.
`
`16.
`
`I have published more than 100 journal and conference papers and
`
`have been awarded several U.S. patents.
`
`17.
`
`I have organized and chaired international conferences on
`
`electrochemical capacitor technology and taught short courses at Electrochemical
`
`Society and IEEE meetings.
`
`III. UNDERSTANDING OFIPATENT 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
`
`understanding of the law was provided to me by Cisco’s attorneys.
`
`19.
`
`I understand that prior art to the ’430 patent includes patents and
`
`printed publications in the relevant art that predate the priority date of the alleged
`
`invention recited in the ’430 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 ’430 patent, as the priority date. I understand,
`
`however, that the ’430 patent claims may not be entitled to this earlier date, and
`
`that the actual entitled priority date may be later.
`
`20.
`
`I 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
`
`

`
`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. 7,835,430
`
`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.
`
`21.
`
`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.
`
`22.
`
`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
`
`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.
`
`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
`
`10
`
`

`
`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. 7,835,430
`
`mere substitution of one element for another known in the field and that
`
`combination yields predictable results. Also, I understand that obviousness does
`
`not require physical combination/bodily incorporation, but rather consideration of
`
`what the combined teachings would have suggested to persons of ordinary skill in
`
`the art at the time of the alleged invention.
`
`24. 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 obvious if common sense
`
`directs one to combine multiple prior art references or add missing features to
`
`reproduce the alleged invention recited in the claims.
`
`25.
`
`I am not aware of any allegations by the named inventor of the ’430
`
`patent or any assignee of the ’430 patent that any secondary considerations tend to
`
`rebut the obviousness of any Challenged Claim of the ’430 patent.
`
`ll
`
`

`
`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. 7,835,430
`
`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.
`
`27.
`
`The analysis in this declaration is in accordance with the above-stated
`
`legal principles.
`
`IV. THE ’430 PATENT
`
`28.
`
`The ’430 patent relates to a “diagnostic information transmission
`
`mode allow[ing] for two modems to exchange diagnostic and/or test information
`
`that may not otherwise be exchangeable during normal communication.” ’430
`
`patent, Abstract. The ’430 patent states that “[i]n the diagnostic link mode, the RT
`
`[remote terminal] modern sends diagnostic and test information in the form of a
`
`collection of information bits to the CO [central office] modem that are, for
`
`example, modulated by using one bit per DTM [discrete multi-tone] symbol
`
`modulation.” Id., 3:32-35. “Other exemplary modulation techniques include
`
`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 (>l bit per carrier), or the like.” Id., 3:3 8-41.
`
`29.
`
`The ’430 patent shows in Table 1, below, “an example of a data
`
`message that can be sent by the RT to the CO during the diagnostic link mode.”
`
`Id., 4:19-20.
`
`12
`
`

`
`Declaration of Dr. Sayfe Kiaei Under 37 CFR. § 1.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,835,430
`
`TABLE 1
`
`Exemplary Message Variables
`
`Data Sent in the Diag Link
`Train Type
`ADSL Standard
`
`Chip Type
`Vendor ID
`Code Version
`
`Average Reverb Received Signal
`Programmable gain amplifier (PGA) Gain — Training
`
`TABLE 1-continued
`
`Exemplary Message Variables
`
`Programmable gain amplifier PGA Gain - Showtime
`Filter Present during Idle Channel Calculation
`Average Idle Channel Noise
`Signal to Noise during Training
`Signal to Noise during Showtime
`Bits and Gains
`Data Rate
`
`Framing Mode
`Margin
`Reed-Solomon Coding Gain
`QAM Usage
`Frequency Domain Equalizer (PDQ) Coelficients
`Gain Scale
`
`Time domain equalizer (TDQ) Coefficients
`Digital Echo Canceller (DEC) Coeificients
`
`’430 patent, 3:56-4:17.
`The ’430 patent describes communicating digital data using discrete
`
`30.
`
`multitone (DMT) signals. Those of skill in the art would have been familiar with
`
`DMT, as it had been employed for over five years in Various communication
`
`systems, including asymmetric digital subscriber line (ADSL) standards such as
`
`13
`
`

`
`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. 7,835,430
`
`ANSI Tl.413—l995 and ITU G.992.1. Summers, 26-27; ANSI Tl.4l3, l-2. DMT
`
`divides the available communication bandwidth (range of frequencies) into
`
`multiple distinct subchannels (or subcarriers). Goralski, 187. Each subcarrier is
`
`tested for its characteristic signal attenuation (or the reciprocal, its signal gain) and
`
`for noise. Id., 188. The amount of data encoded into each subchannel is then
`
`tailored to the subchannel’s characteristics. A subchannel with a strong signal and
`
`low noise will have more bits of data encoded into it than another subchannel with
`
`a weaker signal or greater noise. These ideas are illustrated in the figure below.
`
`Ideal bits/channel
`
`
`l=ig:Ire 3-5
`
`DMT in operation
`
`Actual bits/channel
`
`Typical Loop Gain
`
`
`
`Frequency Range
`
`Frequency Range
`
`Frequency Range
`
`Ideal bits/channel
`
`
`
`Frequency Range
`
`Real Loop Gain
`
`Frequency Range
`(“Notch” from bridged tap
`Noise from AM radio station)
`
`Typical bits/channel
`
`
`
`Frequency Range
`
`Goralski, Fig. 8-6, 189.
`31. As discussed above, the ’43O 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:
`
`l. A transceiver capable of transmitting test
`
`information
`
`over
`
`a
`
`communication
`
`channel
`
`using multicarrier
`
`modulation comprising:
`
`14
`
`

`
`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. 7,835,430
`
`a transmitter portion capable of transmitting a message,
`
`wherein the message comprises one or more data Variables
`
`that 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 frequency domain received idle channel noise
`
`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 subj ect 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
`
`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 ’43O patent.
`
`l5
`
`

`
`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. 7,835,430
`
`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 multicarrier
`
`communications. Specifically, my experience in the industry, with colleagues from
`
`academia, and with engineers practicing in the industry during the relevant
`
`timeframe allowed me to becomelpersonally 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 ’430 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 ’430 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 ’430 patent requires an appreciation of digital
`
`16
`
`

`
`Declaration of Dr. Sayfe Kiaei Under 37 C.F.R. § l.68 in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,835,430
`
`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 ’430 patent.
`
`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 ’430
`
`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
`
`’430 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 1-6.
`
`17
`
`

`
`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. 7,835,430
`
`41.
`
`The ’430 patent does not provide an express definition for the term
`
`“frequency domain received idle channel noise information,” nor does the
`
`specification use this term. Aside from the claims, the term only appears in the
`
`’430 patent’s title.
`
`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:
`
`TABLE 1-continued
`
`Exemplary Message Variables
`
`Pro grannnablc gain amplifier PGA Gain - Showtime
`Filter Present during Idlc Channel Calculation
`\ Average Idle Channel Noise
`Signal to Noise during Tmining
`Signal to Noise during Showliime
`Bits and Gains
`Data Rate
`
`Framing Mode
`Margin
`Reed-Solomon Coding Gain
`QAM Usage
`Frequency Domain Equalizer (PDQ) Coefficients
`Gain Scale
`
`Time domain equalizer (TDQ) Coefficients
`Digital Echo Cancellcr (DEC) Coefficients
`
`’430 patent, 4:l—l7.
`
`43.
`
`The specification also mentions a “frequency domain received idle
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`channel” as part of a bulk enumeration of kinds of test information:
`
`The diagnostic and/or test
`
`information can include, but
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`is not
`
`limited to, the version number of the diagnostic link mode, the
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`length
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`of
`
`the
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`diagnostic
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`and/or
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`test
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`information,
`
`the
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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. 7,835,430
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`communications standard, such as the ADSL standard, the chipset
`
`type, the Vendor identifications, the ATU Version number, the time
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`domain received reverb signal, the frequency domain reverb signal,
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`the amplifier settings, the CO transmitter power spectral density,
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`the frequency domain received idle channel, the signal to noise
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`ratio,
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`the bits and gains and the upstream and downstream
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`transmission rates, or the like.
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`’430 patent, 5259-622.
`
`44.
`
`The ’430 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
`
`19
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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. 7,835,430
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`“when no signals are present.” See Newton’s, 438. This same concept is
`
`sometimes also referred to as “background noise.” See Id., 97.
`
`47. As discussed above, those of skill in the art would have been familiar
`
`with the discrete multitone (DMT) techniques described in the ’430 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
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`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 ofa plurality of
`
`frequency subchannels when the subchannels are not in use.
`
`B.
`
`“array”
`
`49.
`
`The term “array” appears in each of claims 1-6.
`
`50. Aside from the claims, the term “array” appears in the ’430 patent
`
`specification only once:
`
`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
`
`20'
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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. 7,835,430
`
`example, arrays with different lengths depending on, for example,
`
`information in the initiate diagnostic mode message.
`
`’430 patent, 4:30-35.
`
`51.
`
`Thus, the ’430 patent does not provide an express definition for the
`
`term “array,” but instead uses it according to its ordinary meaning.
`
`52.
`
`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.” (lllingworth,
`
`9).
`
`53.
`
`Consistent with these dictionary definitions and the usage of the term
`
`“array” in the ’430 patent specification, I believe that a POSITA would have
`
`understood the broadest reasonable interpretation of “array” to mean an ordered
`
`collection ofmultiple data items of the same type.
`
`C.
`
`“transceiver”
`
`54.
`
`The term “transceiver” appears in the preamble of each of claims 1-6.
`
`55.
`
`Claims 1, 3, and 5 each refer to the claimed transceiver transmitting
`
`information, and claim 1 recites that the transceiver includes a “transmitter
`
`portion.” Claims 2, 4, and 6 each refer to the claimed transceiver receiving
`
`information, and claim 2 recites that the transceiver includes a “receiver portion.”
`
`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. 7,835,430
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`56. 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’430 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.
`
`’43O patent, 1:48-62. A POSITA would have understood that a modem, which
`
`stands for modulator/demodulator, is a transceiver since it modulates and
`
`demodulates for the purpose of transmitting and receiving.
`
`57. A contemporary dictionary defines a transceiver as “Any device that
`
`transmits and receives.” Newton’s, 913.
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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. 7,835,430
`
`58. Accordingly, I believe that a POSITA would have understood that the
`
`broadest reasonable interpretation of “transceiver” is a device, such as a modern,
`
`with a transmitter and a receiver.
`
`59.
`
`I apply these constructions as the broadest reasonable constructions in
`
`View of the specification for purposes of this Declaration.
`
`D. Other relevant terms
`
`60.
`
`The ’430 patent and the prior art — Milbrandt, Chang, Hwang, and
`
`ANSI T1 .413 — describe communication systems that use Discrete Multitone
`
`Modulation (DMT). As DMT communication systems evolved, so did the terms
`
`that persons of ordinary skill in the art use to describe the system’s components
`
`and functions. Some of these terms are different, but are used interchangeably by
`
`those of ordinary skill in the art, and refer to the same component or function in the
`
`communication system. I describe several of these terms below, with reference to
`
`the ’430 patent and the prior art and Newton’s.
`
`61.
`
`Channel: A channel is a medium over which data is transmitted.
`
`Newton describes a channel as a “path of communication, either electrical or
`
`electromagnetic, between two or more points.” Newton’s, 180. Examples of a
`
`channel may be a twisted pair of a telephone wire, a fiber optic cable, or a quad
`
`cable. ’430 patent, 5:26-29; Hwang, 5:3-5. The ’430 patent refers to a broadband
`
`communications channel. ’430 patent, 1:30-33.
`
`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. 7,835,430
`
`62. A channel may have a defined frequency response, gain, and
`
`bandwidth. Newton’s, 180. A bandwidth of an analog channel is typica