UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________
`
`
`
`
`
`ARUBA NETWORKS, INC., HEWLETT PACKARD ENTERPRISE
`COMPANY; HP INC., ARRIS GROUP, INC., JUNIPER NETWORKS, INC.,
`BROCADE COMMUNICATIONS SYS., INC., AND RUCKUS WIRELESS,
`INC.
`Petitioner
`
`v.
`
`
`
`MOBILE TELECOMMUNICATIONS TECHNOLOGIES, LLC
`Patent Owner
`
`____________
`
`
`
`Case IPR2017-00637
`Patent 5,915,210
`
`____________
`
`
`
`PATENT OWNER MOBILE TELECOMMUNICATIONS
`TECHNOLOGIES, LLC’S CORRECTED PRELIMINARY RESPONSE
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`

`

`
`
`TABLE OF CONTENTS
`
`Page
`
`
`BACKGROUND ............................................................................................. 1 
`I.
`INTRODUCTION ........................................................................................... 2 
`II.
`III. PROPER CLAIM CONSTRUCTION ............................................................ 4 
`A.
`Rules Governing Claim Construction – The Phillips Standard
`Governs. ................................................................................................ 4 
`1.
`A person of ordinary skill in the art would have the
`following qualifications. ............................................................. 5 
`The ‘210 Patent has expired so the Phillips standard
`governs. ....................................................................................... 5 
`i. When construing claim terms look to claims
`themselves and then the specification. ............................. 6 
`Limitations from the specification can be read into
`the claims. ......................................................................... 6 
`iii.
`Extrinsic evidence can be relied upon. ............................. 7 
`3.
`Samsung IPR Construction of “Substantially” ........................... 8 
`Construction of Independent Claim Terms ......................................... 11 
`1.
`Claims 1, 10, and 19 – The term “representing
`substantially the same information as” means “the first
`plurality of carrier signals and the second plurality of
`carrier signals substantially represent the same
`information.” ............................................................................. 11 
`Claims 1, 10, and 19 – The term “transmit[] [the] second
`plurality of carrier signals in simulcast with the first
`plurality of carrier signals” means “transmitting at the
`same time the first plurality of carrier signals from the
`first transmitter and the second plurality of carrier signals
`from the second transmitter.” .................................................... 13 
`Claims 1, 10, and 19 – The term “each of the first
`plurality of carrier signals representing a portion of the
`information signal substantially not represented by others
`of the first plurality of carrier signals” means “there is no
`
`2.
`
`ii.
`
`B.
`
`2.
`
`3.
`
`i
`
`

`

`
`
`ii.
`
`iii.
`
`redundancy among the information represented by each
`of the carriers of the first plurality of carrier signals.” ............. 14 
`i.
`This limitation is called the “No Redundancy
`Limitation.” ..................................................................... 14 
`The term “substantially” should be interpreted
`according to a standard derived from information
`in the patent regarding the purpose of the
`invention, which one of ordinary skill in the art can
`measure. .......................................................................... 15 
`Petitioner’s assertion is at odds with the Board in
`the ARRIS IPR and the Aruba IPR and also with
`the decision in Ex parte Lazzara. ................................... 20 
`IV. REFERENCES RELIED UPON BY PETITIONER .................................... 21 
`A.
`Rault is directed to a coded orthogonal frequency division
`multiplexing (COFDM) system designed within the framework
`of the DAB (Digital Audio Broadcasting) project. ............................. 21 
`B. Mojoli is directed to a data transmission system in which
`subcarriers are transmitted and received. ............................................ 22 
`Nakamura is directed to a method to achieve good performance
`of a 256 QAM modem with 400 Mbit/s transmission capacity. ......... 22 
`Saalfrank is directed to a COFDM system designed within the
`framework of the DAB project also. ................................................... 22 
`V. GROUND 1 – CLAIMS 1, 7-8, 10, 15-17, AND 19 ARE NOT
`OBVIOUS OVER RAULT IN VIEW OF A POSA ..................................... 24 
`A. A patent claim is obvious only if all of its limitations are taught
`or suggested by prior art and combined in a manner that
`contains articulated reasoning and a rational underpinning. ............... 24 
`Rault does not teach or suggest all the claim limitations of
`Claims 1, 10, and 19. ........................................................................... 24 
`1.
`Rault does not teach or suggest limitation [1a] because it
`does not teach or suggest the No Redundancy Limitation. ...... 25 
`i.
`Petitioner’s arguments are redundant with regard
`to the arguments made in the ARRIS IPR and the
`
`C.
`
`D.
`
`B.
`
`ii
`
`

`

`
`
`ii.
`
`Aruba IPR with respect to Saalfrank and should be
`denied under 35 U.S.C § 325(d). .................................... 26 
`Petitioner’s three arguments regarding Rault are
`incorrect for the same reasons Saalfrank did not
`teach or suggest the No Redundancy Limitation. ........... 30 
`C. Dependent Claims 7-8 and 15-17 are not obvious over Rault in
`view of a POSA. .................................................................................. 42 
`VI. GROUND 2 – CLAIMS 7-8, 15, AND 19 ARE NOT OBVIOUS
`OVER RAULT IN VIEW OF MOJOLI. ........................................................ 42 
`A. A patent claim is obvious only if all of its limitations are taught
`or suggested by prior art and combined in a manner that
`contains articulated reasoning and a rational underpinning. ............... 42 
`B. Mojoli does not teach or suggest the No Redundancy Limitation
`of limitations [1a], [10a], and [19a] of independent Claims 1,
`10, and 19. ........................................................................................... 43 
`C. Dependent Claims 7-8 and 15 are not obvious over Rault in
`view of Mojoli. .................................................................................... 43 
`VII. GROUND 3 – CLAIMS 1, 7-8, 10, 16, AND 19 ARE NOT
`OBVIOUS OVER NAKAMURA IN VIEW OF SAALFRANK. .................... 43 
`A.
`Patent Owner respectfully requests that the Board deny this
`Petition under 35 U.S.C § 325(d) with regard to Nakamura and
`Saalfrank, because this prior art has been presented to the
`Board in five previous IPRs, including by current Petitioners. .......... 43 
`B. A patent claim is obvious only if all of its limitations are taught
`or suggested by prior art and combined in a manner that
`contains articulated reasoning and a rational underpinning. ............... 46 
`Nakamura in view of Saalfrank does not teach or suggest all the
`claim limitations of Claims 1, 10, and 19. .......................................... 47 
`1.
`Nakamura does not teach or suggest the No Redundancy
`Limitation of limitation [1a] of Claim 1. .................................. 47 
`Saalfrank does not cure the defect of Nakamura,
`therefore, Claims 1, 10, and 19 are not obvious over
`Nakamura in view of Saalfrank. ............................................... 51 
`
`C.
`
`2.
`
`iii
`
`

`

`
`
`3.
`
`Dependent Claims 7-8 and 15-17 are not obvious over
`Nakamura in view of Saalfrank. ............................................... 52 
`Petitioner’s motivation for combining Nakamura and
`Saalfrank is based on conclusory statements and,
`therefore, cannot be sustained. .................................................. 52 
`VIII. CONCLUSION .............................................................................................. 54 
`
`4.
`
`iv
`
`

`

`
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES 
`Ex Parte Lazzara, Appeal No. 2007-0192 (BPAI Nov. 13, 2007) ........... 8, 9, 15, 16
`Ex parte Papst-Motoren, 1 USPQ2d 1655 (Bd. Pat. App. & Inter. 1986) ................ 6
`In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 70 USPQ2d 1827 (Fed.
`Cir. 2004) .............................................................................................................. 7
`In re Morris, 127 F.3d 1048, 44 USPQ2d 1023 (Fed. Cir. 1997) ............................. 6
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) ................................. passim
`Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298 (Fed. Cir. 1999) ........... 7
`Vitrionics Corp. v. Conceptronic, 90 F.3d 1576 (Fed. Cir. 1996) ...................... 6, 11
`OTHER AUTHORITIES 
`35 United States Code § 103 ...................................................................................... 1
`Manual of Patent Examining Procedure § 2111.01 ................................................... 7
`Manual of Patent Examining Procedure § 2558 ........................................................ 5
`
`v
`
`

`

`
`
`2001.
`
`2002.
`
`2003.
`
`2004.
`
`2005.
`
`2006.
`
`2007.
`2008.
`
`2009.
`
`
`PATENT OWNER EXHIBIT LIST
`Declaration of Dr. Jay P. Kesan in IPR2016-00765 (“the ARRIS
`IPR”).
`Tutorial from www.radio-electronics.com on OFDM orthogonal
`frequency division multiplexing – filed in the ARRIS IPR.
`Excerpts from the book entitled “Multi-carrier technologies for
`wireless communication” by Nassar et al. – filed in the ARRIS IPR.
`A technical report on the guidelines and rules for implementation and
`operation of DAB from the European Telecommunications Standards
`Institute (ETSI) in the year 2000 – filed in the ARRIS IPR.
`Excerpts from the book entitled “Digital audio broadcasting:
`principles and applications of DAB, DAB+ and DMB” by Hoeg et al.
`– filed in the ARRIS IPR.
`A publication entitled “DAB radio design and implementation” by
`Fredrik Forsberg of Chalmers University of Technology in Goteborg,
`Sweden – filed in the ARRIS IPR.
`Declaration of Dr. Jay P. Kesan for this IPR.
`Decision Denying Institution of Inter Partes Review of ‘210 Patent in
`the ARRIS IPR.
`Definition of “simulcast” on the Merriam-Webster website.
`
`vi
`
`

`

`
`I.
`
`BACKGROUND
`
`On January 10, 2017, Petitioners Aruba Networks, Inc., Hewlett Packard
`
`Enterprise Company, HP Inc., ARRIS Group, Inc., Juniper Networks, Inc.,
`
`Brocade Communications Sys., Inc., and Ruckus Wireless, Inc. (“Juniper” or
`
`“Petitioner”) filed a Petition for Inter Partes Review under 37 C.F.R. § 42.100,
`
`requesting inter partes review of Claims 1, 7-8, 10, 15-17, and 19 of U.S. Patent
`
`No. 5,915,210 (“the ‘210 Patent”). Petitioner asserts that Claims 1, 7-8, 10, 15-17,
`
`and 19 of the ’210 Patent are unpatentable over the following references under 35
`
`U.S.C. § 103:
`
`Ground 1 - Claims 1, 7-8, 15-17, and 19 as obvious over J.C. Rault, D.
`
`Castelain, and B. Le Floch, The coded orthogonal frequency division multiplexing
`
`(COFDM) technique, and its application to digital radio broadcasting towards
`
`mobile receivers, in IEEE Global Telecommunications Conference & Exhibition
`
`428-432 (Dallas, 1989) (Exhibit 1004, “Rault”) in view of a POSA;
`
`Ground 2 - Claims 7-8, 15, and 19 as obvious over Rault in view of U.S.
`
`Patent No. 4,615,040 (Exhibit 1005, “Mojoli”); and
`
`Ground 3 - Claims 1, 7-8, 10, 16, and 19 as obvious over Yasuhisa
`
`Nakamura and Yoichi Saito, 256 QAM Modem for Multicarrier 400 Mbit/s Digital
`
`Radio in IEEE Journal on Selected Areas in Communications, Vol. 5, No. 3 329-
`
`1
`
`

`

`
`335 (April 1987) Exhibit 1013, “Nakamura”) in view of German Patent
`
`DE4102408 (Exhibit 1010, “Saalfrank”).
`
`The ‘210 Patent, entitled “Method and System for Providing Multicarrier
`
`Simulcast Transmission,” was filed on July 24, 1997, and issued on June 22, 1999.
`
`The ‘210 Patent claims priority to U.S. Application No. 07/973,918, filed
`
`November 12, 1992, U.S. Patent No. 5,590,403.
`
`The ‘210 Patent describes and claims a method and system for providing
`
`multicarrier simulcast transmission.
`
`II.
`
`INTRODUCTION
`
`Patent Owner, Mobile Telecommunications Technologies, LLC, submits this
`
`Preliminary Response “(Preliminary Response”) to the Petition for Inter Partes
`
`Review of Claims 1, 7-8, 10, 15-17, and 19 of the ‘210 Patent. 37 C.F.R. § 42.107.
`
`Patent Owner respectfully requests that the Board deny the Petition on every
`
`ground alleged by Petitioner for, at least, the following reasons.
`
`In regard to Ground 1, first, Petitioner’s arguments are redundant with
`
`regard to the arguments previously presented to the Office and should be denied
`
`under 35 U.S.C § 325(d). Second, Rault in view of POSA does not disclose or
`
`suggest “each of the first plurality of carrier signals representing a portion of the
`
`information signal substantially not represented by others of the first plurality of
`
`carrier signals,” which is described below as the No Redundancy Limitation.
`
`2
`
`

`

`
`Thus, Claims 1, 10, and 19 of the ‘210 Patent are not obvious over Rault in view of
`
`a POSA.
`
`Dependent Claims 7-8 and 15-17 are not obvious over Rault in view of a
`
`POSA because independent Claims 1 and 10, from which they depend,
`
`respectively, are not obvious over Rault in view of a POSA and because of the
`
`additional features these claims recite.
`
`In regard to Ground 2, Mojoli does not cure the defect of Rault as described
`
`in Ground 1. Thus, Rault in view of Mojoli does not disclose or suggest the No
`
`Redundancy Limitation. As a result, Claims 1, 10, and 19 of the ‘210 Patent are
`
`not obvious over Rault in view of Mojoli.
`
`Dependent Claims 7-8 and 15 are not obvious over Rault in view of Mojoli
`
`because independent Claims 1 and 10, from which they depend, respectively, are
`
`not obvious over Rault in view of Mojoli and because of the additional features
`
`these claims recite.
`
`In regard to Ground 3, first, Nakamura and Saalfrank were previously
`
`presented to the Office in five IPRs and should be denied under 35 U.S.C § 325(d),
`
`including one filed by current Petitioners Aruba Networks, Inc., Hewlett Packard
`
`Enterprise Company; HP Inc., and ARRIS Group, Inc. The fact that the current
`
`Petition includes additional Petitioners is not a bar to section 325(d), which leaves
`
`it in the discretion of the Board to deny to institute an IPR if the same prior art or
`
`3
`
`

`

`
`arguments have already been considered. Second, Nakamura does not disclose or
`
`suggest the No Redundancy Limitation. Saalfrank does not cure Nakamura’s
`
`defect. Thus, Claims 1, 10, and 19 of the ‘210 Patent are not obvious over
`
`Nakamura in view of Saalfrank.
`
`Dependent Claims 7-8 and 15-17 are not obvious over Nakamura in view of
`
`Saalfrank because independent Claims 1 and 10, from which they depend,
`
`respectively, are not obvious over Nakamura in view of Saalfrank and because of
`
`the additional features these claims recite.
`
`Therefore, there is no reasonable likelihood that Petitioner can prevail with
`
`regard to Claims 1, 7-8, 10, 15-17, and 19 of the ‘210 Patent.
`
`III. PROPER CLAIM CONSTRUCTION
`
`In this section, the rules governing claim construction are provided. These
`
`rules are then applied to provide evidence regarding the technology at issue in the
`
`‘210 Patent. Finally, from this evidence, some independent claim terms are
`
`construed.
`
`A. Rules Governing Claim Construction – The Phillips Standard
`Governs.
`
`The ‘210 Patent was most recently the subject of IPR2016-00765 (“the
`
`ARRIS IPR”) and IPR2016-00766 (“the Aruba IPR”). The Board denied
`
`institution of the ARRIS IPR and the Aruba IPR on September 21, 2016. See Ex.
`
`4
`
`

`

`
`2008 at 13. Before the ARRIS IPR and the Aruba IPR, the ‘210 Patent was the
`
`subject of IPR2015-01724 (“the Samsung IPR”). The Samsung IPR was instituted
`
`on February 16, 2016. The Samsung IPR was terminated on May 3, 2016, in
`
`response to a joint request from Petitioner and Patent Owner.
`
`1.
`
`A person of ordinary skill in the art would have the
`following qualifications.
`As Dr. Kesan has described in the ARRIS IPR, a person of ordinary skill in
`
`the art at the time of the invention (“POSA”) of the ’210 Patent would possess a
`
`bachelor’s degree in electrical or its equivalent and about four years working in the
`
`field of wireless telecommunications networks or its equivalent and would possess
`
`knowledge
`
`regarding
`
`frequency,
`
`amplitude,
`
`and masks
`
`as used
`
`in
`
`telecommunications, or equivalent education and work experience. Ex. 2001 at 9.
`
`2.
`
`The ‘210 Patent has expired so the Phillips standard
`governs.
`The ‘210 Patent has expired, so the proper claim construction is that used in
`
`district court review. The broadest reasonable interpretation (BRI) standard does
`
`not apply. In regard to the proper claim construction used in district court review,
`
`MPEP 2258 provides that “[i]n a reexamination proceeding involving claims of an
`
`expired patent, claim construction pursuant to the principle set forth by the court in
`
`Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir.
`
`2005) (words of a claim “are generally given their plain and ordinary meaning” as
`
`5
`
`

`

`
`understood by a person of ordinary skill in the art in question at the time of the
`
`invention) should be applied since the expired claim are not subject to amendment.
`
`See Ex parte Papst-Motoren, 1 USPQ2d 1655 (Bd. Pat. App. & Inter. 1986).”
`
`i. When construing claim
`look
`terms
`themselves and then the specification.
`The first step in construing claims under Phillips is to “look to the words of
`
`to claims
`
`the claims themselves.” Vitrionics Corp. v. Conceptronic, 90 F.3d 1576, 1582
`
`(Fed. Cir. 1996). Second, the specification must be considered when construing
`
`claim terms. Id. “[T]he specification is always highly relevant to the claim
`
`construction analysis. Usually, it is dispositive; it is the single best guide to the
`
`meaning of a disputed term.” Id.
`
`ii.
`
`Limitations from the specification can be read into
`the claims.
`Claim construction under Phillips varies from the BRI standard in at least
`
`two important ways. First, the BRI standard includes a prohibition on reading
`
`limitations in the specification into the claims. In contrast, claim construction
`
`under Phillips does not include this prohibition. For example, “[t]he presumption
`
`that a term is given its plain and ordinary meaning may be rebutted by the
`
`applicant by clearly setting forth a different definition of the term in the
`
`specification.” In re Morris, 127 F.3d 1048, 1054, 44 USPQ2d 1023, 1028 (Fed.
`
`Cir. 1997) (the USPTO looks to the ordinary use of the claim terms taking into
`
`6
`
`

`

`
`account definitions or other “enlightenment” contained in the written description);
`
`But c.f. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1369, 70 USPQ2d 1827,
`
`1834 (Fed. Cir. 2004) (“We have cautioned against reading limitations into a claim
`
`from the preferred embodiment described in the specification, even if it is the only
`
`embodiment described, absent clear disclaimer in the specification.”). MPEP
`
`2111.01.
`
`iii. Extrinsic evidence can be relied upon.
`Second, the BRI standard does not rely heavily on extrinsic evidence. In
`
`contrast, when performing claim construction under Phillips, “it is entirely
`
`appropriate, perhaps even preferable, for a court to consult trustworthy extrinsic
`
`evidence to ensure that the claim construction it is tending to from the patent file is
`
`not inconsistent with clearly expressed, plainly apposite, and widely held
`
`understandings from the pertinent technical field.” Pitney Bowes, Inc. v. Hewlett-
`
`Packard Co., 182 F.3d 1298, 1309 (Fed. Cir. 1999).
`
`In summary, under Phillips, the first step in construing claims is to look to
`
`the words of the claims themselves. The second step is to consider the
`
`specification. Additionally, there is no prohibition on reading limitations in the
`
`specification into the claims, and it is entirely appropriate to consult trustworthy
`
`extrinsic evidence.
`
`7
`
`

`

`
`
`3.
`Samsung IPR Construction of “Substantially”
`In the decision to institute of the Samsung IPR, the Board addressed the term
`
`“substantially” in the claim limitation that requires each of the carrier signals to
`
`represent a portion of the information signal “substantially” not represented by the
`
`other carriers signals. IPR2015-01724 Paper 11 at 12. The Board found that “we
`
`understand from reading the claims that the carrier signals are not excluded from
`
`carrying some of the same information.” Id. Further citing the 1996 Federal
`
`Circuit cases of York Prods., Inc., v. Central Tractor Farm & Family Center and
`
`Amhil Enterprises Ltd. v. Wawa, Inc., the Board pronounced that “[i]t is well
`
`settled that the term ‘substantially’ is often used to mean largely but not wholly
`
`what is specified.” Id. In other words, the Board suggested that there is a per se
`
`rule regarding the term “substantially.”
`
`Patent Owner respectfully submits that the construction of the term
`
`“substantially” in regard to the above-referenced limitation by the Board in the
`
`Samsung IPR is at odds with the Board’s informative opinion in Ex parte Lazzara
`
`Appeal No. 2007-0192 (BPAI Nov. 13, 2007), which was decided on November
`
`13, 2007. In Ex parte Lazzara, the Ex parte Lazzara Board describes that
`
`“Appellants request that we reconsider our decision in light of Federal Circuit
`
`cases which found, within the context of claim interpretation post-grant in an
`
`infringement dispute, that the term ‘substantially’ and the phrase ‘substantially
`
`8
`
`

`

`
`uniform’ are amenable to interpretation using their ordinary and customary
`
`meanings (Request for Rehearing 2-4). The Appellants appear to be arguing that
`
`the cited Federal Circuit case law stands for a per se rule that if the term
`
`‘substantially’ is used in a claim, and if the Specification fails to provide a
`
`definition of the term with numerical specificity, then the term must be interpreted
`
`broadly in accordance with its customary meaning.” Ex parte Lazzara at 2-3.
`
`Patent Owner respectfully submits that the Samsung IPR Board is making
`
`precisely the same argument as the appellants in Ex parte Lazzara. Its
`
`interpretation is certainly from ordinary and customary meanings of the term. It
`
`also appears to be arguing that the cited Federal Circuit case law stands for a per se
`
`rule that if the term “substantially” is used in a claim, then the term must be
`
`interpreted broadly in accordance with its customary meaning. Moreover, as
`
`described below, the specification in this case also fails to provide a definition of
`
`the term with numerical specificity.
`
`The Ex parte Lazzara Board, however, rejected the appellant's arguments in
`
`Ex parte Lazzara. It found that “[w]e do not read Federal Circuit cases to stand for
`
`such a per se rule. Id. at 3.
`
`Instead, the Ex parte Lazzara Board found that terms of degree such as the
`
`term “substantially” should be interpreted according to a standard derived from
`
`information in the patent regarding the purpose of the invention, which one of
`
`9
`
`

`

`
`ordinary skill in the art can measure. Specifically, the Ex parte Lazzara Board
`
`found that “the case law requires some sort of standard by which one of ordinary
`
`skill in the art can measure a term of degree such as ‘substantially’ so as to
`
`understand what is claimed. While the standard for measuring a term of degree
`
`need not be defined with numerical specificity, the standard must be able to be
`
`derived from information in the patent regarding the purpose of the invention – or
`
`of the specific aspect of the invention to which the term of degree applies - as well
`
`as from experimentation.” Id.
`
`Patent Owner submits that neither the Petitioner nor the Board in the
`
`Samsung IPR interpreted the term “substantially” according to a standard derived
`
`from information in the patent regarding the purpose of the invention, which one of
`
`ordinary skill in the art can measure. Also, Patent Owner submits that the
`
`Petitioner in the present IPR has not interpreted the term “substantially” according
`
`to a standard derived from information in the patent regarding the purpose of the
`
`invention, which one of ordinary skill in the art can measure. See Paper 1 at 22.
`
`Patent Owner does provide such an interpretation below.
`
`Further, in the ARRIS IPR and the Aruba IPR, the Board did not dispute
`
`Patent Owner’s argument with regard to Ex parte Lazzara. In addition, the Board
`
`in the ARRIS IPR and the Aruba IPR adopted Patent Owner’s description, which is
`
`again described below, of the limitation that “each of the first plurality of carrier
`
`10
`
`

`

`
`signals representing a portion of the information signal substantially not
`
`represented by others of the first plurality of carrier signals” as “the No
`
`Redundancy Limitation.” Ex. 2008 at 7.
`
`B. Construction of Independent Claim Terms
`
`As described above, the ’210 Patent has expired, so the claims terms should
`
`be interpreted according to the Phillips standard. Phillips requires construing
`
`claim terms based on the words of the claims themselves and the specification.
`
`The first step in construing claims under Phillips is to “look to the words of the
`
`claims themselves.” Vitrionics Corp. v. Conceptronic, 90 F.3d 1576, 1582 (Fed.
`
`Cir. 1996). Second, the specification must be considered when construing claim
`
`terms. Id. (“[T]he specification is always highly relevant.”).
`
`1.
`
`Claims 1, 10, and 19 – The term “representing substantially
`the same information as” means “the first plurality of
`carrier signals and the second plurality of carrier signals
`substantially represent the same information.”
`Challenged independent Claims 1, 10, and 19 recite “each of the second
`
`plurality of carrier signals [] representing substantially the same information as a
`
`respective carrier signal of the first plurality of carrier signals.”
`
` Here,
`
`“representing substantially the same information as” means “the first plurality of
`
`carrier signals and the second plurality of carrier signals substantially represent the
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`same information.”
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`This construction reflects the plain and ordinary meaning of the words and is
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`supported by the specification. Ex. 1001 at 1:54, 5:26-40 (reproduced below).
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`Since the “information” conveyed by the second plurality of carrier signals refer to
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`the same “information” conveyed by the first plurality of carrier signals, they
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`substantially represent the same information.
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`In another embodiment, the invention is directed to a
`multi-carrier simulcast transmission system for transmitting
`in a desired frequency band a message contained in an
`information signal, the system comprising a first transmitter
`means for transmitting an information signal by generating
`a first plurality of carrier signals within the desired frequency
`band and by modulating the first plurality of carrier
`signals to convey the information signal, and a second
`transmitter means, spatially separated from the first
`transmitter, for transmitting the information signal in simulcast
`with the first transmitter by generating a second plurality
`of carrier signals at substantially the same frequencies
`as the first plurality of carrier signals and by modulating the
`second plurality of carrier signals to convey the information
`signal.
`
`As a result, under the Phillips standard, the term “representing substantially
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`the same information as” means “the first plurality of carrier signals and the second
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`plurality of carrier signals substantially represent the same information.”
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`2.
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`Claims 1, 10, and 19 – The term “transmit[] [the] second
`plurality of carrier signals in simulcast with the first
`plurality of carrier signals” means “transmitting at the
`same time the first plurality of carrier signals from the first
`transmitter and the second plurality of carrier signals from
`the second transmitter.”
`Challenged Claim 1 recites that the second transmitter is configured “to
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`transmit a second plurality of carrier signals in simulcast with the first plurality of
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`carrier signals.”
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`Challenged Claim 10 similarly recites “transmitting the second plurality of
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`carrier signals from a second transmitter in simulcast with transmission of the first
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`plurality of carrier signals from the first transmitter.”
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`Similar to Claims 1 and 10, challenged Claim 19 recites “means for
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`transmitting a second plurality of carrier signals in simulcast with the first plurality
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`of carrier signals.”
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`Here, this transmission is “transmitting at the same time the first plurality of
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`carrier signals from the first transmitter and the second plurality of carrier signals
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`from the second transmitter.”
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`The plain and ordinary meaning of simulcast is “to broadcast (a program) by
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`radio and television at the same time.” Ex. 2009 at 3. Therefore, simulcast means
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`that the first and second transmitters transmit the first and second plurality of
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`carrier signals, respectively, at the same time.
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`3.
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`Claims 1, 10, and 19 – The term “each of the first plurality
`of carrier signals representing a portion of the information
`signal substantially not represented by others of the first
`plurality of carrier signals” means “there is no redundancy
`among the information represented by each of the carriers
`of the first plurality of carrier signals.”
`i.
`This limitation is called the “No Redundancy
`Limitation.”
`Challenged Claims 1, 10, and 19 recite “each of the first plurality of carrier
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`signals representing a portion of the information signal substantially not
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`represented by others of the first plurality of carrier signals.” Here, this limitation
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`means “there is no redundancy among the information represented by each of the
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`carriers of the first plurality of carrier signals.”
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`This construction reflects the plain and ordinary meaning of the words.
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`Consider the opposite of what the limitation is describing. The opposite is that a
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`carrier of the first plurality of carrier signals represents a portion of the information
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`signal substantially represented by at least one other of the first plurality of carrier
`
`signals. This means that there is redundant information conveyed by at least two
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`carriers. Therefore, the actual limitation prohibits this by providing that there can
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`be no redundancy in the information represented by different carriers.
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`The specification also supports this construction by reciting the unique data
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`streams may be modulated onto respective carriers. Ex. 1001 at 13:34-35. Dr.
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`Kesan has described that a POSA “would understand this to mean that each portion
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`of the information signal represented by a carrier is unique to that carrier.” Ex.
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`2001 at 20. He further explains that a “POSA would also understand this
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`limitation to mean that there can be no redundancy in the information represented
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`by different carriers.” Id. at 21. He, therefore, refers to this limitation as the non-
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`redundancy limitation. Id. at 23.
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`Therefore, under the Phillips standard, the term “each of the first plurality of
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`carrier signals representing a portion of the information signal substantially not
`
`represented by others of the first plurality of carrier signals” means “there is no
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`redundancy among the information represented by each of the carriers of the first
`
`plurality of carrier signals.”
`
`Again, the Board in the ARRIS IPR and the Aruba IPR adopted Patent
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`Owner’s description of this limitation as “the No Redundancy Limitation.” Ex.
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`2008 at 7.
`
`ii.
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`The term “substantially” should be interpreted
`according to a standard derived from information in
`the patent regarding the purpose of the invention,
`which one of ordinary skill in the art can measure.
`As described above, the Ex parte Lazzara Board found that terms of degree
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`such as the term “substantially” should be interpreted according to a standard
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`derived from information in the patent regarding the purpose of the invention,
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`which one of ordinary skill in the art can measure.
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`As a result, Dr. Kesan was asked in the ARRIS IPR to determine how a
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`POSA would interpret the term “substantially” in the above-referenced non-
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`redundancy limitation based on information in the patent regarding the purpose of
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`the invention. Ex. 2001 at 43.
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`Dr. Kesan concludes that “a POSA would interpret the term ‘substantially’
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`in