Trials@uspto.gov
`571.272.7822
`
`
`
`
`
`Paper No. 10
`Filed: November 5, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`HUAWEI DEVICE CO., LTD.,
`
`Petitioner,
`
`v.
`
`OPTIS CELLULAR TECHNOLOGY, LLC,
`
`Patent Owner.
`_______________
`
`Case IPR2018-00807
`Patent 8,102,833 B2
`_______________
`
`Before KALYAN K. DESHPANDE, MICHAEL R. ZECHER, and
`JOHN P. PINKERTON, Administrative Patent Judges.
`
`PINKERTON, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`
`571.272.7822
`
`
`
`
`
`Paper No. 10
`Filed: November 5, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`HUAWEI DEVICE CO., LTD.,
`
`Petitioner,
`
`v.
`
`OPTIS CELLULAR TECHNOLOGY, LLC,
`
`Patent Owner.
`_______________
`
`Case IPR2018-00807
`Patent 8,102,833 B2
`_______________
`
`Before KALYAN K. DESHPANDE, MICHAEL R. ZECHER, and
`JOHN P. PINKERTON, Administrative Patent Judges.
`
`PINKERTON, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`
`
`IPR2018-00807
`Patent 8,102,833 B2
`
`
`I.
`
`INTRODUCTION
`
`Huawei Device Co., Ltd. (“Petitioner”) filed a Petition requesting an
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`inter partes review of claims 1–14 of U.S. Patent No. 8,102,833 B2
`
`(Ex. 1001, “the ’833 patent”). Paper 3 (“Pet.”). Optis Cellular Technology,
`
`LLC (“Patent Owner”) filed a Preliminary Response. Paper 7 (“Prelim.
`
`Resp.”). Institution of an inter partes review is authorized by statute when
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`“the information presented in the petition . . . and any response . . . shows
`
`that there is a reasonable likelihood that the petitioner would prevail with
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`respect to at least 1 of the claims challenged in the petition.” 35 U.S.C.
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`§ 314(a). For the reasons discussed below, we deny institution of inter
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`partes review of claims 1–14 of the ’833 patent.
`
`A.
`
`Related Proceedings
`
`Patent Owner has asserted the ’833 patent against Petitioner in Optis
`
`Wireless Tech., LLC, v. Huawei Techs. Co., No. 2:17-cv-00123-JRG-RSP
`
`(E.D. Tex.) (the “Litigation”). Pet. 3; Paper 5, 2.
`
`B.
`
`The ’833 Patent
`
`The ’833 patent, entitled “Method for Transmitting Uplink Signals,”
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`issued on January 24, 2012, and claims priority to Korean application 10-
`
`2008-0068634, filed on July 15, 2008, and U.S. Provisional Applications,
`
`Nos. (1) 60/972,244, filed on September 13, 2007; (2) 60/987,427, filed on
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`November 13, 2007; and (3) 60/988,433, filed on November 16, 2007. Ex.
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`1001, [30], [60], 1:7–15.
`
`The ’833 patent relates generally to user equipment (UE) of a mobile
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`communication system transmitting uplink signals, including ACK/NACK
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`signals, control signals other than ACK/NACK signals, and data signals.
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`2
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`Patent 8,102,833 B2
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`Ex. 1001, [57], 1:21–24. The patent describes that control signals
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`transmitted to the uplink “include uplink ACK/NACK1 signals for HARQ
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`communication, channel quality indicator (CQI), and preceding matrix index
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`(PMI).” Id. at. 1:29–32. The ’833 patent specifically distinguishes
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`ACK/NACK signals from control signals other than ACK/NACK signals
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`and states ‘“control signals’ will mean those other than the ACK/NACK
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`signals.” Id. at 5:15–16; see also id. at 1:43–45 (stating “the control signals
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`will mean those except for ACK/NACK signals”).
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`
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`The ’833 patent explains that the 3GPP LTE system uses a single
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`carrier frequency division multiplexing access (SC-FDMA) scheme for
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`uplink signal transmission. Id. at 1:33–35. According to the ’833 patent, the
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`3GPP LTE system prescribes that data signals and control signals among the
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`uplink signals are first multiplexed and ACK/NACK signals are transmitted
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`to the multiplexed signals by puncturing the data or control signals when
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`uplink ACK/NACK signal transmission is required for downlink data. Id. at
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`1:35–40. As the ’833 patent also describes, it was determined that, in 3GPP
`
`LTE systems, when the control information is multiplexed with the data
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`information, “the control information is transmitted near a reference signal.”
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`Id. at 1:45–49. The ’833 patent explains that “control signals generally
`
`
`1 Petitioner’s expert, Dr. Jonathan Wells, opines that an example of an
`uplink control signal would be an acknowledgement sent by the UE to the
`base station to confirm it has received a transmitted data signal. Ex. 1008
`¶ 38. According to Dr. Wells, a positive acknowledgement that the data
`signal was properly received by the UE is known as an ACK, and a negative
`acknowledgement if there was some problem receiving the data signal is
`known as a NACK. Id.
`
`
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`3
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`Patent 8,102,833 B2
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`require higher reliability than the data signals,” and “the ACK/NACK
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`signals require higher reliability than other types of control signals.” Id. at
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`1:51–57. Accordingly, the ’833 patent describes that, when uplink
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`ACK/NACK signal transmission is required while all the control signals are
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`transmitted by approximating to the reference signal, “problems occur in that
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`the ACK/NACK signals can neither be transmitted by puncturing the control
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`signals arranged near the reference signal nor be transmitted near the
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`reference signal.” Id. at 1:54–62. Thus, the ’833 patent describes a method
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`for transmitting uplink signals by efficiently arranging ACK/NACK signals
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`and other control signals in a resource region considering priority among
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`them. Id. at 2:7–10; see also id. at 2:25–27 (stating that “arranging the
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`ACK/NACK signals at both symbols near to symbols through which a
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`reference signal is transmitted”).
`
`
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`The ’833 patent describes transmitting information in accordance with
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`the SC-FDMA scheme in which information sequences are transmitted using
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`one “resource block” and one “sub-frame.” Id. at 5:31–40. Each sub-frame
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`includes two slots, and each slot includes 7 SC-FDMA symbols. Id. at 5:40–
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`45, cl. 3. Two of the 14 SC-FDMA symbols in each sub-frame are used as
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`reference signals that are pilot signals. Id. at 5:40–43. Each resource block
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`includes 12 OFDM (orthogonal frequency division multiple access)
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`subcarriers and 7 SC-FDMA symbols in one slot. Id. at 5:37–40. The ’833
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`patent explains that, at this time, the number of modulation symbols of the
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`information that can be transmitted to the uplink becomes 12*12=144. Id. at
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`5:43–45. The ’833 patent further explains that 144 information sequences
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`can be transmitted through 12 virtual subcarriers and 12 SC-FDMA
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`
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`4
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`Patent 8,102,833 B2
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`symbols, which “can be represented by a matrix structure of 12*12 called a
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`time-frequency mapper.” Id. at 5:46–49.
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`
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`An annotated version of Figure 6 of the ’833 patent is reproduced
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`below.
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`
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`The annotated version of Figure 6 above is a diagram illustrating a
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`method for transmitting uplink signals in accordance with one embodiment
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`of the ’833 patent. Id. at 3:33–35, 6:49–51. This figure includes three
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`portions, arranged vertically, and is slightly annotated by Patent Owner with
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`red lines and circles showing the location of possible ACK/NACK symbols.
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`The top portion of Figure 6 (labeled 601) is a horizontal strip of small,
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`5
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`square blocks representing control signals (each numbered 1 through NC)
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`and data signals (each numbered 1 through ND). This top portion of the
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`figure illustrates that control and data signals are multiplexed serially, if
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`ACK/NACK signals are not transmitted, with control signals placed at the
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`front (i.e., starting at the left) and data signals placed at the rear of the
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`multiplexed signals. Id. at 6:60–63. The second or middle portion of Figure
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`6 (labeled 602) is also a horizontal strip of small, square blocks, again
`
`representing data signals and control signals multiplexed serially, with data
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`signals placed at the front, and with ACK/NACK signals to be transmitted
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`that “are arranged by puncturing the multiplexed data.” 2 Id. at 6:63–66. In
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`this portion of Figure 6, the ACK/NACK symbols are inserted in place of
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`data signals 5, 6, ND-3, and ND-2.
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`
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`The third portion of Figure 6 (labeled 603), which is located at the
`
`bottom, illustrates the embodiment in which information sequences such as
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`those shown in the second portion of Figure 6 (labeled 602) are mapped with
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`SC-FDMA symbols according to the time-first mapping method, and then
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`transmitted on the uplink. Id. at 6:52–56; 6:66–7:2. This portion of Figure 6
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`is a two-dimensional “time-frequency region” that independent claim 1
`
`refers to as “a 2-dimensional resource matrix.” Id. at 6:66–7:2, 9:6–7. In
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`accordance with the time-first mapping method, the multiplexed signals
`
`(such as 602) are mapped row by row to the resource matrix in which rows
`
`
`2 As used in the ’833 patent, “puncturing” means “overwriting” or
`“replacing” specific information. Id. at 6: 15–21 (“overwritten” means that
`specific information is skipped and the corresponding region is mapped;
`“overwritten” also means that the length of the entire information is
`maintained equally even after specific information is inserted).
`
`
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`6
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`correspond to subcarriers and columns correspond to SC-FDMA symbols.
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`Id. at 6:66–7:3; 7:6–10; 9:6–21. Resource matrix 603 shows a total of 14
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`SC-FDMA symbols along the time axis (the vertical axis) within one
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`subframe—12 SC-FDMA symbols (numbered from top to bottom as #1
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`through #12 in a column to the right of the matrix) and two SC-FDMA
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`symbols that carry reference signals in a part between symbol indices #3 and
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`#4 and in a part between symbol indices #9 and #10. Id. at 5:37–45; 7:2-5.
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`The ’833 patent explains that the ACK/NACK signals are set in such a
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`manner that they overwrite the data signals on both sides of the parts to
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`which the reference signals are transmitted (i.e., into SC-FCMA symbols #3,
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`4, 9, and 10 in Figure 6). Id. at 7:10–14. These overwritten ACK/NACK
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`signals are labeled N-2, N-3, N-8, and N-9 (and are circled in red) in matrix
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`603, the third portion of Figure 6.
`
`C.
`
`Challenged Claims
`
`Petitioner challenges claims 1–14 of the ’833 patent. Independent
`
`claim 1, which is illustrative of the challenged claims, is reproduced below
`
`(with paragraph lettering added as in the Petition):
`
`1. A method for transmitting uplink signals comprising control
`signals and data signals in a wireless communication system,
`the method comprising:
`
`
`[1a] serially multiplexing first control signals and data signals
`in a mobile station, wherein the first control signals are placed at a
`front part of the multiplexed signals and the data signals are placed at
`a rear part of the multiplexed signals;
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`[1b] mapping the multiplexed signals to a 2-dimensional
`resource matrix comprising a plurality of columns and a plurality of
`rows, wherein the columns and the rows of the 2-dimensional
`
`
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`7
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`resource matrix correspond to single carrier frequency divisional
`multiple access (SC-FDMA) symbols and subcarriers for each SC-
`FDMA symbol, respectively, wherein a number of columns of the 2-
`dimensional resource matrix corresponds to a number of SC-FDMA
`symbols within one subframe except specific SC-FDMA symbols
`used for a reference signal, and wherein the multiplexed signals are
`mapped from the first column of the first row to the last column of the
`first row, the first column of the second row to the last column of the
`second row, and so on, until all the multiplexed signals are mapped to
`the 2-dimensional resource matrix;
`
`[1c] mapping ACK/NACK control signals to specific columns
`of the 2-dimensional resource matrix, wherein the specific columns
`correspond to SC-FDMA symbols right adjacent to the specific SC-
`FDMA symbols, wherein the ACK/NACK control signals overwrite
`some of the multiplexed signals mapped to the 2-dimensional resource
`matrix at step (b) from the last row of the specific columns; and
`
`[1d] transmitting the signals mapped to the 2-dimensional
`resource matrix at steps (b) and (c) by column by column to a base
`station.
`
`Ex. 1001 at 38:10–60.
`
`
`D.
`
`Evidence of Record
`
`Petitioner relies upon the following references, as well as the
`
`Declaration of Dr. Jonathan Wells (Ex. 1008):
`
`
`
`
`
`8
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`
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`IPR2018-00807
`Patent 8,102,833 B2
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`Exhibit
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`Reference
`
`Ex. 1006
`
`U.S. Patent No. 8,331,328 B2
`(Papasakellariou)
`
`Ex. 1010
`
`U.S. Patent Publication No.
`2006/0262871 (Cho)
`
`Ex. 1011
`
`Motorola, 3GPP TSG RANI #50, R1-
`073361, “Uplink channel interleaving”
`(Motorola)
`
`
`
`Publication or
`Filing Date
`
`Filed June 4,
`20083
`
`Published Nov.
`23, 2006
`
`Published Aug.
`31, 2007
`
`E.
`
`Asserted Ground of Unpatentability
`
`Petitioner challenges the patentability of claims 1–14 of the ’833
`
`patent based on the following ground:
`
`
`
`Reference(s)
`
`Basis
`
`Claims Challenged
`
`Combination of Papasakellariou,
`Cho, and Motorola
`
`§ 103(a)
`
`1–14
`
`
`
`
`
`II. DISCUSSION
`
`A.
`
`Claim Construction
`
`1.
`
`Applicable Law
`
`In an inter partes review, claim terms in an unexpired patent are
`
`interpreted according to their broadest reasonable construction in light of the
`
`
`3 Papasakellariou claims the benefit of U.S. Provisional Application No.
`60/942,843, filed on June 8, 2007. Ex. 1006, [60].
`
`
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`9
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`specification of the patent in which they appear. 37 C.F.R. § 42.100(b).
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`Under that standard, and absent any special definitions, we give claim terms
`
`their ordinary and customary meaning, as they would be understood by one
`
`of ordinary skill in the art, in the context of the entire patent disclosure. In
`
`re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
`
`Only those terms in controversy need to be construed, and then only
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`to the extent necessary to resolve the controversy. Nidec Motor Corp. v.
`
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
`
`(citing Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed.
`
`Cir. 1999)).
`
`2.
`
` Petitioner’s Position
`
`Petitioner asserts that, in the Litigation, the parties agreed upon
`
`several constructions that were adopted by the district court. Pet. 13 (citing
`
`Ex. 1013, 12–14). Petitioner also asserts that it adopts the court’s
`
`constructions for purposes of this proceeding. Id.
`
`3.
`
`Patent Owner’s Position
`
`Patent Owner asserts that for purposes of its Preliminary Response, it
`
`“agrees to all of the proposed constructions.” Prelim. Resp. 48. Patent
`
`Owner also contends that we should find that the steps of claims 1 and 8 of
`
`the ’833 patent must be performed in the order recited in the claims. Id. at
`
`48–50 (citing Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369–70 (Fed.
`
`Cir. 2003)). In this regard, Patent Owner argues that the express language of
`
`the claims requires the steps of each of claims 1 and 8 to be performed in
`
`order. Id. Patent Owner also asserts that in the Litigation, the parties agreed
`
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`on constructions that impose an order to the steps of both claim 1 and 8. Id.
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`at 50 (citing Ex. 1013 at 13).
`
`4. Analysis
`
`We adopt the district court’s claim constructions in the Litigation for
`
`the terms and phrases of the ’833 patent, for the purposes of this Decision,
`
`because they are consistent with the specification of the ’833 patent. See Ex.
`
`1010, 12–14. We determine there is no reason to further construe any other
`
`terms or phrases, or determine the order of steps of independent claims 1 and
`
`8, beyond the determinations of the district court.
`
`B.
`
`Asserted Obviousness of Claims 1–14 Over the Combination
`of Papasakellariou, Cho, and Motorola
`
`Petitioner contends the combination of Papasakellariou (Ex. 1006),
`
`Cho (Ex. 1010), and Motorola (Ex. 1011) renders claims 1–14 of the
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`’833 patent obvious. Pet. 28–90. Petitioner asserts that Papasakellariou,
`
`which was filed on June 4, 2008, and claims priority to U.S. Provisional
`
`Application No. 60/942,843, filed on June 8, 2007 (Ex. 1007, “the ’843
`
`provisional”), is prior art under 35 U.S.C. § 102(e) as of the filing date of the
`
`provisional. Id. at 16–27. Patent Owner contends that Papasakellariou does
`
`not qualify as prior art to the ’833 patent under § 102(e) because the ’833
`
`patent claims are entitled to priority to an earlier-filed provisional
`
`application, which predates the June 4, 2008 filing date of Papasakellariou,
`
`and Petitioner has failed to meet its burden of showing that the
`
`’843 provisional provides support for the disclosures on which Petitioner
`
`relies in Papasakellariou. Prelim. Resp. 50–64. Thus, the fundamental issue
`
`raised by the parties is whether Papasakellariou is prior art to the ’833 patent
`
`under § 102(e) based on the priority date of the ’843 provisional.
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`For the reasons set forth below, we agree with Patent Owner that
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`Papasakellariou is not prior art to the ’833 patent because Petitioner has
`
`failed to show Papasakellariou is entitled to claim the benefit of the filing
`
`date of the ’843 provisional. Thus, we determine that Petitioner has failed to
`
`show a reasonable likelihood of prevailing on its assertion that claims 1–14
`
`of the ’833 patent are obvious based on the combination of Papasakellariou,
`
`Cho, and Motorola.
`
`1.
`
`Effective Date of ’833 Patent
`
`The ’833 patent issued from an application filed on September 11,
`
`2008. Ex. 1001, [22]. Papasakellariou issued from an application filed on
`
`June 4, 2008. Ex. 1006, [22]. Because the application that led to the
`
`issuance of Papasakellariou was filed before the application for the
`
`’833 patent, Petitioner met its initial burden of production in establishing
`
`Papasakellariou as prior art. See In re Magnum Oil Tools Int’l, Ltd.,
`
`829 F.3d 1364, 1376 (Fed. Cir. 2016); Dynamic Drinkware, LLC v. Nat’l
`
`Graphics, Inc., 800 F.3d 1375, 1379 (Fed. Cir. 2015) (discussing Tech.
`
`Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008)).
`
`Thus, the burden of production shifts to Patent Owner to argue or produce
`
`evidence that the challenged claims of the ’833 patent are entitled to claim
`
`priority to one or more of the ’833 patent’s provisional applications. Pet. 20
`
`n.5 (citing Magnum Oil, 829 F.3d at 1376; Dynamic Drinkware, 800 F.3d at
`
`1379–80). In that regard, Petitioner asserts it “does not concede” that the
`
`’833 patent is entitled to claim the benefit of the provisional applications and
`
`Korean application identified on the face of the ’833 patent. Id. at 7 n.2.
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`As Patent Owner argues, the ’833 patent claims priority to provisional
`
`application no. 60/972,244, filed on September 13, 2007 (Ex. 1003),
`
`provisional application no. 60/987,427, filed on November 13, 2007 (“the
`
`’427 provisional,” Ex. 1004), and provisional application no. 60/988,433,
`
`filed on November 16, 2007 (Ex. 1012). Prelim. Resp. 18–19 (citing
`
`Ex. 1001, 1:11–15). Patent Owner contends that the priority date of the
`
`’833 patent is November 13, 2007, the filing date of the ’427 provisional.
`
`Id. In support of this contention, Patent Owner first asserts that, in the
`
`Litigation, “Petitioner has stipulated to the November 13, 2007 priority date
`
`of the ’833 patent.” Id. at 19 (citing Ex. 2009, 13 (“The priority date of the
`
`asserted claims of the ’833 patent is November 13, 2007.”). Patent Owner
`
`notes that Exhibit 2009 is the Joint Final Pretrial Order in the Litigation and
`
`that, as of the date thereof, only claims 8 and 13 of the ’833 patent were
`
`being asserted. Id. n.3. Patent Owner asserts that claim 8 is the apparatus
`
`claim version of method claim 1, which includes nearly identical claim
`
`limitations and is entitled to the same priority date. Id. Second, Patent
`
`Owner asserts that, “in an abundance of caution, Patent Owner presents a
`
`claim chart identifying disclosures from the ’427 provisional that support
`
`claim 1 of the ’833 patent.” Id. at 19–28 (citing Ex. 1004, 7–43, 53–79).
`
` Based on Patent Owner’s evidence, we agree with Patent Owner that
`
`the challenged claims of the ’833 patent are entitled to the benefit of the
`
`filing date of the ’427 provisional on November 13, 2007. In that regard,
`
`Patent Owner’s evidence demonstrates that Petitioner stipulated that the
`
`earliest effective priority date of claims 8 and 13 of the ’833 patent is
`
`November 13, 2007. Comparing claim 8 with claim 1, we agree with Patent
`
`
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`13
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`Owner that claim 8 is the apparatus claim version of method claim 1, which
`
`includes nearly identical claim limitations to claim 8, and is entitled to the
`
`same priority date as claim 8. Prelim Resp. 19. Patent Owner has also
`
`persuasively demonstrated in its claim chart that the limitations of claims 1–
`
`14 are supported by the disclosure of the ’427 provisional. Id. at 19–28.
`
`Therefore, we determine that claims 1–14 of the ’833 patent are entitled to
`
`the benefit of the filing date of the ’427 provisional on November 13, 2007.
`
`2.
`
`Effective Date of Papasakellariou
`
` In Dynamic Drinkware, the Federal Circuit held that, in an inter
`
`partes review, once a patent owner has responded to a petitioner’s argument
`
`with sufficient evidence that its patent is entitled to a priority date before a
`
`prior art reference, the burden of production shifts back to the petitioner to
`
`prove that the prior art reference is entitled to the benefit of the filing date of
`
`a provisional application. 800 F.3d at 1380. Thus, because Patent Owner
`
`has demonstrated that the earliest effective priority date of the ’833 patent is
`
`November 13, 2007, which is before the filing of Papasakellariou on June 4,
`
`2008, the burden of production returns to Petitioner to prove that
`
`Papasakellariou is entitled to the benefit of the earlier June 8, 2007, filing
`
`date of the ’843 provisional.
`
`As the parties argue and acknowledge, to meet its burden of proof,
`
`Petitioner is required to make two showings: (1) at least one claim of
`
`Papasakellariou is supported by the ’843 provisional; and (2) the portions of
`
`Papasakellariou relied upon in the Petition to demonstrate that the claims of
`
`the ’833 patent would have been obvious were included in the
`
`’843 provisional. Prelim. Resp. 33 (citing Dynamic Drinkware, 800 F.3d at
`
`
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`14
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`1378–79, 1383; In re Giacomini, 612 F.3d 1380, 1383 (Fed. Cir. 2010); Ex
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`parte Mann, No. 2015-3571, 2016 WL 7487271 (PTAB Dec. 21, 2016));
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`Pet. 19 (citing Cisco Sys., Inc. v. Capella Photonics, Inc., IPR2014-01276,
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`slip op. at 21–22 (PTAB Feb. 17, 2016) (Paper 40) (“Interpreting Dynamic
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`Drinkware, 800 F.3d at 1378, the Board has held that a § 102(e) reference is
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`available as prior art as of its provisional application’s filing date when the
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`provisional provides support for (1) at least one claim of the § 102(e)
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`reference and (2) the subject matter on which the petitioner relies.”)).
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` Petitioner contends that the relevant disclosures of Papasakellariou
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`are available as prior art and entitled to a § 102(e) prior art date of June 8,
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`2007, because the ’843 provisional provides support for (1) claims 4 and 5
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`of Papasakellariou and (2) the subject matter on which the Petition relies.
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`Pet. 19–20. In regard to aforementioned item (1), Petitioner cites the
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`portions of the ’843 provisional it contends support the limitations of
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`claims 4 and 5 of Papasakellariou. Id. at 21–27. In regard to
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`aforementioned item (2), Petitioner asserts that, as shown in its obviousness
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`analysis in the Petition, “the subject matter on which this Petition relies is
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`disclosed in the Papasakellariou Provisional [i.e., the ’843 provisional], as
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`well as Papasakellariou.” Id. at 27.
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`Patent Owner argues that, even assuming that Petitioner can establish
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`that the ’843 provisional supports one or more claims of Papasakellariou,
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`Petitioner cannot make the required showing under Dynamic Drinkware
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`because “the subject matter from Papasakellariou upon which Petitioner
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`relies is not in the Papasakellariou Provisional [i.e., the ’843 provisional].”
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`Prelim. Resp. 52. In particular, Patent Owner argues that Petitioner relies on
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`15
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`IPR2018-00807
`Patent 8,102,833 B2
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`Figure 2, and its related disclosures, from Papasakellariou, which purports to
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`disclose a two-step process wherein data and control signals are multiplexed
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`before being punctured with ACK/NACK signals, but this two-step
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`embodiment is not disclosed by the ’843 provisional. Id. at 52–64.
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`We agree with Patent Owner that Petitioner has not met its burden of
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`proof because Petitioner has not shown that the ’843 provisional discloses
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`Figure 2 and the related disclosures in Papasakellariou, on which the
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`Petition’s obviousness analysis relies, or any corresponding embodiment or
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`teachings.
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`As Patent Owner argues, Petitioner and its expert, Dr. Wells, rely
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`heavily on Figure 2 of Papasakellariou. Prelim. Resp. 52 (citing Pet. 33, 70,
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`79, 81, 84; Ex. 1008 ¶¶ 44–45, 103–104, 155, 221, 222, 239, 240, 242, 244,
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`246). For example, in regard to the portion of limitation 1[a] reciting
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`“multiplexing first control signals and data signals in a mobile station,”
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`Petitioner argues that Figure 2 of Papasakellariou “is a block diagram
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`illustrative of an exemplary SC-FDMA transmitter” and “discloses
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`multiplexing CQI bits 205 (i.e., ‘first control signals’) and data bits 210
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`(220) (i.e., ‘data signals’) in a mobile station.” Pet. 32–33 (citing Ex. 1006,
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`2:5–18, 3:55–56). Petitioner also argues that a person of ordinary skill in the
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`art would have understood that ‘“first control signals’ refers to control
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`signals . . . other than ACK/NACK control signals.” Id. (citing Ex. 1001,
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`[57], 1:40–44, 5:13–24; Ex. 1008 ¶¶ 153, 154). In regard to the portion of
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`limitation 1[c] reciting “wherein the ACK/NACK control signals overwrite
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`some of the multiplexed signals mapped to the 2-dimensional resource
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`matrix,” Petitioner argues that Papasakellariou discloses that “[c]oded CQI
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`bits 205 and coded data bits 210 are multiplexed 220” and that “if
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`ACK/NACK bits also need to be multiplexed,” 4 data bits or CQI bits (if
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`any) “may be punctured.” Id. at 63 (quoting Ex. 1006, 2:6–13). As
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`indicated in Petitioner’s supporting citation, this disclosure of
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`Papasakellariou also concerns Figure 2 of Papasakellariou. See Ex. 1006,
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`2:5–13. Thus, as Patent Owner argues, and we agree, Petitioner relies on
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`Figure 2 of Papasakellariou, and its related disclosure, to illustrate a two-step
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`process of multiplexing data and control information other than ACK/NACK
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`followed by puncturing with ACK/NACK signals. Prelim. Resp. 52.
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`Figure 2 of Papasakellariou is reproduced below.
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`4 Although Papasakellariou refers to “ACK/NAK,” rather than
`“ACK/NACK” as used in the ’833 patent, there is no dispute that these
`acronyms have the same meaning. Thus, for clarity and consistency, we
`replace the references to “ACK/NAK” in those portions of Papasakellariou
`quoted or referred to in this Decision with “ACK/NACK.”
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`17
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`As described in Papasakellariou, Figure 2 “is a block diagram
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`illustrative of a first exemplary SC-FDMA transmitter for multiplexing data
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`bits, CQI bits, and ACK/NACK bits in a transmission sub-frame.”
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`Ex. 1006, 3:58–60. There are 7 blocks in Figure 2, extending horizontally
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`from left to right, numbered 220, 230, 240, 250, 260, 270, and 280, with 1
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`block labeled “CONTROL OF LOCALIZED FDMA 255” located under the
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`others (and showing its output being input into the block labeled “SUB-
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`CARRIER MAPPING 250”). As shown in Figure 2, coded CQI bits 205
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`and coded data bits 210 are multiplexed at block 220. Id. at 2:6–7.
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`Papasakellariou explains that, if ACK/NACK bits also need to be
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`multiplexed, “the exemplary embodiment assumes that data bits are
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`punctured to accommodate ACK/NACK bits [at block] 230.” Id. at 2:7–10.
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`Papasakellariou further explains that the discrete Fourier transform (DFT) of
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`the combined data bits and control bits is then obtained at block 240, sub-
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`carriers 250 corresponding to the assigned transmission bandwidth are
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`selected, the inverse fast Fourier transform (IFFT) is performed at block 260,
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`and finally the cyclic prefix (CP) and filtering are applied at blocks 270 and
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`280, respectively, to the transmitted signal 290. Id. at 2:13–18.
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`Patent Owner also argues, and we agree, that Petitioner has not shown
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`that the ’843 provisional discloses an embodiment comprising a multi-step
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`process in which data and control signals are multiplexed before being
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`punctured with ACK/NACK signals, as disclosed in the ’833 patent and, as
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`Petitioner argues, in Figure 2 of Papasakellariou. Prelim. Resp. 53. First,
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`we agree with Patent Owner’s argument that neither Figure 2 nor its
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`description in Papasakellariou appears in the ’843 provisional. Id. at 56.
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`18
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`Second, we also agree with Patent Owner’s arguments that Petitioner
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`has failed to show that Figure 2 of the ’843 provisional discloses the subject
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`matter of Figure 2 of Papasakellariou on which Petitioner relies in its
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`obviousness analysis in the Petition. Petitioner cites Figure 2 of the ’843
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`provisional as disclosing “multiplexing first control signals and data signals
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`in a mobile station” (Pet. 34) and as “illustrating a transmitter with
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`substantially the same structure as Figure 2 of Papasakellariou” (id. 71–72).
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`As Patent Owner argues, however, Figure 2 of the ’843 provisional does not
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`correspond to Figure 2 of Papasakellariou, but instead corresponds to the
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`embodiment of Figure 3 of Papasakellariou, which is described as an
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`alternative embodiment to Figure 2 of Papasakellariou. Prelim. Resp. 56–57
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`(citing Ex 1006, 2:19–31). In other words, as Patent Owner argues,
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`Papasakellariou discloses two distinct embodiments for the SC-FDMA
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`transmitter—namely, a first embodiment shown in Figure 2 and the second
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`alternative embodiment shown in Figure 3. Id. at 54–56.
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`Figure 2 of the ’843 provisional and Figure 3 of Papasakellariou are
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`reproduced below.
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`Both of these figures are block diagrams of an SC-FDMA transmitter.
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`
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`Ex. 1006, 3:58–60; Ex. 1007, 2. Figure 2 of the ’843 provisional is labeled
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`“Multiplexing of Control and Data Signals,” and depicts 6 blocks extending
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`horizontally from left to right, with 1 block labeled “Control of localized
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`FDMA” located under the others (and showing its output being input into
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`the block labeled “Sub-carrier mapping”). Figure 3 of Papasakellariou,
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`which is not labeled, is described in Papasakellariou as “another block
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`diagram illustrative of a second exemplary SC-FDMA transmitter.”
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`Ex. 1006, 3:58–59. Figure 3 also depicts 6 blocks extending horizontally
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`from left to right, with 1 block labeled “Control of Transmission Bandwidth
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`355” located under the others (and showing its output being input into the
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`block labeled “SUB-CARRIER MAPPING 350”). Apart from the darkened
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`labels of four of the blocks of Figure 2 of the ’843 provisional, the diagrams
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`of Figure 2 of the ’843 provisional and Figure 3 of Papasakellariou are
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`essentially the same. In particular, both show control bits and data bits input
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`into the first block on the left labeled “Puncture Data Insert Control,” and
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`subsequent blocks labeled DFT, Sub-Carrier Mapping, IFFT, CP Insertion,
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`and Time Windowing, and then the transmitted signal.
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`
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`Patent Owner argues, and we agree, that Petitioner does not cite
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`Figure 3 of Papasakellariou or its related disclosure “a single time” in the
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`Petition. Prelim. Resp. 57. We also agree with Patent Owner that the
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`description of Figure 3 in Papasakellariou is almost exactly the same as the
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`description of Figure 2 in the ’843 provisional. Prelim. Resp. 57 (compare
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`Ex. 1006, 2:19–31, with Ex. 1007, 2).
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`
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`Third, we agree with Patent Owner that Figure 2 of the ’843
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`provisional does not disclose a multi-step process in which data signals and
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`control signals are multiplexed before being punctured by ACK/NACK
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`signals, as disclosed in the ’833 patent and, as Petitioner argues, in Figure 2
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`of Papasakellariou. Prelim. Resp. 52–53. Patent Owner argues, and we
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`agree, that the ’833 patent “distingui
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