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`UNITED STATES PATENT AND TRADEMARK OFFICE
`______________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`______________________
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`Intel Corporation
`Petitioner
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`v.
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`Qualcomm Incorporated
`Patent Owner
`______________________
`
`Case IPR2018-01152
`Patent 8,698,558
`______________________
`
`PRELIMINARY PATENT OWNER RESPONSE TO PETITION FOR
`INTER PARTES REVIEW PURSUANT TO 37 C.F.R. § 42.107
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`TABLE OF CONTENTS
`INTRODUCTION ......................................................................................... 1
`I.
`II. THE ’558 PATENT AND ITS PROSECUTION HISTORY .................... 1
`A. Overview of the ’558 Patent ............................................................... 1
`B.
`Prosecution History of the ’558 Patent .............................................. 5
`III. THE BOARD SHOULD EXERCISE ITS DISCRETION UNDER
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`35 U.S.C. § 325(d) TO DENY INSTITUTION BECAUSE CHU IS
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`CUMULATIVE OF PRIOR ART APPLIED BY THE PATENT
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`OFFICE DURING PROSECUTION .......................................................... 6
`IV. FILING FOUR SEPARATE PETITIONS AGAINST THE SAME
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`PATENT IS AN UNNECESSARY AND ABUSIVE DUPLICATION OF
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`PROCEEDINGS .......................................................................................... 16
`V. CONCLUSION ............................................................................................ 19
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`I.
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`INTRODUCTION
`Petitioner raises four grounds against three claims, but only one of those
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`grounds, an anticipation ground, is directed to independent claim 12. The other
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`grounds are directed to claims 13 and 14, which depend from claim 12. In its
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`anticipation analysis, the Petitioner asks the Board to consider a reference that is
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`nearly identical to the primary reference applied during prosecution and over
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`which independent claim 12 was allowed. And further, the Petitioner has made no
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`effort to meet its burden of showing why the Board should reconsider this
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`cumulative art. For at least this reason, the Board should exercise its discretion to
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`deny institution.
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`II. THE ’558 PATENT AND ITS PROSECUTION HISTORY
`A. Overview of the ’558 Patent
`U.S. Patent No. 8,698,558 (“the ’558 Patent”) describes and claims
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`inventions directed to managing the power associated with transmitting radio
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`frequency (“RF”) signals from a mobile device. Ex. 1001, 1:5-31. The ’558
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`Patent teaches improvements over known power management schemes by
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`employing a novel form of “envelope tracking.” Id., Title, 3:57-60. The ’558
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`Patent’s power management scheme achieves substantial power savings in mobile
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`device transmitters thereby extending a device’s battery life. Id. at 3:46-48.
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`1
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`In wireless communication systems, mobile devices communicate by
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`transmitting encoded data signals. Ex. 1001, 1:11-17. Before transmitting through
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`a communications channel, such encoded data signals are first conditioned to
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`generate RF output signals. Id. Such conditioning typically includes an
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`amplification step performed by a power amplifier (a “PA”) that provides a high
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`transmit power. Id. at 1:21-26. A desirable characteristic of mobile device power
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`amplifiers is an ability to provide high transmit power with high power-added
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`efficiency (“PAE”) and good performance even when the device’s battery is low.
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`Id.
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`Prior to the priority date of the ’558 Patent, typical PAs in a mobile device
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`were supplied with a constant power supply voltage, regardless of the PA’s output
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`power. The ’558 Patent illustrates this in Fig. 2A, below with annotation:
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`Fig. 2A illustrates using a battery voltage (Vbat) to supply PA 210, which
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`provides an RFout signal as an amplified version of RFin. Ex. 1001, 4:1-3. RFout
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`has a time-varying envelope illustrated by plot 250, which is juxtaposed with
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`voltage Vbat 260. Vbat remains higher than the largest amplitude of RFout’s
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`envelop in order to prevent clipping of RFout by PA 210. Id. at 4:2-7. A
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`drawback to this scheme is that the difference between the battery voltage and the
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`envelop of the RFout signal (shaded red) represents wasted power. Id. at 4:7-9.
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`As wasted power is undesirable, especially where power is limited by
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`battery life, the ’558 Patent employs “envelope tracking” in order to better manage
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`power consumption by using only an amount of power that is needed for a
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`particular signal. A PA employing envelope tracking is illustrated in Fig. 2C, with
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`annotations, below:
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`By employing envelope tracking to produce a PA power supply Vpa, represented
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`in plot 280, the “supply voltage closely tracks the envelope [250] of the RFout
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`signal over time.” Ex. 1001, 4:21-27. This maximizes PA efficiency by
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`minimizing the difference between Vpa and RFout over time, which results in less
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`wasted power. Id. at 4:27-32.
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`Implementing a PA supply with envelope tracking in a mobile device poses
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`unique challenges, because operating a mobile device with a low battery voltage is
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`often desirable (e.g. to reduce power consumption, extend battery life, etc.). Ex.
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`3
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`1001, 3:46-56. At times a PA may need to operate with a higher voltage than a
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`battery is providing, in which case a boost converter may be employed at the
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`expense of increased cost and power consumption. Id.
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`To address these issues, the ’558 Patent discloses an efficient design for
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`envelope tracking that employs a “switcher” and an “envelope amplifier” together
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`with a boost converter, as illustrated in Fig. 3, with annotations below:
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`Fig. 3 illustrates an exemplary switcher 160a with envelope amplifier 170a
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`operating cooperatively to create a supply current Ipa as the sum of Iind from the
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`switcher and Ienv from the envelop amplifier. Ex. 1001, 4:34-38.
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`A switcher, e.g. 160a, “has high efficiency” and may deliver “a majority of
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`the supply current for [PA] 130” in current Iind, which contains DC and low
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`frequency components. Id. at 3:14-17; 6:19-20. An envelope amplifier, e.g. 170a,
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`4
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`on the other hand operates as a linear stage and has high bandwidth. Id. at 6:20-22.
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`In the combination the switcher reduces the output current of the envelop amplifier
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`thereby improving overall efficiency, while the envelop amplifier provides the high
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`frequency components in current Ienv. Id. at 3:21-25; 6:22-24. In this way, the
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`overall efficiency increases by drawing the majority of current from the high
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`efficient switcher, and only relying on the envelope amplifier for the high
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`frequency components.
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`B.
`Prosecution History of the ’558 Patent
`The ’558 Patent issued from U.S. Application No. 13/167,659, filed June 6,
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`2011. Ex. 1002 at 38. Issued claim 12 was filed as original claim 18, which
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`depended from original independent claim 16. Ex. 1002 at 17-18, 207. A first
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`office action was issued on November 23, 2012, rejecting each original
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`independent claim, including—particularly relevant to this paper—claim 16, as
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`anticipated by Kim et al., entitled “High Efficiency and Wideband Envelope
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`Tracking Power Amplifier with Sweet Spot Tracking.” Ex. 1002, 59-61; Ex. 1013
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`(Kim), Title. The Examiner provided a detailed examination of original claims 16-
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`19 in view of Kim’s Figure 3 (see, Section IV below), including claims 16 and 18
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`that together recited the subject matter of issued independent claim 12. Ex. 1002 at
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`62-63. The Office rejected claims 16-17, and 19 over Kim, but found original
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`claim 18 to be allowable over Kim if rewritten in independent form. Ex. 1002 at
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`5
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`63. To overcome the rejections of original independent claim 16, the Applicant
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`incorporated the subject matter of original claim 16 into original claim 18 to form
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`independent claim 18, and amended claims 17 and 19 to depend from claim 18. Ex.
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`1002 at 83-84.
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`In a subsequent Final Office Action dated May 10, 2013, the Office
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`indicated that original claims 17-19, as amended, recited allowable subject matter
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`over the prior art of record including the Kim paper. Id. at 134. Thereafter, the
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`Applicant and the Office addressed unrelated claims before a Notice of Allowance
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`was issued on Feb. 13, 2014; original claims 18, 17 and 19 issued as claims 12, 13,
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`and 14 respectively. Id. at 185, 207. A typographical “copy and paste” error in
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`claim 12 was corrected in a Certificate of Correction issued on June 27, 2017,
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`deleting “a power amplifier operative to receive an envelope signal and provide a
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`second supply current based on the envelope signal; and.” Id. at 220-222, 240
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`III. THE BOARD SHOULD EXERCISE ITS DISCRETION UNDER
`35 U.S.C. § 325(d) TO DENY INSTITUTION BECAUSE CHU IS
`CUMULATIVE OF PRIOR ART APPLIED BY THE PATENT
`OFFICE DURING PROSECUTION
`Ground I of the Petition alleges that claims 12 and 14 of the ’558 Patent are
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`anticipated by Chu (Ex. 1004). As demonstrated below, Chu is nearly identical to
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`the envelope tracking power amplifier circuit disclosed in the Kim reference (Ex.
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`1013), which was specifically addressed by the Patent Office in its allowance of
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`claims 12 and 14 of the ’558 Patent. Moreover, the Petitioner has not even
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`6
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`attempted to demonstrate that Chu is somehow non-cumulative of the Kim
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`reference. See, e.g., Neil Ziegmann, N.P.Z., Inc. v. Stephens, IPR2015-01860,
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`Paper 13 at 10 (P.T.A.B. Sept. 6, 2017) (where a prior art reference presented in a
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`petition was already considered substantively by the Examiner, “the petitioner has
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`the initial burden to identify such errors made by the examiner with respect to that
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`prior art reference,” and factual findings made by the Examiner and “not contested
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`by the petitioner may be treated as undisputed fact for the purpose of evaluating
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`petitioner’s assertions concerning examiner error under [§] 325(d).”) The Board
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`should therefore exercise its discretion to deny institution under 35 U.S.C. § 325(d)
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`because the anticipation argument set forth in the Petition is cumulative of prior art
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`considered during examination. Id., at 8-9 (affirming denial of institution under
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`§ 325(d), “We conclude that a set of prior art or arguments may be considered
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`“substantially the same” if they are “cumulative to or substantially overlap with
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`issues previously considered by the Office with respect to the patent.”)
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`Ground I of the Petition proposes that independent claim 12 of the ’558
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`Patent is anticipated by Chu. The Petition attempts to demonstrate its anticipation
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`argument over Chu using the highlighted version of Chu’s Figure 4 reproduced
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`below.
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`7
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`See, e.g., Petition at 41.
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`As detailed above at Section II.B, the Kim reference was applied during
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`prosecution of the ’558 Patent to reject claims 1, 2, 6-17, 19-21 and 24-26.
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`Dependent claims 4, 5, 18, 22 and 23 were deemed allowable over Kim. Claim 18
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`was amended to be in independent form, and was subsequently allowed over Kim
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`and issued as independent claim 12. Claim 19 was allowed due to its dependence
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`from allowable claim 18, and issued as dependent claim 14. Claims 12 and 14 of
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`the ’558 Patent were thus allowed by the Patent Office upon specific consideration
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`of the Kim reference.
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`Figures 3 and 4 of the Kim reference are set forth below. Kim’s Figure 3
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`depicts a hybrid switching supply modulator with a boost converter. Figure 4
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`provides a transistor-level diagram of the wideband linear amplifier from Figure 3.
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`8
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`A comparison between Figures 3 and 4 of Kim and the disclosure of the
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`cited Chu reference demonstrates that Kim is almost identical to the portions of
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`Chu relied on in Ground I of the Petition. To help illustrate the correspondence
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`between the teachings of Kim and Chu, Figures 3 and 4 of Kim have been
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`highlighted in the following discussion in the same manner used by the Petitioner
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`to highlight Figure 4 of Chu.
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`Figure 4 of Chu (as highlighted by the Petitioner) is set forth below
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`alongside a similarly highlighted version of Kim’s Figure 3.
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`9
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`The Petitioner’s highlighted version of Figure 4 shows that Chu includes an
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`envelope input signal (highlighted in dark purple), a linear amplifier circuit
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`(highlighted in light purple), a switch-mode supply modulator (highlighted in
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`yellow), an inductor (highlighted in pink), and a power amplifier (highlighted in
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`red).1 See, Id. at 40-58. In comparison, Figure 3 of Kim also depicts a hybrid
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`switching supply modulator that includes an envelope signal input (highlighted in
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`dark purple), a linear amplifier (highlighted in light purple), a switching amplifier
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`(highlighted in yellow), an inductor (highlighted in pink), and a power amplifer
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`(highlighted in red.)
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`First, Kim and Chu disclose nearly identical linear amplifier circuits, as
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`further demonstrated by comparing the highlighted versions of Figure 4 of Chu and
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`Figure 4 of Kim set forth below.
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`1 The Current Sensing Circuit (highlighted in light green) is not relied on for
`any ground included in the Petition.
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`10
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`The above highlighted version of Figure 4 shows that Chu’s linear amplifier
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`(highlighted in purple) includes an OTA (circled in red), a class-AB biasing stage
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`(circled in blue), and an output stage (output transistors circled in orange and pink).
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`Likewise, Figure 4 of Kim depicts the identical circuit, including an OTA (circled
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`in red), a class-AB biasing stage (circled in blue), and an output stage (output
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`transistors circled in orange and pink.) See also, Ex. 1013 (Kim) at 256 (“As
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`shown in Fig. 4, we use folded-cascode OTA as a gain stage to achieve a large
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`bandwidth and high DC gain. For large current driving capability and rail-to-rail
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`operation, the output buffer has a common source configuration and it is biased as
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`class-AB for linearity and efficiency.”)
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`The equivalence between the linear amplifier designs in Kim and Chu is
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`further evident by comparing Figure 14 of Chu with Kim’s Figure 4. As shown
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`below, both include an identical input stage (circled in red in Kim’s Figure 4), a
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`class-AB biasing stage (circled in blue in Kim), and an output stage with a
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`PMOS/NMOS transistor pair (circled in orange and pink).
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`11
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`Second, as demonstrated by the highlighted diagrams below, Kim’s
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`switching amplifier (highlighted in yellow) is cumulative of the switch-mode
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`supply modulator shown in Figure 4 of Chu (highlighted in yellow). As shown in
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`the first set of diagrams below, the switch-mode supply modulator in Chu and the
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`switching amplifier in Kim both include comparator circuits (highlighted with a
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`red box in both figures.) See also, Ex. 1013 (Kim) at 256 (“The high efficiency,
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`low speed switching amplifier operates as a dependent current source. It senses the
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`direction of the linear amplifier’s current and controls the switching amplifier
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`using a hysteretic comparator.”)
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`The next set of diagrams below demonstrates that the switch-mode supply
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`modulator in Chu and the switching amplifier in Kim both include a driver
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`(highlighted by a pink box in both figures.)
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`12
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`Finally, the last set of diagrams below shows that the switch-mode supply
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`modulator in Chu and the switching amplifier in Kim both include an output stage
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`with a PMOS transistor (highlighted by blue boxes in the first set of diagrams) and
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`an NMOS transistor (highlighted by orange boxes in the second set of diagrams.)
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`13
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`As demonstrated above, there is no question that the Petitioner’s reliance on
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`Chu, as set forth in Ground I of the Petition, is cumulative of the Kim reference
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`applied during prosecution. The Petitioner may be unsatisfied with the conclusion
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`of the Patent Office that claims 12 and 14 are patentable over Kim, but asking the
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`Board to reconsider the equivalent of this same prior art in inter partes review is
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`precisely the kind of duplication of effort and waste of judicial resources that the
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`PTAB has consistently avoided.
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`In evaluating whether to deny institution on the basis of 35 U.S.C. § 325(d),
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`the Board considers the following list of factors set forth in Becton Dickinson &
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`Co. v. B. Braun Melsungen AG, IPR2017-01586, Paper 8 at 17-18 (PTAB Dec. 15,
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`2017)(informative):
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`1. the similarities and material differences between the asserted
`art and the prior art involved during examination:
`2. the cumulative nature of the asserted art and the prior art
`evaluated during examination;
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`14
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`3. the extent to which the asserted art was evaluated during
`examination;
`4. the extent of the overlap between the arguments made during
`examination and the manner in which a petitioner relies on the
`prior art or a patent owner distinguishes the prior art;
`5. whether a petitioner has pointed out sufficiently how the
`Office erred in evaluating the asserted prior art; and
`6. the extent to which additional evidence and facts presented
`in the petition warrant reconsideration of the prior art to arguments.
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`The Becton Dickinson factors support denying institution here. As
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`demonstrated above, the Kim reference that was evaluated and applied during
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`examination is nearly identical to the portions of the Chu reference relied upon by
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`the Petitioner. Factors 1-4 therefore weigh strongly in favor of non-institution. As
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`to factors 5 and 6, the Petitioner, despite having the burden of proof, has made no
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`attempt to demonstrate any error by the Patent Office or any other reason why
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`reconsideration might be warranted. Factors 5 and 6 should therefore also be
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`weighed in favor of the Patent Owner.
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`For at least these reasons, the Board should exercise its discretion to deny
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`institution of Ground I under 35 U.S.C. § 325(d).
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`Grounds II-IV of the Petition address dependent claims 13 and 14, both of
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`which depend from independent claim 12. Because the Petition does not set forth a
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`15
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`non-cumulative ground for independent claim 12, Grounds II-IV of the Petition
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`should also be denied under 35 U.S.C. § 325(d) for the same reasons as Ground I.
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`IV. FILING FOUR SEPARATE PETITIONS AGAINST THE
`SAME PATENT IS AN UNNECESSARY AND ABUSIVE
`DUPLICATION OF PROCEEDINGS
`Shortly after the Supreme Court’s SAS decision, the Patent Office decided
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`that, if it instituted an IPR, it would do so not only on all claims, as is clearly
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`required by SAS, but also “on all challenges raised in the petition.” See PTAB
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`“Guidance on the Impact of SAS on AIA Trial Proceedings,” April 26, 2018
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`(https://www.uspto.gov/sites/default/files/documents/guidance_on_the_impact_of_
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`sas_on_aia_trial_proceedings_%20(april_26,_2018).pdf). The Federal Circuit has
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`since ratified that stance, explaining, “equal treatment of claims and grounds for
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`institution purposes has pervasive support in SAS.” Adidas AG v. Nike, Inc., 894
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`F.3d 1256, 1258 (Fed. Cir. 2018) (quoting PGS Geophysical AS v. Iancu, 891 F.3d
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`1354, 1360 (Fed. Cir. 2018). During its April 30, 2018, Chat with the Chief
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`presentation, then PTAB Chief Judge Ruschke cautioned that the presence of weak
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`grounds in a petition could result in a complete denial of institution even if other
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`unpatentability allegations met the threshold for institution. 2 Realizing that weak
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`2 See “Chief Judge Guidance: SAS Impact, Motions to Amend, and Claim
`Construction,” PTAB Litigation Blog,
`June 5, 2018,
`available
`at:
`http://www.ptablitigationblog.com/chief-judge-guidance-sas-impact-motions-to-
`amend-and-claim-construction/ (“Instead, the panel would evaluate the challenges
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`positions could jeopardize an entire petition, the Petitioner has divided its
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`challenges to the ’558 Patent claims that would normally fit into one or two
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`petitions, hoping to increase its odds of institution.
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`But petition filing tactics that unduly multiply the number of proceedings are
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`ripe for exercise of the PTAB’s discretion under 35 U.S.C. § 314(a). See American
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`Honda Motor Co., Inc. v. Intellectual Ventures II LLC, IPR2018-00349, Paper 9 at
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`21 (PTAB, June 27, 2018). This discretion under § 314(a) is “guided by the
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`statutory requirement [to consider] the efficient administration of the Office [and]
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`the ability of the Office to timely complete proceedings.” Tittex International, Ltd.
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`V. Precision Fabrics Group, Inc., IPR2015-01671, Paper 7 at 6 (PTAB, Feb. 11,
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`2016) (citing 35 U.S.C. § 316(b)). Needless duplication of proceedings is certainly
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`not in the interests of “efficient administration of the Office” nor does it promote
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`“the ability of the Office to timely complete proceedings.”
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`Instead, such tactics unnecessarily multiply the amount of material that the
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`Board and patent owner must traverse to assess the patentability of the ’558 Patent
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`claims. Patent owner is now tasked with the expense of analyzing and responding
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`to four petitions at the preliminary, and possibly trial phases, for no reason beyond
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`(continued…)
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`and determine whether, in the interests of efficient administration of the USPTO
`and integrity of the patent system (see 35 USC § 316(b)), the entire petition should
`be denied under 35 USC § 314(a).”)
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`Petitioner’s game playing to try to avoid the Supreme Court’s SAS edict. Just as
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`“[m]ultiple, staggered petitions challenging the same patent and same claims raise
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`the potential for abuse” in the General Plastic context, the same is true in the SAS
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`context, where Board and patent owner resources are pointlessly wasted solely to
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`increase petitioner’s perceived institution odds.
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`Petitioner provides no explanation for its convoluted filing strategy and why
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`it requires 56,000 words (4 * 14,000) to make its case that 20 claims of the ’558
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`Patent are unpatentable. The Board has repeatedly instructed petitioners to explain
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`off-nominal filing strategies to avoid the PTAB’s exercise of its § 314(a) discretion.
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`See Alere Inc. v. Rembrandt Diagnostics, LP, IPR2017-01130, Paper 10 at 10
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`(PTAB, Sept. 28, 2017) (“[A] petitioner should explain why the second review
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`proceeding is appropriate. Petitioner provides no such reasoning here. Thus, we
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`find this factors weighs strongly in favor of non-institution.”); see also, General
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`Plastic factor (5).
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`Petitioner’s ruse to circumvent a Supreme Court directive should not be
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`entertained.
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` Petitioner, without explanation, gratuitously duplicates
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`the
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`proceedings, increasing Board and patent owner burdens. The PTAB has broad
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`discretion to deny petitions that exhibit abusive tactics under 35 U.S.C. § 314(a).
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`The Board should exercise that discretion here in the interests of efficient operation
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`and integrity of the Office.
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`18
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`V. CONCLUSION
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`Under 35 U.S.C. § 314(a), the burden is placed on the Petitioner to meet the
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`minimum statutory threshold for instituting a trial. Intel falls short of meeting its
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`burden. Instead of providing a detailed analysis, Petitioner relies on vague,
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`conclusory assertions that do not meet the particularity requirements of the relevant
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`statutes and rules. In sum, the Petition fails to establish a reasonable likelihood that
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`any challenged claim of the ’558 Patent is unpatentable. Therefore, the Board
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`should deny Intel’s petition and not institute proceedings in this matter.
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`Respectfully submitted,
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`Date: _10/17/2018__________
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`By: / Joseph M. Sauer /
`Joseph M. Sauer, Reg. No. 47,919
`David B. Cochran, Reg. No. 39,142
`David M. Maiorana, Reg. No. 41,449
`JONES DAY
`North Point, 901 Lakeside Avenue
`Cleveland, OH 44114
`(216) 586-3939
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`Matthew W. Johnson, Reg. No. 59,108
`Joshua R. Nightingale, Reg. No. 67,865
`JONES DAY
`500 Grant Street, Suite 4500
`Pittsburgh, PA 15219
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`CERTIFICATE OF COMPLIANCE
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`I, the undersigned, certify that the above Patent Owner Preliminary
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`Response complies with the applicable type-volume limitations of 37 C.F.R.
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`§ 42.24 (b)(1). Exclusive of the portions exempted by 37 C.F.R. § 42.24(a), this
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`Preliminary Response, including footnotes, contains 3,660 words, as counted by
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`the word count function of Microsoft Word. This is less than the limit of 14,000
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`words as specified by 37 C.F.R. § 42.24(a)(i).
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`Date: October 17, 2018
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`/ Joseph M. Sauer /
`Joseph M. Sauer
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Tel: (216) 586-7506
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`Counsel for Patent Owner
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`-i-
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies
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`that a copy of
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`the
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`foregoing
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`PRELIMINARY PATENT OWNER RESPONSE TO PETITION FOR INTER
`
`PARTES REVIEW PURSUANT TO 37 C.F.R. § 42.107 was served on October
`
`17, 2018 by email, as follows:
`
`David Cavanaugh, Esq.
`david.cavanaugh@wilmerhale.com
`
`Richard Goldenberg, Esq.
`richard.goldenberg@wilmerhale.com
`
`Nina Tallon, Esq.
`nina.tallon@wilmerhale.com
`
`Joseph Mueller, Esq.
`joseph.mueller@wilmerhale.com
`
`Todd Zubler, Esq.
`todd.zubler@wilmerhale.com
`
`Kathryn Zalewski, Esq.
`kathryn.zalewski@wilmerhale.com
`
`Theodoros Konstantakopoulos, Esq.
`theodoros.konstantakopoulos@wilmerhale.com
`
`Date: October 17, 2018
`
`
`
`/ Joseph M. Sauer /
`Joseph M. Sauer
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Tel: (216) 586-7506
`
`Counsel for Patent Owner
`
`-ii-
`
`
`
`
`
`
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