I hereby certify that this paper (along with any paper referred to as being
`attached or enclosed) is being transmitted today via the Office electronic
`filing system (EFS—Web) in accordance with 37 CPR §l.() (ax-4).
`
`Date: September 14, 2012.
`
`Signature: /Andrea S. Beck/
`Printed Name: Andrea S. Beck
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`In re Application of:
`
`Inventors: Baliarda et a].
`
`REQUES’I' FOR REEXAMINA’I‘ION UNDER
`
`35 U.S.C. §§ 311 ETSEQ., AND
`37 C.F.R. §§ 1.913 AND 1.915
`
`Patent N0.: 7,015,868
`
`Filed: October 12, 2004
`
`For: Multilevel Antennae
`
`Mail Stop Inter Parres Reexamination
`ATTN: Central Reexamination Unit
`
`Commissioner for Patents
`
`PO. Box 1450
`
`Alexandn'a, VA 22313-1450
`
`REQUEST FOR INTER PARTES REEXAMINATION OF US. PATENT 7,015,868
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 1 of 67
`
`Fractus S.A.
`
`Ex. 2035
`
`

`

`TABLE OF CONTENTS
`
`REQUEST FOR l/VTE/PPA/I’TESREEXAMINATION OF US. PATENT 7,015,868 .........I
`
`A.
`
`B.
`
`C.
`
`D.
`
`PRIOR ART (PA)
`
`RELEVANT PATENT MATERIALS (PAT)
`
`CLAIM CHARTS (CC)
`
`IV
`
`IV
`
`IV
`
`OTHER DOCUMENTS (0TH) IV
`
`REQUEST FOR l/VIZX’PAIPTESREEXAMINATION OF US. PATENT 7,015,868
`
`l
`
`STATEMENT UNDER 37 C.F.R. § 1.915(B)(3) OF EACH PROPOSED
`
`REQUIREMENTS FOR l/VTE/PPAITES’REEXAMINATION UNDER 37 C.F.R.
`
`I.
`
`II.
`
`III.
`
`A.
`
`D.
`
`E.
`
`OVERVIEW OF THE ‘868 PATENT AND PROSECUTION HISTORY
`
`INTRODUCTION
`
`Jib)
`OVERVIEW OF THECLAIMS\IC‘SAJ:
`
`THE ‘868 PATENT APPLICATION PROSECUTION HISTORY
`
`1.
`
`2.
`
`RELATED INTER PARTES REEXAMINATION OF THE ‘868 PAH-N1
`
`RELATED CO-PENDING LITIGATION REQUIRES TREATMENT WITH SPECIAL
`DISPATCH AND PRIORITY OVER ALL OTHERCASES OO
`
`CLAIMCONSTRUCTIONS
`
`PATENT OWNER’S INFRINGEMENT CONTENTIONS9
`
`IV.
`
`STATEMENT ESTABLISHING A REASONABLE LIKELIHOOD THAT THE
`
`REQUESTER WILL PREVAIL WITH RESPECT TO AT LEAST ONE CLAIM
`
`UNDER 37 C.F.R. § 1.915 (B) ........................................................................................ 10
`
`A.
`
`B.
`
`GRANGEAT PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 26, 32, 33, AND
`35 OPTHE ‘868PATENTll
`
`YANIGASAWA ‘064 PRESENTS AN RLP WITH RESPECT TO CIAIMS 1, 26, 32,
`33. AND 35 OF THE “868PATENT l4
`
`PANKINAHO PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 26, 32, 33,
`AND 35 OF THE ‘868 PATENT17
`
`YANG PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 32, 33, AND 35 OF
`TIIE “868PATENT 19
`
`Ex. 2035
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461|l
`Page 2 of 67
`
`Fractus S.A.
`
`

`

`E.
`
`YANG IN VIEW OF THE KNOWLEDGE OF A PERSON OF ORDINARY SKILL IN
`
`TIIE ART PRESENTS AN RLP WITII RESPECT TO CLAIM 26 OF THE ‘868
`
`22
`
`V.
`
`MANNER OF APPLYING THE CLAIMS AS REQUIRED BY 37 CFR § 1.915 (B)
`24
`
`A.
`
`CLAIMS 1. 26. 32. 33. AND 35 ARE ANTICIPATED BY GRANGEAT UNDER 35
`
`B.
`
`CLAIMS 1, 26, 32, 33, AND 35 ARE ANTICIPATED BY YANAGISAWA ‘064
`
`UNDER 35 U.S.C.§102
`
`C.
`
`CLAIMS 1, 26, 32, 33, AND 35 ARE ANTICIPATED BY PANKINAHO UNDER 35
`
`D.
`
`CLAIMS 1, 32, 33, AND 35 ARE ANTICIPATED BY YANG UNDER 35 U.S.C.
`
`E.
`
`CLAIM 26 IS RENDERED OBVIOUS BY YANG IN VIEW OF THE KNOWLEDGE
`
`OF A PERSON OF ORDINARY SKILL IN THE ART UNDER 35 U.S.C. § 103
`
`VI.
`
`24
`
`36
`
`42
`
`49
`
`50
`
`Ex. 203.5
`ZTE (USA), Inc. v. Fractus S.A.; IPR2018—o146‘l'
`Page 3 of 67
`
`Fractus S.A.
`
`

`

`TABLE OF EXHIBITS
`
`LIST OF EXHIBITS
`
`The exhibits to the present Request are arranged in four groups: prior art (“PA”), relevant patent
`prosecution file history, patents, and claim dependency relationships (“PAT"), claim charts
`(“CC”), and other (“0TH”).
`
`A. PRIOR ART (PA)
`
`PA-SB08A/B USPTO Form SB/08A/B
`
`PA-A
`
`PA-B
`
`PA-C
`
`PA-D
`
`US. Patent No. 6,133,879 to Grangeat et (11. issued on October 17, 2000
`(“Grangeat”)
`
`US. Patent No. 5,995,064 to Yanagisawa et (11.
`1999 (“Yanagisawa ‘064”)
`
`issued on November 30,
`
`US. Patent No. 6,140,966 to Pankinaho issued on October 31, 2000
`
`(“Pankinaho”)
`
`US. Patent No. 6,300,914 to Yang issued on October 9, 2001 (“Yang”)
`
`B. RELEVANT PATENT MATERIALS (PAT)
`
`PAT-A
`
`US. Patent No. 7,015,868 (“the ‘868 patent”)
`
`C. CLAIM CHARTS (CC)
`
`CC-A
`
`CC-B
`
`CC-C
`
`CC—D
`
`CC-E
`
`Claim Chart comparing Claims 1, 26. 32, 33, and 35 of the “868 patent to the
`disclosure of Grangeat
`
`Claim Chart comparing Claims 1, 26, 32, 33, and 35 of the “868 patent to the
`disclosure of Yanagisawa ‘064
`
`Claim Chart comparing Claims 1. 26, 32, 33, and 35 of the ‘868 patent to the
`disclosure of Pankinaho
`
`Claim Chart comparing Claims 1, 32, 33, and 35 of the ‘868 patent to the
`disclosure of Yang
`
`Claim Chan comparing Claim 26 of the ‘868 patent to the disclosure of
`Yang in view of the knowledge of a person of ordinary skill in the alt
`
`D. OTHER DOCUMENTS (0TH)
`
`OTH-A
`
`OTH-B
`
`Second Amended Complaint filed December 2. 2009 in the case of Frartus
`S.A. v. Samsung Electronics Co. Ltd. et ((1., Case No. 6:09cv203 (ED. Tex.)
`
`Preliminary Infringement Contentions for the ‘868 patent in the case of
`Fractus S.A. v. Samsung Electronics Co. Ltd. El ((1., Case No. 6:09cv203
`(ED. Tex.)l
`
`1 Only a subset of the Preliminary Infringement Contentions is provided to avoid overloading the Patent Office with
`material in this Request for Reexamination.
`
`Ex. 203.5
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O146‘i
`Page 4 of 67
`
`Fractus S.A.
`
`

`

`OTH-C
`
`OTH-D
`
`OTH—E
`
`OTH-F
`
`Infringement Trial Demonstrative presented by Patent Owner’s expert, Dr.
`Long, in the case of Fractus SA. v. Samsung Electronics Co. Ltd. Et ((1.,
`Case No. 6:09cv203 (E.D. Tex.)
`
`Action Closing Prosecution of co-pending reexamination of the ‘868 patent.
`
`Court Claim Construction in the case of Fractus SA.
`Electronics Co. Ltd. Et ((1., Case No. 6:09cv203 (ED. Tex.).
`
`v. Samsung
`
`Deposition of Dr. Jaggard taken August 27, 2010 (Public Version with
`pages 151 to 159 redacted)
`
`Ex. 2035
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O146)1
`Page 5 of 67
`
`Fractus S.A.
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`REQUEST FOR REEXAMINATION UNDER
`35 U.S.C. §§ 311 E'I'SEQ., AND
`37 C.F.R. §§ 1.913 AND 1.915
`
`In re Application of:
`
`Inventors: Baliarda et a].
`
`Patent No.2 7,015,868
`
`Filed: October 12, 2004
`
`For: Multilevel Antennae
`
`Mail Stop Inter Parles Reexamination
`ATTN: Central Reexamination Unit
`
`Commissioner for Patents
`
`PO. Box 1450
`
`Alexandria, VA 22313-1450
`
`REQUEST FOR INTER PARTES REEXAMINATION OF US. PATENT 7,015,868
`
`Dear Sir:
`
`Pursuant to 37 CPR. § l.915(b)(8), the Real Party in Interest, Samsung Electronics Co.
`
`Ltd. (hereinafter “Requester”) hereby respectfully requests reexamination pursuant to 35 U.S.C. §§
`
`31 1 et seq. and 37 CPR. § 1.902 et seq., of Original Claims 1, 26, 32, 33, and 35 of US. Patent No.
`
`7,015,868 (“the ‘868 patent") filed October 12, 2004 and issued March 21, 2006 to Baliarda, et (1].
`
`See Exhibit PAT-A.
`
`Although Samsung has a co—pending inter partes reexamination proceeding against the ‘868
`
`patent, this reexamination request is being filed concurrently with a petition that the Director permit
`
`Samsung to file a second inter par/es reexamination proceeding. As discussed in more detail in the
`
`concurrently filed petition, pursuant to the Leahy-Smith America Invents Act (“AIA”), effective
`
`September 16, 2012. Requestor-Petitioner will no longer be able to file a request for inter partes
`
`reexamination of the ‘431 Patent. Furthermore, because Requester-Petitioner was served with a
`
`complaint for infringement of the ‘431 Patent more than one year ago, Requester-Petitioner does
`
`not have the automatic right to seek inter partes review of the ‘43] Patent. See 35 U.S.C. §
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 6 of 67
`
`Fractus S.
`
`Ex. 203
`
`

`

`314(a)
`
`(effective September 16, 2012). Accordingly, unless the Director authorizes this
`
`subsequent request for inter partes reexamination, Requester-Petitioner will not have any avenue
`
`for a further inter partes challenge to the patentability of the ‘431 Patent. Requester-Petitioner
`
`submits
`
`that
`
`these
`
`extraordinary circumstances, where
`
`both
`
`additional
`
`inter partes
`
`reexamination and inter partes review may be unavailable for Requester-Petitioner as of
`
`September 16, 2012, the Director should exercise discretion to authorize this subsequent inter
`
`partes reexamination request, as permitted by 35 U.S.C. § 317(a) and 37 C.F.R. § 1.907(a).
`
`1. STATEMENT UNDER 37 C.F.R. § 1.915(B)(3) OF A REASONABLE
`LIKELIHOOD TO PREVAIL
`
`This Request
`
`is based on the cited prior art documents set forth herein and on the
`
`accompanying Form PTO-SB/OSA/B. See Exhibit PA-SB/OSA/B. All of the cited prior art
`
`patents and publications constitute effective prior art as to the claims of the ‘868 patent under
`
`35 U.S.C.§ 102 and 35 U.S.C.§ 103.
`
`Pursuant to 37 C.F.R. § 1.915(b)(8), Requester hereby respectfully requests reexamination
`
`pursuant to 35 U.S.C. §§ 311 et seq. and 37 C.F.R. § 1.902 et. seq, of Original Claims 1, 26, 32, 33,
`
`and 35 of the ‘868 patent. Reexamination is requested in view of the reasonable likelihood of
`
`establishing that the Requester will prevail with respect to at least one claim (hereinafter “RLP”),
`
`and which is supported in the detailed proposed rejections found thereafter, as well as in the
`
`accompanying claim charts in which specific prior art citations are made relative to the claims’
`
`recitations. Requester reserves all rights and defenses available including, without
`
`limitation,
`
`defenses as to invalidity and unenforceability. By simply filing this Request in compliance with
`
`applicable statutes, rules, and regulations, Requester does not represent, agree or concur that the
`
`‘868 patent
`
`is enforceable} By asserting the RLPs herein, Requester specifically asserts that
`
`Original Claims Claims 1, 26, 32, 33, and 355 of the ‘868 patent are in fact not patentable.
`
`Accordingly, the U.S. Patent and Trademark Office (“the Office”) should reexamine and
`
`find Claims 1, 26, 32, 33, and 35 of the ‘868 patent unpatentable and cancel these claims, rendering
`
`them null, void, and otherwise unenforceable.
`
`1 As alleged by Patent Owner in the below defined Underlying Litigation. and as required by 37 C.F.R. § 1.913. the ‘868
`patent is still within its period of enforceability for reexamination purposes. to the extent that the ‘868 patent has not
`lapsed for failure to pay maintenance fees. has not been the subject of any Terminal Disclaimer. and has not yet been
`held unenforceable in a court of competent jurisdiction.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 7 of 67
`
`Fractus SA,
`Ex. 2035
`
`

`

`ll.
`
`REQUIREMENTS FOR l/VTEIPPA/PI’ES'REEXAMINATION UNDER 37 C.F.R.
`§ 1.915
`
`Requester satisfies each requirement for Inter Panes reexamination of the ‘868 patent
`
`pursuant to 37 CPR. § 1.915. A full copy of the ‘868 patent is submitted herein as Exhibit PAT—
`
`A in accordance with 37 CPR. § 1.915(b)(5).
`
`Pursuant to 37 CPR. § 1.915(b)(7), Requester certifies that the estoppel provisions of 37
`
`CPR. § 1.907 do not prohibit the filing of this Inter Parles reexamination.
`
`Pursuant to 37 CPR. §1.915(b)(4), a copy of every patent or printed publication relied
`
`upon to present an RLP is submitted herein at Exhibits PA-A through PA-D, citation of which
`
`may be found on the accompanying Form PTO-SB/OSA as Exhibit PTO-SB/OSA in accordance
`
`with 37 CPR. § 1.915(b)(2). Each of the cited prior art publications constitute effective prior art
`
`as to the claims of the ‘868 patent under 35 U.S.C. § 102 and 35 U.S.C. § 103. Furthermore, each
`
`piece of prior art submitted was either not considered by the Office during the prosecution of the
`
`‘868 patent or is being presented in a new light under MPEP § 2642 as set forth in the detailed
`
`explanation below and in the attached claim charts.
`
`A statement pointing out each RLP based on the cited patents and printed publications,
`
`and a detailed explanation of the peitinency and manner of applying the patents and printed
`
`publications to Claims 1, 26, 32, 33, and 35 0f the “868 patent, is presented below and in attached
`
`claim charts in accordance with 37 C.F.R. § 1.915 (b)(3).
`
`A copy of this request has been served in its entirety on the patent owner in accordance
`
`with 37 C.F.R. § 1.915(b)(6) at the following address:
`
`EDELL, SHAPIRO & FINNAN, LLC
`1901 RESEARCH BOULEVARD
`
`SUITE 400
`
`ROCKVILLE MD 20850
`
`In accordance with 37 C.F.R. § 1.915(a), a credit card authorization to cover the Fee for
`
`reexamination of $8,800.00 is attached. If this authorization is missing or defective, please
`
`charge the Fee to the Novak Druce and Quigg Deposit Account No. 14-1437.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 8 of 67
`
`Fractus S.
`
`Ex. 203
`
`

`

`Ill.
`
`OVERVIEW OF THE ‘868 PATENT AND PROSECUTION HISTORY
`
`A.
`
`INTRODUCTION
`
`The ‘868 patent is directed to a multilevel antenna structure formed by a set of similar
`
`geometric elements. ‘868 patent at Abstract. In particular. a multilevel antenna may operate at
`
`several
`
`frequency bands simultaneously and purportedly result
`
`in a size reduction when
`
`compared to a conventional antenna. ‘868 patent at C0]. 6, lines 19-34. The ‘868 patent, in its
`
`specification. describes that “fractal or multifractal
`
`type antenna” exhibit a multifrequency
`
`behavior and in certain cases can be done in a “small size.” ‘868 patent at Col. 1, lines 13-19.
`
`Patent Owner admits that
`
`the prior art discloses fractal antennae (“Spanish Patent number
`
`9,501,019”) and multitriangular antennae (“Spanish Patent number 9,800,954”) which operate in
`
`multiple frequency bands simultaneously. ‘868 patent at Col. 1, lines 36-41. Furthermore, the
`
`Patent Owner suggests that the problem with those antennae was of a “practical nature which
`
`limit the behaviour of said antennae and reduce their applicability in real environments." ‘868
`
`patent at Col. 1, lines 42-46. The Patent Owner has not shown, in any form, how its alleged
`
`invention is novel over the antennae of the prior art. Accordingly, as will be set forth in detail
`
`below, Claims 1, 26. 32. 33. and 35 of the ‘868 patent are not patentable, and should be rejected
`
`in view of the proposed RLPs raised in this Request, rendering these claims, null, void, and
`
`otherwise unenforceable.
`
`1. THE ‘868 PATENT APPLICATION PROSECUTION HISTORY
`
`On October 12, 2004, the Patent Owner filed Application No. 10/963,080 (“the ‘080
`
`Application”) which is a continuation of Application No. 10/102,568 (“the ‘568 Application”).
`
`In its filing, the Patent Owner pursued claims 1-38 with claim 1 being the only independent
`
`claim. A Preliminary Amendment was filed on December 8, 2004 amending claim 1.
`
`Specifically, claim I was amended as follows:
`
`least one
`(Currently Amended) A—n A multi-band antenna including at
`1.
`multilevel structure wherein the multilevel structure comprises a set of polygonal
`or polyhedral elements heaving the same number of sides or faces, wherein each
`of said elements is electromagnetically coupled to at
`least one other of said
`elements either directly through at least one point of contact or through a small
`separation providing coupling, wherein for at least 75% of said polygonal or
`polyhedral elements,
`the region or area of contact between said polygonal or
`polyhedral elements is less than 50% of the perimeter or area of said elements,
`and wherein not all the polygonal or polyhedral elements have the same size m
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 9 of 67
`
`Fractus S.A
`Ex. 203g
`
`

`

`the perimeter of the multilevel structure has a different number of sides than the
`polygons that compose it.
`
`A Non-Final Office Action issued on June 15, 2005 (“Office Action”). In the Office
`
`Action, inter alia, claims 1 and 18 were rejected under 35 U.S.C. § 112, second paragraph, as
`
`being indefinite. Specifically, claim 1 was rejected for the use of the term “it” and claim 18 was
`
`rejected because “the ground plane” lacked proper antecedent basis. Claims 1-7, 13, 14, 18, 21-
`
`27, and 29 were rejected as being anticipated by WO publication (WO 01/82410) to Puente
`
`Baliarda (“Puente Baliarda”) which was assigned to Fractus, S.A. (the same assignee as the ‘868
`
`Patent). Claims 8-12, 15 and 16 were rejected as being unpatentable over Puente Baliarda in
`
`view of US. Patent 6,650,294 to Ying et al. (“Ying”). Claims 17 and 32-38 were rejected as
`
`being unpatentable over Puente Baliarda in view of US. Patent 6,476,766 to Cohen (“Cohen”).
`
`Claims 19, 20, 28, 30, and 31 were indicated as being allowable if rewritten to overcome the 35
`
`U.S.C. § 112, second paragraph. rejection, in independent form and including any intervening
`
`claims.
`
`A Response to the Non-Final Office Action was filed on August 18, 2005 (“Response”).
`
`In the Response, claim 1 was amended as follows:
`
`least one multilevel
`1. (Currently Amended) An antenna including at
`structure wherein the multilevel structure comprises a set of polygonal or
`polyhedral elements heaving the same number of sides or faces, wherein each of
`said elements is electromagnetically coupled to at least one other of said elements
`either directly through at least one point of contact or through a small separation
`providing coupling, wherein for at least 75% of said polygonal or polyhedral
`elements,
`the region or area of contact between said polygonal or polyhedral
`elements is less than 50% of the perimeter or area of said elements, and wherein
`not all the polygonal or polyhedral elements have the same size and the perimeter
`of the multilevel structure has a different number of sides than the polygons that
`compose the multilevel structure.
`
`In the Response, the Patent Owner argued that the ‘080 Application was a continuation of
`
`the ‘568 Application which is a further continuation of PCT Application PCT/ES99/00296 (“the
`
`PCT Application”) having a filing date of September 20, 1999. The Patent Owner argued that
`
`Puente Baliarda was not prior art. A telephonic Examiner Interview was conducted on August
`
`24, 2005. A Notice of Allowance issued on September 1, 2005 along with an Examiner
`
`Amendment.
`
`In the Examiner Amendment, claim 1 was amended to recite “A multi-band
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 10 of 67
`
`Fractus S.
`
`Ex. 203
`
`

`

`antenna.” claim 2 was canceled, and claims 24, 27, 33, and 38 were amended to revise the claim
`
`dependency. Claim 1 was indicated as allowable because:
`
`Claim 1 is allowable over the art of record because the prior art does not
`teach the region or area of contact between the polygonal or polyhedral elements
`is less than 50% of the perimeter or area of the elements, and wherein not all the
`polygonal or polyhedral elements have the same size and the perimeter of the
`multilevel structure has a different number of sides than the polygons that
`compose the multilevel structure, and in combination with the remaining claimed
`limitations.
`
`Notice ofAllowam‘e, p. 3. The ‘868 patent issued on March 21, 2006. On September 5, 2006, a
`
`petition was granted to replace “heaving” in claim 1 with “having” by way of a Certificate of
`
`Correction. On June 26, 2007, a petition was granted to add a claim of priority under 35 U.S.C.
`
`§§
`
`120
`
`and 365(0)
`
`for
`
`the benefit of priority to
`
`the prior-filed PCT Application
`
`(PCT/ES99/00296), by way of a Certificate of Correction.
`
`2. OVERVIEW OF THE CLAIMS
`
`The ‘868 patent contains one independent claim. Independent Claim 1 reads as follows:
`
`least one multilevel structure
`1. A multi-band antenna including at
`wherein the multilevel structure comprises a set of polygonal or polyhedral
`elements having the same number of sides or faces, wherein each of said elements
`is electromagnetically coupled to at least one other of said elements either directly
`through at least one point of contact or through a small separation providing
`coupling, wherein for at least 75% of said polygonal or polyhedral elements, the
`region or area of contact between said polygonal or polyhedral elements is less
`than 50% of the perimeter or area of said elements, and wherein not all
`the
`polygonal or polyhedral elements have the same size and the perimeter of the
`multilevel structure has a different number of sides than the polygons that
`compose the multilevel structure.
`
`Dependent claims 26, 32, 33, and 35 read as follows:
`
`26. The antenna according to claim 1, wherein said antenna includes an
`interconnection circuit that links the antenna to an input/output connector, and
`which is used to incorporate adaptation networks for impedances, filters or
`diplexers.
`
`32. The antenna according to any one of claims 1, 5, 13, 15, or 16 wherein
`said antenna is included in a portable communications device.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 11 of 67
`
`Fractus S.
`
`Ex. 203
`
`

`

`according to claim 32, wherein said portable
`antenna
`33. The
`communications device is a handset.
`
`35. The antenna according to claim 33, wherein said antenna operates at
`multiple frequency bands, and wherein at least one of said frequency bands is
`operating within the 890 MHz-3600 MHz frequency range.
`
`B. RELATED INTER PARTES REEXAMINATION OF THE ‘868 PATENT
`
`On July 2, 2010, the Real Party in Interest, Samsung Electronics Co. Ltd. filed an inter
`
`partes reexamination request against claims 1, 3. 6, 12, 14, 23, 26, and 32-35 of the “868 patent
`
`which was granted as Control No. 95/001,390 (“the 1390 reexamination”). On November 16,
`
`2010, Kyocera filed a request for reexamination of the same claims of the ‘868 patent, which was
`
`granted as Control No. 95/000,589 (“the ‘589 reexamination” or “the Kyocera reexamination”).
`
`On December 3, 2010, HTC filed a request for inter partes reexamination of the same claims of
`
`the ‘868 patent, which was granted as Control No. 95/001,498 (“the ‘1498 reexamination” or the
`
`“HTC reexamination"). On May 23, 2011,
`
`the Patent and Trademark Office (“the Office”)
`
`merged the ‘589, ‘1390, and ‘1498 reexaminations.
`
`Subsequent to this merger, Patent Owner attained a final and non-appealable consent
`
`judgment against HTC. Patent Owner then filed a petition to terminate the ‘1498 reexamination,
`
`which was granted on December 12, 2011, leading to the severance of the ‘1498 reexamination
`
`from the merged proceedings. HTC is no longer involved in these reexamination proceedings.
`
`Additionally, Patent Owner attained a final and non-appealable consent judgment against
`
`Kyocera, which dismissed with prejudice Kyocera’s counterclaims of invalidity of Patent
`
`Owner’s patents including the claims raised in the ‘589 reexamination. Kyocera Final Consent
`
`Judgment at 919] 6, 9, 11, 14. On July 31, 2012, Patent Owner filed a petition to the Office to
`
`terminate the ‘589 reexamination. The petition to terminate the ‘589 reexamination is currently
`
`pending. Moreover. Kyocera is presently not participating in the merged reexamination
`
`proceedings. See Kyocera’s Notice of Non-Participation and Notice of Litigation Settlement,
`
`filed December 22, 201 1.
`
`As of the time of filing of this reexamination request, the latest con‘espondance received
`
`from the Patent Office was an Action Closing Prosection mailed on July 26, 2012 rejecting
`
`claims 1, 3, 6, 12, 14, 23, 26, and 32-35 in the merged ‘1390 and ‘589 reexamination proceeding.
`
`See OTH-D, ACP issued Jul. 26, 20l2.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 12 of 67
`
`Fractus S.
`
`Ex. 203
`
`

`

`C. RELATED CO-PENDING LITIGATION REQUIRES TREATMENT WITH SPECIAL
`DISPATCH AND PRIORITY OVER ALL OTHER CASES
`
`The ‘868 patent is presently the subject of Frartus S.A. v. Samsung Elertrnnirs Co. Ltd.
`
`et
`
`(11., Case No. 6:09cv203 (ED. Tex.) (“the Underlying Litigation”). See Exhibit OTH—A.
`
`Pursuant to 35 U.S.C. § 314. the Requester respectfully urges that this Request be granted and
`
`reexamination conducted not only with “special dispatch,” but also with “priority over all
`
`other cases” in accordance with MPEP §2661, due to the ongoing nature of the Underlying
`
`Litigation.
`
`D. CLAIM CONSTRUCTION
`
`For purposes of this Request, the claim terms are presented by the Requester in accordance
`
`with the Patent Owner’s broad infn'ngement contentions and claim construction positions from
`
`litigation and in accordance with 37 CPR. § 1.555(b) and MPEP §2111. Specifically. Patent
`
`Owner has asserted an extremely broad scope for the claims of the ‘868 patent. See OTI-l-B, Patents
`
`Owner’s Infringement Contentions and OTH-C, Patent Owner’s infringement demonstrative
`
`presented during trial. While Requester does not agree with the reasonableness of the Patent
`
`Owner’s Infringement Contentions, the Infn'ngement Contentions provide admissions by the Patent
`
`Owner regarding its belief on the scope of the claims. See OTH-B and OTH-C. Furthermore, each
`
`term of the claims in the ‘868 patent is to be given its “broadest reasonable constmction” consistent
`
`with the specification. MPEP §2111; In re Swanson. No. 07-1534 (Fed. Cir. 2008); In re Trans
`
`Texas Holding Corp., 498 F.3d 1290, 1298 (Fed. Cir. 2007) (citing In re Yamamoto, 740 F.2d 1569,
`
`1571 (Fed. Cir. 1984)).
`
`The Examiner in the copending ‘1390 reexamination has looked at the claims and made
`
`findings regarding broadest reasonable interpretation of many claim terms. See OTH-D at 5-15.
`
`The claims as inteipreted by the Examiner read on the prior alt presented in this reexamination
`
`request. In addition, the prior art still renders the claims unpatentable even under the improperly
`
`narrow interpretations presented by the Patent Owner in the ‘1390 reexamination. In addition,
`
`while not binding on the Office, the Claim Construction Order from the underlying litigation is
`
`also provided for completeness. See OTH-E.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 13 of 67
`
`Fractus S.
`
`Ex. 203
`
`

`

`E. PATENT OWNER’S INFRINGEMENT CONTENTIONS
`
`The Requester has considered the specification of the ‘868 patent for determining the
`
`scope of the claim elements, however, where the specification is unclear or does not provide
`
`sufficient claim support.
`
`the Requester identifies excerpts of Patent Owner’s Infringement
`
`Contentions to demonstrate Patent Owner’s broad construction of the claim elements. See OTH-
`
`B and OTH-C. Testimony from the Patent Owner’s litigation expert also exemplifies the broadness
`
`of Patent Owner’s interpretation of the claims, and in particular its assertion that the claimed
`
`multilevel structure reads on a branched antenna that shares a common feed portion. See OTH—F.
`
`The Patent Owner’s interpretation of the claims are quite broad and the Patent Owner reads the
`
`claims to cover antennas that are not described, or even similar to antennas described,
`
`in the
`
`specification of the “868 patent. The Requester does not agree with the Patent Owner’s claim
`
`interpretation and/or claim construction as applied by Patent Owner and shown in the Patent
`
`Owner’s infringement contentions, but the Requester requests that the Office follow the Patent
`
`Owner’s infringement contentions for purposes of the reexamination because such contentions
`
`constitute an admission by the Patent Owner. 37 CFR 1.104(c)(3), MPEP § 2617(III).
`
`As seen in the infringement contentions, the Patent Owner’s application of some of the
`
`claim language to product details appears arbitrary and no explanation is given. For instance, the
`
`Patent Owner has drawn its own subjectively-determined lines on antennas in order to divide a
`
`single metal strip into “polygonal elements”.
`
`In other instances, the Patent Owner draws an
`
`arrow from certain claim elements to parts of the accused device without providing any rationale
`
`how the part of the accused device pointed to would read on the claim element. Additionally, in
`
`some instances, as discussed in further detail in this Request, the specification of the ‘868 patent
`
`does not provide a clear definition of the elements of the claims. As a result, the Requester is
`
`relying on the Patent Owner’s Infringement Contentions to attempt to interpret the elements.
`
`Although the Requester does not agree with the Patent Owner’s infringement allegations,
`
`Requester nonetheless supplies excerpts of the infringement contentions to provide the Examiner
`
`with examples of how the Patent Owner views its own claims.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 14 of 67
`
`Fractus S.
`
`Ex. 203
`
`

`

`IV.
`
`STATEMENT ESTABLISHING A REASONABLE LIKELIHOOD THAT THE
`
`REQUESTER WILL PREVAIL WITH RESPECT TO AT LEAST ONE CLAIM
`UNDER 37 C.F.R. § 1.915 (B)
`
`During the debates that lead to the passage of the America Invents Act (AIA) Senator Kyl
`
`characterized the “reasonable likelihood of prevailing” (RLP) standard in order to initiate an
`
`inter partes review. germane to inter partes reexamination current standard for granting a request
`
`for inter partes reexamination. Senator Kyl explained that the RLP standard “is currently used in
`
`evaluating whether a party is entitled to a preliminary injunction.” 157 Cong. Rec. S 1375 (daily
`
`ed. Mar. 8. 2011).
`
`It is well settled that a patent owner seeking a preliminary injunction must show that a
`
`reasonable likelihood exists that the party will achieve success in its claim. However, this does
`
`not require the party prove ultimate success on the merits at the preliminary injunction stage,
`
`only a reasonable probability of success. Brill v. Peckman Motor Truck & Wheel C0., 189 US.
`
`57, 63 (1903) (“If complainants in every case must understand that a motion for a preliminary
`
`injunction requires the same showing as on final hearing very few motion of that sort would be
`
`made”) and see also Univ. of Texas v. Camenisclz, 451 US. 390, 395 (I981)
`
`The purpose of a preliminary injunction is merely to preserve the relative
`positions of the parties until a trial on the merits can be held. Given this limited
`purpose, and given the haste that is often necessary if those positions are to be
`preserved, a preliminary injunction is customarily granted on the basis of
`procedures that are less formal and evidence that is less complete than in a trial on
`the merits. A party thus is not required to prove his case in full at a preliminary-
`injunction hearing.”
`
`As such, the requester for an inter partes reexamination only has to present a prima facie
`
`case justifying a rejection of at least one claim in the patent in order for the request to be granted
`
`by the examiner. See 35 U.S.C. § 312 (2011) (“the information presented in the request shows
`
`that there is a reasonable likelihood that the requester would prevail with respect to at least 1 of
`
`the claims challenged in the request”) and 157 Cong. Rec. S1375 (daily ed. Mar. 8, 201 1)
`
`(“present a prima facie case justifying a rejection of the claims in the patent”).
`
`Section IV presents a summary of both the prior art and its application in the RLPs, and
`
`Section V, below, presents a more detailed application of the prior art while also explicitly laying
`
`out the reasons why a person of skill in the art would make the proposed combination.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 15 of 67
`
`Fractus Slog
`Ex. 20:;
`
`

`

`A.
`
`GRANGEAT PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 26, 32, 33, AND 35
`OF THE ‘868 PATENT
`
`Grangeat is a US. Patent filed on December 11, 1998 and issued October 17, 2000.
`
`Accordingly, Grangeat constitutes effective prior art under 35 U.S.C. § 102. Grangeat was not
`
`cited in the ‘868 patent and is not cumulative to any prior art previously considered. Moreover,
`
`this reference teaches the alleged reason for patentability of the '868 patent and is not cumulative
`
`to any prior art previously considered.
`
`During examination of the ‘868 patent, the Examiner asserted that:
`
`Claim 1 is allowable over the art of record because the prior art does not teach the
`region or area of contact between the polygonal or polyhedral elements is less
`than 50% of the perimeter or area of the elements. and wherein not all
`the
`polygonal or polyhedral elements have the same size and the perimeter of the
`multilevel structure has a different number of sides than the polygons that
`compose the multilevel structure, and in combination with the remaining claimed
`limitations.
`
`Because Grangeat discloses the above technical feature, along with each element of
`
`claims 1, 26, 32, 33, and 35, an Examiner would consider Grangeat important in deciding the
`
`patentability of the ‘868 patent.
`
`Specifically, Grangeat discloses a multifrequency microstrip antenna that enables two
`
`resonances to be established in two respective different areas. Grangeat at col. 4, lines 41-64;
`
`Abstract; and FIG. 2. Specifically, “[o]ne operating mode of the antenna then constitutes a
`
`primary mode in which a standing wave is established by virtue of propagation of traveling
`
`waves both ways in the longitudinal direction or a direction near the longitudinal direction, the
`
`waves propagating in an area including the primary zone and the rear region and substantially
`
`excluding the secondary zone Z2. Another operating mode constitutes a secondary mode in
`
`which a standing wave is established by virtue of propagation of traveling waves both ways (the
`
`same as before) in another