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 (El‘S—Web) in accordance with 37 (‘l’R §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].
`
`REQUEST FOR REEXAMINATION UNDER
`
`35 U.S.C. §§ 311 ETSEQ., AND
`37 C.F.R. §§ [.913 AND 1.915
`
`Patent N0.: 7,123,208
`
`Filed: April 8, 2005
`
`For: Multilevel Antennae
`
`Mail Stop Inter Parres Reexamination
`ATTN: Central Reexamination Unit
`
`Commissioner for Patents
`
`P.O. Box 1450
`
`Alexandria, VA 22313—1450
`
`REQUEST FOR INTER PARTES REEXAMINATION OF US. PATENT 7,123,208
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 1 of 90
`
`Fractus S.A.
`
`Ex. 2036
`
`

`

`TABLE OF CONTENTS
`
`0 3
`
`REQUEST FOR l/VTEA’I’A/I’I‘ESREEXAMINATION OF US. PATENT 7,123,208
`
`A.
`
`B.
`
`C.
`
`D.
`
`PRIOR ART (PA)
`
`OTHER DOCUMENTS(0TH)wwww
`
`RELEVANT PATENT MATERIALS (PAT)
`
`CLAIM CHARTS (CC)
`
`REQUEST FOR l/VTEA’I’A/I’TESREEXAMINATION OF US. PATENT 7,123,208
`
`5
`
`I.
`
`II.
`
`STATEMENT UNDER 37 C.F.R. § 1.915(B)(3) OF EACH PROPOSED
`REJECTION ..................................................................................................................... 6
`
`REQUIREMENTS FOR l/VTEIP PAA’TESREEXAMINATION UNDER 37 C.F.R.
`
`III.
`
`OVERVIEW OF THE ‘208 PATENT AND PROSECUTION HISTORY 8
`
`A.
`
`INTRODUCTION8
`
`1.
`
`2.
`
`TIIE ‘208 PATENT APPLICATION PROSECUTION HISTORY 8
`
`OVERVIEW OF THECLAIMS 10
`
`RELATED INTER PARTES REEXAMINATION OF THE “208 PATENT
`
`10
`
`RELATED CO—PENDING LITIGATION REQUIRES TREATMENT WITH SPECIAL
`DISPATCH AND PRIORITY OVER ALL OTHER CASES11
`
`CLAIM CONS’I‘RIIC’I‘II )N
`
`PATENT OWNER’S INFRINGEMENT CONTENTIONS
`
`1 2
`
`12
`
`B.
`
`C.
`
`D.
`
`E.
`
`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) 13
`
`A.
`
`GRANGEAT PRESENTS AN RLP WITII RESPECT TO CLAIMS 1, 7, 10, 11, AND
`12 OF THE ‘208PATENT 14
`
`B.
`
`GRANGEAT IN VIEW OF THE KNOWLEDGE OF A PERSON OF ORDINARY SKILL
`
`IN THE ART PRESENTS AN RLP WITH RESPECT TO CLAIM 7 OF THE ‘208
`
`PATENT.uuuuuuuuuuuuuuuuuuuuuuuuu""uuuuuu"uuuuuuuuuuuuuuuuuuuuuuu18
`
`C.
`
`YANAGISAWA ‘064 PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 7. 10.
`
`11, AND 12 OFTHE ‘208 PATENTl9
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`
`Page 2 of 90
`
`Fractus S.
`
`Ex. 203
`
`

`

`D.
`
`YANAGISAWA ‘064 IN VIEW OF THE KNOWLEDGE OF A PERSON OF
`
`ORDINARY SKILL IN THE ART PRESENTS AN RLP WITH RESPECT TO CLAIM
`7 OF THE ‘208 PATENT23
`
`E.
`
`F.
`
`PANKINAHO PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 7, 10, 11, AND
`12 OF T111: “208 PATENT24
`
`YANG PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 7, 10, 1 1, AND 12 OF
`THE ‘208 PATENT27
`
`IV.
`
`MANNER OF APPLYING THE CLAIMS AS REQUIRED BY 37 CFR § 1.915 (B)
`
`A.
`
`CLAIMS 1, 7, 10, 11, AND 12 ARE ANTICIPATED BY GRANGHA'I‘ UNDER 35
`
`B.
`
`CLAIM 7 IS RENDERED OBVIOUS BY GRANGEAT IN VIEW OP THE
`KNOWLEDGE OF A PERSON OE ORDINARY SKILL IN THE ART UNDER 35
`
`C.
`
`CLAIMS 1, 7, 10, 11, AND 12 ARE ANTICIPATED BY YANAGISAWA ‘064
`
`UNDER 35 U.S.C.§10238
`
`D.
`
`CLAIM 7 IS RENDERED OBVIOUS BY YANAGISAWA ‘064 IN VIEW OF THE
`
`KNOWLEDGE OF A PERSON 0E ORDINARY SKILL IN THE ART UNDER 35
`
`E.
`
`F.
`
`CLAIMS 1, 7, 10, 11, AND 12 ARE ANTICIPATED BY PANKINAHO UNDER 35
`
`CLAIMS 1,7, 10, 11, AND 12 ARE ANTICIPATED BY YANG UNDER 35 U.S.C.
`
`V.
`
`CONCLUSION ............................................................................................................... 64
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—01461
`Page 3 of 90
`
`Fractus SA,
`Ex. 2036
`
`

`

`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-SBO8A/B USPI‘O Form SB/OSA/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 er (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. 7,123,208 (“the ‘208 patent”)
`
`C. CLAIM CHARTS (CC)
`
`CC-A
`
`CC-B
`
`CC-C
`
`CC-D
`
`CC-E
`
`CC-F
`
`Claim Chart comparing Claims 1, 7, 10, 1], and 12 of the ‘208 patent to the
`disclosure of Gran geat.
`
`Claim Chart comparing Claim 7 of the ‘208 patent to the disclosure of
`Grangeat in view of the knowledge of a person of ordinary skill in the art.
`
`Claim Chart comparing Claims 1, 7, 10, 11, and 12 of the “208 patent to the
`disclosure of Yanagisawa ‘064.
`
`Claim Chart comparing Claim 7 of the ‘208 patent to the disclosure of
`Yanagisawa ‘064 in view of the knowledge of a person of ordinary skill in
`the an.
`
`Claim Chart comparing Claims 1, 7, 10, 11, and 12 of the ‘208 patent to the
`disclosure of Pankinaho.
`
`Claim Chart comparing Claims 1, 7, 10, 11, and 12 of the ‘208 patent to the
`disclosure of Yang.
`
`D. OTHER DOCUMENTS (0TH)
`
`OTH-A
`
`Second Amended Complaint filed December 2, 2009 in the case of Fractus
`SA. v. Samsung Electronics Co. Ltd. er ((1., Case No. 6:09cv203 (ED. Tex.)
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 4 of 90
`
`Fractus S.
`
`Ex. 203
`
`

`

`OTH-B
`
`OTH-C
`
`OTH-D
`
`OTH-E
`
`OTH-F
`
`Preliminary Infringement Contentions for the ‘208 patent in the case of
`Fractus S.A. v. Samsung Electronics Co. Ltd. Et (1]., Case No. 6:09cv203
`(E.D. Tex.)'
`
`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 ‘208 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)
`
`1
`
`.
`.-
`.
`.
`.
`.
`.
`‘
`.
`.
`.
`.
`.
`Only a subset of the Preliminary Intrmgement ( ontenuons IS prowded to avotd overloading the Patent Office With
`material in this Request for Reexamination.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 5 of 90
`
`Fractus S.A
`Ex. 2033
`
`

`

`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 7,123,208
`
`Filed: April 8, 2005
`
`For: Multilevel Antennae
`
`Mail Stop Inter Parles Reexamination
`ATTN: Central Reexamination Unit
`
`Commissioner for Patents
`
`PO. Box 1450
`
`Alexandria, VA 223134450
`
`REQUEST FOR INTER PARTES REEXAMINATION OF US. PATENT 7,123,208
`
`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. §§
`
`311 et seq. and 37 C.F.R. § 1.902 et seq., of Original Claims 1, 7, 10, 11, and 12 of US. Patent No,
`
`7,]23,208 (“the ‘208 patent”) filed April 8, 2005 and issued October 17, 2006 to Puente Baliarda, er
`
`a]. See Exhibit PAT-A.
`
`Although Samsung has a co—pending inter partes reexamination proceeding against the ‘208
`
`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 90
`
`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 ‘208 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, 7, 10, 11,
`
`and 12 of the ‘208 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
`
`‘208 patent is enforceable. As alleged by Patent Owner in the below defined Underlying Litigation,
`
`and as required by 37 C.F.R. § 1.913, the ‘208 patent is still within its period of enforceability for
`
`reexamination purposes,
`
`to the extent that
`
`the “208 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. By asserting the RLPs herein, Requester
`
`specifically asserts that Original Claims 1, 7, 10, 11, and 12 of the “208 patent are in fact not
`
`patentable.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 7 of 90
`
`Fractus S.
`
`Ex. 203
`
`

`

`Accordingly, the US. Patent and Trademark Office (“the Office”) should reexamine and
`
`find Original Claims 1, 7, 10. 11. and 12 of the ‘208 patent unpatentable and cancel these claims,
`
`rendering them null, void. and otherwise unenforceable.
`
`II.
`
`REQUIREMENTS FOR l/VIZ’IP PAA’IZIS’REEXAMINATION UNDER 37 C.F.R.
`§ 1.915
`
`Requester satisfies each requirement for Inter Partes reexamination of the ‘208 patent
`
`pursuant to 37 CPR. § 1.915. A full copy of the ‘208 patent is submitted herein as Exhibit PAT-
`
`A in accordance with 37 C.F.R. § l.915(b)(5).
`
`Pursuant to 37 C.F.R. § l.915(b)(7), Requester certifies that the estoppel provisions of 37
`
`C.F.R. § 1.907 do not prohibit the filing of this Inter Parres reexamination.
`
`Pursuant to 37 CPR. §l.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/08A as Exhibit PTO—SB/OSA in accordance
`
`with 37 C.F.R. § l.915(b)(2). Each of the cited prior an publications constitute effective pn'or art
`
`as to the claims of the ‘208 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
`
`‘208 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 pertinency and manner of applying the patents and printed
`
`publications to Claims I, 7, 10,
`
`l l, and 12 of the ‘208 patent, is presented below and in attached
`
`claim charts in accordance with 37 CPR. § 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. § l.915(b)(6) at the following address:
`
`EDELL, SHAPIRO & FINNAN, LDC
`1901 RESEARCH BOULEVARD
`
`SUITE 400
`
`ROC KVILLE MD 20850
`
`In accordance with 37 CPR. § 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 90
`
`Fractus S.
`
`Ex. 203
`
`

`

`III.
`
`OVERVIEW OF THE ‘208 PATENT AND PROSECUTION HISTORY
`
`A.
`
`INTRODUCTION
`
`The ‘208 patent is directed to a multilevel antenna structure formed by a set of similar
`
`geometiic elements.
`
`‘208 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.
`
`‘208 patent at Col. 6, lines 25-31.
`
`The ‘208 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.” ‘208 patent at Col. 1, lines 14-22.
`
`Patent Owner admits that the prior art discloses fractal antennae (“US Patent number 9,501,019”)
`
`and multitriangular antennae (“US Patent number 9,800,954”) which operate in multiple
`
`frequency bands simultaneously.
`
`‘208 patent at Col. 1. lines 42-47. Given that the US Patent
`
`Office has not issued patents in the 9 million range, the Requester believes that the Patent Owner
`
`is referring to Spanish patents as recited in a related patent, US Patent 7,015,868 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.” ‘208 patent at Col. 1. lines 42-46. The Patent Owner has not shown. in any fonn.
`
`how its alleged invention is novel over the antennae of the prior an. Accordingly, as will be set
`
`forth in detail below, claims 1, 7, 10. 11, and 12 of the ‘208 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 ‘208 PATENT APPLICATION PROSECUTION HISTORY
`
`On April 8, 2005,
`
`the Patent Owner filed Application No. 11/ 102,390 (“the ‘390
`
`Application”) which is a continuation of Application No. 10/963,080. now Patent No. 7,015,868,
`
`which is a continuation of Application 10/102,568, now abandoned, which is a continuation of
`
`PCT/ES99/00296. A Preliminary Amendment was filed on April 8, 2005, canceling claims 1-38
`
`and adding new claims 39-155. No Office Actions issued. A Notice of Allowance issued on
`
`July 6, 2006. Claims 39, 53, 67, 86, 100, 114, 128, and 142 were indicated as allowable because:
`
`Claims 39 and 53 are allowable over the art of record because the prior art
`does not teach the perimeter of the multilevel structure has a different number of
`sides than the polygons that compose the antenna region, and further wherein a
`plurality of polygons of the antenna region are generally identifiable as a
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 9 of 90
`
`Fractus S.
`
`Ex. 203
`
`

`

`geometrical element defined by the free perimeter thereof and the projection of
`ones of the longest exposed perimeters thereof to define the least number of
`polygons within the region necessary to from the generally distinguishable
`elements where the polygon perimeters are interconnected, and in combination
`with the remaining claimed limitations.2
`
`Claim 67 is allowable over the art of record because the prior an does not
`teach the region or area of interconnection between the polygonal or polyhedral
`elements is such that at
`least 50% of their respective perimeter portions are
`exposed and without physical connection to another polygon and less than 50% of
`the respective perimeters extend into the region an area of interconnection
`forming the generally identifiable polygons by extension of ones of the longest
`exposed perimeters thereof to define the least number of polygons within the
`region, and in combination with the remaining claimed limitations.3
`
`Claims 86, 100 and 114 are allowable over the art of record because the
`
`prior art does not teach the perimeter of the multilevel structure has a different
`number of sides that the polygons that compose the antenna region, and further
`where a plurality of polygons in contact or overlap with the contiguous polygons
`are geometrically identifiable by extension of the exposed perimeters of the
`generally identifiable geometrical shaped into the region or area of contact or
`overlap and wherein a polygon with the curved perimeter portion is geometrically
`identifiable by a linear perimeter approximating the shape of the curved perimeter
`portion, and in combination with the remaining claimed limitations.4
`
`Claims 128 and 142 are allowable over the art of record because the prior
`art does not teach the region or area of contact or overlap between the polygonal
`or polyhedral elements is less than 50% of the perimeter or area of the elements,
`wherein not all of the polygonal or polyhedral elements have the same size, and
`wherein the perimeter of the multilevel structure has a different number of sides
`than the polygons that compose the antenna region. and further wherein a
`plurality of overlapping polygonal or polyhedral elements, having one or both of
`linear and curved perimeter portions. defined identifiable geometrical shapes in
`the at least one antenna region with the same number of sides or faces as those
`otherwise generally identifiable therein, and in combination with the remaining
`claimed limitations.
`
`Notice of Allowance, pp. 2-3. The ‘208 patent issued on October 17, 2006. On October 17,
`
`2006, a Certificate of Correction was issued correcting the priority chain to the prior-filed PCT
`
`Application.
`
`2 Allowed claims 39 and 53 correspond to issued claims 1 and 15.
`
`3 Allowed claim 67 corresponds to issued claim 29.
`
`" Allowed claim 86 corresponds to issued claim 48.
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 10 of 90
`
`Fractus S.
`
`Ex. 203
`
`

`

`2. OVERVIEW or THE CLAIMS
`
`Requester is presently requesting reexamination of one independent claim of the ‘208
`
`herein. Independent Claim 1 reads:
`
`1. A multi-band antenna including at least one multilevel structure wherein the
`multilevel structure includes at
`least one antenna region comprising a set of
`polygonal or polyhedral elements having the same number of sides or faces,
`wherein each of said elements in said antenna region is electromagnetically
`coupled to at least one other of said elements in said region either directly through
`at least one point of contact or through a small separation providing said 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, wherein not all of the polygonal or
`polyhedral elements have the same size, and wherein the perimeter of the
`multilevel structure has a different number of sides than the polygons that
`compose said antenna region, and further wherein a plurality of polygons of said
`antenna region are generally identifiable as a geometrical element defined by the
`free perimeter
`thereof and the projection of ones of the longest exposed
`perimeters thereof to define the least number of polygons within said region
`necessary to form said generally distinguishable elements where said polygon
`perimeters are interconnected.
`
`Dependent claims 7, IO,
`
`1 1, and 12 read as follows:
`
`7. The multi-band antenna set forth in claim 1, wherein the level of impedance
`and radiation pattern of said antenna are similar in several frequency bands so that
`the antenna maintains basically the same radio-electric characteristics and
`functionality in said bands to allow it
`to operate simultaneously in several
`frequencies and thereby be able to be shared by several communication services.
`
`10. The multi-band antenna set forth in claim 1, wherein said antenna is included
`
`in a portable communications device.
`
`11. The multi—level antenna set
`communication device is a handset.
`
`forth in claim 10, wherein said portable
`
`12. The multi-level antenna set forth in claim 11, wherein said antenna operates at
`multiple frequency bands, and where in at least one of said frequency bands is
`operating within the 800 MHz-3600 MHz frequency range
`
`B. RELATED l/VJZ‘A’ RHPJ‘EJ'REEXAMINATION OF THE ‘208 PATENT
`
`On July 1, 2010, the Real Party in Interest, Samsung Electronics Co. Ltd. filed an inter
`
`partes reexamination request against claims 1, 5, 7, 10-12, 14, 15, 18, 21, 24-26, 28, 29, 33, 37,
`
`ZTE (USA), Inc. v. Fractus S.A.; |PR2018—O1461
`Page 11 of 90
`
`Fractus 8.108
`Ex. 20d
`
`

`

`40, 43—48, 54, 57—59, and 61 of the ‘208 patent which was granted as Control No. 95/001,389
`
`(“the 1389 reexamination”). On December 3, 2010, HTC filed a request for inter partes
`
`reexamination of the same claims of the ‘208 Patent, which was granted as Control No.
`
`95/001,501 (“the ‘1501 reexamination”). On December 14, 2010, Kyocera filed a request for
`
`reexamination of claims 1, 5, 7, 10-12, 14-15. 21, 24-26, 28—29, 33, 37, 40, 43-45. 48 54, 57-59,
`
`61 of the ‘208 Patent, which was granted as Control No. 95/000,591 (“the “591 reexamination”
`
`or “the Kyocera reexamination”). On June 1, 2011,
`
`the Patent and Trademark Office (“the
`
`Office”) merged the ‘591. ‘1389, and ‘1501 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 ‘1501 reexamination,
`
`which was granted on December 12, 2011, leading to the severance of the ‘1501 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
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`Owner’s patents including the claims raised in the ‘591 reexamination. Kyocera Final Consent
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`Judgment at (119] 6, 9, 11, 14. On July 31, 2012, Patent Owner filed a petition to the Office to
`
`terminate the ‘591 reexamination. The petition to terminate the ’591 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, 2011.
`
`As of the time of filing of this reexamination request, the latest correspondance received
`
`from the Patent Office was an Action Closing Prosection mailed on July 26, 2012 rejecting all
`
`claims 1, 5, 7. 10-12, 14, 15, 18. 21. 24-26, 28, 29, 33, 37, 40. 43-48, 54, 57-59, and 61 in the
`
`merged ‘1389 and ‘591 reexamination proceeding. Attached as OTH-D, ACP issued July 26,
`
`2012.
`
`C. RELATED Co-PENDING LITIGATION REQUIRES TREATMENT WITH SPECIAL
`DISPATCH AND PRIORITY OVER ALL OTHER CASES
`
`The ‘208 patent is presently the subject of Fractus S.A. r. Samsung Electronics Co. Ltd.
`
`e! (11., Case No. 6:09cv203 (E.D. 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 “spedal dispatch,” but also with “priority over all
`
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`Fractus 8.10%
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`other cases” in accordance with MPEP §2661, due to the ongoing nature of the Underlying
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`Litigation.
`
`Further. pursuant to the policy of the Office concerning revised reexamination procedures to
`
`provide for a scheduling—type order of expected substantive action dates in Requests ordered after
`
`the Office's 2005 fiscal year. Requester respectfully seeks such a scheduling order upon the granting
`
`of this Request.
`
`D. CLAIM CONSTRUCTION
`
`For purposes of this Request, the claim terms are presented by the Requester in accordance
`
`with the Patent Owners broad infringement 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 ‘208 patent. See OTH-B, Patent
`
`Owner’s Infringement Contentions and OTC-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 Infringement 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 ‘208 patent is to be given its “broadest reasonable construction” consistent
`
`with the specification. MPEP §2111; In re Swanson. No. 07-1534 (Fed. Cir. 2008); In re Trans
`
`Texas Holding Cum, 498 F.3d 1290, 1298 (Fed. Cir. 2007) (citing In re Yamamoru. 740 F.2d 1569,
`
`1571 (Fed. Cir. 1984)).
`
`The Examiner in the copending ‘1389 reexamination has look at the claims and made
`
`findings regarding broadest reasonable interpretation of many claim terms. See OTH—C at 5-15.
`
`The claims as interpreted by the Examiner read on the prior art 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 ‘1389 reexamination. Further, while
`
`not binding on the Office. the Claim Construction Order from the underlying litigation is also
`
`provided for completeness. Sec OTH—E.
`
`E.
`
`PATENT OWNER’S INFRINGEMENT CONTENTIONS
`
`The Requester has considered the specification of the ‘208 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
`
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`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 ‘208 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 follows 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
`9’
`
`a single metal strip into multiple “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 ‘208 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 provides the infringement contentions to provide the Examiner with
`
`examples of how the Patent Owner views its own claims.
`
`1.
`
`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
`
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`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. 81375 (daily
`
`ed. Mar. 8. 2011).
`
`It is well settled that a patent owner seeking a preliminaiy 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. Perkman Motor Truck & Wheel Ca, 189 U.S.
`
`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. Camenisch, 451 U.S. 390, 395 (1981)
`
`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. $1375 (daily ed. Mar. 8, 2011)
`
`(“present a prima facie case justifying a rejection of the claims in the patent”).
`
`A. GRANGEAT PRESENTS AN RLP WITH RESPECT TO CLAIMS 1, 7, 10, 11, AND 12 OF
`THE ‘208 PATENT
`
`Grangeat is a U.S. Patent filed on December 11, 1998 and issued October 17. 2000.
`
`Accordingly, Gran geat constitutes effective prior an under 35 U.S.C. § 102(a). Grangeat was not
`
`cited in the ‘208 patent and is not cumulative to any prior art previously considered. Moreover,
`
`this reference teaches the alleged reason for patentability of the ‘208 patent and is not cumulative
`
`to any prior art previously considered.
`
`During examination of the ‘208 patent, the Examiner asserted that:
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`Claims 1 and 15 are allowable over the art of record because the prior art
`does not teach the perimeter of the multilevel structure has a different number of
`sides than the polygons that compose the antenna region, and further wherein a
`plurality of polygons of the antenna region are generally identifiable as a
`geometrical element defined by the free perimeter thereof and the projection of
`ones of the longest exposed perimeters thereof to define the least number of
`polygons within the region necessary to from the generally distinguishable
`elements where the polygon perimeters are interconnected, and in combination
`with the remaining claimed limitations.
`
`Because Grangeat discloses the above technical feature, along with each element of
`
`claims 1, 7, 10, 11, and 12, an Examiner wo