Trials@uspto.gov
`571-272-7822
`
`
`
`Paper 28
`
`Date: April 8, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., HTC CORPORATION,
`HTC AMERICA, INC. and ZTE (USA) INC.,
`Petitioner,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`IPR2018-01476
`Patent 7,764,711 B2
`____________
`
`
`Before THU A. DANG, BARBARA A. BENOIT, and J. JOHN LEE,
`Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`Paper 28
`
`Date: April 8, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., HTC CORPORATION,
`HTC AMERICA, INC. and ZTE (USA) INC.,
`Petitioner,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`IPR2018-01476
`Patent 7,764,711 B2
`____________
`
`
`Before THU A. DANG, BARBARA A. BENOIT, and J. JOHN LEE,
`Administrative Patent Judges.
`
`LEE, Administrative Patent Judge.
`
`
`
`
`JUDGMENT
`Final Written Decision
`Determining All Challenged Claims Unpatentable
`35 U.S.C. § 318(a)
`
`
`
`
`
`
`
`
`
`
`
`IPR2018-01476
`Patent 7,764,711 B2
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`
`INTRODUCTION
`Apple Inc., HTC Corporation, HTC America, Inc., and ZTE (USA)
`Inc.1 (collectively, “Petitioner”) filed a Petition (Paper 4, “Pet.”) requesting
`an inter partes review of claims 1–6 (“the challenged claims”) of U.S. Patent
`No. 7,764,711 B2 (Ex. 1001, “the ’711 Patent”). An inter partes review of
`all challenged claims was instituted on April 12, 2019. Paper 9 (“Inst.
`Dec.”). After institution, INVT SPE LLC (“Patent Owner”) filed a Patent
`Owner Response (Paper 11, “PO Resp.”), Petitioner filed a Reply (Paper 21,
`“Pet. Reply”), and Patent Owner filed a Sur-reply (Paper 24, “PO Sur-
`reply”). An oral hearing was held on January 14, 2020. Paper 27 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 318(a). As explained below,
`Petitioner has shown by a preponderance of the evidence that all challenged
`claims of the ’711 Patent are unpatentable.
`
`A.
`
`Related Cases
`The parties identify as related to the present case the following district
`court cases: INVT SPE LLC v. Apple Inc., Case No. 2:17-cv-03738 (D.N.J.);
`INVT SPE LLC v. HTC Corporation, Case No. 2:17-cv-03740 (D.N.J.);
`INVT SPE LLC v. ZTE Corporation, Case No. 2:17-cv-06522 (D.N.J.);
`Inventergy, Inc. v. Apple Inc., Case No. 1:17-cv-00196 (D. Del.); and
`Inventergy, Inc. v. HTC Corporation, Case No. 1:17-cv-00200 (D. Del.).
`Pet. 67–68; Paper 5, 1. Patent Owner further identifies ten cases before the
`
`
`1 Petitioners identify ZTE Corporation as an additional real party-in-interest.
`Pet. 67.
`
`2
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`Board involving petitions for inter partes review that it asserts may affect, or
`be affected by, the present case. Paper 5, 1–2.
`
`B.
`
`The ’711 Patent
`The ’711 Patent relates to “a transmission apparatus and transmission
`method which transmits signals from a plurality of transmission antennas
`like an MIMO (Multi-Input/Multi-Output) communication.” Ex. 1001,
`1:10–14. The Specification describes two techniques for MIMO
`communications that each present challenges.
`First, the Specification describes separating a data signal into
`“substreams” that are sent from “a plurality of transmission antennas at the
`same timing and same frequency . . . thereby transmit[ting] an amount of
`data proportional to the number of transmission antennas and realiz[ing] a
`high-speed, high-volume communication.” Id. at 1:42–47. This technique is
`known as spatial multiplexing. See Pet. 6 (citing Ex. 1003 ¶ 35); PO
`Resp. 2–3. This technique, however, suffers from the effects of interference,
`such as signal noise, which causes the error rate to deteriorate and results in
`poor channel quality. Ex. 1001, 1:48–59.
`Second, to prevent such deterioration, the Specification describes a
`method whereby data is transmitted on one antenna and “the same data”
`(i.e., replica data) is sent on a plurality of antennas. Id. at 1:60–64. This
`technique is known as transmit diversity. See Pet. 5–6 (citing Ex. 1003
`¶ 33); PO Resp. 3. This technique, however, “reduces the transmission rate
`of the communication system,” which deteriorates transmission efficiency.
`Ex. 1001, 1:64–67.
`The claimed invention is directed to solving both of these challenges,
`i.e., “to improve reception performance of specific data on a receiving side
`
`3
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`while maintaining the transmission efficiency of a communication system.”
`Id. at 2:3–6.
`
`C.
`
`Challenged Claims
`Petitioner challenges all of the claims of the ’711 Patent. Claims 1
`and 6 are the only independent claims. Claim 1 is illustrative and is
`reproduced below:
`1.
`A transmitting apparatus employing a MIMO (multi-
`input/multi-output) scheme of transmitting a plurality of data
`items for a same receiving apparatus using a plurality of antennas
`in parallel, the transmitting apparatus comprising:
`a mapping section that maps the plurality of data items to
`at least one of the plurality of antennas; and
`a transmitting section that transmits the plurality of data
`items using the at least one of the plurality of antennas to
`the receiving apparatus,
`wherein the mapping section generates a replica data item
`by replicating a specific data item of the plurality of data
`items, and maps the plurality of data items to the at least
`one of the plurality of antennas such that the specific data
`item and the replica data item are transmitted from
`different antennas at a same time.
`
`4
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`D.
`
`Asserted Grounds of Unpatentability and Asserted Prior Art
`Trial was instituted on the following grounds of unpatentability
`asserted in the Petition:
`
`Claim(s) Challenged
`1–6
`1–6
`
`35 U.S.C. §
`103(a)
`103(a)
`
`References/Basis
`Paulraj,2 Huang,3 Walton.4
`Wallace,5 Walton
`
`Inst. Dec. 28; see Pet. 8–9. In addition, Petitioner relies on a declaration by
`its proffered expert witness, Dr. Andrew C. Singer (Ex. 1003). Likewise,
`Patent Owner relies on a declaration by its proffered expert witness,
`Dr. Branimir Vojcic (Ex. 2002).
`
`ANALYSIS
`
`A.
`
`Level of Ordinary Skill
`Petitioner asserts that a person of ordinary skill in the art would have
`had a bachelor’s degree in electrical engineering or an equivalent as well as
`three years of experience working with “multi-antenna wireless
`communication systems,” or one year of such experience with a master’s
`degree in electrical engineering focusing on communications systems.
`Pet. 7–8 (citing Ex. 1003 ¶ 41). Patent Owner does not dispute Petitioner’s
`
`
`2 U.S. Patent No. 6,067,290, issued May 23, 2000 (Ex. 1005, “Paulraj”).
`3 H. Huang et al., Achieving High Data Rates in CDMA Systems Using
`BLAST Techniques, in CONFERENCE RECORD, IEEE GLOBAL
`TELECOMMUNICATIONS CONFERENCE 2316 (1999) (Ex. 1006, “Huang”).
`4 U.S. Patent No. 7,095,709 B2, issued Aug. 22, 2006 (Ex. 1008, “Walton”).
`5 U.S. Patent Application Pub. No. 2002/0193146 A1, published Dec. 19,
`2002 (Ex. 1009, “Wallace”).
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`5
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`formulation of the level of skill in the art, and applies it for its arguments.
`PO Resp. 10. Based on the information presented in the Petition and
`Dr. Singer’s testimony, we agree with Petitioner’s formulation, which is
`supported by the record and consistent with the prior art. See Okajima v.
`Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001).
`
`B.
`
`Claim Construction
`In this case, we give claim terms their broadest reasonable
`construction in light of the Specification of the ’711 Patent. See 37 C.F.R.
`§ 42.100(b) (2018)6; see Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,
`2144–46 (2016). The parties propose constructions for multiple claim terms
`(Pet. 10–12; PO Resp. 10–11), but we only construe claims to the extent
`necessary to resolve the issues in controversy. See Nidec Motor Corp. v.
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017).
`First, we preliminarily construed the term “specific data” in the
`Decision on Institution as “data given a higher priority in transmission.”
`Inst. Dec. 8. Neither party disputed this preliminary construction, and both
`parties adopted it during trial. See PO Resp. 10–11; Pet. Reply 7–8. We do
`not discern any evidence in the full record after trial indicating that this
`construction is incorrect or should be modified. Thus, we apply this
`construction in this Decision for the same reasons explained in the Decision
`on Institution. Inst. Dec. 6–8.
`
`
`6 This rule has since been amended, but the amendment does not apply here
`because the Petition was filed before its effective date of November 13,
`2018. See Changes to the Claim Construction Standard for Interpreting
`Claims in Trial Proceedings Before the Patent Trial and Appeal Board, 83
`Fed. Reg. 51,340 (Oct. 11, 2018).
`
`6
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`
`During trial, however, the parties disagreed about whether the
`challenged claims should be construed to require that both spatial
`multiplexing and transmit diversity be applied simultaneously. PO Resp. 7–
`9; Pet. Reply 1–6; PO Sur-reply 2–8. As explained below, we determine
`that the claims require this simultaneity.7 But before addressing the merits
`of the parties’ positions, we first address both parties’ assertions of waiver.
`
`Alleged Waiver by Petitioner
`1.
`According to Patent Owner, Petitioner waived any argument that
`simultaneity is not required because “Petitioners expressly represented that
`the inventions claimed in the ’711 Patent require ‘simultaneous’ transmit
`diversity and spatial multiplexing.” PO Sur-reply 2–3. Patent Owner
`identifies two purportedly “unambiguous assertions” to that effect in the
`Petition. Id.
`First, the Petition states that “the lower priority data items are
`transmitted according to spatial multiplexing while the high priority ‘specific
`data’ is simultaneously transmitted from multiple antennas according to
`transmit diversity techniques.” Pet. 4 (emphasis added). This portion of the
`Petition, however, is discussing a specific embodiment in the Specification
`of the ’711 Patent (Figure 4) as part of a background description of the
`patent—far from an “unambiguous” statement regarding the construction of
`a specific claim or claim language.
`
`
`7 For ease of reference, we use the term “simultaneity” in this Decision to
`refer to the interpretation of the claims requiring that both spatial
`multiplexing and transmit diversity be applied simultaneously.
`
`7
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`
`Second, the Petition states that “[t]he ’711 Patent specification
`characterizes the alleged invention as the simultaneous implementation of
`spatial multiplexing . . . and transmit diversity.” Pet. 44 (emphasis added).
`This statement, however, introduces Petitioner’s second asserted ground of
`unpatentability, based on Wallace and Walton, which Petitioner explicitly
`states would only apply “[t]o the extent the Challenged Claims are
`interpreted so broadly as to encompass switching between transmit diversity
`and spatial multiplexing modes.” Id. at 44–45 (emphasis added). In other
`words, Petitioner acknowledges both claim interpretations and presents the
`second ground to address one of them, i.e., no simultaneity.
`Thus, we determine that the Petition is most reasonably understood to
`be presenting arguments pertaining to both interpretations of the claims, i.e.,
`with and without simultaneity. In other words, Petitioner’s position is that
`the challenged claims are unpatentable under either construction, which is
`explained sufficiently in the Petition. See id. As such, we are unpersuaded
`that Petitioner waived its argument that simultaneity is not required.
`Moreover, we also note that Patent Owner clearly discerned that Petitioner’s
`arguments implicated the issue of whether simultaneity is required by the
`challenged claims, and had a full and fair opportunity to address Petitioner’s
`positions. See PO Resp. 7–9, 25–27, 43–46; PO Sur-reply 2–10, 24.
`
`Alleged Waiver by Patent Owner
`2.
`As discussed in more detail below, Patent Owner’s argument that the
`claims require simultaneity depends on an argument that the preambles of
`claims 1 and 6 are limiting. Petitioner argues that Patent Owner waived any
`argument that the preambles are limiting because “[Patent Owner] has not
`proposed a construction for the preamble nor has [Patent Owner] contended
`
`8
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`the preamble is limiting,” citing the section titled, “Claim Construction,” in
`the Patent Owner Response. Pet. Reply 5 (citing PO Resp. 10–11).
`Petitioner, however, ignores the section in the Patent Owner Response
`titled, “Simultaneous Implementation of Spatial Multiplexing and Transmit
`Diversity,” in which Patent Owner argues simultaneity is required by the
`challenged claims. See PO Resp. 7–9. This argument includes an assertion
`that spatial multiplexing is required by the claim language “using a plurality
`of antennas in parallel,” which is recited in the preambles of claims 1 and 6.
`See id. Thus, we are not persuaded Patent Owner waived its argument that
`the preambles are limiting. In addition, we note that Petitioner clearly
`discerned that Patent Owner’s arguments implicated the issue of whether the
`preambles are limiting, and had a full and fair opportunity to address Patent
`Owner’s positions. See Pet. Reply 5–6.
`
`3. Whether the Claims Require Simultaneity
`Having determined that neither party waived arguments relevant to
`the simultaneity issue, we now turn to whether the challenged claims should
`be construed to require simultaneity. For the reasons explained below, we
`conclude that they should.
`We begin with the language of the claims. See Pitney Bowes, Inc. v.
`Hewlett-Packard Co., 182 F.3d 1298, 1305 (Fed. Cir. 1999) (“The starting
`point for any claim construction must be the claims themselves.”). Given
`that both independent claims are essentially identical in relevant part, we
`focus on the language of claim 1 for simplicity.8 First, the preamble of
`
`
`8 Neither party advanced any argument that any of the challenged claims
`should be interpreted differently with respect to simultaneity.
`
`9
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`claim 1 recites, “transmitting a plurality of data items . . . using a plurality of
`antennas in parallel.” The parties agree that the preamble recites spatial
`multiplexing. See PO Sur-reply 4; Tr. 6:13–26 (Petitioner indicating “we
`agree that the claims require transmit diversity and signal multiplexing,” and
`that “the spatial multiplexing . . . seems to be centered in the preamble”).
`We agree as well. As discussed above, the Specification describes the
`transmission of a data stream that is split into “substreams,” which are
`transmitted using “a plurality of transmission antennas at the same timing
`and same frequency.” Ex. 1001, 1:42–47. Both parties agree this describes
`spatial multiplexing. See Pet. 6 (citing Ex. 1003 ¶ 35); PO Resp. 2–3. The
`language of the preamble matches the above description: “transmitting a
`plurality of data items . . . using a plurality of antennas in parallel.”
`The parties do not agree, however, on whether the preamble is
`limiting. See Pet. Reply 5; PO Sur-reply 7–8; Tr. 8:5–15. “In general, a
`preamble limits the invention if it recites essential structure or steps, or if it
`is ‘necessary to give life, meaning, and vitality’ to the claim.” Catalina
`Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir.
`2002) (quoting Pitney Bowes, 182 F.3d at 1305). On the other hand, a
`preamble generally is not limiting “where a patentee defines a structurally
`complete invention in the claim body and uses the preamble only to state a
`purpose or intended use for the invention.” Id. (quoting Rowe v. Dror, 112
`F.3d 473, 478 (Fed. Cir. 1997)). For example, if “deletion of the preamble
`phrase does not affect the structure or steps of the claimed invention,” the
`preamble is not limiting. Id. at 809 (citing IMS Tech., Inc. v. Haas
`Automation, Inc., 206 F.3d 1422, 1434 (Fed. Cir. 2000)).
`
`10
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`
`Here, we are persuaded the preamble is limiting. Although the parties
`dispute whether spatial multiplexing and transmit diversity occur
`simultaneously, it is undisputed that spatial multiplexing is part of the
`claimed invention. See Pet. 2; PO Resp. 6; Tr. 6:13–26 (Petitioner
`indicating “we agree that the claims require transmit diversity and signal
`multiplexing”). The Specification supports this view. For example, the
`Specification states that “i[t] is an object of the present invention to improve
`reception performance of specific data on a receiving side while maintaining
`the transmission efficiency of a communication system.” Ex. 1001, 2:3–6
`(emphasis added). The technique for improving transmission efficiency
`disclosed in the Specification is spatial multiplexing. See id. at 5:13–17
`(describing “two transmission systems to transmit different items of data,
`[which] maintains high transmission efficiency”), Figs. 3, 4; see also id. at
`1:42–47 (indicating “signals sent from a plurality of transmission antennas at
`the same timing and same frequency in substream units” help “realize a
`high-speed, high-volume communication”).
`Further, the only part of claim 1 that recites spatial multiplexing is the
`preamble. See Pet. Reply 3–6; PO Sur-reply 4; Ex. 1020, 21:22–22:18.
`Neither party indicates that any other claim language captures spatial
`multiplexing. Thus, if the preamble is not limiting, claim 1 would not
`incorporate spatial multiplexing at all, which is inconsistent with how the
`invention is described in the Specification. Consequently, we determine that
`the preamble of claim 1 recites “essential structure or steps” and, thus, is
`“necessary to give life, meaning, and vitality” to the claim. See Catalina
`Mktg., 289 F.3d at 808.
`
`11
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`
`We also note that despite contending that the preamble is not limiting,
`Petitioner does not present any timely arguments,9 or identify evidence,
`affirmatively explaining why such a conclusion would be correct. See Pet.
`Reply 5 (arguing waiver only). Petitioner’s expert, Dr. Singer, did not
`address whether the preamble is limiting in his Declaration submitted with
`the Petition, and Petitioner did not submit any further testimony from Dr.
`Singer. Patent Owner’s expert, Dr. Vojcic, testified that “[t]he challenged
`claims take advantage of spatial multiplexing by ‘using a plurality of
`antennas in parallel.’” Ex. 2002 ¶ 33 (quoting the language of the
`preamble). Thus, both the intrinsic evidence and the available expert
`testimony supports Patent Owner’s contention that the preamble is limiting.
`For all of the above reasons, we conclude that the preamble of claim 1
`is limiting. For similar reasons, the nearly-identical preamble of claim 6 is
`limiting as well. This does not fully resolve the issue of whether
`simultaneity is required, however. As we now explain, the claim as a
`whole—including the preamble—requires simultaneity.
`As discussed above, the preamble recites “transmitting a plurality of
`data items . . . using a plurality of antennas in parallel,” which recites spatial
`multiplexing. Critically, this requires that the entire plurality of data
`
`
`9 Although Petitioner’s counsel addressed whether the preamble is limiting
`at the oral hearing, arguments raised for the first time at the hearing are
`untimely and were not considered. See Office Patent Trial Practice Guide,
`77 Fed. Reg. 48,756, 48,768 (Aug. 14, 2012); see also Patent Trial and
`Appeal Board Consolidated Trial Practice Guide, 85–86, available at
`https://www.uspto.gov/trialpracticeguideconsolidated (consolidating the
`Office Patent Trial Practice Guide with subsequent updates); 84 Fed. Reg.
`64,280 (Nov. 21, 2019).
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`items—i.e., all of the data items—is transmitted “using a plurality of
`antennas in parallel.”
`The final limitation of claim 1 (the “wherein” clause) recites
`“generat[ing] a replica data item by replicating a specific data item of the
`plurality of data items, and map[ping] the plurality of data items to the at
`least one of the plurality of antennas such that the specific data item and the
`replica data item are transmitted from different antennas at a same time.” It
`is undisputed that this limitation recites transmit diversity. Critically, as
`Patent Owner observes, this limitation recites “a specific data item of the
`plurality of data items” (emphasis added), i.e., the “specific data item” that
`is replicated for transmit diversity is part of the same “plurality of data
`items” recited in the preamble for spatial multiplexing. See PO Resp. 7
`(“Therefore, the specific data item described in transmit diversity (TD) with
`the replica data item, is also involved in spatial multiplexing (SM) at the
`same time . . . with other data items of the plurality [of] data items . . . .”);
`PO Sur-reply 4 (asserting that the “same ‘plurality of data items’ are subject
`to spatial multiplexing in the preamble and transmit diversity in [the
`‘wherein’ clause]”); Tr. 44:22–45:2.
`Consequently, in order for both the preamble limitations and the
`“wherein” clause limitations to be met, a plurality of data items, including
`the specific data item, must be transmitted via spatial multiplexing, i.e.,
`using a plurality of antennas in parallel. In other words, both the specific
`data item and at least one other data item that is different (i.e., the recited
`“plurality”) must be transmitted at the same time. In addition, both the
`specific data item and its replica data item must also be transmitted at the
`same time, as recited in the “wherein” clause, for transmit diversity. Thus,
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`at least three data items—the specific data item, its replica, and another
`different data item—must be transmitted at the same time to satisfy the
`claim because both spatial multiplexing (preamble) and transmit diversity
`(“wherein” clause) must occur. See PO Resp. 7; Pet. Reply 2–3; Ex. 1020,
`12:17–21. As a result, the claim requires simultaneity.
`Petitioner’s arguments opposing this interpretation are unpersuasive.
`First, Petitioner argues that Patent Owner relies on the “wherein” clause to
`support a simultaneity requirement, but the “wherein” clause does not
`require spatial multiplexing. Pet. Reply 3–4. As discussed above, however,
`Patent Owner relies on both the “wherein” clause and the preamble, and it
`did not waive its arguments regarding the preamble. Also as discussed
`above, it is the preamble that requires spatial multiplexing, not the “wherein”
`clause. Thus, Petitioner’s argument is misplaced.
`Next, Petitioner asserts that Dr. Vojcic “concede[d] that no limitation
`recites” a simultaneity requirement. Id. at 4–5. This argument is
`misleading. The cited testimony from Dr. Vojcic’s deposition addressed
`each of the limitations of claim 1 except the preamble. See Ex. 1020, 6:6–
`10:4. In fact, Dr. Vojcic testified in his Declaration that the challenged
`claims require “simultaneous combination of [spatial multiplexing] and
`[transmit diversity]” based on the claim language of the preamble and the
`“wherein” clause together. See Ex. 2002 ¶ 33.
`Finally, Petitioner contends that “the preamble here should not be read
`to require [simultaneity] under the broadest reasonable interpretation,”
`because Patent Owner purportedly agreed to a claim construction of the
`preamble in a co-pending proceeding at the U.S. International Trade
`Commission (ITC) that does not mention transmit diversity. Pet. Reply 5–6
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`(citing Ex. 2001, 5). This argument, however, addresses only the preamble,
`and does not address Patent Owner’s contention that the preamble and the
`“wherein” clause, when considered together, indicate that simultaneity is
`required by claim 1.10
`
`*
`
`*
`
`*
`In sum, we construe “specific data” as “data given a higher priority in
`transmission.” We also construe claims 1 and 6 as requiring simultaneity,
`i.e., that the recited “specific data item” is transmitted at the same time as
`both its replica data item (transmit diversity) and at least one other, different
`data item (spatial multiplexing). No other claim terms require express
`construction. See Nidec Motor Corp., 868 F.3d at 1017.
`
`C.
`
`Alleged Unpatentability Under § 103(a)
`A claim is unpatentable under § 103 if the differences between the
`claimed subject matter and the prior art are “such that the subject matter as a
`whole would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.”
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including: (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of skill in
`
`
`10 The joint claim construction proposal for the preamble at the ITC was,
`“multiple-antenna apparatus, which transmits multiple data items
`(transmission data) at the same time and at the same frequency using
`multiple antennas.” Ex. 2001, 5. We note that this construction is consistent
`with spatial multiplexing and our discussion of the preamble above.
`
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`the art; and (4) objective evidence of nonobviousness, i.e., secondary
`considerations. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`Additionally, the obviousness inquiry typically requires an analysis of
`“whether there was an apparent reason to combine the known elements in
`the fashion claimed by the patent at issue.” KSR, 550 U.S. at 418 (citing
`In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring “articulated
`reasoning with some rational underpinning to support the legal conclusion of
`obviousness”)); see In re Warsaw Orthopedic, Inc., 832 F.3d 1327, 1333
`(Fed. Cir. 2016) (citing DyStar Textilfarben GmbH & Co. Deutschland KG
`v. C. H. Patrick Co., 464 F.3d 1356, 1360 (Fed. Cir. 2006)).
`
`1.
`
`Overview of the Asserted Prior Art
`a.
`Paulraj (Ex. 1005)
`Paulraj is a U.S. patent issued on May 23, 2000, and relates to
`“implementing spatial multiplexing in conjunction with the one or more
`multiple access protocols during the broadcast of information in a wireless
`network.” Ex. 1005, 1:53–56. Spatial multiplexing is “a transmission
`technology which exploits multiple antennas at both the base station(s) and
`at the subscriber units to increase the bit rate in a wireless radio link.” Id. at
`5:38–42. A data stream is split into multiple independent substreams,
`transmitted on multiple antennas, and reconstituted after reception. Id. at
`5:42–67. In addition, aside from the antennas used for the spatial
`multiplexing scheme, “[a]dditional antennas on the transmit or receive side
`are then used for diversity purposes and further improve the link reliability
`by improving, for example, the signal-to-noise ratio or allowing for smaller
`fading margins, etc.” Id. at 6:7–13.
`
`16
`
`
`
`IPR2018-01476
`Patent 7,764,711 B2
`
`
`Huang (Ex. 1006)
`b.
`Huang is an article titled, “Achieving High Data Rates in CDMA
`
`Systems Using BLAST Techniques,” appearing in the Conference Record
`for the IEEE Global Telecommunications Conference held in Rio de Janeiro,
`Brazil, in December 1999. Ex. 1006, 6, 38.11 According to Huang, “[h]igh
`speed data transmissions are achieved by demultiplexing a single data
`stream into G substreams, each with rate R,” and transmitting the substreams
`“over one or more antennas (more antennas to achieve transmit diversity).”
`Id. at 38. The same substream may be “simultaneously transmitted from
`more than one antenna.” Id.
`
`c. Walton (Ex. 1008)
`Walton is a U.S. patent filed on June 24, 2002, and issued on August
`
`22, 2006. Ex. 1008, code (22), (45). Walton relates to “[t]echniques . . . for
`transmitting data in a manner to improve the reliability of data
`transmission.” Id. at 2:24–25. “These transmission modes may include
`diversity transmission modes, which may be used to achieve higher
`reliability for certain data transmission (e.g., for overhead channels, poor
`channel conditions, and so on). Id. at 2:27–31.
`
`d. Wallace (Ex. 1009)
`Wallace is a U.S. patent application published on December 19, 2002,
`
`that relates to a “method for communication in a wireless communication
`system,” and specifically configuring transmission based on “antenna
`diversity status information.” Ex. 1009 ¶¶ 7–8. MIMO systems with
`
`
`11 We use the exhibit pagination added by Petitioners in Exhibit 1006.
`
`17
`
`
`
`IPR2018-01476
`Patent 7,764,711 B2
`
`multiple transmit antennas and multiple receive antennas are described. See,
`e.g., id. ¶ 88. Wallace discloses a “diversity communication mode” that
`“employs diversity to improve the reliability of the communication link.”
`Id. ¶ 79. According to Wallace, “the two basic types of MIMO links are:
`pure diversity, i.e., both transmit and receive diversity; and spatial
`multiplexing, i.e., parallel channels.” Id. ¶ 106.
`
`Alleged Obviousness Over Paulraj, Huang, and Walton
`2.
`a.
`Independent Claims 1 and 6
`
`Petitioner contends both independent claims of the ’711 Patent are
`obvious in view of the combined teachings of Paulraj, Huang, and Walton.
`Pet. 18–37, 43–44. Claims 1 (apparatus) and 6 (method) recite nearly
`identical limitations, and both parties rely on the same arguments for both
`claims. See Pet. 43–44; PO Resp. 24–43.
`According to Petitioner, Paulraj teaches both a transmitting apparatus
`(claim 1) and a transmitting method (claim 6) employing a MIMO scheme in
`which a plurality of data items are transmitted on a plurality of antennas in
`parallel. Pet. 18–21, 43. Paulraj describes “[s]patial multiplexing” as “a
`transmission technology which exploits multiple antennas at both the base
`station(s) and at the subscriber units.” Ex. 1005, 5:38–42; see also id. at
`Fig. 3 (depicting a base station (“BTS”) with final stage transmitter 316
`coupled to antennas 134T and 136T). As disclosed in Paulraj, a data stream
`is split into multiple “independent substreams” that are “applied separately
`to the N transmit antennas and launched into the radio channel.” Id. at 5:44–
`55. An “array of receive antennas” receives the transmission, and the
`signals are processed to “recover the original substreams and finally merge
`the symbols back together.” Id. at 5:58–67. Patent Owner does not dispute
`
`18
`
`
`
`IPR2018-01476
`Patent 7,764,711 B2
`
`that Paulraj teaches the elements recited in the preambles of claims 1 and 6.
`See PO Resp. 25 (acknowledging that Paulraj teaches spatial multiplexing).
`With respect to the “mapping section” (claim 1) and “mapping step”
`(claim 6) that “maps the plurality of data items to at least one of the plurality
`of antennas,” Petitioner relies on Paulraj’s disclosure of “spatial
`multiplexing and multiple access processes/logic” (“SM_MA
`processes/logic”), which may be implemented in a control module. Pet. 21–
`22, 43 (quoting Ex. 1005, 7:26–28, 14:58–63, Fig. 3). For example, Paulraj
`discloses SM_MA processes/logic 104, which “parse[s] and route[s]
`subscriber data stream 170 into substreams 172–174, which are transmitted
`. . . over the spatially separate antenna 134–136 of BTS 132.” Ex. 1005,
`8:6–11. SM_MA processes/logic 104 can “provide to each antenna 134–136
`of BTS 132 a single substream derived from the original datastream 170.”
`Id. at 10:33–39. Patent Owner does not dispute that Paulraj teaches these
`limitations of claims 1 and 6.
`Petitioner contends Paulraj teaches the “transmitting section”
`(claim 1) and “transmitting step” (claim 6), which “transmits the plurality of
`data items using the at least one of the plurality of antennas to the receiving
`apparatus,” in its disclosure of final stage transmitter 316. Pet. 26–28, 44.
`Paulraj discloses that transmitter 316 is “coupled to a spatially separate
`antenna array which includes antennas 134T–136T.” Ex. 1005, 12:49–51.
`When the “datastream(s)/substreams are then passed to the final transmit
`stage 316,” traffic is routed to the appropriate antenna (134T–136T) for
`transmission. Id. at 13:1–9. Antennas 140R–142R on the receive side
`“detect downlink composite signals deriv
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