Trials@uspto.gov
`571-272-7822
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`Paper 9
` April 12, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., HTC CORPORATION,
`HTC AMERICA, INC. and ZTE (USA) INC.,
`Petitioners,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`Case 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.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`
`
`
`
`
`Paper 9
` April 12, 2019
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., HTC CORPORATION,
`HTC AMERICA, INC. and ZTE (USA) INC.,
`Petitioners,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`Case 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.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`
`
`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, “Petitioners”) 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”). INVT SPE LLC (“Patent
`Owner”) timely filed a Preliminary Response (Paper 8, “Prelim. Resp.”).
`We have authority to institute an inter partes review only if the
`information presented in the Petition shows “there is a reasonable likelihood
`that the petitioner would prevail with respect to at least 1 of the claims
`challenged in the petition.” 35 U.S.C. § 314(a). An inter partes review may
`not be instituted on fewer than all claims challenged in the Petition. SAS
`Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1359–60 (2018).
`Upon consideration of the Petition and Preliminary Response, we
`determine that the information presented shows there is a reasonable
`likelihood that Petitioner would prevail in establishing the unpatentability of
`each of the challenged claims. Accordingly, we institute an inter partes
`review of the challenged claims of the ’711 Patent.
`
`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
`
`
`1 Petitioners identify ZTE Corporation as an additional real party-in-interest.
`Pet. 67.
`
`2
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`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
`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 realize 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); Prelim.
`Resp. 4–5. 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); Prelim. Resp. 5–6. This technique, however, “reduces the
`transmission rate of the communication system,” which deteriorates
`transmission efficiency. Ex. 1001, 1:64–67.
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`The claimed invention is directed to solving both of these challenges
`simultaneously, i.e., “to improve reception performance of specific data on a
`receiving side while maintaining the transmission efficiency of a
`communication system.” Id. at 2:3–6.
`
`C.
`
`Challenged Claims
`Petitioners challenge 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.
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`D.
`
`Asserted Ground of Unpatentability and Asserted Prior Art
`Petitioners assert that claims 1–6 are unpatentable as obvious under
`35 U.S.C. § 103(a) in view of the combination of Paulraj,2 Huang,3 and
`Walton.4 Pet. 8. Further, Petitioners contend claims 1–6 also are
`unpatentable as obvious under 35 U.S.C. § 103(a) in view of the
`combination of Wallace5 and Walton. Id. at 9. In addition, Petitioners rely
`on the Declaration of Dr. Andrew C. Singer. (Ex. 1003), in support of both
`asserted grounds of unpatentability.
`
`ANALYSIS
`
`A.
`
`Claim Construction
`For petitions filed before November 13, 2018, claim terms in an
`unexpired patent are given their broadest reasonable construction in light of
`the specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`see Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016). The
`parties propose constructions for multiple claim terms, but we only construe
`claims to the extent necessary to resolve the issues for this Decision. See
`Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d 795, 803 (Fed. Cir.
`1999); Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co., 868 F.3d
`1013, 1017 (Fed. Cir. 2017).
`
`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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`
`Patent Owner proposes a construction for the term “specific data,”
`which is recited in each independent claim of the ’711 Patent. Specifically,
`Patent Owner contends “specific data” should be construed as “data given a
`higher priority in transmission.” Prelim. Resp. 21–22. Petitioners do not
`propose a construction for “specific data,” but instead propose to construe
`the phrase, “user data requiring a better communication quality than other
`user data.” Pet. 11–12. Claim 2 depends from claim 1 and recites that the
`“specific data” of claim 1 comprises this phrase. According to Petitioners, a
`proper construction of the phrase “must at least include the data given
`‘higher priority in transmission . . . from other data,’” such as a “control
`signal for controlling a communication with the receiving side or data to be
`transmitted now to the receiving side having poor channel quality (channel
`quality of a predetermined level or lower) or the receiving side having a
`higher moving speed (moving speed of a predetermined level or higher).”
`Id. (citing Ex. 1001, 3:55–66).
`The Specification of the ’711 Patent describes a process in which “the
`type of data included in the transmission signal” is recognized. Ex. 1001,
`3:37–45. Further, “[t]he recognition processing on the above described type
`of data . . . refers to processing of recognizing and distinguishing data to
`which the CDMA transmission apparatus . . . gives higher priority in
`transmission (hereinafter referred to as ‘specific data’) from other data.” Id.
`at 3:55–60 (emphasis added); see also id. at 5:16–28 (describing a
`transmission scheme for “data to be transmitted with higher priority” to
`“improve the reception performance . . . for specific data”). The
`Specification gives examples of “specific data,” including control signals,
`data being transmitted when channel quality is poor, and data requested to be
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`retransmitted or that has been retransmitted many times (because prior
`transmission was unsuccessful). Id. at 3:60–4:7.
`Based on the evidence presented thus far, we agree with Patent Owner
`that “specific data,” when read in light of the Specification, should be
`construed preliminarily as “data given a higher priority in transmission” for
`purposes of this Decision. Moreover, this construction is not inconsistent
`with Petitioners’ construction for “user data requiring a better
`communication quality than other user data.” Claim 2 recites that the
`“specific data” of claim 1 comprises this “user data requiring a better
`communication quality than other user data,” i.e., this “user data” is a subset
`of “specific data.” Thus, Petitioners are correct that the construction of the
`“user data” phrase in claim 2 must include “the data given ‘higher priority in
`transmission . . . from other data,” i.e., specific data. Pet. 11–12. The
`examples cited by Petitioners also are consistent as they are described as
`“specific data” in the Specification. See Pet. 11–12 (citing a control signal
`and data to be transmitted in the case of poor channel quality); Ex. 1001,
`3:60–66 (describing the same examples as “specific data”).
`According to Patent Owner, however, Petitioners’ proposed
`construction of “user data requiring a better communication quality than
`other user data” is overly narrow because Petitioners allegedly seek to
`construe the phrase as limited to the examples cited in the Petition. Prelim.
`Resp. 22–23. As Patent Owner notes, the Specification also gives additional
`examples of such data (e.g., retransmission data). Id. at 24 (citing Ex. 1001,
`4:4–7). But Patent Owner mischaracterizes Petitioners’ position, as the
`Petition makes clear they are merely examples. See Pet. 11–12 (arguing that
`the phrase “must at least include” high priority data, “including, for
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`example,” a control signal or data to be transmitted in the case of poor
`channel quality). For the same reasons, however, adopting Petitioners’
`proposed construction of “user data requiring a better communication quality
`than other user data” is unnecessary because, in effect, it merely
`acknowledges that the scope of such “user data” overlaps that of “specific
`data”—an overlap expressly recited in claim 2.
`In sum, for purposes of this Decision, we construe “specific data” as
`“data given a higher priority in transmission.” No other terms require
`express construction at this stage. See Vivid Techs., 200 F.3d at 803.
`
`B.
`
`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
`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
`
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`(Fed. Cir. 2016) (citing DyStar Textilfarben GmbH & Co. Deutschland KG
`v. C. H. Patrick Co., 464 F.3d 1356, 1360 (Fed. Cir. 2006)).
`
`Level of Ordinary Skill
`1.
`Petitioners assert 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. 1002 ¶ 41). At this stage of the case, Patent Owner does
`not dispute Petitioners’ formulation of the level of skill in the art. Based on
`the information presented in the Petition and Dr. Singer’s testimony, we
`adopt Petitioners’ formulation for purposes of this Decision.
`
`Secondary Considerations of Non-Obviousness
`2.
`Neither party presented any evidence or argument regarding
`secondary considerations of non-obviousness at this stage of the case. Thus,
`we do not consider any such considerations in our analysis for this Decision.
`
`3.
`
`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,
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`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.
`
`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, 38.6 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, at [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
`
`
`6 We use the exhibit pagination added by Petitioners in Exhibit 1006.
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`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 ¶¶ [0007]–[0008]. MIMO systems
`with multiple transmit antennas and multiple receive antennas are described.
`See, e.g., id. ¶ [0088]. Wallace discloses a “diversity communications
`mode” that “employs diversity to improve the reliability of the
`communication link.” Id. ¶ [0079]. 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. ¶ [0106].
`
`Alleged Obviousness Over Paulraj, Huang, and Walton
`4.
`a.
`Independent Claims 1 and 6
`
`Petitioners contend 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; Prelim. Resp. 25–40.
`According to Petitioners, 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
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`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
`at this stage that Paulraj teaches the elements recited in the preambles of
`claims 1 and 6, and Petitioners’ showing as to these elements is sufficient on
`the present record.
`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,” Petitioners rely 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 rout[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.
`At this stage, Patent Owner does not dispute that Paulraj teaches these
`limitations of claims 1 and 6, and Petitioners’ showing is sufficient for
`purposes of this Decision.
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`Petitioners contend 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 downstream composite signals derived from the spatially separate
`transmission of the substreams through antennas 134T–136T.” Id. at 13:20–
`23. Figure 3 of Paulraj depicts these components of both the BTS and the
`subscriber unit on the receive side. Id. at Fig. 3. Patent Owner does not
`dispute that Paulraj teaches these limitations in its Preliminary Response.
`On this record, Petitioners’ showing as to these limitations is sufficient for
`purposes of this Decision.
`For the limitations of generating “a replica data item” by “replicating
`a specific data item of the plurality of data items” and mapping the plurality
`of data items to antennas “such that the specific data item and the replica
`data item are transmitted from different antennas at a same time,” Petitioners
`identify disclosures in Paulraj, Walton, and Huang as allegedly teaching the
`limitations. Pet. 28–37, 44. Paulraj indicates that “[a] single substream . . .
`may be transmitted from more than one antenna, if diversity or beam
`forming transmit processes are implemented in addition to spatial
`multiplexing.” Ex. 1005, 19:46–49 (emphases added). Petitioners identify
`Figure 9A, reproduced below, as particularly relevant.
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`Id. at Fig. 9A. Figure 9A depicts components of a BTS, including slot
`selector 900, transmit processor module 314A, and final transmit stage
`316A. Id. at 26:10–13.
`As shown in Figure 9A, substreams 454 and 456 derived from a
`subscriber datastream are inputs to slot selector 900. Id. at 26:22–25.
`Substreams 454 and 456 are assigned by slot selector 900 to identical time
`slots in TDMA (time-division multiple access) datastreams 902 and 904,
`which are inputs to transmit processor module 314A. Id. at 26:29–34,
`26:37–39. Transmit processor module 314A implements “well known prior
`art techniques for improving signal quality,” including “diversity
`processing.” Id. at 26:39–46. The outputs are provided to final transmit
`stage 316A, including encoder modulators 924 and 926 leading to antennas
`134T and 136T, respectively, which conduct the “spatially separate
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`transmission” of substreams 454 and 456. Id. at 26:50–57, Fig. 9A. Final
`transmit stage 316A also includes additional antenna arrays 940 and 942 and
`associated encoder modulators 920 and 922, which are used to implement
`the transmit processes such as diversity processing. Id. at 26:58–60. As
`Petitioner notes (Pet. 30), transmit processor module 314A receives two
`input substreams (454 and 456) and produces four outputs consistent with its
`performance of diversity processing. See Ex. 1005, Fig. 9A. Two of these
`four outputs are transmitted on antennas 940 and 942, which are used to
`implement diversity processing. Id. at 26:58–60, Fig. 9A.
`
`Petitioners further cite Walton’s disclosure that “[e]ach diversity
`transmission mode redundantly transmits data over time, frequency, space,
`or a combination thereof.” Ex. 1008, at [57]. Walton also describes a
`“diversity processor” that feeds data symbols into a “symbol repetition unit”
`that “repeats each modulation symbol based on the (e.g., dual or quad)
`diversity to be provided” for each symbol. Id. at 10:61–65; see also id. at
`10:58–60 (“Frequency diversity may be established by transmitting identical
`modulation symbols on multiple subbands.”).
`
`With respect to the recited “specific data” that is replicated—i.e., data
`given a higher priority in transmission, as construed preliminarily above—
`Petitioners rely on Walton’s disclosure that “diversity transmission modes
`may be used for overhead channels on the downlink, such as broadcast,
`paging, and other common channels.” Id. at 10:5–8; Pet. 38.7 Walton also
`
`
`7 We refer here to Petitioners’ arguments regarding claim 2, which depends
`from claim 1 and recites further limitations on the “specific data” of claim 1.
`The “specific data” meeting the further requirements of claim 2, thus,
`necessarily also reads on the “specific data” of claim 1. As discussed above,
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`indicates diversity transmission may be used, for example, when channel
`conditions are poor. Ex. 1008, 10:8–15. As Petitioners note, the ’711 Patent
`indicates “specific data” includes, for example, “data to be transmitted now
`to the receiving side having poor channel quality.” Ex. 1001, 3:60–66.
`
`Finally, Petitioners rely on Huang’s disclosure of a transmit diversity
`scheme in which “the same substream is simultaneously transmitted from
`more than one antenna” (Ex. 1006, 38 (emphasis added)) as teaching the
`limitation of claims 1 and 6 that the specific data item and replica data item
`are transmitted “from different antennas at a same time.” Pet. 35–36.
`
`Patent Owner advances several arguments regarding these limitations
`of claims 1 and 6. Prelim. Resp. 26–31. First, Patent Owner asserts that
`Paulraj does not teach or suggest “transmit diversity.” Id. at 26. According
`to Patent Owner, transmit processor 314A identified by Petitioners is a
`“black box,” and Paulraj fails to teach transmitting a specific data item and
`replica data item from different antennas at the same time, as recited in the
`claims. Id. at 26–28. Patent Owner does not, however, address all of
`Paulraj’s disclosures identified by Petitioners, notably its disclosure that “[a]
`single substream . . . may be transmitted from more than one antenna, if
`diversity or beam forming transmit processes are implemented in addition to
`spatial multiplexing.” Ex. 1005, 19:46–49 (emphases added). Moreover, as
`
`
`Petitioners’ claim construction position on claim 2 is consistent with our
`preliminary construction of “specific data” in claim 1. For these reasons, we
`consider Petitioners arguments regarding claim 2 in our analysis of the
`“specific data” recited in claim 1. We further note that Patent Owner did not
`distinguish between claims 1 and 2 in its arguments in the Preliminary
`Response, addressing all challenged claims together.
`
`16
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`IPR2018-01476
`Patent 7,764,711 B2
`
`discussed above, Petitioners rely on the combined teachings of Paulraj,
`Walton, and Huang, not Paulraj alone.
`
`Next, Patent Owner argues Petitioners’ reliance on Walton is
`unfounded because Walton teaches replicating all symbols in a data stream,
`not merely those with higher priority (i.e., “specific data”). Prelim. Resp.
`28–29. But again, Patent Owners do not address specific disclosures
`identified by Petitioners as teaching this aspect of the challenged claims,
`particularly Walton’s disclosure that “diversity transmission modes may be
`used to achieve higher reliability for certain data transmissions” (Ex. 1008,
`10:4–5 (emphasis added)), including “for overhead channels on the
`downlink, such as broadcast, paging, and other common channels” and
`“when the channel conditions are sufficiently poor” (id. at 10:5–10). Patent
`Owner also does not address Petitioners’ specific argument that the ’711
`Patent itself indicates these are examples of “specific data,” i.e., data given a
`higher priority in transmission. See Pet. 38–39; Ex. 1001, 3:60–66.
`
`Patent Owner then asserts that Petitioners’ reliance on Huang is
`misplaced because Huang “is silent, or at least agnostic, as to replicating the
`specific data item” as recited in the ’711 Patent. Prelim. Resp. 30.
`According to Patent Owner, Huang teaches “retransmission of all data item
`substreams” and, thus, fails to teach selecting only a “specific data item” for
`replication and retransmission. Id. at 30–31. Petitioners, however, rely on
`Paulraj and Walton, not Huang, as teaching this aspect of the claims.
`Pet. 28–33, 38–39.
`
`Based on the evidence and arguments presently available, Petitioners’
`contentions are more persuasive, and their showing is sufficient at this stage
`
`17
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`IPR2018-01476
`Patent 7,764,711 B2
`
`of the case that the combination of Paulraj, Walton, and Huang teaches the
`“specific data” limitations of claims 1 and 6.
`
`As Petitioners rely on a combination of references, we must also
`examine “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)). According to
`Petitioners, a person of ordinary skill would have been motivated to combine
`the teachings of Paulraj, Walton, and Huang in the manner discussed above.
`Pet. 32–34, 36–37, 39–40.
`According to Petitioners, Paulraj and Walton both similarly teach
`transmit processors that implement transmit diversity schemes. Id. at 32.
`Petitioners note that Paulraj does not expressly disclose some details of
`implementing transmit diversity, but assert such details (and transmit
`diversity techniques generally) were well-known in the art as evidenced by
`Walton, which discloses such implementation details. See id. at 32–33
`(citing Ex. 1003 ¶¶ 60–61). Based on Dr. Singer’s testimony, Petitioners
`assert an ordinary artisan would have understood that combining the specific
`transmit processor and diversity functions disclosed in Walton with the
`transmit processor in Paulraj would be applying known methods to achieve
`predictable results—i.e., a transmit processor performing Walton’s transmit
`diversity schemes within the system of Paulraj, which would confer “the
`disclosed benefit of improved link reliability.” See id. at 32–33 (citing
`Ex. 1003 ¶¶ 62, 64).
`Further, Petitioners contend a person of ordinary skill would have
`been motivated to combine the teachings of Huang with Paulraj because
`doing so also would have constituted applying well-known transmit diversity
`
`18
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`
`techniques to achieve predictable results. Id. at 36–37. Petitioners note
`Paulraj expressly indicates that a diversity scheme based on spatial diversity
`(i.e., transmitting on spatially separate antennas), as distinguished from time
`diversity (i.e., transmitting at different times), may be used. Id. at 36 (citing
`Ex. 1005, 26:48–49; Ex. 1003 ¶ 66). According to Petitioners, such spatial
`transmit diversity techniques were well-known in the art, as evidenced by
`Huang, and even an ordinary artisan would have had a reasonable
`expectation of successfully and predictably achieving improved link
`reliability by applying those techniques. Id. at 36–37 (citing Ex. 1003 ¶ 69).
`Petitioners present Dr. Singer’s testimony as evidence that a person of
`ordinary skill would have recognized, and been motivated by, the benefits of
`applying transmit diversity to high priority transmissions in particular,
`especially based on Walton’s teachings. Id. at 39–40 (citing Ex. 1003 ¶ 73).
`Patent Owner disputes Petitioners’ contentions, arguing that a skilled
`artisan would not have been motivated to combine the references and, in
`fact, would have been taught away from such a combination. Prelim. Resp.
`31–40. More specifically, Patent Owner first asserts that Paulraj’s main
`objective was to increase “data transfer speed,” which teaches away from a
`combination with Walton because Walton was concerned with solving a
`different problem, i.e., poor channel conditions and spectral efficiency. Id.
`at 32–33, 34–36.8 Patent Owner does not address, however, Paulraj’s
`
`
`8 Patent Owner argues certain statements in Dr. Singer’s Declaration are
`“conclusory” and should not be given weight. Prelim. Resp. 33–34. On the
`present record, and based on Dr. Singer’s testimony as a whole rather than
`individual statements in isolation, we conclude for purposes of this Decision
`that Dr. Singer’s testimony supports Petitioners’ arguments.
`
`19
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`teachings to apply diversity techniques to “further improve the link
`reliability” (Ex. 1005, 6:10–13), which appear to indicate that such an
`objective would
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