UNITED STATES PATENT AND TRADEMARK OFFICE
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ____________
`
`APPLE INC.,
`HTC CORPORATION AND HTC AMERICA, INC.,
`ZTE (USA) INC.
`Petitioners
`
`v.
`
`INVT SPE LLC
`Patent Owner
`
`____________
`
`Case No. IPR2018-01476
`Patent No. 7,764,711
` ____________
`
`
`
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
` ____________
`
`APPLE INC.,
`HTC CORPORATION AND HTC AMERICA, INC.,
`ZTE (USA) INC.
`Petitioners
`
`v.
`
`INVT SPE LLC
`Patent Owner
`
`____________
`
`Case No. IPR2018-01476
`Patent No. 7,764,711
` ____________
`
`
`
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`I. INTRODUCTION ............................................................................................ 1
`II. ARGUMENT .................................................................................................... 1
`A. CLAIM CONSTRUCTION ............................................................................... 1
`1. PO contends the Challenged Claims require simultaneous spatial
`multiplexing and transmit diversity, i.e., transmitting a specific data
`item, its replica, and at least one additional data item at the same time 2
`2. Neither PO nor its expert identifies any limitation that requires
`simultaneous spatial multiplexing and transmit diversity ..................... 3
`3. The preamble cannot save PO’s narrow read of the claims ................. 5
`B. GROUND 1: PAULRAJ, HUANG, AND WALTON RENDER CLAIMS 1-6 OBVIOUS . 6
`1. The combination of Paulraj and Walton teaches a “Specific Data Item”
`............................................................................................................. 7
`2. Paulraj teaches spatial multiplexing .................................................... 9
`3. Paulraj Discloses Simultaneously Implementing Spatial Multiplexing
`and Transmit Diversity .......................................................................12
`4. PO’s individual attacks on the prior art teachings ignore the proposed
`combination ........................................................................................14
`5. A PHOSITA Would Have Been Motivated to Combine Paulraj, Walton,
`and Huang ..........................................................................................15
`C. GROUND 2: WALLACE AND WALTON RENDER CLAIMS 1-6 OBVIOUS .............19
`D. PO’S ALLEGED SECONDARY CONSIDERATIONS OF NON-OBVIOUSNESS FAIL
`TO PRESERVE PATENTABILITY ....................................................................19
`III. CONCLUSION ................................................................................................21
`
`
`
`I.
`
`INTRODUCTION
`Patent Owner’s (PO) arguments for patentability in its Patent Owner’s
`
`Response (Paper 11) (“POR”) ignore the express teachings of the references, the
`
`actual grounds of rejection provided in the Petition, and the Board’s findings in the
`
`Institution Decision (Paper 9) (“ID”), focusing instead on unclaimed features and an
`
`expert whose deposition testimony contradicts many of PO’s own arguments.
`
`Accordingly, PO has not overcome the proposed grounds, and the Challenged
`
`Claims should be canceled.
`
`II. ARGUMENT
`A. Claim Construction
`PO argues all Challenged Claims “require that spatial multiplexing and
`
`transmit diversity be implemented at the same time, or simultaneously” without
`
`providing any claim construction analysis or even identifying any specific claim
`
`language that imposes this purportedly key requirement. Paper 11, POR at 7. While
`
`the ’711 Patent specification discloses a simultaneous embodiment of spatial
`
`multiplexing and transmit diversity, as the Board found at institution, PO has failed
`
`to show that the Challenged Claims include simultaneity as a requirement and are
`
`thus limited to such an embodiment. Paper 9, ID at 26-27 (noting PO disputes that
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`“Wallace and Walton
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`[satisfy]
`
`the challenged claims
`
`require[ment of]
`
`‘simultaneous’ . . . spatial multiplexing and transmit diversity,” but pointing out that
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`PO “does not explain where such a limitation is recited in the challenged claims”
`
`
`
`1
`
`
`
`and concluding “the combination of Wallace and Walton teach[es] each limitation
`
`of claims 1 and 6”). PO’s Response has done nothing to alter that finding.
`
`Nonetheless, PO’s claim construction is moot because Ground 1 invalidates the
`
`Challenged Claims under both parties’ constructions.
`
`1.
`
`PO contends the Challenged Claims require simultaneous
`spatial multiplexing and transmit diversity, i.e., transmitting a
`specific data item, its replica, and at least one additional data
`item at the same time
`
`The POR explains that “utilizing different antennas . . . to transmit different
`
`data items in parallel . . . is known as “spatial multiplexing” and that “[r]eplicating
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`[a single] data signal and transmitting copies of the data signal in parallel on the
`
`multiple antennas . . . is known as “transmit diversity.” Response, 3. The Response
`
`continues, “[t]he inventions of the ’711 Patent relate to” using “spatial multiplexing
`
`of a plurality of different data items transmitted over different antennas and also
`
`transmit diversity of a specific data item and its replica over a plurality of antennas
`
`at the same time.” Id., 3 (emphasis in original).
`
`To avoid any doubt, PO makes clear that its position is the Challenged Claims
`
`require at least three things transmitted at the same time: a specific data item, its
`
`replica for transmit diversity, and at least one additional data item for spatial
`
`multiplexing. Id., 7 (noting “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 (simultaneously or in parallel), with other data items” and concluding “the
`
`
`
`2
`
`
`
`challenged claims . . . teach simultaneous combination of SM and TD”). PO’s
`
`expert, Dr. Vojcic, also confirmed he interpreted the Challenged Claims to require
`
`simultaneous transmission of at least the same three data items. Ex. 1020, Vojcic
`
`Transcript at 12:17-21.
`
`2.
`
`Neither PO nor its expert identifies any limitation that requires
`simultaneous spatial multiplexing and transmit diversity
`
`The ’711 Patent specification describes simultaneous spatial multiplexing and
`
`transmit diversity, and the Challenged Claims may even permit these processes to
`
`occur simultaneously, but PO has identified nothing in the claims that require these
`
`processes to occur simultaneously. In alleged support of its narrow read, PO points
`
`to a single limitation:
`
`wherein, in the mapping step, a replica data item is generated
`by replicating a specific data item of the plurality of data
`items, and the plurality of data items are mapped 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.
`
`POR, 5 (emphasizing the above limitation from Claim 1 and the variation of the
`
`above limitation from Claim 6). Without referencing any other claim language, PO
`
`concludes, “claim 1 (and also claim 6) recites . . . simultaneous use of spatial
`
`multiplexing and transmit diversity.” Id., 6 (emphasis in original). But while the
`
`above limitation describes transmit diversity (i.e., a specific data item and its replica
`
`
`
`3
`
`
`
`transmitted simultaneously),
`
`this
`
`limitation does not also require spatial
`
`multiplexing. Indeed, the claim language does not even mention other data, let alone
`
`require that other data be transmitted simultaneously with the specific data item and
`
`its replica.
`
`Despite his belief that the Challenged Claims require simultaneous spatial
`
`multiplexing and transmit diversity, PO’s expert concedes that no limitation recites
`
`such a requirement. Claim 1 recites three limitations including (1) “a mapping
`
`section that maps the plurality of data items to at least one of the plurality of
`
`antennas” (“mapping limitation”); (2) “a transmitting section that transmits the
`
`plurality of data items using the at least one of the plurality of antennas to the
`
`receiving apparatus” (“transmitting limitation”); and (3) “wherein the mapping
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`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” (“replica limitation”). Ex.
`
`1001, Claim 1 (emphasis added); see also, id., Claim 6. Dr. Vojcic agreed that the
`
`“mapping limitation” does not require the plurality of data items to be mapped to
`
`different (i.e., more than one) antennas; Ex. 1020, 6:6-25; the “transmitting
`
`limitation” allows for, but does not require, transmitting the plurality of data items
`
`from different (i.e., more than one) antennas, id., 7:1-10:4; and that the “replica
`
`
`
`4
`
`
`
`limitation” requires only that the specific data item and its replica are transmitted
`
`simultaneously from different antennas, id. Synthesizing this testimony, Dr. Vojcic
`
`concedes (1) the first two limitations require a plurality of data items to be mapped
`
`to at least one of a plurality of antennas and (2) the last limitation requires the
`
`specific data item and its replica are transmitted from different antennas at a same
`
`time. But he identifies no limitations that require these features be implemented at
`
`the same time such that the specific data item, its replica, and other data are
`
`transmitted simultaneously.
`
`3.
`
`The preamble cannot save PO’s narrow read of the claims
`
`Having conceded that no limitation requires simultaneous spatial multiplexing
`
`and transmit diversity, Dr. Vojcic opined that the preambles require that these
`
`features occur simultaneously. Id., 14:4-15:12. He also confirmed that the preamble
`
`is the only part of the claims that he alleges recites spatial multiplexing. Id., 22:5-
`
`18. In this proceeding, however, PO has not proposed a construction for the
`
`preamble nor has PO contended the preamble is limiting. Response, 10-11.
`
`Accordingly, PO has waived any arguments that depend on a limiting preamble.
`
`Regardless, the preamble here should not be read to require simultaneous
`
`spatial multiplexing and
`
`transmit diversity under
`
`the broadest reasonable
`
`interpretation (“BRI”). Claim 1’s preamble recites, “[a] transmitting apparatus
`
`employing a MIMO (multi-input/multi-output) scheme of transmitting a plurality of
`
`
`
`5
`
`
`
`data items for a same receiving apparatus using a plurality of antennas in parallel.”
`
`PO agreed to a construction of this preamble in the co-pending ITC proceeding (in
`
`which the narrower Phillips standard is applied) that does not require simultaneous
`
`implementation of spatial multiplexing and transmit diversity. Specifically, PO
`
`agreed the preamble should be construed as a “multiple-antenna apparatus, which
`
`transmits multiple data items (transmission data) at the same time and at the same
`
`frequency using multiple antennas.” Ex. 2001, Joint Claim Construction Chart at
`
`5. This construction addresses only the transmission of “multiple data items” (i.e.,
`
`spatial multiplexing), and does not mention transmission of the specific data item or
`
`its replica (i.e., transmit diversity). Accordingly, PO should not be permitted to
`
`advance a narrower construction in this proceeding, which requires the application
`
`of the broader BRI standard, than that which it advanced before the ITC, in which
`
`the narrower Phillips standard was applied.
`
`B. Ground 1: Paulraj, Huang, and Walton Render Claims 1-6 Obvious
`PO alleges every prior art reference in Ground 1 fails to teach a “specific data
`
`item and [] replica data item [] transmitted from different antennas at a same time”
`
`under a construction that “specific data item” and its replica are “data given a higher
`
`priority in transmission.” Response, 24. Rather than addressing the combination of
`
`Paulraj, Walton, and Huang as presented in the Petition, however, PO improperly
`
`attacks the references individually. The test for obviousness is what the combined
`
`
`
`6
`
`
`
`teachings of the references would have suggested. See In re Mouttet, 686 F.3d 1322,
`
`1333 (Fed. Cir. 2012) (citing In re Keller, 642 F.2d 413, 425 (C.C.P.A. 1981)).
`
`Thus, “[a] finding of obviousness … cannot be overcome ‘by attacking references
`
`individually where the rejection is based upon the teachings of a combination of
`
`references.’” Bradium Techs. LLC v. Iancu, 923 F.3d 1032, 1050 (Fed. Cir. 2019)
`
`(quoting In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)) (emphasis
`
`added). Accordingly, PO’s attacks on the individual teachings cannot overcome the
`
`proposed ground of obviousness presented in the Petition.
`
`1.
`
`The combination of Paulraj and Walton teaches a “Specific Data
`Item”
`
`At institution, the Board construed “specific data” as “data given a higher
`
`priority in transmission.” ID, 8. Although the Petition did not propose this meaning,
`
`it did map prior art to claim 2, which recites “wherein the specific data item
`
`comprises user data requiring a better communication quality than other user data,”
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`and it further proposed that this claim language should at least capture examples
`
`from the ’711 Patent 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 . . . or the receiving side having a higher moving speed.” Petition,
`
`11-12. The Board further noted the claim 2 language is a “subset of ‘specific data.’”
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`ID, 7. Accordingly, Petitioners’ prior art mappings that satisfy claim 2 similarly
`
`satisfy “specific data” in all Challenged Claims. ID, n.7 (noting the “‘specific data”
`
`
`
`7
`
`
`
`meeting the further requirements of claim 2, thus, necessarily also reads on the
`
`“specific data” of claim 1”).
`
`Consistent with the Board-adopted meaning of “specific data,” the Petition
`
`proposed modifying Paulraj pursuant to Walton’s teaching that transmit diversity
`
`can “achieve higher reliability for certain data transmissions” including for control
`
`signals broadcast on overhead channels and “when channel conditions are
`
`sufficiently poor (e.g., under certain mobility conditions).” Petition, 38 (emphasis
`
`added) (citing Ex. 1008, Walton at 2:27-31, 10:4-15). The ’711 Patent describes
`
`performing transmit diversity on the same types of “data given a higher priority in
`
`transmission” including “a control signal for controlling a communication with the
`
`receiving side or data to be transmitted now to a receiving side having poor channel
`
`quality . . . or the receiving side having a higher moving speed.” Id., 39, 11 (citing
`
`Ex. 1001, 3:55-66). Thus, Walton teaches performing diversity for certain data
`
`transmissions including the same “data given a higher priority in transmission” as
`
`described in the ’711 Patent.
`
`Indeed, the ID also credited Walton’s disclosure that diversity may be used to
`
`achieve higher reliability for certain data transmissions. ID, 17. It criticized PO for
`
`failing to address this specific disclosure and for insisting incorrectly that Walton’s
`
`“symbol repetition unit” repeats “all symbols.” Id. In the POR, PO repeats the same
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`errors: it again insists that Walton repeats all symbols and fails to engage Walton’s
`
`
`
`8
`
`
`
`specific disclosures, including those relied upon by the Petition and identified by the
`
`Board. POR, 30-32; see also id., 43-44 (quoting Walton’s “certain data
`
`transmission” in the context of a separate argument regarding simultaneous spatial
`
`multiplexing and transmit diversity).
`
`2.
`
`Paulraj teaches spatial multiplexing
`
`PO alleges “[t]here is no teaching from Paulraj that there is at the same time
`
`parallel transmission of other data streams in spatial multiplexing simultaneously.”
`
`POR, 27. As discussed above in Section II.A, this is not a requirement of the claims
`
`and is thus irrelevant, even if true. Regardless, it is not true: Paulraj does teach such
`
`spatial multiplexing.
`
`PO focuses its challenge on Paulraj’s Figure 9A (reproduced below). POR,
`
`28. Dr. Vojcic admits that it depicts simultaneously transmitting substreams 454
`
`and 456 from antennas 134T and 136T. Ex. 1020, 23:23-24:9, 24:19-25:1.
`
`
`
`9
`
`
`
`
`
`PO and Dr. Vojcic, however, contend that this does not constitute spatial
`
`multiplexing because the substreams 454 and 456 are a single “data item” since they
`
`derive from a single datastream 176. Id., 34:19-35:13; see also, POR, 27 (“Figure
`
`9A of Paulraj teaches that substreams 454 and 456–portions of the datastream 176–
`
`are transmitted in one time slot[.]”). This contention is unavailing. Neither PO nor
`
`Dr. Vojcic explains, let alone identifies any record evidence showing, what qualifies
`
`as a “data item” or why multiple substreams do not qualify as “a plurality of data
`
`items” merely because they are derived from a single datastream. At the very least,
`
`the Board should afford Dr. Vojcic’s opinion no weight, because he did not explain
`
`his interpretation of “data items.” 37 C.F.R. §42.65(a).
`
`Moreover, Paulraj discloses simultaneous transmission of a “plurality of data
`
`items” even under PO’s interpretation. PO and Dr. Vojcic’s analysis was limited to
`
`Paulraj’s Figure 9A, which is a TDMA embodiment where substreams 454 and 456,
`
`which are derived from datastream 176, are transmitted on a different timeslot than
`
`(and thus, not simultaneously with) datastream 182, which is unquestionably a
`
`different datastream than datastream 176. Ex. 2002, ¶¶34-37; Response, 28-30.
`
`However, the Petition also mapped the claims to Paulraj’s CDMA embodiment
`
`shown in Figure 11A. Petition, 21, 25, 26, 28, 30, 31, 34, 35, 40-42. As shown in
`
`Figure 11A below, the voice datastream 182 is transmitted in parallel with (and thus
`
`simultaneously with) substreams 454 and 456 (i.e., datastream 176):
`
`
`
`10
`
`
`
`
`
`Per Dr. Vojcic, such simultaneous transmission of data items from two
`
`datastreams resolves the concerns he expressed with the Fig. 9A embodiment:
`
`Q. If the voice stream 182 in figure 9A were input into the 314 diversity
`box in parallel with substreams 454 and 456, and all three substreams
`were transmitted simultaneously, would that avoid your first criticism
`of the Paulraj teaching?
`A. Yes, from -- from the point of view that now we have different data
`items.
`Ex. 1020, 35:19-25. Therefore, Paulraj’s Figure 11A teaches spatial multiplexing as
`
`recited in the preambles of claims 1 and 6 even under PO’s (incorrect) interpretation
`
`of “data items.”
`
`
`
`11
`
`
`
`3.
`
`Paulraj Discloses Simultaneously
`Multiplexing and Transmit Diversity
`
`Implementing Spatial
`
`PO points to a single disclosure from Paulraj and contends it “fails to teach
`
`the implementation of spatial multiplexing and transmit diversity simultaneously.”
`
`Response, 25. Under either PO’s (incorrect) interpretation that substreams 454 and
`
`456 are not separate “data items,” or under the correct broadest reasonable
`
`interpretation in which they are, Paulraj teaches simultaneously transmitting a data
`
`item and its replica along with a separate data item.
`
`In his deposition, Dr. Vojcic confirmed that Paulraj’s transmit processor
`
`314A performs a transmit diversity process in addition to spatial multiplexing that
`
`duplicates substreams 454, 456 and simultaneously transmits the substreams and
`
`their replicas from antennas 136T, 134T, 940, and 942:
`
`Q. When the Paulraj embodiment depicted in figure 9A implements the
`diversity processing option for block 314A, does that mean that
`substreams 454 and 456 would be duplicated and transmitted from
`antennas 136T, 134T as well as from antennas 942 and 940?
`A. Yeah, I think that’s how POSITA would understand.
`Ex. 1020, 26:4-11; see also, id., 27:18-28:4.
`
`Q. Does Paulraj allow for the possibility of a substream and its replica
`to be transmitted from different antennas simultaneously?
`A. I think he does.
`Id., 33:25-34:3; see also, Petition, 28-31 (citing Ex. 1005 at 19:41-48 for its teaching
`
`that “[a] single substream . . . may be transmitted from more than one antenna”), 34-
`
`
`
`12
`
`
`
`35. Thus, to the extent the Board determines the claims require spatial multiplexing
`
`and transmit diversity to be performed at the same time (which it should not), Paulraj
`
`teaches this, as it teaches transmitting one substream and its replica simultaneously
`
`from separate antennas at the same time that a different substream is transmitted
`
`from a third antenna.
`
`
`
`As detailed in the preceding section, Paulraj teaches this even under PO’s
`
`(incorrect) interpretation that substreams 454 and 456 are not separate “data items,”
`
`because Paulraj’s Fig. 11A embodiment discloses the same substreams from Fig.
`
`9A are transmitted in parallel with separate voice data stream 182. Petition, 21, 25,
`
`26, 28, 30, 31, 34, 35, 40-42. Paulraj also teaches that “optional transmit processing
`
`unit 314C . . . may impose on the datastream(s)/substreams additional signal
`
`processing, such as that described and discussed above in connection with FIG. 9A,”
`
`(Ex. 1005, 29:47-51), which is the transmit diversity teaching that Dr. Vojcic admits
`
`results in a substream and its replica transmitted simultaneously from multiple
`
`antennas. Accordingly, Paulraj’s Fig. 11A embodiment teaches that either of
`
`substreams 454 and 456 could be replicated for transmit diversity at the same time
`
`(simultaneously with) separate voice data stream 182—which satisfies PO’s
`
`(incorrect) interpretation of “data items” and PO’s (incorrect) assumption that
`
`simultaneous spatial multiplexing and transmit diversity is required.
`
`
`
`13
`
`
`
`4.
`
`PO’s individual attacks on the prior art teachings ignore the
`proposed combination
`
`PO alleges the Walton and Huang references individually do not disclose the
`
`limitation “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 the same time.” POR, 30, 33. But PO fails to address the
`
`actual combination presented in the Petition.
`
`Specifically, PO alleges Walton “does not disclose or suggest implementing
`
`transmit diversity for a specific data item at a same time with spatial multiplexing of
`
`a data stream as required by the challenged claims.” Id., 30. Again notwithstanding
`
`PO’s improper redrafting of the claim to require “implementing transmit diversity
`
`for a specific data item at a same time with spatial multiplexing of a data stream,”
`
`Petitioners relied on Paulraj – not Walton – for spatial multiplexing. Petition, 20-
`
`21. For the reasons discussed above, Paulraj expressly discloses transmitting
`
`different data items simultaneously. Supra, Section II.B.2.
`
`Similarly, PO contends Huang does not teach transmitting “a specific data
`
`item and its replica, at the same time by two different antennas.” POR, 33. But
`
`Petitioners rely on Walton – not Huang – for the teaching of a specific data item.
`
`Huang is cited only for its express teaching of a transmit diversity mode where a
`
`substream and its replica are transmitted from different antennas simultaneously.
`
`Petition, 35 (citing Ex. 1006, 2316).
`
`
`
`14
`
`
`
`Accordingly, these criticisms of Walton and Huang are irrelevant.
`
`5.
`
`A PHOSITA Would Have Been Motivated to Combine Paulraj,
`Walton, and Huang
`
`PO’s criticisms of Petitioners’ rationale to combine Paulraj, Walton and
`
`Huang are entirely divorced from the record. For example, PO contends
`
`“Petitioners’ obviousness claims ignore the construction of ‘specific data item’” and
`
`“have not shown that any of Paulraj, Huang, or Walton disclose or suggest a
`
`‘specific data item.’” Response, 35-36. As explained at length above, the Petition
`
`has shown, and the Board has agreed, that Walton teaches the required “specific data
`
`item.” Supra, Section II.B.1.
`
`Indeed, PO appears to agree that Walton teaches the “specific data item,” as it
`
`acknowledges that the proposed combination would incorporate “Walton’s higher
`
`importance data stream to either datastream 176 or 182.” POR, 38 (emphasis
`
`added). PO argues this “would not work . . . because datastreams 176 and 182 are
`
`not transmitted at the same time, i.e., they are transmitted in different time slots.”
`
`Id. PO’s argument ignores the CDMA embodiment depicted in Figure 11A, which
`
`shows datastreams 176 and 182 transmitted in parallel. Supra, Section II.B.2.
`
`PO’s also argues that one of the substreams 454, 456 could not be selected as
`
`the specific data item because they have the same priority. POR, 38. This, however,
`
`presumes a PHOSITA would physically substitute one of Paulraj’s substreams 454,
`
`456 for Walton’s higher-importance datastream, which was not proposed in the
`
`
`
`15
`
`
`
`Petition. Instead, the Petition proposed that Paulraj’s transmit processor would
`
`perform transmit diversity (i.e., replicate data) when it received important data on
`
`any input stream. Petition, 39 (“[I]t would have been obvious to a PHOSITA to
`
`implement and enable Paulraj’s transmit processor 314/358 to perform transmit
`
`diversity on the substream containing ‘certain data transmission’ requiring ‘higher
`
`reliability,’ such as control signals and/or data transmissions to a receiving side
`
`having poor or unknown channel quality.”). “It is well-established that a
`
`determination of obviousness based on teachings from multiple references does not
`
`require an actual, physical substitution of elements.” In re Mouttet, 686 F.3d 1322,
`
`1332 (Fed. Cir. June 26, 2012); In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en
`
`banc); In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is
`
`not whether the features of a secondary reference may be bodily incorporated into
`
`the structure of the primary reference[.]”). Because the law does not demand
`
`physical substitution of an entire Paulraj substream with Walton’s higher
`
`importance data stream, and because the Petition did not propose such a substitution,
`
`PO’s arguments should be rejected as irrelevant.
`
`PO contends “Paulraj actually teaches away from transmitting a specific data
`
`item and its replica as claimed” because “Paulraj and Walton are communication
`
`systems that focus on different problems: improving transmission speed and
`
`improving reliability, respectively.” POR, 36. PO does not identify any portion of
`
`
`
`16
`
`
`
`Paulraj that criticizes, discredits, or otherwise discourages the use of transmit
`
`diversity techniques as the law demands. In re Fulton, 391 F.3d 1195, 1201 (Fed.
`
`Cir. 2004). Rather, PO asserts, without support, that a PHOSITA would not have
`
`combined Paulraj with Walton because this combination “would contravene the
`
`purpose of Paulraj.” Id., 37. But the Board previously rejected this argument,
`
`finding PO failed to “address, however, Paulraj’s 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 not ‘destroy’ the main goal of Paulraj.” ID,
`
`19-20. PO’s Response again fails to address this. The Board’s finding is further
`
`buttressed by Dr. Vojcic’s testimony that Paulraj itself discloses transmitting a
`
`substream and its replica from different antennas simultaneously. Ex. 1020, 33:25-
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`34:3. The Board should again reject PO’s teaching away argument as contrary to
`
`the record.
`
`Finally, PO’s arguments regarding Huang also miss the mark. PO first argues
`
`that “Huang’s diversity scheme does not transmit multiple data items at the same
`
`time from multiple antennas,” because the “substreams in Huang are derived from a
`
`single datastream, i.e., data item, [and] they all necessary have the same
`
`importance/priority.” POR, 38. This is argument is irrelevant, because Petitioners
`
`rely on Walton – not Huang – for the “specific data item” limitation. See, e.g.,
`
`
`
`17
`
`
`
`Petition, 38-40 (discussing Walton’s additional protection through repetition for data
`
`requiring better reliability/quality).
`
`PO’s contention that Petitioners’ combination with Huang is based on
`
`hindsight ignores the analysis provided in the Petition. POR, 40. As noted in the
`
`Petition, Paulraj expressly suggests implementing transmit diversity in space alone.
`
`Petition, 36 (citing Ex. 1005, 26:48-49). Huang further shows that implementing
`
`transmit diversity by simultaneously transmitting a substream and its replica from
`
`different antennas (i.e., transmit diversity in space not time) was well known in the
`
`art. Id. (citing Ex. 1003, ¶¶68-69). Therefore, Petitioners motivation to combine
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`was also based on an express suggestion from Paulraj, a fact which Dr. Vojcic
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`admitted. Ex. 1020, 33:25-34:3.
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`PO’s final argument is that Paulraj, Walton, and Huang “teach way” from the
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`combination based on PO’s vague assertion that they are allegedly directed to
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`different problems. POR, 40-41. This argument is likewise unavailing. PO fails to
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`identify where any of these references criticize, discredit, or otherwise discourage
`
`the claimed invention as the law demands. Polaris Indus., Inc. v. Arctic Cat, Inc.,
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`882 F.3d 1056, 1069 (Fed. Cir. 2018) (“ A reference does not teach away if it merely
`
`expresses a general preference for an alternative invention but does not criticize,
`
`discredit, or otherwise discourage investigation into the invention claimed.”).
`
`Likewise, PO’s argument that the combination would not yield predictable results is
`
`
`
`18
`
`
`
`based on an improper presumption that Huang’s entire system would be bodily
`
`incorporated into Paulraj. POR, 42-43 (arguing that since Huang does not discuss
`
`a cellular uplink, the combination would not yield predictable results).
`
`C. Ground 2: Wallace and Walton Render Claims 1-6 Obvious
`
`The entirety of PO’s response to Ground 2 turns on PO’s argument that
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`Wallace fails to teach simultaneous implementation of spatial multiplexing and
`
`transmit diversity. POR, 43-46. As set forth in Section II.A, PO has not
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`demonstrated that such simultaneity is actually required by the Challenged Claims.
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`Accordingly, PO’s arguments relating to Ground 2 should be rejected.
`
`D.
`
`PO’s Alleged Secondary Considerations of Non-obviousness Fail to
`Preserve Patentability
`
`PO’s alleged secondary considerations of non-obviousness suffer several fatal
`
`flaws. First, they are premised on “certain 3GPP cellular standards” embodying the
`
`claims of the ’711 Patent. POR, 47 (“The precise transmission scheme recited in
`
`claims 1 and 6 was only recently adopted into certain 3GPP cellular communications
`
`standards, for example in simultaneous PUCCH and PUSCH transmission”). To
`
`support this presumption, PO cites to Dr. Vojcic, who provides only a single,
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`conclusory statement that simultaneous PUCCH and PUSCH transmission is “the
`
`invention described in the ’711 Patent” without any analysis or objective evidence
`
`showing this to be true. Ex. 2002, ¶69. Dr. Vojcic’s conclusory testimony is
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`completely devoid of factual support and should be afforded no weight. 37 C.F.R.
`
`
`
`19
`
`
`
`§42.65(a) (“Expert testimony that does not disclose the underlying facts or data on
`
`which the opinion is based is entitled to little or no weight.”). “For [evidence of
`
`secondary considerations] to be accorded substantial weight, its proponent must
`
`establish a nexus between the evidence and the merits of the claimed invention.”
`
`Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) (alteration and
`
`emphasis in original) (quoting In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir.
`
`1995)). Neither PO nor Dr. Vojcic has established any nexus between the cited
`
`standards and the alleged invention of the Challenged Claims.
`
`Second, PO’s alleged secondary considerations presume the Challenges
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`Claims are directed to simultaneous spatial multiplexing and transmit diversity.
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`POR, 47. (“Transmission of a specific data item, which has a higher priority in
`
`transmission than other data items, and its replica using transmit diversity in
`
`parallel with spatial multiplexing transmission, as recited in independent claims 1
`
`and 6, represent the inventive aspect of the challenged claims.”) (emphasis
`
`added). As explained above, however, the Challenged Claims include no such
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`requirement. Supra, Section II.A. Secondary considerations evidence must be
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`commensurate in scope with the claimed invention. In re Kao, 639 F.3d 1057, 1068
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`(Fed. Cir. 2011). Because PO’s evidence is outside the sco
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