Paper 11
`Trials@uspto.gov
`571-272-7822 Entered: March 7, 2019
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC. AND ZTE (USA) INC.,
`Petitioner,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01477
`Patent 7,848,439 B2
`____________
`
`
`
`Before THU A. DANG, KEVIN F. TURNER, and BARBARA A. BENOIT,
`Administrative Patent Judges.
`
`BENOIT, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Entered: March 7, 2019
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC. AND ZTE (USA) INC.,
`Petitioner,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01477
`Patent 7,848,439 B2
`____________
`
`
`
`Before THU A. DANG, KEVIN F. TURNER, and BARBARA A. BENOIT,
`Administrative Patent Judges.
`
`BENOIT, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
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`IPR2018-01477
`Patent 7,848,439 B2
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`I. INTRODUCTION
`This is a preliminary proceeding to decide whether to institute inter
`partes review of U.S. Patent No. 7,848,439 B2 (Ex. 1001, “the ’439 patent”
`or “the challenged patent”). See 35 U.S.C. § 314(a); 37 C.F.R § 42.4(a)
`(delegating authority to institute trial to the Board). Institution of an inter
`partes review is authorized by statute when “the information presented in the
`petition . . . and any response . . . shows that 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).
`Apple Inc. and ZTE (USA) Inc. (collectively, “Petitioner”) filed a
`petition seeking inter partes review of claims 1–11 of U.S. Patent
`No. 7,848,439 B2. Paper 1 (“Pet.”). Patent Owner, INVT SPE LLC, filed a
`Preliminary Response. Paper 7 (“Prelim. Resp.”). After receiving
`authorization (Paper 8), Petitioner filed a Reply (Paper 9) to address Patent
`Owner’s argument that institution should be denied for efficiency reasons,
`and Patent Owner filed a Sur-Reply (Paper 10).
`Upon consideration of the Petition and the Preliminary Response, we
`conclude the information presented does not show a reasonable likelihood
`that Petitioner would prevail in establishing the unpatentability of any of the
`challenged claims. Accordingly, we deny institution of an inter partes
`review.
`
`A. Related Matters
`As required by 37 C.F.R. § 42.8(b)(2), each party identified various
`judicial or administrative matters that would affect or be affected by a
`decision in this proceeding. Pet. 47; Paper 4 (Patent Owner’s Mandatory
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`Notice), 2–3. Patent Owner identifies a petition, filed on August 22, 2018
`by a different petitioner, challenging claims 1–8 of the ’439 patent and
`applying some of the same references as asserted here. Paper 4, 2
`(identifying IPR2018-01555); see IPR2018-01555, Paper 1, 3 (“Grounds of
`Challenge”).
`
`B. The Challenged Patent
`The ’439 patent, titled “Communication Apparatus, Communication
`System, and Communication Method,” describes techniques for adaptive
`modulation and coding that result in improved spectrum usage in mobile
`communications. Ex. 1001, Abstract, [54], 1:10–26.
`
`1. The Written Description
`The patent describes techniques for a wireless communication
`orthogonal frequency division multiplexing (OFDM) system that transmits
`high-speed data using a large number of subcarrier frequency bandwidths.
`Ex. 1001, Abstract, 1:10–26; see id. at 1:10–14 (indicating the present
`invention relates to techniques for “carrying out adaptive modulation and
`coding [“AMC”] in adaptive transmission technology in subcarrier
`communication systems—that is, in wireless communication orthogonal
`frequency division multiplexing (OFDM) system[s]”). The patent explains
`the “concept of AMC is to change modulation and coding parameters in
`transmission based on channel characteristics at [the] current time.” Id. at
`1:65–67. “With OFDM, adaptivity . . . refers to adaptivity at two domains of
`time domain and frequency domain.” Id. at 1:67–2:2.
`The patent identifies two types of AMC used in conventional OFDM.
`Id. at 2:3. The first type of AMC is adaptivity based on individual OFDM
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`subcarriers, which is difficult to implement due to the number of subcarriers.
`Id. at 2:3–12. The second type of AMC in OFDM based adaptivity on
`groups of subcarriers and the groups are called subbands. Id. at 2:12–21.
`The patent indicates that in prior art subband AMC: “a subband indicates a
`subcarrier group comprised of subcarriers in neighboring positions on the
`frequency domain.” Id. at 2:19–21. The conventional method of adaptivity
`based on subbands (groups of subcarrier) reduced the difficulty of
`implementing adaptivity and reduced feedback overhead. Id. at 4:56–60.
`But, these conventional methods were not able “to effectively utilize
`diversity performance between subbands,” which the patent indicates “is an
`important method for improving wireless transmission quality.” Id. at 4:56–
`60.
`The patent describes creating subband groups based on a predefined
`rule and selecting a modulation and coding scheme for the entire subband
`group, instead of doing so for a subband (group of subcarriers). Id. at 5:39–
`45; 8:57–60 (“On the receiving side, differences with subband adaptivity of
`the related art shown in FIG. 4B is that the unit of adaptive demodulation
`and coding is a subband group rather than a subband.”). The patent provides
`three examples of how subbands are to be grouped (combining neighboring
`subbands, combining subbands spaced at intervals, and combining all of the
`subbands) and indicates additional methods may be used. Id. at 10:29–33.
`
`2. The Challenged Claims
`Petitioner challenges the eleven claims in the ’439 patent, of which
`claims 1, 8, 9, 10, and 11 are independent. Claims 1 and 8, reproduced
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`below with brackets noting Petitioner’s identifiers, are illustrative of the
`claimed subject matter:
`1. A communication apparatus comprising:
`[1a] a channel estimating section that carries out a channel
`estimation per subband;
`[1b] a parameter deciding section that decides modulation
`parameters and coding parameters per subband group
`comprised of a plurality of the subbands, based on a result of
`the channel estimation per subband;
`[1c] a parameter information transmission section that transmits,
`to a communicating party, parameter information indicating
`the modulation parameters and the coding parameters decided
`at the parameter deciding section;
`[1d] a receiving section that receives a signal containing data
`modulated and encoded on a per subband group basis at the
`communicating party using the modulation parameters and
`the coding parameters of
`the parameter
`information
`transmitted at
`the parameter
`information
`transmission
`section;
`[1e] a data obtaining section that demodulates and decodes the
`received signal received at the receiving section on a per
`subband group basis using the modulation parameters and the
`coding parameters decided at the parameter deciding section,
`and obtains the data contained in the received signal; and
`[1f] a pattern storage section that stores in advance patterns for
`selecting subbands constituting the subband groups wherein
`the parameter deciding section decides the modulation
`parameters and the coding parameters per subband group
`comprised of the subbands selected based on the patterns
`stored in the pattern storage section.
`Ex. 1001, 12:65–13:27.
`8. A communication apparatus comprising:
`[8a] a channel estimating section that carries out a channel
`estimation per subband;
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`[8b] a parameter deciding section that decides modulation
`parameters and coding parameters per subband group
`comprised of a plurality of the subbands based on a result of
`the channel estimation per subband;
`[8c] a parameter information transmission section that transmits
`to a communicating party, parameter information indicating
`the modulation parameters and the coding parameters decided
`at the parameter deciding section;
`[8d] a receiving section that receives a signal containing data
`modulated and encoded per subband group at
`the
`communicating party, using the modulation parameters and
`coding parameters of the parameter information transmitted
`at the parameter information transmission section; and
`[8e] a data obtaining section that demodulates and decodes the
`received signal received at the receiving section on a per
`subband group basis, using the modulation parameters and the
`coding parameters decided at the parameter deciding section,
`and obtains the data contained in the received signal;
`[8f] wherein the parameter deciding section decides the coding
`parameters in such a manner that a number of information bits
`obtained by assigning a weight per subband group to a sum of
`information bits that are able to be assigned to all of the
`subbands within the subband group, is assigned to the
`subband group.
`Ex. 1001, 13:65–14:26.
`
`3. The Prosecution History
`The PCT application that issued as the ’439 patent on
`December 7, 2010 was filed on November 18, 2005 with twelve claims.
`Ex. 1001, [22]; Ex. 1002, 46–51 (PCT claims). The ’439 patent claims
`priority to a 2004 Chinese patent application. Ex. 1001, [30]; see Prelim.
`Resp. 6; Pet. 5–6. On February 2, 2010, the Examiner rejected the
`application independent claims and some dependent claims as anticipated by
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`the application’s description of OFDM AMC prior art. Ex. 1002, 251–60
`(citing Figs. 3A–3B (labeled prior art) and enumerated passages in the
`Background Art section). Application independent claim 1, for example,
`recited:
`A communication apparatus comprising:
`a channel estimating section that carries out a channel estimation
`per subband;
`a parameter deciding section that decides modulation parameters
`and coding parameters per subband group comprised of a
`plurality of the subbands, based on the channel estimation
`result;
`a parameter information transmission section that transmits to a
`communicating party, parameter
`information
`that
`is
`information for the modulation parameters and the coding
`parameters decided at the parameter deciding section;
`a receiving section that receives a received signal containing data
`modulated and encoded per
`subband group at a
`communicating party using the modulation parameters and
`the coding parameters of
`the parameter
`information
`transmitted at
`the parameter
`information
`transmission
`section;
`a data obtaining section that demodulates and decodes the
`received signal received at the receiving section per subband
`group using the modulation parameters and the coding
`parameters decided at the parameter deciding section, and
`obtains the data contained in the received signal.
`Ex. 1002, 46. According to the Examiner, however, some of the dependent
`claims would be allowable if written in independent form. Ex. 1002, 258.
`The Examiner indicated that the prior art of record did not teach or suggest:
`a pattern storage section that stores patterns for selecting
`subbands constituting the subband groups in advance
`and did not teach or suggest:
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`the parameter deciding section decides the coding parameters in
`such a manner that the number of information bits obtained by
`assigning a weight to the sum of the number of information bits
`that are able to be assigned to all of the subbands within the
`subband group, is assigned to the subband group.
`Ex. 1002, 258 (identifying limitations in application claims 2 and 8).
`In response, the Applicant amended the application claims to include
`one or the other of the identified allowable subject matter. Ex. 1002, 275–
`86. The Examiner allowed the claims in response to Applicant’s
`amendment, and in the Notice of Allowability identified allowable subject
`matter as:
`a pattern storage section that stores in advance patterns for
`selecting subbands constituting the subband groups wherein the
`parameter deciding section decides the modulation parameters
`and the coding parameters per subband group comprised of the
`subbands selected based on the patterns stored in the pattern
`storage section [claim 1[f]]
`[and]
`wherein the parameter deciding section decides the coding
`parameters in such a manner that a number of information bits
`obtained by assigning a weight per subband group to a sum of
`information bits that are able to be assigned to all of the subbands
`within the subband group, is assigned to the subband group
`[claim 8[f]].
`Ex. 1002, 300–01. The ’439 patent issued in due course. Ex. 1002, 316
`(Issue Notification).
`
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`C. The Asserted Ground of Unpatentability
`Petitioner challenges under 35 U.S.C. § 1031 the patentability of
`claims 1–11 of the ’439 patent. Petitioner relies on the following references
`as prior art:
`U.S. Patent No. 6,904,283 B2, filed April 17, 2001, issued June
`7, 2005 (Ex. 1004, “Li”);
`U.S. Patent No. 7,885,228 B2, filed March 20, 2003, issued
`February 8, 2011 (Ex. 1005, “Walton”); and
`U.S. Patent No. 7,221,680 B2, filed September 1, 2004, issued
`May 22, 2007 (Ex. 1006, “Vijayan”).
`Petitioner assumes November 19, 2004 is the priority date for the
`challenged claims and contends that each of the references is prior art to the
`challenged claims. Pet. 6, 9 (Li), 12 (Walton), 42 (Vijayan).
`Petitioner challenges the patentability of the claims 1–11 on the
`following grounds:
`References
`Li and Walton
`Li, Walton, and Vijayan
`
`Claims
`1, 3, and 5–11
`2 and 4
`
`Pet. 8–46. In its challenges Petitioner cites to the references and declaration
`testimony from Andrew C. Singer, Ph.D. (Exhibit 1003). Pet. 9–46.
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112–29, 125
`Stat. 284, 287–88 (2011), revised 35 U.S.C. § 103 effective March 16, 2013.
`Because the challenged patent was filed before March 16, 2013, we refer to
`the pre-AIA version of § 103.
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`II. DISCUSSION
`
`A. Legal Standards
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent it challenges is
`unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016) (citing 35 U.S.C. § 312(a)(3) (requiring inter partes review
`petitions to identify “with particularity . . . the evidence that supports the
`grounds for the challenge to each claim”)); see also 37 C.F.R. § 42.104(b)
`(requiring a petition for inter partes review to identify how the challenged
`claim is to be construed and where each element of the claim is found in the
`prior art patents or printed publications relied on). Petitioner cannot satisfy
`its burden of proving obviousness by employing “mere conclusory
`statements.” In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1380 (Fed.
`Cir. 2016).
`A claim is unpatentable under 35 U.S.C. § 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 the 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 ordinary skill in the art; and (4) objective evidence of nonobviousness.2
`
`2 At this preliminary stage Patent Owner does not offer objective evidence of
`non-obviousness.
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`Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). In determining the
`level of ordinary skill, various factors may be considered, including the
`“types of problems encountered in the art; prior art solutions to those
`problems; rapidity with which innovation are made; the sophistication of the
`technology; and educational level of active workers in the field.” In re
`GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995) (internal quotation and
`citation omitted).
`
`B. Level of Ordinary Skill in the Art
`Relying on declaration testimony of Dr. Singer, Petitioner contends
`that one of ordinary skill in the art “would have been a person having a
`Bachelor’s degree in electrical engineering or equivalent plus 3 years of
`experience working with digital communication systems or in network
`engineering or a Master’s degree in electrical engineering with an emphasis
`on communication systems or the equivalent plus 1 year of experience
`working with digital communication systems or in network engineering.”
`Pet. 7 (citing Ex. 1003 ¶ 33). Patent Owner does not dispute Petitioner’s
`proposed level of ordinary skill. Prelim. Resp. 20. For purposes of this
`Decision, we adopt the undisputed level of ordinary skill proposed by
`Petitioner.
`
`C. Claim Construction
`For a petition for inter partes review 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) (2018); see Cuozzo Speed Techs., LLC v. Lee, 136 S.
`Ct. 2131, 2144–46 (2016) (upholding the use of broadest reasonable
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`construction standard in inter partes review).3 Accordingly, we use the
`broadest reasonable construction standard for this proceeding.
`Under the broadest reasonable construction standard, claim terms are
`presumed to have their ordinary and customary meaning as would be
`understood by one of ordinary skill in the art in the context of the entire
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). An inventor may provide a meaning for a term that is different from
`its ordinary meaning by defining the term in the specification with
`“reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994).
`Petitioner contends that no terms require express construction for this
`Decision. Pet. 8–9. Patent Owner proposes that “patterns for selecting
`subbands” (recited in claim 1) and “patterns, for selecting a plurality of the
`subbands” (recited in claims 2 and 4) be construed as “fixed rules for
`choosing subbands based on frequency.” Prelim. Resp. 20–22. We,
`however, do not need to construe expressly these terms to determine whether
`to institute an inter partes review based on Petitioner’s challenges.
`To the extent it is necessary to determine whether to institute an inter
`partes review, we discuss claims terms in the context of analyzing the
`asserted ground. See Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d
`
`
`3 Rule 42.100(b) has been amended to provide that petitions filed on or after
`November 13, 2018, are analyzed under the same claim construction
`standard applicable in district courts. See 37 C.F.R. § 42.100(b); Changes to
`the Claim Construction Standard for Interpreting Claims in Trial
`Proceedings Before the Patent Trial and Appeal Board, 83 Fed. Reg. 51340
`(Oct. 11, 2018).
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`795, 803 (Fed. Cir. 1999) (holding that “only those terms need be construed
`that are in controversy, and only to the extent necessary to resolve the
`controversy”); see also Nidec Motor Corp. v. Zhongshan Broad Ocean
`Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017) (citing Vivid Techs. in the
`context of an inter partes review).
`
`D. Obviousness over Li and Walton (Alone or with Vijayan)
`Petitioner asserts that the subject matter of claims 1, 3 and 5–11
`would have been obvious to one of ordinary skill in the art in view of Li and
`Walton. Pet. 8–41. Petitioner also asserts that the subject matter of claims 2
`and 4, which depend from independent claim 1, would have been obvious to
`one of ordinary skill in the art in view of Li, Walton, and Vijayan. Pet. 8,
`41–46.
`
`1. Disclosure of Li
`Li is a U.S. patent titled “Multi-Carrier Communications with Group-
`Based Subcarrier Allocation” that describes an OFDMA cellular
`communication system in which subcarriers are partitioned into groups
`(called “clusters”) and the groups are allocated to a subscriber (i.e., a cellular
`handset). Ex. 1004, 3:5–17, [54]; see id. at Abstract; 2:13–22, 3:18–23,
`3:30–38, Fig. 1B.
`Li’s Figure 1A is set forth below.
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`Figure 1A illustrates multiple subcarriers (one of which is labeled as
`subcarrier 101) and cluster 102 of four subcarriers. Id. at 5:18–20; see id. at
`2:31 (indicating Figure 1A depicts subcarriers and clusters). Li explains that
`a cluster is “a logical unit that contains at least one physical subcarrier.” Id.
`at 5:18–20. “A cluster can contain consecutive or disjoint subcarriers.” Id.
`at 5:21–22. “The mapping between a cluster and its subcarriers can be fixed
`or reconfigurable,” in which case “the base station informs the subscribers
`when the clusters are redefined.” Id. at 5:22–25.
`Li describes the subscriber role in an example process. “For downlink
`channels, each subscriber first measures the channel and interferences
`information for all the subcarriers and then selects multiple subcarriers with
`good performance (e.g., a high signal-to-interference plus noise ratio
`(SINR)) and feeds the information on these candidate subcarriers to the base
`station.” Id. at 3:18–23. Li explains that the “feedback may comprise
`channel and interference information (e.g., signal-to-interference-plus-noise-
`ratio information) on all subcarriers or just a portion of subcarriers. In case
`of providing information on only a portion of the subcarriers, a subscriber
`may provide a list of subcarriers ordered starting with those subcarriers
`which the subscriber desires to use, usually because their performance is
`good or better than that of other subcarriers.” Id. at 3:23–29.
`Li also describes the role of the base station in that example process.
`“Upon receiving the information from the subscriber, the base station further
`selects the subcarriers among the candidates, utilizing additional information
`available at the base station, e.g., the traffic load information on each
`subcarrier, amount of traffic requests queued at the base station for each
`frequency band, whether frequency bands are overused, and/or how long a
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`subscriber has been waiting to send information. In one embodiment, the
`subcarrier loading information of neighboring cells can also be exchanged
`between base stations. The base stations can use this information in
`subcarrier allocation to reduce inter-cell interference.” Id. at 3:30–41.
`Li also indicates that in an embodiment “the selection by the base
`station of the channels to allocate, based on the feedback, results in the
`selection of coding/modulation rates. Such coding/modulation rates may be
`specified by the subscriber when specifying subcarriers that it finds
`favorable to use.” Id. at 3:42–45.
`Li indicates that, for both uplink and downlink transmission, “the base
`station makes the final decision of subcarrier allocation for each subscriber.”
`Id. at 3:64-65.
`Li’s Figure 1B is set forth below.
`
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`Figure 1B depicts an example process for allocating clusters of
`subcarriers to subscribers (cellular handsets). Id. at 5:29–30. “[E]ach base
`station periodically broadcasts pilot OFDM symbols to every subscriber with
`its cell (or sector),” as shown in processing block 101. Id. at 5:35–38.
`“Next, each subscriber continuously monitors the reception of the pilot
`symbols and measures the SINR and/or other parameters . . . of each
`cluster,” as shown in processing block 102. Id. at 5:46–50. Based on this
`information, “each subscriber selects one or more clusters with good
`performance . . . and feeds back the information on these candidate clusters
`to the base station,” as shown in processing block 103. Id. at 5:50–54.
`“Upon receiving the feedback from a subscriber, the base station further
`selects one or more clusters for the subscriber among the candidates,” as
`shown in processing block 104. Id. at 6:18–20. To do so, the base station
`uses additional information available at the base station, such as “traffic load
`information on each subcarrier, amount of traffic requests queued at the base
`station for each frequency band, whether frequency bands are overused, and
`how long a subscriber has been waiting to send information.” Id. at 6:20–
`25.
`
`“After cluster selection, the base station notifies the subscriber about
`the cluster allocation through a downlink common control channel or
`through a dedicated downlink traffic channel if the connection to the
`subscriber has already been established,” as shown in processing block 105.
`Id. at 6:30–34. The base station also may inform the subscriber about the
`appropriate modulation/coding rates. Id. at 6:34–36. “From time to time,”
`the process is repeated, as shown in processing block 106. Id. at 6:63–65.
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`Li also describes an embodiment in which “each base station transmits
`pilot symbols simultaneously, and each pilot symbol occupies the entire
`OFDM frequency bandwidth.” Id. at 7:37–39. “A subscriber estimates the
`SINR for each cluster from the pilot symbols.” Id. at 7:50–52. “The
`estimated SINR values may be ordered from largest to smallest SINRs and
`the clusters with large SINR values are selected.” Id. at 7:56–58. “In one
`embodiment, the subscriber always tries to send the information about as
`many clusters as possible from which the base station chooses.” Id. at 7:63–
`65. “The estimated SINR values are also used to choose the appropriate
`coding/modulation rate for each cluster as discussed above. By using an
`appropriate SINR indexing scheme, an SINR index may also indicate a
`particular coding and modulation rate that a subscriber desires to use.” Id. at
`7:66–8:3.
`Li describes an exemplary base station that “assigns desirable clusters
`to the subscriber making the request” and, in one embodiment, takes into
`consideration the total traffic load on the cluster as well as the SINR. Id. at
`11:10–15; see id. at Fig. 13 (depicting a base station with a cluster
`scheduling and load allocation controller), 11:16–45 (describing a base
`station with a cluster scheduling and load allocation controller).
`In a section titled “Group-Based Cluster Allocation,” Li describes
`partitioning clusters of subcarriers into groups such that each group can
`include multiple clusters. Id. at 11:46–49. Figure 6 is set forth below.
`
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`17
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`Figure 6 shows four groups (Group 1–Group 4) “with arrows [lines] pointing
`to clusters that are in each group as a result of partitioning.” Id. at 11:49–52.
`Li explains the goals of group-based clustering allocation include “reducing
`the data bits for cluster indexing, thereby reducing the bandwidth
`requirements of the feedback channel (information) and control channel
`(information) for cluster allocation.” Id. at 11:62–66.
`
`2. Disclosure of Walton
`Walton is a U.S. patent titled “Transmission Mode Selection for Data
`Transmission in a Multi-Channel Communication System” that describes
`techniques for “select[ing] the proper transmission mode for a data
`transmission in a multi-channel communication system with multiple
`transmission channels having varying [signal-to-noise-and-interference-
`ratios or] SNRs.[4]” Ex. 1005, 2:21–24. “A suitable transmission mode may
`be determined for each data stream to be independently processed (e.g.,
`coded and modulated) and transmitted on a designated group of transmission
`channels.” Id. at 2:24–28. Walton describes a “specific method of
`determining a suitable transmission mode for a data stream sent on multiple
`transmission channels” as obtaining an “SNR estimate for each of the
`
`
`4 See Ex. 1005, 1:29–30 (identifying “SNRs” as abbreviation for “signal-to-
`noise-and-interference-ratios”).
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`18
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`multiple transmission channels used to transmit that data stream.” Id. at
`2:28–32. An average SNR and an unbiased variance are then computed for
`the SNRs estimates for the multiple transmission channels. Id. at 2:32–52.
`A back-off factor is then determined, which may be based on the average
`SNR and the SNR variance. Id. at 2:53–55. Next, an operating SNR for the
`transmission channels is computed based on the average SNR and the back-
`off factor. Id. at 2:59–62. “The transmission mode for the data stream is
`then selected based on the operating SNR, for example, using a look-up
`table of supported transmission modes and their required SNRs.” Id. at
`2:62–65. “The selected transmission mode is utilized for all of the multiple
`transmission channels used to transmit the data stream. Id. at 2:65–67.
`
`3. Petitioner’s Contentions Regarding Independent Claim 1
`In general, and consistent with Li’s disclosure described above,
`Petitioner relies on Li’s description that “subcarrier clusters can be grouped”
`and that the SINR is reported on subcarrier clusters within the group.
`Pet. 11–12. According to Petitioner, Li’s SINR “may indicate particular
`modulation and coding parameters.” Pet. 11. Petitioner acknowledges that
`Li does not describe expressly choosing the same parameters for all
`subcarrier clusters within the cluster group, as required by claim 1. Pet. 12.
`Petitioner, however, contends that Walton performs “AMC such that the
`entire group of subcarriers allocated to a subscriber use the same modulation
`and coding parameters.” Pet. 12.
`a. “communication apparatus” and “channel estimating” [1a]
`Petitioner contends that Li’s “subscriber” (synonymous with a cellular
`or mobile handset) teaches the “communication apparatus” recited in
`
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`independent claim 1. Pet. 14 (citing Ex. 1003 ¶ 41) (contending a skilled
`artisan “would understand the descriptions of functionality attributed to
`[Li’s] ‘subscribers’ are in fact functionalities in the subscriber’s cellular
`handset, or communication apparatus”); Pet. 14 (summarizing Dr. Singer’s
`testimony as “Li expressly equates ‘subscribers’ to ‘mobiles,’ which a
`[skilled artisan] would consider a ‘communication apparatus’ as required by
`this claim.”); see Ex. 1003 ¶ 41 (“Thus, a skilled artisan would have
`understood that the ‘subscriber’ in Li means a communication apparatus,
`such as a mobile handset.”).
`Petitioner contends Li’s subcarrier cluster teaches the recited subband.
`Pet. 15 (“Accordingly, Li’s subcarrier ‘cluster’ is the same as the
`[challenged patent’s] ‘subband.’”) (citing Ex. 1004, 5:18–27, Fig. 1A;
`Ex. 1001, 2:19–21, Ex. 1003 ¶ 35). For the recited “channel estimating
`section” [1a] and consistent with the cited passages in Li, Petitioner relies on
`Li’s “process by which pilot symbols are transmitted from the base station to
`[the] subscriber device from which the subscriber device can calculate
`quality (i.e., signal-to-interference plus noise ratio[] (SINR)) on a subcarrier
`cluster basis.” Pet. 15 (citing Ex. 1004, 7:37–55, Figs. 2A–2C).
`b. “parameter deciding section” [1b]
`For the recited “parameter deciding section” [1b], Petitioner relies on
`a combination of Li and Walton and contends that “it would have been
`obvious to modify Li to decide a single set of modulation and coding
`parameters for the entire subband/cluster group in accordance with the
`teachings of Walton.” Pet. 16.
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`(i) Li’s teaching
`More specifically, Petitioner relies on Li’s teaching that
`“subbands/clusters can be allocated in groups of subbands/clusters.” Pet. 16.
`Petitioner further contends that Li’s subscriber (cellular handset) “knows”
`which clusters are included in a group. Pet. 18 (citing Ex. 1004, 11:47–52,
`12:9–19, Fig. 6).
`Petitioner also relies on Li’s teaching that the subscriber’s handset
`selects one or more clusters based on SINR measurements as “candidate
`clusters” and sends to the base station infor
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