Paper 8
`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
`____________
`
`HTC CORPORATION and HTC AMERICA, INC.,
`Petitioner,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01555
`Patent 7,848,439 B2
`____________
`
`
`
`Before THU A. DANG, KEVIN F. TURNER, and BARBARA A. BENOIT,
`Administrative Patent Judges.
`
`BENOIT, Administrative Patent Judge.
`
`
`
`
`DECISION
`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
`____________
`
`HTC CORPORATION and HTC AMERICA, INC.,
`Petitioner,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`____________
`
`Case IPR2018-01555
`Patent 7,848,439 B2
`____________
`
`
`
`Before THU A. DANG, KEVIN F. TURNER, and BARBARA A. BENOIT,
`Administrative Patent Judges.
`
`BENOIT, Administrative Patent Judge.
`
`
`
`
`DECISION
`Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
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`IPR2018-01555
`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).
`HTC Corporation and HTC America, Inc. (collectively, “Petitioner”)
`filed a petition seeking inter partes review of claims 1–7 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.”).
`Upon consideration of the Petition and the Preliminary Response, we
`conclude the information presented shows a reasonable likelihood that
`Petitioner would prevail in establishing the unpatentability of at least one of
`the challenged claims and institute inter partes review as to all challenges
`presented in the Petition. At this stage of the proceeding, the Board has not
`made a final determination as to the patentability of any challenged claim or
`any underlying factual or legal issues.
`
`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. 1–2; Paper 5 (Patent Owner’s Mandatory
`Notice), 2–3.
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`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 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
`subcarriers, which is difficult to implement due to the number of subcarriers.
`Id. at 2:3–12. The second type of AMC in OFDM that is 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
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`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 are. Id. at 10:29–33.
`
`2. The Challenged Claims
`Petitioner challenges claims 1–7 in the ’439 patent, of which claim 1
`is independent. Claim 1, reproduced below with brackets noting Petitioner’s
`identifiers, is 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;
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`[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.
`
`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, 476–481 (PCT claims). The ’439 patent claims
`priority to a 2004 Chinese patent application. Ex. 1001, [30]; see Prelim.
`Resp. 5; Pet. 5–6. On February 2, 2010, the Examiner rejected the
`application’s independent claims and some dependent claims as anticipated
`by the application’s description of OFDM AMC prior art. Ex. 1002, 232–
`241 (citing Figs. 3A–3B (labeled prior art) and enumerated passages in the
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`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, 476. According to the Examiner, however, some of the dependent
`claims would be allowable if written in independent form. Ex. 1002, 239.
`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:
`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
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`that are able to be assigned to all of the subbands within the
`subband group, is assigned to the subband group.
` Ex. 1002, 239 (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, 212–
`223. 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, 201–202. The ’439 patent issued in due course. Ex. 1002, 190
`(Issue Notification).
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`C. The Asserted Ground of Unpatentability
`Petitioner challenges claims 1–7 of the ’439 patent as unpatentable
`under 35 U.S.C. § 1031 over the following references:
`U.S. Patent No. 6,904,283 B2, filed April 17, 2001, issued June
`7, 2005 (Ex. 1003, “Li”);
`U.S. Patent No. 7,221,680 B2, filed September 1, 2004, issued
`May 22, 2007 (Ex. 1004, “Vijayan”); and
`U.S. Patent No. 6,721,569 B1, filed September 29, 2000, issued
`April 13, 2004 (Ex. 1005, “Hashem”).
`Petitioner indicates that the effective filing date of the challenged
`claims is no earlier than November 19, 2004 priority date and contends that
`each of the references are prior art to the challenged claims. Pet. 9 (effective
`filing date), 12 (Li), 16 (Vijayan), 19 (Hashem).
`In its challenges Petitioner cites to the references and declaration
`testimony from Zhi Ding, Ph.D. (Exhibit 1007). Pet. 9–46.
`
`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
`
`
`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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`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
`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).
`
`
`2 At this preliminary stage Patent Owner does not offer objective evidence of
`non-obviousness.
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`B. Level of Ordinary Skill in the Art
`Relying on declaration testimony of Dr. Ding, Petitioner contends that
`one of ordinary skill in the art “had a bachelor degree in electrical
`engineering, computer science, or an equivalent filed, plus at least three
`years of experience working in the fields of wireless communication
`systems, communication networks, and signal processing.” Pet. 8–9 (citing
`Ex. 1007 ¶ 61). Patent Owner does not dispute Petitioner’s proposed level
`of ordinary skill. Prelim. Resp. 17. 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
`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
`
`
`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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`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 sets forth proposed constructions for “subband,” “pattern
`storage section,” “patterns for selecting subbands,” and “modulation
`parameters with a highest classification.” Pet. 11–12. Patent Owner
`responds that “subband,” “pattern storage section,” and “modulation
`parameters with a highest classification” do not need an express construction
`for this preliminary proceeding. Prelim. Resp. 18. Patent Owner asserts an
`express construction for “patterns for selecting subbands.” Prelim. Resp.
`18–22.
`
`1. “subband”
`Independent claim 1 recites “a channel estimating section that carries
`out a channel estimation per subband” and “per subband group comprised of
`a plurality of the subbands.” See Ex. 1001, 12:66–67, 13:2–3. The plain
`language of the claim indicates a subband group includes multiple subbands.
`Petitioner contends that “subband” means “a group of subcarriers in
`neighboring positions on the frequency domain.” Pet. 11 (citing Ex. 1001,
`2:19–21). For support, Petitioner quotes a portion of the written description
`describing “subband adaptive modulation and coding of the related art”
`shown in Figure 2 and described in a section of the written description titled
`“Background Art.” Ex. 1001, 2:19–21; see Pet. 11. In quoting the written
`description passage, however, Petitioner omits the adverb “Here” that
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`introduces the sentence and constrains the descriptive of subband to the
`configuration shown in Figure 2, which does not describe the invention.
`Compare Pet. 11 (“Ex. 1001, 2:19–21 (“[A] subband indicates . . .”), with
`Ex. 1001, 2:19–21 (“Here, a subband indicates . . .”). In addition, although
`Petitioner cites a portion of Dr. Ding’s declaration for support, Dr. Ding’s
`testimony does not add to Petitioner’s contentions. Ex. 1007 ¶ 61a; Pet. 11
`(citing Ex. 1007 ¶ 66a). For these reasons, we find Petitioner’s contention to
`be unpersuasive.
`In its Preliminary Response, however, Patent Owner indicates that
`subcarriers are combined into subbands, which in turn are combined into
`subband groups. Prelim. Resp. 10 (illustration of subcarriers, subbands, and
`subband groups). Accordingly, the parties agree that subbands are
`comprised of subcarriers. For the purpose of this decision, we do not need
`to determine whether the term, as Petitioner contends, is further limited to “a
`group of subcarriers in neighboring positions on the frequency domain.” See
`Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 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).
`
`2. “pattern storage section”
`Independent claim 1 recites “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
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`and the coding parameters per subband group comprised of the subbands
`selected based on the patterns stored in the pattern storage section.”
`Ex. 1001, 13:21–27.
`Petitioner contends that “pattern storage section” means “a memory
`for storing patterns for selecting subbands.” Pet. 11. According to
`Petitioner, a skilled artisan “would have understood that the storage would
`have been implemented in a computer memory because this is how [user
`equipment or cellular phones], which are essentially small computers,
`work.” Pet. 11 (citing Ex. 1007 ¶ 66b).
`The plain language of the claim recites the function of the pattern
`storage section—“that stores in advance patterns for selecting subbands.”
`Ex. 1001, 13:21–22. Thus, the portion of Petitioner’s proposed construction
`that includes “for storing patterns for selecting subbands” is redundant of the
`claim language and unnecessary. The substitution of “a memory” for
`“storage section” is unnecessary to determine whether to institute an inter
`partes review based on challenges in the Petition.
`We, therefore, agree with Patent Owner that “pattern storage section”
`does not need express construction.
`
`3. “modulation parameters with a highest classification”
`Claim 5, which depends from claim 1, recites “wherein the parameter
`deciding section finds the modulation parameters per subband within the
`subband group, and decides modulation parameters with a highest
`classification within the found modulation parameters as the modulation
`parameters for the subband group.” Ex. 1001, 13:45–50.
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`Petitioner contends that “modulation parameters with a highest
`classification” means “modulation parameters associated with a coding and
`modulation scheme that allows achieving a highest throughput compared to
`other modulation parameters that are available to the device.” Pet. 12 (citing
`Ex. 1001, 10:7–20; Ex. 1007 ¶ 66d). For support, Petitioner relies on
`Table 2 of the challenged patent that shows the highest classification being
`associated with a coding parameter and a modulation parameter having the
`highest throughput of the classifications in Table 2. Pet. 12. Dr. Ding does
`not add to Petitioner’s contentions. Compare Pet. 12, with Ex. 1007 ¶ 66d.
`Petitioner’s conclusory assertion does not persuade us that the claim
`term should be limited based on a table in the challenged patent.
`Furthermore, we agree with Patent Owner that the claim term does not need
`an express construction for the purposes of determining whether to institute
`an inter partes review based on challenges in the Petition.
`
`4. “patterns for selecting subbands”
`Independent claim 1 recites “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, 13:21–27.
`Petitioner contends that “patterns for selecting subbands” means
`“configurations or arrangements of subbands on the frequency and/or time
`domains.” Pet. 11–12 (citing Ex. 1001, 10:21–11:3; Ex. 1007 ¶ 66c). To
`support its proposed construction, Petitioner contends: “Figures 8–10 of the
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`’439 Patent show examples of how the subbands can [be] configures or
`arranged on the frequency and/or time domains to form subband groups.”
`Pet. 12 (citing Ex. 1001, Figs. 8–10; Ex. 1007 ¶ 66c).
`On the other hand, Patent Owner contends that “patterns for selecting
`subbands” should be construed as “fixed rules for choosing subbands based
`on frequency.” Prelim. Resp. 18; see Prelim. Resp. 18–22. Patent Owner
`points to the disclosure of the specification that the “object of the present
`invention” is accomplished “by combining all of the subbands on a
`frequency domain of a subcarrier communication system based on a
`frequency domain of a subcarrier communication system based on a fixed
`rule to as to give several subband groups, and then selecting modulation and
`coding parameters for use during joint coding with respect to each subband
`group.” Ex. 1001, 5:33, 39–45; Prelim. Resp. 19 (citing Ex. 1001, 5:32–44).
`Patent Owner also notes the specification states that “[w]ith [t]he present
`invention, all of the subbands in the frequency domain in OFDM are made
`into several subband groups using combination patterns, and adaptive
`modulation and coding then are performed on the subband groups.”
`Ex. 1001, 8:2–6; Prelim. Resp. 19 (citing Ex. 1001, 8:2–6). Patent Owner
`further indicates that Figure 9 illustrates a “subband grouping based on a
`pattern for selecting subbands that combines specific subbands ‘at
`predetermined intervals’ (of every fourth subband) on the frequency domain
`(Y-axis).” Prelim. Resp. 19–20.
`Patent Owner contends that Petitioner’s proposed construction fails to
`give sufficient weight to the purpose of the “patterns” “for selecting
`subbands” by contending “patterns” are “configurations or arrangements of
`subbands.” Prelim. Resp. 20–21. Patent Owner also contends that
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`Petitioner’s proposed construction is overbroad because it “encompasses
`subband groups based solely on the time domain, irrespective of frequency.”
`Prelim. Resp. 21–22. Patent Owner contends that “[e]very reference to the
`‘time domain’ in the [challenged patent] occurs in conjunction with
`frequency or with respect to a ‘predetermined’ or ‘fixed’ time domain (i.e.,
`combining frequency bands for a set time interval.” Prelim. Resp. 22 (citing
`Ex. 1001, 1:58–64, 2:1–2, 2:59–66, 3:6–9, 10:43–49, 10:62–67, 11:1–3,
`12:31–35, 13:39–44). Patent Owner contends that, contrary to Petitioner’s
`argument, the patterns shown in each of Figures 8–10 “are based at least in
`part on the frequency domain.” Prelim. Resp. 22.
`On this preliminary record, we also understand the dispute to include
`whether the requisite patterns must be used to assign subbands to a subband
`group (that is, create the subband group) or the requisite patterns encompass
`identifying which subbands are in a particular subband group that has been
`defined previously. Or, in a further assertion of Patent Owner, that the
`“claimed subband grouping patterns must at least exist within a pattern
`storage section within a mobile device before any subbands are selected.”
`Prelim. Resp. 48 (citing Ex. 1001, 6:1–29).
`At this preliminary juncture, that the stored patterns are used to assign
`subbands to subband groups has some merit. For purposes of this decision,
`we include this construction in our analysis below. We also recognize,
`however, that Petitioner has not yet had the opportunity to respond to Patent
`Owner’s arguments.
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`5. Other Claim Terms
`We discuss other claim terms in the context of analyzing the asserted
`ground to the extent necessary to determine whether to institute an inter
`partes review. See Vivid Techs., 200 F.3d at 795; Nidec Motor Corp., 868
`F.3d at 1017.
`
`D. Obviousness over Li, Vijayan, and Hashem
`Petitioner asserts that the subject matter of claims 1–7 would have
`been obvious to one of ordinary skill in the art in view of Li, Vijayan, and
`Hashem. Pet. 12–83. For support, Petitioner cites to passages in the
`asserted references and declaration testimony of Dr. Ding. Pet. 12–83.
`Patent Owner opposes. Prelim. Resp. 22–66. At this preliminary
`juncture, Patent Owner supports its contentions with passages to the asserted
`prior art and declaration testimony of Dr. Branimir Vojcic (Ex. 2001). See
`Pet. 33–62 (citing Ex. 2001).
`
`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 groups are allocated to a subscriber (i.e., a cellular
`handset). Ex. 1003, 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 1 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 1 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
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`IPR2018-01555
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`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
`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
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`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 i
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