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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
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`HTC Corporation, and
`HTC America, Inc.,
`Petitioners
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`v.
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`INVT SPE, LLC
`Patent Owner
`_____________________
`
`Case: IPR2018-01581
`Patent No. 7,848,439
`_____________________
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`PATENT OWNER PRELIMINARY RESPONSE
`UNDER 35 U.S.C. § 313 AND 37 C.F.R. §42.107
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`IPR2018-01581
`Patent 7,848,439
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`TABLE OF CONTENTS
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`
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`Table of Contents ....................................................................................................... i
`List of Patent Owner’s Exhibits ................................................................................. v
`I.
`Introduction ...................................................................................................... 1
`II.
`The Challenged Patent ..................................................................................... 3
`A.
`State of the Art at the Time of the Patented Invention .......................... 3
`B.
`Challenged Claim .................................................................................. 8
`C. Overview of U.S. Patent No. 7,848,439 ................................................ 9
`D.
`Relevant Prosecution History ..............................................................13
`III. Person of Ordinary Skill in the Art ................................................................14
`IV. Claim Construction ........................................................................................14
`V. Overview of the Alleged Prior Art References .............................................16
`A. U.S. Patent No. 6,904,283 to Li et al. (“Li”).......................................16
`B. U.S. Patent No. 7,221,680 to Vijayan et al. (“Vijayan”) ....................19
`C. U.S. Patent No. 6,721,569 to Hashem et al. (“Hashem”) ...................22
`D. U.S. Patent No. 5,596,604 to Cioffi et al. (“Cioffi”) ...........................23
`VI. Legal Standards .............................................................................................24
`VII. The Petition Fails to Establish a Reasonable Likelihood the Challenged
`Claim Is Obvious. ..........................................................................................26
`A.
`The Petition Fails to Demonstrate that the Proposed Combination
`Discloses “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.” ...............................................................26
`The Petition Fails to Establish that a POSITA Would Combine Cioffi
`with Other References in the Proposed Combination. ........................31
`1.
`The Petition fails to offer a reason to combine each and every
`reference in the Proposed Combination. ...................................32
`A POSITA would not combine Cioffi with Li, Vijayan, or
`Hashem. .....................................................................................34
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`B.
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`2.
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`3.
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`4.
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`The Petition relies on unsupported, conclusory expert testimony
`for the alleged motivation to combine Cioffi with Li and
`Vijayan. .....................................................................................37
`The Petition relies on improper hindsight for the alleged
`motivation to combine. .............................................................40
`C. A POSITA Would Not Have Been Motivated to Combine the Li and
`Vijayan References. .............................................................................42
`VIII. Conclusion .....................................................................................................46
`Word Count Certification ........................................................................................47
`Certificate of Service ...............................................................................................48
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`Patent 7,848,439
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`TABLE OF AUTHORITIES
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`
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` Page(s)
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`Cases
`ActiveVideo Networks, Inc. v. Verizon Commc’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012) .......................................................................... 41
`Apple Inc. v. ContentGuard Holdings, Inc., IPR2015-00441, Paper 11
`(PTAB July 13, 2015) ........................................................................................ 41
`Apple Inc. v. Uniloc Luxembourg S.A.,
`IPR2017-02041, Paper 10 (PTAB Mar. 8, 2018) ............................................... 38
`Apple Inc. v. Valencell, Inc.,
`IPR2017-00316, Paper 9 (PTAB Jul. 20, 2017) ................................................. 38
`CFMT, Inc. v. Yieldup Int’l Corp.,
`349 F.3d 1333 (Fed. Cir. 2003) .......................................................................... 24
`Gen. Elec. Co. v. TAS Energy Inc.,
`IPR2014-00163, Paper 11 (PTAB May 13, 2014) ............................................. 41
`Heart Failure Techs., LLC v. CardioKinetix, Inc.,
`IPR2013-00183, Paper 12 (PTAB July 13, 2013) ....................................... 30, 35
`In re Magnum Oil Tools Int’l, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) ............................................................. 25, 26, 40
`In re NTP, Inc.,
`654 F. 3d 1279 (Fed. Cir. 2011) ......................................................................... 25
`
`Initiative for Medicines, Access & Knowledge (I-MAK), Inc. v. Gilead
`Pharmasset LLC,
`Case No. IPR2018-00390, Paper 7 (Jul. 19, 2018)............................................. 26
`Kinetic Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1367-
`79 (Fed. Cir. 2012) ............................................................................................. 32
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) .......................................................................... 24, 25, 30, 40
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`Nidec Motor Corp. v. Zhongshan Broad Ocean Motor Co. Ltd.,
`868 F.3d 1013 (Fed. Cir. 2017) .......................................................................... 15
`Nikon Corp. v. ASML Netherlands B.V.,
`Case No. IPR2018-00227, Paper 11 (P.T.A.B. Sep. 10, 2018) .......................... 40
`Nokia of Am. Corp. v. Blackberry Ltd.,
`IPR2018-00652, Paper 10 (PTAB Oct. 1, 2018) ................................................ 45
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) (en banc) .......................................................... 14
`Purdue Pharma L.P. v. Depomed, Inc.,
`643 F. App’x 960 (Fed. Cir. 2016) ..................................................................... 40
`Schott Gemtron Corp. v. SSW Holding Co., Inc., IPR2014-00367,
`Paper 62 (PTAB May 26, 2015) ........................................................................ 33
`Star Sci., Inc. v. R.J. Reynolds Tobacco Co.,
`655 F.3d 1364 (Fed. Cir. 2011) .......................................................................... 25
`Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1066 (Fed. Cir. 2016) ..................... 32
`Yamaha Golf Car Co. v, Club Car, LLC,
`IPR2017-02141, Paper 17 (PTAB Apr. 3, 2018) ............................................... 41
`Statutes
`35 U.S.C. § 103 .......................................................................................................... 1
`Other Authorities
`37 C.F.R. § 42.65(a) ............................................................................... 25, 31, 38, 39
`37 C.F.R. § 42.100(b) .............................................................................................. 14
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`LIST OF PATENT OWNER’S EXHIBITS
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`Exhibit No. Description
`2001
`Expert Declaration of Dr. Branimir Vojcic
`2002
`Curriculum Vitae of Dr. Branimir Vojcic
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`I.
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`INTRODUCTION
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`Petitioners HTC Corporation and HTC America, Inc. (“Petitioners”)
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`challenge Claim 8 (the “Challenged Claim”) of U.S. Patent No. 7,848,439
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`(“the ’439 Patent”) as allegedly obvious under 35 U.S.C. § 103. The ’439 patented
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`invention generally covers the use of “subband groups” comprised of frequency
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`subbands selected based on patterns stored by the system in advance. Use of
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`subband groups to transmit information allows certain devices, such as a base
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`station and a cellular phone, to better communicate. Selecting subband groups
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`based on specific, pre-stored patterns allows those devices to know beforehand
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`which subbands contain that information, and further decreases the amount of
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`information that needs to be exchanged over the same period of time at this stage.
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`Petitioners’ sole ground seeks to combine four distinct references—U.S.
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`Patent No. 6,904,283 to Li et al. (“Li”) with U.S. Patent No. 7,221,680 to Vijayan
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`et al. (“Vijayan”), U.S. Patent No. 6,721,569 to Hashem et al. (“Hashem”), and
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`U.S. Patent No. 5,596,604 to Cioffi et al. (“Cioffi”) (the “Proposed Combination”).
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`However, the Proposed Combination fails to disclose key limitations required by
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`the Challenged Claim—including “assigning a weight per subband group to a sum
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`of information bits that are able to be assigned to all of the subbands within the
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`subband group.”
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`The Petition also fails to establish why the references in the Proposed
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`Combination should or would have been combined or why such a combination
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`would have a reasonable expectation of success. Indeed, the Cioffi reference is not
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`even from the same field of endeavor as the other references in the Proposed
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`Combination, and the Petition fails to demonstrate how or why it would be
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`properly combined with the other references in the Proposed Combination. The
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`unsupported opinions proffered by Petitioners’ expert rely on impermissible
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`hindsight and do not compel a different conclusion.
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`Moreover, the Petition relies on Li and Vijayan for the disputed limitation of
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`“assigning a weight per subband group to a sum of information bits that are able to
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`be assigned to all of the subbands within the subband group”; however, those two
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`references are directly at odds with a key aspect of the invention’s goal—that is,
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`how to avoid conflicts that would increase the risk of errors and interference when
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`transmitting information between devices, such that a POSITA would not combine
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`them.
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`Accordingly, the Petition should be denied for these reasons.
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`II. THE CHALLENGED PATENT
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`A.
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`State of the Art at the Time of the Patented Invention
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`The ’439 Patent generally relates to improving communication between
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`wireless devices, such as cellular phones, mobile terminals, and base stations,
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`within cellular networks. See Ex. 1001 at 1:7-14, 2:54-60, 5:32-45. Cellular
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`networks divide their coverage areas into specific regions called “cells.” Ex. 20011
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`¶ 17. Each cell is serviced by a cellular tower mounted with a base station that
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`directly communicates with cellular phones within the cell. Id. Each base station is
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`assigned a frequency band that is unique from neighboring base stations. Id. Calls
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`occur when a cellular phone transmits radio frequency (“RF”) signals to a base
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`station that re-transmits those signals to the recipient cellular phone. Id.
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`Communication between a base station and a cellular phone can only occur when
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`the base station and cellular phone agree to transmit information using the same
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`frequency band. Id.
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`Base stations must be capable of simultaneously communicating with
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`numerous cellular phones—otherwise, users within the cell will experience
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`significant interference from other callers. Id. ¶ 18. One way to enable
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`communications with numerous cellular phones is by using Orthogonal Frequency
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`1 Exhibit 2001 refers to the supporting Expert Declaration of Dr. Branimir
`Vojcic.
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`Division Multiplexing (“OFDM”). OFDM, which is employed by the Long Term
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`Evolution (“LTE”) wireless communication standard, divides the base station’s
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`allocated frequency band into many orthogonal (non-overlapping) subcarriers
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`(narrower frequency bands), each of which can facilitate communication between
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`the base station and a specific cellular phone. This orthogonality between
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`subcarriers improves spectral efficiency—i.e., the number of cellular phones that
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`can be simultaneously supported in the cell. Ex. 1001 at 1:22-24.
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`Changing conditions caused by the distance between the base station and the
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`cellular phone, signal interference, weather, and other transient factors, may also
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`affect the spectral efficiency. Ex. 2001 ¶ 18. Conditions can also change as a result
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`of cell phone users moving within the network. Id.
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`One way that OFDM systems try to maintain spectral efficiency is by
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`employing “adaptive modulation and coding” (“AMC”)—i.e., adjusting parameters
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`such as the transmission power, symbol transmission rate, coordinate size, coding
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`rate, and/or coding mechanism, etc., in response to changing channel conditions.
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`Ex. 1001 at 1:43-52; Ex. 2001 ¶ 18. For example, when channel conditions are
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`good, the system will typically transmit more information over the same amount of
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`time. Conversely, when channel quality is poor, the system can readjust and
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`transmit less information, thereby minimizing errors. Ex. 1001 at 1:43-52. Because
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`channel conditions can fluctuate, each cellular phone will periodically estimate the
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`“quality” of the channels between the phone and the base station, and send this
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`information to the base station as a Channel Quality Indicator (“CQI”). Measuring
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`and transmitting CQI information allows the base station to utilize AMC
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`accordingly, if/when necessary. This channel quality estimation is performed on
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`each individual subcarrier. See, e.g., id. at 3:26-30 (“Before transmitting each data
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`block, the receiving side always first estimates transmission channel from the
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`transmission side to the receiving side at the current time by channel estimating
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`section 319, and obtains channel characteristics of the subcarriers of the OFDM.”).
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`The ’439 Patent claims priority to a 2004 Chinese patent application. Ex.
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`1001 at 1. As explained in the ’439 Patent specification, existing OFDM systems at
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`the time of the invention employed two forms of AMC—(1) AMC based on
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`individual subcarriers and (2) AMC based on groups of subcarriers (where those
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`groups are known as subbands). Ex. 1001 at 2:2-15. Despite this clear distinction
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`between “subcarriers” and “subbands,” references within the field often confuse
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`the two concepts by using the latter to refer to the former. Ex. 2001 ¶ 33; Paper 1 at
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`20 (stating that Vijayan’s “subband groups” are actually comprised of groups of
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`subcarriers, not subbands).
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`Within the context of the ’439 Patent, AMC based on individual subcarriers
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`refers to AMC that differs per subcarrier. Ex. 1001 at 2:4-8. As explained by
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`the ’439 Patent, this form of AMC was disadvantageous due to the sheer number of
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`subcarriers and the presence of feedback overhead. Id. at 2:2-15. As a result, AMC
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`based on subbands—i.e., adjusting adaptive parameters for each subband—was
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`typically used. Id. at 2:12-15.
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`Regardless of the relative benefits of one AMC method over the other, for
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`both AMC methods in the prior art, “the receiving side always first . . . obtains
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`channel characteristics of the subcarriers of the OFDM.” Id. at 3:26-30. Therefore,
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`in the prior art systems, channel estimation must occur first for every subcarrier.
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`One prior art configuration of AMC based on subbands is shown in ’439
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`Patent, Figure 2:
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`Id. at Fig. 2. In the configuration disclosed in Figure 2, subcarriers in neighboring
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`positions on the frequency domain are grouped into subbands. Id. at 2:16-31. This
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`configuration—while more efficient than AMC based on individual subcarriers—
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`still had the drawback of being unable to effectively utilize “diversity
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`performance” between the subbands, in part due to having to still perform
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`independent coding for individual subbands. Id. at 4:56-63.
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` “Diversity performance” refers to increasing the redundancy of information
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`by simultaneously transmitting the same information using multiple paths, thereby
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`compensating for any deficiencies in certain paths causing error on the receiving
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`side. Id. at 4:64-5:8. Utilizing diversity performance results in larger coding
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`gains—i.e., reduced error rates. Id. at 5:19-20. The ’439 Patent expressly discloses
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`ways to “effectively utiliz[e] diversity performance between subbands” by
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`grouping subbands on the frequency domain based on predetermined patterns. Id.
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`at 12:17-24.
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`B. Challenged Claim
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`The Petition challenges the validity of independent Claim 8, presented
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`below:
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`8. A communication apparatus comprising:
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` a
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` channel estimating section that carries out a channel
`estimation per subband;
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` a
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` 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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` a
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` 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;
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`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
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` a
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` 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;
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`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.
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`Ex. 1001 at 13:65-14:26.
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`C. Overview of U.S. Patent No. 7,848,439
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`The ’439 Patent presented a significant improvement over existing
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`communication systems, including those that relied on AMC based on subbands.
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`The invention unlocked the potential for mobile devices to use subband groups
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`comprised of subbands selected based on patterns stored in advance of channel
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`estimation in each mobile device. Ex. 1001 at 13:21-27. As shown below, the ’439
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`Patent’s particular use of subband grouping patterns resulted in an order of
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`magnitude of improvement over the use of subbands themselves:
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`The ’439 Patent discloses, among other things, combining subbands on the
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`frequency domain “based on a fixed rule,” i.e., predetermined stored patterns, into
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`“several subband groups.” Id. at 5:32-45.
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`The creation of “subband groups” allowed communication systems to use
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`AMC based on subband groups—a significant advantage over the prior art, which
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`relied on AMC based on individual subbands or, even worse, individual
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`subcarriers. Id. at 5:9-27. Selecting subband groups as disclosed in the ’439 Patent
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`meant that both the mobile device and the base station would know beforehand
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`which subbands would contain reference signals with information about the
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`channel quality of each subband within the subband groups. Ex. 2001 ¶ 21. This
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`pre-agreement on subband grouping patterns (and, by extension, subbands for
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`transmitting data) between the mobile device and the base station significantly
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`reduces the information that must be transmitted before a link can be established
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`between two devices. Id. By contrast, a device that feeds back the information on
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`subbands (or subcarriers) based on predicting the performance of all subbands (or
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`subcarriers) after channel estimation occurs (as disclosed in the prior art) must
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`transmit a significant amount of information before establishing a link with the
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`base station. Ex. 1003 at 3:18-23. This inefficiency was precisely what the
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`invention disclosed in the ’439 Patent sought to improve.
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`The ’439 Patent discloses that subband grouping patterns within the mobile
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`device are independent from any channel quality estimation. Compare Ex. 1001 at
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`8:2-22 (“the subband groups are formed by combining the OFDM subbands based
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`on combination patterns”) with Ex. 1003 at 3:18-23 (“[E]ach subscriber first
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`measures the channel and interference information for all the subcarriers and then
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`selects multiple subcarriers with good performance . . . and feeds back the
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`information on these candidate subcarriers to the base station.”). In the prior art,
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`channel quality estimation typically required measuring channel quality across
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`each and every subband or subcarrier and then selecting the optimal subbands for
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`communicating with the base station. See, e.g., Ex. 1003 at Abstract, 2:13-22,
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`3:18-23, 3:30-38, Fig. 1B.
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`According to the ’439 Patent, joint “modulation parameters and coding
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`parameters” are chosen on a “per subband group” basis. Ex. 1001 at 13:1-3. In one
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`embodiment, along with selection of modulation and coding parameters for each
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`subband group, “the number of corresponding transmission information bits is
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`decided.” Id. at 9:33-37. Additionally, “weighting calculations” can be applied to
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`the sum of the information bits assigned to each subband group. Id. at 11:35-47.
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`For example, a weighting factor—such as “0.9” which presents a total reduction of
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`10%—can be applied to “the sum of the number of transmission information bits”
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`for an entire subband group, thereby reducing the total number of transmission
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`information bits assigned to the subband group. Id. at 11:19-47.
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`The invention in the ’439 Patent decreased the amount of information that
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`was to be transmitted between devices over the same period of time, thereby
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`enabling higher data reception rates due to the improved ability to adapt to
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`changing radio frequency fast fading conditions and providing greater spectrum
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`utilization. Id. at 5:32-44. This improvement can reduce power consumption and
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`increase battery life for mobile devices, while simultaneously improving the
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`network capacity for the base station. See Ex. 2001 ¶ 21.
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`Figures 11 and 12 in the ’439 Patent, reproduced below, represent
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`simulations illustrating the difference in performance between a prior art
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`communication system and a communication system benefiting from an
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`embodiment of the invention disclosed in the ’439 Patent:
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`Ex. 1001 at Figs. 11-12 (comparing feedback delay times and different channel
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`estimation errors, respectively), 7:18-25, 12:25-63. These simulations demonstrate
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`that the patented invention presents a substantial “performance gain when
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`compared to methods of the related art,” along with significantly reduced feedback
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`overhead. Id. at 12:47-55.
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`D. Relevant Prosecution History
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`During prosecution of the U.S. application resulting in the ’439 Patent, the
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`Examiner allowed the Challenged Claim expressly because the prior art failed to
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`disclose several key limitations, including “wherein the parameter deciding section
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`decides the coding parameters in such a manner that a number of information bits
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`obtained by assigning a weight per subband group to a sum of the information bits
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`that are able to be assigned to all of the subbands within the subband group, is
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`assigned to the subband group.” Ex. 1002 at 201-02.
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`III. PERSON OF ORDINARY SKILL IN THE ART
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`Patent Owner does not dispute, for purposes of these preliminary
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`proceedings, the level of skill for a person of ordinary skill in the art (“POSITA”)
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`of the ’439 Patent at the time of the invention, as laid out in the Petition. Paper 1 at
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`13. Patent Owner does not waive, however, any argument regarding the proper
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`level of skill for a POSITA, and further reserves the right to advance additional or
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`modified arguments at a later date.
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`IV. CLAIM CONSTRUCTION
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`The Challenged Claim should be afforded its “broadest reasonable
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`construction” in light of the specification. 37 C.F.R. § 42.100(b). Claim terms are
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`“generally given their ordinary and customary meaning” as understood by a person
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`of ordinary skill in the art (“POSITA”) at the time of the invention. Phillips v.
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`AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005) (en banc).
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`The Petition proposes constructions for the following terms: “subband,”
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`“pattern storage section,” and “patterns for selecting subbands.” Paper 1 at 15-16.
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`However, the terms “pattern storage section” and “patterns for selecting subbands”
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`do not appear in Challenged Claim 8 at all, and Petitioners’ proposed constructions
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`for those terms are therefore irrelevant.
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`For the purposes of this preliminary proceeding only, and without waiving
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`the right to address any claim constructions in the future, Patent Owner does not
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`believe that the claim term “subband” or any other claim terms not specifically
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`addressed below, require express construction to deny the Petition because the
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`Petition’s proposed constructions do not establish any of the missing elements in
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`the proposed prior art combination. See infra § VII. See Nidec Motor Corp. v.
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`Zhongshan Broad Ocean Motor Co. Ltd., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
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`(“[W]e need only construe terms that are in controversy, and only to the extent
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`necessary to resolve the controversy.”). Patent Owner does not waive, however,
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`any argument regarding the proper scope of the Challenged Claim. Patent Owner
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`reserves the right to advance additional or modified constructions at a later date.
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`V. OVERVIEW OF THE ALLEGED PRIOR ART REFERENCES
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`A. U.S. Patent No. 6,904,283 to Li et al. (“Li”)
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`Li discloses an OFDM system that “partition[s] subcarriers into groups of at
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`least one cluster of subcarriers,” measures the channel quality across each and
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`every subcarrier, and then has the base station select the best performing
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`subcarriers for communication. See, e.g., Ex. 1003 at Abstract, 2:13-22, 3:18-23,
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`3:30-38, Fig. 1B. Li’s goal is to “adaptively allocate the subcarriers so as to
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`mitigate the effect of intercell interference.” Id. at 1:64-67. Li accomplishes this
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`through the use of a “subscriber” (cellular phone) that dynamically selects “one or
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`more groups in the groups” of subcarrier clusters after assessing the performance
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`of all subcarrier clusters. Id. at Abstract, 2:13-22, 3:18-23, 3:30-38. “For downlink
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`channels, each subscriber first measures the channel and interference information
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`for all the subcarriers and then selects multiple subcarriers with good performance
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`(e.g., a high signal-to-interference plus noise ratio (SINR)) and feeds back the
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`information on these candidate subcarriers to the base station.” Id. at 3:18-23.
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`The base station then takes over: “[u]pon receiving the information from the
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`subscriber, the base station further selects the subcarriers among the candidates,
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`utilizing additional information available at the base station… .” Id. at 3:30-34,
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`3:42-45 (“the selection by the base station of the channels to allocate, based on the
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`feedback, results in the selection of coding/modulation rates”). “[T]he base station
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`further selects one or more clusters for the subscriber among the candidates
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`(processing block 104). The base station may utilize additional information
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`available at the base station … .” Id. at 6:18-20. “The base station can use [the
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`subcarrier loading information] in subcarrier allocation to reduce inter-cell
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`interference.” Id. at 3:39-41, 6:26-29 (same). Indeed, Li discloses that, for both
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`uplink and downlink transmission, “the base station makes the final decision of
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`subcarrier allocation for each subscriber.” Id. at 3:64-65. The base station can
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`“allocate[] all the clusters to be used by a subscriber at once” or “first allocate[]
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`multiple clusters” and then “subsequently allocate[] more clusters … .” Id. at 6:41-
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`62 (further discussing how the base station allocates subscribers). Li discloses that
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`an exemplary “base station selects the clusters not only with high SINR, but also
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`with low traffic load.” Id. at 11:10-15.
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`Figure 1B in Li is representative of how Li’s base station allocates clusters to
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`subscribers:
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`Id. at Fig. 1B (highlighting added). Fig. 1B shows that “each subscriber
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`continuously monitors the reception of the pilot symbols and measures the SINR
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`and/or other parameters, including inter-cell interference and intra-cell traffic, of
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`each cluster (processing block 102). Based on this information, each subscriber
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`selects one or more clusters with good performance (e.g., high SINR and low
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`traffic loading, etc.) relative to each other and feeds back the information on these
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`candidate clusters to the base station through predefined uplink access channels
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`(processing block 103).” Id. at Fig. 1B, 5:46-54. “Each subscriber selects the
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`clusters with relatively better performance than others. The selection results in
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`each subscriber selecting clusters they would prefer to use based on the measured
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`parameters.” Id. at Fig. 1B, 5:57-61. Subsequently, the base station “selects one or
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`more clusters for each subscriber” and then “notifies the subscriber regarding
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`cluster allocation.” Id. at Fig. 1B. Therefore, it is the base station that performs the
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`cluster selection and allocation. Id.
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`Figure 6 of Li discusses partitioning clusters into “cluster groups” following
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`channel estimation and determination of the above criteria:
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`Id. at Fig. 6, 2:41-42.
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`B. U.S. Patent No. 7,221,680 to Vijayan et al. (“Vijayan”)
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`Vijayan discloses different ways to assign resources—in the form of
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`subcarriers and subbands (as defined in the ’439 Patent)—to active physical layer
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`channels (“PLCs”). Ex. 1004 at Abstract, 2:8-26. Vijayan’s PLCs are different
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`from the subbands and subband groups2 claimed in the ’439 Patent. Vijayan’s
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`PLCs are equivalent to “a data channel, a traffic channel, or some other
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`terminology.” See, e.g., id. at 4:7-19.
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`In Vijayan, “[e]ach data stream may be ‘allocated’ a variable number of
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`transmission units in each super-frame depending on the stream’s payload in the
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`super-frame, the availability of transmission units in the super-frame, and possibly
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`other factors.” Id. at 2:46-50. The allocation of resource blocks in Vijayan spans
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`both the frequency domain and the time domain. See, e.g., id. at Figs. 5-9. Slots
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`may be assigned to specific PLCs based on a host of factors, including which PLCs
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`have “the largest number of allocated slots,” “the priority of the PLCs, the
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`relationship among the PLCs, and so on.” Id. at 10:21-37. Further, “[d]ifferent
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`PLCs may be allocated different numbers of slots.” Id. at 9:48-53.
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`Figure 7A in Vijayan shows “assignment of slots to PLCs” in rectangular
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`shapes. Id. at Fig. 7A, 9:54-55.
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`2 Although Vijayan discusses allocating “subband groups” to certain PLCs,
`the Petition admits that Vijayan’s “subband groups” are actually comprised of
`groups of subcarriers, not subbands. Paper 1 at 20. Vijayan’s “subband groups”
`are therefore not equivalent to the “subband groups” in the Challenged Claim.
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`Id. at Fig. 7A. The size of the rectangle is determined by “the number of