Trials@uspto.gov
`571-272-7822
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`Paper No. 34
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., HTC CORPORATION, AND HTC AMERICA, INC.,
`Petitioners,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`
`____________
`
`Case IPR2018-015551 (Patent 7,848,439 B2)
`Case IPR2018-015812 (Patent 7,848,439 B2)
`
`____________
`
`Record of Oral Hearing
`Held: January 8, 2020
`____________
`
`Before THU A. DANG, KEVIN F. TURNER, and BARBARA A. BENOIT,
`Administrative Patent Judges.
`
`
`
`
`
`
`
`1 Apple Inc., who filed a petition in IPR2019-00958, has been joined as a
`petitioner in IPR2018-01555. Paper 15.
`2 Apple Inc., who filed a petition in IPR2019-00959, has been joined as a
`petitioner in IPR2018-01581. Paper 13.
`
`
`571-272-7822
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`Paper No. 34
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`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC., HTC CORPORATION, AND HTC AMERICA, INC.,
`Petitioners,
`
`v.
`
`INVT SPE LLC,
`Patent Owner.
`
`____________
`
`Case IPR2018-015551 (Patent 7,848,439 B2)
`Case IPR2018-015812 (Patent 7,848,439 B2)
`
`____________
`
`Record of Oral Hearing
`Held: January 8, 2020
`____________
`
`Before THU A. DANG, KEVIN F. TURNER, and BARBARA A. BENOIT,
`Administrative Patent Judges.
`
`
`
`
`
`
`
`1 Apple Inc., who filed a petition in IPR2019-00958, has been joined as a
`petitioner in IPR2018-01555. Paper 15.
`2 Apple Inc., who filed a petition in IPR2019-00959, has been joined as a
`petitioner in IPR2018-01581. Paper 13.
`
`
`
`Case IPR2018-01555 (Patent 7,848,439 B2)
`Case IPR2018-01581 (Patent 7,848,439 B2)
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`
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`DARREN M. FRANKLIN, ESQ.
`ERIC K. GILL, ESQ.
`Sheppard Mullin Richter & Hampton LLP
`333 South Hope Street, 43rd Floor
`Los Angeles, California 90071-1422
`(213) 617-5498 (Franklin)
`(858) 720-8935 (Gill)
`dfranklin@sheppardmullin.com
`egill@sheppardmullin.com
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`CYRUS A. MORTON, ESQ.
`Robins Kaplan LLP
`800 Lasalle Avenue, Suite 2800
`Minneapolis, Minnesota 55402
`(612) 349-8722 (Morton)
`cmorton@robinskaplan.com
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
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`January 8, 2020, commencing at 10:00 a.m. at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`Case IPR2018-01555 (Patent 7,848,439 B2)
`Case IPR2018-01581 (Patent 7,848,439 B2)
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`P R O C E E D I N G S
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`10:06 a.m.
`JUDGE BENOIT: Good morning. We are convened today for oral
`arguments for IPR2018-01555 and IPR2018-01581. Each of which
`challenges US Patent 7,848,439.
`I’m Judge Benoit. This is Judge Dang in Alexandria. And where is
`Judge Turner? He’s here by audio?
`We have Judge Turner now with us visually. And he cannot see the
`demonstratives. So if you could be sure to name the slide numbers or the
`particular exhibit you’re referring to. Let him catch up with you if you’re
`changing exhibits so that he can follow along. He has of course all the
`materials.
`So let’s start with appearances, Petitioner.
`MR. FRANKLIN: Good morning, Your Honor. Darren Franklin of
`Sheppard Mullin Richter & Hampton for the Petitioner. And with me is my
`colleague, Eric Gill.
`JUDGE BENOIT: Welcome.
`Patent Owner.
`MR. MORTON: Yes, Your Honor. Cyrus Morton at Robins Kaplan.
`And with me for Robins Kaplan is John Harting and Mary Pheng, who will
`be arguing the things later today. And from our client, INVT, Courtney Quish
`sitting in the back.
`JUDGE BENOIT: Welcome.
`Each side will have 60 minutes to argue. Petitioner has the ultimate
`burden of proving unpatentability and will go first. Both parties, Petitioner
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`and Patent Owner, can use rebuttal time. I’d like to remind the parties
`however, that rebuttal time should be used to rebut or present an argument.
`And not to present new arguments.
`Petitioner, you may begin when ready.
`MR. FRANKLIN: Thank you, Your Honor. I’d like to reserve 20
`minutes of rebuttal time if possible.
`JUDGE BENOIT: All right. Just give me a few minutes to update
`the request. You may begin when ready.
`MR. FRANKLIN: Thank you, Your Honor.
`Presenting is Slide DX-2. This inter partes review involves two
`grounds of challenge. The first is that Claims 1 through 7 of the ’439 patent,
`are valid over the combination of Li, Vijayan, and Hashem.
`The second ground is that Claim 8 is obvious over the combination
`of Li, Vijayan, Hashem, and Cioffi.
`Turning to slide DX-3. The patented technology involves cellular
`communications, handsets talking with a base station. The base station talks
`with handsets. Because multiple handsets may be communicating with a
`single base station, there needs to be a way to divide up the frequency
`spectrum among the different handsets.
`If we turn to DX-4 we’ll see Figure 1. It’s a prior art slide figure
`from the ’439 patent. And it shows how the frequency spectrum and the
`time domain can be broken up into individual OFDM symbols so that
`handsets know how to communicate with the base station.
`As we can see on the slide, the frequency domain is divided up
`amongst hundreds of subcarriers. And the time domain is divided up
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`amongst a plurality of time domain symbols. And this is OFDM, orthogonal
`frequency division multiplexing.
`Now as you can see on this slide, the channel quality can be different
`depending upon the frequency and the time. And so in the Applicant’s
`admitted prior art, it is acknowledged that one way to account for this is
`adaptive modulation and coding, or AMC.
`So if we turn to slide DX-5 we can see that when channel conditions
`are good you can use a higher level of modulation and coding to send data at
`a faster rate from the base station to the handset. When channel conditions
`are poor, you use lower levels of modulation and coding that send data at a
`slower rate but have, that are more robust because they have greater
`repetition in the data.
`Now if we turn back to slide DX-4 for a moment. You could apply a
`single modulation and coding scheme to all of the different frequency
`domain subcarriers. But in the applicant’s admitted prior art it was
`discovered that instead of applying one modulation and coding over all of
`the different subcarriers, you can instead do it and tailor the modulation
`coding for individual subcarriers.
`And that’s shown on slide DX-6. On the left side of the slide we see
`prior art adaptive modulation coding at the subcarrier level. Each subcarrier
`gets its own modulation and its own coding tailored to the channel
`conditions on that subcarrier.
`But in the prior art, it was also recognized that when you do adaptive
`modulation and coding at the subcarrier level that involves a lot of signaling
`overhead. Because the base station and the handset have to communicate
`with each—between each other—as to the specific modulation and coding
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`needed for each of the thousands of subcarriers. And so in the prior art it
`was recognized that you could reduce the signaling overhead.
`Instead of doing AMC at the subcarrier level, you could go up and
`do AMC at the subband level. A subband is just a group of subcarriers.
`And if you combine a bunch of subcarriers together into a subband, and
`apply a single modulation and coding scheme over the entire subband, then
`you can reduce signaling overhead. Because you don’t have to
`communicate the modulation and coding parameters for each of the
`individual subcarriers.
`Now there’s a tradeoff if you do this. When you apply a single
`modulation coding scheme over a whole band of subcarriers, you can’t
`optimize the modulation and coding for each individual subcarrier. But
`there’s a benefit. And that’s that you reduce the signaling overhead. And
`the result is you get better data throughput.
`So this is all in the applicant’s admitted prior art of the ’439 patent.
`So what is the purported invention of the ’439 patent? If we turn to slide 7,
`the purported improvement of the ’439 patent is that you take the subbands
`of the prior art, which were already just a collection of subcarriers, and you
`throw them and group them together to create subbanding groups. And then
`you apply adaptive modulation coding at the subband group level, instead of
`at the subband level.
`You’re basically taking bundles of subcarriers and further bundled
`them together to create bigger bundles and applied modulation and coding at
`that level.
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`Petitioner submits that that’s not a real invention. It’s obvious to
`take bundles of subcarriers and just make them bigger. And do what you’ve
`already been doing in the prior art.
`JUDGE BENOIT: But counsel, can I stop you here?
`MR. FRANKLIN: Yes.
`JUDGE BENOIT: I wanted to ask you about the dispute regarding
`the level of ordinary skill.
`MR. FRANKLIN: Yes.
`JUDGE BENOIT: Regarding experience. Patent Owner contends
`that’s it’s only wireless communications. Whereas you contend it’s wireless
`communications systems, communication networks and signal processing.
`So a few questions.
`First, if we agree with Patent Owner, what effect would that have on
`these proceedings?
`MR. FRANKLIN: The whole dispute over the person of ordinary
`skill in the art, pertains to whether the Cioffi reference, which is being
`brought in as a reference to invalidate claim 8 is analogous art or is non-
`analogous art? And Patent Owner has defined the person of ordinary skill in
`the art in an attempt to exclude Cioffi as relevant art.
`Petitioner submits that a person of ordinary skill in the art would
`have been familiar with references discussing wired communications, which
`is what Cioffi is. And that Cioffi therefore is pertinent art that can be used in
`this proceeding.
`JUDGE BENOIT: So it would affect 1581 proceeding, and not the
`1555 proceeding?
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`MR. FRANKLIN: That’s my understanding, yes. I don’t believe
`that the person of ordinary skill in the art disputes effect of 1555 proceeding.
`JUDGE BENOIT: Are you arguing that communication networks
`and signal processing experience must be in the context of a wired
`communication system? Or could that experience also be in the context of a
`wireless communication system?
`MR. FRANKLIN: The communications, that could be in the context
`of a wireless communication system. Because a person of ordinary skill in
`the art at the time, so we’re talking the early aughts late nineties. You know,
`even if their experience wasn’t wireless, their education background would
`have included wired references. And that’s been explained in our expert
`declaration and just in kind of the common sense that OFDM, which is kind
`of the base technology that all these patents are pertaining to, those
`principles are used both in wired systems and in wireless systems.
`And in fact, in the ’439 patent there is a discussion, a short
`discussion of ADSL which is a wired system and that’s what Cioffi pertains
`to.
`
`JUDGE BENOIT: Thank you.
`MR. FRANKLIN: So going back to Slide DX-7, the purported
`improvement is to further bundle together the bundles of subcarriers. And
`just move up the level at which modulation and coding is applied. And
`that’s obvious in light of the applicant’s admitted prior art.
`But not only was it obvious, but it was actually known that that’s
`what shown in the Vijayan reference which Petitioners have combined with
`the Li reference, as well as the Hashem reference. To show that all elements
`in claim 1 of the ’439 patent are disclosed and obvious.
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`So if you turn to slide DX-8, here’s claim 1 of the ’439 patent. There
`are only two limitations that the Patent Owner has disputed in terms of the
`combination we made. And the first is the parameter deciding section. And
`the second is the pattern storage section.
`Everything in the pattern storage section is taught in Li, as we’ll
`discuss later. And then everything in the parameter deciding section is also
`taught in Li, except for the notion of a joint modulation coding scheme
`applied at the subband group level, as opposed to at the subband level. And
`we’re using Vijayan for that teaching. So if you move to Slide DX-9, here’s
`a basic overview of the Li patent. It pertains to an OFDM system, a multi
`carrier communication system --
`JUDGE BENOIT: Before you get into Li, can I ask you a couple of
`claim construction questions?
`MR. FRANKLIN: Yes,
`JUDGE BENOIT: In our decision to institute we did not need to
`determine whether subband is one of the two groups of subcarriers in
`neighboring positions on the frequency domain as you proposed in your
`position. Do we need to make that determination to decide the
`unpatentability of the claims here?
`MR. FRANKLIN: No.
`No, and in terms of claim construction, there was only I think, one
`real dispute between the parties. And that pertained to the definition of a
`pattern. As explained in our reply brief it’s not a real dispute. And given
`what we’ve seen in Patent Owner’s sur-reply and its demonstratives. It’s
`Petitioner’s belief that Patent Owner is no longer pressing the notion that the
`pattern limitation is absent somehow from Li. So it’s Petitioner’s belief that
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`the claim construction issues that have been raised are no longer relevant to
`the proceeding.
`JUDGE BENOIT: All right, so we don’t have to determine an
`express construction for selecting subbands either?
`MR. FRANKLIN: It’s our belief that that won’t affect these
`proceedings either.
`JUDGE BENOIT: Thank you.
`MR. FRANKLIN: So going back to DX-9, Li teaches the notion of
`clusters, which are the same thing as subbands in the ’439 patent. And then
`grouping them together to form cluster groups, which are the same thing as
`subband groups in the ’439 patent. Then applying a group index to these
`cluster groups so that when a cluster group is selected by the handset, only
`this index needs to be sent to the base station. And both the handset and the
`base station would know what clusters are in that cluster group.
`So if you go to Slide DX-10, Li teaches clusters, which are the same
`thing as ’439 patent subbands. And you can see that on the left side of the
`slide, where multiple subcarriers are put together to form a cluster.
`Then go to slide DX-11, Li’s cluster groups are ’439 patent subband
`groups. Each group includes multiple clusters. So we can see in the
`example of Figure 6. Every fourth cluster on the frequency axis, that’s the
`horizontal axis, is combined together to form a group.
`If you go to slide DX-12, Li teaches the parameter deciding section
`decides the modulation and coding parameters. And that’s either Box 405 in
`Figure 4, which is shown on the screen here, or alternatively it’s Box 303 in
`Figure 3 of Li. It’s a per cluster parameter deciding section. It allows the
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`subscriber to request the desired clusters along with the modulation and
`coding rates known to the subscriber to achieve the desired data rates.
`And even Patent Owner’s expert, Dr. Vojcic admits, that Li discloses
`that the SINR values that are recorded from the handset to the base station
`could take the form of an index to indicate a particular coding and
`modulation rate that the subscriber desires to use. So Li teaches the
`parameter deciding section, at least with the modulation coding done at the
`cluster, subband level.
`We’ll move to slide DX-13.
`JUDGE BENOIT: Counsel, before you go on.
`MR. FRANKLIN: Yes.
`JUDGE BENOIT: And I think you’ve been very clear here today.
`But I just wanted to verify that in your petition, you did assert that Li also
`teaches assigning the modulation coding parameters to groups. Petition 32
`for example. But I understand in your reply, that you’re disavowing that
`position. And you’re relying now only on, you’re not relying on Li for the
`subgroups.
`MR. FRANKLIN: I believe in our petition we said that. Li decides
`one or more modulation and coding parameters for the clusters in the cluster
`group. And that is true. It’s possible that all the clusters in the cluster group
`could receive the same modulation and coding if they’ve got similar channel
`qualities. In which case, there would be just one modulation coding
`parameter.
`But our main argument is that Vijayan discloses joint modulation
`and coding at the subband group level.
`JUDGE BENOIT: Great so --
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`MR. FRANKLIN: And that would be obvious to bring it in.
`JUDGE BENOIT: So on Page 32 of your petition in 1555 case -- I’ll
`let you turn there.
`MR. FRANKLIN: Go ahead, Your Honor.
`JUDGE BENOIT: The first full paragraph. POSITA would have
`understood that each coding modulation rates constitute one or more
`modulation parameters, and one or more coding parameters per subband
`group comprised of a plurality of the subbands in selected clusters. At this
`point, my understanding is that you are not asserting that anymore. That it is
`per subband group. Is that correct?
`MR. FRANKLIN: Yes, Li is teaching assigning modulation and
`coding at the subband or cluster level.
`JUDGE BENOIT: Great, thanks.
`MR. FRANKLIN: We’re using Vijayan to go up to the subband
`group level.
`JUDGE BENOIT: Great, thank you.
`MR. FRANKLIN: So if we turn to slide DX-13, Li also teaches the
`pattern storage section that stores in advance. Now as I indicated earlier, it’s
`Petitioner’s belief that Patent Owner is no longer pressing its points
`regarding pattern storage section because this is absent from its sur-reply and
`from its demonstratives. But to the extent that we need to discuss it, Li
`teaches that only the group index needs to be transmitted from the handset to
`the base station. And the channel estimates are sent from the handset to the
`base station.
`And this means that the patterns by which the clusters are formed in
`the groups, therefore must be stored in advance at both the handset and the
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`base station. Otherwise the group index wouldn’t make any sense. The base
`station needs a way to figure out when it receives that group index number
`which clusters are in that cluster group.
`And that was effectively conceded by Patent Owner’s expert. We go
`to the next lide DX-14. During his cross examination, Patent Owner’s
`expert, Dr. Vojcic agreed at least in general that the group index in Li would
`have been meaningless unless both the subscriber and the base station have a
`storage section that stores a table of the group indices and the associated
`cluster’s patterns in advance.
`Then if we go to slide DX-15, Li also teaches the patterns for
`selecting subbands. So Li teaches the pattern storage and then the pattern
`itself is shown in the example given in Figure 6. Where every fourth cluster
`along the frequency axis is chosen for a particular cluster group.
`If we move to slide DX-16, take a look at the Vijayan patent. So up
`until now everything in claim 1 has been disclosed in Li except for applying
`modulation and coding at the subband group level. That’s what’s taught in
`Vijayan. It also teaches a multi carrier communication system that uses
`OFDM.
`If we move to Slide DX-17, Li teaches both ’439 patent subbands,
`and ’439 patent subband groups. Now as you probably noticed in our
`briefing, there’s a bit of terminology issue with Vijayan. In Vijayan
`subbands are the same as subcarriers in the ’439 patent. Vijayan’s subband
`groups are the same thing as ’439 patent subbands. And Vijayan’s PLCs or
`physical layer channels are the same thing as ’439 patent subband groups.
`And Vijayan teaches that at the PLC level you can apply a single
`modulation and coding scheme. And that’s shown in the annotated Figure
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`9b which is shown on the right side of the slide. Actually if we move to
`slide DX-18 we’ve got that same annotated figure there. Multiple subband
`groups in Vijayan, here 1, 2, 3, and 4 are formed together into a PLC, which
`is shown by the red box, and aside a single Mode 1.
`As we can see in Table 1 that Mode 1 corresponds to a particular
`modulation scheme and a particular code rate. And then at column 4, lines
`43 to 45, Vijayan states that the data stream for each PLC is encoded and
`modulated based on a coding and modulation scheme selected for that PLC.
`So that’s the disclosure of modulation and coding done at the subband group
`level.
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`And really this isn’t all that different from what’s in the applicant’s
`admitted prior art. Modulation and coding in the applicant’s admitted prior
`art is already known to go up from the subcarrier level to the subband level.
`Vijayan just brings that up one level more, further bundling together the
`bundles of subcarriers.
`So let’s move on to slide DX-19, the Hashem patent. So Li teaches
`that the subscriber, the handset can make a selection of modulation and
`coding parameters at the cluster level, the subband level. Vijayan teaches
`you could do that at the cluster group level or the subband group level, but
`leaves unclear which entity is making the decision.
`Hashem teaches that you can have the handset decide the modulation
`and coding parameters. And gives reasons for doing so. Reasons that are
`the same as the reasons given in both Li and Hashem. And that’s to reduce
`signaling overhead. So in Hashem, Hashem teaches a link mode which
`includes a modulation level and a coding rate.
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`Case IPR2018-01581 (Patent 7,848,439 B2)
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`And then Hashem teaches that overhead on the forward link, from
`the base station to the remote unit, can be reduced if the remote unit, the
`handset, calculates the optimum link mode itself. This is because if the
`handset is calculating the link mode and sending it to the base station, the
`base station then doesn’t need to send it back to the handset.
`Additionally, overhead on the reverse link, from the handset to the
`base station can be reduced, if the remote unit calculates the optimum link
`mode itself. And that’s because when your handset calculates the optimum
`link mode it just needs to send an indication of the modulation and coding
`levels that need to be applied as opposed to the channel estimation
`measurements.
`And so those are the three references. The next slide will put them
`all together. So we’re on slide DX-20. These are figures, annotated figures
`from Li. On the top right we’ve got Figure 7 of Li which shows the group
`ID. That’s the number that tells both the handset and the base station which
`clusters are in the cluster group. Followed by the individual SINR values
`that have been measured by the handset. Those are the channel estimates.
`When you combine that with Vijayan, you take those SINR
`measurements and you replace them with a single modulation and coding
`parameter as shown in the bottom right of the slide. What’s shown on the
`bottom right is how we modified Figure 7 of Li to incorporate the teachings
`of Vijayan. And then Hashem just teaches having the handset do this and
`not the base station. And once you combine this altogether, you get claim 1
`of the ’439 patent. And it’s obvious.
`So let’s move on to Slide DX-21, the com -- and I’m going to go
`through these pretty quickly since we have limited time. The combination
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`discloses the claimed parameter deciding section. That’s Box 405 and
`Figure 4 of Li, also Box 303 and Figure 3 of Li. And Vijayan just bumps
`that up to the subband group level.
`If we move to slide DX-22 and maybe go on to slide DX-23. The
`combination also teaches the claimed pattern storage section. Again
`everything in the pattern storage section is already taught in Li. Vijayan just
`adds that the channel estimates that are conveyed are done at the subband
`group level, rather the modulation coding is done at the subband group level.
`So let’s move on to slide DX-24. The motivation in combined Li
`and Vijayan. Both Li and Vijayan seek to reduce signaling overhead on
`multi carrier communications system. And that’s shown on these snippets
`from both Li and Vijayan.
`Now if we turn to slide DX-25 Patent Owner has argued that that’s
`actually not the goal of Li. The goal of Li is to do something called
`frequency diversity. But if you look at the group-based cluster allocation
`embodiment in Li, and that’s generally in columns 11 and 12 of Li, the only
`expressed goals there are to reduce signaling overhead and inter-cell
`interference. And we’ve got the relevant quote from column 11, line 62 to
`66 of LI on slide DX-25.
`Now Li does teach that in one embodiment you can have the
`clusters, in a cluster group being spaced apart, in frequency diverse. But it’s
`stated as being in one embodiment. There’s nothing in the group-based
`cluster allocation embodiment of Li that says that you have to make the
`clusters in cluster groups diverse, or otherwise discredits or criticizes using
`frequency coherent cluster groups, where the clusters in the clusters are
`together.
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`So let’s move on to slide DX-26. Li does not teach away then from
`the combination with Vijayan. It does not teach away from using the joint
`modulation and coding parameters of Vijayan. Nor does it teach away from
`using contiguous cluster groups as Vijayan teaches.
`Now we don’t have to bodily incorporate the contiguous cluster
`groups of Vijayan into Li. It’s perfectly fine to apply joint modulation and
`coding to a frequency diverse subband group. But even if you were to
`incorporate the contiguous subband groups of Vijayan to Li, the basic
`principle of Li still works. You can still apply a group index to a cluster
`group and use that to reduce overhead signaling. So in Li diverse groups are
`just one embodiment of Li’s group-based cluster allocation. And there’s no
`discrediting or criticizing of contiguous groups.
`If we move on to slide DX-27, Li also does not discourage using
`Vijayan’s joint parameters. Now Patent Owner makes the point that in some
`embodiments of Li, modulation and coding is done at the cluster level. And
`that can also be done with the cluster groups as well. But in the group-based
`cluster allocation of Li there’s no statement that you have to do modulation
`and coding at the cluster level.
`It would be perfectly fine for the handset to send the joint
`modulation coding parameter to the base station. And then have the base
`station apply the same modulation coding to all of the clusters in the cluster
`group. So while different clusters can have different modulation coding
`rates, that’s not required in the group-based cluster allocation embodiment of
`Li.
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`JUDGE BENOIT: Counsel, can I ask you one question about -MR.
`FRANKLIN: Yes.
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`JUDGE BENOIT: -- Li, column 7, 10 through 12 where you were
`saying that there’s one embodiment that uses different modulation coding
`rates. The way I understand it that embodiment is not identified as the
`Figure 4 in that embodiment. Is that correct?
`MR. FRANKLIN: It’s not identified as what embodiment?
`JUDGE BENOIT: As the Figure 4 embodiment.
`MR. FRANKLIN: Give me one moment, Your Honor.
`JUDGE BENOIT: Certainly.
`MR. FRANKLIN: From what I can quickly tell that snippet of Li is
`not associated with the Figure 4 embodiment.
`JUDGE BENOIT: Thank you.
`MR. FRANKLIN: So if we move on to slide DX-28, using
`Vijayan’s joint parameters in Li’s system would reduce signaling overhead.
`And that’s because as we saw earlier, you take the various SINR values for
`the individual clusters in the cluster group. Those are the channel estimates.
`And replace all those values with basically a single number which indicates
`the modulation and coding scheme to be applied to the entire cluster group.
`And our expert has testified to that and even Patent Owner’s expert,
`Dr. Vojcic testified that one of the results of using Vijayan’s single
`modulation encoding scheme across all of the subband groups is that it
`reduces the required amount of overhead signaling. And it’s pretty clear that
`it would do that if you take a bunch of numbers and replace them with one
`number. That’s going to reduce the signaling overhead.
`So if we move to slide DX-29. It is true that using joint parameters
`will involve a tradeoff. When you move from the cluster level to the cluster
`group level you may not be applying the ideal modulation coding parameter
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`to the individual clusters in that cluster group. Because less information is
`being transmitted from the handset to the base station.
`But the tradeoff of that is that you get reduced signaling overhead,
`which is an important concern of both Li and Vijayan. And this is the
`design tradeoff that a person of ordinary skill in the art would have
`understood. And not only do we have our expert Zhi Ding’s say so, but we
`have the evidence from the ’439 patent itself.
`Because as you’ll remember in the applicant’s admitted prior art,
`when people went from adaptive modulation coding at the subcarrier level to
`the subband level, that very tradeoff was made. It was assigned a joint
`modulation coding parameter across all the subcarriers in the subband, and
`as a result got reduced signaling overhead.
`So let’s move on to slide DX-30. Patent Owner’s response to all this
`is that if you applied a joint parameters in the system of Li, it wouldn’t work.
`Because you could do either one of two things. You can find the appropriate
`modulation and coding parameter for the worst performing cluster in the
`cluster group, and set that as the joint modulation coding parameter for the
`entire cluster group. And if you did that most of the clusters in the cluster
`group would be under used. They would be getting parameters that are far
`worse than they otherwise could handle.
`The other option that Patent Owner puts forward is you can go to the
`other extreme. Choose the best performing cluster in the cluster group, and
`set the modulation and coding for that cluster as the modulation and coding
`for the entire cluster group. In which case a lot of the clusters would be
`unreadable because they would be assigned modulation and coding that are
`too high for them to handle given the channel conditions.
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`But what Patent Owner overloo
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