Petitioner’s Oral Hearing Demonstratives
`
`Apple Inc., Blackberry Corp., LG Electronics Inc.,
`Samsung Electronics Co., Ltd., and Samsung Electronics
`America, Inc., (Petitioner)
`v.
`Uniloc 2017 LLC (Patent Owner)
`Case Nos. IPR2019-00222 and IPR2019-00252
`U.S. Patent No. 7,167,487
`
`Before Hon. Josiah C. Cocks, Robert Weinschenk, and John F. Horvath
`Administrative Patent Judges
`
`1
`
`Apple 1022
`Apple et al. v. Uniloc
`IPR2019-00222
`
`

`

`Table of Contents
`
`I. Background __________________________________________________ 3
`A. Overview Of The ’487 Patent __________________________________ 4
`B.
`Instituted Grounds __________________________________________ 6
`C. Independent Claims _________________________________________ 7
`
`II. R2-010182 Qualifies as Prior Art ________________________________ 11
`A. Presented at 3GPP Meeting __________________________________ 14
`B. Distributed on Email Reflector _________________________________ 32
`C. Published on 3GPP File Server ________________________________ 41
`
`III. R2-010182 Reads on the Purported Novelty _______________________ 52
`
`IV. Peisa Reads on the Purported Novelty ___________________________ 67
`
`2
`
`

`

`Table of Contents
`
`I. Background
`A. Overview Of The ’487 Patent
`B.
`Instituted Grounds
`C. Independent Claims
`
`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`B. Distributed on Email Reflector
`C. Published on 3GPP File Server
`
`III. R2-010182 Reads on the Purported Novelty
`
`IV. Peisa Reads on the Purported Novelty
`
`3
`
`

`

`Overview Of The ’487 Patent
`
`Application
`Data
`
`Logical
`Channels
`
`Transport
`Channels
`
`Paper 5 (Pet.), p. 7 (EX-1001, FIG. 1)*
`
`EX-1001, Claim 1, 14:40-50
`
`*All Citations are with respect to IPR2019-00222, unless otherwise noted
`
`4
`
`

`

`The ’487 Patent – Use of Minimum Bit Rate in
`TFC Selection Algorithm
`
`……………
`
`Paper 5 (Pet.), pp. 7-8
`
`EX-1001 (’487 Patent), 2:14-21 [Paper 5 (Pet.), pp. 7-8]
`
`5
`
`

`

`Instituted Grounds
`
`•
`
`IPR2019-00222
`
`•
`
`IPR2019-00252
`
`Paper 5 (Pet.), p. 4
`
`IPR2019-00252, Paper 5 (Pet.), p. 4
`
`6
`
`

`

`Independent Claim 1
`
`EX-1001 (’487 Patent), 14:40-50
`
`7
`
`

`

`Independent Claim 13
`
`EX-1001 (’487 Patent), 16:54-65
`
`8
`
`

`

`Independent Claim 11
`
`EX-1001 (’487 Patent), 16:25-40
`
`9
`
`

`

`Independent Claim 12
`
`EX-1001 (’487 Patent), 16:41-53
`
`10
`
`

`

`Table of Contents
`
`I. Background
`A. Overview Of The ’487 Patent
`B.
`Instituted Grounds
`C. Independent Claims
`
`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`B. Distributed on Email Reflector
`C. Published on 3GPP File Server
`
`III. R2-010182 Reads on the Purported Novelty
`
`IV. Peisa Reads on the Purported Novelty
`
`11
`
`

`

`R2-010182 – Evidence in Petition
`
`Paper 5 (Pet.), p. 4
`
`Paper 5 (Pet.), p. 12
`
`12
`
`

`

`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`i. R2-010182 Presented at 3GPP Meeting
`ii. 3GPP Meetings Open to Skilled Interested Artisans
`iii. No Expectation of Confidentiality for 3GPP Meetings
`
`B. Distributed on Email Reflector
`
`C. Published on 3GPP File Server
`
`13
`
`

`

`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`i. R2-010182 Presented at 3GPP Meeting
`ii. 3GPP Meetings Open to Skilled Interested Artisans
`iii. No Expectation of Confidentiality for 3GPP Meetings
`
`B. Distributed on Email Reflector
`
`C. Published on 3GPP File Server
`
`14
`
`

`

`R2-010182 Presented at 3GPP Meeting
`
`EX-1006 (Bishop Declaration), para 41 [Paper 5 (Pet.),
`pp. 4, 12]
`
`15
`
`

`

`Summary of R2-010182 Presentation in Approved
`Meeting Report
`
`Appendix H, Meeting Report [EX-1006 (Bishop), pp. 94-95; Paper 5 (Pet.),
`pp. 4,12]
`
`16
`
`

`

`R2-010182 Presented at 3GPP Meeting – Follow-up
`Email
`
`EX-1018 (BishopII), para 20 [Paper 16 (Pet. Reply), p. 14]
`
`17
`
`

`

`R2-010182 – Draft Meeting Report Emailed on January
`23, 2001
`
`Appendix K (Draft Meeting Report)
`[EX-1018 (BishopII), p. 52 [Paper 16
`(Pet. Reply), p. 2]
`
`EX-1018 (BishopII), paras 19-20 [Paper 16 (Pet. Reply), p. 14]
`
`Appendix K (Draft Meeting Report)
`[EX-1018 (BishopII), p. 92 [Paper 16
`(Pet. Reply), p. 2]
`
`18
`
`

`

`R2-010182 - Presentation at 3GPP Meeting – Legal
`Standard
`
`Paper 16 (Petitioner’s Reply), p. 2
`
`Paper 16 (Petitioner’s Reply), p. 3
`
`19
`
`

`

`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`i. R2-010182 Presented at 3GPP Meeting
`ii. 3GPP Meetings Open to Skilled Interested Artisans
`iii. No Expectation of Confidentiality for 3GPP Meetings
`
`B. Distributed on Email Reflector
`
`C. Published on 3GPP File Server
`
`20
`
`

`

`3GPP Meetings – Open to Skilled Artisans Interested in
`the Subject Matter
`
`…
`
`EX-1006 (Bishop), para 20 [Paper 5 (Pet.), pp. 4,12]
`
`EX-1006 (Bishop), paras 23-24 [Paper 5 (Pet.), pp. 4,12]
`
`21
`
`

`

`3GPP Meetings - Open to Skilled Artisans Interested in
`the Subject matter
`
`EX-1018 (BishopII), para 6 [Paper 16 (Pet. Reply), p. 5]
`
`Paper 16 (Petitioner’s Reply), p. 5
`
`22
`
`

`

`3GPP Meeting Opened to Skilled Interested Artisans
`
`……
`
`Paper 16 (Petitioner’s Reply), p. 2
`
`EX-1006 (Bishop Declaration), para 41 [Paper 5 (Pet.),
`pp. 4, 12]
`
`EX-1018 (BishopII), para 19 [Paper 16 (Pet. Reply), p. 2]
`
`23
`
`

`

`3GPP Meetings – Open to Skilled Artisans Interested in
`the Subject matter
`
`………….
`
`EX-1018 (BishopII), para 4 [Paper 16 (Pet. Reply), p. 5]
`
`24
`
`

`

`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`i. R2-010182 Presented at 3GPP Meeting
`ii. 3GPP Meetings Open to Skilled Interested Artisans
`iii. No Expectation of Confidentiality for 3GPP Meetings
`
`B. Distributed on Email Reflector
`
`C. Published on 3GPP File Server
`
`25
`
`

`

`3GPP Meetings – No Expectation of Confidentiality
`
`EX-1018 (BishopII), para 13 [Paper 16 (Pet. Reply), p. 6]
`
`…
`
`EX-1018 (BishopII), paras 8-9 [Paper 16 (Pet. Reply), p. 5]
`
`EX-1006 (Bishop Declaration),
`para 25 [Paper 5 (Pet.), pp. 4,12]
`
`26
`
`

`

`3GPP Meetings – No Expectation of Confidentiality
`
`Paper 16 (Petitioner’s Reply), p. 6
`
`EX-1018 (BishopII), para 7 [Paper 16 (Pet. Reply), p. 5]
`
`27
`
`

`

`3GPP Meetings – No Expectation of Confidentiality
`
`EX-1006 (Bishop Declaration), para 29 [Paper 5 (Pet.),
`pp. 4,12]
`
`EX-1006 (Bishop Declaration), para 27 [Paper 5 (Pet.),
`pp. 4,12]
`
`28
`
`

`

`3GPP Meetings – No Expectation of Confidentiality -
`
`EX-1018 (BishopII), para 11 [Paper 16 (Pet. Reply), p. 6]
`
`EX-1018 (BishopII), para 12 [Paper 16 (Pet. Reply), p. 6]
`
`29
`
`

`

`3GPP Meetings - No Expectation of Confidentiality
`
`…
`
`Paper 16 (Petitioner’s Reply), p. 6
`
`EX-1018 (BishopII), paras 14-15 [Paper 16 (Pet. Reply), p. 6]
`
`30
`
`

`

`3GPP Meeting – Target Audience and Expectation of
`Confidentiality
`
`Paper 16 (Petitioner’s Reply), p. 7
`
`31
`
`

`

`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`i. R2-010182 Presented at 3GPP Meeting
`ii. 3GPP Meetings Open to Skilled Interested Artisans
`iii. No Expectation of Confidentiality for 3GPP Meetings
`
`B. Distributed by Public Email Reflector
`
`C. Published on 3GPP File Server
`
`32
`
`

`

`R2-010182 - Distributed by Public Email Reflector
`
`EX-1006 (Bishop Declaration), para 27
`[Paper 5 (Pet.), pp. 4,12]
`
`EX-1006 (Bishop Declaration), para 29 [Paper 5 (Pet.),
`pp. 4,12]
`
`33
`
`

`

`R2-010182 – Distributed by Public Email Reflector
`
`EX-1006 (Bishop Declaration), para 38
`[Paper 5 (Pet.), pp. 4,12]
`
`EX-1006 (Bishop Declaration), para 40 [Paper 5 (Pet.),
`pp. 4,12]
`
`34
`
`

`

`R2-010182 – Distributed by Public Email Reflector
`
`Paper 16 (Pet. Reply), p. 10
`
`Paper 16 (Pet. Reply), p. 11
`
`EX-1006 (Bishop Declaration), para 40 [Paper 5 (Pet.),
`pp. 4,12]
`
`35
`
`

`

`R2-010182 – Distributed by Public Email Reflector
`
`EX-1018 (BishopII), para 17 [Paper 16 (Pet. Reply), p. 10]
`
`36
`
`

`

`R2-010182 – Distributed by Public Email Reflector
`
`EX-1018 (BishopII), p. 99 (Appendix L) 17 [Paper 16 (Pet. Reply), p. 10]
`
`37
`
`

`

`R2-010182 Email Distribution –File Name Change was
`Common 3GPP Policy
`
`EX-1018 (BishopII), para 10 [Paper 16 (Pet. Reply), p. 6]
`
`38
`
`

`

`R2-010182 Email Distribution – Relevant Case Law
`
`Paper 16 (Petitioner’s Reply), pp. 10-11
`
`39
`
`

`

`R2-010182 Email Distribution – Relevant Case Law
`
`Hulu, LLC, v. Sound View Innovations, LLC, Case
`IPR2018-01039, Paper 29 (Precedential), p. 4
`
`Hulu, Case IPR2018-01039, Paper 29
`(Precedential), p. 20
`
`40
`
`

`

`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`i. R2-010182 Presented at 3GPP Meeting
`ii. 3GPP Meetings Open to Skilled Interested Artisans
`iii. No Expectation of Confidentiality for 3GPP Meetings
`
`B. Distributed by Public Email Reflector
`
`C. Published on 3GPP File Server
`
`41
`
`

`

`R2-010182 – Published on 3GPP File Server
`
`EX-1006 (Bishop Declaration), para 22 [Paper 5 (Pet.),
`pp. 4,12]
`
`EX-1006 (Bishop Declaration), para 24 [Paper 5
`(Pet.), pp. 4,12]
`
`42
`
`

`

`R2-010182 – Published on 3GPP File Server
`
`EX-1006 (Bishop Declaration), paras 32-33 [Paper 5
`(Pet.), pp. 4,12]
`
`43
`
`

`

`R2-010182 – Published on 3GPP File Server
`
`Paper 16 (Pet. Reply), p. 13
`
`Paper 16 (Pet. Reply), pp. 13-14
`
`44
`
`

`

`R2-010182 – Published on 3GPP File Server
`
`EX-1018 (BishopII), para 13 [Paper 16 (Pet. Reply), p. 13]
`
`EX-1018 (BishopII), paras 19-20 [Paper 16 (Pet. Reply), p. 14]
`
`EX-1018 (BishopII), para 21 [Paper 16 (Pet.
`Reply), p. 13]
`
`45
`
`

`

`Publication on File Server – Relevant Case Law
`
`……..…
`
`Voter Verified, Inc. v. Premier Election Solutions, Inc., 698
`F.3d 1374 (Fed. Cir. 2012) [Paper 16 (Pet. Reply), p. 12]
`
`46
`
`

`

`Publication on File Server – Relevant Case Law
`
`Suffolk Techs.,752 F.3d 1365 [Paper 16 (Pet.
`Reply), p. 13]
`
`Suffolk Techs., LLC v. AOL Inc.,752 F.3d 1358,
`1365 (Fed. Cir. 2014) [Paper 16 (Pet. Reply), p. 13]
`
`47
`
`

`

`R2-010182 Printed Publication Status: The Board’s
`Observations
`
`Paper 11 (Institution Decision), p. 25
`
`Paper 11 (Institution Decision), p. 27
`
`48
`
`

`

`Patent Owner Has Presented No Evidence
`
`Uniloc cites no evidence to rebut the understanding of a POSITA as
`explained in Petitioner’s briefs; it relies only on the unsupported
`arguments of counsel.
`
`See, e.g., Paper 16 (Petitioner’s Reply), pp. 15, 17
`
`Estee Lauder, Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed.
`Cir. 1997) [Paper 16 (Petitioner’s Reply), pp. 15, 17]
`
`49
`
`

`

`Petitioner’s Reply Follows the Law and Rules
`
`Hulu v. Sound View Innovations, Case IPR2018-
`01039, Paper 29 (Precedential), p. 15
`
`Paper 17 (Patent Owner’s Sur-Reply), p. 2
`
`Patent Trial and Appeal Board Consolidated Trial
`Practice Guide November 2019, p. 73
`
`50
`
`

`

`Petitioner’s Reply Follows the Law and Rules
`
`Patent Trial and Appeal Board Consolidated Trial
`Practice Guide November 2019, p. 73 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 4]
`
`Hulu, Case IPR2018-01039, Paper 29 (Precedential), p.
`14 [Paper 17 (Patent Owner’s Sur-Reply), p. 4]
`
`…………..
`
`Patent Trial and Appeal Board Consolidated Trial
`Practice Guide November 2019, pp. 74-75
`
`51
`
`

`

`Table of Contents
`
`I. Background
`A. Overview Of The ’487 Patent
`B.
`Instituted Grounds
`C. Independent Claims
`
`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`B. Distributed on Email Reflector
`C. Published on 3GPP File Server
`
`III. R2-010182 Reads on the Purported Novelty
`
`IV. Peisa Reads on the Purported Novelty
`
`52
`
`

`

`“wherein the selection algorithm uses a
`minimum bit rate criteria
`applicable to the respective logic
`channel.”
`
`53
`
`

`

`R2-010182 – Proposal Expands TS25.321 TFC Selection
`Algorithm to include a MinGBr, MaxBr and TW
`
`Paper 5 (Pet.), p. 12-13
`
`54
`
`

`

`R2-010182 – MinGBr Corresponds To “minimum bit
`rate” of ‘487 Patent
`
`Paper 5 (Pet.), pp. 31-32
`
`Paper 5 (Pet.), pp. 33-34
`
`55
`
`

`

`R2-010182 – MinGBr Corresponds To “minimum bit
`rate” of ‘487 Patent
`
`EX-1002 (Buehrer), para 136 [Paper 5 (Pet.), pp. 32-33]
`
`EX-1002 (Buehrer), para 139 [Paper 5 (Pet.), pp. 33-34]
`
`56
`
`

`

`R2-010182 – 3-Step TFC Selection Algorithm similar to
`’487 Patent 3-Step TFC Selection Algorithm
`
`EX-1002 (Buehrer), para 72 [Paper 5 (Pet.), pp. 12-13]
`
`EX-1002 (Buehrer), para 78 [Paper 5 (Pet.), pp. 32-33]
`
`57
`
`

`

`R2-010182 – Board’s Observations – Replacement of
`MLP with MLP, MinGBr, MaxBr and Tw
`
`Paper 11 (Institution Decision), p. 38
`
`Paper 11 (Institution Decision), pp. 10-11
`
`58
`
`

`

`R2-010182 – Board’s Observations - MinGBr is Specific
`to a Logical Channel
`
`Paper 11 (Institution Decision), p. 39
`
`Paper 11 (Institution Decision), p. 40
`
`59
`
`

`

`R2-010182 – A POSITA would Understand MinGBr to be
`Specific to a Logical Channel
`
`Paper 16 (Petitioner’s Reply), p. 17
`
`Paper 16 (Petitioner’s Reply), p. 18
`
`Paper 16 (Petitioner’s Reply), p. 18
`
`60
`
`

`

`R2-010182 – First Step of TFC Selection Algorithm Using
`Distinct MinGBrs For Each Logical Channel
`
`Paper 16 (Petitioner’s Reply), p. 19
`
`Paper 16 (Petitioner’s Reply), pp. 19-20
`
`61
`
`

`

`R2-010182 – Different Logical Channels Can Have Different
`“Basic Needs”  Different MinGBrs
`
`EX-1019 (BuehrerII), para 8 [Paper 16 (Pet. Reply),
`pp. 17-18]
`
`EX-1019 (BuehrerII), para 7 [Paper 16 (Pet. Reply), p. 17]
`
`62
`
`

`

`R2-010182 – Different MinGBrs Correspond to Different
`“Minimum Bit Rate Criteria”
`
`EX-1019 (BuehrerII), para 10 [Paper 16 (Pet. Reply), p.
`18]
`
`EX-1019 (BuehrerII), para 11 [Paper 16 (Pet. Reply), pp. 21]
`
`63
`
`

`

`R2-010182 – TFC Selection Algorithm Has Same Three
`Iterations as ’487 Patent TFC Selection Algorithm
`
`EX-1019 (BuehrerII), para 15A [Paper 16 (Pet. Reply),
`pp. 18-19]
`
`EX-1019 (BuehrerII), para 15A [Paper 16 (Pet. Reply),
`pp. 18-19]
`
`64
`
`

`

`R2-010182 – TFC Selection Algorithm Tries To Ensure That
`Each Logical Channel Gets at Least Its MinGBr
`
`EX-1019 (BuehrerII), para 15A [Paper 16 (Pet. Reply), p. 20]
`
`65
`
`

`

`R2-010182 – TFC Selection Algorithm Uses A “Minimum
`Bit Rate Criteria”
`
`EX-1002 (Buehrer), para 78 [Paper 5 (Pet.), pp. 32-33]
`
`Paper 16 (Petitioner’s Reply), p. 19
`
`EX-1008 (R2-010182), p. 1 [Paper 16 (Pet. Reply), p. 20/EX-1019 (BuehrerII),
`para 19D]
`
`66
`
`

`

`Table of Contents
`
`I. Background
`A. Overview Of The ’487 Patent
`B.
`Instituted Grounds
`C. Independent Claims
`
`II. R2-010182 Qualifies as Prior Art
`A. Presented at 3GPP Meeting
`B. Distributed on Email Reflector
`C. Published on 3GPP File Server
`
`III. R2-010182 Reads on the Purported Novelty
`
`IV. Peisa Reads on the Purported Novelty
`
`67
`
`

`

`“wherein the selection algorithm uses a
`minimum bit rate criteria
`applicable to the respective logic
`channel.”
`
`68
`
`

`

`Peisa Mapping – Complying With Minimum Bit Rate In
`TFC Selection
`
`EX-1001 (’487 Patent), 2:14-21 [Paper 5 (Pet.), p. 8]
`
`69
`
`

`

`Peisa FIG. 4 Algorithm – TFC Selection Takes Into
`Account Guaranteed Rates
`
`Paper 5 (Pet.), p. 61
`
`70
`
`

`

`Peisa FIG. 4 Algorithm– TFC Selection Takes Into
`Account Guaranteed Rates
`
`Paper 5 (Pet.), p. 61
`
`EX-1002 (Buehrer), para 257 [Paper 5 (Pet.), pp. 61, 63]
`
`71
`
`

`

`Peisa FIG. 4 TFC Selection Algorithm
`
`EX-1013 (Peisa), 11:6-34 [Paper 5 (Pet.), p. 19]
`
`EX-1013 (Peisa), FIG. 4 [Paper 5 (Pet.), p. 61]
`
`72
`
`

`

`Peisa FIG. 8 Algorithm – Uses Score To Select TFC That
`Satisfies “At Least the Guaranteed Rate for Each Flow”
`
`EX-1013 (Peisa), FIG. 8 [Paper 5 (Pet.), p. 62]
`
`Paper 5 (Pet.), p. 61
`
`Paper 5 (Pet.), p. 63
`
`73
`
`

`

`Peisa FIG. 8 Algorithm – Uses Score To Select TFC That
`Satisfies “At Least the Guaranteed Rate for Each Flow”
`
`EX-1002 (Buehrer), para 258 [Paper 5 (Pet.), p. 61, 63]
`
`EX-1002 (Buehrer), para 260 [Paper 5 (Pet.), p. 63]
`
`74
`
`

`

`Peisa FIG. 8 – TFC Selection Uses a “Minimum Bit Rate
`Criteria Applicable to The Respective Logic Channel”
`
`Paper 5 (Pet.), p. 19
`
`EX-1013 (Peisa), 19:7-13 [Paper 5 (Pet.), pp. 19, 61]
`
`EX-1013 (Peisa), 18:4-9 [Paper 5 (Pet.), p. 19]
`
`EX-1013 (Peisa), 19:49-59 [Paper 5 (Pet.), pp. 19]
`
`75
`
`

`

`Peisa Mapping – The Board’s Observations – TFC Selection
`Algorithm Uses a “Minimum Bit Rate Criteria”
`
`Paper 11 (Institution Decision), pp. 16-17
`
`Paper 11 (Institution Decision), pp. 52-53
`
`76
`
`

`

`Peisa – “Guaranteed Rate” Is Equivalent to a “Minimum
`Bit Rate Criteria”
`
`Paper 16 (Petitioner’s Reply), pp. 23-24
`
`77
`
`

`

`Peisa FIG. 4 Algorithm – Achieves “Fair Rate” Over
`Time, which is a “Minimum Rate” Over Time
`
`Paper 16 (Petitioner’s Reply), p. 25
`
`78
`
`

`

`Peisa FIG. 8 Algorithm – Guaranteed Rate As Used In Algorithm
`Corresponds to “Minimum Bit Rate Criteria” of A Logical Channel
`
`Paper 16 (Petitioner’s Reply), p. 25
`
`79
`
`

`

`Peisa – Written In Context of Existing 3GPP UMTS
`Standards
`
`EX-1019 (BuehrerII), para 22 [Paper 16 (Petitioner’s
`Reply), pp. 23-24]
`
`EX-1019 (BuehrerII), para 23 [Paper 16 (Petitioner’s
`Reply), pp. 23-24]
`
`80
`
`

`

`Peisa Mapping – ’487 Patent Definition of “Minimum Bit
`Rate” Relies on 3GPP UMTS Standards
`
`EX-1019 (BuehrerII), para 24 [Paper 16 (Petitioner’s
`Reply), p. 24]
`
`81
`
`

`

`Peisa FIG. 4 Algorithm – Achieves “Fair Rate” Over
`Time, which is a “Minimum Rate” Over Time
`
`EX-1019 (BuehrerII), paras 25-26 [Paper 16
`(Petitioner’s Reply), pp. 24-25]
`
`82
`
`

`

`Peisa FIG. 8 Algorithm – “Guaranteed Rate” Is Used as
`The Minimum Bit Rate Criterion
`
`EX-1019 (BuehrerII), paras 27-28 [Paper 16 (Pet. Reply), p. 25]
`
`83
`
`

`

`Minimum/Guaranteed Bit Rate in ’487 Patent, R2-010182
`and Peisa
`
`EX-1020 (TS23.107 v3.5.0), §6.4.3.2, p.18 [Paper 16 (Pet. Reply),
`p. 24]
`
`………
`
`EX-1001 (’487 Patent), 1:61-2:6 [Paper 5 (Pet.), p. 8]
`
`………
`
`EX-1008 (R2-010182), p. 2 [Paper 5 (Pet.), p. 12]
`
`EX-1013 (Peisa), 19:1013, 20:23-28 [Paper 5 (Pet.), pp. 19, 61]
`
`84
`
`

`

`R2-010182 – ’487 Patent TFC Selection Algorithm
`Example
`
`EX-1001 (’487 Patent), 11:23-30 [Paper 14 (Patent Owner’s Response), p.
`20; Paper 5 (Pet.), p. 5/EX-1002 (Buehrer), para 48]
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`85
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`R2-010182 – Published on 3GPP File Server
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`………….
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`EX-1006 (Bishop Declaration), pp. 132-137 (Appendix H,
`Meeting Report) [Paper 5 (Pet.), pp. 4,12]
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`Backup Slides
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`Backup Slides
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`87
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`87
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`3GPP Meeting – Expectation of Confidentiality
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`…
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`…
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`…
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`…
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`EX-1006 (Bishop), paras 23-24 [Paper 5 (Pet.), pp. 4, 12]
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`EX-1006 (Bishop), paras 27-29 [Paper 5 (Pet.), pp. 4, 12]
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`Presentation at 3GPP Meeting – Case Law
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`Medtronic, Inc. v. Barry, 891 F.3d 1368, 1382 (Fed. Cir.
`2018) [Paper 16 (Pet. Reply), p. 4; Paper 17 (Patent
`Owner’s Sur-Reply), p. 7]
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`…..
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`…….…..
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`Medtronic, 891 F.3d 1382-83 [Paper 16 (Pet. Reply), p.
`7; Paper 17 (Patent Owner’s Sur-Reply), pp. 7-8]
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`Presentation at 3GPP Meeting – Case Law
`
`Most recently, in Medtronic we considered whether distribution
`of a video and slides at several scientific meetings on spinal
`surgery were prior art printed publications. Medtronic, 891
`F.3d at 1379. … The Board had held that the video and slides
`were not prior art, but neither distinguished the limited from
`the open meetings, nor addressed whether the video and slides
`were distributed with a reasonable expectation that they would
`remain confidential. Id. at 1382. As "the size and nature of the
`meetings[,] . . . whether they are open to people interested in
`the subject matter[,]" and "whether there is an expectation of
`confidentiality between the distributor and the recipients of the
`materials" are important factors in assessing public
`accessibility, we vacated the Board's finding that the video and
`slides were not prior art and remanded for further
`considerations.
`Jazz Pharms., 895 F.3d 1347, 1357 (Fed. Cir. Jul. 13,
`2018) [Paper 17 (Patent Owner’s Sur-Reply), p. 8]
`
`Whether the disseminated material is addressed to or of interest
`to persons of ordinary skill is also relevant to the public
`accessibility inquiry. See, e.g., Klopfenstein, 380 F.3d at 1351
`(considering whether the reference "goes [**22] direct to those
`whose interests make them likely to observe and remember
`whatever it may contain that is new and useful") (internal
`quotation marks omitted)).
`Jazz Pharms., 895 F.3d 1358 [Paper 17 (Patent Owner’s
`Sur-Reply), p. 8]
`"[T]he longer a reference is displayed, the more likely it is to
`be considered a 'printed publication.'" Klopfenstein, 380 F.3d
`at 1351. In Klopfenstein, three days of slide presentations
`between two scientific meetings were enough. Id. at 1351-52.
`Jazz Pharms., 895 F.3d 1358 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 8]
`Third, the ACA materials were distributed via public domain
`sources with no possible expectation that the materials would
`remain confidential or not be copied. We have consistently
`emphasized the importance of such expectations in determining
`whether a reference is publicly accessible. See Medtronic, 891
`F.3d at 1382; Cordis, 561 F.3d at 1333-34; Klopfenstein, 380
`F.3d at 1351; MIT, 774 F.2d at 1108-09. There can be no dispute
`that materials disclosed in the Federal Register and available
`online on a public FDA website have no expectation of
`confidentiality.
`Jazz Pharms., 895 F.3d 1358 [Paper 17
`(Patent Owner’s Sur-Reply), p. 8]
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`Presentation at 3GPP Meeting – Case Law
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`This is not the first time we have considered whether materials
`disclosed in association with meetings or conferences were
`"printed
`publications."
`In Massachusetts
`Institute
`of
`Technology v. AB Fortia ("MIT"), the reference at issue was a
`paper orally presented at a scientific [**18]
`conference
`attended by between 50 and 500 cell culturists. 774 F.2d 1104,
`1108 (Fed. Cir. 1985). A copy of the paper was given to the
`head of the conference and to no more than six other persons,
`without restrictions, who requested the paper. Id. at 1108-09.
`We held that the paper was prior art because "between 50 and
`500 persons interested and of ordinary skill in the subject
`matter were actually told of the existence of the paper and
`informed of its contents by the oral presentation, and the
`document itself was actually disseminated without restriction
`to at least six persons." Id. at 1109.
`
`Jazz Pharms., 895 F.3d 1356 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 8]
`
`Similarly, in Klopfenstein, several researchers presented
`slides at two scientific meetings for a total of approximately
`three days. 380 F.3d at 1347, 1350. At the
`meetings [*1357] "[t]he reference was shown to a wide
`variety of viewers, a large subsection of whom possessed
`ordinary skill in the art." Id. at 1350. As in MIT, the slides
`were presented "with no stated expectation that the
`information would not be copied or reproduced by those
`viewing it." Id. After considering multiple factors, including
`the length of the display, the expertise of the intended
`audience, whether the presenters had a reasonable
`expectation that the materials would not be copied, and the
`ease or simplicity of copying [**19] the materials, we held
`that the slide presentation was sufficiently publicly accessible
`to count as a printed publication. Id. at 1350-52. We so held
`even though the slides were never distributed to the public
`and never indexed. Id. at 1350.
`Jazz Pharms., 895 F.3d 1356-57 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 8]
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`Presentation at 3GPP Meeting – Case Law
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`Comparing the facts of this case to those in MIT,
`Klopfenstein, and Medtronic confirms that the ACA
`materials were disseminated more broadly and for a
`longer duration to persons of ordinary skill than the
`materials disclosed at individual meetings in
`those [**21] cases. In addition, unlike in Cordis,
`disclosure through public domain sources such as the
`Federal Register and a public federal agency website
`plainly indicates that there was no reasonable
`expectation that the ACA materials would remain
`confidential. As we explain below, each of these factors
`supports the Board's finding that the ACA materials were
`publicly accessible printed publications.
`Jazz Pharms., 895 F.3d 1357 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 8]
`
`Second, the ACA materials were available online for a
`substantial time before the critical date of the patents in
`suit. "[T]he longer a reference is displayed, the more
`likely it is to be considered a 'printed publication.'"
`Klopfenstein, 380 F.3d at 1351. In Klopfenstein, three
`days of slide presentations between two scientific
`meetings were enough. Id. at 1351-52. Here, the ACA
`materials were available on a public FDA website for at
`least two months before the critical date of the patents
`in suit. As with the breadth of dissemination, the length
`of time the ACA materials were available supports the
`Board's public accessibility finding.
`Jazz Pharms., 895 F.3d 1358 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 8]
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`Presentation at 3GPP Meeting – Case Law
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`Third, the ACA materials were distributed via
`public domain sources with no possible
`expectation that the materials would remain
`confidential or not be copied. We have
`consistently emphasized the importance of such
`expectations in determining whether a
`reference is publicly accessible. See Medtronic,
`891 F.3d at 1382; Cordis, 561 F.3d at 1333-34;
`Klopfenstein, 380 F.3d at 1351; MIT, 774 F.2d
`at 1108-09. There can be no dispute that
`materials disclosed in the Federal Register and
`available online on a public FDA website have
`no expectation of confidentiality.
`
`Jazz Pharms., 895 F.3d 1358 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 8]
`
`We have consistently held that indexing or searchability is
`unnecessary for a reference to be a printed publication under §
`102(b). Medtronic, 891 F.3d at 1381 ("We have stated that a
`printed publication 'need not be easily searchable after
`publication [**25] if it was sufficiently disseminated at the
`time of its publication.'" (quoting Suffolk, 752 F.3d at 1365));
`Klopfenstein, 380 F.3d at 1350 ("[D]istribution and indexing
`are not the only factors to be considered in a § 102(b) 'printed
`publication' inquiry."); accord MIT, 774 F.2d at 1108-09
`(holding paper distributed at conference publicly accessible
`without considering indexing). … Moreover, even assuming
`that indexing is relevant to this case, the Federal Register was
`meaningfully indexed. The Notice was published on May 14,
`2001, in issue 93 of the 66th annual volume of the Federal
`Register. 66 Fed. Reg., No. 93 (May 14, 2001). Consistent with
`its governing regulation, 1 C.F.R. § 6.1 ("Each daily issue of
`the Federal Register shall be appropriately indexed."), issue 93
`included a five-page table of contents organized alphabetically
`by agency; each agency's rules, proposed rules, and notices are
`then listed in that order. Table of Contents, 66 Fed. Reg., No.
`93, at III (May 14, 2001). FDA notices appear on the third
`page, with three entries in total. Id. at V.
`Jazz Pharms., 895 F.3d 1359 [Paper 17 (Patent
`Owner’s Sur-Reply), p. 8]
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