UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`MICROSOFT CORPORATION
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`Petitioner
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`v.
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`UNILOC 2017 LLC
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`Patent Owner
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`IPR2019-01116
`PATENT 7,016,676
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`PATENT OWNER RESPONSE TO PETITION
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`PURSUANT TO 37 C.F.R. §42.120
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
`
`
`
`
`
`
`
`
`
`MICROSOFT CORPORATION
`
`Petitioner
`
`v.
`
`UNILOC 2017 LLC
`
`Patent Owner
`
`
`
`
`
`IPR2019-01116
`PATENT 7,016,676
`
`
`
`
`
`
`
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`
`
`PATENT OWNER RESPONSE TO PETITION
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`PURSUANT TO 37 C.F.R. §42.120
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`I.
`II.
`III.
`IV.
`V.
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`IPR2019-01116
`U.S. Patent 7,016,676
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`
`Table of Contents
`INTRODUCTION .................................................................................... 1
`THE ’676 PATENT .................................................................................. 1
`RELATED PROCEEDINGS .................................................................... 4
`THE LEVEL OF ORDINARY SKILL IN THE ART ............................. 5
`PETITIONER DOES NOT PROVE THAT ANY
`CHALLENGED CLAIM IS UNPATENTABLE .................................... 6
`A.
`Claim Construction ......................................................................... 8
`1.
`“Stations Which Operate In Accordance With A
`First Radio Interface Standard And/Or A Second
`Radio Interface Standard” .................................................... 9
`“Respective Duration In Which The Stations
`Working In Accordance With The Second Radio
`Interface Standard Are Allowed To Utilize The
`Frequency Band” ................................................................ 16
`“Renders The Frequency Band Available For
`Access By The Stations Working In Accordance
`With The Second Radio Interface Standard If
`Stations Working In Accordance With The First
`Radio Interface Standard Do Not Request Access
`To The Frequency Band” ................................................... 16
`The Steps within the Method of Claims 1 and 2 ................ 17
`4.
`None of HomeRF, HomeRF Tutorial, and HomeRF
`Liaison Report (collectively “the HomeRF references”)
`Discloses “stations which operate in accordance with a
`first radio interface standard and/or a second radio
`interface standard” (Claim 1) (Grounds 1-3) ............................... 18
`None of HomeRF, HomeRF Tutorial, and HomeRF
`Liaison Report (collectively “the HomeRF references”)
`Discloses “a control station which controls the alternate
`
`B.
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`2.
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`3.
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`C.
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`ii
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`E.
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`F.
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`use of the frequency band” / “wherein the control station
`controls the access to the common frequency band for
`stations working in accordance with the first radio
`interface standard” (Claim 1) (Grounds 1-3)................................ 28
`1.
`The Petition’s alternative scenario ..................................... 38
`D. None of HomeRF, HomeRF Tutorial, and HomeRF
`Liaison Report (collectively “the HomeRF references”)
`Discloses “wherein the control station …renders the
`frequency band available for access by the stations
`working in accordance with the second radio interface
`standard if stations working in accordance with the first
`radio interface standard do not request a control station
`which controls the alternate use of the frequency band”
`(Claim 1) (Grounds 1-3) ............................................................... 39
`The Petitioner Has Failed to Meet its Burden of
`Demonstrating that the HomeRF Tutorial and HomeRF
`Liaison Report Constitute Prior Art. ............................................ 44
`Lansford Does Not Disclose “a control station which
`controls the alternate use of the frequency band” or
`“wherein the control station …renders the frequency
`band available for access by the stations working in
`accordance with the second radio interface standard if
`stations working in accordance with the first radio
`interface standard do not request a control station which
`controls the alternate use of the frequency band” (Claim
`1) (Ground 4) ................................................................................ 50
`The Petition Fails As To The Challenged Dependent
`Claim 2 .......................................................................................... 56
`APJS ARE UNCONSTITUTIONALLY APPOINTED
`PRINCIPAL OFFICERS ........................................................................ 56
`CONCLUSION ....................................................................................... 59
`
`G.
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`VI.
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`VII.
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`
`iii
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`IPR2019-01116
`U.S. Patent 7,016,676
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`EXHIBITS
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`Exhibit 2001
`Exhibit 2002
`Exhibit 2003
`Exhibit 2004
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`
`
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`U.S. Patent No. 8,929,259
`U.S. Patent No. 7,023,833
`U.S. Patent No. 7,796,573
`U.S. Patent No. 7,197,326
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`iv
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`I.
`
`INTRODUCTION
`UNILOC 2017 LLC (“Uniloc” or “Patent Owner”) submits this Response to
`Petition IPR2019-01116 for Inter Partes Review (“Pet.” or “Petition”) of United
`States Patent No. 7,016,676 (“the ’676 Patent” or “EX1001”) filed by Microsoft
`Corporation (“Petitioner”). Petitioner has failed to carry its burden of showing that
`any challenged claim of the ‘676 is unpatentable for at least the reasons set forth
`herein.
`
`II. THE ’676 PATENT
`The ’676 patent is titled “Method, network and control station for the two-
`way alternate control of radio systems of different standards in the same frequency
`band.” The ʼ676 patent issued March 21, 2006, from U.S. Patent Application No.
`10/089,959 filed April 4, 2002, which was a National Stage Entry of PCT No.
`PCT/EP01/09258 filed August 8, 2001 and published as W002/13457, which in turn
`claims priority to German Application No. DE10039532.5 filed August 8, 2000.
`The inventors of the ’676 patent observed that at the time of the invention, a
`radio system for wireless transmission of information was allowed to use
`transmission power only in accordance with standards by the national regulation
`authority. The national regulation authority determined on what frequencies with
`what transmission power and in accordance with what radio interface standard a
`radio system is allowed to transmit. There was also provided so-called ISM
`frequency bands (Industrial Scientific Medical) where radio systems transmitted in
`the same frequency band but in accordance with different radio interface standards.
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`1
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`IPR2019-01116
`U.S. Patent 7,016,676
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`EX1001, 1:10-23. And in the event of interference, methods were standardized for
`an active switching to another frequency within the permitted frequency band, for
`controlling transmission power and for the adaptive coding and modulation to reduce
`interference. The ‘676 Patent notes that radio systems operating according to “the
`radio interface standards ETSI BRAN HiperLAN/2 and IEEE 802.11a use the same
`radio transmission method, a 64-carrier OFDM method,” and about the same
`modulation and coding methods. EX1001, 1:28-33.
`The ’676 Patent observes that, despite operating in the same frequency band,
`different radio interface standards have different Medium Access Controls (MAC).
`For the ETSI BRAN HiperLAN/2 radio interface standard, a centrally controlled
`reservation-based medium access control method is employed, in which a radio
`station takes over the role of a central instance coordinating the radio resources.
`EX1001, 1:34-38. For the IEEE 802.11a radio interface standard, a different medium
`access control method, namely CSMA/CA (Carrier Sense Multiple Access/Collision
`Avoidance) is provided, in which all the radio stations listen in on the medium and
`assume that the channel is unused for a minimum duration before 802.11a-MAC
`frames; thus user data packets are transmitted if necessary. EX1001, 1:43-49.
`Wideband LANs in accordance with the HiperLAN/2 and 802.11a radio
`interface standards will operate in the same frequency band. EX1001, 1:63-65.
`Despite the utilization of methods such as Transmitter Power Control (TPC) and
`Dynamic Frequency Selection (DFS), those methods did not make optimum use of
`spreading radio channels over the stations which operate under different radio
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`2
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`IPR2019-01116
`U.S. Patent 7,016,676
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`
`standards. EX1001, 1:65-2:10.
`According to the invention of the ’676 Patent, there is provided a method, a
`wireless network and a control station which make efficient use of radio transmission
`channels possible by an interface control protocol method for a radio system, which
`system comprises at least a frequency band provided for the alternate use of a first
`and a second radio interface standard, the radio system comprising stations which
`operate in accordance with a first radio interface standard and/or a second radio
`interface standard, respectively, a control station being provided which controls the
`alternate use of the frequency band. Based on the idea of providing a comprehensive
`standard exchange of implicit or explicit control information in systems that have
`the same radio transmission methods but different radio transmission protocols. This
`makes a simple and efficient use possible of a radio channel via a plurality of radio
`interface standards. EX1001, 2:14-28.
`A first number of stations preferably forms a wireless local area network in
`accordance with a first radio interface standard and a second number of stations
`forms a wireless network in accordance with a second radio interface standard. The
`control station is preferably a station that operates in accordance with both the first
`and the second radio interface standard. The control station can utilize the common
`radio channel more effectively when the demand for transmission capability in
`accordance with the first and second radio standard varies. The control station may
`release the common frequency band for access by stations operating under the
`second radio interface if stations operating in accordance with the first radio
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`3
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`US. Patent 7,016,676
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`interface standard do not request access to the frequency band. The control station
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`controls the alternate access by the first wireless network and the second wireless
`
`network to the common frequency band. The control station receives requests for
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`capacity from various stations and assigns capacity accordingly. The release of the
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`common frequency band for the second radio interface standard may be effected, for
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`example, by explicitly sending control information to the stations of the second radio
`
`interface standard. As another example, control can be effected in that the control
`
`station determines the respective duration in which the stations operating in
`
`accordance with the second radio interface standard can utilize the common
`
`frequency band. EX1001, 2:36-4:26.
`
`III. RELATED PROCEEDINGS
`
`The ’676 patent is involved in the following proceedings.
`
`
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`
`
`Case
`
`Filing
`Date
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`
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`7/24/2018
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`
`
`
`
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`
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`8/29/2018
`
`8/29/2018
`Communications Inc. et a]
`
`
`
`10/31/2018 Uniloc 201 7 LLC et a] v. Google
`LLC
`
`
`l 1/ 17/2018 Uniloc 201 7 LLC v. Microsofl
`Corporation
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`8-18-cv-02053
`
`CDCA
`
`
`
`Case Name
`
`Case Number
`
`Court
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`Uniloc 201 7 LLC et a] v. Microsoft 8-18-cv-01279
`Corporation
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`CDCA
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`
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`
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`Uniloc 201 7 LLC et a] v. AT&T,
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`2-18-cv-00379
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`Inc. et aI
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`Uniloc 201 7 LLC et al v. Verizon
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`2-18-cv-00380
`
`2-18-cv—00448
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`IPR2019-01116
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`US. Patent 7,016,676
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`Case Name
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`Case Number
`
`Court
`
`Case
`
`Filing
`Date
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`1 1/17/2018 Uniloc 20] 7 LLC et a] v. Google
`LLC
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`2-18-cv-00495
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`EDTX
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`1 1/17/2018 Uniloc 201 7 LLC v. Verizon
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`2-18-cv-00513
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`EDTX
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`Communications Inc. et a/
`
`l l/17/2018 Uniloc 201 7 LLC v. AT&T
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`2-18-cv—00514
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`EDTX
`
`Services, Inc. et a]
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`5/29/2019 Microsoft Corporation et a] v.
`Uniloc 2017 LLC
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`IPR2019-01 1 16
`
`PTAB
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`5/29/2019 Microsoft Corporation et a] v.
`Uniloc 2017 LLC
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`IPR2019-01 125
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`PTAB
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`7/22/2019 Marvell Semiconductor, Inc. v.
`
`IPR2019-01 349
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`PTAB
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`Uniloc 20] 7 LLC
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`7/22/2019 Marvell Semiconductor, Inc. v.
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`IPR2019-01 3 50
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`PTAB
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`Uniloc 201 7 LLC
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`8/29/2019
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`Ericsson Inc. et al v. Uni/0c 201 7
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`IPR2019-01550
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`PTAB
`
`LLC
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`8/29/2019
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`Goog/e LLCf/k/a Google Inc. v.
`Uniloc 201 7 LLC
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`IPR2019-01541
`
`PTAB
`
`PTAB
`IPR2020—00376
`Ericsson Inc. v. Uni/0c 2017LLC
`1/3/2020
`
`
`
`
`
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`IV. THE LEVEL OF ORDINARY SKILL IN THE ART
`
`The Petition alleges that “[t]he person of ordinary skill in the art at the time
`
`the ’676 application was filed (“POSITA”) would have had a Bachelor’s Degree in
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`Electrical Engineering, Computer Science, or a related subject and one or more years
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`IPR2019-01116
`U.S. Patent 7,016,676
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`of experience working with wireless networks and related standards, and would have
`had an understanding of work being done by companies within the field of wireless
`networks and related standards, including, e.g., systems or protocols for shared
`access of wireless networks by different protocols.” Pet. 19. The Board properly
`notes that the qualifier “or more” as applied to the years of working experience
`expands the level to encompass that of an expert, which is inappropriate for the level
`of “ordinary skill.” Paper No. 8, 18. Further, the Petitioner’s assertion that a person
`of ordinary skill in the art at the time of the invention would have experience
`specifically in “systems or protocols for shared access of wireless networks by
`different protocols” indicates a level of specialization far beyond that of one of
`ordinary skill in the art, without support other than conclusory statements by
`Petitioner’s declarant. See Ex. 1003, ¶¶46-47. Given that Petitioner fails to meet its
`burden of proof in establishing prima facie anticipation or obviousness when
`applying its own definition of a person of ordinary skill in the art (“POSITA”), Patent
`Owner does not offer a competing definition for POSITA.
`
`V.
`
`PETITIONER DOES NOT PROVE THAT ANY CHALLENGED
`CLAIM IS UNPATENTABLE
`“In an [inter partes review], the petitioner has the burden from the onset to
`
`show with particularity why the patent it challenges is unpatentable.” Harmonic Inc.
`
`v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed. Cir. 2016).
`
`While the Board has instituted Inter Partes Review here, as the Court of
`Appeals has stated:
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`[T]here is a significant difference between a petitioner's burden to
`establish a “reasonable likelihood of success” at institution, and
`actually proving invalidity by a preponderance of the evidence at trial.
`Compare 35 U.S.C. § 314(a) (standard for institution of inter partes
`review), with 35 U.S.C. § 316(e) (burden of proving invalidity during
`inter partes review).
`
`Trivascular, Inc. v. Samuels, 812 F.3d 1056, 1068 (Fed. Cir. 2016). As demonstrated
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`herein, Petitioner has failed to meet its burden of proving any proposition of
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`invalidity, as to any claim, by a preponderance of the evidence. 35 U.S.C. §316(e).
`
`The Petition raises the following obviousness challenges under 35 U.S.C.
`§ 103:
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`IPR2019-01116
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`US. Patent 7,016,676
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`1 and 2
`HomeRF1
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`1 and 2
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`HomeRF and HomeRF Tutorial2
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`
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`Home RF and HomeRF Tutorial and
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`HomeRF Liaison Re oort3
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`Lansford“ obviousness
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`A.
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`Claim Construction
`
`Patent Owner submits that construction of the claim term “radio interface
`
`standard” is required here in order to correct the erroneous implicit construction of
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`that term pressed by the Petitioner and adopted by the Board in the Institution
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`Decision. Patent Owner submits that the Board need not construe any other claim
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`term in a particular manner in order to arrive at the conclusion that the Petition is
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`substantively deficient. Wellman, Inc. v. Eastman Chem. Co., 642 F-3d 1355, 1361
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`(Fed. Cir. 2011) (“need only be construed to the extent necessary to resolve the
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`controversy”). However, some of Petitioner’s proposed constructions are addressed
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`below.
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`l EX1006, “HomeRF: Wireless Networking for the Connected Home”, by Kevin J.
`
`Negus et a1.
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`2 EX1008, “HomeRF: Bringing Wireless Connectivity Home”, by Jim Lansford
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`3 EX1009, “HomeRFTM Working Group 3rd Liaison Report”, by Tim Blaney
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`4 EX1012, US. Patent No. 6,937,158
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`1.
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`IPR2019-01116
`U.S. Patent 7,016,676
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`“Stations Which Operate In Accordance With A First Radio
`Interface Standard And/Or A Second Radio Interface
`Standard”
`Patent Owner submits that the Petitioner’s implicit construction of “radio
`interface standard” as encompassing channel-access methods such as TDMA and
`CSMA, which was adopted by the Board for purposes of institution, Paper No. 8, 26
`(“two different interface standards, i.e., TDMA for I-node type devices and CSMA
`for A-node type devices”), is contrary to the plain and ordinary meaning of “radio
`interface standard” as set forth by the intrinsic evidence in the specification. Indeed,
`this construction is contrary to HomeRF, which describes TDMA and CSMA as
`“access mechanisms,” HomeRF, 23: 2:14-16, and not as specifications or protocols,
`a fact which is undisputed by Petitioner. A complete construction of this recitation
`is not necessary to reach the conclusion that the Petition is deficient. However, a
`construction to clarify that “a radio interface standard” constitutes a complete
`specification for a radio interface, and not merely a characteristic of a specification,
`such as a channel-access method, a modulation method, or a coding method, is
`required here.
`The intrinsic evidence makes it clear that the phrase “radio interface standard”
`is a complete radio interface standard, such as IEEE 802.11a or ETSI BRAN
`HiperLAN/2, as distinguished from such characteristics as medium access control
`or channel-access methods, as well as other characteristics such as modulation and
`coding methods. The ‘676 Patent states:
`For this purpose there is provided for so-termed ISM frequency bands
`(Industrial Scientific Medical) that radio systems transmit in the same
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`frequency band in accordance with different radio interface standards.
`An example of this is the US radio system IEEE802.11a and the
`European ETSI BRAN HiperLAN/2.
`
`EX1001, 1: 15-20.5 The ‘676 Patent makes clear the distinction between radio
`interface standards and medium access control techniques, such as TDMA and
`CSMA, stating:
`Radio systems of wideband LANs of the radio interface standards
`ETSI BRAN HiperLAN/2 and IEEE802.11a utilize the same radio
`transmission method, a 64-carrier 30 OFDM method and an adaptive
`modulation and coding. About the same modulation and coding
`methods (Link Adaptation, LA) are defined for the two standards.
`
`The Medium Access Control (MAC) of the two systems is totally
`different. ETSI BRAN HiperLAN/2 utilizes a centrally controlled
`reservation-based method in which a radio station takes over the role
`of a central instance coordinating the radio resources.
`
`…
`
`The IEEE802.11a standard describes a CSMA/CA (Carrier
`Sense Multiple Access/Collision Avoidance) method not based on
`
`
`
` 5
`
` Emphasis added. Unless otherwise stated, any emphasis in quotations in this
`
`Patent Owner Response has been added.
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`10
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`reservations, in which all the radio stations listen in on the medium and
`assume that the channel is unused for a minimum duration (Short
`InterFrame Space, SIFS) before 802.11a-MAC frames, thus user data
`packets, are transmitted if necessary.
`
`EX1001, 1:34-48. Thus, the ‘676 specification makes clear that a “radio interface
`standard” is a complete standard, such as the ETSI BRAN HiperLAN/2 or IEEE
`802.11 standard. Medium access control, such as a centrally controlled reservation-
`based method, which could be based on TDMA, or a CSMA/CA method, are clearly
`among the possible features of such a radio interface standard, but are clearly not
`within the plain and ordinary meaning of the term “radio interface standard.”
`
`Moreover, the ‘676 Patent explicitly distinguishes between the category of
`radio interface standards and modes such as time-division multiplexing, particularly
`using the term “mode” to describe time-division multiplexing while using the term
`radio interface standards in the same sentence:
`For example, it is possible to provide certain predefinable time intervals
`for the use of the first and second radio interface standard and allocate
`the frequency band alternately to the first radio interface standard and
`then to the second radio interface standard in a kind of time-division
`multiplex mode.
`
` EX1001, 2:52-57. It is thus clear that TDMA, or time-division multiplexing, is not
`within the plain and ordinary meaning of “radio interface standard” as used in the
`specification of the ‘676 Patent.
`The ‘676 Patent further reinforces that a “radio interface standard” is a
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`complete standard, such as IEEE802.11a, stating:
`Alternatively, it is possible, for example, that the point
`coordinator provided in accordance with the IEEE802.11a standard
`operates as the central control station and controls the alternate access
`of stations of the first and second radio interface standard to the
`common frequency band. In this advantageous embodiment of the
`invention the point coordinator could for example periodically render
`the common frequency band available to another radio interface
`standard, for example, to the HiperLAN/2 standard.
`
`EX1001, 3:20-28. Still further, the ‘676 Patent makes clear again that IEEE 802.11a
`is an example of a radio interface standard:
`FIG. 2 diagrammatically shows the media access in systems
`working
`in accordance with
`the
`radio
`interface
`standard
`IEEE802.11a.
`
`EX1001, 4:47-49. The ‘676 Patent again reinforces examples of radio interface
`standards:
`
`A first wireless local area network comprises three stations 10,
`11 and 12. These three stations 10, 11 and 12 work in accordance with
`the first radio interface standard A, for example, in accordance with
`the HiperLAN/2 standard.
`
`A second wireless local area network includes four stations 14,
`15, 16 and 17. These four stations 14, 15, 16 and 17 work in accordance
`with the second radio interface standard B, for example, m
`
`12
`
`
`
`accordance with the IEEE802.11a standard.
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`
`EX1001, 5:22-30.
`Indeed, the specification makes clear that the medium access control (MAC)
`of these radio interface standards is a characteristic of the standard, and that they are
`different. EX1001, 1:34-49. Thus, the intrinsic evidence makes clear that the term
`“a radio interface standard” is not met by a characteristic, such as medium access
`control or channel-access methods.
`Still further, the Petitioner has not explicitly sought the construction provided
`in the Institution Decision that TDMA and CSMA are radio interface standards. The
`Petitioner’s proposed claim construction does not include this proposal. As the Court
`of Appeals, the regulations and the Board have previously made clear, it is not the
`role of the Board to serve as an archaeologist of the record to identify a basis for the
`contentions of a party, let alone provide entirely new arguments on behalf of a party.
`Still further, the use of two different schemes, such as asynchronous and
`isochronous, in the same radio interface standard, illustrates the error of construing
`a ”standard” to be a scheme used therein. Indeed, the Bluetooth wireless interface
`standard includes both of these schemes. EX2001, 1:53-55 (“sufficient number and
`duration of quiet periods to allow asynchronous and isochronous BLUETOOTH
`traffic.”); EX2002, 3:14-16; 3:28-31. Notably, to the extent that the Petitioner
`argues that the use of these two schemes established two wireless interface standards
`within the SWAP wireless interface specification discussed in HomeRF, the fact that
`a single radio interface standard, the Bluetooth standard, provides for both
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`asynchronous and isochronous communication, refutes this argument. Moreover,
`Petitioner’s Declarant does not even mention that the use of two different schemes
`in the same wireless interface standard is known, let alone attempt to reconcile
`Bluetooth’s provision for both asynchronous and isochronous communication with
`the position that TDMA and CSMA constitute separate radio interface standards.
`Moreover, the construction of “radio interface standard” as being met by
`TDMA and CSMA would give absurd results. For example, Petitioner’s Declarant
`characterizes the DECT radio interface standard as using TDMA, EX 1004 ¶78, and
`the Bluetooth standard also uses TDMA. EX2002, 3:12-14. The construction of
`“radio interface standard” as being met by TDMA would give the absurd conclusion
`that DECT and Bluetooth are the same radio interface standard, as they both employ
`TDMA. Similarly, any two radio interface standards using CSMA would be
`regarded as the very same radio interface standard under the construction provided
`by the Board. Such an absurd construction is clearly contrary to the plan and
`ordinary meaning of the phrase “radio interface standard.”
`Extrinsic evidence supports the conclusion that CSMA and TDMA are
`algorithms or access schemes that may be employed within radio interface standards,
`but are not themselves radio interface standards. U.S. Patent No. 7,796,573 (“’573
`Patent”) (EX 2003), which is based on a provisional filed in November 2000, states
`that:
`
`[T]he IEEE 802.11 wireless standard…employs a Carrier Sense
`Multiple Access/Collision Avoidance (CSMA/CA) algorithm.
`
`14
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`IPR2019-01116
`U.S. Patent 7,016,676
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`EX2003, 3:10-12. The ‘573 Patent similarly states that CSMA/CA, TDMA, FDMA,
`and CDMA are “access schemes.” EX2003, 4:66-67. Thus, the ‘573 Patent makes
`clear that interface standards, such as the 802.11 wireless interface standard, were
`distinct from algorithms or access schemes such as CSMA/CA or TDMA.
`Accordingly, the implicit construction of “wireless interface standard” as
`sufficiently broad to read on algorithms or channel access schemes such as CSMA
`and TDMA is contrary to the extrinsic evidence also.
`Further, the Petitioner’s Declarant has not provided any statement identifying
`the TDMA and CSMA access schemes as types of “radio interface standard.”
`Indeed, Petitioner’s Declarant quotes HomeRF as characterizing TDMA and
`CSMA/CA as “access mechanisms,” EX1004, ¶82, not as standards, and makes no
`effort to provide a record basis that an access mechanism may also constitute a radio
`interface standard. Thus, there is no record support provided by Petitioner for the
`conclusion that TDMA and CSMA/CA are radio interface standards, as opposed to
`access mechanisms employed in the SWAP specification.
`Accordingly, Patent Owner submits that construing “radio interface standard”
`as defining a complete interface standard, and not individual features, such as access
`mechanisms, including by way of example TDMA and CSMA/CA used by a
`wireless interface standard, is both necessary to a proper determination that
`Petitioner has failed to carry its burden here, and reflects the plan and ordinary
`meaning of the term, consistent with both the intrinsic and extrinsic record.
`
`
`15
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`
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`2.
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`“Respective Duration In Which The Stations Working In
`Accordance With The Second Radio Interface Standard Are
`Allowed To Utilize The Frequency Band”
`Patent Owner submits that the Board need not construe this claim term in
`order to arrive at the conclusion that the Petition is substantively deficient. Wellman,
`Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (“need only be
`construed to the extent necessary to resolve the controversy”).
`3.
`“Renders The Frequency Band Available For Access By The
`Stations Working In Accordance With The Second Radio
`Interface Standard If Stations Working In Accordance With
`The First Radio Interface Standard Do Not Request Access
`To The Frequency Band”
`As the Petition acknowledges, the Petition may not challenge claims on the
`basis of indefiniteness under this proceeding. Pet. 22. Therefore, Patent Owner has
`no reason to address Petitioner’s allegations, and, in any event, the Board, in the
`Institution Decision, has agreed with Patent Owner, stating that “[w]e readily
`understand the phrase.” Paper No. 8, 13.
`For the remaining proposed construction(s) in this section, Patent Owner
`submits that the Board need not construe this claim term in order to arrive at the
`conclusion that the Petition is substantively deficient. Wellman, 642 F.3d at 1361.
`Nonetheless, to the extent Petitioner seeks to improperly limit availability for
`“access” of the frequency band to only “transmitting” within the frequency band (Pet
`23-24), the Board should not adopt Petitioner’s proposed construction that
`improperly seeks to import limitations from the specification. See Vitronics Corp.
`v. Conceptronic, 90 F.3d 1576, 1584-85 (Fed. Cir. 1996). Moreover, Petitioner’s
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`proposed construction is further erroneous because the specification itself makes
`clear the term “access” is not so limiting. “Access” in light of the specification allows
`for both sending and receiving information. See EX1001, 4:5-18 (referring to “times
`at which stations working in accordance with the first radio interface standard to not
`send and do not expect information in accordance with the standard from the first
`station”). Patent Owner notes that the Board properly did not construe this phrase.
`Finally, Patent Owner disagrees with Petitioner that there is no antecedent
`basis for “the stations” in this claim term. Here, “the stations” refers back to the
`previous claim term which recites “stations which operate in accordance with a first
`radio standard and/or a second radio interface standard”. As the Petition points out,
`the previous claim limitation only requires a plurality of stations operating under a
`first and/or second radio interface standard. And here, in this limitation, “the
`stations” refers back to the entire and original set of stations, and then the limitation
`further narrows that set of stations to just the stations “working in accordance to the
`second radio interface standard”. Whether that number of stations is one or more
`than one, there is no issue with antecedent basis.
`4.
`The Steps within the Method of Claims 1 and 2
`The Board, sua sponte, has interpreted claim 1 to require two steps
`
`incorporated into the wherein clause. Paper No. 8, 16. Similarly, the Board has
`
`interpreted claim 2’s wherein clause as setting forth an additional step. Id. at 17-18.
`
`Patent Owner submits that the Board need not construe the wherein clauses of claims
`
`1 and 2 in order to arrive at the conclusion that the Petition is substantively deficient.
`
`17
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`Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (“need
`
`only be construed to the extent necessary to resolve the controversy”).
`
`B. None of HomeRF, HomeRF Tutorial, and HomeRF Liaison
`Report (collectively “the HomeRF references”) Discloses “stations
`which operate in accordance with a first radio interface standard
`and/or a second radio interface standard” (Claim 1) (Grounds 1-3)
`The Petitioner has failed to meet its burden of establishing that any of the
`HomeRF references disclose stations operating under “a first radio interface
`standard and/or a second radio interface standard”, as required by the claim
`language, or subsequent recitations referring to the first and second standards. Rather
`than, as contended by
`the Petition, disclosing stations operating under
`TDMA/DECT-based communications and CSMA/802.11 based communications,
`Pet. 27, HomeRF clearly discloses a single standard that achieved acceptance “by
`reusing major sections of proven RF protocols and then simplifying them where
`appropriate for home usage.” HomeRF, 20, 2:4-7. Thus, rather than incorporating
`stations using separate standards, HomeRF has incorporated portions of existing
`standards and simplified them, such that the stations operate according to the
`“HomeRF Shared Wireless Access Protocol (‘SWAP’)”. HomeRF, 20, 1:34-38. As
`HomeRF only uses portions of existing standards, and modifies those existing
`standards, there is no reason to believe that DECT-compliant devices or 802.11
`compliant devices would operate under the HomeRF system.
`The Institution Decision states that the use of TDMA for I-node type devices
`and CSMA for A-node type devices constitutes the recited two different radio
`
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`interface standards. Paper No. 8, 26. However, as discussed above in the claim
`construction section, neither TDMA nor CSMA is a radio interface standard. Rather,
`TDMA and CSMA are channel-access methods. While a radio interface standard
`must clearly inc
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