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`Filed: May 12, 2020
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________________
`ZTE (USA), INC.,
`PETITIONER,
`V.
`BELL NORTHERN RESEARCH, LLC,
`PATENT OWNER.
`_____________________
`Case No. IPR2019-01365
`U.S. Patent No. 7,039,435
`_____________________
`
`PATENT OWNER’S RESPONSE
`UNDER 37 C.F.R. § 42.120
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`PUBLIC VERSION - REDACTED
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`TABLE OF CONTENTS
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`2.
`
`INTRODUCTION ........................................................................................... 1
`I.
`II. OVERVIEW OF THE ’435 INVENTION ...................................................... 1
`III. LEVEL OF ORDINARY SKILL .................................................................... 1
`IV. CLAIM CONSTRUCTION ............................................................................ 1
`A.
`“position to a communications tower” .................................................. 1
`1.
`The Claim Language and the Specification Support
`Patent Owner’s Construction ...................................................... 2
`Petitioner’s Admissions and the District Court’s Analysis
`Support Patent Owner’s Construction ........................................ 5
`Institution Decision ..................................................................... 7
`3.
`’435 PATENT PROSECUTION HISTORY................................................... 9
`V.
`VI. OVERVIEW OF PRIMARY PRIOR ART REFERENCES ........................ 12
`A.
`Baiker .................................................................................................. 12
`B. Werling ................................................................................................ 13
`C.
`Irvin ..................................................................................................... 14
`D. Myllymäki ........................................................................................... 15
`E.
`Bodin ................................................................................................... 16
`VII. GROUND 1: BAIKER DOES NOT ANTICIPATE ANY
`CHALLENGED CLAIM .............................................................................. 17
`A.
`The Invention Date of the ’435 Patent Antedates Baiker ................... 17
`1.
`The Invention Disclosure Statement and its Associated
`Metadata Corroborate that the Inventors Conceived of the
`Claimed Invention by, or shortly after, February 27, 2001 ...... 17
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`2.
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`3.
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`B.
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`C.
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`Corroborated Evidence and Testimony Establish the
`Inventors to the ’435 Patent Diligently Constructively
`Reduced to Practice their Invention between Conception
`and their September 28, 2001 Filing Date ................................ 25
`Baiker Fails to Disclose the Claimed “Power Circuit that
`Provides a Network Adjusted Transmit Power Level as a
`Function of a Position to a Communication Tower” Limitation. ....... 27
`1.
`Baiker’s RF amplifier is not the claimed power circuit ............ 29
`2.
`Baiker contains no teaching of producing a power level
`adjusted by the network. ........................................................... 32
`Patent Owner’s argument aligns with the prosecution
`history ........................................................................................ 33
`Petitioner impermissibly mixes components ............................ 34
`4.
`Baiker Fails to Disclose the Claimed “Power Governing
`Subsystem that…Determines A Transmit Power Level…Based
`on” the Network Adjusted Transmit Power Level and the
`Proximity Transmit Power Level. ....................................................... 35
`Baiker Does Not Anticipate Dependent Claims 2 and 3 ..................... 37
`D.
`VIII. GROUND 2: THE ADDITION OF WERLING DOES NOT CURE
`BAIKER’S DEFICIENCIES REGARDING CLAIM 1 ................................. 38
`A. Werling Does Not Supply the Limitations Missing from Baiker. ...... 38
`B.
`Petitioner fails to establish a motivation to combine Baiker and
`Werling ................................................................................................ 40
`IX. GROUND 3: IRVIN DOES NOT ANTICIPATE THE
`CHALLENGED CLAIMS ............................................................................ 47
`A.
`Irvin Fails to Disclose the Claimed “Power Circuit that
`Provides a Network Adjusted Transmit Power Level…”
`Limitation. ........................................................................................... 47
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`B.
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`B.
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`Irvin Fails to Disclose “A Transmit Power…Based on [the]
`Network Adjusted Power Level and [the] Proximity Transmit
`Power Level.” ...................................................................................... 50
`X. GROUND 4 ................................................................................................... 51
`A.
`The Combination of Irvin and Myllymäki Fails to Remedy the
`Deficiencies of Irvin ............................................................................ 51
`Petitioner Provides No Reasonable Motivation to Combine
`Irvin and Myllymäki ............................................................................ 52
`XI. GROUND 5: PETITIONER FAILS TO SHOW THE
`COMBINATION OF BODIN AND IRVIN TEACHES EVERY
`ELEMENT OF THE CHALLENGED CLAIMS AND DOES NOT
`SHOW SUFFICIENT MOTIVATION TO COMBINE ............................... 56
`A.
`The Combination of Irvin and Bodin Does Not Supply the
`Missing Disclosures of Irvin ............................................................... 57
`Petitioner Presents No Reasonable Evidence that a POSITA
`Would Be Motivated to Combine Irvin with Bodin ........................... 58
`XII. GROUND 6 FAILS FOR THE SAME REASONS AS GROUND 6 .......... 62
`XIII. SECONDARY CONSIDERATIONS CONFIRM THAT THE ’435
`PATENT IS NOT OBVIOUS ....................................................................... 62
`A. Widespread Industry Adoption ........................................................... 63
`B.
`Licenses ............................................................................................... 64
`XIV. CONCLUSION .............................................................................................. 66
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`B.
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`iii
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`TABLE OF AUTHORITIES
`
`Cases 
`
`ActiveVideo Networks, Inc. v. Verizon Comm’ns, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012) ............................................................................ 41
`Align Tech., Inc. v. ClearCorrect Operating, LLC,
`745 F. App’x 361 (Fed. Cir. 2018) ...................................................................... 46
`Apple Inc. v. Int’l Trade Comm’n,
`725 F.3d 1356 (Fed. Cir. 2013) ............................................................................ 63
`Becton, Dickinson & Co. v. Tyco Healthcare Grp., LP,
`616 F.3d 1249 (Fed. Cir. 2010) ............................................................................ 51
`Belden Inc. v. Berk–Tek LLC,
`805 F.3d 1064 (Fed. Cir. 2015) ............................................................................ 61
`Brown v. Barbacid,
`436 F.3d 1376 (Fed. Cir. 2006) ............................................................................ 25
`Cisco Systems Inc. v. Egenera, Inc.,
`IPR2017-01342, Paper 10 (PTAB Nov. 10, 2017) .............................................. 51
`Coleman v. Dines,
`754 F.2d 353 (Fed. Cir. 1985) .............................................................................. 24
`Connell v. Sears, Roebuck & Co.,
`722 F.2d 1542 (Fed. Cir. 1983) ............................................................................ 35
`Eibel Process Co. v. Minn. & Ont. Paper Co.,
`261 U.S. 45 (1923) ............................................................................................... 64
`Felix v. Am. Honda Motor Co.,
`562 F.3d 1167 (Fed. Cir. 2009) .............................................................................. 8
`Hologic, Inc. v. Smith & Nephew, Inc.,
`884 F.3d 1357 (Fed. Cir. 2018) ............................................................................ 21
`In re Fritch,
`972 F.2d 1260 (Fed. Cir. 1992) ............................................................................ 49
`
`
`
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`In re NTP, Inc.,
`654 F.3d 1279 (Fed. Cir. 2011) .............................................................................. 8
`In re Nuvasive, Inc.,
`842 F.3d 1376 (Fed. Cir. 2016) ............................................................................ 41
`Intervet Am., Inc. v. Kee-Vet Labs., Inc.,
`887 F.2d 1050 (Fed. Cir. 1989) .............................................................................. 8
`Johns Manville Corp. v. Knauf Insulation, Inc.,
`IPR2018-00827, Paper 9 (PTAB Oct. 16, 2018) ................................................. 49
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ...................................................................................... 55, 61
`Leo Pharm. Prods., Ltd., v. Rea,
`726 F.3d 1346 (Fed. Cir. 2013) ............................................................................ 54
`Merck & Co. v. Teva Pharm. USA, Inc.,
`395 F.3d 1364 (Fed. Cir. 2005) ............................................................................ 28
`Metalcraft of Mayville, Inc. v. The Toro Co.,
`848 F.3d 1358 (Fed. Cir. 2017) ............................................................... 41, 58, 60
`
`Minn. Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc.,
`976 F.2d 1559 (Fed. Cir. 1992) ............................................................................ 65
`Monsanto Co. v. Mycogen Plant Sci., Inc.,
`261 F.3d 1356 (Fed. Cir. 2001) ............................................................................ 25
`Net MoneyIN, Inc. v. VeriSign, Inc.,
`545 F.3d 1359 (Fed. Cir. 2008) ..................................................................... 32, 35
`Nintendo Co. Ltd. et al. v. Genuine Enabling Tech. LLC,
`IPR2018-00542, Paper 7 (PTAB Aug. 6, 2018) .................................................. 60
`Norman International, Inc. v. Andrew J. Toti Testamentary Trust,
`IPR2014-00283, Paper 56 (PTAB Jan. 25, 2016) ................................................ 43
`Orexo AB v. Actavis Elizabeth LLC,
`903 F.3d 1265 (Fed. Cir. 2018) ............................................................................ 43
`
`
`
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`Personal Web Techs. v. Apple, Inc.,
`848 F.3d 987 (Fed. Cir. 2017) .............................................................................. 46
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ....................................................................... 5, 28
`Power Mosfet Techs., L.L.C. v. Siemens AG,
`378 F.3d 1396 (Fed. Cir. 2004) ............................................................................ 29
`RCA Corp. v. Data Gen. Corp.,
`701 F. Supp. 456 (D. Del. 1988) .......................................................................... 66
`
`Reactive Surfaces Ltd., LLP, v. Toyota Motor Corp.,
`IPR2018-01194, Paper 11 (PTAB Dec. 10, 2018) .............................................. 48
`Ruiz v. A.B. Chance Co.,
`357 F.3d 1270 (Fed. Cir. 2004) ............................................................................ 54
`SmithKline Diagnostics, Inc. v. Helena Labs. Corp.,
`859 F.2d 878 (Fed. Cir. 1988) .............................................................................. 49
`Star Sci., Inc. v. R.J. Reynolds Tobacco Co.,
`655 F.3d 1364 (Fed. Cir. 2011) ............................................................................ 66
`
`Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA,
`Inc.,
`699 F. 3d 1340 (Fed. Cir. 2012). ................................................................... 62, 65
`Tyco Healthcare Grp. v. Ethicon Endo-Surgery, Inc.,
`774 F.3d 968 (Fed. Cir. 2014) .............................................................................. 25
`Unigene Labs., Inc. v. Apotex, Inc.,
`655 F.3d 1352 (Fed. Cir. 2011) ............................................................................ 56
`WBIP, LLC v. Kohler Co.,
`829 F.3d 1317 (Fed. Cir. 2016) ............................................................................ 62
`Statutes 
`35 U.S.C. § 102 ........................................................................................................ 32
`
`
`
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`I.
`
`INTRODUCTION
`Patent Owner submits this Response, which is timely filed pursuant to the
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`parties’ Joint Scheduling Order. The Board should deny the Petition and confirm
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`the patentability of the challenged claims for the reasons set forth below.
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`II. OVERVIEW OF THE ’435 INVENTION
`Patent Owner does not dispute the summary of the invention contained in
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`the Institution Decision. (See Paper 13, 2-3.)
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`III. LEVEL OF ORDINARY SKILL
`A person of ordinary skill in the art (“POSITA”) in the relevant time frame
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`would have had at least a bachelor’s degree in electrical engineering, computer
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`engineering, computer science or similar field, and at least two to three years of
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`experience in the field of wireless or radio communication devices. Alternately, the
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`POSITA could have had advanced training in these technical areas in lieu of
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`industrial experience. A POSITA also would have been familiar with cellular
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`telephone technology at least at the level of an ordinary user of these devices as
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`they were commercially available at the time. (Ex. 2022, ¶¶24-25.)
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`IV. CLAIM CONSTRUCTION
`A.
`“position to a communications tower”
`Petitioner provides two alternate constructions. (Pet., 10-13). Petitioner’s
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`first construction mirrors the construction proposed by Patent Owner in the related
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`litigation. (Ex. 1020, 63-71). Petitioner’s alternative proposed construction mirrors
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`Petitioner’s proposed construction in the related litigation, calling for plain and
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`ordinary meaning, which is restated in the alternative to mean; “position of the
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`portable cell phone relative to a communications tower.” (Ex. 1019, 47-51). Patent
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`Owner agrees with Petitioner’s first construction: “position to a communications
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`tower” means “transmit signal strength of a communications path between the
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`communications tower and the portable cell phone[,]” which was accepted by the
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`Board in the Institution Decision. (See Paper 13, 17.)
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`1.
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`The Claim Language and the Specification Support Patent
`Owner’s Construction
`Claim 1 of the ’435 Patent states:1
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`
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`1. A portable cell phone, comprising:
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`a power circuit that provides a network adjusted
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`transmit power level as a function of a position to a
`communications tower; and
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`a proximity regulation system, including:
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`a location sensing subsystem that determines a
`location of said portable cell phone proximate a user;
`and
`a power governing subsystem, coupled to said
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`location sensing subsystem,
`that determines a
`proximity transmit power level of said portable cell
`phone based on said location and determines a
`transmit power level for said portable cell phone based
`on said network adjusted transmit power level and said
`proximity transmit power level.
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`1 Unless noted otherwise, all bolding and emphasis are Patent Owner’s.
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`2
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`In this claim, the “network adjusted transmit power level” is described as a
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`function of a “position to a communications tower.” Accordingly, any elaboration
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`within the specification on the function that determines the network adjusted
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`transmit power level is important to construing this term.
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`The specification teaches:
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`The network adjusted transmit power level is based on
`a transmit signal strength of a communications path
`between the communications tower 110 and the
`portable cell phone 120.
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`(Ex. 1001, 3:39-42.) This statement parallels the term from claim 1; namely:
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`“network adjusted transmit power level as a function of a position to a
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`communications tower.” Both phrases reference the same term: “network adjusted
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`transmit power level.” The specification’s statement that this term is “based on a
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`transmit signal strength of a communications path between the communications
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`tower 110 and the portable cell phone 120,” would cause a POSITA to understand
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`that claim 1’s “network adjusted transmit power level as a function of a position to
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`a communications tower,” means “network adjusted transmit power level as a
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`function of a transmit signal strength of a communications path between the
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`communications tower and the portable cell phone.” (Ex. 2022, ¶¶38-42.) In other
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`words, the use of “communications path” does not refer simply to straight-line
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`distance, but rather the path between the cell phone and the communications tower,
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`including any obstructions, terrain ground characteristics, etc. that affect signal
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`strength. For example, the signal strength between a cell phone and
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`communications tower will be more diminished if there is a ten-foot thick wall of
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`concrete between the phone and the communications tower, than if there were no
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`wall between the cell phone and the communications tower.
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`The specification also confirms that “network adjusted transmit power level”
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`is determined by the communications path between the portable cell phone and the
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`communications tower:
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`After adjusting the transmit power level, the portable
`cell phone then transmits at a reduced level in a step
`350. In one embodiment, the adjusted transmit power
`level may not exceed the network adjusted transmit
`power level as determined by the communications
`path between the portable cell phone and the
`communications tower..2
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`(Ex. 1001 7:21-26).
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`This excerpt demonstrates the importance of the communication path
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`between the cell phone and the communications tower, not pure distance. The
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`transmission signal strength necessary for a signal to travel between a tower and
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`cell phone is determined by the communications path along which these signals
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`must travel (taking into account, for example, whether there are natural or man-
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`2 All emphasis added by Patent Owner unless noted otherwise.
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`made obstructions in the communications path). (See, e.g., Ex. 2003, 21-22,)3 ((Ex.
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`2022, ¶¶43-45.)
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`Finally, the specification’s description of the network adjusted transmit
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`power level function also supports Patent Owner’s construction:
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`In one embodiment, the network adjusted transmit
`power level may equal the maximum transmit power
`level of a portable cell phone. In other embodiments,
`the network adjusted transmit power level may be
`a reduction from the maximum transmit power level
`due to the communications path between the
`communications tower and the portable cell
`phone.
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`(Ex. 1001 at 7:34-40). Again, the role of the communications path is emphasized
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`as it relates to determinations of signal strength.
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`Each of these instances support the first construction proposed by Petitioner.
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`See Phillips v. AWH Corp., 415 F.3d 1303, 1320-21 (Fed. Cir. 2005) (“[A] claim
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`term may be clearly redefined without an explicit statement of redefinition” and
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`“[e]ven when guidance is not provided in explicit definitional format, the
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`specification may define claim terms by implication such that the meaning may be
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`found in or ascertained by a reading of the patent documents.”). Petitioner’s
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`Admissions and the District Court’s Analysis Support Patent Owner’s Construction
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`3 This book is incorporated by reference into the specification, and is intrinsic
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`evidence. (Ex. 1001, 3:9-13.)
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` Both Petitioner’s representative and the Court confirmed Patent Owner’s
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`interpretation at the claim construction hearing in the District Court litigation.
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`Although the Court ultimately determined that the phrase “position to a
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`communications tower” should be interpreted by its plain and ordinary meaning,
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`such meaning was understood both by the District Court and Petitioner as
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`consistent with Patent Owner’s proposal:
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`THE COURT: Again, I don't know that someone wouldn't
`understand that when you're talking about the position of the tower,
`you're not only talking about distance but the path, the line of
`communications.
`MS. ZHANG: Right.
`THE COURT: I don't think that it needs more definition.
`MS. ZHANG: No. We absolutely agree….
`*****
`THE COURT: All right. Then to the extent that this needs any
`further clarification, the Court will adopt the construction that: The
`position to the communications tower is the equivalent of the
`communications path between the communications tower and the
`portable cell phone device.
`MS. ZHANG: Your Honor, if we can just clarify? When you
`say “communications path,” how much are you sort of going into the
`air and everything?
`THE COURT: What you just showed me. There is a signal
`that's coming from this tower or going to this tower that has a path to
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`the device. That path and the strength of the signal is determined
`by how that gets there, and whether that has to go around a
`mountain or through a building or a distance, that's the path. And
`the strength of the phone requiring to read that signal is going to
`be determined as to what's obstructing getting the signal from the
`tower.
`MS. ZHANG: Right.
`THE COURT: Regardless of -- it's not just a question of
`distance. There are other things that determine that and I think
`that was known in the art at the time.
`MS. ZHANG: Right.
`
`*****
`THE COURT: I'm not going to construe the claim. I think the
`claim would be clear to a person of skill in the art, and I think any
`further construction would just add ambiguity to something that seems
`clear to the Court.
`The plaintiff's proposed construction is denied. Plain and
`ordinary meaning, which the Court construes as: The position of the
`tower, the relationship to the phone to the tower in all its aspects,
`whether it's distance or obstructions or whatever. So good. Okay.
`(Ex. 2004, CC Hearing Transcript 51-53, 57; Ex. 2005, 5-6).
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`2.
`Institution Decision
`The Institution Decision states the phrase “encompasses” Petitioner’s first
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`proposed construction. (Paper 13, 17.) However, the purpose of claim construction
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`is to “determine the ordinary and customary meaning of undefined claim terms as
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`understood by a person of ordinary skill in the art at the time of the
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`invention….”Felix v. Am. Honda Motor Co., 562 F.3d 1167, 1177 (Fed. Cir.
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`2009). The Institution Decision does not provide a specific construction to guide
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`these proceedings. This is especially problematic given the Institution Decision
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`states that the disputed phrase “may also encompass” how Petitioner applies its
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`second proposed construction. (Paper 13, 18.) The Federal Circuit has indicated
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`that claim construction must be applied consistently. See, cf., In re NTP, Inc., 654
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`F.3d 1279, 1294 (Fed. Cir. 2011) (“We agree that it would be improper to apply
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`one claim construction to evidence of date of invention and a different one in
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`assessing the prior art references.”); Intervet Am., Inc. v. Kee-Vet Labs., Inc., 887
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`F.2d 1050, 1053 (Fed. Cir. 1989) (“We fully subscribe to the proposition that
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`claims must be given the same construction when considering infringement as
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`when considering validity.”). The District Court correctly recognized that “position
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`to a communications tower” would be understood by a POSITA as accounting for
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`obstructions between the phone and the tower, not simply distance alone, and that
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`construction must be consistently applied to all prior art references. As such,
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`Petitioner’s second proposed construction, which seeks to ignore any obstructions
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`and rely purely on physical distance, cannot stand, and any Grounds relying on the
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`second construction should be denied.
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`V.
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`’435 PATENT PROSECUTION HISTORY
`In a first Office Action mailed on August 13, 2004, the Patent Office
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`Examiner rejected pending Claim 19 (which corresponds to Claim 1 of the ’435
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`Patent), based on an obviousness combination involving U.S. 6,456,856
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`(“Werling”) and U.S. 6,498,924 (“Vogel”). In connection with the “network
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`adjusted transmit power level as a function of a position to a communications
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`tower” limitation in then claim 19, the examiner stated:
`
`It should be noticed that Werling fails to clearly teach the feature of
`providing a network adjusted transmit power level as a function of a
`position to a communications tower. However, Vogel teaches such
`limitations in column 1, lines 26-37 for the purpose of reducing the
`overall interference level.
`
`
`(Ex. 1002, 84.) The portion of the Vogel reference relied upon by the examiner
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`related to measuring distance between a mobile station and a base station, and
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`using this knowledge to control transmission power of the mobile station as a
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`function of distance between it and the base station to reduce interference levels:
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`in a mobile radio communications system of the cellular type (also
`such as the above-mentioned GSM), such knowledge can be used for
`the purpose of controlling the transmission power of the mobile
`station as a function of the distance between it and the base station so
`as to reduce the overall interference level in the system, or else so as
`to locate the mobile station, e.g. by combining the result of such a
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`PUBLIC VERSION - REDACTED
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`measurement of the distance between the mobile station and a base
`station with the results of measurements of the distances between said
`mobile station and other base stations.
`
`(Ex. 2006 (U.S. 6,498,924 (“Vogel”) at 1:10-37; Ex. 1002, 84-85)).
`
`
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`The applicant, in a response dated November 18, 2004, argued that the
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`Vogel reference did not disclose “a power circuit that provides a network adjusted
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`transmit power level as a function of a position to a communications tower.” While
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`applicant acknowledged that Vogel taught that such distance measurements could
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`be used for various purposes, applicant separately noted that Vogel did not teach or
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`suggest the use of such distance measurements to specifically provide a transmit
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`power level:
`
`Vogel provides mobile radio communications systems and an
`apparatus for measuring the distance or the propagation time between
`a mobile station and a base station in such a system. (See column 2,
`lines 15-32.) Vogel provides no teaching or suggestion, however, of a
`power circuit that provides a network adjusted transmit power level as
`a function of a position to a communications tower. Instead, Vogel is
`directed to improving the accuracy of determining the distance and
`propagation. (See column 2, lines 1-14.) Vogel does teach in the
`background that the distance and propagation measurements may be
`used for various purposes. Vogel provides no teaching or suggestion,
`however, that the purpose may be for providing a power level for
`transmitting.
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`(Ex. 1002, 73.) The patent examiner agreed and withdrew the rejection regarding
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`Claim 19, and allowed Claims 19-27, which issued as Claims 1-9. (See Ex. 1002,
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`27.)
`
`
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`After the November 18, 2004 response, and approximately two and one-half
`
`months prior to the next Office Action, Applicant submitted an Information
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`Disclosure Statement (IDS) that the Patent Office received May 24, 2005 (Ex.
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`1002 at 30) that disclosed and provided only a single reference, Published
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`International Application WO 02/05433 A2 to Irvin, which Petitioner presently
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`relies upon for Grounds 3-6. (Ex. 1006).
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`
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`The Patent Office examined the submitted Irvin reference (Ex. 1006) on July
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`30, 2005. (Ex. 1002 (IDS Form signed by Examiner showing consideration of Irvin
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`reference on July 30, 2005) at 30.) After reviewing it, the Examiner issued an
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`Office Action mailed August 8, 2005, allowing the claims that issued as Claims 1-
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`9 of the ’435 Patent. (Ex. 1002, 27.) The Office Action provided the following
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`reasons for allowance:
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`
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`(Id. (italics original).) This Allowance recognizes that Irvin does not teach key
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`limitations in the challenged claims.
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`VI. OVERVIEW OF PRIMARY PRIOR ART REFERENCES
`A. Baiker
`Baiker, Ex. 1016 and Ex. 1004 (Petitioner’s certified translation)
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`corresponds to a German language European Patent Application with the
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`publication number EP 1091498, dated April 11, 2001.
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`Baiker relates to “a hand-held radio with a listening/speaking device (4/5)
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`comprising a RF transmitter (10/6) and a sensor (7) for measuring a distance
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`between the hand-held radio and a body part of a user. It includes a circuit (15) for
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`controlling the power of the RF transmitter (10/6) depending on the measured
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`distance provided. The circuit (15) is designed to limit the power of the RF
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`transmitter (10/6) to a power that is reduced from the maximum power when a
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`predetermined distance value is not reached.” (Ex. 1004, 1.)
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`Baiker does not use a power circuit that provides a network adjusted power
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`level. Instead, it discloses an RF amplifier that merely receives information from
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`the base station regarding signal quality. (Ex. 1004, (28), (31)).
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`B. Werling
`Werling was identified and relied upon extensively during the prosecution of
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`the ’435 Patent. The Examiner relied on Werling for obviousness rejections. (See,
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`e.g., Ex. 1002, 84-85.)
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`Werling relates to a radio communication apparatus that, “includes a
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`transceiver coupled to an antenna structure with many directional antennas that
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`form a radiation pattern. The antenna structure gives greater importance to certain
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`directions of transmission. A power regulation device is controlled by a control
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`element for modifying the radiation pattern. The control element includes switches
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`for selectively activating/deactivating the directional antennas to modify the
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`radiation pattern. A proximity detection device measures at least one proximity
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`parameter and feeds the control element with a proximity indication for controlling
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`the power regulation device to reduce the radiation pattern in the direction of the
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`radio communication apparatus user. The proximity detection device includes a
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`humidity and/or a temperature detector.” (Ex. 1005, (Abstract).)
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`Werling does not disclose a “network adjusted transmit power level as a
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`function of a position to a communications tower,” which the Examiner
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`acknowledged during prosecution of the ’435 Patent. (Ex. 1002, 84-85.)
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`C.
`Irvin
`Irvin relates to: “A mobile terminal (10) used in a wireless communication
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`system is operable to limit transmitter power if proximate a human body. The
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`mobile terminal includes a housing (11). A transmitter (18) in the housing is
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`connected to an antenna (12). The transmitter has a power control loop controlling
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`transmitter power. A detector (38) detects if the housing is proximate a human
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`body. A control (22) is operatively connected to the transmitter power control loop
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`and to the detector, the control limiting transmitter power if the detector detects
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`that the housing is proximate a human body.” (Ex. 1006, Abstract.)
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`Irvin, which was presented to the Examiner, does not disclose “a power
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`circuit that provides a network adjusted transmit power level as a function of a
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`position to a communications tower,” or “a power governing subsystem, coupled to
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`said location sensing subsystem, that determines a proximity transmit power level
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`of said portable cell phone based on said location and determines a transmit power
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`level for said portable cell phone based on said network adjusted transmit power
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`level and said proximity transmit power level.”
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`D. Myllymäki
`Myllymäki describes itself as relating to a portable mobile communication
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`device or system that, “measures the power transmitted by the mobile
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`communication device and the reflected power returning from the antenna. From
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`these, the system calculates various parameters, for example, the short-term
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`average value, the cumulative sum of transmitted power used during a call and the
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`proportion of power reflected back. The user may set the limit values required for
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`these parameters, and the system will issue an alarm when these are exceeded. If