* Exhibit 1003 is a verbatim copy of the Declaration of Jonathan Wells
`submitted on behalf of Petitioner Huawei in support of their Petition for Inter
`Partes Review of U.S. Patent No. 7,039,435 in IPR2019-01186.
`
`Petitioner ZTE (USA) Inc. concurrently submits this exhibit in its true and
`original form, without changes or substantive modifications of any kind, with
`this petition for Inter Partes Review in IPR2019-01365.
`
`ZTE, Exhibit 1003
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`In re Patent of: McDowell et al.
`U.S. Patent No.:
`7,039,435
`Issue Date:
`May 2, 2006
`Appl. Serial No.: 09/967,140
`Filing Date:
`September 28, 2001
`Title:
`PROXIMITY REGULATION SYSTEM FOR USE WITH A
`PORTABLE CELL PHONE AND A METHOD OF OPERATION
`THEREOF
`
`Attorney Docket No.: 35548-0101IP1
`
`DECLARATION OF JONATHAN WELLS, Ph.D.
`
`1
`
`HUAWEI 1003
`
`ZTE, Exhibit 1003
`
`

`

`TABLE OF CONTENTS
`ASSIGNMENT ................................................................................................. 3
`
`I.
`
`II. QUALIFICATIONS ......................................................................................... 3
`
`III. LEGAL PRINCIPLES ...................................................................................... 7
`
`A. Anticipation ................................................................................................... 8
`
`B. Obviousness ................................................................................................... 8
`
`C.
`
`Claim Construction ...................................................................................... 10
`
`IV. PERSON OF ORDINARY SKILL IN THE ART ......................................... 11
`
`V. MATERIALS CONSIDERED ....................................................................... 12
`
`VI. BACKGROUND OF THE ’435 PATENT ..................................................... 15
`
`A.
`
`B.
`
`Subject Matter Overview............................................................................. 15
`
`File History of the ’435 Patent .................................................................... 17
`
`VII. INTERPRETATIONS OF THE ’435 PATENT CLAIMS AT ISSUE .......... 19
`
`VIII. OVERVIEW OF CONCLUSIONS FORMED AND PRIOR ART
`REFERENCES................................................................................................ 21
`
`IX. ANALYSIS OF BAIKER ............................................................................... 22
`
`X. ANALYSIS OF BAIKER IN VIEW OF WERLING .................................... 38
`
`XI. ANALYSIS OF IRVIN ................................................................................... 51
`
`XII. ANALYSIS OF IRVIN AND MYLLYMÄKI ............................................... 68
`
`XIII. ANALYSIS OF BODIN AND IRVIN ........................................................... 79
`
`XIV. ANALYSIS OF BODIN, IRVIN, AND MYLLYMÄKI ............................... 89
`
`XV. ADDITIONAL REMARKS ........................................................................... 92
`
`2
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`ZTE, Exhibit 1003
`
`

`

`
`
`I, Jonathan Wells, Ph.D, of Pleasanton, California, declare that:
`
`I.
`
`ASSIGNMENT
`
`I have been retained as a technical expert by counsel on behalf of
`
`Huawei Technologies Co., Ltd. (“Huawei” or “Petitioner”). I understand that
`
`Huawei is requesting that the Patent Trial and Appeal Board (“PTAB” or “Board”)
`
`institute an inter partes review (“IPR”) proceeding of U.S. Patent No. 7,039,435
`
`(“the ’435 patent”) (EX1001).
`
`
`
`I have been asked to provide my independent analysis of the ’435
`
`patent in light of the prior art publications cited below.
`
`
`
`I am not, and never have been, an employee of Huawei. I received no
`
`compensation for this declaration beyond my normal hourly compensation based
`
`on my time actually spent analyzing the ’435 patent, the prior art publications cited
`
`below, and the issues related thereto, and I will not receive any added
`
`compensation based on the outcome of any IPR or other proceeding involving
`
`the ’435 patent.
`
`II. QUALIFICATIONS
`
`I received a B.Sc. in Physics with Physical Electronics, awarded with
`
`first class honors, from the University of Bath in Bath, United Kingdom, in 1987.
`
`
`
`3
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`

`

`In 1991, I earned by Ph.D., also from the University of Bath. I earned my M.B.A.,
`
`awarded with distinction, from Massey University in New Zealand, in 1998.
`
`
`
`I have over 30 years of wireless communications experience in areas
`
`including cellular technologies, wireless devices, network infrastructure, and
`
`wireless rules and regulations. I have written a textbook and multiple industry
`
`reports and journal/conference papers which focus on wireless communications
`
`systems. For example, I am the author of “Multi-Gigabit Microwave and
`
`Millimeter-Wave Wireless Communications,” published by Artech House in 2010.
`
`I have also authored four comprehensive industry reports on cellular connectivity
`
`for Mobile Experts. I have lectured as part of undergraduate programs at
`
`University of California, Berkeley, Carnegie Mellon University, and University of
`
`Bath, and have given over two dozen lectures and conference presentations on
`
`topics germane to wireless communications. I am also a listed inventor of several
`
`patents, and am an author of over 40 academic and commercial publications and
`
`presentations.
`
`
`
`I began my career in 1985, as an Engineer for Plessey Research,
`
`Caswell, United Kingdom, developing high-speed fiber optic transmitter/receiver
`
`devices. In 1987, I worked at British Aerospace, Filton, Bristol, United Kingdom,
`
`designing and fabricating novel mixer devices, to support my Ph.D. research. Later
`
`in 1990, as a Post-Doctoral Research Officer for University of Bath, I designed and
`
`4
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`ZTE, Exhibit 1003
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`

`

`fabricated novel quantum amplifiers in a clean room environment and developed
`
`computer models to predict semiconductor device performance.
`
`
`
`In 1993, I joined Matra Marconi Space, Portsmouth, United Kingdom,
`
`as a Senior Software Engineer and developed GaAs MMIC mixer and MIC
`
`transmitter board for two satellite payloads and performed theoretical analysis and
`
`modeling of low noise VCOs.
`
`
`
`From 1994 to 1998, I worked for MAS Technology (now Aviat
`
`Networks), Wellington, New Zealand, first as Senior RF Design Engineer and later
`
`as RF Group Manager. I was responsible for RF hardware development for cellular
`
`and telecommunications applications; developed three generations of wireless
`
`transmission, switching, and multiplexing products; designed and sustained
`
`responsibility for satellite ground station terminals; and was responsible for
`
`company’s European regulatory approvals.
`
`
`
`In 1998, I joined Adaptive Broadband (now GE Digital Energy),
`
`Rochester, New York, first as Engineering Group Leader and later as Director
`
`Wideband Products. I was responsible for the Terrestrial Infrastructure Group,
`
`providing telecommunications products for cellular and private network
`
`applications; managed P&L responsibility for $4M wireless division; and was
`
`responsible for the development of a family of digital radios and associated
`
`switching/multiplexing equipment.
`
`
`
`5
`
`ZTE, Exhibit 1003
`
`

`

` From 2000 to 2004, I worked for Stratex Networks (now Aviat
`
`Networks), San Jose, California, as Director Product Development. I was
`
`responsible for global product development of high-end digital microwave radios
`
`primarily for cellular backhaul applications; led RF/microwave development team
`
`of 35 engineers based in two continents; performed technical leadership of flagship
`
`Eclipse product, shipping over 250,000 units; and was responsible for technical
`
`management of overseas manufacturing subcontractors.
`
`
`
`In 2005, I joined GigaBeam Corporation, Herndon, Virginia, as
`
`Director Product Management and Global Regulatory Affairs. I was responsible
`
`for product strategy for industry-transforming high data rate wireless product;
`
`initiated market development in over 40 countries including in Europe, Canada,
`
`Caribbean, Latin America, the Middle East, and Asia; and participated and drove
`
`standard development in FCC, CEPT, and ETSI technical meetings.
`
` Since 2007, I have been an independent consultant with AJIS
`
`Consulting, where I provide independent technical consulting on wireless
`
`communications and emerging wireless fields. The services I provide include:
`
`acting as a technical expert support of 2G, 3G, 4G, and 5G cellular and wireless
`
`patent litigation; providing analysis of cellular and mobile wireless patents and
`
`infringing equipment; providing cellular and wireless technology technical and
`
`industry analysis for companies, analysts, and investment institutions, and
`
`
`
`6
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`

`

`researching and publication of analyst reports; providing wireless product
`
`development and marketing strategies; providing specialized technical workshops
`
`on various wireless technologies, including cellular networks, mm-wave radios,
`
`security sensors, and short range radios; and providing specialized global
`
`regulatory tasks and product approvals.
`
` My curriculum vitae, attached to this declaration as Appendix A, sets
`
`forth details of my background and relevant experience. My CV includes a listing
`
`of cases for which I have provided expert testimony over the last four years and a
`
`complete list of publications I have authored.
`
` Based on my experience and education, I believe that I am qualified to
`
`opine as to the knowledge and level of skill of one of ordinary skill in the art at the
`
`time of the alleged invention of the ’435 patent (which I further describe below)
`
`and what such a person would have understood at that time, and the state of the art
`
`during that time. Based on my experiences, I understand and know of the
`
`capabilities of persons of ordinary skill in this field during the late 1990s and early
`
`2000s and specifically during the time of the alleged invention of the ’435 patent.
`
`Indeed, I taught, participated in organizations, and worked closely with many such
`
`persons in the field during that time frame.
`
`III. LEGAL PRINCIPLES
`
`
`
`7
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`ZTE, Exhibit 1003
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`

`

`
`
`In forming my analysis and conclusions expressed in this declaration,
`
`I have applied the legal principles described in the following paragraphs, which
`
`were provided to me by counsel for the Petitioner.
`
`A.
`
`Anticipation
`I have been informed that a patent claim is invalid as “anticipated” if
`
`each and every element of a claim, as properly construed, is found either explicitly
`
`or inherently in a single prior art reference. Under the principles of inherency, I
`
`understand that if the prior art necessarily functions in accordance with, or includes
`
`the claimed limitations, it anticipates.
`
`
`
`I have been informed that a claim is invalid if the claimed invention
`
`was known or used by others in the U.S., or was patented or published anywhere,
`
`before the Applicant’s invention. I further have been informed that a claim is
`
`invalid if the invention was patented or published anywhere, or was in public use,
`
`on sale, or offered for sale in this country, more than one year prior to the filing
`
`date of the patent application (critical date). I have also been informed that a claim
`
`is invalid if an invention described by that claim was described in a U.S. patent
`
`granted on an application for a patent (or in a published application for a U.S.
`
`patent) that was filed by another in the U.S. before the date of invention for such a
`
`claim.
`
`B.
`
`Obviousness
`
`8
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`ZTE, Exhibit 1003
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`

`

`
`
`I have been informed that a patent claim is invalid as “obvious” in
`
`light of one or more prior art references if it would have been obvious to a person
`
`of ordinary skill in the art at the time of the alleged invention (“POSITA”; refer to
`
`¶¶23-24 below), taking into account (1) the scope and content of the prior art, (2)
`
`the differences between the prior art and the claims, (3) the level of ordinary skill
`
`in the art, and (4) any so called “secondary considerations” of non-obviousness,
`
`which include: (i) “long felt need” for the claimed invention, (ii) commercial
`
`success attributable to the claimed invention, (iii) unexpected results of the claimed
`
`invention, and (iv) “copying” of the claimed invention by others.
`
` While I do not know the exact date that the alleged invention claimed
`
`in the ’435 patent was made, I do know that the application that led to the ’435
`
`patent (U.S. Appl. No. 09/967,140) was filed on September 28, 2001 (EX1001 at
`
`cover page). For purposes of my analysis here, I have applied a date of September
`
`28, 2001 as the date of the alleged invention in my obviousness analysis, although
`
`in many cases the same analysis would hold true even if the date of the alleged
`
`invention occurred earlier than September 28, 2001.
`
`
`
`I have been informed that a claim can be obvious in light of a single
`
`prior art reference or multiple prior art references. To be obvious in light of a
`
`single prior art reference or multiple prior art references, there must be a reason
`
`that would have prompted a POSITA to modify the single prior art reference, or
`
`
`
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`ZTE, Exhibit 1003
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`

`

`combine two or more references, in a manner that provides the elements of the
`
`claimed invention. This reason may come from a teaching, suggestion, or
`
`motivation to combine, or may come from the reference(s) themselves, the
`
`knowledge or “common sense” of a POSITA, or from the nature of the problem to
`
`be solved, and this reason may be explicit or implicit from the prior art as a whole.
`
`I have been informed that, under the law, the predictable combination of familiar
`
`elements according to known methods is likely to be obvious when it does no more
`
`than yield predictable results. I also understand it is improper to rely on hindsight
`
`in making the obviousness determination.
`
`C. Claim Construction
`
`I understand that, for purposes of my analysis in this inter partes
`
`review proceeding, the terms appearing in the patent claims should be interpreted
`
`according to their “ordinary and customary meaning.” In determining the ordinary
`
`and custom meaning, the words of a claim are first given their plain meaning that
`
`those words would have had to a POSITA. I understand that the structure of the
`
`claims, the specification, and the file history also may be used to better construe a
`
`claim insofar as the plain meaning of the claims cannot be understood. Moreover,
`
`treatises and dictionaries may be used, albeit under limited circumstances, to
`
`determine the meaning attributed by a POSITA to a claim term at the time of
`
`filing. I have followed this approach in my analysis.
`
`
`
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`ZTE, Exhibit 1003
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`

`

`
`
`I also understand that the words of the claims should be interpreted as
`
`they would have been interpreted by a POSITA at the time the alleged invention
`
`was made (not today). Because I do not know at what date the alleged invention
`
`was made, I have used the date of September 28, 2001 for reasons explained in ¶19
`
`(above) and ¶24 (below). However, the plain meanings/interpretations that I
`
`employed in my analysis below would have also been correct if the date of
`
`invention was anywhere within the early to mid-2000s.
`
`IV. PERSON OF ORDINARY SKILL IN THE ART
` Based on my knowledge and experience in the field and my review of
`
`the ’435 patent and its file history, I believe that a POSITA would have had at least
`
`a bachelor’s degree in electrical engineering, computer engineering, computer
`
`science, or a related technical field, and at least 1-2 years of experience in the field
`
`of wireless communication devices, or an equivalent advanced education in the
`
`field of wireless communication devices. For purposes of assessing this level of
`
`ordinary skill in the art, I have considered the types of problems encountered in the
`
`art, the prior solutions to those problems found in prior art references, the speed
`
`with which innovations were made at that time, the sophistication of the
`
`technology, and the level of education of active workers in the field. As previously
`
`described, I have reviewed and understand the ’435 patent, and I understand these
`
`factors. Based on my above-described experiences (refer to ¶¶4-14 above), I am
`
`
`
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`

`

`familiar with and know of the capabilities of a POSITA in this field during the
`
`relevant time frame. My analysis and conclusions as expressed herein are thus
`
`based on the perspective of a POSITA having this level of knowledge and skill at
`
`the time of the alleged invention of the ’435 patent.
`
` Because I do not know at what date the alleged invention as claimed
`
`was made, I have used the filing date of the application that led to the ’435 patent
`
`claims priority as the point in time from which my analysis from the perspective of
`
`a POSITA is based. Again, as previously explained, that date was September 28,
`
`2001. However, my analysis of the prior art and the conclusion herein would also
`
`apply even if the date of the alleged invention as claimed was anywhere within the
`
`early 2000s.
`
`V. MATERIALS CONSIDERED
` My analyses set forth in this declaration are based on my experience
`
`in the field of wireless communication devices and associated technologies. Based
`
`on my above-described experience in the field of wireless communication devices,
`
`I believe that I am considered to be an expert in the field. Also, based on my
`
`experiences, I understand and know of the capabilities of persons of ordinary skill
`
`in this field during the late 1990s to early to mid-2000s and specifically during the
`
`time before the alleged priority date (September 28, 2001) for the ’435 patent, and
`
`12
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`

`

`I taught, participated in organizations, and worked closely with many such persons
`
`in the field during that time frame.
`
` As part of my independent analysis for this declaration, I have
`
`considered the following: the background knowledge/technologies that were
`
`commonly known to persons of ordinary skill in this field during the time before
`
`the alleged priority date for the ’435 patent; my own knowledge and experiences
`
`gained from my work experience in the fields of electrical engineering and
`
`wireless communication devices generally; my experience in teaching and advising
`
`others in those subjects; and my experience in working with others involved in
`
`those fields. In addition, I have analyzed the following publications and materials:
`
` U.S. Pat. No. 7,039,435 to McDowell et al. (“the ’435 patent”)
`
`(EX1001)
`
`
`
` File History of the ’435 Patent (EX1002)
`
`
`
`
`
` Certified English Translation of European Patent Publication EP
`
`1091498 (“Baiker”) (EX1004)
`
` U.S. Pat. No. 6,456,856 (“Werling”) (EX1005)
`
`
`
` PCT Patent Publication WO 2002/05443 (“Irvin”) (EX1006)
`
`
`
` U.S. Pat. No. 6,018,646 (“Myllymäki”) (EX1007)
`
` U.S. Pat. No. 5,390,338 (“Bodin”) (EX1008)
`
`
`
`
`
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`

` Joint Claim Construction Chart, Worksheet, and Hearing Statement in
`
`Bell Northern Research, LLC, v. Huawei Device (Dongguan) Co.,
`
`Ltd., Huawei Device (Shenzhen) Co., Ltd., and Huawei Device USA,
`
`Inc. (Case No. 3:18-cv-1784) (S.D.Cal., filed 4/19/19) (EX1009)
`
`
`
` U.S. Provisional Patent Application No. 09/612,034 (“Irvin
`
`Provisional”) (EX1010)
`
` Michael Barr, Programming Embedded Systems in C and C++
`
`(O’Reilly & Associates, 1999) (EX1011)
`
`
`
` Rudolf F. Graf, Modern Dictionary of Electronics (Butter-worth-
`
`Heinemann, 1999) (EX1012)
`
`
`
` Harry Newton, Newton’s Telecom Dictionary (Miller Free-man, Inc.,
`
`1999) (EX1013)
`
`
`
` Webster’s II New College Dictionary (Houghton Mifflin Co, 1999)
`
`(EX1014)
`
`
`
` Martin H. Weik, Fiber Optics Standard Dictionary (Chapman & Hall,
`
`1997) (EX1015)
`
`
`
` European Patent Publication EP 1091498 (EX1016)
`
` Webster’s New World College Dictionary (Simon & Schuster, 1997)
`
`(EX1017)
`
` U.S. Pat. No. 6,029,074 (“Irvin ’074”) (EX1018)
`
`
`
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`

` Defendants’ Joint Opening Claim Construction Brief in Bell Northern
`
`Research, LLC, v. Huawei Device (Dongguan) Co., Ltd., Huawei
`
`Device (Shenzhen) Co., Ltd., and Huawei De-vice USA, Inc. (Case
`
`No. 3:18-cv-1784) (S.D. Cal.) (EX1019)
`
` Plaintiff’s Opening Claim Construction Brief in Bell Northern
`
`Research, LLC, v. Huawei Device (Dongguan) Co., Ltd., Huawei
`
`Device (Shenzhen) Co., Ltd., and Huawei Device USA, Inc. (Case No.
`
`3:18-cv-1784) (S.D. Cal.) (EX1020)
`
` Although this declaration refers to selected portions of the cited
`
`references for the sake of brevity, it should be understood that these are examples,
`
`and that a POSITA would have viewed the references cited herein in their entirety
`
`and in combination with other references cited herein or cited within the references
`
`themselves. The references used in this declaration, therefore, should be viewed as
`
`being considered herein in their entireties.
`
`VI. BACKGROUND OF THE ’435 PATENT
`A.
`Subject Matter Overview
` The ’435 patent is titled “Proximity Regulation System for Use With a
`
`Portable Cell Phone and a Method of Operation Thereof” and is directed generally
`
`to the reduction of the transmit power level of a cell phone when the phone is near
`
`a human body. EX1001, 1:63-67. For example, the ’435 patent describes a
`
`
`
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`
`

`

`“portable cell phone 200” that includes a “proximity regulation system 210,” a
`
`“location sensing subsystem,” and a “power circuit 240.” EX1001, 4:19-31. The
`
`location sensing subsystem “determines a location of the portable cell phone 200
`
`proximate a user,” such as that the “portable cell phone 200 is proximate the head
`
`of the user,” and the “proximity regulation system 210 determines a proximity
`
`transmit power level of the portable cell phone 200 based on the location of the
`
`portable cell phone 200 proximate a portable cell phone user.” EX1001, 4:31-61;
`
`see also 3:43-54. The “power circuit” may be a “typical power circuit” that
`
`provides a transmit power level. EX1001, 3:31-34. A “network adjusted transmit
`
`power level may be reduced to a value determined by the proximity transmit power
`
`level when the location of the portable cell phone 200 is within the vicinity of the
`
`user’s head,” and “just within the vicinity of a user’s body.” EX1001, 5:24-36.
`
`
`
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`

`
`
`EX1001, FIG. 2.
`
` As I explain in greater detail below, the ’435 patent describes features
`
`that were well-known in similar mobile devices before the earliest asserted priority
`
`date of the ’435 patent, as exemplified by at least the Baiker (EX1004, EX1016),
`
`Irvin (EX1006), and Bodin (EX1008) references.
`B.
`File History of the ’435 Patent
` As part of my preparation of this declaration, I reviewed the file
`
`history of the ’435 patent (EX1002). I understand that the application that led to
`
`the ’435 patent was filed on September 28, 2001. See EX1001 at Cover Page.
`
`The ’435 patent eventually issued on May 2, 2006. Id.
`
`
`
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`

` The USPTO issued an office action on August 13, 2004. EX1002 at
`
`77-89. In that office action, the examiner rejected claim 19—which corresponds to
`
`claim 1 of the ’435 patent—as unpatentable over Werling and Vogel. EX1002 at
`
`84-85. In response, the applicant presented arguments and amendments. Id., 69.
`
`The applicant argued that Werling and Vogel did not teach a power circuit that
`
`provides a network adjusted transmit power level “as a function of a position to a
`
`communications tower,” and thus that Werling and Vogel failed to teach a power
`
`governing subsystem that determines “a transmit power level for a portable cell
`
`phone based on a network adjusted transmit power level and a proximity transmit
`
`power level as recited in Claim 19.” Id., 69, 73-74. The USPTO issued a final
`
`office action on August 8, 2005 in which claims 19-27 were allowed. Id., 20-27.
`
`Claims 1-18 remained rejected. Id. at 20-27. The applicant canceled rejected
`
`claims 1-18, and a notice of allowance followed. EX1002, 4-7; 15-18.
`
`
`
`I note that the examiner provided reasons for their conclusion that
`
`claims 19-27 were allowable, which emphasized the final element of issued claim
`
`1. EX1002, 27. Based on my review of the record, it appears that some of the
`
`more pertinent references listed above (and which I analyze below) were never
`
`analyzed in any office action by the examiner during prosecution. As I explain in
`
`detail below, based upon my knowledge and experience in this field and my review
`
`of the publications cited here, I do not agree that at least claims 1, 2, 3, and 6 of
`
`
`
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`

`the ’435 patent are patentable over the prior art. For example, the Baiker, Irvin,
`
`and Bodin reference describe these elements of issued claim 1, including the
`
`features emphasized in the examiner’s reasons for allowance.
`
`VII. INTERPRETATIONS OF THE ’435 PATENT CLAIMS AT ISSUE
`
`I have been asked to provide my interpretation of the following terms
`
`of the ’435 patent set forth below. In providing the following interpretations, I have
`
`carefully considered and applied the claim construction standard referred to in
`
`¶¶21-22 above. Additionally, I have been informed that the ’435 patent is the
`
`subject of litigation in federal district court in which claims or terms of the ’435
`
`patent have been proposed by the parties. See EX1009 (joint claim construction
`
`statement).
`
` Claim 1 recites a “position to a communications tower.” Here, I
`
`address a first claim construction and a second, alternative claim construction for
`
`this phrase. For reasons detailed below, the claims are disclosed by prior art under
`
`either construction. According to the first construction, the phrase “position to a
`
`communications tower” means “transmit signal strength of a communications path
`
`between the communications tower and the portable cell phone.” EX1020, 63-71;
`
`EX1009, 63, 129 (citing ’435 patent, 3:39-42 and “Mobile Communications
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`Engineering: Theory and Applications”). Based on this interpretation, the claim
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`language incorporates the embodiment described in column 3 of the ’435 patent.
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`In that embodiment, the “network adjusted transmit power level 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.” EX1001, 3:39-42. I note that this
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`construction does not apply the ordinary meaning of “position,” but instead equates
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`the term “position” with a “signal strength” based on the embodiment described in
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`column 3. Baiker and Irvin each describe this feature of a network adjusted
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`transmit power level based on a transmit signal strength, as I discuss in detail
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`below. Infra, ¶¶43-46, 83-88.
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` The straightforward, literal language of “position to a communications
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`tower” provides the second, alternative construction. Based on my knowledge and
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`experience in the field, the term “position” is not a term of art with a specialized
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`meaning in the field. Additionally, I note that the ’435 patent does not
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`lexicographically define the term “position” in a specialized way. A POSITA
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`would have thus understood “position” as used in the ’435 patent as a location or
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`distance relative another object. The phrase “position to a communications tower”
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`thus describes a location or distance to a communications tower. That is, the
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`phrase would have been understood as describing a position of the portable cell
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`phone relative to a communications tower. This ordinary usage of the term
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`“position” interpretation is consistent with the intrinsic evidence. For example,
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`the ’435 patent recites “the present invention provides a portable cell phone that
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`includes a power circuit as a function of a position to a communications tower and
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`a proximity regulation system.” EX1001, 2:18-21. Importantly, the ’435 patent
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`specification uses the term “position” in multiple places consistent with the above-
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`described ordinary meaning of “position”—never confining the term “position” to
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`the boundaries of “a transmit signal strength.” Id., 3:4-6 (“positioned”); 6:33-37
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`(“position indicator” and “positioned”). I note that dictionary definitions at the
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`time of the ’435 patent confirm this ordinary meaning of “position.” EX1014 (“a
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`place or location”); EX1017 (“the place where a person or thing is, esp. in relation
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`to others”). As detailed below, Bodin describes adjusting transmit power based on
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`distance to a base station/communication tower. Infra, ¶¶128-130.
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`VIII. OVERVIEW OF CONCLUSIONS FORMED AND PRIOR ART
`REFERENCES
` This declaration explains the conclusions that I have formed based on
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`my independent analysis. To summarize those conclusions:
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` Claims 1, 2, and 3 of the ’435 patent are anticipated by Baiker.
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` Claims 1, 2, 3, and 6 of the ’435 patent are obvious in light of Baiker
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`in view of Werling.
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` Claims 1, 2, and 3 of the ’435 patent are anticipated by Irvin.
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` Claims 1, 2, 3, and 6 of the ’435 patent are obvious in light of Irvin in
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`view of Myllymäki.
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` Claims 1, 2, and 3 of the ’435 patent are obvious in light of Bodin in
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`view of Irvin.
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` Claim 6 of the ’435 patent is obvious in light of Bodin in view of Irvin
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`and Myllymäki.
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`IX. ANALYSIS OF BAIKER
` For the reasons articulated in detail below, and based on my review of
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`the ’435 patent, file history, and the prior art references cited here, it is clear that a
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`POSITA would have readily understood that the teachings of Baiker provide all the
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`elements of claims 1, 2, and 3.
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` Baiker, titled “Hand-Held Mobile Telephone and Method for the
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`Operation of the Same,” was published April 11, 2001, before the filing date of
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`the ’435 patent. EX1005, cover. Baiker describes a “hand-held mobile telephone”
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`in which “the damage potential of the electromagnetic radiation emitted by the
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`device can be efficiently reduced for the user.” EX1004, Abstract, [0006]-[0007].
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`In more detail, Baiker describes controlling “the power of the RF transmitter … on
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`the basis of a distance measured (e.g., to the user’s head).” Id.
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`EX1004, FIG. 1.
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` Baiker describes that the “mobile telephone 1” includes an “RF
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`transmitter (10/6)” that includes an “antenna 6” and “RF amplifier 10,” “a sensor
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`(7) for measuring a distance between the hand-held [mobile telephone] and a body
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`part of a user,” and “a circuit (15) for controlling the power of the RF transmitter
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`(10/6) depending on the measured distance.” Id., Abstract, [0019]. The antenna 6
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`“forms the interface to the base station.” Id., [0025]. These features are depicted
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`in the annotated block diagram below.
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`
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` Baiker describes that the “mobile telephone” uses a measured distance
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`between the device and body part of the user (indicated in a “distance signal”) and
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`a “quality signal supplied by the base station” to regulate the power of the RF
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`transmitter. Id., [0028]. The “control 15,” shown in FIG. 3 above, regulates RF
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`amplifier 10 based on a “first input for a distance signal, which is detected and
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`processed by the distance sensor 7 and the sensor electronics 14,” and “a second
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`input” that “is provided for a quality signal supplied by the base station.” Id. For
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`example, the measured distance can be used to determine an “allowed maximum
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`value” of the output of the RF amplifier 10, and the quality signal, which
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`“measures the strength of the signal received from the hand-held mobile
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`telephone,” is used to determine “by what value [the hand-held mobile telephone]
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`can reduce its transmission power or to what value [the hand-held mobile
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`telephone] may delimit the RF amplifier 10 without the connection being
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`dropped.” Id., [0030] (“the maximum output of the RF amplifier 10 is limited to
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`the allowable range explained in Fig. 2. Depending on the current distance, the
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`allowed maximum value is obtained from a stored table and supplied to the RF
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`amplifier 10.); [0031] (“The quality signal may, for example, simply indicate
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`whether the hand-held mobile telephone 1 may reduce the current transmission
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`power (further) or not,” or may “be configured so that the hand-held mobile
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`telephone 1 can determine by what value it can reduce its transmission power or to
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`what value it may delimit the RF amplifi