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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`REMBRANDT WIRELESS TECHNOLOGIES, LP,
`Patent Owner.
`
`Cases IPR2020-00033, IPR2020-00034, IPR2020-00036, IPR2020-00037
`U.S. Patent Nos. 8,023,580 and 8,457,228
`
`DECLARATION OF NIKIL JAYANT
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`TABLE OF CONTENTS
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`I.
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`Introduction ............................................................................................. 5
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`II. Qualifications .......................................................................................... 6
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`III. Legal Standards ....................................................................................... 9
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`A. Claim Construction .............................................................................. 9
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`B. Person of Ordinary Skill in the Art .................................................... 10
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`C. Validity............................................................................................... 10
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`IV. Background ........................................................................................... 15
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`A. Person of Ordinary Skill in the Art .................................................... 15
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`B. State of the Art ................................................................................... 15
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`C. The '580 and '228 Patent Invention .................................................... 20
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`D. Overview of the Cited Art ................................................................. 28
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`1. The Pager Art and the FLEX™ Protocol ....................................... 28
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`2. Briancon .......................................................................................... 31
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`3. Leitch .............................................................................................. 39
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`4. Ayerst .............................................................................................. 40
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`5. Siwiak '306 ...................................................................................... 41
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`6. Siwiak '038 ...................................................................................... 44
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`7. Yamano ........................................................................................... 46
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`8. Davis ............................................................................................... 52
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`9. Christian .......................................................................................... 53
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`V. The Prior Art and Arguments are Substantially the Same as Those
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`Before the District Court .......................................................................................... 55
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`VI. The Prior Art and Arguments are Substantially the Same as Those
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`Previously Presented to the Office ........................................................................... 63
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`VII. Claim Construction ............................................................................ 71
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`A. The Claimed “Master/Slave Relationship” Requires a Configuration
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`Capable of Performing All Other Claim Limitations and Necessarily Requires
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`That Slaves Only Respond to the Master When Polled By The Master .............. 72
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`B. The Claim Limitation “Indicates An Impending Change” or
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`“Indicative Of An Impending Change” In Modulation Requires A Change In
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`Modulation That Is Imminent (or About To Happen) ......................................... 77
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`C. “Second Message” Requires a “Payload Portion” that Imminently
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`Follows the “Third Information” ......................................................................... 80
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`D. The Claimed “Indicates that Reversion from the Master to the Slave
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`Has Reverted to the First Modulation” Requires Both an Indication and a
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`Reversion 82
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`VIII. Validity of the Claims ........................................................................ 83
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`A. The ‘580 Patent .................................................................................. 83
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`1. Validity of the Claims over Briancon, Leitch, and Ayerst ............. 83
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`2. Validity of the Claims over Siwiak ‘306 and Siwiak ‘038 ...........105
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`3. Validity of the Claims over Yamano, Davis, and Christian .........118
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`B. The ‘228 Patent ................................................................................137
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`1. Validity of the Claims over Briancon, Leitch, and Ayerst ...........137
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`2. Proposed Ground 3 Fails to Present a Reasonable Likelihood of
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`Prevailing 155
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`3. Validity of the Claims over Yamano, Davis, and Christian .........166
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`IX. The Pager Art is Not Analogous Art to the ‘228 and ‘580 Patents ....186
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`X. Conclusion ...........................................................................................191
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`I, Nikil Jayant, Ph.D., do hereby declare as follows:
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`I.
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`Introduction
`1.
`I am currently Emeritus Chaired Professor in the School of Electrical
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`and Computer Engineering at the Georgia Institute of Technology, and an Adjunct
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`Professor at the University of California at Santa Barbara.
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`2.
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`I have been retained by Edell, Shapiro and Finnan, LLC (hereinafter
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`"the Edell Firm"), to provide various opinions regarding U.S. Patent No. 8,023,580
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`(hereinafter "the '580 patent") and U.S. Patent No. 8,457,228 (hereinafter "the '228
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`patent"). I understand that my declaration is being submitted in connection with a
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`Patent Owner Preliminary Response in inter partes reviews of the '580 patent and
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`the '228 patent. Unless otherwise noted, the statements made herein are based on
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`my personal knowledge and, if called to testify with regards to this declaration, I
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`could and would do so competently and truthfully. For purposes of this declaration,
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`cites to the 1000 series are from IPR2020-00033 and cites to the 1100 series are from
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`IPR2020-00034, unless indicated otherwise.
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`3.
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`I have been retained in this matter by the Edell Firm as a technical
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`expert in the field of electrical engineering, particularly within the context of
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`telecommunications and modulation. I am being compensated for my work in this
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`matter at my usual and customary rate. I have no personal or financial stake or
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`interest in the outcome of the inter partes reviews or any related action. My
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`compensation in no way depends upon my testimony or the outcome of the inter
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`partes reviews.
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`4.
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`I have been advised that the Edell Firm represents Rembrandt Wireless
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`Technologies, LP (hereinafter "Patent Owner") in this matter and that Apple Inc.
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`(hereinafter "Petitioner") has petitioned for inter partes reviews of the '580 Patent
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`and the '228 Patent. I have no personal or financial stake or interest in Patent Owner,
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`Petitioner, or the '580 or '228 Patents.
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`5.
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`I reserve the right to supplement and/or amend my opinions in this
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`declaration based on future positions taken by Petitioner or its experts, additional
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`documents, testimony or other information provided by Petitioner or its witnesses,
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`any orders from the Board, or as otherwise necessary.
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`II. Qualifications
`6. My qualifications for forming the opinions set forth in this expert report
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`are summarized here and explained in more detail in my curriculum vitae which is
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`attached as Exhibit A to this report. Exhibit A also includes a full list of my
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`publications and other professional contributions and achievements, and a list of the
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`cases in which I have testified at deposition, hearing, or trial.
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`7.
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`I have studied, taught, and practiced electrical engineering and directly
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`related fields for over 55 years. I hold degrees from Mysore University (Bachelor of
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`Science in Physics and Mathematics, 1962) and the Indian Institute of Science
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`(Bachelor of Science in Electrical Communication Engineering, 1965, Ph.D. in
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`Electrical Communication Engineering, 1970). While I was a Ph.D. student, I also
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`served as a research associate at Stanford University for one year.
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`8.
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`I was employed from 1968 to 1998 at Bell Laboratories, where I served
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`a researcher, founder, manager, and executive. During my time at Bell Laboratories,
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`I created and helped develop pioneering technologies related to signal compression
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`and digital communication, including adaptive quantization, speech and audio
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`coding,
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`image and video coding, and multimedia signal processing and
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`enhancement. These research programs led to fundamental advancements in these
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`fields, to definitive advances in quality evaluation, and to applications in wireless,
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`cellular, broadcasting, and Internet communications.
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`9.
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`At Bell Laboratories, I was directly involved in the design of pioneering
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`end-to-end systems for digital communications of audiovisual signals. This involved
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`collaborative research with Bell Laboratories teams that were world leaders in
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`complementary technologies like modems, channel equalizers, and channel error
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`protection. This was crucial to Bell Laboratories innovations in the pioneering
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`designs of both analog and cellular telephony. At one point in my Bell Laboratories
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`career, I created and led a cross-departmental team in advanced audio technology
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`for terrestrial audio broadcasting. This involved the use of sidebands in the broadcast
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`frequency spectrum that would carry digital audio simulcasts of analog Frequency
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`Modulation (FM) radio. This program, which provided the basis of the contemporary
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`Sirius DAR system, involved a careful co-design of audio compression and Radio
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`Frequency (RF) modems to satisfy metrics such as bandwidth efficiency and
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`minimal adjacent program interference. In addition, I supervised the research
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`performed by my team at Bell Laboratories and their contributions to Moving Picture
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`Experts Group (MPEG), European Telecommunications Standards Institute (ETSI),
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`and 3rd Generation Partnership Project (3GPP) standards. I have also personally
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`participated in MPEG standards for audio and the Advanced Television Systems
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`Committee (ATSC) standard for High Definition Television (HDTV).
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`10.
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`I served as the John Pippin Chaired Professor in Wireless Systems at
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`the Georgia Institute of Technology from 1998-2013. During that time, I was a
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`Georgia Research Alliance Eminent Scholar, and also served as the Executive
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`Director of the Georgia Centers for Advanced Telecommunication Technology, the
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`Director of the Georgia Tech Broadband Institute, and the Director of the
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`Multimedia Communications Research Laboratory.
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`11. My personal research is reflected in my publications and patents as well
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`as in international standards. I wrote the pioneering paper on Adaptive Differential
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`Pulse Code Modulation (ADPCM) which provided the framework for International
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`Telecommunication Union (ITU) Standards for Network-Quality Telephony at 32
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`kbps, with optional low bit rate versions at 24 kbps and 16 kbps. In combination with
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`sub-band coding, ADPCM also provided the basis for the first-ever low bit rate ITU
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`standard for wideband speech coding. I also collaborated on an ITU standard for a
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`low-delay high quality speech coding at 16 kbps.
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`12.
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`I am an inventor on over 175 papers, 40 patents, and 5 books in the
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`subjects of digital communications, compression, and signal processing. I was the
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`recipient of an Institute of Electrical and Electronic Engineers (IEEE) Prize for a
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`seminal paper on digital coding, and the co-recipient of another IEEE Prize for a
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`paper on signal compression. I have received several peer recognitions for my
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`technical and professional contributions. I am a Fellow of the IEEE, a recipient of
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`the IEEE Third Millennium Medal, an inductee into the New Jersey Inventors Hall
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`of Fame, and a Member of the National Academy of Engineering.
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`III. Legal Standards
`A. Claim Construction
`13.
`I understand that claim terms are to be interpreted from the point of
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`view of a person of ordinary skill in the art (also referred to herein as the “skilled
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`artisan”) at the time the application leading to the patent was filed. I further
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`understand that claim terms are generally to be given their ordinary meaning,
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`considered in light of the claim language, patent specification, and prosecution
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`history. I further understand that a patentee may act as its own lexicographer and
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`depart from the ordinary and customary meaning by defining a term with reasonable
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`clarity, deliberateness, and precision, but that there is a presumption that a claim
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`term carries its ordinary and customary meaning.
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`B. Person of Ordinary Skill in the Art
`14.
`I understand that a person of ordinary skill in the art is a hypothetical
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`person who is presumed to have known the relevant art at the time of the invention.
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`He or she is a person of ordinary creativity who understands the scientific and
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`engineering principles applicable to the pertinent art. I am familiar with the
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`knowledge and capabilities of one of ordinary skill in the art in the field of the '580
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`and '228 Patents at the time of the effective filing date of the patents: December 5,
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`1997.
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`15.
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`I understand that whether a patent claim would have been obvious is
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`determined through the point of view of a person of ordinary skill in the art at the
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`time of the invention. I have applied this standard in my analysis.
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`C. Validity
`16.
`I understand that the Petitioner must show that there is a reasonable
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`likelihood of success as to any of the claims challenged. I understand that the
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`Petitioner bears the burden of proving any instituted grounds of invalidity by a
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`preponderance of the evidence. I understand that a "preponderance" means "more
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`likely than not." I understand that general and conclusory assertions, without
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`underlying factual evidence, may not support a conclusion that something is "more
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`likely than not." Rather, the preponderance of the evidence standard requires that a
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`reasonable finder of fact be convinced that the existence of a specific material fact
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`is more probable than the non-existence of that fact. The preponderance of the
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`evidence standard does not support speculation regarding specific facts, and is
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`instead focused on whether the evidence more likely than not demonstrates the
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`existence or non-existence of specific material facts. Here, I understand that
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`Petitioner has argued that the claims at issue are obvious over different grounds, each
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`applying a combination of two or more references.
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`17.
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`I also understand that, in performing a proper unpatentability analysis,
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`an expert must do more than simply provide quotes from the evidentiary record along
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`with conclusory allegations of unpatentability. To the contrary, an expert's
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`conclusions regarding unpatentability must be supported by actual analysis and
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`reasoning set forth in the expert declaration, such that the theoretical and factual
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`foundation for the expert's conclusions can be properly evaluated.
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`18.
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`I understand that a patent claim may be found unpatentable as obvious
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`under 35 U.S.C. § 103 only if the Petitioner establishes by a preponderance of the
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`evidence that, as of the priority date, the subject matter of the claim, considered as a
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`whole, would have been obvious to a person having ordinary skill in the field of the
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`technology (the "art") to which the claimed subject matter belongs.
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`19.
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`I understand that the analysis of whether a claim is obvious depends on
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`a number of necessary factual inquiries, for example, (1) the scope and content of
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`the prior art; (2) the differences between the claimed subject matter and the prior art;
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`(3) the level of ordinary skill in the art; and (4) objective evidence of
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`nonobviousness.
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`20.
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`I understand that the claimed invention must be considered as a whole
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`in analyzing obviousness or nonobviousness. In determining the differences between
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`the prior art and the claims, the question under the obviousness inquiry is not whether
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`the differences themselves would have been obvious, but whether the claimed
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`invention as a whole would have been obvious. Relatedly, I understand that it may
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`be appropriate to consider whether there is evidence of a "teaching, suggestion, or
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`motivation" to combine the prior art teachings in the prior art, the nature of the
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`problem or the knowledge of a person having ordinary skill in the art.
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`21.
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`I have also been informed that some examples of rationales that may
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`support a conclusion of obviousness include:
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`a) Combining prior art elements according to known methods to yield
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`predictable results;
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`b) Simply substituting one known element for another to obtain predictable
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`results;
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`c) Using known techniques to improve similar devices (or product) in the
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`same way (e.g. obvious design choices);
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`d) Applying a known technique to a known device (or product) ready for
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`improvement to yield predictable results;
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`e) Choosing from a finite number of identified, predictable solutions, with a
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`reasonable expectation of success—in other words, whether something is "obvious
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`to try";
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`f) Using work in one field of endeavor to prompt variations of that work for
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`use in either the same field or a different one based on design incentives or other
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`market forces if the variations are predictable to one of ordinary skill in the art; and
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`g) Arriving at a claimed invention as a result of some teaching, suggestion, or
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`motivation in the prior art that would have led one of ordinary skill to modify the
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`prior art reference or to combine prior art reference teachings.
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`22.
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`I have also been informed that other rationales to support a conclusion
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`of obviousness may be relied upon, for instance, that common sense (where
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`substantiated) may be a reason to combine or modify prior art to achieve the claimed
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`invention.
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`23.
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`I understand that one indicator of nonobviousness is when prior art
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`"teaches away" from combining certain known elements. For example, a prior art
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`reference teaches away from the patent's particular combination if it leads in a
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`different direction or discourages that combination, recommends steps that would
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`not likely lead to the patent's result, or otherwise indicates that a seemingly
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`inoperative device would be produced.
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`24.
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`I understand that an obviousness determination also requires that a
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`person of ordinary skill in the art would have had a reasonable expectation of success
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`in making any modifications to the cited references.
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`25.
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`I further understand that certain objective indicia can be important
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`evidence regarding whether a patent is obvious or nonobvious, including the
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`existence of a long-felt but unsolved need, unexpected results, commercial success,
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`copying, and industry acceptance or praise. Evidence of such objective indicia must
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`be considered when present. It is generally an error to reach a conclusion on
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`obviousness before considering the evidence of secondary considerations, and then
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`evaluating the latter solely in terms of whether it may fill any gaps in the initial
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`conclusion on obviousness. On the other hand, such evidence is not a requirement
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`for patentability, and the absence of such evidence is a neutral factor in the analysis
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`of obviousness or nonobviousness.
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`26.
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`I also understand that a prior art reference must be enabled to anticipate
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`a patent. That is, I understand that the prior art reference's description must be such
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`that a person of ordinary skill in the field of the invention can practice the subject
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`matter based on the reference without undue experimentation.
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`27. Finally, I understand that the obviousness analysis cannot be based on
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`“hindsight. The skilled artisan my view prior art at the time the invention was made
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`and without using the disclosure of the subject patent as a guide.
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`
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`IV. Background
`A. Person of Ordinary Skill in the Art
`28. Based on my experience
`in
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`the art and my study of
`
`the
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`telecommunications techniques disclosed and claimed in '580 and '228 Patents, a
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`person of ordinary skill in the art would be an individual who, as of the relevant
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`point in time, would have had a minimum of a Bachelor’s degree in Electrical
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`Engineering, Computer Science, or a related field, and approximately two years of
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`experience in the field of communication systems. I qualified as a person of ordinary
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`skill in the art prior to December 5, 1997.
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`B. State of the Art
`29. My understanding is that, prior to the '580 and '228 Patents,
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`master/slave systems could only communicate when all network devices used a
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`single common type of modulation method. See ‘580 Patent at 1:27-65, 3:40-48;
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`‘228 Patent at 1:29-67, 3:64-4:5. Thus, if a slave using an additional type of
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`modulation method were added to the network, the new slave could not easily
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`communicate with the master using the different modulation type because it would
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`not be compatible with the common type of modulation method. Id. To use a
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`different modulation type, it was necessary to tear down the session and start a new
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`one. Annotated FIG. 1 of the ‘580 and '228 Patents shows such a prior art
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`master/slave system, where all devices in the network communicate using only a
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`single common type of modulation method (such as the amplitude modulation used
`
`by AM radio), even though some of the devices may be capable of communication
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`via other types of modulation methods:
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`
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`30. The state of master/slave art prior to the ‘580 and '228 inventions is
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`described in the ‘580 Patent at col. 3, l. 40-col. 4, l. 50 and in the '228 Patent at 3:64-
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`5:7, with reference to FIG. 2.
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`31. Briefly, FIG. 2 discloses a polled multipoint master/slave system. At
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`the beginning of a session, the master established a common modulation type for
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`communication with all its slaves (sequence 32 in FIG. 2). All slaves were identical
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`in that they shared a common modulation with the master.
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`32. The master then communicated with its slaves, one at a time, by sending
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`a training sequence with the address of the slave with which it wants to
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`communicate, followed by data, and finally a trailing sequence to end the
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`communication (sequences 34-38 in FIG. 2). A slave could not initiate a
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`communication, but, if the slave were polled by the master, it could respond to the
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`master in a similar fashion (sequences 42-46 in FIG. 2). When the master had
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`completed its communications with the first slave, it could then communicate with
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`a second slave using the same negotiated common modulation (sequences 48-54 in
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`FIG. 2). Again, the slave had to be polled before it could communicate with the
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`master.
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`33. The claimed invention was designed to address the problems that
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`resulted in a polled multipoint master/slave system when the master wanted to
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`communicate using different modulation types and – and as illustrated in the
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`preferred embodiment described in the specification – to communicate with different
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`types of tribs (e.g., Type A and Type B). With reference to FIG. 2, the problems
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`Gordon Bremer both identified and solved are described in his detailed description
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`as follows:
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`Consider the circumstance in which master transceiver 24 and trib
`26b share a common modulation type A while trib 26a uses a second
`modulation type B. When master transceiver attempts to establish A as
`a common modulation during sequence 32, trib 26a will not be able to
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`understand that communication. Moreover, trib 26a will not recognize
`its own address during training interval 34 and will therefore ignore
`data 36 and trailing sequence 38. Master transceiver 24 may time out
`waiting for a response from trib 26a because trib 26a will never transmit
`training sequence 42, data 44, and trailing sequence 46 due to the failure
`of trib 26a to recognize the communication request (training sequence
`34) from master transceiver 24. Thus, if the tribs in a multipoint
`communication system use a plurality of modulation methods, the
`overall communication efficiency will be disrupted as specific tribs will
`be unable to decipher certain transmissions from the master transceiver
`and any unilateral transmission by a trib that has not been addressed by
`the master transceiver will violate the multipoint protocol.
`‘580 Patent at 4:55-5:6; ‘228 Patent at 5:12-31.
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`34. Summarizing the problems inventor Bremer was first to identify:
`
`a) If a prior art master wanted to communicate with a slave using a second
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`modulation method that was of a different type than that used to
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`previously communicate with the same or a different slave (“wherein
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`the second modulation method is of a different type than the first
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`modulation method”), it was necessary to tear down the session and
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`begin a new session. Doing so was disruptive.
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`b) If the prior art master attempted to communicate using a different
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`modulation type without beginning a new session, the slaves would not
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`understand the attempted communications and would not respond to
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`any communications directed at them, resulting in repeated attempts by
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`the master to communicate. In addition, the slaves could become
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`confused by the transmissions and make improper communication
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`attempts.
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`35. My understanding of FIG. 2 and its description is that they do not
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`disclose and would not have suggested the above-described problems, or even the
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`goal of using different types of modulations in one polled multipoint master/slave
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`session.
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`C. The '580 and '228 Patent Invention
`36.
`In the context of the polled multipoint master/slave system described
`
`above, I understand that Gordon Bremer invented “a system and method of
`
`communication in which multiple modulation methods are used to facilitate
`
`communication among a plurality of modems in a network, which have heretofore
`
`been incompatible.” ‘580 Patent at 2:17-20; ‘228 Patent at 2:20-23. Mr. Bremer
`
`solved the above-described problems with his claimed master/slave communication
`
`system such that a master can seamlessly communicate with slaves using multiple
`
`types of modulation methods, thereby permitting selection of the modulation type
`
`best suited for a particular application. ‘580 Patent at 1:66-2:33; ‘228 Patent at 2:1-
`
`66.
`
`20
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`Rembrandt Wireless
`Ex. 2001
`Apple Inc. v. Rembrandt Wireless Technologies, LP, IPR2020-00033
`Page 20 of 225
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`37. The claimed inventions of the ‘580 and '228 Patents are further
`
`described with reference to the preferred embodiment illustrated in FIG. 2 and in
`
`FIGs. 3-8 and their written description. Specifically, FIGs. 3 and 4 show block
`
`diagrams of the master transceiver and tributary transceivers, while FIG. 5 shows a
`
`ladder diagram illustrating the operation of those transceivers. FIGs. 6 and 7 show
`
`state diagrams for exemplary tributary transceivers. And FIG. 8 shows a signal
`
`diagram for exemplary transmissions.
`
`38. Annotated FIG. 8 shows two communications intended for different
`
`slaves. The first communication 170 uses a first type of modulation method for both
`
`the initial training signal and the subsequent data signal, while communication 172
`
`uses the first type of modulation method for the training signal and the second type
`
`of modulation method for the data signal:
`
`
`
`21
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`Ex. 2001
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`Page 21 of 225
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`‘580 Patent at 4:21-24, 4:42-44, FIG. 8; ‘228 Patent at 4:45-48, 4:66-5:1, FIG. 8.
`
`Information in the training signal indicates whether there will be an impending, i.e.,
`
`about to happen or imminent, change from the first type of modulation method to
`
`the second type of modulation method. Id. (training signal includes “notification of
`
`change to Type B” modulation method). The trailing signal illustrates the third
`
`sequence sent using the Type A modulation method.
`
`39.
`
`I understand that Mr. Bremer’s solution to the problems described
`
`above is captured in the language of claims 2 and 59 of the '580 Patent and described
`
`in the ‘580 specification with reference to FIG. 5:
`
`22
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`Ex. 2001
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`Page 22 of 225
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`40. With reference to FIG. 5 and claim terms of the '580 and '228 Patents
`
`in italics, if the Master is communicating with a Type A trib (“Trib 1 Type A”) using
`
`a negotiated first modulation type A in the normal fashion and then wants to
`
`
`
`23
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`Rembrandt Wireless
`Ex. 2001
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`Page 23 of 225
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`
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`communicate with a Type B trib (“Trib 2 Type B”), the Master transmits “first
`
`information” comprising a “first sequence” modulated according to the “first
`
`modulation method,” or “third information modulated according to the first
`
`modulation method,” (one that the Type A trib understands) that “indicates an
`
`impending change” to a second modulation method, or “that is indicative of an
`
`impending change in modulation to a second modulation method” (illustrated as
`
`training sequence 106). The Master then transmits to the Type B trib “second
`
`information for at least one group of transmission sequences compris[ing] a second
`
`sequence that is modulated according to the second modulation method,” which is
`
`“a different type than the first modulation method,” or “fourth information” that is
`
`“modulated according to the second modulation method,” which is “a different type
`
`than the first modulation method.” In the FIG. 5 embodiment, the “second
`
`sequence” or “fourth information” is illustrated as transmission sequence 108 and
`
`uses the second type modulation method, i.e., one that the Type B trib can
`
`understand.
`
`41.
`
`It is at this point that the “third sequence” limitations of claims 2 and
`
`59 of the '580 Patent come into play. To satisfy the limitations of claims 2 and 59
`
`of the '580 Patent, the transceiver must be “configured to transmit a third sequence
`
`after the second sequence wherein the third sequence is transmitted in the first
`
`24
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`Ex. 2001
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`Page 24 of 225
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`modulation method and indicates that communication from the master to the slave
`
`has reverted to the first modulation method.”
`
`42. Again, referring
`
`to FIG. 5, after
`
`the Master completes
`
`its
`
`communicatio
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