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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`___________________
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`LG ELECTRONICS, INC.,
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`PETITIONER,
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`V.
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`BELL NORTHERN RESEARCH, LLC,
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`PATENT OWNER.
`___________________
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`Case No. IPR2019-00319
`U.S. Patent No. 7,039,435
`___________________
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`DECLARATION OF MARK HORENSTEIN, PH.D.
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`Bell Northern Research, LLC, Exhibit 2003, Page 1 of 23
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`I, Mark Horenstein, Ph.D., hereby declare as follows:
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`I.
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`INTRODUCTION
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`1.
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`I am over the age of eighteen (18) years and otherwise
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`competent to make this declaration.
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`2.
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`I have been retained as an expert witness on behalf of Bell
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`Northern Research, LLC for the above-captioned inter partes review (“IPR”). I
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`understand that the petition for inter partes review involves U.S. Patent No.
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`7,039,435 (“the ’435 patent”), which was filed on September 28, 2001. The
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`’435 Patent names Richard McDowell and Philip Mooney as co-inventors. The
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`’435 Patent issued on May 2, 2006.
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`3.
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`I make this declaration based on my personal knowledge,
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`educational background and training, consideration of the materials I discuss
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`herein, and my expert opinions.
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`4.
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`I am being compensated at a rate of $325 per hour for my time
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`in this matter. My compensation does not depend on the outcome of this
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`proceeding and I have no financial interest in its outcome.
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`5.
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`In preparing this Declaration, I have reviewed and considered
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`the ’435 Patent, the ’435 Patent prosecution history, and each of the documents
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`cited herein, and I have considered them in light of general knowledge in the art
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`in the time frame of September 28, 2001. In formulating my opinions, I have
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`Bell Northern Research, LLC, Exhibit 2003, Page 2 of 23
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`relied upon my experience, education and knowledge as they relate to the
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`relevant art. I also have considered the viewpoint of a person of ordinary skill in
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`the art in the time frame of the filing date of the ’435 patent.
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`II. BACKGROUND AND QUALIFICATIONS
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`6.
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`I am a Professor of Electrical Engineering in the Department of
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`Electrical and Computer Engineering (ECE) at Boston University where I have
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`been a faculty member since 1979. I also have held various other positions at
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`Boston University, including the Associate Dean for Graduate Programs and
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`Research for the College of Engineering (1999-2007), Associate Chair for
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`Undergraduate Programs for the ECE Department (1990 – 1998; 2012 – 2015),
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`as well as appointments at the ranks of Associate Professor (1985-2000) and
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`Assistant Professor (1979-1985).
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`7.
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`I have a Ph.D. in Electrical Engineering from the Massachusetts
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`Institute of Technology (MIT) which I earned in 1978. I also hold an M.S.
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`degree in Electrical Engineering from the University of California at Berkeley
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`(1975), and an S.B. degree in Electrical Engineering from MIT (1973).
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`8.
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`I am a Life Fellow of the Institute of Electrical and Electronic
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`Engineers (IEEE, the primary professional organization for engineers in
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`electrical, computer, and related fields of engineering). I also am an Engineer
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`certified by the National Association of Radio and Telecommunications
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`Bell Northern Research, LLC, Exhibit 2003, Page 3 of 23
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`Engineers (NARTE). My primary areas of expertise are in applied
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`electromagnetics, radio and communication systems, electric, magnetic, and
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`electromechanical devices, electric-power systems, electronic circuits, power
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`electronics, and micro-electromechanical systems (MEMS).
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`9.
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`I am the author of several textbooks, including Microelectronic
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`Circuits and Devices, 2nd Ed. (Prentice-Hall 1996) and Design Concepts for
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`Engineers, 5th Ed. (Pearson Education, 2016). I have authored book chapters
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`in two reference books related to applied electromagnetics. I have authored or
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`co-authored over 70 journal articles on a variety of topics in my fields of
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`expertise, and approximately 100 conference papers. I have advised several
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`Ph.D. students performing research in my fields of expertise; these students
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`have gone on to hold various positions in industry and academia. I am a named
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`inventor on five U.S. patents relating to my broad areas of expertise.
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`10. Over the several decades that I have been employed as a faculty
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`member at Boston University, I have developed and taught courses in
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`electromagnetic waves, basic electronics, microcontrollers, power electronics,
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`electromechanical energy conversion, robotics, and engineering design. I have
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`been named “Teacher of the Year” in Electrical Engineering at Boston
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`University four times.
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`11. A more complete summary of my background, qualifications
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`and professional experience and affiliations is set forth in my curriculum vitae,
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`is simultaneously filed herewith as Exhibit 2004.
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`III. LEGAL PRINCIPLES
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`12. Claim Construction: I understand that the first step in
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`performing a validity analysis of the patent claims is to interpret the meaning
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`and scope of the claims by construing the terms and phrases found in those
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`claims. I understand that a determination of the meaning and scope of the
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`claims of the Patents-in-Suit is a matter of law. I have been informed that to
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`determine the meaning of the claims, courts consider the intrinsic evidence,
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`which includes the patent’s claims, written description, prosecution history,
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`materials incorporated by reference in the patent, and prior art cited in the
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`patent or its prosecution history. Courts give claim terms their ordinary and
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`accustomed meaning as understood by one of ordinary skill in the art at the time
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`of the invention in the context of the entire patent. A patentee may also define
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`his or her own terms or disclaim claim scope. The intrinsic record may also
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`resolve ambiguous claim terms where the ordinary and accustomed meaning of
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`the words used in the claims lack sufficient clarity to permit the scope of the
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`claim to be ascertained from the words alone. However, particular embodiments
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`and examples appearing in the specification will not generally be read into the
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`Bell Northern Research, LLC, Exhibit 2003, Page 5 of 23
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`claims. A term’s context in the asserted claims can also be helpful. Differences
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`among the claim terms can also assist in understanding a term’s meaning. For
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`example, when a dependent claim adds a limitation to an independent claim, it
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`is presumed that the independent claim does not include the limitation.
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`13.
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`I have been informed that extrinsic evidence can also be useful
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`in determining the meaning of claim terms, however, it is less significant than
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`the intrinsic record. Technical dictionaries may be useful to show the manner in
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`which one skilled in the art might use claim terms, but technical dictionaries
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`may provide definitions that are too broad or may not be indicative of how the
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`term is used in the patent.
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`14.
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` Standard for Obviousness: I have been instructed by counsel
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`and understand that a combination of prior-art references may render a claim
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`obvious if, at the time of the invention, a person of ordinary skill in the art
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`would have selected and combined those prior-art elements in the normal
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`course of research and development to yield the claimed invention.
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`15.
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` I understand that in making the obviousness inquiry, one
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`should consider the Graham factors: the scope and content of the prior art; the
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`differences between the claimed inventions and the prior art; the level of
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`ordinary skill in the art; and certain secondary considerations, identified below.
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`I further understand the obviousness analysis is to be performed on a claim-by-
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`Bell Northern Research, LLC, Exhibit 2003, Page 6 of 23
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`claim basis. I understand that a person of ordinary skill in the art is a person of
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`ordinary creativity, not an automaton.
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`16.
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` I have been instructed by counsel and understand that
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`obviousness requires more than a mere showing that the prior art includes
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`separate references covering each separate limitation in a claim under
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`examination. I understand obviousness requires the additional showing that a
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`person of ordinary skill at the time of the invention would have been motivated
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`to combine those references, and, in making that combination, a person of
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`ordinary skill in the art would have had a reasonable expectation of success.
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`17.
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` I also understand that an obviousness analysis must be
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`conducted with awareness of the distortion caused by hindsight bias and with
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`caution of arguments reliant upon ex post reasoning. Counsel has instructed me
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`that when considering obviousness, I should not consider what is known today
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`or what was learned from the asserted patents. Instead, I should put myself in
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`the position of a person of ordinary skill in the field at the time of the invention.
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`18.
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`In particular, I understand that it is improper to use the
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`invention as a roadmap to find its prior-art components because such an
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`approach discounts the value of combining various existing features or
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`principles in a new way to achieve a new result.
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`6
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`Bell Northern Research, LLC, Exhibit 2003, Page 7 of 23
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`19.
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`I understand that an invention would not have been obvious to
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`try when one would have had to try all possibilities in a field unreduced by
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`direction of the prior art. Stated another way, when what would have been
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`“obvious to try” would have entailed varying all parameters or trying each of
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`numerous possible choices until one possibly arrived at a successful result,
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`where the prior art gave either no indication of which parameters were critical
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`or no direction as to which of many possible choices would have been likely to
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`be successful, an invention would not have been obvious. Further, an invention
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`is not obvious to try where prior art does not guide one toward a particular
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`solution.
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`20.
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`It is my understanding that I must also consider certain
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`objective evidence of nonobviousness if present, which includes, among others,
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`the prior art as a whole teaching away from the invention, a long-felt need for
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`the invention, the failure of others, copying of the invention, and industry
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`recognition/praise by others.
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`IV. A PERSON OF ORDINARY SKILL IN THE ART
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`21.
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`I understand that the claim terms of a patent are to be construed
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`from the point of view of a hypothetical person of skill in the art (POSITA) in
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`the time frame of the patent’s priority date. (At times I may refer to a person of
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`skill in the art as simply “a skilled person.”) For the purpose of assessing the
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`7
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`Bell Northern Research, LLC, Exhibit 2003, Page 8 of 23
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`level of ordinary skill of such an individual, I have considered the types of
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`problems encountered in the art, the prior solutions to those problems found in
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`the literature, the speed with which innovations were made in the time relevant
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`time frame, and the level of education and expertise of active workers in the
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`field.
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`22.
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`I believe that a POSITA in the relevant time frame would have
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`had at least a bachelor’s degree in electrical engineering, computer engineering,
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`computer science or similar field, and at least two to three years of experience
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`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. I believe that a POSITA also would have been familiar
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`with cellular telephone technology at least at the level of an ordinary user of
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`these devices as they were commercially available at the time. Given the above
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`description of a POSITA, and based on my education and advanced experience,
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`I believe that I meet or exceed the necessary qualifications.
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`V.
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`THE ’435 PATENT
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`23.
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` The ’435 Patent is entitled “Proximity Regulation System for
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`Use with a Portable Cell Phone and a Method of Operation Thereof,” and it
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`issued from an application filed on September 28, 2001.
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`8
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`Bell Northern Research, LLC, Exhibit 2003, Page 9 of 23
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`24.
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` The ’435 Patent generally relates to systems or methods that
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`regulate a mobile device’s transmission power to reduce potentially harmful
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`radiation when the device is proximate to a user. The specification describes the
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`potential issue that the patent addresses:
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`Typically, the quality of service of a cell phone is proportional to the
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`transmit power level of the cell phone….[H]ealth concerns have
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`arisen due to the power used to transmit the radio frequency of cell
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`phones when operated close to the body of a cell phone user. For
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`example, when held close to the ear, many users have health concerns
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`about the high levels of radio frequency energy causing damage to
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`brain cells.
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`(See ’435 Patent at 1:33–41.)
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`25.
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` In cellular telephone systems in general, it is desirable to
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`utilize the minimum power necessary for communication between the phone
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`and the nearest tower. This goal has two objectives, namely a) to keep the
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`power level below a designated maximum when the phone is next to the user’s
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`head, as the above citations from the patent suggest, and b) as a person of skill
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`would know, to extend battery life by using only the minimum power necessary
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`to establish communication with the nearest cell phone tower. Another
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`consideration is the balancing of power between multiple phones, so that all
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`9
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`Bell Northern Research, LLC, Exhibit 2003, Page 10 of 23
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`received signals will arrive at the cell tower at about the same power level, and
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`no one unit will dominate over the others with respect to received power level.
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`Mobile devices that have the ability to perform cellular communications must
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`conform to the standards for such communications. Thus, generally, mobile
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`devices have the ability to control the level of their transmitter output powers,
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`and the power emitted by a mobile station engaged in communication with a
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`cell tower is controlled by signals from the tower. This concept is illustrated in
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`the figure below:
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`A cell tower sends power control commands to mobile stations so that
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`power received from each mobile unit will be roughly at the same level. (Ex.
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`2006, Radio Access for Third Generation Mobile Communications, 3rd Ed, H.
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`Holma and A Toskala, Eds. West Sussex, England: 2004 John Wiley and Sons,
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`pg. 56.)
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`26. The ‘435 patent contemplates a mobile phone that ensures user
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`safety in the following way: The mobile phone receives instructions from the
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`Bell Northern Research, LLC, Exhibit 2003, Page 11 of 23
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`cell tower regarding transmission power levels, and at the same time, the phone
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`determines, based on measurements using a proximity sensor, a maximum
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`“proximity transmit power level” (see Id., 1:9-10) to be instituted when the
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`phone’s proximity sensor detects that a user is proximate. This maximum power
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`is set based on the location of the user relative to the phone: “In another
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`embodiment, the location sensing subsystem 220 may determine if the portable
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`cell phone 200 is proximate the head of the user through a designated sensor
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`225 located on the portable cell phone 200.” (Id., 4:57-61.)
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`27.
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`“In another embodiment, the location sensing subsystem 220
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`may determine if the portable cell phone 200 is proximate the head of the user
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`through a designated sensor 225 located on the portable cell phone 200.” (Id.,
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`4:57-61.)
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`28.
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`In this regard, the background section of the ’435 Patent
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`describes shortcomings of the prior art:
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`the
`the power of
`reducing
`[P]ermanently
`…
`transmitter in cellphones…also reduces the quality of
`service of the cell phone. Another option for
`consumers is the use of cell phones with a base that
`typically allows a higher transmit power level of up to
`three watts….These type of cell phones, however, do
`not allow the flexibility demanded by consumers that
`is found in the use of a portable cell phone.
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`(See ’435 Patent at 1:52–62.)
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`11
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`Bell Northern Research, LLC, Exhibit 2003, Page 12 of 23
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`29.
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`“Thus, [t]o address the above-discussed deficiencies of the prior
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`art, the present invention provides a proximity regulation system for use with a
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`portable cell phone.” (’435 Patent at 2:3–5.) This proximity regulation system,
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`in turn, “includes a location sensing subsystem and a power governing
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`subsystem, which cooperate to determine both the proximity transmit power
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`level and when it may be employed.” (’435 Patent at 3:47–51.) The location
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`sensing subsystem determines the location of the cell phone relative to the user,
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`and based on this information, the power governing subsystem, which is
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`coupled to the location sensing subsystem, determines the a “proximity transmit
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`power level” of the phone. (’435 Patent at 3:47–51.)
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`30. Thus the ‘435 patent discloses the measuring of the location of
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`the phone relative to a human so as to set the maximum proximity power level.
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`31. Other examples of such a disclosure can be found in the ‘435
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`patent:
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`“…the proximity regulation system 140 that determines a proximity
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`transmit power level of the portable cell phone 120 based on its
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`location proximate the portable cell phone user 150. Though not
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`illustrated in FIG. 1, the proximity regulation system 140 includes a
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`location sensing subsystem and a power governing subsystem, which
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`12
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`Bell Northern Research, LLC, Exhibit 2003, Page 13 of 23
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`cooperate to determine both the proximity transmit power level and
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`when it may be employed.” (Id., 3: 44-51; emphasis added.)
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`and also
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`“The proximity regulation system 210 determines a proximity
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`transmit power level of the portable cell phone 200 based on the
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`location of the portable cell phone 200 proximate a portable cell
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`phone user.” (Id., 4:31-35, emphasis added)
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`32.
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` The ’435 Patent further discloses a “power circuit” that
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`produces the cell phone’s transmission power. (’435 Patent at 3:31–34.) The
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`’435 Patent refers to its Figure 1 and elaborates on the power circuit’s function,
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`disclosing that “[t]hrough communications with the communications tower 110
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`employing the antenna 125, the power circuit,” provides a “network adjusted
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`transmit power level….” (Id. at 3:34–37.) The bolded element numbers refer to
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`Figure 1 of the ’435 Patent:
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`Bell Northern Research, LLC, Exhibit 2003, Page 14 of 23
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`33. The ’435 Patent teaches that the cell phone’s transmit power
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`level is ultimately determined, for example, by considering, adjusting, or
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`reducing the network adjusted transmit power level in view of the proximity
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`transmit power level. (See, e.g., ’435 Patent at 5:24–36; 7:9–40.)
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`34. A typical claim of the ’435 Patent is exemplified by Claim 1:
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`Bell Northern Research, LLC, Exhibit 2003, Page 15 of 23
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`VI. CLAIM CONSTRUCTION
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`35.
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`It is my understanding that Petitioner has proposed two
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`different and potentially competing definitions for the following term that
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`appears in claim 1: “position to a communications tower.”
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`36.
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`In claim 1, the “network adjusted transmit power level” is
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`claimed as “a function of a position to a communications tower.” Thus there is a
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`clear nexus between the “network adjusted transmit power level” and “position
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`to a communications tower.”
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`37.
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` As further explained below, I believe that the term “position to
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`a communications tower,” as it appears in the ’435 Patent, and as it further
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`defines “network adjusted transmit power level”, means “transmit signal
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`15
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`Bell Northern Research, LLC, Exhibit 2003, Page 16 of 23
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`strength of a communications path between the communications tower and the
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`portable cell phone.”
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`38. The specification supports this reading of the term, because it
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`specifically relates “network adjusted power level” to the transmit signal
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`strength: “The network adjusted transmit power level is based on a transmit
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`signal strength of a communications path between the communications
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`tower 110 and the portable cell phone 120.” (Ex. 1001, 3:39-42; emphasis
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`added.)
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`39. The relationship between the “transmit power level” and the
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`position of the phone relative the tower, which defines the communication path,
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`is found elsewhere in the specification. For example:
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`“After adjusting the transmit power level, the portable cell phone then
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`transmits at a reduced level in a step 350. In one embodiment, the
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`adjusted transmit power level may not exceed the network adjusted
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`transmit power level as determined by the communications path
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`between the portable cell phone and the communications tower.” (Id.,
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`7:21-27; emphasis added.)
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`and
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`“In other embodiments, the network adjusted transmit power level
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`may be a reduction from the maximum transmit power level due to the
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`Bell Northern Research, LLC, Exhibit 2003, Page 17 of 23
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`communications path between the communications tower and the
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`portable cell phone.” (Id., 7:36-40, emphasis added)
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`40.
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` The Lee book,1 cited and incorporated by reference into the
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`patent (see Exh 1001, 3:10-13), similarly supports this reading of the term
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`“position to a communications tower,” because it describes various obstructions
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`that can appear in the communication path between a tower and a device such
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`as a cellular phone, thereby altering the signal strength of a communications
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`path irrespective of specific position as measured only by distance. (See,
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`generally: Ex. 2005, 21-22, but also citations below.)
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`41. The Lee reference, for example, explains how the
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`communication path is affected by propagation attenuation attributable to the
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`path between cell phone and tower:
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`“Radio signals transmitted from a mobile-radio base station are not
`only subject to the same significant propagation-path losses that are
`encountered in other types of atmospheric propagations, but are also
`subject to the path-loss effects of terrestrial propagation.
`Terrestrial losses are greatly affected by the general topography of the
`terrain. The low mobile-antenna height, usually very close to ground
`level, contributes to this additional propagation-path loss. In general,
`the texture and roughness of the terrain tend to dissipate propagated
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`1 Ex. 2005, Mobile Communications Engineering: Theory and Applications by
`William C. Y. Lee, McGraw Hill (1997)
`17
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`Bell Northern Research, LLC, Exhibit 2003, Page 18 of 23
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`energy, reducing the received signal strength at the mobile unit and
`also at the base station. Losses of this type, combined with free-
`space losses, collectively make up the propagation-path loss.” (Ex.
`2005 at 21, emphasis added)
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`Similarly,
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`“Propagation between a mobile unit and a base station is most
`susceptible to the effects of multi-path fading phenomena, because
`all communication is essentially at ground level.” (Id.)
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`42.
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` In my opinion, which is consistent with the evidence cited
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`above, a POSITA at the time of the invention would have understood that the
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`network adjusted power level of claim 1 is not simply a matter of a device’s
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`geographic location relative to a communications tower, or how far the device
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`is from the communications tower, but also is a matter of everything in the path
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`between the device and the tower that would affect propagation.
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`VII. PRIOR ART REFERENCES
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`43.
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` I have reviewed the arguments and prior-art references
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`included in the Petition to support Grounds 1-3. In the paragraphs below, I offer
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`limited opinions and observations about those references. If required or asked to
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`do so, I will offer additional opinions regarding the grounds asserted in the
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`Petition at a later time.
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`18
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`Bell Northern Research, LLC, Exhibit 2003, Page 19 of 23
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`Ground 1: Luxon and Irvin
`44. Nowhere does Luxon use the terms “interference” or “radio
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`interference,” to refer to or relate to obstacles or topography that would
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`influence the “transmit signal strength of a communications path between the
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`communications tower and the portable cell phone.” Rather, much of Luxon
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`relates to reducing interference by the cellphone to hearing aids and devices
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`such as pacemakers, and the like. (See, e.g., Ex. 1004, Abstract, 5:9-21, 6:23-
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`25, 34:31-33; 39:15-19).
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`45. A POSITA would interpret Luxon’s reference to “interference”
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`or “radio interference” in column 41, at lines 33 and 44, as referring to radio
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`interference at a receiving base station caused by competing or undesired radio
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`signals, which a mobile device could potentially mitigate or overcome by
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`utilizing a greater power transmission.
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`46. Luxon achieves its stated goals of (1) reducing user radiation
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`via an antenna assembly with a shield structure that directs its transmission
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`signal away from user; (2) extending its signal range, and (3) reducing
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`interference with hearing aids and other in-body devices—when Luxon’s
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`antenna apparatus is deployed or in its open position. Conversely, each of the
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`three goals above is undermined or diminished if or when the antenna apparatus
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`is transmitted while in its stowed or closed position.
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`19
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`Bell Northern Research, LLC, Exhibit 2003, Page 20 of 23
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`47. When faced with the choice of (1) adding hardware proximity
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`systems and related software to enable potentially higher transmission strength
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`only when the Luxon antenna assembly is transmitting in its non-preferred
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`stowed position and is not proximate to a user, versus (2) achieve higher
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`transmission strength when the antenna assembly is not proximate a user,
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`without adding new hardware and software, and simply by deploying the
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`antenna—a POSITA would be motivated to simply deploy the antenna, rather
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`than combine the disclosures in Luxon and Irvin.
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`48. A POSITA would recognize that Luxon expected its antenna
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`assembly to be used in close proximity to a user. (See, e.g., Ex. 1004, Figs. 21-
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`22, 8:11-14.) A POSITA would understand that Luxon’s antenna assembly,
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`especially when used in its preferred deployed position, already addressed and
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`solved concerns regarding radiation exposure when in close proximity to a
`
`transmitting cell phone. (See, e.g., Ex. 1004, 41:46-54.) Accordingly, a
`
`POSITA would find the proximity system and potentially further lowered
`
`transmission levels from Irvin to be irrelevant and unnecessary in view of
`
`Luxon’s antenna assembly. (See Ex. 1004, 26:31-37; 41:46-54.)
`
`
`
`
`
`20
`
`Bell Northern Research, LLC, Exhibit 2003, Page 21 of 23
`
`
`
`Ground 2: Irvin and Myllymäki
`49. Myllymäki makes reference to a “received signal level.” That
`
`term refers only to the level received by a receiver from a transmitter. The
`
`“received signal level” could incorporate very limited characteristics of the
`
`signal, but it does not inherently include aspects of the communications path
`
`between a receiver and transmitter.
`
`50. The primary focus of Myllymäki is on battery life. The primary
`
`focus of Irvin is the reduction of RF power levels incident upon the user.
`
`51. As a result, I see no reason why a POSITA reviewing Irvin
`
`would then look to Myllymäki for guidance regarding the regulation of transmit
`
`power levels to reduce RF exposure.
`
`Ground 3: Steer and Irvin
`52. The primary focus of Steer is on controlling power within a
`
`communications system based on “a geographical location that corresponds to a
`
`portion of a mobile communications coverage area” of network provider (Ex.
`
`1007 at 3:52-65.) Steer does not address issues of user safety based on RF
`
`radiation or proximity of a mobile devise to a user.
`
`53. As stated above, the primary focus of Irvin is the reduction of
`
`RF power levels incident upon the user.
`
`
`
`21
`
`Bell Northern Research, LLC, Exhibit 2003, Page 22 of 23
`
`
`
`54. As a result, I see no reason why a POSITA reviewing Steer
`
`would then look to Irvin for guidance regarding the regulation of transmit
`
`power levels to reduce RF exposure.
`
`
`
`***
`
`I declare that all statements made herein of my own knowledge are true and
`
`that all statements made on information and belief are believed to be true.
`
`
`
`
`
`
`
`
`
` _______________________________
`
`
`
`
`
`Mark N. Horenstein, Ph.D.
`
`
`
`22
`
`Bell Northern Research, LLC, Exhibit 2003, Page 23 of 23
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`
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