IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Attorney Docket: 18768-0183IP1
`
`Richard L. McDowell et al.
`In re Patent of:
`U.S. Patent No.: 7,039,435
`Attorney Docket No.: 18768-0183IP1
`Issue Date:
`May 2, 2006
`Appl. Serial No.: 09/967,140
`Filing Date:
`September 28, 2001
`Title:
`PROXIMITY REGULATION SYSTEM FOR USE WITH A
`PROTABLE CELL PHONE AND A METHOD OF
`OPERATION THEREOF
`
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`DECLARATION OF MATTHEW VALENTI
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`LG 1003
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`Attorney Docket: 18768-0183IP1
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`TABLE OF CONTENTS
`I.  INTRODUCTION ............................................................................................. 3 
`II.  QUALIFICATIONS ....................................................................................... 4 
`III.  LEGAL STANDARD ..................................................................................... 7 
`A.  Anticipation .................................................................................................. 7 
`B.  Obviousness .................................................................................................. 8 
`C.  Claim Construction ..................................................................................... 9 
`IV.  PERSON OF ORDINARY SKILL IN THE ART..................................... 10 
`V.  MATERIALS CONSIDERED .................................................................... 12 
`VI.  BACKGROUND OF THE ’435 PATENT ................................................. 14 
`A.  Subject Matter Overview .......................................................................... 14 
`B.  File History of the ’435 Patent ................................................................. 15 
`VII.  OVERVIEW OF THE CITED REFERENCES .................................... 16 
`A.  U.S. Pat. No. 6,095,820 (“Luxon”) (EX1004) .......................................... 16 
`B.  PCT Patent Publication WO 2002/05443 (“Irvin”) (EX1005) .............. 19 
`C.  U.S. Pat. No. 6,018,646 (“Myllymäki”) (EX1006) .................................. 22 
`D.  U.S. Pat. No. 6,845,246 (“Steer”) (EX1007) ............................................ 23 
`VIII.  CLAIM CONSTRUCTIONS ................................................................... 26 
`IX.  GROUND 1A: CLAIMS 1, 2, 3, AND 8 ARE OBVIOUS IN VIEW OF
`LUXON IN VIEW OF IRVIN .............................................................................. 28 
`X.  GROUND 1B: CLAIM 6 IS OBVIOUS IN VIEW OF LUXON, IRVIN,
`AND MYLLYMÄKI .............................................................................................. 53 
`XI.  GROUND 2: CLAIMS 1, 2, 3, 6 AND 8 ARE OBVIOUS IN VIEW OF
`IRVIN AND MYLLYMÄKI ................................................................................. 58 
`XII.  GROUND 3: CLAIMS 1, 2, 3, 6, AND 8 ARE OBVIOUS IN VIEW OF
`STEER AND IRVIN .............................................................................................. 77 
`XIII.  CONCLUSION .......................................................................................... 90
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`Attorney Docket: 18768-0183IP1
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`I, Matthew Valenti, hereby declare the following:
`
`I.
`
`INTRODUCTION
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`
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`I have been retained as an independent technical expert on behalf of
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`LG Electronics, Inc. (“LG” or “Petitioner”). I understand that LG is petitioner in
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`an inter partes review before the Patent Trial and Appeal Board (“PTAB” or
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`“Board”) of U.S. Patent No. 7,039,435 (“the ’435 patent”) (EX1001).
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`
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`I have been asked to provide my independent analysis of the ’435
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`patent in light of the prior art publications cited below.
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`
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`I based my findings, as explained below, on my study, experience,
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`and background in the fields discussed below. I have also relied on my review and
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`analysis of the prior art, information provided to me in connection with this case,
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`and information I have independently reviewed.
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`
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`I am not, and never have been, an employee of LG. I am being
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`compensated for my work at my normal hourly compensation, based on time
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`actually spent analyzing the ’435 patent, the prior art publications cited here, and
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`the issues related to these materials, but my compensation is not contingent in any
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`way on the content of my opinions or the outcome of this proceeding.
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`Attorney Docket: 18768-0183IP1
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`II. QUALIFICATIONS
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` My research and teaching interests are in the areas of communication
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`theory and statistical signal processing. I am currently a Professor in and Interim
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`Chair of the Lane Department of Computer Science Electrical Engineering at West
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`Virginia University and previously worked as an Electronics Engineer at the U.S.
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`Naval Research Laboratory. Upon joining West Virginia University in 1999, I
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`founded the Wireless Communications Research Lab. I am also a registered
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`Professional Engineer (P.E.) in the state of West Virginia. A complete list of my
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`publications, professional activities, and honors that I have received is fully set
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`forth in my curriculum vitae, attached hereto as Appendix A.
`
`
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`I received a bachelor’s degree in Electrical Engineering from Virginia
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`Polytechnic Institute and State University (Virginia Tech) in 1992, a master’s
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`degree in Electrical Engineering from The Johns Hopkins University in 1995, and
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`a Ph.D. degree in Electrical Engineering from Virginia Tech in 1999, where I was
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`a Bradley Fellow.
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`
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`Prior to attending graduate school at Virginia Tech, I was an
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`Electronics Engineer with the United States Naval Research Laboratory in
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`Washington, DC, where I engaged in the design and development of a space-borne
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`adaptive antenna array and a system for the collection and correlation of maritime
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`electronic intelligence (ELINT) signals.
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`Attorney Docket: 18768-0183IP1
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` My research areas include communication theory, interference
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`analysis, error correction coding, applied information theory, efficient coded-
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`modulation, cooperative communications, and wireless multiple-access networks.
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`I have been recognized as an Outstanding Researcher by the College of
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`Engineering and Mineral Resources of West Virginia University on three
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`occasions: 2001, 2002, and 2009. I teach undergrad courses in Wireless
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`Networking and Digital Signal Processing Fundamentals, as well as graduate
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`courses in Stochastic Systems Theory, Communication Theory, and Coding
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`Theory.
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`
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`I act as a Consultant to several companies engaged in various aspects
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`of wireless receiver and protocol design and implementation for military, satellite,
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`and third-generation cellular applications.
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`
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`I have authored and co-authored approximately 150 technical papers
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`for various journals and conferences. I have presented several tutorials on wireless
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`systems including LTE and WiMAX at international conferences and regional
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`events, including a tutorial entitled “A day in the life of an LTE handset” at the
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`2013 Virginia Tech Symposium on Wireless Personal Communications and
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`Annual Summer School. My publications in the area of communication systems
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`date back to 1998. An example publication is “Analysis of a frequency-hopping
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`millimeter-wave cellular uplink,” published in the October 2016 issue of IEEE
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`Transactions on Wireless Communications. In that paper, I investigated a wireless
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`cellular system that features power control; i.e., the variation of power level based
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`on the distance of a mobile to a base station. A list of my publications within the
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`past ten years is included in Appendix B.
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`
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`I have been named a Fellow of the Institute of Electrical and
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`Electronic Engineers (IEEE) and am actively involved with the Communications
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`Society and its organization of multiple conferences and journals. I also served as
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`Editor on several IEEE Journals since 2003, including Transactions on
`
`Communications, Wireless Communications Letters, Transactions on Wireless
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`Communications, and Transactions on Vehicular Technology. I was also the
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`Executive Editor for the IEEE Transactions on Wireless Communications from
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`2014-2017. I presently serve as Editor in Chief for the IEEE ComSoc Best
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`Readings Journal, an online repository of curated content.
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`
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`I have served on numerous review panels for various research
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`initiatives related to communications system engineering. I have held Technical
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`Program Chair, Technical Program Vice-Chair, and Track Chair positions for
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`MILCOM, the preeminent international conference for military communications. I
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`have also held Technical Program Vice-Chair and Symposium Chair positions on
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`several committees for GLOBECOM, a flagship international annual meeting for
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`the communications technology industry. In addition, I have been an active
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`member in IEEE Communications Society Technical Committees, holding Chair
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`and Vice-Chair positions from 2013-2016.
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` Additional details of my education and work experience, awards and
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`honors, and publications that may be relevant to the opinions I have formed are set
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`forth in my curriculum vitae. See Appendix A. A list of cases in which I have
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`testified as an expert at trial or by deposition within the preceding four years is also
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`included. Id.
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`III. LEGAL STANDARD
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`
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`In forming my analysis and conclusions expressed in this declaration,
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`I have applied the legal principles described in the following paragraphs, which
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`were provided to me by counsel for the Petitioner.
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`A. Anticipation
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`
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`I have been informed by counsel that a patent claim is invalid as
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`“anticipated” if each and every element of a claim, as properly construed, is found
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`either explicitly or inherently in a single prior art reference. Under the principles
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`of inherency, I understand that if the prior art necessarily functions in accordance
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`with, or includes the claimed limitations, it anticipates.
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`
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`I have been informed by counsel that a claim is invalid if the claimed
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`invention was known or used by others in the U.S., or was patented or published
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`anywhere, before the Applicant’s invention. I further have been informed by
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`counsel that a claim is invalid if the invention was patented or published anywhere,
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`or was in public use, on sale, or offered for sale in this country, more than one year
`
`prior to the filing date of the patent application (critical date). I have also been
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`informed that a claim is invalid if an invention described by that claim was
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`described in a U.S. patent granted on an application for a patent (or in a published
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`application for a U.S. patent) that was filed by another in the U.S. before the date
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`of invention for such a claim.
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`B. Obviousness
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`
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`I have been informed that a patent claim is invalid as “obvious” in
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`light of one or more prior art references if it would have been obvious to a person
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`of ordinary skill in the art at the time of the alleged invention (“POSITA”; refer to
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`¶¶22-23 below), taking into account (1) the scope and content of the prior art, (2)
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`the differences between the prior art and the claims, (3) the level of ordinary skill
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`in the art, and (4) any so called “secondary considerations” of non-obviousness,
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`which include: (i) “long felt need” for the claimed invention, (ii) commercial
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`success attributable to the claimed invention, (iii) unexpected results of the claimed
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`invention, and (iv) “copying” of the claimed invention by others.
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` While I do not know the exact date that the alleged invention claimed
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`in the ’435 patent was made, I do know that the application that led to the ’435
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`patent (U.S. Appl. No. 09/967,140) was filed on September 28, 2001 (EX1001 at
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`Attorney Docket: 18768-0183IP1
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`cover page). Under the guidance of counsel, and for purposes of my analysis here,
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`I have applied September 28, 2001 as the date of the alleged invention in my
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`obviousness analysis. I note that in many cases the same analysis would hold true
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`even if the date of the alleged invention occurred earlier than September 28, 2001.
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`
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`I have been informed that a claim can be obvious in light of a single
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`prior art reference or multiple prior art references. To be obvious in light of a
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`single prior art reference or multiple prior art references, there must be a reason
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`that would have prompted a POSITA to modify the single prior art reference, or
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`combine two or more references, in a manner that provides the elements of the
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`claimed invention. This reason may come from a teaching, suggestion, or
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`motivation to combine, or may come from the reference(s) themselves, the
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`knowledge or “common sense” of a POSITA, or from the nature of the problem to
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`be solved, and this reason may be explicit or implicit from the prior art as a whole.
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`I have been informed that, under the law, the predictable combination of familiar
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`elements according to known methods is likely to be obvious when it does no more
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`than yield predictable results. I also understand it is improper to rely on hindsight
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`in making the obviousness determination.
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`C. Claim Construction
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`I have been informed by counsel that, for purposes of my analysis in
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`this inter partes review proceeding, the terms appearing in the patent claims should
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`be interpreted according to their “ordinary and customary meaning.” In
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`determining the ordinary and custom meaning, the words of a claim are first given
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`their plain meaning that those words would have had to a POSITA. I understand
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`that the structure of the claims, the specification, and the file history also may be
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`used to better construe a claim insofar as the plain meaning of the claims cannot be
`
`understood. Moreover, treatises and dictionaries may be used, albeit under limited
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`circumstances, to determine the meaning attributed by a POSITA to a claim term at
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`the time of filing. I have followed this approach in my analysis.
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`
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`I also understand that the words of the claims should be interpreted as
`
`they would have been interpreted by a POSITA at the time the alleged invention
`
`was made (not today). Because I do not know at what date the alleged invention
`
`was made, I have used the date of September 28, 2001 for reasons explained in ¶18
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`(above) and ¶23 (below). However, the plain meanings/interpretations that I
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`employed in my analysis below would have also been correct if the date of
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`invention was anywhere within the early to mid-2000s.
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`IV. PERSON OF ORDINARY SKILL IN THE ART
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` Counsel has informed me that I should consider the ’435 patent, and
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`the other references cited herein, through the lens of one of ordinary skill in the art
`
`related to the ’435 patent. Based on my knowledge and experience in the field and
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`my review of the ’435 patent and its file history, I believe that a POSITA would
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`Attorney Docket: 18768-0183IP1
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`have had at least a bachelor’s degree in electrical engineering, computer science, or
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`a related technical field, and at least 1-2 years of experience in the field of wireless
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`communication devices, or an equivalent advanced education in the field of
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`wireless communication devices. For purposes of assessing this level of ordinary
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`skill in the art, I have considered the types of problems encountered in the art, the
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`prior solutions to those problems found in prior art references, the speed with
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`which innovations were made at that time, the sophistication of the technology,
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`and the level of education of active workers in the field. As previously described, I
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`have reviewed and understand the ’435 patent, and I understand these factors.
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`Based on my above-described experiences (refer to ¶¶5-13 above), I am familiar
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`with and know of the capabilities of a POSITA in this field during the relevant
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`time frame. My analysis and conclusions as expressed herein are thus based on the
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`perspective of a POSITA having this level of knowledge and skill at the time of the
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`alleged invention of the ’435 patent.
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`
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`I have used the filing date (September 28, 2001) of the application
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`that led to the ’435 patent claims priority as the point in time from which my
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`analysis from the perspective of a POSITA is based. However, my analysis of the
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`prior art and the conclusion herein would also apply even if the date of the alleged
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`invention as claimed was anywhere within the early 2000s.
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`Attorney Docket: 18768-0183IP1
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`V. MATERIALS CONSIDERED
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` As part of my preparation for writing this Declaration, I reviewed the
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`following materials:
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`
`
`
`
` U.S. Pat. No. 7,039,435 to McDowell et al. (“the ’435 patent”)
`(EX1001)
`
` File History of the ’435 Patent (EX1002)
`
` U.S. Pat. No. 6,095,820 (“Luxon”) (EX1004)
` PCT Patent Publication WO 2002/05443 (“Irvin”) (EX1005)
` U.S. Pat. No. 6,018,646 (“Myllymäki”) (EX1006)
` U.S. Pat. No. 6,845,246 (“Steer”) (EX1007)
` Joint Claim Construction Chart, Worksheet, and Hearing Statement in
`Bell Northern Research, LLC, v. Huawei Device (Dongguan) Co.,
`Ltd., Huawei Device (Shenzhen) Co., Ltd., and Huawei Device USA,
`Inc. (Case No. 3:18-cv-1784) (S.D.Cal., filed 4/19/19) (EX1008)
` Defendants’ Joint Opening Claim Construction Brief in Bell Northern
`Research, LLC, v. Huawei Device (Dongguan) Co., Ltd., Huawei
`Device (Shenzhen) Co., Ltd., and Huawei Device USA, Inc. (Case No.
`3:18-cv-1784) (S.D. Cal.) (EX1009)
` Plaintiff’s Opening Claim Construction Brief in Bell Northern
`Research, LLC, v. Huawei Device (Dongguan) Co., Ltd., Huawei
`Device (Shenzhen) Co., Ltd., and Huawei Device USA, Inc. (Case No.
`3:18-cv-1784) (S.D. Cal.) (EX1010)
` Claim Construction Order and Order on Motions for Summary
`Judgement in Bell Northern Research, LLC, v. Huawei Device
`(Dongguan) Co., Ltd., Huawei Device (Shenzhen) Co., Ltd., and
`
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`Attorney Docket: 18768-0183IP1
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`Huawei Device USA, Inc. (Case No. 3:18-cv-1784) (S.D. Cal.)
`(EX1011)
` Joint Claim Construction Chart, Worksheet, and Hearing Statement in
`Bell Northern Research, LLC v. LG Electronics Inc., et al. (Case No.
`3:18-CV-2864 (S.D. Cal.) (EX1012)
` Joint Motion for Entry of Prior Claim Construction Order in Bell
`Northern Research, LLC v. LG Electronics Inc., et al. (Case No. 3:18-
`CV-2864 (S.D. Cal.) (EX1013)
` Order Granting Joint Motion for Entry of Prior Claim Construction
`Order in Bell Northern Research, LLC v. LG Electronics Inc., et al.
`(Case No. 3:18-CV-2864 (S.D. Cal.) (EX1014)
` Webster’s II New College Dictionary (Houghton Mifflin Co, 1999)
`(EX1015)
` Webster’s New World College Dictionary (Simon & Schuster, 1997)
`(EX1016)
` Harry Newton, Newton’s Telecom Dictionary (Miller Freeman, Inc.,
`1999) (EX1017)
` Martin H. Weik, Fiber Optics Standard Dictionary (Chapman & Hall,
`1997) (EX1018)
` U.S. Pat. No. 6,029,074 (“Irvin ’074”) (EX1019)
` U.S. Provisional Patent Application No. 09/612,034 (“Irvin
`Provisional”) (EX1020)
` Michael Barr, Programming Embedded Systems in C and C++
`(O’Reilly & Associates, 1999) (EX1021)
`
` Rudolf F. Graf, Modern Dictionary of Electronics (Butter-worth-
`Heinemann, 1999) (EX1022)
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`Attorney Docket: 18768-0183IP1
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` U.S. Pat. No. 6,456,856 (“Werling”) (EX1023)
` U.S. Pat. No. 6,498,924 (“Vogel”) (EX1024)
` Defendants’ Motion For Summary Judgement On Indefiniteness in
`Bell Northern Research, LLC v. LG Electronics Inc., et al. (Case No.
`3:18-CV-2864 (S.D. Cal.) (EX1025)
` My opinions are based on my years of education, research, and
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`industry experience, as well as my investigation and study of relevant materials.
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` Although this declaration refers to selected portions of the cited
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`references for the sake of brevity, it should be understood that these are examples,
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`and that a POSITA would have viewed the references cited herein in their entirety
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`and in combination with other references cited herein or cited within the references
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`themselves. The references used in this declaration, therefore, should be viewed as
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`being considered herein in their entireties.
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`VI. BACKGROUND OF THE ’435 PATENT
`A.
`Subject Matter Overview
` The ’435 patent is generally directed to reduction of the transmit
`
`power level of a cell phone when the phone is near a human body. EX1001,
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`Abstract; 1:63-67. For example, the ’435 patent describes a “proximity regulation
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`system for use with a portable cell phone” for reducing the transmit power level
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`when located near a human body. EX1001, Abstract; 1:63-67. The ’435 patent
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`uses a “typical power circuit” to provide a transmit power level. EX1001, 3:31-34,
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`4:31-61, cl. 1. The ’435 patent describes a “location sensing subsystem” to
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`Attorney Docket: 18768-0183IP1
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`“determine[] a location of the portable cell phone 200 proximate a user,” such as
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`that the “portable cell phone 200 is proximate the head of the user.” EX1001,
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`4:19-31. The “proximity regulation system” is coupled with the “power circuit”
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`that determines a “proximity transmit power level” based on “its location
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`proximate the portable cell phone user.” EX1001, 3:43-4:4, 5:24-36, 6:44-54, cl.
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`1.
`
` As I explain in greater detail below, the ’435 patent describes features
`
`that were well-known in similar mobile devices before the earliest asserted priority
`
`date of the ’435 patent, as exemplified by at least the Luxon (EX1004), Irvin
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`(EX1005), Myllymäki (EX1006), and Steer (EX1007) references.
`B.
`File History of the ’435 Patent
` As part of my preparation of this declaration, I reviewed the file
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`history of the ’435 patent (EX1002). I understand that the application that led to
`
`the ’435 patent was filed on September 28, 2001, and issued on May 2, 2006.
`
`EX1001 at Cover Page.
`
` An initial office action was mailed August 13, 2004, rejecting original
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`claim 19 (corresponding to issued claim 1) based upon a combination of Werling
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`(EX1023) and Vogel (EX1024). EX1002, 84-85. In response, Applicant argued
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`that Werling and Vogel did not teach a power circuit that provides a network
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`adjusted transmit power level “as a function of a position to a communications
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`tower” and therefore these cited references failed to teach a power governing
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`subsystem that determines “a transmit power level for a portable cell phone based
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`on a network adjusted transmit power level and a proximity transmit power level as
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`recited in Claim 19.” EX1002, 73-74.
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` A final office action was mailed August 8, 2005, allowing claims 19-
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`27 and maintaining the rejection of claims 1-18. EX1002, 20-27. Applicant
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`cancelled the rejected claims. EX1002, 4-7; 15-18.
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`
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`I note that the examiner emphasized the final element of issued claim
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`1 for the reasons for allowance of claims 19-27. EX1002, 27. Based on my review
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`of the record, some of the more pertinent references listed above (and which I
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`analyze below) were never analyzed in any office action by the examiner during
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`prosecution. Based upon my knowledge and experience in this field and my
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`review of the publications cited here, I do not agree that at least claims 1, 2, 3, 6,
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`and 8 of the ’435 patent are patentable over the prior art. For example, the Luxon,
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`Irvin, Myllymäki, and Steer references describe these elements of issued claim 1,
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`including the features emphasized in the examiner’s reasons for allowance
`
`VII. OVERVIEW OF THE CITED REFERENCES
`A. U.S. Pat. No. 6,095,820 (“Luxon”) (EX1004)
` Luxon was issued August 1, 2000, before the filing date of the ’435
`
`patent. EX1004, Cover Page. Luxon describes a “hand-held radio telephone . . .
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`for communication via a remote receiver, such as a ground-based cell site.”
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`EX1004, 6:40-43; 7:8-13; see also 1:18-27; 6:5-23; 35:10-14. In particular, Luxon
`
`shows a “cellular phone” as an example of the hand-held radio telephone.
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`EX1004, 35:8-14 (“a radio signal transmitting device 602, such as a cellular
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`telephone 614”); FIGS. 54(a)-(b). Luxon describes that the radio telephone
`
`includes “an antenna assembly capable of preventing unwanted exposure of the
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`user to potentially harmful radiation, while providing an enhanced and extended
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`transmission signal to enable improved communication.” EX1004, 7:8-13; see
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`also 1:18-27; 6:5-43; 35:8-14.
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` Luxon describes that a signal power transmitted from the radio
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`telephone is controlled based on a “power level signal” received from the
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`terrestrial cell site. “Typically, the terrestrial cell site or other remote
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`receiver/transmitter sends a power level signal to the radio signal transmitting
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`device 602. This power level signal instructs the radio signal transmitting device
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`602 as to what transmission signal strength is required for effective communication
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`with the remote receiver/transmitter.” EX1004, 40:65-41:3; 41:28-31. The
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`“distance or interference” between the radio telephone and the cell site is factored
`
`into the “power level signal” communicated by the terrestrial cell site and,
`
`therefore, into the signal power transmitted from the radio telephone that is based
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`on the “power level signal.” EX1004, 41:28-33 (“a greater transmittable signal
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`power will be called for when radio communication is hampered due to distance or
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`interference.”); 41:42-45 (“when the user is at a far distance from the receiving
`
`site, terrestrial cell site, or PCS unit, or when there is radio interference, it is
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`desirable to have a stronger transmittable signal available.”).
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` Further, Luxon describes that a maximum signal power transmitted
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`from the hand-held radio telephone can be adjusted based on whether the antenna
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`is in a “stowed” or “deployed” position in an effort to maintain the signal power
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`“at a safe level” for the user. EX1004, 41:15-42:4; see also 38:34-65; 39:58-40:5.
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`For example, if the antenna of the radio telephone is in a stowed position, the
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`maximum transmittable signal power is “set at a predetermined relatively low
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`value.” EX1004, 41:19-37; 41:67-42:4. The maximum transmittable signal power
`
`can be raised to a “higher transmittable power level,” if the antenna is in a
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`deployed position. EX1004, 41:42-54; 41:63-66.
`
` Luxon describes that the radio telephone includes a “controlling
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`means 638” and a “signal generation circuit 644.” EX1004, 40:62-64; 41:37-42;
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`41:55-42:11; FIGS. 55(h)-(i). The signal generation circuit is “of a construction
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`used in the communication circuitry of a typical prior art radio signal transmitting
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`device,” such as a cellular telephone, and the controlling means includes “a power
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`circuit, such as that used in the communication circuitry of a typical prior art radio
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`signal transmitting device.” EX1004, 42:5-10; see also 40:62-64; FIGS. 55(h)-(i).
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`18
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`Attorney Docket: 18768-0183IP1
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`
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`EX1004, FIGS. 55(h) and 55(i).
`B.
`PCT Patent Publication WO 2002/05443 (“Irvin”) (EX1005)
`Irvin discloses a “mobile terminal that caps or limits RF power output
`
`
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`when the mobile terminal is very close to the user.” EX1005, 2; EX1020, 2. Irvin
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`further describes that the mobile terminal includes a “housing” and a “detector”
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`that “detects if the housing is proximate a human body.” EX1005, 2; EX1020, 2.
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`A “control” comprising a “programmed processor” is “operatively connected to the
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`transmitter and to the detector” and “controls transmitter power and limits
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`transmitter power if the detector detects that the housing is proximate a human
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`body.” EX1005, 2; EX1020, 2-3; EX1005, 6; EX1020, 7 (“[T]he mobile terminal
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`10 includes a proximity detector 38 for detecting if the housing 11, and thus
`
`antenna 12, is proximate a human body.”).
`
`
`
`I note that Irvin’s mobile terminal is used in different locations
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`relative to the user, and Irvin describes that the power level of the mobile terminal
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`is controlled based on both a power level signal transmitted from the base station
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`Attorney Docket: 18768-0183IP1
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`and the detected proximity to the user. For example, Irvin explains that “the base
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`station with which the mobile terminal 10 is communicating transmits a mobile
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`attenuation code (MAC) identifying one of eight power levels,” and the mobile
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`terminal processor “controls the power control loop 40 so that power output
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`satisfies the MAC.” EX1005, 6; EX1020, 8. Additionally, the power level may be
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`reduced when the mobile device is proximate the user, reducing potential radiation
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`exposure to the user. EX1005, 2; EX1020, 2 (“Again, to provide psychological
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`comfort regarding RF transmitters being very close to a human body, there is a
`
`need to control RF power output under such situations.”). “[I]f the proximity
`
`detector 38 senses that the antenna 12 is proximate the user, then the processor 22
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`establishes a power level cap that the power amplifier 46 is not permitted to
`
`exceed.” EX1005, 6-7 (“For example, in an [] mobile terminal, mobile attenuation
`
`codes 000, 001, 010 and 011 could be reset to 100 if the antenna 12 is near the
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`user,” and “other mobile attenuation codes would be processed unaltered,
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`regardless of proximity to the user, as the power output amounts generated from
`
`these codes are less than the cap.”); EX1020, 8; EX1019, 4:27-48 (“The power
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`control signals transmitted by the base station to the mobile terminal 10 are in the
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`form of a mobile attenuation code (MAC).”).
`
`
`
`Irvin describes various sensors for implementing the “proximity
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`detector,” including a “touch-sensitive detection circuit” that includes a
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`
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`20
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`Attorney Docket: 18768-0183IP1
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`“conductive element” designed to be “in contact with the user’s head” if “a device
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`is in a ‘talk’ position next to a user’s head.” EX1005, 3; cls. 7; 8; 17; 18; EX1020,
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`3; cls. 7; 8; 17; 18. Further, Irvin describes a “metallic ring” that is “connected to a
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`touch-sensitive detection circuit 104 mounted on the printed circuit board 100,”
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`and designed to “come[] in contact with the user's ear” if “the mobile terminal 10 is
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`placed in the ‘talk’ position next to the user's head.” EX1005, 10; EX1020, 13.
`
`
`
`Irvin was filed on June 20, 2001 and claims priority to U.S.
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`Provisional Application 09/612,034 (“Irvin Provisional”) filed July 7, 2000. Based
`
`on my review of Irving and the Irvin Provisional, the Irvin Provisional is
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`substantially similar to Irvin. I have included parallel citations to the Irvin
`
`provisional throughout my analysis, demonstrating that description of Irvin cited
`
`here was carried forward from, and supported by, the description of the Irvin
`
`Provisional. Additionally, a POSITA would have recognized the Irvin Provisional
`
`provided written description support for at least independent claim 1 of Irvin,
`
`especially in view of the nearly identical description in each. The table below
`
`includes each element of claim 1 of Irvin in the left column, and exemplary support
`
`for each element in the Irvin Provisional in the right column:
`
`Irvin Claim 1
`1. A portable communication device
`operable to limit transmitter power if
`proximate a human body, comprising:
`
`Exemplary Support in Irvin
`Provisional (EX1020)
`Cl. 1: “A portable communication
`device operable to limit transmitter
`power if proximate a human body,
`comprising:”;
`21
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`Attorney Docket: 18768-0183IP1
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`an antenna;
`
`4: “This invention relates to a mobile
`terminal used in a wireless
`communication system and, more
`particularly, to a mobile terminal
`operable to limit transmitter power if
`proximate a human body.”
`Cl. 1: “an antenna”;
`8: “antenna 12”;
`FIG. 1.
`a transmitter connected to the antenna; Cl. 1: “a transmitter connected to the
`antenna”;
`8: “transmitter 18”;
`FIG. 1.
`Cl. 1: “a detector for detecting if the
`antenna is proximate a human body;
`and”
`10: “proximity detector 38”;
`FIG. 1.
`Cl. 1: “a control operatively connected
`to the transmitter and to the detector,
`the control controlling transmitter
`power and limiting transmitter power if
`the detector detects that the antenna is
`proximate a human body.”
`10: “The processor 22 operates in
`accordance with a control program, as
`described more specifically below, to
`limit or cap transmitter power output if
`the antenna 12 is proximate a human
`body.”
`
`a detector for detecting if the antenna is
`proximate a human body; and
`
`a