UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`ERICSSON INC.,
`Petitioner,
`v.
`UNILOC 2017 LLC,
`Patent Owner.
`U.S. Patent No.: 7,016,676
`Issued: March 21, 2006
`Application No.: 10/089,959
`Filed: August 8, 2001
`
`Title: METHOD, NETWORK AND CONTROL STATION FOR THE
`TWO-WAY ALTERNATE CONTROL OF RADIO SYSTEMS OF
`DIFFERENT STANDARDS IN THE SAME FREQUENCY BAND
`_________________
`
`DECLARATION OF PETER RYSAVY
`
`DECLARATION OF PETER RYSAVY
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`Page i
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`EXHIBIT 1004 / Page 1 of 122
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`
`
`_________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_________________
`ERICSSON INC.,
`Petitioner,
`v.
`UNILOC 2017 LLC,
`Patent Owner.
`U.S. Patent No.: 7,016,676
`Issued: March 21, 2006
`Application No.: 10/089,959
`Filed: August 8, 2001
`
`Title: METHOD, NETWORK AND CONTROL STATION FOR THE
`TWO-WAY ALTERNATE CONTROL OF RADIO SYSTEMS OF
`DIFFERENT STANDARDS IN THE SAME FREQUENCY BAND
`_________________
`
`DECLARATION OF PETER RYSAVY
`
`DECLARATION OF PETER RYSAVY
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`Page i
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`EXHIBIT 1004 / Page 1 of 122
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`
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`Patent 7,016,676
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`TABLE OF CONTENTS
`
`Page(s)
`INTRODUCTION AND ENGAGEMENT .................................................... 1
`
`BACKGROUND AND QUALIFICATIONS ................................................. 1
`
`I.
`
`II.
`
`III. MATERIALS CONSIDERED AND
`INFORMATION RELIED UPON REGARDING ’676 PATENT................. 4
`
`IV.
`
`V.
`
`SUMMARY OF CONCLUSIONS ................................................................. 6
`
`LEGAL UNDERSTANDING ......................................................................... 7
`
`VI. BACKGROUND AND STATE OF THE ART ............................................ 10
`
`A.
`
`Applicant’s Admitted Prior Art ........................................................... 10
`
`1.
`
`2.
`
`3.
`
`Different Radio Interface Standards
`Operating In The Same Frequency Band Was Known ............. 10
`
`Using A Control Station To
`Moderate Network Traffic Was Known ................................... 13
`
`“Switching” Frequency To Avoid Interference Was Known ... 14
`
`VII. OVERVIEW OF THE ’676 PATENT .......................................................... 15
`
`A.
`
`B.
`
`The ’676 Patent’s Specification .......................................................... 15
`
`The Challenged Claims ....................................................................... 20
`
`VIII. CLAIM CONSTRUCTION .......................................................................... 21
`
`A.
`
`B.
`
`Level Of Skill In The Art .................................................................... 21
`
`Proposed Constructions ....................................................................... 22
`
`1.
`
`(Claim 1) “Stations Which Operate In
`Accordance With A First Radio Interface
`Standard And/Or A Second Radio Interface Standard” ........... 22
`
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`EXHIBIT 1004 / Page 2 of 122
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`
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`Patent 7,016,676
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`2.
`
`3.
`
`4.
`
`(Claim 1) “Renders The Frequency Band
`Available For Access By The Stations Working
`In Accordance With The Second Radio Interface
`Standard If Stations Working In Accordance
`With The First Radio Interface Standard Do
`Not Request Access To The Frequency Band” ........................ 25
`
`(Claim 2) “Respective Duration”
`In Which The Stations Working In
`Accordance With The Second Radio Interface
`Standard Are Allowed To Utilize The Frequency Band .......... 28
`
`(Claim 5) “The Control Station Also
`Carries Out Functions Which Cause Radio Systems
`In Accordance With The First Radio Interface Standard
`To Interpret The Radio Channel As Interfered And To
`Seize Another Radio Channel For Its Own Operation” ............ 28
`
`IX. CLAIMS 1, 2, AND 5 OF THE ’676 PATENT ARE OBVIOUS ................ 33
`
`A.
`
`CLAIMS 1 AND 2 ARE OBVIOUS OVER HOMERF .................... 33
`
`1.
`
`HomeRF .................................................................................... 33
`
`a)
`
`b)
`
`c)
`
`d)
`
`HomeRF Shows A Protocol Method For
`Alternate Use Of The Same Frequency Band
`By Two Different Radio Interface Standards ................. 34
`
`HomeRF Shows A Control Station
`Controlling Use Of The Same Frequency Band By
`Stations Using Different Radio Interface Standards ...... 35
`
`HomeRF Shows The Control Channel Granting
`First Radio Interface Standard Devices “Priority”
`Over Second Radio Interface Standard Devices ............ 39
`
`HomeRF Shows Second Stations
`That Can Access The Same Frequency
`Band When First Stations Do Not “Request” It ............. 40
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`Patent 7,016,676
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`e)
`
`HomeRF Shows Stations Hopping To
`Another Frequency If Interference Is Detected .............. 46
`
`2.
`
`3.
`
`Claim 1 Is Obvious Over HomeRF ........................................... 46
`
`HomeRF Shows The Added Limitations Of Claim 2 ............... 54
`
`B.
`
`CLAIMS 1 AND 2 ARE OBVIOUS
`OVER HOMERF IN VIEW OF HOMERF TUTORIAL ................... 54
`
`1.
`
`HomeRF Tutorial ...................................................................... 55
`
`a)
`
`b)
`
`HomeRF Tutorial Further Describes
`A Control Station Controlling Use Of
`The Same Frequency Band By Stations
`Using Different Radio Interface Standards .................... 55
`
`HomeRF Tutorial Further Clarifies Granting
`Second Stations Access To The Common Frequency
`Band When First Stations Do Not “Request” It ............. 57
`
`2. Motivation To Combine The HomeRF References .................. 59
`
`3.
`
`4.
`
`Claim 1 Is Obvious Over
`HomeRF In View Of HomeRF Tutorial ................................... 60
`
`HomeRF In View Of HomeRF Tutorial
`Shows The Added Limitations Of Claim 2 .............................. 63
`
`C.
`
`CLAIMS 1 AND 2 ARE OBVIOUS
`OVER HOMERF IN VIEW OF HOMERF LIAISON REPORT ...... 63
`
`1.
`
`HomeRF Liaison Report ........................................................... 64
`
`a)
`
`HomeRF Liaison Report Further Clarifies Granting
`Second Stations Access To The Common Frequency
`Band When First Stations Do Not “Request” It ............. 64
`
`2. Motivation To Combine HomeRF Liaison Report, HomeRF .. 65
`
`3.
`
`Claim 1 is Obvious Over HomeRF
`In View Of HomeRF Liaison Report ........................................ 66
`
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`Patent 7,016,676
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`4.
`
`HomeRF In View Of HomeRF Liaison
`Report Shows The Added Limitations Of Claim 2 .................. 68
`
`D.
`
`CLAIMS 1 AND 2 ARE OBVIOUS OVER LANSFORD ................ 68
`
`1.
`
`U.S. Patent No. 6,937,158 (“Lansford”) ................................... 68
`
`a)
`
`b)
`
`c)
`
`Lansford Shows A Protocol Method For Alternate Use
`Of The Same Frequency Band By Wireless Devices
`Using Different Wireless Communication Protocols ..... 69
`
`Lansford Shows A Frequency Hopping “Controller”
`Transmission Device Controlling Use Of A Common
`Frequency Band By Additional Frequency Hopping
`Devices Using Different Communication Protocols ...... 69
`
`Lansford Shows The Control Station
`Determining A Respective Duration For
`Stations To Utilize The Common Frequency Band ....... 75
`
`2.
`
`3.
`
`Claim 1 Is Obvious Over Lansford ........................................... 77
`
`Lansford Shows The Added Limitations Of Claim 2 ............... 81
`
`E.
`
`CLAIM 5 IS OBVIOUS
`OVER HOMERF IN VIEW OF HOMERF SWAP SPEC. 1.3 .......... 82
`
`1.
`
`HomeRF SWAP Spec. 1.3 ........................................................ 82
`
`a)
`
`HomeRF SWAP Spec. 1.3 Shows Stations Hopping
`To Another Frequency If Interference Is Detected ........ 84
`
`Motivation To Combine
`HomeRF With HomeRF SWAP Spec. 1.3 ............................... 85
`
`HomeRF Teaches Or Suggests All Of
`The Limitations Of Claim 1, Incorporated Into Claim 5 .......... 86
`
`HomeRF In View Of HomeRF SWAP
`Spec. 1.3 Shows The Added Limitations Of Claim 5 ............... 86
`
`2.
`
`3.
`
`4.
`
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`EXHIBIT 1004 / Page 5 of 122
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`Patent 7,016,676
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`F.
`
`CLAIM 5 IS OBVIOUS OVER
`HOMERF IN VIEW OF HOMERF TUTORIAL
`IN FURTHER VIEW OF HOMERF SWAP SPEC. 1.3 .................... 87
`
`1.
`
`2.
`
`3.
`
`Motivation To Combine HomeRF With
`HomeRF Tutorial And HomeRF SWAP Spec 1.3 ................... 87
`
`HomeRF In View Of HomeRF
`Tutorial Teaches Or Suggests All Of
`The Limitations Of Claim 1, Incorporated Into Claim 5 .......... 87
`
`HomeRF In View Of HomeRF
`Tutorial In Further View Of HomeRF SWAP
`Spec. 1.3 Shows The Added Limitations Of Claim 5 ............... 88
`
`G.
`
`CLAIM 5 IS OBVIOUS OVER
`HOMERF IN VIEW OF HAARTSEN ............................................... 88
`
`1.
`
`2.
`
`3.
`
`4.
`
`U.S. Patent No. 7,280,580 (“Haartsen”) ................................... 88
`
`Motivation To Combine HomeRF With Haartsen .................... 91
`
`HomeRF Teaches Or Suggests All Of
`The Limitations Of Claim 1, Incorporated Into Claim 5 .......... 91
`
`HomeRF In View Of Haartsen
`Shows The Added Limitations Of Claim 5 .............................. 92
`
`H.
`
`CLAIM 5 IS OBVIOUS OVER HOMERF
`IN VIEW OF HOMERF TUTORIAL AND HAARTSEN ................ 93
`
`1.
`
`2.
`
`3.
`
`Motivation To Combine
`HomeRF With HomeRF Tutorial And Haartsen ...................... 93
`
`HomeRF In View Of HomeRF
`Tutorial Teaches Or Suggests All Of
`The Limitations Of Claim 1, Incorporated Into Claim 5 .......... 94
`
`HomeRF In View Of HomeRF Tutorial And
`Haartsen Shows The Added Limitations Of Claim 5 ............... 94
`
`DECLARATION OF PETER RYSAVY
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`EXHIBIT 1004 / Page 6 of 122
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`Patent 7,016,676
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`X.
`
`CONCLUSION .............................................................................................. 94
`
`XI. AVAILABILITY FOR CROSS-EXAMINATION ...................................... 94
`
`A.
`
`B.
`
`Right to Supplement ............................................................................ 95
`
`Signature .............................................................................................. 95
`
`DECLARATION OF PETER RYSAVY
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`Page vii
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`EXHIBIT 1004 / Page 7 of 122
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`Patent 7,016,676
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`I, Peter Rysavy, do hereby declare as follows:
`
`I.
`
`INTRODUCTION AND ENGAGEMENT
`1.
`I have been retained as an independent expert on behalf of Ericsson
`
`Inc. in connection with the above-captioned Petition for Inter Partes Review
`
`(“IPR”) to provide my analyses and opinions on certain technical issues related to
`
`U.S. Patent No. 7,016,676 (hereinafter “the ’676 Patent”).
`
`2.
`
`Specifically, I have been asked to provide my opinions regarding
`
`whether claims 1, 2, and 5 (each a “Challenged Claim” and collectively the
`
`“Challenged Claims”) of the ’676 Patent would have been obvious to a person
`
`having ordinary skill in the art (“POSITA”) at the time the application that issued
`
`into the ’676 patent was filed, August 8, 2001.
`
`3.
`
`It is my opinion that each Challenged Claim would have been obvious
`
`to a POSITA after reviewing the prior art discussed herein.
`
`II.
`
`BACKGROUND AND QUALIFICATIONS
`4.
`I graduated with BSEE and MSEE degrees from Stanford University
`
`in 1979.
`
`5.
`
`From 1988 to 1993, I was vice president of engineering and
`
`technology at Traveling Software (later renamed LapLink), at which projects
`
`included LapLink, LapLink Wireless, and connectivity solutions for a wide variety
`
`of mobile platforms. During this period, I was responsible for evaluating wireless
`
`DECLARATION OF PETER RYSAVY
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`EXHIBIT 1004 / Page 8 of 122
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`technologies for use with the LapLink file transfer and synchronization product
`
`family. I also managed the development of a short-range wireless modem called
`
`LapLink Wireless that replaced a serial-data cable connection between computers.
`
`Prior to Traveling Software, I spent seven years at Fluke Corporation, where I
`
`worked on data-acquisition products and touch-screen technology.
`
`6.
`
`I am the president of the consulting firm Rysavy Research LLC and
`
`have worked as a consultant in the field of wireless technology since 1993. As a
`
`consultant I specialize in wireless technology. One of my clients in 1994 was
`
`McCaw Cellular (which later became AT&T Wireless), the leading U.S. cellular
`
`company at the time. I did multiple projects for McCaw Cellular, helping me
`
`develop my expertise in wireless and cellular technology.
`
`7.
`
`Beginning in 1994, I began teaching public wireless courses,
`
`including courses that I taught at Portland State University, the University of
`
`California at Los Angeles, at conferences, and through my own organization.
`
`These courses included content about Wi-Fi and other wireless local area
`
`networks, Bluetooth, paging, cellular, mobile-data networks, mobile-browser
`
`technologies, and mobile-application architectures.
`
`8.
`
`Past projects have included evaluation of wireless technology
`
`capabilities, reports on the evolution of wireless technology, strategic
`
`consultations, system design, articles, courses and webcasts, network performance
`
`DECLARATION OF PETER RYSAVY
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`EXHIBIT 1004 / Page 9 of 122
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`Patent 7,016,676
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`measurement, test reports, and involvement in multiple patent litigation cases. My
`
`past and current clients include more than ninety-five organizations.
`
`9.
`
`I have written more than one hundred and eighty articles, reports, and
`
`papers, and have taught more than forty public courses and webcasts, on wireless
`
`technology. I have also performed technical evaluations of many wireless
`
`technologies including mobile browser technologies, wireless e-mail systems,
`
`municipal/mesh Wi-Fi networks, Wi-Fi hotspot networks, cellular-data services,
`
`and social networking applications.
`
`10. From 2000 to 2016, as part of my consulting practice, I was the
`
`executive director of the Portable Computer and Communications Association
`
`(PCCA), which was formally incorporated in May of 1993 then operated as the
`
`Wireless Technology Association. The PCCA’s mission was to promote the
`
`interoperability of wireless-data systems, and its initial work was to develop
`
`interfaces between computer and wireless modems, as described, for example, at
`
`http://www.pcca.org.
`
`11.
`
`In the over the twenty years of my consulting career, I have studied or
`
`worked with nearly every major wireless technology related to cellular networks
`
`and wireless local-area networks. I have also worked with mobile device
`
`peripherals and have examined the various ways that mobile devices can connect
`
`with other devices, including wireless and wired connections.
`
`DECLARATION OF PETER RYSAVY
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`EXHIBIT 1004 / Page 10 of 122
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`12. Further detail on my background and work experience, along with a
`
`list of my publications and the cases in which I have given testimony in the past
`
`four years, is contained in my CV in Appendix 1.
`
`13.
`
`I am being compensated at my usual and customary rate for my time
`
`expended in connection with this IPR at the rate of $400 per hour, plus expenses.
`
`My compensation is for my time and is in no way dependent or based on the
`
`content of my opinions or testimony offered in this matter, the outcome of any
`
`issues in this matter, or the timing of when issues in this matter or this matter as a
`
`whole are resolved.
`
`III. MATERIALS CONSIDERED AND
`INFORMATION RELIED UPON REGARDING ’676 PATENT
`14.
`In preparing this declaration, I have reviewed the following materials
`
`bearing Exhibit Nos. that I understand are being referenced in the IPR to which my
`
`declaration is also an exhibit:
`
`No.
`
`1001
`
`1002
`
`LIST OF EXHIBITS
`
`Description
`
`U.S. Patent No. 7,016,’676, “METHOD, NETWORK AND
`CONTROL STATION FOR THE TWO-WAY ALTERNATE
`CONTROL OF RADIO SYSTEMS OF DIFFERENT
`STANDARDS IN THE SAME FREQUENCY BAND,” issued
`March 21, 2006 (the “’676 patent”)
`File History for U.S. Patent No. 7,016,676, Application No.
`10/089,959 (“’676 FH”)
`
`DECLARATION OF PETER RYSAVY
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`Page 4
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`EXHIBIT 1004 / Page 11 of 122
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`
`
`Patent 7,016,676
`
`1003
`
`1005
`
`1006
`
`1007
`
`1008
`
`1009
`
`1010
`
`1011
`
`1012
`
`1017
`
`1018
`
`1019
`
`Plaintiff’s “Disclosure of Asserted Claims And Infringement
`Contentions”, dated January 4, 2019, and including Exhibit A
`thereto (“UNILOC Contentions”)
`Excerpts of “Webster’s New World College Dictionary, 4th
`Edition”, © 1999 by Macmillan USA (“Webster’s”)
`“HomeRF: Wireless Networking for the Connected Home”, by
`Kevin J. Negus et al., IEEE Personal Communications, Vol. 7, Issue
`1, pgs. 20-27, Feb. 2000. (“HomeRF”)
`Declaration of Gerard P. Grenier, including Exhibit A thereto,
`signed and dated February 22, 2019 (“Grenier Dec.”)
`“HomeRF: Bringing Wireless Connectivity Home”, by
`Jim Lansford, Technical Committee Chair for the Home RF
`Working Group, March 9, 1999 (“HomeRF Tutorial”)
`“HomeRF™ Working Group 3rd Liaison Report”, by Tim Blaney
`of Commcepts, July 1998 (“HomeRF Liaison Report”)
`Declaration of Christina Boyce, including Exhibits A-D thereto,
`signed and dated March 11, 2019 (“Boyce Dec.”)
`Declaration of Rene DelaRosa, including Exhibits A and B thereto,
`signed and dated May 28, 2019 (“DelaRosa Dec.”)
`U.S. Patent No. 6,937,158, “METHOD AND APPARATUS FOR
`WIRELESS COMMUNICATION BETWEEN ELECTRONIC
`DEVICES,” filed December 29, 1999 and issued August 30, 2005
`(“Lansford”)
`U.S. Patent No. 7,280,580, “HOP SEQUENCE ADAPTATION IN
`A FREQUENCY-HOPPING COMMUNICATIONS SYSTEM,”
`filed October 15, 1999, and issued October 9, 2007 (“Haartsen”)
`Shared Wireless Access Protocol (Cordless Access) Specification
`SWAP-CA, Revision 1.3 draft 20000229, dated February 29, 2000
`by The HomeRF™ Technical Committee (“HomeRF SWAP Spec.
`1.3”)
`Declaration of Adrian Stephens, including Appendices A-R thereto,
`signed and dated May 16, 2019 (“Stephens Dec.”)
`
`DECLARATION OF PETER RYSAVY
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`IV. SUMMARY OF CONCLUSIONS
`15. As explained below, my opinion is that a POSITA would have viewed
`
`claims 1, 2 and 5 of the ’676 patent as being obvious in view of at least the
`
`following grounds.
`
`16. Claims 1 and 2:
`
`Ground
`
`Reference(s)
`
`Basis
`
`Claims
`
`Ground 1 HomeRF (Ex. 1006)
`Ground 2 HomeRF in view of
`HomeRF Tutorial (Ex. 1008)
`Ground 3 HomeRF in view of
`HomeRF Liaison Report (Ex.
`1009)
`Ground 4 Lansford (Ex. 1012)
`17. Claim 5:
`
`35 U.S.C. § 103
`35 U.S.C. § 103
`
`1 and 2
`1 and 2
`
`35 U.S.C. § 103
`
`1 and 2
`
`35 U.S.C. § 103
`
`1 and 2
`
`Ground
`
`Reference(s)
`
`Basis
`
`Claims
`
`Ground 1 HomeRF (Ex. 1006) in view of
`HomeRF SWAP Spec. 1.3 (Ex.
`1018)
`Ground 2 HomeRF in view of
`HomeRF Tutorial (Ex. 1008),
`in further view of
`HomeRF SWAP Spec. 1.3
`Ground 3 HomeRF in view of
`Haartsen (Ex. 1017)
`Ground 4 HomeRF in view of
`HomeRF Tutorial and Haartsen
`
`35 U.S.C. § 103
`
`5
`
`35 U.S.C. § 103
`
`5
`
`35 U.S.C. § 103
`
`35 U.S.C. § 103
`
`5
`
`5
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`V. LEGAL UNDERSTANDING
`18.
`I am informed by counsel for the Petitioner and understand that
`
`statutory and judicially created standards must be considered to determine the
`
`validity of a patent claim. I have reproduced standards relevant to this declaration
`
`in this section, as provided to me by counsel for Petitioner and as I understand
`
`them.
`
`19.
`
`I am informed by counsel for the Petitioner and understand that a
`
`claim is unpatentable for obviousness under 35 U.S.C. § 103 “if the differences
`
`between the subject matter sought to be patented and the prior art are such that the
`
`subject matter as a whole would have been obvious at the time the invention was
`
`made to a person having ordinary skill in the art to which said subject matter
`
`pertains.” 35 U.S.C. § 103. I am informed by counsel for the Petitioner and
`
`understand that obviousness may be based upon a single reference or a
`
`combination of references. I am informed by counsel for the Petitioner and
`
`understand that the combination of familiar elements according to known methods
`
`is likely to be obvious when it does no more than yield predictable results.
`
`However, I am informed by counsel for the Petitioner and understand that a patent
`
`claim composed of several elements is not proved obvious merely by
`
`demonstrating that each of its elements was, independently, known in the prior art.
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`EXHIBIT 1004 / Page 14 of 122
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`20.
`
`I am informed by counsel for the Petitioner and understand that when
`
`a patented invention is a combination of known elements, a court must determine
`
`whether there was an apparent reason to combine the known elements in the
`
`fashion claimed by the patent at issue by considering the teachings of prior art
`
`references, the effects of demands known to people working in the field or present
`
`in the marketplace, and the background knowledge possessed by a person having
`
`ordinary skill in the art.
`
`21.
`
`I am informed by counsel for the Petitioner and understand that a
`
`patent claim composed of several limitations is not proved obvious merely by
`
`demonstrating that each of its limitations was independently known in the prior art.
`
`I am informed by counsel for the Petitioner and understand that identifying a
`
`reason those elements would be combined can be important because inventions in
`
`many instances rely upon building blocks long since uncovered and claimed
`
`discoveries almost of necessity tend to be combinations of what, in some sense, is
`
`already known. I am informed by counsel for the Petitioner and understand that it
`
`is improper to use hindsight in an obviousness analysis, and that a patent’s claims
`
`should not be used as a “roadmap” to combine prior art references.
`
`22.
`
`I am informed by counsel for the Petitioner and understand that an
`
`obviousness inquiry requires consideration of the following factors: (1) the scope
`
`and content of the prior art; (2) the differences between the claims and the prior art;
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`(3) the level of ordinary skill in the pertinent art; and (4) any objective indicia of
`
`non-obviousness, such as commercial success, long-felt but unresolved need,
`
`failure of others, industry recognition, copying, and unexpected results. I
`
`understand that the foregoing factors are sometimes referred to as the “Graham
`
`factors.”1
`
`23.
`
`I am informed by counsel for Petitioner that objective indicia of
`
`nonobviousness can be evidence of nonobviousness in the record and enables the
`
`Patent Trial and Appeal Board (“Board”) and the courts to avoid improperly
`
`relying on hindsight in evaluating claims. I am further informed that such evidence
`
`must always be present when considered in connection with an obviousness
`
`determination. Further, to be afforded substantial weight, the objective indicia of
`
`nonobviousness must be tied to the novel elements of the claims at issue, but the
`
`objective indicia need only be reasonably commensurate with the scope of the
`
`claims. I am not aware of evidence of objective indicia of non-obviousness
`
`relevant to the ’676 patent.
`
`24.
`
`I am informed by counsel for the Petitioner and understand that all
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`prior art references are to be looked at from the viewpoint of a person of ordinary
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`1 See KSR Int’l v. Teleflex Inc., 550 U.S. 398, 406-07 (2007) (quoting Graham v.
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`John Deere Co., 383 U.S. 1, 17-18 (1966)).
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`DECLARATION OF PETER RYSAVY
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`Page 9
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`EXHIBIT 1004 / Page 16 of 122
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`Patent 7,016,676
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`skill in the art (“POSITA”). Furthermore, obviousness is analyzed from the
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`perspective of one of ordinary skill in the art at the time of the invention.
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`VI. BACKGROUND AND STATE OF THE ART
`25. The ’676 patent relates to a “Method, network and control station for
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`the two-way alternate control of radio systems of different standards in the same
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`frequency band”. ’676 patent, Title.
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`A. Applicant’s Admitted Prior Art
`26. The ’676 patent acknowledges that a number of the features recited
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`therein were already known in the art.
`
`1.
`
`Different Radio Interface Standards
`Operating In The Same Frequency Band Was Known
`27. The ’676 Patent acknowledges that each of the exemplary radio
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`interface standards it addresses in its “advantageous embodiments” was already
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`established, and that stations operating in accordance with these standards operate
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`in the same frequency band:
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`A radio system for wireless transmission of information
`is allowed to use transmission power only in accordance
`with standards. The national regulation authority
`determines on what frequencies with what transmission
`power and in accordance with what radio interface
`standard a radio system is allowed to transmit. For this
`purpose there is provided for so-termed ISM frequency
`bands (Industrial Scientific Medical) that radio systems
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`DECLARATION OF PETER RYSAVY
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`Page 10
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`EXHIBIT 1004 / Page 17 of 122
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`transmit in the same frequency band in accordance
`with different radio interface standards. An example of
`this is the US radio system IEEE802.11a and the
`European ETSI BRAN HiperLAN/2. The two radio
`systems transmit in the same frequency bands between
`5.5 GHz and 5.875 GHz with approximately the same
`radio transmission method, but different transmission
`protocols.
`
`’676 patent, 1:10-23.2
`
`28. The specification goes on to describe these two transmission protocols
`
`and their operation, as well as their interaction within this common frequency
`
`band. The ’676 patent further provides figures 1 and 2, illustrating the function of
`
`these “known” standards:
`
`
`2 Unless otherwise noted, emphasis in quoted language throughout this Declaration
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`is added, and not part of the original document cited.
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`DECLARATION OF PETER RYSAVY
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`Page 11
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`EXHIBIT 1004 / Page 18 of 122
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`’676 patent, Fig. 1, described id., 4:38-39, 45-46, respectively, as “show[ing] the
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`frame structure in accordance with the ETSI BRAN HiperLAN/2 standard” and
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`“show[ing] the structure of the HiperLAN/2 frame” (German language in figure is
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`
`
`in original).
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`DECLARATION OF PETER RYSAVY
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`Page 12
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`EXHIBIT 1004 / Page 19 of 122
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`Patent 7,016,676
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`
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`’676 patent, Fig. 2, described id., 4:47-49 as “diagrammatically show[ing] the
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`media access in systems working in accordance with the radio interface standard
`
`IEEE802.11a” (German language in original).
`
`29. A POSITA would have recognized, then, that both Figures 1 and 2 of
`
`the ’676 patent, and the accompanying discussion, refer to the state of the art at the
`
`time that the ’676 patent application was filed, as opposed to features introduced
`
`by the ’676 patent itself.
`
`2.
`
`Using A Control Station To
`Moderate Network Traffic Was Known
`30. The ’676 patent further acknowledges that systems operating in
`
`accordance with each of these prior art radio interface standards provided Medium
`
`Access Control, and that systems operating in accordance with ETSI BRAN
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`DECLARATION OF PETER RYSAVY
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`Page 13
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`EXHIBIT 1004 / Page 20 of 122
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`HiperLAN/2 – referred to as the “first radio interface standard” in the claimed
`
`“advantageous embodiment” described in the specification – provided a control
`
`station, referred to as an “Access Point”
`
`The Medium Access Control (MAC) of the two systems
`is totally different. ETSI BRAN HiperLAN/2 utilizes a
`centrally controlled reservation-based method in which
`a radio station takes over the role of a central instance
`co-ordinating the radio resources. This central radio
`station (Access Point, AP) which may be an access point
`to the wide area network, periodically signals every 2 ms
`the MAC frame structure from the AP and the associated
`stations if required.
`
`’676 patent, 1:34-42.
`
`3.
`“Switching” Frequency To Avoid Interference Was Known
`31. The ’676 patent further acknowledges that both of the prior art radio
`
`interface standards utilized “standardized” methods for “active switching” to
`
`another frequency within the permitted frequency band in the event of interference:
`
`In the event of interference, method [sic] were
`standardized for an active switching to another
`frequency within the permitted frequency band, for
`controlling transmission power and for the adaptive
`coding and modulation to reduce interference. Radio
`systems of wideband LANs of the radio interface
`standards ETSI BRAN HiperLAN/2 and IEEE802.11a
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`DECLARATION OF PETER RYSAVY
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`Page 14
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`EXHIBIT 1004 / Page 21 of 122
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`utilize the same radio transmission method, a 64-carrier
`OFDM method and an adaptive modulation and coding.
`About the same modulation and coding methods (Link
`Adaptation, LA) are defined for the two standards.
`
`’676 patent, 1:24-33.
`
`VII. OVERVIEW OF THE ’676 PATENT
`32. The ’676 patent, titled “METHOD, NETWORK AND CONTROL
`
`STATION FOR THE TWO-WAY ALTERNATE CONTROL OF RADIO
`
`SYSTEMS OF DIFFERENT STANDARDS IN THE SAME FREQUENCY
`
`BAND” issued on March 21, 2006. The ’676 patent issued from U.S. Patent
`
`Application No. 10/089,959 (the “’959 application”), filed on August 8, 2001,
`
`which is a National Stage Entry of PCT No. PCT/EP01/09258, filed August 8,
`
`2001 and published as WO 02/13457 A2, which in turn claims priority to a
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`German application, No. 100 39 532.5, filed August 8, 2000.
`
`A. The ’676 Patent’s Specification
`33. The ’676 patent includes 5 independent claims 1, 6, 7, 8, 9, of which
`
`only claim 1 is challenged here. Each of the first four independent claims recites
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`“[a]n interface-control protocol method for a radio system which has at least one
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`common frequency band that is provided for alternate use by a first and a second
`
`radio interface standard,” while claim 9 recites a “wireless network.”
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`DECLARATION OF PETER RYSAVY
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`Page 15
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`EXHIBIT 1004 / Page 22 of 122
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`Patent 7,016,676
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`34. As discussed above, the ’676 patent applicant admits that it was
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`known for radio systems using different radio interface standards to broadcast in
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`the same frequency band, namely “US radio system IEEE802.11a and the
`
`European ETSI BRAN HiperLAN/2”. ’676 patent, 1:10-23, and that it was known
`
`to switch to a different frequency within a common frequency band in the event of
`
`detected interference. Id., 1:24-28.
`
`35. But, the specification claims “In case of alternating interference,
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`[prior art] systems do not work efficiently and occupy a frequency channel even at
`
`low transmission rates.” Id., 2:8-10. Against this backdrop, the specification
`
`purports to provide “a method, a wireless network and a control station which
`
`make efficient use of radio transmission channels possible.” Id., 2:11-13.
`
`36. FIG. 3 is the only figure that shows something more than what the
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`patent admits is known technology. That figure shows providing a “central control
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`station 13” (labeled “S”) to control alternate use of a frequency band by different
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`stations operating on different standards: “three stations 10, 11 and 12 ... [that]
`
`work in accordance with the first radio interface standard A, for example, in
`
`accordance with the HiperLAN/2 standard” (each labeled “A”) and “four stations,
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`14, 15, 16, and 17 ... [that] work in accordance with the second radio interface
`
`standard B, for example, in accordance with the IEEE802.11a standard” (each
`
`labeled “B”). Id., 5:22-30. This control station “controls the alternate access by the
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`DECLARATION OF PETER RYSAVY
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`Page 16
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`EXHIBIT 1004 / Page 23 of 122
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`
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`first wireless network and the second wireless network to the common frequency
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`band.” Id., 5:39-41.
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`Patent 7,016,676
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`
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`’676 patent, FIG. 3 (annotated).
`
`37. The patent explains that “[t]he control of the alternate use of the
`
`common frequency band may be effected in various ways.” ’676 patent, 2:51-52.
`
`38.
`
`In one example: “it is possible to provide certain predefinable time
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`intervals for the use of the first and second radio interface standard and allocate the
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`frequency band alternately to the first radio interface standard and then to the
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`second radio interface standard in a kind of time-division multiplex mode.”
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`Id., 2:52-57.
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`DECLARATION OF PETER RYSAVY
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`Page 17
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`EXHIBIT 1004 / Page 24 of 122
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`Patent 7,016,676
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`39.
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`In another example, the first radio interface is prioritized, as the
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`second wireless network stations are provided frequency band access “if stations
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`operating in accordance with the first radio interface standard do not request
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`access”:
`
`as claimed in claim 2, the control station is provided, on
`the one hand, for controlling the access to the frequency
`band for stations operating in accordance with the first
`radio interface standard. ... In that case the stations of the
`[first radio interface standard] send a request for capacity
`to the control station and the control station allocates
`transmission capacity to each respective station.
`
`On the other hand, the control station is provided ... for
`releasing the common frequency band for access by
`stations operating in accordance with the second radio
`interface standard, if stations operating in accordance
`with the first radio interface standard do not request
`access to the frequency band. In this advantageo
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