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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`ERICSSON INC.
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`Petitioner
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`v.
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`UNILOC 2017 LLC
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`Patent Owner
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`IPR2020-00376
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`PATENT 7,016,676
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`PATENT OWNER PRELIMINARY RESPONSE TO PETITION
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`IPR2020-00376
`U.S. Patent 7,016,676
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`Table of Contents
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`I.
`
`II.
`
`INTRODUCTION .................................................................................... 1
`
`THE ’676 PATENT .................................................................................. 1
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`III.
`
`RELATED PROCEEDINGS .................................................................... 4
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`IV.
`
`THE LEVEL OF ORDINARY SKILL IN THE ART ............................. 5
`
`V.
`
`PETITIONER DOES NOT PROVE THAT ANY
`CHALLENGED CLAIM IS UNPATENTABLE .................................... 6
`
`A.
`
`Claim Construction ......................................................................... 7
`
`1.
`
`2.
`
`3.
`
`“Stations Which Operate In Accordance With A
`First Radio Interface Standard And/Or A Second
`Radio Interface Standard” .................................................... 8
`
`“Respective Duration In Which The Stations
`Working In Accordance With The Second Radio
`Interface Standard Are Allowed To Utilize The
`Frequency Band” ................................................................ 15
`
`“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” ................................................... 15
`
`4.
`
`The Steps within the Method of Claims 1 and 2 ................ 16
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`None of HomeRF, HomeRF Tutorial, and HomeRF
`Liaison Report (collectively “the HomeRF references”)
`Discloses “stations which operate in accordance with a
`first radio interface standard and/or a second radio
`interface standard” (Claim 1) (Grounds 1-3) ............................... 17
`
`None of HomeRF, HomeRF Tutorial, and HomeRF
`Liaison Report (collectively “the HomeRF references”)
`Discloses “a control station which controls the alternate
`
`B.
`
`C.
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`ii
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`IPR2020-00376
`U.S. Patent 7,016,676
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`use of the frequency band” / “wherein the control station
`controls the access to the common frequency band for
`stations working in accordance with the first radio
`interface standard” (Claim 1) (Grounds 1-3)................................ 27
`
`1.
`
`The Petition’s alternative scenario ..................................... 37
`
`D. None of HomeRF, HomeRF Tutorial, and HomeRF
`Liaison Report (collectively “the HomeRF references”)
`Discloses “wherein the control station …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 a control station
`which controls the alternate use of the frequency band”
`(Claim 1) (Grounds 1-3) ............................................................... 39
`
`E.
`
`F.
`
`The Petitioner Has Failed to Meet its Burden of
`Demonstrating that the HomeRF Tutorial and HomeRF
`Liaison Report Constitute Prior Art. ............................................ 43
`
`Lansford Does Not Disclose “a control station which
`controls the alternate use of the frequency band” or
`“wherein the control station …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 a control station which
`controls the alternate use of the frequency band” (Claim
`1) (Ground 4) ................................................................................ 49
`
`G.
`
`The Petition Fails As To The Challenged Dependent
`Claim 2 .......................................................................................... 55
`
`VI.
`
`APJS ARE UNCONSTITUTIONALLY APPOINTED
`PRINCIPAL OFFICERS ........................................................................ 55
`
`VII.
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`CONCLUSION ....................................................................................... 59
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`
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`iii
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`IPR2020-00376
`U.S. Patent 7,016,676
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`
`I.
`
`INTRODUCTION
`
`Uniloc 2017 LLC (“Uniloc” or “Patent Owner”) submits this Preliminary
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`Response to Petition IPR2020-00376 for Inter Partes Review (“Pet.” or “Petition”)
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`of United States Patent No. 7,016,676 (“the ’676 Patent” or “EX1001”) filed by
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`Ericsson Inc. (“Petitioner”). Petitioner has failed to carry its burden of showing a
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`reasonable likelihood of prevailing as to any challenged claim of the ‘676 for at least
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`the reasons set forth herein. Thus, this Petition should not be instituted or joined to
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`IPR2019-01116 (the “Microsoft IPR”).
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`II. THE ’676 PATENT
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`The ’676 patent is titled “Method, network and control station for the two-
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`way alternate control of radio systems of different standards in the same frequency
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`band.” The ʼ676 patent issued March 21, 2006, from U.S. Patent Application No.
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`10/089,959 filed April 4, 2002, which was a National Stage Entry of PCT No.
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`PCT/EP01/09258 filed August 8, 2001 and published as W002/13457, which in turn
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`claims priority to German Application No. DE10039532.5 filed August 8, 2000.
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`The inventors of the ’676 patent observed that at the time of the invention, a
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`radio system for wireless transmission of information was allowed to use
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`transmission power only in accordance with standards by the national regulation
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`authority. The national regulation authority determined on what frequencies with
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`what transmission power and in accordance with what radio interface standard a
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`radio system is allowed to transmit. There was also provided so-called ISM
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`frequency bands (Industrial Scientific Medical) where radio systems transmitted in
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`1
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`IPR2020-00376
`U.S. Patent 7,016,676
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`the same frequency band but in accordance with different radio interface standards.
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`EX1001, 1:10-23. And in the event of interference, methods were standardized for
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`an active switching to another frequency within the permitted frequency band, for
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`controlling transmission power and for the adaptive coding and modulation to reduce
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`interference. The ‘676 Patent notes that radio systems operating according to “the
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`radio interface standards ETSI BRAN HiperLAN/2 and IEEE 802.11a use the same
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`radio transmission method, a 64-carrier OFDM method,” and about the same
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`modulation and coding methods. EX1001, 1:28-33.
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`The ’676 Patent observes that, despite operating in the same frequency band,
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`different radio interface standards have different Medium Access Controls (MAC).
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`For the ETSI BRAN HiperLAN/2 radio interface standard, a centrally controlled
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`reservation-based medium access control method is employed, in which a radio
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`station takes over the role of a central instance coordinating the radio resources.
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`EX1001, 1:34-38. For the IEEE 802.11a radio interface standard, a different medium
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`access control method, namely CSMA/CA (Carrier Sense Multiple Access/Collision
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`Avoidance) is provided, in which all the radio stations listen in on the medium and
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`assume that the channel is unused for a minimum duration before 802.11a-MAC
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`frames; thus user data packets are transmitted if necessary. EX1001, 1:43-49.
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`Wideband LANs in accordance with the HiperLAN/2 and 802.11a radio
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`interface standards will operate in the same frequency band. EX1001, 1:63-65.
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`Despite the utilization of methods such as Transmitter Power Control (TPC) and
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`Dynamic Frequency Selection (DFS), those methods did not make optimum use of
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`2
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`IPR2020-00376
`U.S. Patent 7,016,676
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`spreading radio channels over the stations which operate under different radio
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`standards. EX1001, 1:65-2:10.
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`According to the invention of the ’676 Patent, there is provided a method, a
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`wireless network and a control station which make efficient use of radio transmission
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`channels possible by an interface control protocol method for a radio system, which
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`system comprises at least a frequency band provided for the alternate use of a first
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`and a second radio interface standard, the radio system comprising stations which
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`operate in accordance with a first radio interface standard and/or a second radio
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`interface standard, respectively, a control station being provided which controls the
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`alternate use of the frequency band. Based on the idea of providing a comprehensive
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`standard exchange of implicit or explicit control information in systems that have
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`the same radio transmission methods but different radio transmission protocols. This
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`makes a simple and efficient use possible of a radio channel via a plurality of radio
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`interface standards. EX1001, 2:14-28.
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`A first number of stations preferably forms a wireless local area network in
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`accordance with a first radio interface standard and a second number of stations
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`forms a wireless network in accordance with a second radio interface standard. The
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`control station is preferably a station that operates in accordance with both the first
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`and the second radio interface standard. The control station can utilize the common
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`radio channel more effectively when the demand for transmission capability in
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`accordance with the first and second radio standard varies. The control station may
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`release the common frequency band for access by stations operating under the
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`3
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`IPR2020-00376
`U.S. Patent 7,016,676
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`second radio interface if stations operating in accordance with the first radio
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`interface standard do not request access to the frequency band. The control station
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`controls the alternate access by the first wireless network and the second wireless
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`network to the common frequency band. The control station receives requests for
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`capacity from various stations and assigns capacity accordingly. The release of the
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`common frequency band for the second radio interface standard may be effected, for
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`example, by explicitly sending control information to the stations of the second radio
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`interface standard. As another example, control can be effected in that the control
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`station determines the respective duration in which the stations operating in
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`accordance with the second radio interface standard can utilize the common
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`frequency band. EX1001, 2:36-4:26.
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`III. RELATED PROCEEDINGS
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`The ’676 patent is involved in the following proceedings.
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`Case Name
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`Case Number
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`Court
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`Case
`Filing
`Date
`
`7/24/2018 Uniloc 2017 LLC et al v. Microsoft
`Corporation
`
`8-18-cv-01279
`
`CDCA
`
`8/29/2018 Uniloc 2017 LLC et al v. AT&T,
`Inc. et al
`
`2-18-cv-00379
`
`EDTX
`
`8/29/2018 Uniloc 2017 LLC et al v. Verizon
`Communications Inc. et al
`
`2-18-cv-00380
`
`EDTX
`
`10/31/2018 Uniloc 2017 LLC et al v. Google
`LLC
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`2-18-cv-00448
`
`EDTX
`
`4
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`
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`IPR2020-00376
`U.S. Patent 7,016,676
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`Case Name
`
`Case Number
`
`Court
`
`Case
`Filing
`Date
`
`11/17/2018 Uniloc 2017 LLC v. Microsoft
`Corporation
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`8-18-cv-02053
`
`CDCA
`
`11/17/2018 Uniloc 2017 LLC et al v. Google
`LLC
`
`2-18-cv-00495
`
`EDTX
`
`11/17/2018 Uniloc 2017 LLC v. Verizon
`Communications Inc. et al
`
`2-18-cv-00513
`
`EDTX
`
`11/17/2018 Uniloc 2017 LLC v. AT&T
`Services, Inc. et al
`
`2-18-cv-00514
`
`EDTX
`
`5/29/2019 Microsoft Corporation et al v.
`Uniloc 2017 LLC
`
`IPR2019-01116
`
`PTAB
`
`5/29/2019 Microsoft Corporation et al v.
`Uniloc 2017 LLC
`
`IPR2019-01125
`
`PTAB
`
`7/22/2019 Marvell Semiconductor, Inc. v.
`Uniloc 2017 LLC
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`IPR2019-01349
`
`PTAB
`
`7/22/2019 Marvell Semiconductor, Inc. v.
`Uniloc 2017 LLC
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`IPR2019-01350
`
`PTAB
`
`8/29/2019 Ericsson Inc. et al v. Uniloc 2017
`LLC
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`IPR2019-01550
`
`PTAB
`
`8/29/2019 Google LLC f/k/a Google Inc. v.
`Uniloc 2017 LLC
`
`IPR2019-01541
`
`PTAB
`
`1/3/2020
`
`Ericsson Inc. v. Uniloc 2017 LLC
`
`IPR2020-00376
`
`PTAB
`
`
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`IV. THE LEVEL OF ORDINARY SKILL IN THE ART
`
`The Petition alleges that “[t]he person of ordinary skill in the art at the time
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`5
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`U.S. Patent 7,016,676
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`the ’676 application was filed (“POSITA”) would have had a Bachelor’s Degree in
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`Electrical Engineering, Computer Science, or a related subject and one or more years
`
`of experience working with wireless networks and related standards, and would have
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`had an understanding of work being done by companies within the field of wireless
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`networks and related standards, including, e.g., systems or protocols for shared
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`access of wireless networks by different protocols.” Pet. 19. The qualifier “or more”
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`as applied to the years of working experience expands the level to encompass that
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`of an expert, which is inappropriate for the level of “ordinary skill.” Further, the
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`Petitioner’s assertion that a person of ordinary skill in the art at the time of the
`
`invention would have experience specifically in “systems or protocols for shared
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`access of wireless networks by different protocols” indicates a level of specialization
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`far beyond that of one of ordinary skill in the art, without support other than
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`conclusory statements by Petitioner’s declarant. See Ex. 1003, ¶¶46-47. Given that
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`Petitioner fails to meet its burden of proof in establishing prima facie anticipation or
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`obviousness when applying its own definition of a person of ordinary skill in the art
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`(“POSITA”), Patent Owner does not offer a competing definition for POSITA.
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`V.
`
`PETITIONER DOES NOT PROVE THAT ANY CHALLENGED
`CLAIM IS UNPATENTABLE
`
`Petitioner has the burden of proof to establish entitlement to relief. 37 C.F.R.
`
`§ 42.108(c) (“review shall not be instituted for a ground of unpatentability
`
`unless . . . there is a reasonable likelihood that at least one of the claims challenged
`
`. . . is unpatentable”). The Petition should be denied as failing to meet this burden.
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`The Petition raises the following obviousness challenges under 35 U.S.C.
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`6
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`IPR2020-00376
`U.S. Patent 7,016,676
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`§ 103:
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`Ground
`1
`2
`3
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`1 and 2
`1 and 2
`1 and 2
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`4
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`1 and 2
`
`Claims
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`Reference(s)
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`HomeRF1
`HomeRF and HomeRF Tutorial2
`Home RF and HomeRF Tutorial and
`HomeRF Liaison Report3
`Lansford4 (obviousness)
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`A. Claim Construction
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`Patent Owner submits that construction of the claim term “radio interface
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`standard” is required here in order to correct the erroneous implicit construction of
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`that term pressed by the Petitioner and adopted by the Board in the Institution
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`Decision. Patent Owner submits that the Board need not construe any other claim
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`term in a particular manner in order to arrive at the conclusion that the Petition is
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`substantively deficient. Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361
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`(Fed. Cir. 2011) (“need only be construed to the extent necessary to resolve the
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`controversy”). However, some of Petitioner’s proposed constructions are addressed
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`below.
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`
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` 1
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` EX1006, “HomeRF: Wireless Networking for the Connected Home”, by Kevin J.
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`Negus et al.
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`2 EX1008, “HomeRF: Bringing Wireless Connectivity Home”, by Jim Lansford
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`3 EX1009, “HomeRF™ Working Group 3rd Liaison Report”, by Tim Blaney
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`4 EX1012, U.S. Patent No. 6,937,158.
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`7
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`U.S. Patent 7,016,676
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`“Stations Which Operate In Accordance With A First Radio
`Interface Standard And/Or A Second Radio Interface
`Standard”
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`1.
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`Patent Owner submits that the Petitioner’s implicit construction of “radio
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`interface standard” as encompassing channel-access methods such as TDMA and
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`CSMA, which was adopted by the Board for purposes of institution in the Microsoft
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`IPR (Paper No. 8, 26 (“two different interface standards, i.e., TDMA for I-node type
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`devices and CSMA for A-node type devices”)), is contrary to the plain and ordinary
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`meaning of “radio interface standard” as set forth by the intrinsic evidence in the
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`specification. Indeed, this construction is contrary to HomeRF, which describes
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`TDMA and CSMA as “access mechanisms,” HomeRF, 23: 2:14-16, and not as
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`specifications or protocols, a fact which is undisputed by Petitioner. A complete
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`construction of this recitation is not necessary to reach the conclusion that the
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`Petition is deficient. However, a construction to clarify that “a radio interface
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`standard” constitutes a complete specification for a radio interface, and not merely
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`a characteristic of a specification, such as a channel-access method, a modulation
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`method, or a coding method, is required here.
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`The intrinsic evidence makes it clear that the phrase “radio interface standard”
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`is a complete radio interface standard, such as IEEE 802.11a or ETSI BRAN
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`HiperLAN/2, as distinguished from such characteristics as medium access control
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`or channel-access methods, as well as other characteristics such as modulation and
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`coding methods. The ‘676 Patent states:
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`For this purpose there is provided for so-termed ISM frequency bands
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`(Industrial Scientific Medical) that radio systems transmit in the same
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`8
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`IPR2020-00376
`U.S. Patent 7,016,676
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`frequency band in accordance with different radio interface standards.
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`An example of this is the US radio system IEEE802.11a and the
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`European ETSI BRAN HiperLAN/2.
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`EX1001, 1: 15-20.5 The ‘676 Patent makes clear the distinction between radio
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`interface standards and medium access control techniques, such as TDMA and
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`CSMA, stating:
`
`Radio systems of wideband LANs of the radio interface standards
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`ETSI BRAN HiperLAN/2 and IEEE802.11a utilize the same radio
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`transmission method, a 64-carrier 30 OFDM method and an adaptive
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`modulation and coding. About the same modulation and coding
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`methods (Link Adaptation, LA) are defined for the two standards.
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`The Medium Access Control (MAC) of the two systems is totally
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`different. ETSI BRAN HiperLAN/2 utilizes a centrally controlled
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`reservation-based method in which a radio station takes over the role
`
`of a central instance coordinating the radio resources.
`
`…
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`The IEEE802.11a standard describes a CSMA/CA (Carrier
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`Sense Multiple Access/Collision Avoidance) method not based on
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` 5
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` Emphasis added. Unless otherwise stated, any emphasis in quotations in this
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`Patent Owner Response has been added.
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`9
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`U.S. Patent 7,016,676
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`reservations, in which all the radio stations listen in on the medium and
`
`assume that the channel is unused for a minimum duration (Short
`
`InterFrame Space, SIFS) before 802.11a-MAC frames, thus user data
`
`packets, are transmitted if necessary.
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`EX1001, 1:34-48. Thus, the ‘676 specification makes clear that a “radio interface
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`standard” is a complete standard, such as the ETSI BRAN HiperLAN/2 or IEEE
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`802.11 standard. Medium access control, such as a centrally controlled reservation-
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`based method, which could be based on TDMA, or a CSMA/CA method, are clearly
`
`among the possible features of such a radio interface standard, but are clearly not
`
`within the plain and ordinary meaning of the term “radio interface standard.”
`
`
`
`Moreover, the ‘676 Patent explicitly distinguishes between the category of
`
`radio interface standards and modes such as time-division multiplexing, particularly
`
`using the term “mode” to describe time-division multiplexing while using the term
`
`radio interface standards in the same sentence:
`
`For example, it is possible to provide certain predefinable time intervals
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`for the use of the first and second radio interface standard and allocate
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`the frequency band alternately to the first radio interface standard and
`
`then to the second radio interface standard in a kind of time-division
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`multiplex mode.
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`EX1001, 2:52-57. It is thus clear that TDMA, or time-division multiplexing, is not
`
`within the plain and ordinary meaning of “radio interface standard” as used in the
`
`specification of the ‘676 Patent.
`
`The ‘676 Patent further reinforces that a “radio interface standard” is a
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`10
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`U.S. Patent 7,016,676
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`complete standard, such as IEEE802.11a, stating:
`
`Alternatively, it is possible, for example, that the point
`
`coordinator provided in accordance with the IEEE802.11a standard
`
`operates as the central control station and controls the alternate access
`
`of stations of the first and second radio interface standard to the
`
`common frequency band. In this advantageous embodiment of the
`
`invention the point coordinator could for example periodically render
`
`the common frequency band available to another radio interface
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`standard, for example, to the HiperLAN/2 standard.
`
`EX1001, 3:20-28. Still further, the ‘676 Patent makes clear again that IEEE 802.11a
`
`is an example of a radio interface standard:
`
`FIG. 2 diagrammatically shows the media access in systems
`
`working
`
`in accordance with
`
`the
`
`radio
`
`interface
`
`standard
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`IEEE802.11a.
`
`EX1001, 4:47-49. The ‘676 Patent again reinforces examples of radio interface
`
`standards:
`
`A first wireless local area network comprises three stations 10,
`
`11 and 12. These three stations 10, 11 and 12 work in accordance with
`
`the first radio interface standard A, for example, in accordance with
`
`the HiperLAN/2 standard.
`
`A second wireless local area network includes four stations 14,
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`15, 16 and 17. These four stations 14, 15, 16 and 17 work in accordance
`
`with the second radio interface standard B, for example, m
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`11
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`U.S. Patent 7,016,676
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`accordance with the IEEE802.11a standard.
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`EX1001, 5:22-30.
`
`Indeed, the specification makes clear that the medium access control (MAC)
`
`of these radio interface standards is a characteristic of the standard, and that they are
`
`different. EX1001, 1:34-49. Thus, the intrinsic evidence makes clear that the term
`
`“a radio interface standard” is not met by a characteristic, such as medium access
`
`control or channel-access methods.
`
`Still further, the Petitioner has not explicitly sought the construction provided
`
`in the Institution Decision in the Microsoft IPR that TDMA and CSMA are radio
`
`interface standards. The Petitioner’s proposed claim construction does not include
`
`this proposal. As the Court of Appeals, the regulations and the Board have
`
`previously made clear, it is not the role of the Board to serve as an archaeologist of
`
`the record to identify a basis for the contentions of a party, let alone provide entirely
`
`new arguments on behalf of a party.
`
`Still further, the use of two different schemes, such as asynchronous and
`
`isochronous, in the same radio interface standard, illustrates the error of construing
`
`a “standard” to be a scheme used therein. Indeed, the Bluetooth wireless interface
`
`standard includes both of these schemes. Microsoft IPR, EX2001, 1:53-55
`
`(“sufficient number and duration of quiet periods to allow asynchronous and
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`isochronous BLUETOOTH traffic.”); Microsoft IPR, EX2002, 3:14-16; 3:28-31.
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`Notably, to the extent that the Petitioner argues that the use of these two schemes
`
`established two wireless interface standards within the SWAP wireless interface
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`specification discussed in HomeRF, the fact that a single radio interface standard,
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`the Bluetooth standard, provides for both asynchronous and
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`isochronous
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`communication, refutes this argument. Moreover, Petitioner’s Declarant does not
`
`even mention that the use of two different schemes in the same wireless interface
`
`standard is known, let alone attempt to reconcile Bluetooth’s provision for both
`
`asynchronous and isochronous communication with the position that TDMA and
`
`CSMA constitute separate radio interface standards.
`
`Moreover, the construction of “radio interface standard” as being met by
`
`TDMA and CSMA would give absurd results. For example, Petitioner’s Declarant
`
`characterizes the DECT radio interface standard as using TDMA, EX 1004 ¶78, and
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`the Bluetooth standard also uses TDMA. Microsoft IPR, EX2002, 3:12-14. The
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`construction of “radio interface standard” as being met by TDMA would give the
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`absurd conclusion that DECT and Bluetooth are the same radio interface standard,
`
`as they both employ TDMA. Similarly, any two radio interface standards using
`
`CSMA would be regarded as the very same radio interface standard under the
`
`construction provided by the Board. Such an absurd construction is clearly contrary
`
`to the plan and ordinary meaning of the phrase “radio interface standard.”
`
`Extrinsic evidence supports the conclusion that CSMA and TDMA are
`
`algorithms or access schemes that may be employed within radio interface standards,
`
`but are not themselves radio interface standards. U.S. Patent No. 7,796,573 (“’573
`
`Patent”) (Microsoft IPR, EX 2003), which is based on a provisional filed in
`
`November 2000, states that:
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`IPR2020-00376
`U.S. Patent 7,016,676
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`[T]he IEEE 802.11 wireless standard…employs a Carrier Sense
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`Multiple Access/Collision Avoidance (CSMA/CA) algorithm.
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`Microsoft IPR, EX2003, 3:10-12. The ‘573 Patent similarly states that CSMA/CA,
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`TDMA, FDMA, and CDMA are “access schemes.” Microsoft IPR, EX2003, 4:66-
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`67. Thus, the ‘573 Patent makes clear that interface standards, such as the 802.11
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`wireless interface standard, were distinct from algorithms or access schemes such as
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`CSMA/CA or TDMA. Accordingly, the implicit construction of “wireless interface
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`standard” as sufficiently broad to read on algorithms or channel access schemes such
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`as CSMA and TDMA is contrary to the extrinsic evidence also.
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`Further, the Petitioner’s Declarant has not provided any statement identifying
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`the TDMA and CSMA access schemes as types of “radio interface standard.”
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`Indeed, Petitioner’s Declarant quotes HomeRF as characterizing TDMA and
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`CSMA/CA as “access mechanisms,” EX1004, ¶82, not as standards, and makes no
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`effort to provide a record basis that an access mechanism may also constitute a radio
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`interface standard. Thus, there is no record support provided by Petitioner for the
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`conclusion that TDMA and CSMA/CA are radio interface standards, as opposed to
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`access mechanisms employed in the SWAP specification.
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`Accordingly, Patent Owner submits that construing “radio interface standard”
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`as defining a complete interface standard, and not individual features, such as access
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`mechanisms, including by way of example TDMA and CSMA/CA used by a
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`wireless interface standard, is both necessary to a proper determination that
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`Petitioner has failed to carry its burden here, and reflects the plan and ordinary
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`meaning of the term, consistent with both the intrinsic and extrinsic record.
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`2.
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`“Respective Duration In Which The Stations Working In
`Accordance With The Second Radio Interface Standard Are
`Allowed To Utilize The Frequency Band”
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`Patent Owner submits that the Board need not construe this claim term in
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`order to arrive at the conclusion that the Petition is substantively deficient. Wellman,
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`Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1361 (Fed. Cir. 2011) (“need only be
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`construed to the extent necessary to resolve the controversy”).
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`3.
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`“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”
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`As the Petition acknowledges, the Petition may not challenge claims on the
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`basis of indefiniteness under this proceeding. Pet. 22. Therefore, Patent Owner has
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`no reason to address Petitioner’s allegations, and, in any event, the Board, in the
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`Institution Decision in the Microsoft IPR, has agreed with Patent Owner, stating that
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`“[w]e readily understand the phrase.” Microsoft IPR, Paper No. 8, 13.
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`For the remaining proposed construction(s) in this section, Patent Owner
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`submits that the Board need not construe this claim term in order to arrive at the
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`conclusion that the Petition is substantively deficient. Wellman, 642 F.3d at 1361.
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`Nonetheless, to the extent Petitioner seeks to improperly limit availability for
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`“access” of the frequency band to only “transmitting” within the frequency band (Pet
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`23-24), the Board should not adopt Petitioner’s proposed construction that
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`IPR2020-00376
`U.S. Patent 7,016,676
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`improperly seeks to import limitations from the specification. See Vitronics Corp.
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`v. Conceptronic, 90 F.3d 1576, 1584-85 (Fed. Cir. 1996). Moreover, Petitioner’s
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`proposed construction is further erroneous because the specification itself makes
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`clear the term “access” is not so limiting. “Access” in light of the specification allows
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`for both sending and receiving information. See EX1001, 4:5-18 (referring to “times
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`at which stations working in accordance with the first radio interface standard to not
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`send and do not expect information in accordance with the standard from the first
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`station”). Patent Owner notes that the Board in the Microsoft IPR properly did not
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`construe this phrase.
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`Finally, Patent Owner disagrees with Petitioner that there is no antecedent
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`basis for “the stations” in this claim term. Here, “the stations” refers back to the
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`previous claim term which recites “stations which operate in accordance with a first
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`radio standard and/or a second radio interface standard”. As the Petition points out,
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`the previous claim limitation only requires a plurality of stations operating under a
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`first and/or second radio interface standard. And here, in this limitation, “the
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`stations” refers back to the entire and original set of stations, and then the limitation
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`further narrows that set of stations to just the stations “working in accordance to the
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`second radio interface standard”. Whether that number of stations is one or more
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`than one, there is no issue with antecedent basis.
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`4.
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`The Steps within the Method of Claims 1 and 2
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`The Board in the Microsoft IPR, sua sponte, has interpreted claim 1 to require
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`two steps incorporated into the wherein clause. in the Microsoft IPR, Paper No. 8,
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`16. Similarly, the Board has interpreted claim 2’s wherein clause as setting forth an
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`additional step. Id. at 17-18. Patent Owner submits that the Board need not construe
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`the wherein clauses of claims 1 and 2 in order to arrive at the conclusion that the
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`Petition is substantively deficient. Wellman, Inc. v. Eastman Chem. Co., 642 F.3d
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`1355, 1361 (Fed. Cir. 2011) (“need only be construed to the extent necessary to
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`resolve the controversy”).
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`B. None of HomeRF, HomeRF Tutorial, and HomeRF Liaison
`Report (collectively “the HomeRF references”) Discloses “stations
`which operate in accordance with a first radio interface standard
`and/or a second radio interface standard” (Claim 1) (Grounds 1-3)
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`The Petitioner has failed to meet its burden of establishing that any of the
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`HomeRF references disclose stations operating under “a first radio interface
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`standard and/or a second radio interface standard”, as required by the claim
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`language, or subsequent recitations referring to the first and second standards. Rather
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`than, as contended by
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`the Petition, disclosing stations operating under
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`TDMA/DECT-based communications and CSMA/802.11 based communications,
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`Pet. 27, HomeRF clearly discloses a single standard that achieved acceptance “by
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`reusing major sections of proven RF protocols and then simplifying them where
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`appropriate for home usage.” HomeRF, 20, 2:4-7. Thus, rather than incorporating
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`stations using separate standards, HomeRF has incorporated portions of existing
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`standards and simplified them, such that the stations operate according to the
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`“HomeRF Shared Wireless Access Protocol (‘SWAP’)”. HomeRF, 20, 1:34-38. As
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`HomeRF only uses portions of existing standards, and modifies those existing
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`standards, there is no reason to believe that DECT-compliant devices or 802.11
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`compliant devices would operate under the HomeRF system.
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`The Institution Decision in the Microsoft IPR states that the use of TDMA for
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`I-node type devices and CSMA for A-node type devices constitutes the recited two
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`different radio interface standards. Microsoft IPR, Paper No. 8, 26. However, as
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`discussed above in the claim construction section, neither TDMA nor CSMA is a
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`radio interface standard. Rather, TDMA and CSMA are channel-access methods.
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`While a radio interface standard must clearly include at least one technique for
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`determining access of various devices to a channel, there is no one-to-one