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`Trials@uspto.gov
`571.272.7822
`
`Paper No. 10
`Filed: November 5, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HUAWEI DEVICECoO., LTD.,
`
`Petitioner,
`
`Vv.
`
`OPTIS CELLULAR TECHNOLOGY,LLC,
`
`Patent Owner.
`
`Case IPR2018-00807
`Patent 8,102,833 B2
`
`Before KALYAN K. DESHPANDE, MICHAEL R. ZECHER,and
`JOHN P. PINKERTON,Administrative Patent Judges.
`
`PINKERTON,Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`‘35 U.S.C. § 314(u)
`
`APPLE 1004
`
`APPLE 1004
`
`Page 1 of 436
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`
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`Trials@uspto.gov
`571.272.7822
`
`Paper No. 10
`Filed: November 5, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`HUAWEI DEVICECoO., LTD.,
`
`Petitioner,
`
`Vv.
`
`OPTIS CELLULAR TECHNOLOGY,LLC,
`
`Patent Owner.
`
`Case IPR2018-00807
`Patent 8,102,833 B2
`
`Before KALYAN K. DESHPANDE, MICHAEL R. ZECHER,and
`JOHN P. PINKERTON,Administrative Patent Judges.
`
`PINKERTON,Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`‘35 U.S.C. § 314(u)
`
`APPLE 1004
`
`APPLE 1004
`
`Page 1 of 436
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`IPR2018-00807
`Patent 8,102,833 B2
`
`I.
`
`INTRODUCTION
`
`HuaweiDevice Co., Ltd. (“Petitioner”) filed a Petition requesting an
`
`inter partes review of claims 1-14 of U.S. Patent No. 8,102,833 B2
`
`(Ex. 1001, “the ’833 patent”). Paper 3 (“Pet.”). Optis Cellular Technology,
`LLC (“Patent Owner’) filed a Preliminary Response. Paper7 (“Prelim.
`Resp.”). Institution of an inter partes review is authorized by statute when
`
`“the information presented in the petition .. . and any response .
`
`.
`
`. shows
`
`that there is a reasonable likelihood that the petitioner would prevail with
`
`respectto at least 1 of the claims challengedin the petition.” 35 U.S.C.
`
`§ 314(a). For the reasons discussed below, we denyinstitution of inter
`
`partes review of claims 1-14 of the 833 patent.
`
`Related Proceedings
`A.
`Patent Ownerhas asserted the ’833 patent against Petitioner in Optis
`
`Wireless Tech., LLC, v. Huawei Techs. Co., No. 2:17-cv-00123-JRG-RSP
`
`(E.D. Tex.) (the “Litigation”). Pet. 3; Paper5, 2.
`
`B.
`
`The ’833 Patent
`
`The ’833 patent, entitled “Method for Transmitting Uplink Signals,”
`
`issued on January 24, 2012, and claims priority to Korean application 10-
`
`2008-0068634, filed on July 15, 2008, and U.S. Provisional Applications,
`
`Nos. (1) 60/972,244,filed on September 13, 2007; (2) 60/987,427, filed on
`
`November13, 2007; and (3) 60/988,433, filed on November 16, 2007. Ex.
`
`1001, [30], [60], 1:7-15.
`The °833 patentrelates generally to user cquipment (UE) of a mobile
`communication system transmitting uplink signals, including ACK/NACK
`
`signals, control signals other than ACK/NACKsignals, and data signals.
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`Ex. 1001, [57], 1:21-24. The patent describes that control signals
`transmitted to the uplink “include uplink ACK/NACK'! signals for HARQ
`
`communication, channel quality indicator (CQID), and preceding matrix index
`
`(PMI).” Jd. at. 1:29-32. The ’833 patent specifically distinguishes
`
`ACK/NACKsignals from control signals other than ACK/NACKsignals
`and states ‘“control signals’ will mean those other than the ACK/NACK
`signals.” Id. at 5:15-16; see also id. at 1:43-45 (stating “the controlsignals
`
`will mean those except for ACK/NACKsignals”).
`
`The ’833 patent explains that the 3GPP LTE system usesa single
`
`carrier frequency division multiplexing access (SC-FDMA)schemefor
`uplink signal transmission. Jd. at 1:33-35. According to the ’833 patent, the
`3GPP LTEsystem prescribes that data signals and control signals amongthe
`uplink signals are first multiplexed and ACK/NACKsignals are transmitted
`to the multiplexed signals by puncturing the data or control signals when
`uplink ACK/NACKsignal transmission is required for downlink data. Jd. at
`1:35-40. As the ’833 patent also describes, it was determined that, in 3GPP
`LTEsystems, whenthe control information is multiplexed with the data
`information, “the control information is transmitted near a reference signal.”
`
`Id. at 1:45-49. The 833 patent explains that “control signals generally
`
`' Petitioner’s expert, Dr. Jonathan Wells, opines that an example of an
`uplink control signal would be an acknowledgementsent by the UE to the
`base station to confirm it has rcccived a transmitted data signal. Ex. 1008
`4 38. According to Dr. Wells, a positive acknowledgementthat the data
`signal was properly received by the UE is known as an ACK,and a negative
`acknowledgementif there was some problem receiving the datasignalis
`known as a NACK. Id.
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`require higherreliability than the data signals,” and “the ACK/NACK
`signals require higherreliability than other types of control signals.” Jd. at
`1:51-57. Accordingly, the ’833 patent describes that, when uplink
`
`ACK/NACKsignal transmission is required whileall the control signals are
`transmitted by approximatingto the reference signal, “problems occur in that
`the ACK/NACKsignals can neither be transmitted by puncturing the control
`signals arranged nearthe reference signal nor be transmitted nearthe
`reference signal.” Jd. at 1:54-62. Thus, the ’833 patent describes a method
`for transmitting uplink signals by efficiently arranging ACK/NACKsignals
`and other control signals in a resource region considering priority among
`them. Jd. at 2:7-10; see also id. at 2:25—27 (stating that “arranging the
`
`ACK/NACKsignals at both symbols near to symbols through which a
`
`reference signal is transmitted”).
`The ’833 patent describes transmitting information in accordance with
`the SC-FDMA schemein which information sequencesare transmitted using
`
`one “resource block” and one “sub-frame.” Jd. at 5:31-40. Each sub-frame
`
`includes twoslots, and each slot includes 7 SC-FDMA symbols. /d. at 5:40—-
`45, cl. 3. Two of the 14 SC-FDMA symbols in each sub-frameare used as
`reference signals that are pilot signals. Jd. at 5:40-43. Each resource block
`includes 12 OFDM (orthogonal frequency division multiple access)
`subcarriers and 7 SC-FDMA symbols in oneslot. Jd. at 5:37-40. The ’833
`patent explains that, at this time, the number of modulation symbols ofthe
`information that can be transmitted to the uplink becomes 12*12=144. Jd. at
`
`5:43-45. The ’833 patent further explains that 144 information sequences
`can be transmitted through 12 virtual subcarriers and 12 SC-FDMA
`
`4
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`symbols, which “can be represented by a matrix structure of 12*12 called a
`
`time-frequency mapper.” Jd. at 5:46-49.
`
`An annotated version of Figure 6 of the ’833 patent is reproduced
`
`below.
`
`
`Index
`
`
`Symbol
`
`Reference
`Symi
`
`Ra Control Signating
`
`
`
`
`(SJ Data isformation
`
`Possible ACK/NACKModulatloa Symbols At
`~/Postion which Punctures Data modulation
`Symbols
`
`
`
`The annotated version of Figure 6 aboveis a diagram illustrating a
`~ method for transmitting uplink signals in accordance with one embodiment
`of the ’833 patent. Jd. at 3:33-35, 6:49-51. This figure includes three
`portions, arranged vertically, andis slightly annotated by Patent Owner with
`red lines and circles showing the location of possible ACK/NACKsymbols.
`
`The top portion of Figure 6 (labeled 601) is a horizontal strip of small,
`
`5
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`square blocks representing control signals (each numbered 1| through Nc)
`and data signals (each numbered 1 through Np). This top portion of the
`figure illustrates that control and data signals are multiplexed serially,if
`ACK/NACKsignals are not transmitted, with control signals placed at the
`front(i.e., starting at the left) and data signals placedat the rear of the
`multiplexed signals. Jd. at 6:60-63. The second or middle portion of Figure
`6 (labeled 602)is also a horizontal strip of small, square blocks, again
`representing data signals and control signals multiplexed serially, with data
`signals placed at the front, and with ACK/NACKsignals to be transmitted
`that “are arranged by puncturing the multiplexed data.”? Id. at 6:63-66. In
`this portion of Figure 6, the ACK/NACKsymbols are inserted in place of
`
`data signals 5, 6, Np-3, and Np-2.
`Thethird portion of Figure 6 (labeled 603), whichis located at the
`bottom,illustrates the embodiment in which information sequences such as
`those shownin the second portion of Figure 6 (labeled 602) are mapped with
`SC-FDMA symbols accordingto the time-first mapping method, and then
`transmitted on the uplink. Jd. at 6:52-56; 6:66—7:2. This portion of Figure 6
`is a two-dimensional“time-frequency region”that independent claim 1
`
`refers to as “a 2-dimensional resource matrix.” Jd. at 6:66—7:2, 9:6—7. In
`
`accordancewith the time-first mapping method, the multiplexed signals
`(such as 602) are mapped rowbyrow to the resource matrix in which rows
`
`2 As uscd in the 833 patent, “puncturing” means “overwriting” or
`“replacing” specific information. Jd. at 6: 15—21 (“overwritten” means that
`specific information is skipped and the corresponding region is mapped;
`“overwritten” also meansthat the length of the entire information is
`maintained equally even after specific informationis inserted).
`6
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`correspond to subcarriers and columns correspond to SC-FDMA symbols.
`Id. at 6:66—7:3; 7:6-10; 9:6-21. Resource matrix 603 showsa total of 14
`
`SC-FDMA symbols along the time axis (the vertical axis) within one
`subframe—12 SC-FDMA symbols (numbered from top to bottom as #1
`
`through #12 in a columntothe right of the matrix) and two SC-FDMA
`symbols that carry reference signals in a part between symbolindices #3 and
`#4 and in a part between symbolindices #9 and #10. Jd. at 5:37-45; 7:2-5.
`The °833 patent explains that the ACK/NACKsignals are set in such a
`mannerthat they overwrite the data signals on bothsidesof the parts to
`whichthe reference signals are transmitted(i.e., into SC-FCMA symbols #3,
`4,9, and 10 in Figure 6). Id. at 7:10-14. These overwritten ACK/NACK
`signals are labeled N-2, N-3, N-8, and N-9 (and are circled in red) in matrix
`603, the third portion of Figure 6.
`
`Challenged Claims
`C.
`Petitioner challenges claims 1-14 of the ’833 patent. Independent
`claim 1, whichis illustrative of the challenged claims, is reproduced below
`
`(with paragraphlettering addedas in the Petition):
`1.
`A methodfor transmitting uplink signals comprising control
`signals and data signals in a wireless communication system,
`the method comprising:
`
`[1a] serially multiplexing first control signals and data signals
`in a mobile station, wherein the first control signals are placed at a
`front part of the multiplexed signals and the data signals are placed at
`a rear part of the multiplexed signals;
`
`[1b] mapping the multiplexed signals to a 2-dimensional
`resource matrix comprising a plurality of columns andaplurality of
`rows, wherein the columnsandthe rowsofthe 2-dimensional
`
`7
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`resource matrix correspondto single carrier frequency divisional
`multiple access (SC-FDMA) symbols and subcarriers for each SC-
`FDMA symbol, respectively, wherein a number of columnsofthe 2-
`dimensional! resource matrix corresponds to a number of SC-FDMA
`symbols within one subframe except specific SC-FDMA symbols
`used for a reference signal, and wherein the multiplexed signals are
`mappedfrom thefirst columnof the first row to the last column ofthe
`first row, the first column of the second row to the last columnofthe
`second row, and so on,until all the multiplexed signals are mapped to
`the 2-dimensional resource matrix;
`
`[1c] mapping ACK/NACKcontrolsignals to specific columns
`of the 2-dimensional resource matrix, wherein the specific columns
`correspond to SC-FDMA symbolsright adjacentto the specific SC-
`FDMA symbols, wherein the ACK/NACKcontrol signals overwrite
`some of the multiplexed signals mapped to the 2-dimensional resource
`matrix at step (b) from the last row of the specific columns; and
`
`[1d] transmitting the signals mapped to the 2-dimensional
`resource matrix at steps (b) and (c) by column by column to a base
`station.
`
`Ex. 1001 at 38:10-60.
`
`D._Evidence ofRecord
`Petitioner relies upon the following references, as well as the
`
`Declaration of Dr. Jonathan Wells (Ex. 1008):
`
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`Exhibit
`
`Reference
`
`Ex. 1006
`
`U.S. Patent No. 8,331,328 B2
`(Papasakellariou)
`
`Publication or
`Filing Date
`
`Filed June 4,
`2008?
`
`
`
`
`
`
`
`
`Ex. 1010
`
`U.S. Patent Publication No.
`Published Nov.
`2006/0262871 (Cho)
`23, 2006
`
`
`
`Published Aug.
`Motorola, 3GPP TSG RANI #50, R1-
`Ex. 1011
`
`
`073361, “Uplink channel interleaving”|31, 2007
`
`(Motorola)
`
`
`E.
` Asserted Ground of Unpatentability
`‘Petitioner challenges the patentability of claims 1-14 ofthe °833
`patent based on the following ground:
`
`
`Reference(s)|Basis|Claims Challenged
`
`
`
`Cho, and Motorola
`
`
`Combination of Papasakellariou,|§ 103(a) 1-14
`
`
`
`Il.
`
`DISCUSSION
`
`A,
`
`Claim Construction
`
`Applicable Law
`1.
`.
`Inan inter partes review, claim terms in an unexpired patent are
`interpreted according to their broadest reasonable construction in light of the
`
`3 Papasakellariou claims the benefit of U.S. Provisional Application No.
`60/942,843, filed on June 8, 2007. Ex. 1006, [60].
`
`9
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`specification of the patent in which they appear. 37 C.F.R. § 42.100(b).
`
`Underthat standard, and absent any special definitions, we give claim terms
`
`their ordinary and customary meaning, as they would be understood by one
`
`of ordinary skill in the art, in the context of the entire patent disclosure. Jn
`
`re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
`
`Only those terms in controversy need to be construed, and then only
`
`to the extent necessary to resolve the controversy. Nidec Motor Corp. v.
`
`Zhongshan Broad Ocean Motor Co., 868 F.3d 1013, 1017 (Fed. Cir. 2017)
`(citing Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed.
`
`Cir. 1999)).
`
`2.
`
`Petitioner’s Position
`
`Petitioner asserts that, in the Litigation, the parties agreed upon
`
`several constructions that were adopted by the district court. Pet. 13 (citing
`
`Ex. 1013, 12-14). Petitioner also asserts that it adopts the court’s
`
`constructions for purposes of this proceeding. Jd.
`
`3.
`
`Patent Owner’s Position
`
`Patent Ownerasserts that for purposes of its Preliminary Response,it
`
`“agrees to all of the proposed constructions.” Prelim. Resp. 48. Patent
`Owneralso contends that we should find that the steps of claims 1 and 8 of
`
`the ’833 patent must be performedin the orderrecited in the claims. Jd. at
`48-50 (citing Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369-70 (Fed.
`Cir. 2003)). In this regard, Patent Ownerarguesthat the express language of
`the claims requires the steps of cach of claims 1 and 8 to be performedin
`order. Jd. Patent Owneralso asserts that in the Litigation, the parties agreed
`
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`on constructions that impose an orderto the steps of both claim 1 and 8. Jd.
`
`at 50 (citing Ex. 1013 at 13).
`
`Analysis
`4.
`Weadoptthe district court’s claim constructionsin the Litigation for
`
`the terms and phrases of the 833 patent, for the purposes of this Decision,
`
`because they are consistent with the specification of the ’833 patent. See Ex.
`
`1010, 12-14. We determine there is no reason to further construe any other
`
`terms or phrases, or determine the order of steps of independent claims 1 and
`
`8, beyond the determinationsofthe district court.
`
`B.
`
` Asserted Obviousness of Claims 1-14 Over the Combination
`ofPapasakellariou, Cho, and Motorola
`Petitioner contends the combination of Papasakellariou (Ex. 1006),
`
`Cho (Ex. 1010), and Motorola (Ex. 1011) renders claims 1-14 of the
`
`’833 patent obvious. Pet. 28-90. Petitioner asserts that Papasakellariou,
`
`which wasfiled on June 4, 2008, and claimspriority to U.S. Provisional
`Application No. 60/942,843, filed on June 8,'2007 (Ex. 1007, “the 843
`provisional”), is prior art under 35 U.S.C. § 102(e) as of the filing date of the
`provisional. Jd. at 16-27. Patent Owner contends that Papasakellariou does
`
`not qualify as prior art to the 7833 patent under § 102(e) because the *833
`patent claimsareentitled to priority to an earlier-filed provisional
`application, which predates the June 4, 2008filing date of Papasakellariou,
`
`and Petitioner has failed to meet its burden of showing that the
`
`°843 provisional provides support for the disclosures on which Petitioner
`relies in Papasakellariou. Prelim. Resp. 50-64. Thus, the fundamentalissue
`
`raised by the parties is whether Papasakellariouis prior art to the ’833 patent
`
`under § 102(e) based onthepriority date of the °843 provisional.
`
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`For the reasonsset forth below, we agree with Patent Ownerthat
`
`Papasakellariouis notprior art to the ’833 patent because Petitioner has
`failed to show Papasakellariouis entitled to claim the benefit ofthe filing
`date of the ’843 provisional. Thus, we determine that Petitioner has failed to
`
`show a reasonable likelihood of prevailing on its assertion that claims 1—14
`
`of the *833 patent are obvious based on the combination of Papasakellariou,
`
`Cho, and Motorola.
`
`Effective Date of ’833 Patent
`1.
`The ’833 patent issued from an application filed on September11,
`2008. Ex. 1001, [22]. Papasakellariou issued from an application filed on
`
`June 4, 2008. Ex. 1006, [22]. Because the application that led to the
`
`issuance of Papasakellariou was filed before the application for the
`’833 patent, Petitioner metits initial burden of production in establishing
`Papasakellariou as prior art. See In re Magnum Oil Tools Int'l, Ltd.,
`829 F.3d 1364, 1376 (Fed. Cir. 2016); Dynamic Drinkware, LLC v. Nat'l
`Graphics, Inc., 800 F.3d 1375, 1379 (Fed. Cir. 2015) (discussing Tech.
`Licensing Corp. v. Videotek, Inc., 545 F.3d 1316, 1327 (Fed. Cir. 2008)).
`Thus, the burden of productionshifts to Patent Ownerto argue or produce
`evidencethat the challenged claims of the ’833 patent are entitled to claim
`priority to one or more of the ’833 patent’s provisional applications. Pet. 20
`n.5 (citing Magnum Oil, 829 F.3d at 1376; Dynamic Drinkware, 800 F.3d at
`1379-80). In that regard, Petitioner asserts it “does not concede”that the
`°833 patentis entitled to claim the benefit of the provisional applications and
`Korean application identified on the face of the ’833 patent. Jd. at 7 n.2.
`
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`As Patent Ownerargues, the ’833 patent claims priority to provisional
`
`application no. 60/972,244,filed on September 13, 2007 (Ex. 1003),
`provisional application no. 60/987,427, filed on November 13, 2007 (“the
`’427 provisional,” Ex. 1004), and provisional application no. 60/988,433,
`filed on November 16, 2007 (Ex. 1012). Prelim. Resp. 18-19 (citing
`
`_
`
`Ex. 1001, 1:11-15). Patent Owner contends that the priority date of the
`°833 patent is November 13, 2007,the filing date of the °427 provisional.
`Id.
`In support of this contention, Patent Ownerfirst asserts that, in the
`Litigation, “Petitioner has stipulated to the November 13, 2007 priority date
`of the ’833 patent.” Jd. at 19 (citing Ex. 2009, 13 (“The priority date of the
`asserted claims of the ’833 patent is November 13, 2007.”). Patent Owner
`notes that Exhibit 2009is the Joint Final Pretrial Order in the Litigation and
`
`that, as of the date thereof, only claims 8 and 13 of the ’833 patent were
`
`being asserted. Jd. n.3. Patent Ownerasserts that claim 8 is the apparatus
`claim version of method claim 1, which includes nearly identical claim
`
`limitations and is entitled to the same priority date. Jd. Second, Patent
`
`Ownerasserts that, “in an abundance of caution, Patent Ownerpresents a
`
`claim chart identifying disclosures from the ’427 provisional that support
`claim 1 of the °833 patent.” Jd. at 19-28 (citing Ex. 1004, 7-43, 53-79).
`Based on Patent Owner’s evidence, we agree with Patent Ownerthat
`the challenged claims of the ’833 patent are entitled to the benefit of the
`filing date of the °427 provisional on November 13, 2007. In that regard,
`Patent Owner’s evidence demonstrates that Petitioner stipulated that the
`
`earliest effective priority date of claims 8 and 13 of the ’833 patent is
`November 13, 2007. Comparing claim 8 with claim 1, we agree with Patent
`
`13
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`Ownerthat claim 8 is the apparatus claim version of method claim 1, which
`
`includes nearly identical claim limitations to claim 8, and is entitled to the
`samepriority date as claim 8. Prelim Resp. 19. Patent Ownerhasalso
`persuasively demonstratedin its claim chart that the limitations of claims 1—
`14 are supported by the disclosure of the ’427 provisional. Jd. at 19-28.
`Therefore, we determine that claims 1-14 of the ’833 patent are entitled to
`
`the benefit of the filing date of the ’427 provisional on November13, 2007.
`
`Effective Date ofPapasakellariou
`2.
`In Dynamic Drinkware, the Federal Circuit held that, in an inter
`
`partes review, once a patent owner has respondedto a petitioner’s argument
`with sufficient evidence that its patent is entitled to a priority date before a
`prior art reference, the burden of production shifts back to the petitioner to
`prove that the prior art reference is entitled to the benefit of the filing date of
`a provisional application. 800 F.3d at 1380. Thus, because Patent Owner
`has demonstrated that the earliest effective priority date of the ’833 patentis
`
`November13, 2007, whichis before the filing of Papasakellariou on June 4,
`
`2008, the burden of production returns to Petitioner to prove that
`Papasakellariou is entitled to the benefit of the earlier June 8, 2007,filing
`
`date of the ’843 provisional.
`As the parties argue and acknowledge, to meet its burden of proof,
`Petitioner is required to make two showings: (1) at least one claim of
`Papasakellariou is supported by the ’843 provisional; and (2) the portions of
`Papasakellariou relied uponin the Petition to demonstrate that the claims of
`the ’833 patent would have been obvious wereincludedin the
`’843 provisional. Prelim. Resp. 33 (citing Dynamic Drinkware, 800 F.3d at
`
`14
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`1378-79, 1383; In re Giacomini, 612 F.3d 1380, 1383 (Fed. Cir. 2010); Ex
`
`parte Mann, No. 2015-3571, 2016 WL 7487271 (PTAB Dec.21, 2016));
`
`Pet. 19 (citing Cisco Sys., Inc. v. Capella Photonics, Inc., IPR2014-01276,
`
`slip op. at 21-22 (PTAB Feb. 17, 2016) (Paper 40) (“Interpreting Dynamic
`Drinkware, 800 F.3d at 1378, the Board has held that a § 102(e) referenceis
`
`available asprior art as of its provisional application’s filing date when the
`provisional provides support for (1) at least one claim of the § 102(e)
`reference and (2) the subject matter on whichthe petitionerrelies.”)).
`
`Petitioner contendsthat the relevant disclosures of Papasakellariou
`
`are availableas priorart andentitled to a § 102(e) prior art date of June 8,
`
`2007, because the ’843 provisional provides support for (1) claims 4 and 5
`
`of Papasakellariou and (2) the subject matter on whichthe Petitionrelies.
`
`Pet. 19-20. In regard to aforementioned item (1), Petitioner cites the
`
`portions of the ’843 provisional it contends support the limitations of
`
`claims 4 and 5 of Papasakellariou. Jd. at 21-27. In regard to
`
`aforementioned item (2), Petitioner asserts that, as shownin its obviousness
`
`analysis in the Petition, “the subject matter on whichthis Petition relies is
`disclosed in the Papasakellariou Provisional{i.e., the °843 provisional], as
`
`well as Papasakellariou.” Id. at 27.
`Patent Ownerarguesthat, even assuming that Petitioner can establish
`that the ’843 provisional supports one or more claims of Papasakellariou,
`Petitioner cannot make the required showing under Dynamic Drinkware
`
`because “the subject matter from Papasakellariou upon which Petitioner
`relies is not in the Papasakellariou Provisional[i.e., the °843 provisional].”
`Prelim. Resp. 52. In particular, Patent Ownerargues that Petitionerrelies on
`
`15
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`IPR2018-00807
`Patent 8,102,833 B2
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`Figure 2, and its related disclosures, from Papasakellariou, which purports to
`
`disclose a two-step process wherein data and control signals are multiplexed
`
`before being punctured with ACK/NACKsignals, but this two-step
`
`embodimentis not disclosed by the 843 provisional. Id. at 52-64.
`
`Weagree with Patent Ownerthat Petitioner has not metits burden of.
`
`proof because Petitioner has not shownthat the ’843 provisional discloses
`
`Figure 2 and the related disclosures in Papasakellariou, on which the
`
`Petition’s obviousness analysis relies, or any corresponding embodiment or
`
`teachings.
`
`AsPatent Ownerargues, Petitioner and its expert, Dr. Wells, rely
`
`heavily on Figure 2 of Papasakellariou. Prelim. Resp. 52 (citing Pet. 33, 70,
`
`79, 81, 84; Ex. 1008 FJ 44-45, 103-104, 155, 221, 222, 239, 240, 242, 244,
`
`246). For example, in regard to the portion of limitation 1[a] reciting
`
`“multiplexing first control signals and data signals in a mobile station,”
`
`Petitioner argues that Figure 2 of Papasakellariou “is a block diagram
`
`illustrative of an exemplary SC-FDMAtransmitter” and “discloses
`
`multiplexing CQIbits 205 (i.e., ‘first control signals’) and data bits 210
`
`(220)(i.e., ‘data signals’) in a mobile station.” Pet. 32—33 (citing Ex. 1006,
`
`2:5-18, 3:55-56). Petitioner also argues that a person of ordinary skill in the
`
`art would have understoodthat ‘“first control signals’ refers to control
`
`signals ... other than ACK/NACKcontrolsignals.” Jd. (citing Ex. 1001,
`
`[57], 1:40-44, 5:13-24; Ex. 1008 94 153, 154). In regard to the portion of
`
`limitation 1[c] reciting “wherein the ACK/NACKcontrol signals overwrite
`
`some of the multiplexed signals mapped to the 2-dimensional resource
`
`matrix,” Petitioner argues that Papasakellariou discloses that “[c]oded CQI
`
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`bits 205 and coded data bits 210 are multiplexed 220”and that “if
`ACK/NACKbits also need to be multiplexed,” ’ data bits or CQI bits(if
`
`any) “may be punctured.” Jd. at 63 (quoting Ex. 1006, 2:6-13). As
`indicated in Petitioner’s supporting citation, this disclosure of
`Papasakellariou also concerns Figure 2 of Papasakellariou. See Ex. 1006,
`2:5-13. Thus, as Patent Ownerargues, and weagree, Petitioner relies on
`
`Figure 2 of Papasakellariou,andits related disclosure,to illustrate a two-step
`process of multiplexing data and control information other than ACK/NACK
`followed by puncturing with ACK/NACKsignals. Prelim. Resp. 52.
`
`Figure 2 of Papasakellariou is reproduced below.
`
`250
`
`oOo
`
`°a
`
`270
`280
`=
`220
`210
`280
`
`
`TRANSMITTED
`=
`MULTIPLEX
`(
`PUNCTURE
`
`INSa‘on
`SIGNAL
`&
`DATABITS
`ans
`DATA BITS
`
`
`
`) ANDCQ) BITS||INSERTACK/NAK .
`
`
`
`
`
`260
`
`205
`
`CONTROL OF LOCALIZED FOMAF~255
`
`
`
`FIG.2
`
`4 Although Papasakcllariou refers to *ACK/NAK,”rather than
`“ACK/NACK”asused in the ’833 patent, there is no dispute that these
`acronyms have the same meaning. Thus,for clarity and consistency, we
`replace the references to “ACK/NAK”in those portions of Papasakellariou
`quotedor referred to in this Decision with “ACK/NACK.”
`17
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`Patent 8,102,833 B2
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`Asdescribed in Papasakellariou, Figure 2 “is a block diagram
`
`illustrative of a first exemplary SC-FDMA transmitter for multiplexing data
`
`bits, CQI bits, and ACK/NACKbits in a transmission sub-frame.”
`
`Ex. 1006, 3:58-60. There are 7 blocks in Figure 2, extending horizontally
`
`from left to right, numbered 220, 230, 240, 250, 260, 270, and 280, with 1
`
`block labeled “CONTROL OF LOCALIZED FDMA 255”located underthe
`
`others (and showingits output being input into the block labeled “SUB-
`
`CARRIER MAPPING 250”). As shown in Figure 2, coded CQIbits 205
`
`and coded data bits 210 are multiplexed at block 220. Jd. at 2:6—7.
`
`Papasakellariou explains that, if ACK/NACKbits also need to be
`multiplexed, “the exemplary embodiment assumesthat data bits are
`punctured to accommodate ACK/NACKbits [at block] 230.” Jd. at 2:7-10.
`Papasakellariou further explains that the discrete Fourier transform (DFT)of
`the combined data bits and control bits is then obtained at block 240, sub-
`
`carriers 250 corresponding to the assigned transmission bandwidth are
`selected, the inverse fast Fourier transform (IFFT) is performed at block 260,
`and finally the cyclic prefix (CP) andfiltering are applied at blocks 270 and
`280, respectively, to the transmitted signal 290. Jd. at 2:13-18.
`Patent Owneralso argues, and weagree, that Petitioner has not shown
`that the ’843 provisional discloses an embodiment comprising a multi-step
`process in which data and controlsignals are multiplexed before being
`punctured with ACK/NACKsignals, as disclosed in the ’833 patent and, as
`Petitioner argues, in Figure 2 of Papasakellariou. Prelim. Resp. 53. First,
`we agree with Patent Owner’s argumentthat neither Figure 2 norits
`description in Papasakellariou appears in the 843 provisional. Jd. at 56.
`
`18
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`Second, wealso agree with Patent Owner’s argumentsthat Petitioner
`
`has failed to show that Figure 2 of the ’843 provisional discloses the subject
`
`matter of Figure 2 of Papasakellariou on which Petitionerrelies in its
`
`obviousnessanalysis in the Petition. Petitioner cites Figure 2 of the 843
`
`provisionalas disclosing “multiplexing first control signals and data signals
`
`in a mobile station” (Pet. 34) and as “illustrating a transmitter with
`
`substantially the samestructure as Figure 2 of Papasakellariou”(id. 71-72).
`
`As Patent Ownerargues, however, Figure 2 of the ’843 provisional does not
`correspond to Figure 2 of Papasakellariou, but instead correspondsto the
`
`embodimentof Figure 3 of Papasakellariou, which is described as an
`
`alternative embodimentto Figure 2 of Papasakellariou. Prelim. Resp. 56-57
`
`(citing Ex 1006, 2:19-31). In other words, as Patent Ownerargues,
`Papasakellariou discloses two distinct embodiments for the SC-FDMA
`transmitter—namely, a first embodiment shown in Figure 2 and the second
`
`alternative embodiment shownin Figure 3. Jd. at 54-56.
`
`Figure 2 of the ’843 provisional and Figure 3 of Papasakellariou are
`
`reproduced below.
`
`
`
`Transmitted
`Signal
`
`Oo
`
`
`Control bits
`
`Figure 2: Multiplexing of Control and Data Signals
`
`19
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`IPR2018-00807
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`
`
`0
`DATA BITS
`
`CONTROLBITS
`
`310
`
`350
`
`360
`
`oO
`
`2
`=
`x
`z
`S
`3
`
`370
`cp
`INSERTION
`peel
`
`ns
`
`380
`TIME
`WINDOWING
`5
`
`.
`TRANSMITTED
`SIGNAL
`
`
`
`
`(nus
`
`
`
`TRANSMISSION BANOWIOTH
`
`FIG e 3
`
`Both ofthese figures are block diagrams of an SC-FDMA transmitter.
`Ex. 1006, 3:58-60; Ex. 1007,2. Figure 2 of the ’843 provisionalis labeled
`“Multiplexing of Control and Data Signals,” and depicts 6 blocks extending
`horizontally from left to right, with 1 block labeled “Control of localized
`FDMA”located under the others (and showingits output being input into
`
`the block labeled “Sub-carrier mapping’). Figure 3 of Papasakellariou,
`
`whichis not labeled, is described in Papasakellariou as “another block
`
`diagram illustrative of a second exemplary SC-FDMA transmitter.”
`Ex. 1006, 3:58—-59. Figure 3 also depicts 6 blocks extending horizontally
`from left to right, with 1 block labeled “Control of Transmission Bandwidth
`355” located underthe others (and showingits output being input into the
`block labeled “SUB-CARRIER MAPPING 350”). Apart from the darkened
`
`labels of four of the blocks of Figure 2 of the ’843 provisional, the diagrams
`
`of Figure 2 of the ’843 provisional and Figure 3 of Papasakellariou are
`20
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`IPR2018-00807
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`essentially the same. In particular, both show controlbits and databits input
`
`into the first block on the left labeled “Puncture Data Insert Control,” and
`
`subsequent blocks labeled DFT, Sub-Carrier Mapping, IFFT, CP Insertion,
`
`and Time Windowing, and then the transmitted signal.
`
`Patent Ownerargues, and weagree,that Petitioner does notcite
`
`Figure 3 of Papasakellariou orits related disclosure “a single time” in the
`Petition. Prelim. Resp. 57. We also agree with Patent Ownerthat the
`
`description of Figure 3 in Papasakellariou is almost exactly the sameas the
`description of Figure 2 in the ’843 provisional. Prelim. Resp. 57 (compare
`
`Ex. 1006, 2:19-31, with Ex. 1007, 2).
`
`Third, we agree with Patent Ownerthat Figure 2 of the ’843
`provisional does not disclose a multi-step process in which data signals and
`control signals are multiplexed before being punctured by ACK/NACK
`signals, as disclosed in the ’833 patent and, as Petitioner argues, in Figure 2
`of Papasakellariou. Prelim. Resp. 52-53. Patent Owner argues, and we
`agree, that the ’833 patent “distinguishes between multiplexing(as in the
`case of data and control information) and puncturing (as in the case of
`
`ACK/NACK,whichinvolves overwriting, or replacing, data).” Jd. 5—6
`
`(citing Ex. 1001, 6:9-21). As Patent Ownerfurther argues, the disclosure
`regarding Figure 2 of Papasakellariou also recognizesthis d
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