Paper 10
`Trials@uspto.gov
`571-272-7822 Date: August 24, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`BELL NORTHERN RESEARCH, LLC,
`Patent Owner.
`_____________
`
`IPR2020-00613
`Patent 8,416,862 B2
`____________
`
`
`
`Before BRYAN F. MOORE, MELISSA A. HAAPALA, and
`STACY B. MARGOLIES, Administrative Patent Judges.
`
`MARGOLIES, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`Trials@uspto.gov
`571-272-7822 Date: August 24, 2020
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`Petitioner,
`
`v.
`
`BELL NORTHERN RESEARCH, LLC,
`Patent Owner.
`_____________
`
`IPR2020-00613
`Patent 8,416,862 B2
`____________
`
`
`
`Before BRYAN F. MOORE, MELISSA A. HAAPALA, and
`STACY B. MARGOLIES, Administrative Patent Judges.
`
`MARGOLIES, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`IPR2020-00613
`Patent 8,416,862 B2
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`I. INTRODUCTION
`Samsung Electronics Co., Ltd. (“Petitioner”) filed a petition for inter
`partes review of claims 9–12 of U.S. Patent No. 8,416,862 B2 (Ex. 1001,
`“the ’862 patent”). Paper 1 (“Pet.”). Bell Northern Research, LLC (“Patent
`Owner”) filed a Preliminary Response. Paper 7 (“Prelim. Resp.”).
`Petitioner also filed a Notice Regarding Multiple Petitions (“Notice,” Paper
`3) and Patent Owner filed a Response to Petitioner’s Notice Regarding
`Multiple Petitions (“Notice Response,” Paper 9).
`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 respect
`to at least 1 of the claims challenged in the petition.” 35 U.S.C. § 314(a);
`see 37 C.F.R. § 42.108. Upon consideration of the Petition and the
`Preliminary Response, we conclude that the information presented does not
`show that there is a reasonable likelihood that Petitioner would prevail in
`establishing the unpatentability of claims 9–12 of the ’862 patent.
`
`A. Related Matters
`The parties collectively identify the following judicial proceedings in
`which the ’862 patent is or was asserted and which may affect, or be affected
`by, a decision in this proceeding: Bell Northern Research, LLC v. Samsung
`Elecs. Co., Case No. 2:19-cv-00286 (E.D. Tex.); Bell Northern Research,
`LLC v. LG Elecs. Co., Case No. 3:18-cv-02864 (S.D. Cal.); Bell Northern
`Research, LLC v. Coolpad Techs., Inc., Case No. 3:18-cv-01783 (S.D. Cal.);
`Bell Northern Research, LLC v. Huawei Device (Dongguan) Co., Case No.
`3:18-cv-01784 (S.D. Cal.); Bell Northern Research, LLC v. Kyocera Corp.,
`Case No. 3:18-cv-01785 (S.D. Cal.); and Bell Northern Research, LLC v.
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`ZTE Corp., Case No. 3:18-cv-01786 (S.D. Cal.). Pet. 1–2; Paper 6, 1; see 37
`C.F.R. § 42.8(b)(2).
`Claims 9–12 of the ’862 patent also were challenged in IPR2020-
`00108, which recently terminated. See LG Electronics, Inc. v. Bell Northern
`Research, LLC, IPR2020-00108 (“the ’108 IPR”), Paper 14 at 39 (PTAB
`May 14, 2020) (instituting review), Paper 22 (PTAB July 29, 2020)
`(terminating proceeding).
`
`B. The ’862 Patent
`The ’862 patent relates to wireless communications using
`beamforming. Ex. 1001, 1:20–22. The ’862 patent describes that, “[i]n
`general, beamforming is a processing technique to create a focused antenna
`beam by shifting a signal in time or in phase to provide gain of the signal in
`a desired direction and to attenuate the signal in other directions.” Id. at
`2:67–3:4. The ’862 patent explains that, “[i]n order for a transmitter to
`properly implement beamforming,” the transmitter “needs to know
`properties of the channel over which the wireless communication is
`conveyed.” Id. at 3:14–17. For example, the receiver may “determine the
`channel response (H)” and “provide it as the feedback information.” Id. at
`3:19–22. The ’862 patent explains that the size of the feedback packet “may
`be so large that, during the time it takes to send it to the transmitter, the
`response of the channel has changed.” Id. at 3:22–25. To reduce the size of
`the feedback, “the receiver may decompose the channel using singular value
`decomposition (SVD) and send information relating only to a calculated
`value of the transmitter’s beamforming matrix (V) as the feedback
`information.” Id. at 3:26–30. According to the ’862 patent, “[w]hile this
`approach reduces the size of the feedback information, its size is still an
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`issue for a [multiple-input-multiple-output] wireless communication.” Id. at
`3:33–35. Therefore, according to the ’862 patent, a need exists “for
`reducing beamforming feedback information for wireless communications.”
`Id. at 3:49–51.
`Figure 7 of the ’862 patent, shown below, illustrates an embodiment
`of the invention for providing beamforming feedback information from a
`receiver to a transmitter. Id. at 13:25–27.
`
`
`Figure 7 above illustrates a method of providing beamforming feedback
`information for multiple-input multiple-output (MIMO) wireless
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`communication systems. Id. at 2:33–35, 13:25–27, 13:31–32. At step 702, a
`wireless communication device receives a preamble sequence from a
`transmitting wireless device. Id. at 13:36–39. Next, at step 704, the
`receiving wireless device determines an estimated transmitter beamforming
`unitary matrix (V) based on the channel response and a known receiver
`beamforming unitary matrix (U). Id. at 13:44–47. In the embodiment
`shown in Figure 7, the receiving wireless device produces V in Cartesian
`coordinates and then converts V to polar coordinates (step 706). Id. at
`13:54–58. The receiving wireless device then decomposes V to produce the
`transmitter beamforming information (step 708) and sends the beamforming
`information to the transmitting wireless device (step 710). Id. at 13:58–62,
`14:4–6. The transmitting wireless device then uses the feedback
`components to generate a new beamforming matrix (V), which the device
`uses for subsequent transmissions (step 712). Id. at 14:9–12.
`The ’862 patent discloses that, according to one embodiment, the
`decomposition operations of step 708 employ a Givens Rotation operation.
`Id. at 13:63–65. The ’862 patent explains that the Givens Rotation relies on
`the observation that, for a particular condition, some of the angles “are
`redundant” and thus, “the set of angles fed back to the transmitting wireless
`device are reduced.” Id. at 13:65–14:3.
`
`C. Illustrative Claim
`Among the challenged claims (claims 9–12), claim 9 is independent.
`Claim 9 is illustrative of the subject matter of the challenged claims and
`reads as follows:
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`9. A wireless communication device comprising:
`a plurality of Radio Frequency (RF) components
`operable to receive an RF signal and to convert the RF signal to
`a baseband signal; and
`a baseband processing module operable to:
`receive a preamble sequence carried by the
`baseband signal;
`estimate a channel response based upon the
`preamble sequence;
`determine an estimated transmitter beamforming
`unitary matrix (V) based upon the channel response and a
`receiver beamforming unitary matrix (U);
`decompose the estimated transmitter beamforming
`unitary matrix (V) to produce the transmitter
`beamforming information; and
`form a baseband signal employed by the plurality
`of RF components to wirelessly send the transmitter
`beamforming information to the transmitting wireless
`device.
`Id. at 17:15–34.
`
`D. Asserted Grounds of Unpatentability
`Petitioner contends that claims 9–12 of the ’862 patent are
`unpatentable based on the following specific grounds (Pet. 3, 9–60):
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`Claim(s) Challenged
`9, 11, 12
`10
`
`35 U.S.C. §1
`103
`103
`
`References
`Maltsev,2 Haykin,3 Sadrabadi4
`Maltsev, Haykin, Sadrabadi,
`Yang5
`
`In its analysis, Petitioner further relies on the declaration testimony of Dr.
`Leonard Cimini (Ex. 1002). Pet. 9–60.
`
`II. DISCUSSION
`For each asserted ground of unpatentability and each challenged
`claim, Petitioner relies on Haykin as part of the obviousness combination.
`See Pet. 3 (summary of grounds), 10–56 (relying on Haykin for first
`ground), 56–60 (relying on Haykin for second ground). Petitioner asserts
`that Haykin was “accessible to the public at least as early as December 24,
`2004” and thus qualifies as prior art under 35 U.S.C. § 102(a). Pet. 4, 6.
`Patent Owner argues that Petitioner fails to show that Haykin was
`publicly accessible to qualify as prior art. Prelim. Resp. 42–49. Patent
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 287–88 (2011), amended 35 U.S.C. § 103. Because the effective
`filing date of the challenged claims is before March 16, 2013 (the effective
`date of the relevant amendment), the pre-AIA version of § 103 applies. See
`Ex. 1001, [22], [60], [63].
`2 U.S. Patent No. 7,570,696 B2, filed June 25, 2004, issued Aug. 4, 2009
`(Ex. 1009).
`3 Haykin et al., Modern Wireless Communications (2005) (Ex. 1010).
`4 Sadrabadi et al., A New Method of Channel Feedback Quantization for
`High Data Rate MIMO Systems, IEEE Commc’ns Society, Globecom 2004,
`91–95 (Ex. 1013).
`5 Yang et al., Reducing the Computations of the Singular Value
`Decomposition Array Given by Brent and Luk, Proceedings of SPIE,
`Advanced Algorithms and Architecture for Signal Processing IV, Vol. 1152
`(Nov. 14, 1989) (Ex. 1011).
`
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`Owner argues that we should refuse to consider Petitioner’s improperly
`incorporated arguments because “[t]he whole of Petitioner’s arguments
`regarding the prior art status of Haykin are encapsulated in only three
`citation-dense and substance-spare sentences.” Id. at 43–44 (citing Pet. 5–6)
`(emphases omitted). Patent Owner also argues that, even if we consider the
`incorporated arguments, Petitioner’s evidence is contradictory and
`speculative. Id. at 45–49.
`“Because there are many ways in which a reference may be
`disseminated to the interested public, ‘public accessibility’ has been called
`the touchstone in determining whether a reference constitutes a ‘printed
`publication.’” Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331, 1348
`(Fed. Cir. 2016) (quoting In re Hall, 781 F.2d 897, 898–99 (Fed. Cir.
`1986)). “A given reference is ‘publicly accessible’ upon a satisfactory
`showing that such document has been disseminated or otherwise made
`available to the extent that persons interested and ordinarily skilled in the
`subject matter or art exercising reasonable diligence, can locate it.” SRI
`Int’l, Inc. v. Internet Sec. Sys., Inc., 511 F.3d 1186, 1194 (Fed. Cir. 2008)
`(quoting Bruckelmyer v. Ground Heaters, Inc., 445 F.3d 1374, 1378 (Fed.
`Cir. 2006)).
`“[A]t the institution stage, the petition must identify, with
`particularity, evidence sufficient to establish a reasonable likelihood that the
`reference was publicly accessible before the critical date of the challenged
`patent and therefore that there is a reasonable likelihood that it qualifies as a
`printed publication.” Hulu, LLC v. Sound View Innovations, LLC, IPR2018-
`01039, Paper 29 at 13 (PTAB Dec. 20, 2019) (precedential). “[T]he indicia
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`on the face of a reference, such as printed dates and stamps, are considered
`as part of the totality of the evidence. Id. at 17.
`Petitioner relies on the declaration testimony of Dr. Ingrid Hsieh-Yee
`(Ex. 1019 ¶¶ 1–18, 36–50), attachments to Dr. Hsieh-Yee’s declaration (Ex.
`1019, 88–107, 145–153), and Exhibits 1045–1047 in support of its
`assertions that Haykin qualifies as prior art. Pet. 4 n.1, 4–6. For the reasons
`explained below, we determine that there is not a reasonable likelihood that
`Haykin qualifies as a printed publication as of December 24, 2004, as
`asserted by Petitioner or even prior to the critical date of April 21, 2005.
`Operative date for Section 102(a) analysis
`The ’862 patent was filed on September 28, 2005. Ex. 1001, [22].
`The ’862 patent claims priority to U.S. provisional patent application serial
`no. 60/698,686, which was filed July 13, 2005. Id. at [63], 1:9–15. The
`’862 patent also is a continuation-in-part of U.S. patent application serial no.
`11,168,793 (“the ‘’793 application”), which was filed on June 28, 2005. Id.
`at [63], 1:9–15. The ’793 application claims priority to U.S. provisional
`patent application serial no. 60/673,451, which was filed April 21, 2005. Id.
`at 1:9–15.
`Petitioner asserts that the challenged claims are not entitled to the
`April 21, 2005 priority date, but appears to acknowledge that the claims are
`entitled to the July 13, 2005 priority date. Pet. 3–4. Even so, in explaining
`how each of the asserted references are prior art to the challenged claims,
`Petitioner uses an April 21, 2005 priority date. Id. at 4–6.
`Petitioner asserts an even earlier timeframe for Haykin. Petitioner
`asserts that a Library of Congress stamp on Haykin, bibliographic and
`Machine-Readable Cataloging (MARC) records, and citations to Haykin
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`prior to April 21, 2005 “demonstrate that Haykin was published in 2004.”
`Pet. 4 (emphasis omitted). Petitioner further asserts that “Haykin was
`accessible to the public at least as early as December 24, 2004” and that a
`person of ordinary skill in the art could have searched for and accessed
`Haykin by that date. Id. (emphasis omitted). Petitioner does not expand on
`its assertions, instead relying on citations to the declaration of Dr. Ingrid
`Hsieh-Yee, a Professor in the Department of Library and Information
`Sciences at Catholic University, who has a Ph.D. in Library and Information
`Studies. Id. (citing Ex. 1019 ¶¶ 36–50).
`In its Preliminary Response, Patent Owner does not argue that a
`particular priority date or invention date should apply to the challenged
`claims. See, e.g., Prelim. Resp. 42–51.
`Based on Petitioner’s assertions in its Petition, we consider whether
`Petitioner has shown sufficiently that Haykin was a printed publication as of
`December 24, 2004 (or, at the latest, prior to April 21, 2005).
`Analysis
`Haykin (Exhibit 1010) is a copy of a book that Dr. Hsieh-Yee
`obtained from the Library of Congress. Ex. 1019 ¶ 36. Haykin has a 2005
`copyright date, as noted as follows: “© 2005 Pearson Education, Inc.” Ex.
`1010, 6. Under the copyright notation, “Pearson Prentice Hall” and
`“Pearson Education, Inc.” of “Upper Saddle River, NJ” are listed. Id. The
`front cover of Haykin has a label that also includes a 2005 date: “TK 5103
`.2 .H39 2005 Copy 1.” Id. at 1. The copyright page of Haykin bears a
`stamp that says “LIBRARY OF CONGRESS COPYRIGHT OFFICE” with
`a date of “APR 05 2004.” Id. at 6.
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`Appendix 1010-A to Dr. Hsieh-Yee’s declaration (Ex. 1019, 145–47)
`is a bibliographic record for Haykin that Dr. Hsieh-Yee obtained from the
`online catalog of the Library of Congress. Id. ¶ 38. The bibliographic
`record has the following entry for “Published/Created”: “Upper Saddle
`River, NJ.: Pearson/Prentice Hall, c2005.” Id. at 146.
`Appendix 1010-B to Dr. Hsieh-Yee’s declaration (Ex. 1019, 148–50)
`is a MARC record for Haykin that Dr. Hsieh-Yee obtained from the online
`catalog of the Library of Congress. Id. ¶ 39. According to Dr. Hsieh-Yee,
`field 955—which includes the notations “2004-07-14 bk rec’d, to CIP ver.”
`and “2004-09-24 to BCCD, copy 1”—shows that the book was received on
`July 14, 2004, sent to the Cataloging in Publication Program (CIP) for
`record verification, and sent to the Binding and Collections Care Division on
`September 24, 2004 for processing. Id. at 149, ¶ 40. Dr. Hsieh-Yee states
`that CIP “is responsible for cataloging books in advance of publication to
`alert the library community to forthcoming new publications and to facilitate
`acquisition.” Id. ¶ 40 (emphasis added). According to Dr. Hsieh-Yee, field
`260—which includes the entry “|a Upper Saddle River, N.J. : |b
`Pearson/Prentice Hall, |c c2005”—“shows that Pearson/Prentice Hall of
`Upper Saddle River of New Jersey published this book with a 2005
`copyright date.” Id. at 149, ¶ 42.
`Field 050 of the MARC record lists a Library of Congress
`Classification (LCC) number of TK5103.2, which according to Dr. Hsieh-
`Yee is the class number for general works in the wireless communications
`systems category. Id. at 149, ¶ 43. Field 082 shows the book has a Dewey
`Decimal Classification (DDC) number of 621.382, which according to Dr.
`Hsieh-Yee is the class number for the communications engineering category.
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`Id. at 149, ¶ 43. Entries for the 650 field are wireless communication
`systems and spread spectrum communications. Id. at 149. Dr. Hsieh-Yee
`states that “[u]sers interested in the topics represented by the LCC number or
`the DDC number could search it as a keyword in the Library of Congress
`catalog to retrieve materials that been assigned the same classification
`number.” Id. ¶ 43.
`Based on the foregoing, Dr. Hsieh-Yee testifies as follows:
`The date stamp on the copyright page of [Exhibit] 1010 and the
`dates in the MARC record for Haykin (Appendix 1010-B)
`inform my opinion that [the] Library of Congress received the
`physical volume of Haykin on April 5, 2004, the book was
`received for CIP verification in July 2004, and the physical
`copy was sent to the Binding and Collections Care Division for
`processing on “2004-09-24” (i.e., September 24, 2004).
`Id. ¶ 46 (emphases omitted).
`Dr. Hsieh-Yee then provides the following testimony regarding public
`access:
`In most academic libraries[,] a newly cataloged book becomes
`available for the public soon after the cataloging record is
`completed, usually within a week. Considering the volume of
`materials the Library of Congress needs to catalog and process,
`it is very likely that Haykin would have become available for
`public access by December 24, 2004, at the latest, which would
`be three months after the physical copy was sent to the
`processing unit.
`Id. ¶ 47 (emphasis added).
`Dr. Hsieh-Yee also testifies that “[m]y research on Google Scholar
`has found Haykin cited more than 800 times” and that “Appendix 1010-C
`presents citations from February 2004 to June 2005 to demonstrate early
`usage.” Id. ¶ 49 (emphasis omitted). Dr. Hsieh-Yee states—without further
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`explanation—that “[t]he earliest citing documents were published in
`February and September 2004, further demonstrating that Haykin was
`available at least as early as December 2004.” Id. Neither Petitioner nor Dr.
`Hsieh-Yee addresses these “earliest citing documents.” See Pet. 4–5; Ex.
`1019 ¶ 49. Petitioner merely cites Appendix 1010-C and Exhibits 1045–47,
`which appear to be three of the documents listed in Appendix 1010-C. Pet.
`4 (citing Ex. 1019, 152–53; Exs. 1045–1047).
`Petitioner’s evidence regarding the prior art status of Haykin is
`insufficient. First, Haykin itself lists a copyright date of 2005. Ex. 1010, 6.
`No particular month in 2005 is specified. Id. Petitioner does not address the
`copyright date at all, let alone provide an explanation for why the book
`would have been published prior to its listed copyright date. See Pet. 4–5.
`Also, as Patent Owner points out, the MARC record for Haykin on which
`Dr. Hsieh-Yee relies lists 2005 as the “single known date/probable date” of
`publication. See Prelim. Resp. 46–47; Ex. 1019, 103–04 (explaining field
`008 for books), 149 (entry for field 008, including “s2005” in positions 06–
`10). Likewise, the call number on the front cover of Haykin (“TK 5103.2
`.H39 2005 Copy 1”) includes a publication date of 2005. Ex. 1010, 1; Ex.
`2014, 1; Ex. 1019 ¶¶ 36, 37. Petitioner does not address the publication
`dates listed in the MARC record and the call number.
`Second, Petitioner’s evidence regarding Library of Congress practices
`and when Haykin would have become available for public access is
`insufficient. See Pet. 4–5; Ex. 1019 ¶ 47. Petitioner does not rely on the
`declaration of someone who has first-hand knowledge of the practices of the
`Library of Congress during the relevant time period, who could (for
`example) attest to when the book became publicly available. Rather,
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`Petitioner relies on the testimony of Dr. Hsieh-Yee, who has experience
`working “in an academic library, a medical library, and a legislative library”
`and has “been a professor for more than 25 years.” Ex. 1019 ¶ 6; see also id.
`at 68 (listing work experience). Dr. Hsieh-Yee arrives at a date by which “it
`is very likely” that Haykin would have become available for public access
`based on (i) the practice of “most” academic libraries and (ii) adding three
`months due to the unspecified volume of materials that the Library of
`Congress must process. Ex. 1019 ¶ 47. This testimony, from someone who
`does not have personal knowledge of current or past practices of the Library
`of Congress, is too speculative to sufficiently counter the 2005 copyright
`date in the book itself and the 2005 publication dates in the MARC record
`and the call number. Cf. In re Hall, 781 at 899 (relying on a witness’s
`testimony regarding “his library’s general practice for indexing, cataloging,
`and shelving theses in estimating the time it would have taken to make the
`dissertation available to the interested public”) (emphasis added).
`Petitioner’s reliance on references that cite Haykin also is insufficient.
`Petitioner asserts that “citations to Haykin in publications prior to April 21,
`2005 . . . demonstrate that Haykin was published in 2004.” Pet. 4 (emphasis
`omitted). Petitioner cites as support (i) Appendix 1010-C to Dr. Hsieh-
`Yee’s declaration (Ex. 1019, 152–53) and (ii) Exhibits 1045 through 1047.
`Id. As explained below, Petitioner has not shown that these references cite
`to the version of Haykin in the record, nor has Petitioner established
`sufficiently the publication dates of those citing references.
`First, Appendix 1010-C, which is Dr Hsieh-Yee’s compilation of cites
`from Google Scholar, is not persuasive evidence because Dr. Hsieh-Yee
`does not explain how specifically the search for “Haykin” was conducted
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`such that it is clear that each reference is citing to the version of Haykin with
`the 2005 copyright date that was obtained from the Library of Congress
`upon which Petitioner relies in its challenges. See Ex. 1019 ¶ 49 (“My
`research on Google Scholar has found Haykin cited more than 800 times.”).
`Also, neither Petitioner nor Dr. Hsieh-Yee provides evidence corroborating
`the publication dates of the references on the list that allegedly cite to
`Haykin. Indeed, Patent Owner presents evidence that the February 2004
`date for the first reference on the list appears to be inaccurate. See Prelim.
`Resp. 48–49 (citing Exs. 2015, 2016).
`Second, Petitioner’s reliance on Exhibits 1045 through 1047 also is
`not persuasive. Petitioner does not provide evidence establishing the
`publication date of any of these articles. Exhibit 1045 appears to be an
`article from the proceedings of the 2004 IEEE 60th Vehicular Technology
`Conference, which may have taken place “26–29 September 2004.” Ex.
`1045, 1, 2. Exhibit 1045 includes a cite to “S. Kaykin and M. Moher,
`Modern Wireless Communications, Prentice Hall, NJ, 2004.” Id. at 81.
`Petitioner does not explain how this citation—which is to a 2004 version of
`“S. Kaykin” (presumably a typographical error for “S. Haykin”)—and lists
`Prentice Hall—as opposed to Pearson Prentice Hall—as the publisher, is a
`citation to the Library of Congress version (Exhibit 1010) on which
`Petitioner relies. The citation may very well be to a different, 2004 version
`of Haykin.
`Exhibits 1046 and 1047 have similar shortcomings. Exhibit 1046
`appears to be an article from the International Symposium on
`Communications and Information Technologies, which may have taken
`place in Sapporo, Japan, from October 26–29, 2004. Ex. 1046, 1. Petitioner
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`provides no evidence as to whether this article was published at the time of
`the symposium or at a later date. See Pet. 4–5. Exhibit 1047 appears to be
`an article from the 2005 IEEE Wireless Communications and Networking
`Conference, which may have taken place in New Orleans, Louisiana from
`March 13–17, 2005. Exhibit 1047, 1, 2, 30–35. Again, Petitioner provides
`no evidence regarding whether this article was published at the time of the
`conference or at a later date. Moreover, Petitioner does not explain how the
`citation in Exhibit 1047 to an “International Edition” of Haykin is a citation
`to Exhibit 1010. Id. at 35 (citing “S. Haykin and M. Moher, Modern
`Wireless Communications, International Edition Prentice Hall, 2005”). The
`International Edition may have been different from the version retrieved
`from the Library of Congress.
`Finally, Petitioner also asserts that “Dr. Cimini’s testimony confirms
`that Haykin is a well-known textbook that a person of ordinary skill in the
`art would have had access to and would have found relevant regarding the
`subject of wireless communications.” Pet. 4–5 (citing, e.g., Ex. 1002 ¶ 88).
`The cited testimony of Dr. Cimini merely says that Haykin “is a well-known
`textbook” and does not identify any dates by which one of ordinary skill in
`the art would have had access to Haykin. Ex. 1002 ¶ 88. We therefore find
`Petitioner’s reliance on Dr. Cimini’s testimony insufficient to establish a
`date by which Haykin was publicly accessible.
`In short, Petitioner does not identify, with particularity, evidence
`sufficient to establish a reasonable likelihood that Haykin was publicly
`accessible—and thus qualifies as a printed publication—no later than
`December 24, 2004 (or prior to April 21, 2005, the earliest possible effective
`filing date for the challenged claims). Because Petitioner relies on Haykin
`
`16
`
`
`
`IPR2020-00613
`Patent 8,416,862 B2
`
`for each of its grounds, Petitioner does not make a sufficient showing for
`any ground of unpatentability in its Petition.
`
`III. CONCLUSION
`For the above reasons, we determine that the information presented
`does not establish a reasonable likelihood that Petitioner would prevail in
`showing that claims 9–12 of the ’862 patent are unpatentable on the grounds
`asserted in the Petition.
`
`IV. ORDER
`
`Accordingly, it is
`ORDERED that the Petition is denied; and
`FURTHER ORDERED that no inter partes review is instituted.
`
`
`
`
`
`
`
`
`
`17
`
`
`
`IPR2020-00613
`Patent 8,416,862 B2
`
`FOR PETITIONER:
`Naveen Modi
`Joseph E. Palys
`Arvind Jairam
`PAUL HASTINGS LLP
`naveenmodi@paulhastings.com
`josephpalys@paulhastings.com
`arvindjairam@paulhastings.com
`
`FOR PATENT OWNER:
`Steven W. Hartsell
`Alexander E. Gasser
`Joseph Ramirez
`SKIERMONT DERBY LLP
`shartsell@skiermontderby.com
`agasser@skiermontderby.com
`jramirez@skiermontderby.com
`
`
`
`
`
`18
`
`
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