Filed: April 5, 2023
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA, INC., and APPLE INC.,
`Petitioner,
`
`v.
`
`SMART MOBILE TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2022-01004
`Patent 9,614,943
`____________
`
`
`PATENT OWNER’S RESPONSE
`UNDER 37 C.F.R. § 42.120
`
`
`
`

`

`B.
`
`C.
`
`TABLE OF CONTENTS
`INTRODUCTION ........................................................................................... 1
`I.
`LEVEL OF ORDINARY SKILL .................................................................... 6
`II.
`III. BYRNE GROUNDS (GROUNDS 1A-1C) .................................................... 7
`A.
`Petitioner Fails to Prove Obviousness Based on Byrne for
`Claims 1, 3-9, and 12 (Grounds 1A-1C) ............................................ 7
` Petitioner Fails to Prove that Byrne Discloses a
`Processor that Processes a First Data Stream and a
`Second Data Stream ................................................................. 7
` Petitioner Fails to Prove that Byrne Discloses a
`Processor that Processes Two Data Streams in Parallel ........ 19
`Petitioner Fails to Prove the Byrne-WO748 Combination
`Disclose Claims 3-4 (Ground 1B) .................................................... 22
`Petitioner Fails to Prove that a POSITA Would Have
`Reasonably Expected Success in Making the Byrne-WO748
`Combination (Ground 1B) ................................................................ 25
`Petitioner Fails to Prove that a POSITA Would Have
`Reasonably Expected Success in Making the Byrne-Johnston-
`Pillekamp Combination (Ground 1C) ............................................... 27
`IV. BYRNE-RALEIGH GROUNDS (GROUNDS 2A-2C) ...............................32
`A.
`Petitioner Fails to Prove Obviousness Based on Byrne in
`Combination with Raleigh for Claims 1, 2-9, and 12 (Grounds
`2A-2C) .............................................................................................. 32
` Petitioner Fails to Prove that Either Byrne or Raleigh
`Discloses a Processor that Processes a First Data
`Stream and a Second Data Stream in Parallel ........................ 32
` A POSITA Would Not Have Been Motivated to Modify
`Byrne to Incorporate Raleigh’s SOP System ......................... 39
`
`D.
`
`- i -
`
`

`

` A POSITA Would Not Have Had a Reasonable
`Expectation of Success in Modifying Byrne to
`Incorporate Raleigh’s SOP System ........................................ 52
`Petitioner has Failed to Show that the Raleigh-Byrne
`Combination Teaches Claims 6 and 7. ............................................. 56
`Petitioner has Failed to Show Obviousness of the Raleigh-
`Byrne-WO748 Combination (Ground 2B) ....................................... 56
` Petitioner Fails to Prove that a POSITA Would Have
`Reasonably Expected Success in Making the Raleigh-
`Byrne-WO748 Combination .................................................. 56
` Petitioner’s Raleigh-Byrne-WO748 Combination Fails
`to Teach a Virtual Network as Required by Claims 3-4. ....... 58
`Petitioner has Failed to Show Obviousness of the Raleigh-
`Byrne-Pillekamp Combination (Ground 2C, 2E – Claims 12,
`15, 18-20) .......................................................................................... 58
`The Remaining Grounds Fail Because They Depend on
`Independent Claims as to which Petitioner has Failed to Meet
`Its Burden .......................................................................................... 58
`CONCLUSION ..............................................................................................59
`
`D.
`
`E.
`
`B.
`
`C.
`
`V.
`
`
`
`
`
`- ii -
`
`

`

`TABLE OF AUTHORITIES
`
`Cases
`ActiveVideo Networks, Inc. v. Verizon Communications, Inc.,
`694 F.3d 1312 (Fed. Cir. 2012) ............................................................................48
`Altera Corp. v. PACT XPP Techs., AG,
`2015 U.S. Dist. LEXIS 111222 (N.D. Cal. Aug. 21, 2015) ................................34
`Cuozzo Speed Techs., LLC v. Lee,
`579 U.S. 261 (2016) .............................................................................................35
`Eli Lilly v. Teva Pharms. Intn’l GmbH,
`8 F.4th 1331 (Fed. Cir. 2021)...............................................................................52
`Fanduel, Inc. v. Interactive Games LLC,
`966 F.3d 1334 (Fed. Cir. 2020) ............................................................... 17, 21, 51
`Harmonic Inc. v. Avid Tech., Inc.,
`815 F.3d 1356 (Fed. Cir. 2016) ............................................................................16
`
`Henny Penny Corp. v. Frymaster LLC,
`938 F.3d 1324 (Fed. Cir. 2019) ............................................................................40
`Howmedica Osteonics Corp. v. Wright Med. Tech. Inc.,
`540 F.3d 1337 (Fed. Cir. 2008) ............................................................................34
`Hulu, LLC v. Sound View Innovations, LLC,
`IPR2018-00582, Paper 34 (PTAB Aug. 5, 2019) ................................................48
`In re Cuozzo Speed Techs., LLC,
`793 F.3d 1268 (Fed. Cir. 2015) ............................................................................34
`In re Hedges,
`783 F.2d 1038 (Fed. Cir. 1986) ............................................................................47
`In re Magnum Oil Tools International, Ltd.,
`829 F.3d 1364 (Fed. Cir. 2016) .............................................................................. 7
`In re Vaeck,
`947 F.2d 488 (Fed. Cir. 1991) ..............................................................................52
`
`- iii -
`
`

`

`Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ............................................................................49
`InTouch Technologies, Inc. v. VGO Communications, Inc.,
`751 F.3d 1327 (Fed. Cir. 2014) ............................................................................22
`Johns Manville Corp. v. Knauf Insulation, Inc.,
`IPR2018-00827, Paper No. 9 (PTAB Oct. 16, 2018) ..........................................25
`Keynetick, Inc. v. Samsung Elec. Co.,
`841 Fed. Appx. 219 (Fed. Cir. 2021) ...................................................................25
`Kinetic Concepts, Inc. v. Smith & Nephew, Inc.,
`688 F.3d 1342 (Fed. Cir. 2012) ..................................................................... 49, 50
`Microsoft Corp. v. Enfish, LLC,
`662 F. App’x 981 (Fed. Cir. 2016) ......................................................................51
`Orthopedic Equip. Co., Inc. v. United States,
`702 F.2d 1005 (Fed. Cir. 1983) ............................................................................25
`Otsuka Pharm. Co., v. Sandoz, Inc.,
`678 F.3d 1280 (Fed. Cir. 2012) ............................................................................19
`PAR Pharm., Inc. v. TWI Pharms., Inc.,
`773 F.3d 1186 (Fed. Cir. 2014) ............................................................................19
`Rolls-Royce, PLC v. United Techs. Corp.,
`603 F.3d 1325 (Fed. Cir. 2010) ..................................................................... 50, 51
`Ruiz v. A.B. Chance Co.,
`234 F.3d 654 (Fed. Cir. 2000) ..............................................................................47
`Samsung Elecs. Co., Ltd. v. Elm 3DS Innovations, LLC,
`925 F.3d 1373 (Fed. Cir. 2019) ......................................................... 25, 27, 32, 55
`Securus Techs., Inc. v. Global Tel*Link Corp.,
`701 F. App’x 971 (Fed. Cir. 2017) ......................................................................51
`St. Jude Med., LLC v. Snyders Heart Valve LLC,
`977 F.3d 1232 (Fed. Cir. 2020) .............................................................................. 7
`
`- iv -
`
`

`

`TQ Delta, LLC v. Cisco Sys., Inc.,
`942 F.3d 1352 (Fed. Cir. 2019) ........................................................................7, 48
`United Pats. Inc. v. Universal Secure Registry LLC,
`IPR2018-0067, Paper 54 (PTAB May 1, 2019) ...................................................16
`Univ. of Strathclyde v. Clear-Vu Lighting, LLC,
`17 F.4th 155 (Fed. Cir. 2021)...............................................................................19
`
`
`
`
`- v -
`
`

`

`PATENT OWNER’S UPDATED EXHIBIT LIST
`
`EXHIBIT
`
`DESCRIPTION
`
`2001.
`
`2002.
`
`2003.
`
`2004.
`
`2005.
`
`2006.
`
`2007.
`
`2008.
`
`2009.
`
`2010.
`
`2011.
`
`Declaration of Steven J. Udick in Support of Patent Owner’s
`Unopposed Motion to Appear Pro Hac Vice Admission.
`
`Declaration of Philip J. Graves in Support of Patent Owner’s
`Unopposed Motion to Appear Pro Hac Vice Admission.
`
`Declaration of Greer N. Shaw in Support of Patent Owner’s
`Unopposed Motion to Appear Pro Hac Vice Admission.
`
`Declaration of Dr. Todor Cooklev in Support of Patent Owner’s
`Response.
`
`Curriculum Vitae of Dr. Todor Cooklev.
`
`Deposition Transcript of Dr. Michael A. Jensen in IPR2022-00766
`proceeding, dated Jan. 18, 2023.
`
`Deposition Transcript of Dr. Michael A. Jensen in IPR2022-01004
`proceeding, dated Mar. 20, 2023.
`
`Report ITU-R M.2038, Technology Trends (2004).
`
`Zygmunt J. Haas & Abhijit Warkhedi, The Design and
`Performance of Mobile TCP For Wireless Networks, JOURNAL OF
`HIGH SPEED NETWORKS, 187-207 (IOS Press 2001).
`
`Paul J.M. Havinga & Gerard J.M. Smit, Energy-Efficient Wireless
`Networking for Multimedia Applications, in WIRELESS
`COMMUNICATION AND MOBILE COMPUTING 165-184 (Wiley 2001).
`
`David Gesbert et al., From Theory to Practice: An Overview of
`MIMO Space–Time Coded Wireless Systems, 21 IEEE JOURNAL ON
`SELECTED AREAS IN COMMUNICATIONS 281-302 (Apr. 2003).
`
`- vi -
`
`

`

`EXHIBIT
`
`DESCRIPTION
`
`2012. M. Satyanarayanan, Fundamental Challenges in Mobile
`Computing, School of Computer Science, Carnegie Mellon
`University, ACM (1996).
`
`2013.
`
`2014.
`
`2015.
`
`2016.
`
`Babak Hassibi & Bertrand M. Hochwald, High-Rate Codes That
`Are Linear in Space and Time, 48 IEEE TRANSACTION ON
`INFORMATION THEORY 1804-1824 (Jul. 2002).
`
`Andreas F. Molisch, MIMO Systems With Antenna Selection – An
`Overview, IEEE MICROWAVE MAGAZINE 167-170 (IEEE 2003),
`downloaded from IEEE Xplore on Mar. 3, 2023.
`
`Zheng Yan, Mobile Digital Rights Management, T-110.501
`Seminar on Network Security (2001).
`
`Jibing Wang & Kung Yao, Multiuser Spatio-Temporal Coding for
`Wireless Communications, IEEE 276-279 (2002).
`
`2017. Martin Gaedke et al., Web Content Delivery to Heterogeneous
`Mobile Platforms, Lecture Notes in Computer Science (LNCS),
`Springer Verlag, Vol. 1552, 205-217 (1998).
`
`2018.
`
`Deposition Transcript of Dr. Michael A. Jensen in IPR2022-01005
`proceeding, dated Mar. 17, 2023.
`
`
`
`
`
`
`- vii -
`
`

`

`I.
`
`INTRODUCTION
`Petitioner relies primarily on two references, Byrne and Raleigh. Byrne
`
`discloses an old-school dual cellular-cordless phone, whereas Raleigh discloses a
`
`system for orthogonalizing signals to mitigate signal fade and other effects generated
`
`by buildings and other obstructions.
`
`First, Petitioner fails to prove that Byrne discloses a processor that processes
`
`a first and second data stream. Each of the independent claims (1, 5, 8, 12) recites a
`
`wireless communication device comprising “a processor . . . configured to process a
`
`first data stream and a second data stream in parallel.” Ground 1 points to Byrne’s
`
`microprocessor 210 to supply the processor, and to information transmitted or
`
`received via the cellular and cordless antennas as the first and second data streams.
`
`However, Byrne clearly shows that the “data streams” to which Petitioner points
`
`never
`
`touch
`
`the microprocessor, but are
`
`instead
`
`routed
`
`through
`
`the
`
`receiver/transmitter to the audio switch:
`
`- 1 -
`
`

`

`
`
`EX-1008, Fig. 2 (annotated). Petitioner’s expert admits that Byrne does not
`
`expressly disclose the cellular and cordless streams being routed to the processor,
`
`acknowledging repeatedly that Byrne “is just not highly explicit or not explicit at all
`
`about” what data might or might not be ending up at the microprocessor and that
`
`“Byrne is not highly explicit about what signals go where.” This admission of
`
`alleged ambiguity by Petitioner’s expert does not help Petitioner, since Petitioner
`
`bears the burden of proving its case. In any event, a POSITA would understand that
`
`Byrne’s microprocessor does not process either the cellular or cordless data stream.
`
`This is sufficient to dispense with Ground 1.
`
`- 2 -
`
`

`

`Second, Petitioner fails to prove that Byrne discloses or renders obvious a
`
`processor that processes a first and second data stream in parallel. Petitioner relies
`
`on two short lines in Byrne to claim that Byrne teaches this limitation, but neither of
`
`them references parallel processing. While Byrne refers to a device that can be
`
`arranged so that both cellular and cordless “operat[ions]” are “in progress” at the
`
`same time, Petitioner’s expert admits that Byrne’s “operations” are not actual open
`
`connections, so there is no basis to conclude that these ambiguous “operations”
`
`require or would benefit from parallel processing through microprocessor 210. He
`
`also admits that Byrne’s “in progress at the same time” outcome could have been
`
`accomplished in a variety of ways that do not involve parallel processing through
`
`microprocessor 210. And since the cellular and cordless data streams are not
`
`processed through the microprocessor at all, they logically cannot be processed in
`
`parallel. So Petitioner’s showing fails for this reason as well.
`
`Third, Petitioner fails to prove that a POSITA would have reasonably
`
`expected success in making either the Byrne-Johnston-Pillkamp combination or the
`
`Raleigh-Byrne-Pillkamp, asserted against claim 12 and its dependents. Petitioner’s
`
`expert admits that in order to construct these combination devices a POSITA would
`
`have had to extensively modify both the cellular and cordless components of Byrne,
`
`incorporating new structure and logic into Byrne. A POSITA with the level of skill
`
`- 3 -
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`

`

`proposed by Petitioner would not have reasonably expected success in doing so.
`
`This forecloses Grounds 1C and 2F.
`
`Fourth, for Ground 2A, Petitioner fails to prove that either Byrne or Raleigh
`
`discloses a processor comprising multiple channels or that processes a first and
`
`second data stream in parallel. As shown above, Byrne does not disclose a processor
`
`configured to process the recited data streams. With respect to Raleigh, Petitioners
`
`rely on Raleigh’s purported parallel transmission of signals, which does not disclose
`
`parallel processing of the data being transmitted. In addition, Raleigh does not
`
`disclose a single processor that processes multiple data streams but rather a separate
`
`processor for each of the “subchannels” that Petitioner contends are the data streams.
`
`This also shows that Raleigh does not disclose a processor that comprises multiple
`
`channels. Moreover, the “bins” to which Petitioner points to supply the “channels”
`
`of the claim are not channels at all, but rather an output of the separate processors.
`
`So Petitioner’s Byrne-Raleigh combination fails with respect to each of the
`
`independent claims.
`
`Fifth, Petitioner fails to prove that a POSITA would have been motivated to
`
`modify Byrne to incorporate Raleigh’s SOP system, or that a POSITA would have
`
`reasonably expected success in attempting to do so. There was no motivation to
`
`modify Byrne as proposed by Petitioner, because the purported benefits of
`
`Petitioner’s Byrne-Raleigh device would have been outweighed by the difficulty and
`
`- 4 -
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`

`

`detriments of the combination. Raleigh’s system was disclosed as implemented
`
`using an antenna array mounted on a building or a vehicle; there is no disclosure of
`
`Raleigh’s system in a handheld device like Byrne’s phone. This is because Raleigh’s
`
`system exceedingly complex for its time, requiring multiple antennas and
`
`computational resources for its space-time coding procedures greater than could be
`
`practically implemented on a handheld device. Indeed, there were no commercial
`
`implementations of space-time coding techniques in mobile phones or cellular
`
`networks at the Critical Date and even years after the Critical Date there was little
`
`commercial implementation of MIMO (an element of Raleigh’s system) in cellular
`
`systems due to the complexity required for MIMO receivers. And given the nascent
`
`state of the space-time coding procedures disclosed by Raleigh as of the Critical
`
`Date, and the substantial changes to Byrne’s basic phone that would have been
`
`required to implement Raleigh’s system on the phone, a POSITA with the level of
`
`skill adopted by Petitioner could not have reasonably expected success in attempting
`
`such a wholesale reconstruction of Byrne’s phone. Petitioner’s failure to
`
`meaningfully address these issues forecloses Ground 2.
`
`Finally, Petitioner fails to prove that the Byrne-WO748 combination discloses
`
`claims 3-4, or that a POSITA would have reasonably expected success in making
`
`the combination. Petitioner also fails to prove that a POSITA would have reasonably
`
`- 5 -
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`

`

`expected success in making the Raleigh-Byrne-WO748 combination, or that the
`
`combination teaches a virtual network as required by claims 3-4.
`
`For these reasons, and those below, Patent Owner requests that the Board find
`
`Petitioner has failed to demonstrate that the challenged claims are unpatentable.
`
`II. LEVEL OF ORDINARY SKILL
`Petitioner asserts that a POSITA “would have had a Bachelor’s degree in
`
`electrical engineering, computer engineering, computer science, or a related field,
`
`and at least two years of experience related to the design or development of wireless
`
`communication systems, or the equivalent” and that “[a]dditional graduate education
`
`could substitute for professional experience, or significant experience in the field
`
`could substitute for formal education.” Pet. at 3 (citing EX-1003, ¶¶27-28). During
`
`deposition in the -00766 IPR, Petitioner’s expert, Dr. Michael Jensen, testified that
`
`a POSITA would have “a demonstrated capability in just designing some component
`
`of the system and working on that” and “starting to work at a higher level” where
`
`“maybe they’re only designing some piece based on the expertise, but they’re
`
`understanding the architecture into which their piece will fit and how their design is
`
`going to impact that architecture and the overall functioning of the system.” EX-
`
`2006, 29:13-31:5. He confirmed that his POSITA definition and nothing would
`
`change about his definition of a POSITA or “what they would be aware of and what
`
`their capabilities were at the time” of the critical date. EX-2007, 13:8-14:15. For this
`
`- 6 -
`
`

`

`proceeding, Patent Owner does not contest Petitioner’s definition of a POSITA as
`
`Dr. Jensen clarified during deposition. EX-2004, ¶¶18-22.
`
`III. BYRNE GROUNDS (GROUNDS 1A-1C)
`Petitioner Fails to Prove Obviousness Based on Byrne for Claims
`A.
`1, 3-9, and 12 (Grounds 1A-1C)
`Petitioner Fails to Prove that Byrne Discloses a Processor
`
`that Processes a First Data Stream and a Second Data
`Stream
`Petitioner bears the burden of proving that the challenged claims were
`
`obvious. St. Jude Med., LLC v. Snyders Heart Valve LLC, 977 F.3d 1232, 1242-43
`
`(Fed. Cir. 2020). Conclusory allegations and expert testimony are insufficient. TQ
`
`Delta, LLC v. Cisco Sys., Inc., 942 F.3d 1352, 1359-62 (Fed. Cir. 2019); In re
`
`Magnum Oil Tools International, Ltd., 829 F.3d 1364, 1380-81 (Fed. Cir. 2016).
`
`Limitation 1[e] requires a “processor [that] comprises multiple ones of the one
`
`or more channels and is further configured to process a first data stream and a second
`
`data stream in parallel.” EX-1001, Claim 1. For Grounds 1A-1C, Petitioner and Dr.
`
`Jensen rely solely on Byrne to meet Limitation 1[e], which also exists in independent
`
`claims 5 (Limitation 5[f]), 8 (Limitation 8[e]) and 12 (Limitation 12[e]). So as to
`
`Grounds 1A-1C, Petitioner’s arguments stand or fall based on whether Byrne
`
`discloses a processor that processes two data streams in parallel. But the processor
`
`that Petitioner identifies does not; it never receives the data stream in order to process
`
`it. This dooms Petitioner’s argument. EX-2004, ¶34.
`
`- 7 -
`
`

`

`Petitioner and Dr. Jensen rely on an annotated image to claim that Byrne
`
`discloses parallel processing of the data stream by the microprocessor:
`
`
`
`Pet. 16; EX-1003, ¶87; EX-2004, ¶35. Nowhere in Dr. Jensen’s expert declaration
`
`does he explain why he highlighted the antennas, the cordless and cellular
`
`transceivers, and the logic arrows between the transceivers and the microprocessor.
`
`EX-2004, ¶35. That is because Petitioner is hoping that annotations can cover for a
`
`lack of disclosure.
`
`
`
`The Petition and Dr. Jensen admit that data streams disclosed in Byrne are
`
`streams that “transmit[ted] and receive[d] data carrying digital information on
`
`[several digital protocols].” EX-1003, ¶88; Pet. 17. That is, the data streams are the
`
`- 8 -
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`

`

`digital information received over the antennas carried by the signal. EX-2007, 19:6-
`
`17; EX-2004, ¶36. But this is where Dr. Jensen and Petitioner’s arguments fail. They
`
`have submitted no evidence that either of the data streams received by the antennas
`
`are processed by the processor. While they point to two arrows between the cordless
`
`and cellular transceivers and the microprocessor, those do not convey the data
`
`streams received by the antennas to the microprocessor, so it is impossible for the
`
`microprocessor to have processed the data streams. EX-2004, ¶37. Instead, Byrne
`
`makes clear that the microprocessor controls the transceivers and audio switch but
`
`does not process the incoming data streams received by then antennas. EX-2004,
`
`¶37.
`
`
`
`First, Byrne calls out
`
`the functions of
`
`the microprocessor: “The
`
`microprocessor 210 illustrated in Figure 2 is adapted to operate in accordance with
`
`the flow charts illustrated in Figures 3-4, for controlling CCT 200 as a cordless
`
`telephone, a cellular telephone or a cellular cordless telephone.” EX-1008, 7:56-8:2.
`
`Going on, Byrne describes how the microprocessor listens to control signals from
`
`the transceivers (not the data streams) and acts to operate the CCT. Column 8
`
`describes the CCT “operating” as a cordless telephone device, listing the processing
`
`of control signals from the cordless transceiver that indicate certain statuses of the
`
`transceiver. EX-2004, ¶38; EX-1008, 8:16-28. In a prior deposition in IPR2022-
`
`00766, also involving Byrne, Dr. Jensen acknowledged that this disclosure does not
`
`- 9 -
`
`

`

`relate to processing the incoming data stream: “[t]his paragraph doesn’t deal
`
`specifically with what is happening during the phone call, but more to establish the
`
`phone call.” EX-2006, 169:12-171:2. Further, when asked “do you recall anything
`
`in Byrne that tells you that operating also specifically means a – a live connection,”
`
`Dr. Jensen replied “I don’t recall that kind of specificity in the specification.” EX-
`
`2004, ¶39; EX-2006, 172:20-173:2.
`
`During deposition in this proceeding, Dr. Jensen acknowledged that Byrne
`
`does not expressly disclose that the incoming data is processed by the
`
`microprocessor. EX-2004, ¶40. Again referring to column 8, lines 16-28, Dr. Jensen
`
`testified that “the first sentence talks about control signals for enabling the cordless
`
`transceiver” and the second sentence refers to the microprocessor receiving “signals
`
`from the cordless receiver that indicates the received signal strength,” “signals for
`
`detecting received data,” and signals for “sending transmit data.” EX-2004, ¶40; EX-
`
`2007, 21:7-23:6. When asked “anywhere in [that disclosure in the specification]
`
`does it refer to the processing of received data,” Dr. Jensen replied that “It doesn’t
`
`expressly use those words processing the received data, but detecting is a form of
`
`processing.” EX-2007, 23:7-11. He was further pressed about whether the
`
`microprocessor receives the same data that the antenna does:
`
`Q. Detecting that the cordless receiver is receiving data, does that mean
`that the microprocessor is also receiving that data?
`
`- 10 -
`
`

`

`A. Well -- so Byrne here -- you know, this is the only sentence we have,
`so Byrne here is not highly clear on everything that he means by this
`sentence, but it certainly leaves a POSITA to understand that data is
`being passed from that receiver to the microprocessor.
`
`Q. Is it the same data that is being received by the antenna?
`
`A. Presumably, right. Again, he is not highly explicit here, this is kind
`of the only sentence we have of exactly what that data is and what is
`happening, but data would be coming through the antenna that would
`end up at the microprocessor through this channel, it is just not highly
`explicit or not explicit at all about what form that takes.
`
`EX-2007, 23:14-24:10; EX-2004, ¶40. Dr. Jensen forms his conclusion based on his
`
`understanding and inference that the microprocessor would process the incoming
`
`data stream because “it says here for detecting received data, so what’s doing that
`
`detecting, what’s doing that processing, the processor he discloses is the
`
`microprocessor 210.” EX-2004, ¶41; EX-2007, 24:11-17. Most tellingly, though,
`
`Dr. Jensen recognizes that his reliance on this single sentence does not provide the
`
`support he hopes:
`
`Q. And there is no express disclosure that said that the cordless receiver
`takes the information from the antenna and passes that information to
`the processor, is that correct?
`
`A. Well, express, I mean, I think that paragraph and that sentence we
`talked about in column 8 about detecting received data does indicate a
`
`- 11 -
`
`

`

`passing of received data from
`microprocessor.
`
`the cordless receiver
`
`to
`
`the
`
`Q. But it never says the microprocessor receives that data, it says that
`-- only that it detects signal from the cordless receiver for detecting
`received data, correct?
`
`A. That is the language -- I will agree, that is the language from
`Byrne, yes.
`
`EX-2007, 33:11-34:4; EX-2004, ¶41.
`
`Further confirming that Dr. Jensen has not interpreted Byrne correctly, he
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`acknowledges that he cannot identify what the microprocessor would do with the
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`data if it went in the path he suggests, given that there is no disclosure of the data
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`being passed to the microprocessor and then back out to the audio outputs:
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`Q. What would the microprocessor then do with that data?
`
`A. Again, Byrne has not expressed as to what that processing might
`look like, but there is a lot of processing that might happen to that data
`stream, right? I mean, it is coming in -- it uses digital standards so there
`is all kinds of processing that needs to happen to get that in a form, say,
`where a speaker could actually play that.
`
`Q. In Figure 2 that you reference what you don't highlight is a line from
`the cordless receiver to the cordless audio, correct?
`
`A. I don't highlight it, but it's there, yes.
`
`Q. What is your understanding of what that is passing?
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`

`

`A. Well, once again, Byrne is not highly explicit about what signals
`go where. At a minimum that is something that the cordless audio could
`do some maybe filtering or amplification of or something like that to
`send it out through the audio switch to the speaker in this particular case
`because we are receiving.
`
`Q. Is there anything -- is there any disclosure in Byrne that the
`information is sent to the speakers from the microprocessor?
`A I am not aware of any disclosure, I don't recall any disclosure in
`Byrne that says that the microprocessor 210 sends audio data to the
`speaker.
`
`EX-2007, 26:17-28:2; EX-2004, ¶42. And Dr. Jensen admits there is no disclosure
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`that says the microprocessor sends information to the cordless receiver to go to the
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`cordless audio module. EX-2007, 32:17-33:1; EX-2004, ¶43.
`
`
`
`The next disclosure in the specification of how the device operates is in
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`reference to Figure 3. EX-1008, 8:44-47; EX-2007, 28:12-21. But Figure 3 does not
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`show that the microprocessor even receives the data streams, let alone processes
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`them. Instead, Figure 3 is related to, as Dr. Jensen has previously stated “my
`
`understanding of Figure 3 that I have looked at before this obviously, is that this is
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`really about making a decision about which radio interface to be using based on a
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`number of different kind of decisions or pieces of the information to help make
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`decisions.” EX-2004, ¶44; EX-2006, 175:20-176:7. And when asked in regards to
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`this proceeding, Dr. Jensen admitted that “to answer your question more specifically
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`about whether or not data coming in from the antenna is ending up in the
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`microprocessor, I think it’s a little more nuanced whether that’s happening or not. It
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`is certainly not expressed in these figures.” EX-2007, 29:6-19 (referring to figures
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`3 and 4); EX-2004, ¶44.
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`Figure 4 and its related specification description continue the discussion of
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`the operation of the device. EX-1010, 9:31-10:1. Again, Dr. Jensen previously
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`admitted that Figure 4 does not provide any disclosure of a microprocessor
`
`processing the data streams received by the antennas, stating “this block diagram
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`[referring to Figure 4], obviously working with Figure 3 is about choosing which
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`modality to use, whether cordless or cellular.” EX-2006, 176:16-20; see EX-2007,
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`29:6-19 (referring to Figs. 3 and 4); EX-2004, ¶45.
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`Next, the specification indicates that “The audio switch 260 is controlled by
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`the microprocessor 210 to link the cordless audio channel 240 or the cellular audio
`
`channel 250 to the microphone 261 and loudspeaker 262 as appropriate.” EX-1008,
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`8:39-43. This is further evidence that the microprocessor does not process the
`
`incoming data streams. EX-2004, ¶46. In this disclosure, the microprocessor does
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`nothing more than open gates for the data streams to flow elsewhere. The data stream
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`that would exist here, in theory, would be the cordless or cellular audio, and Figure
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`2 shows that the audio channels receive that information from the cordless and
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`

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`cellular receivers, not from the microprocessor. EX-1008, Fig. 2; EX-2004, ¶47.
`
`Below is a corrected, annotated Figure 2 that aligns with the disclosures of Byrne:
`
`
`
`EX-2004, ¶48; EX-1008, Fig. 2 (annotated).
`
`What Byrne shows, as annotated above, is that the microprocessor never
`
`receives the data streams in order to process them in the first place. EX-2004, ¶49.
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`Neither Petitioner nor Dr. Jensen cites any evidence that discloses it does. This
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`should be the end of the matter. Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356,
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`1363 (Fed. Cir. 2016) (“In an [IPR], the petitioner has the burden from the onset to
`
`show with particularity why the patent it challenges is unpatentable.”); United Pats.
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`

`

`Inc. v. Universal Secure Registry LLC, IPR2018-0067, Paper 59, 30 (PTAB May 1,
`
`2019) (rejecting a challenge to a claim when the Petition failed to explain how a
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`prior art disclosure satisfied a claim limitation).
`
`In the Institution Decision, the Board cited to paragraphs 86-87 of Dr. Jensen’s
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`declaration as the supporting testimony for Petitioner’s argument that Byrne
`
`discloses a processor that processes first and second data streams. Institution Dec.
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`30. However, paragraph 86 is conclusory, simply asserting that Byrne “describes or
`
`renders obvious” what it clearly does not describe and failing to offer any
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`explanation as to why Byrne renders the purported disclosure obvious. EX-1003,
`
`¶86. Paragraph 87 asserts that the “microprocessor 211 [by which Petitioner
`
`apparently means microprocessor 210] is configured to process” the cordless and
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`cellular data streams “in parallel to ensure ‘both cellular and cordless operations are
`
`in progress at the same time,’” citing to 8:2-15 of Byrne. EX-1003, ¶87. However,
`
`as shown above, Dr. Jensen admitted in deposition that this snippet of Byrne does
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`not disclose that processor 210 is processing cellular and cordless data streams,
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`much less doing so in parallel. EX-2004, ¶50. In addition, Dr. Jensen asserts that
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`“single-chip multiprocessor with multiple channels for parallel processing of cellular
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`and cordless communications” were known in the art, but even if this is true it does
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`not suffice to establish either that Byrne discloses or renders obvious that
`
`microprocessor 210 processes cellular and cordless data streams in Byrne’s devic