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`
`
`Filed: May 26, 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 IPR2022-01249
`Patent 9,019,946
`____________
`
`PATENT OWNER’S RESPONSE
`
`
`

`

`
`
`I.
`
`II.
`
`TABLE OF CONTENTS
`
`INTRODUCTION .......................................................................................... 1
`
`AS THE BOARD HAS THRICE FOUND, PETITIONER FAILS TO
`PROVE ITS COMBINATIONS DISCLOSE OR RENDER OBVIOUS
`“MULTIPLEXED SIGNALS” (CLAIMS 1-13; GROUNDS 1B-D). ........... 2
`
`A. The Board Correctly Found That Petitioner’s Grounds Do Not
`Disclose Or Render Obvious “Multiplexed” “Signals” In Three
`Separate Cases. ...................................................................................... 2
`
`B.
`
`Petitioner Fails To Show That Yegoshin Discloses Or Renders
`Obvious The Claimed “Multiplexed” “Signals.” .................................. 3
`
`1.
`
`2.
`
`3.
`
`As The Board Correctly Found, Petitioner Fails To Meet Its
`Burden To Show Inherency Or Single Reference
`Obviousness. ............................................................................... 3
`
`As The Board Correctly Found, Yegoshin Does Not Teach
`“Simultaneously” Using Cellular And WLAN Signals Or
`Otherwise Disclose “Multiplexing.” ........................................... 6
`
`Petitioner Does Not Demonstrate That Yegoshin
`Multiplexes Under Any Construction, Including
`Petitioner’s District Court Construction. .................................. 10
`
`C.
`
`Petitioner Fails To Show That Yegoshin-Bernard Renders
`Obvious The Claimed “Multiplexed” Signals. ................................... 12
`
`1.
`
`2.
`
`Petitioner Does Not Prove That Bernard Discloses The
`Claimed “Multiplexing.” ........................................................... 13
`
`Petitioner Fails To Prove A POSITA Would Be Motivated
`To Modify Yegoshin-Johnston-Billström In View Of
`Bernard To Satisfy The Claimed “Multiplexing.” .................... 20
`
`- i -
`
`

`

`
`
`III.
`
`IV.
`
`V.
`
`VI.
`
`PETITIONER FAILS TO PROVE ITS COMBINATION DISCLOSES
`“COMBIN[ING] DATA PATHS INTO A SINGLE TRANSMISSION
`INTERFACE TO ONE OR MORE APPLICATIONS” (CLAIMS 6-10,
`17-21, 26; GROUNDS 1B, 1D). ..................................................................29
`
`PETITIONER FAILS TO PROVE ITS COMBINATIONS DISCLOSE
`OR RENDER OBVIOUS MULTIPLE IP ADDRESSES OR
`INTERFACES (CLAIMS 1-16; GROUNDS 1A-D). ..................................38
`
`A. Petitioner Fails To Explain How Yegoshin’s Device Would Use
`Two IP Addresses. ............................................................................... 39
`
`B. Modifying Yegoshin To Implement Billström’s Cellular Network
`Would Have Been Beyond The Skill Of A POSITA. ......................... 42
`
`PETITIONER FAILS TO SHOW SIMULTANEOUS USE OF
`MULTIPLE NETWORK PATHS (CLAIMS 14-21, 26; GROUNDS
`1A-B, D). ......................................................................................................48
`
`PETITIONER FAILS TO SHOW “TWO NETWORK PATHS”
`CONNECTED TO THE SAME “SERVER” AND USE OF THE SECOND
`NETWORK PATH “IN RESPONSE TO A CHANGE IN THE SIGNAL
`STRENGTH AND/OR CONNECTIVITY” (CLAIMS 27-30; GROUND
`1E). ...............................................................................................................55
`
`A. Yegoshin’s Phone Does Not Operate or Communicate to any
`Server on First and Second Network Paths. ........................................ 55
`
`B. The Second Wireless Transmit and Receive Unit Does Not
`Communicate to any Remote Server In Response to a Change in
`Signal Strength or Connectivity. ......................................................... 61
`
`VII. PETITIONER FAILS TO SHOW THAT MULTIPLE DEPENDENT
`CLAIMS ARE DISCLOSED OR RENDERED OBVIOUS (CLAIMS
`2, 5, 10; GROUNDS 1B). .............................................................................65
`
`A. Claims 2, 5 ........................................................................................... 65
`
`B. Claim 10 .............................................................................................. 65
`
`VIII. CONCLUSION ............................................................................................66
`
`- ii -
`
`

`

`
`
`TABLE OF AUTHORITIES
`
`CASES
`
`Alcon Inc. v. AMO Dev., LLC,
`IPR2021-00853, Paper 48 (Dec. 2, 2022) ..........................................................42
`
`Arendi S.A.R.L. v. Apple, Inc.,
`832 F.3d 1355 (Fed. Cir. 2016) ............................................................................ 5
`
`Broadcom Ltd. v. Tessera Advanced Techs., Inc.,
`IPR2017-00736, Paper 8 (Jul. 27, 2017) .............................................................. 5
`
`Cheese Sys. v. Tetra Pak Cheese & Powder Sys.,
`725 F.3d 1341 (Fed. Cir. 2013) ..........................................................................28
`
`DSS Tech. Mgm’t v. Apple Inc.,
`885 F.3d 1367 (Fed. Cir. 2018) ............................................................................ 6
`
`Ecolochem, Inc. v. S. Cal. Edison Co.,
`227 F.3d 1361 (Fed. Cir. 2000) ..........................................................................28
`
`Eli Lilly & Co. v. Teva Pharms. Int’l GmbH,
`8 F.4th 1331 (Fed. Cir. 2021) .............................................................................44
`
`IBM Corp. v. Intellectual Ventures II LLC,
`IPR2014-00682, Paper 11 (Oct. 30, 2014) ........................................................... 5
`
`In re Am. Acad. of Sci. Tech Ctr.,
`367 F.3d 1359 (Fed. Cir. 2004) ..........................................................................64
`
`Intelligent Bio-Sys, Inc. v. Illumina Cambridge, Ltd.,
`821 F.3d 1359 (Fed. Cir. 2016) ......................................................................3, 60
`
`K/S HIMPP v. Hear-Wear Techs., LLC,
`751 F.3d 1362 (Fed. Cir. 2014) ............................................................................ 6
`
`Norman Int’l, Inc. v. Hunter Douglas, Inc.,
`IPR2014-00282, Paper 8 (Jun. 20, 2014) ...........................................................24
`
`- iii -
`
`

`

`
`
`PAR Pharm. v. TWi Pharms., Inc.,
`773 F.3d 1186 (Fed. Cir. 2014) ............................................................................ 4
`
`Phillips v. AWH Corp.,
`415 F.3d 1303 (Fed. Cir. 2005) ..........................................................................53
`
`R.J. Reynolds Vapor Co. v. Fontem Holdings 1 B.V.,
`IPR2016-01692, Paper 45 (Mar. 2, 2018) ..........................................................24
`
`Samsung Elecs. Co. Ltd. v. KAIST IP US LLC,
`IPR2017-01046, Paper 12 (Oct. 2, 2017) ...........................................................42
`
`Samsung Elecs. Co. Ltd. v. KAIST IP US LLC,
`IPR2017-01046, Paper 14 (Jan. 22, 2018) ..........................................................42
`
`Southwire Co. v. Cerro Wire LLC,
`870 F.3d 1306 (Fed. Cir. 2017) ........................................................................... 4
`
`Trintec Indus., Inc. v. Top-U.S.A. Corp.,
`295 F.3d 1292 (Fed. Cir. 2002) ............................................................................ 4
`
`Xerox Corp. v. Bytemark, Inc.,
`IPR2022-00624, Paper 9 (Aug. 24, 2022) ..........................................................11
`
`OTHER AUTHORITIES
`
`PTAB Consolidated Patent Trial Practice Guide (Nov. 2019) ................................51
`
`REGULATIONS
`
`37 C.F.R. § 42.104 (b) .............................................................................................10
`
`37 C.F.R. § 42.65(a) .......................................................................................... 11, 64
`
`
`
`
`
`- iv -
`
`

`

`
`
`2001.
`
`2002.
`
`2003.
`
`2004.
`
`2005.
`
`2006.
`
`2007.
`
`2008.
`
`EXHIBIT LIST
`
`Reserved
`
`Declaration of Professor Todor V. Cooklev, Ph.D.[1*-Cooklev-
`Decl.}
`
`Smart Mobile Technologies, LLC v. Apple Inc., Smart Mobile
`Technologies, LLC v. Samsung Electronics Co., Ltd. et al., Nos.
`6:21-cv-00603 and 6:21-cv-00701, Defendants’ Opening Claim
`Construction Brief (June 8, 2022) |[Defendants’-Opening-Claim-
`Construction-Brief]
`
`[Alphr]
`
`Smart Mobile Technologies, LLC v. Apple Inc., Smart Mobile
`Technologies, LLC v. Samsung Electronics Co., Ltd. et al., Nos.
`6:21-cv-00603 and 6:21-cv-00701, Defendants’ Opening Claim
`Construction Brief — Exhibit 1 (June 8, 2022) [Defendants’ Opening
`Claim Construction Brief — Exhibit 1]
`
`Kevin M.Stack, Preambles as Guidance, 84 GEO. WASH.L. REV.
`1252 (2016) (http://www.gwlr.org/wp-content/uploads/2016/09/84-
`Geo.-Wash.-L.-Rev.-1252.pdf) [Stack]
`
`ElectronicsTutorials, The Multiplexer, WWW.ELECTRONICS-
`TUTORIALS.WS,https://www.electronics-
`tutorials.ws/combination/comb_2.html (last visited Oct. 26, 2022)
`[Electronics-Tutorial]
`
`TexasInstruments, 74HC153 Data Sheet, Dec. 1982, revised Feb.
`2022, WWW.TI.COM,https://www.ti.com/lit/gpn/sn74he 153
`[74HC153-Data-Sheet]
`
`Lee Stanton, Whatis the Difference Between a Landline and a
`Mobile Phone Number?, WWW.ALPHR.COM,Feb. 22, 2022,
`https://www.alphr.com/difference-landline-mobile-phone-number/
`
`

`

`
`
`2009.
`
`2010.
`
`2011.
`
`2012.
`
`2013.
`
`FOCUS LCDs, Serial Vs. Parallel, LCD RESOURCES,
`https://focuslcds.com/serial-vs-parallel/ (last visited Oct. 19, 2022)
`[LCD-Resources]
`
`Techopedia, Serial Interface, WWW.TECHOPEDIA.COM, Nov. 4, 2014,
`https://www.techopedia.com/definition/9312/serial-interface
`[Techopedia]
`
`Excerpts from The Authoritative Dictionary of IEEE Standards
`Terms, Seventh Edition (2000) [Dictionary of IEEE Standards
`Terms]
`
`Jonathan Valvano et al., Chapter 11: Serial Interfacing, EMBEDDED
`SYSTEMS – SHAPE THE WORLD,
`https://users.ece.utexas.edu/~valvano/Volume1/E-
`Book/C11_SerialInterface.htm (last visited Oct. 20, 2022) [Valvano]
`
`Steve Goldband, Input and output for microprocessors, Behavior
`Research Methods & Instrumentation, 1978, Vol. 10, No. 2, pp.
`249-253 [Goldband]
`
`2014.
`
`Ex parte Orbotech LT Solar, LLC, 2012 Pat. App. LEXIS 2784
`(BPAI May 31, 2012)
`
`2015.
`
`Ex parte Evans, 2017 Pat. App. LEXIS 386 (PTAB Aug. 1, 2017)
`
`2016.
`
`2017.
`
`Declaration of Philip J. Graves in support of Motion for Pro Hac
`Vice Admission
`
`Declaration of Greer N. Shaw in support of Motion for Pro Hac
`Vice Admission
`
`2018.
`
`Declaration of Colette Woo [served, not filed]
`
`2019.
`
`Second Declaration of Professor Todor V. Cooklev, Ph.D. [2nd-
`Cooklev-Decl.]
`
`2020.
`
`Deposition Transcript of Michael Jensen, Ph.D. [Jensen-Depo.]
`
`- vi -
`
`

`

`
`
`2021.
`
`2022.
`
`2023.
`
`2024.
`
`2025.
`
`2026.
`
`IPR2022-01223, Paper 13 (PTAB Jan. 30, 2023) (Decision Denying
`Institution) [1223-DDI]
`
`IPR2022-01248, Paper 13 (PTAB Jan. 24, 2023) (Institution
`Decision) [1248-ID]
`
`Additional Excerpts from The Authoritative Dictionary of IEEE
`Standards Terms, Seventh Edition (2000) [IEEE-Dictionary]
`
`Benj Edwards, The Golden Age of PDAs, PC Magazine, Nov. 20,
`2018, https://www.pcmag.com/news/the-golden-age-of-pdas [PC-
`Magazine]
`
`Jeremy Reimer, Remembering Apple’s Newton, 30 Years On, Ars
`Technica, June 1, 2022,
`https://arstechnica.com/gadgets/2022/06/remembering-apples-
`newton-30-years-on/ [Ars-Technica]
`
`Smart Mobile Technologies, LLC v. Apple Inc., Smart Mobile
`Technologies, LLC v. Samsung Electronics Co., Ltd. et al., Nos.
`6:21-cv-00603 and 6:21-cv-00701, Declaration of Dr. Harry Bims In
`Support of Defendants’ Opening Claim Construction Brief (June 8,
`2022) [Bims-Decl.]
`
`2027.
`
`Excerpts from Newton’s Telecom Dictionary, 16th Edition (2000)
`[Newton’s-Telecom-Dictionary]
`
`Smart Mobile Technologies, LLC v. Apple Inc., Smart Mobile
`Technologies, LLC v. Samsung Electronics Co., Ltd. et al., Nos.
`6:21-cv-00603 and 6:21-cv-00701, Plaintiff’s Responsive Claim
`Construction Brief Regarding The ’434 Patent Family (Aug. 17,
`2022) [Plaintiff’s-Responsive-Claim-Construction-Brief]
`
`Deposition Transcript of Michael Jensen, Ph.D. [Jensen-Depo.],
`IPR2022-01248
`
`Deposition Transcript of Michael Jensen, Ph.D. [Jensen-Depo.],
`IPR2022-00766
`
`2028.
`
`2029.
`
`2030.
`
`- vii -
`
`

`

`
`
`2031. Microsoft Computer Dictionary [Microsoft Computer Dictionary]
`(3rd ed. 1997)
`
`2032.
`
`2033.
`
`2034.
`
`Newton’s Telecom Dictionary [Newton’s Telecom Dictionary] (12th
`ed. 1997)
`
`Todor Cooklev, et al., Modern Communication Systems, Ch. 2-7.
`
`U.S. Patent No. 8,842,653 [’653 Patent]
`
`- viii -
`
`

`

`I.
`
`INTRODUCTION
`
`Petitioner fails to prove that any of the challenged claims are invalid:
`
`
`
`• As the Board has thrice found, including in the Institution Decision
`
`(“ID”) here, Petitioner fails to show that Yegoshin, either alone or in
`
`combination with Bernard, discloses or renders obvious “multiplexed
`
`signals,” as required by claims 1-13. See Section II.
`
`• Petitioner fails to show that its Yegoshin-Bernard combination
`
`discloses “combin[ing] data paths into a single transmission interface
`
`to one or more applications,” as required by claims 6-10, 17-26 and
`
`26. See Section III.
`
`• Petitioner fails to show Yegoshin- Billström discloses a mobile device
`
`with multiple IP addresses or interfaces, as required by claims 1-16.
`
`See Section IV.
`
`• Petitioner fails to show simultaneous use of multiple network paths in
`
`Yegoshin or any other reference, as required by claims 14-21 and 26.
`
`See Section V.
`
`• Petitioner fails to show that Yegoshin or any other reference discloses
`
`multiple network paths connected to the same “remote server,” and
`
`use of the second network path in response to a change in signal
`
`strength or connectivity, as required by claims 27-30. See Section VI.
`
`- 1
`
`

`

`
`
`• Petitioner fails to show that dependent claims 2, 5, and 10 are obvious
`
`for additional reasons. See Section VII.
`
`II. AS THE BOARD HAS THRICE FOUND, PETITIONER FAILS TO
`PROVE ITS COMBINATIONS DISCLOSE OR RENDER OBVIOUS
`“MULTIPLEXED SIGNALS” (CLAIMS 1-13; GROUNDS 1B-D).
`
`Claims 1-13 require “multiplexed signals.” Ex-1001, cl. 1[i] (“a single
`
`interface comprised of multiplexed signals”). Petitioner contends the “multiplexed
`
`signals” are rendered obvious by Yegoshin or, alternatively, the combination of
`
`Yegoshin and Bernard. Pet., 33-46. The Board, however, has previously rejected
`
`Petitioner’s argument three times. The Board should again find that Petitioner
`
`failed to show that Yegoshin alone or in combination with Bernard discloses or
`
`renders obvious “multiplexed signals.”
`
`A. The Board Correctly Found That Petitioner’s Grounds Do Not
`Disclose Or Render Obvious “Multiplexed” “Signals” In Three
`Separate Cases.
`
`Petitioner’s argument that Yegoshin and/or Bernard disclose or render
`
`obvious “multiplexed signals” has been thrice rejected by the Board. In the
`
`Institution Decision, the Board found that Petitioner failed to even meet the
`
`“reasonable likelihood of prevailing” threshold, finding that “Petitioner does not
`
`sufficiently show multiplexed signals in any of the asserted references,” and, thus,
`
`“does not provide enough argument and evidence that its proposed combination of
`
`Yegoshin, Johnston, Billström, and Bernard would have ‘a single interface
`
`- 2
`
`

`

`
`
`comprised of multiplexed signals from the plurality of wireless transmit and
`
`receive units,’ as required by claim 1.” ID, 38. Notably, the Board made this same
`
`finding in denying institution in IPR2022-01223 and a third time in IPR2022-
`
`01248. Ex-2021, 30 (“Petitioner’s arguments do not show adequately that
`
`Yegoshin would have been understood to have multiplexed signals, or that Bernard
`
`‘includes or operates as a multiplexer for combining the data packets.’”); Ex-2022,
`
`25 (same).
`
`Having failed to even show a reasonable likelihood of prevailing, Petitioner
`
`cannot satisfy the higher preponderance of the evidence standard, particularly as
`
`petitioners are obligated to “make their case in their petition.” TriVascular, Inc. v.
`
`Samuels, 812 F.3d 1056, 1068 (Fed. Cir. 2016); Intelligent Bio-Sys, Inc. v. Illumina
`
`Cambridge, Ltd., 821 F.3d 1359, 1369 (Fed. Cir. 2016).
`
`B.
`
`Petitioner Fails To Show That Yegoshin Discloses Or Renders
`Obvious The Claimed “Multiplexed” “Signals.”
`
`Petitioner first argues that Yegoshin’s alleged disclosure of “selectively or
`
`simultaneously” transmitting cellular and WLAN data renders obvious
`
`“multiplexed signals. Pet., 33-34. The Board should again reject this argument.
`
`1.
`
`As The Board Correctly Found, Petitioner Fails To Meet Its
`Burden To Show Inherency Or Single Reference
`Obviousness.
`
`Petitioner does not contend that Yegoshin expressly teaches “multiplexing.”
`
`Instead, Petitioner contends that a POSITA “would have found it obvious” that
`
`- 3
`
`

`

`
`
`Yegoshin’s alleged use of cellular and WLAN networks “selectively or
`
`simultaneously” multiplexes signals. Pet., 33-34. Thus, Petitioner’s argument lies
`
`in inherency or, at best, single-reference obviousness. Petitioner, however, fails to
`
`show that either standard is met.
`
`To establish inherency, Petitioner must demonstrate that the limitation is
`
`“necessarily present.” Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292,
`
`1295 (Fed. Cir. 2002) (inherency requires that the missing element must be
`
`“‘necessarily present,’ not merely probably or possibly present, in the prior art.”);
`
`see also PAR Pharm. v. TWi Pharms., Inc., 773 F.3d 1186, 1195-1196 (Fed. Cir.
`
`2014) (similar); Southwire Co. v. Cerro Wire LLC, 870 F.3d 1306, 1310-1311
`
`(Fed. Cir. 2017) (similar).
`
`Petitioner falls far short of demonstrating that, even assuming arguendo that
`
`Yegoshin “selectively or simultaneously” uses cellular and WLAN networks, such
`
`a teaching would inherently—i.e., necessarily—disclose multiplexed signals.
`
`Instead, Petitioner provides only the conclusory assertion that “[a] POSITA would
`
`have found it obvious that, to receive calls on both cellular and WLAN
`
`simultaneously or to switch between two networks, the phone multiplexes the
`
`signals communicated on two network paths,” citing paragraph 127 of the Jensen
`
`Declaration. Pet., 34. But an inherent disclosure may not be established through
`
`such conclusory statements. IBM Corp. v. Intellectual Ventures II LLC, IPR2014-
`
`- 4
`
`

`

`
`
`00682, Paper 11, 18 (Oct. 30, 2014) (expert statement that a POSITA “would have
`
`understood” reference to teach limitation “does not support either an explicit or
`
`inherent disclosure of [the] limitation” and “is conclusory and not persuasive.”);
`
`see also Broadcom Ltd. v. Tessera Advanced Techs., Inc., IPR2017-00736, Paper
`
`8, 18 (Jul. 27, 2017) (declaration’s conclusory testimony does not show inherency).
`
`In accord, in the Institution Decision, the Board correctly found that “[t]he
`
`cited portion [of Yegoshin] does not teach expressly multiplexed signals, as
`
`Petitioner implicitly acknowledges by arguing that one of ordinary skill in the art
`
`would have understood that Yegoshin includes multiplexed signals.” Id., 34. As
`
`for Petitioner’s argument that a POSITA “would have understood that Yegoshin
`
`includes multiplexed signals,” the Board rightly found that “Petitioner’s arguments
`
`based on the asserted understanding of the ordinarily skilled artisan do not explain
`
`sufficiently that Yegoshin’s handling of IP and cellular calls would be recognized
`
`as “multiplexed signals.” Id.
`
`To the extent Petitioner’s arguments with regard to Yegoshin could be
`
`interpreted as single reference obviousness, Petitioner falls short of meeting that
`
`standard too. Arendi S.A.R.L. v. Apple, Inc., 832 F.3d 1355, 1362-63 (Fed. Cir.
`
`2016) (“In cases in which ‘common sense’ is used to supply a missing limitation,
`
`as distinct from a motivation to combine, moreover, our search for a reasoned basis
`
`for resort to common sense must be searching.”); DSS Tech. Mgm’t v. Apple Inc.,
`
`- 5
`
`

`

`
`
`885 F.3d 1367, 1374-75 (Fed. Cir. 2018) (rejecting “ordinary creativity” as a basis
`
`for overcoming a missing limitation); K/S HIMPP v. Hear-Wear Techs., LLC, 751
`
`F.3d 1362, 1366 (Fed. Cir. 2014).
`
`Petitioner has not shown why a POSITA would be motivated or able to
`
`modify Yegoshin to multiplex cellular and WLAN signals that are separately
`
`received for different calls. Instead, the Institution Decision correctly found that
`
`Petitioner failed to show that Yegoshin “uses multiplexing techniques during
`
`cellular calls when another call is received through WLAN,” or to “provide a
`
`reason why one of ordinary skill in the art would have been motivated to modify
`
`Yegoshin’s system to use multiplexing.” ID, 34-35. Yegoshin neither discloses
`
`nor renders obvious multiplexing.
`
`2.
`
`As The Board Correctly Found, Yegoshin Does Not Teach
`“Simultaneously” Using Cellular And WLAN Signals Or
`Otherwise Disclose “Multiplexing.”
`
`As noted, Petitioner relies on the allegation that Yegoshin “selectively or
`
`simultaneously” uses cellular and WLAN networks to argue that it teaches
`
`“multiplexed signals.” Pet., 34. As explained below, the Board correctly found
`
`that Yegoshin does not disclose “simultaneously” using cellular and WLAN
`
`networks, and Petitioner has not shown how Yegoshin may otherwise disclose
`
`multiplexed signals, including by “selectively” using either cellular or WLAN, but
`
`not both, for a given call.
`
`- 6
`
`

`

`
`
`First, neither Petitioner nor Dr. Jensen demonstrate that Yegoshin
`
`“simultaneously” uses cellular and WLAN networks. Petitioner alleges that
`
`Yegoshin is “capable of taking some calls” “when the phone communicates with
`
`both cellular and WLAN.” Pet., 32. But Yegoshin confirms that the user can only
`
`use either the cellular or WLAN networks for a given call, but not both. Ex-1004,
`
`5:55-65. As the Board correctly found, Yegoshin’s system merely provides a
`
`“busy signal” or a “call-waiting call” if there is a second call:
`
`The portion of Yegoshin quoted above regarding “a busy signal” or
`“call-waiting call” undermines Petitioner’s argument that Yegoshin’s
`“phone multiplexes the signals communicated on two network paths.”
`See id. Petitioner appears to focus on Yegoshin’s statement that “cell
`phone 9 is capable of taking some calls via cellular path while receiving
`other calls via IP path,” without considering Yegoshin’s further
`elaboration on how IP and cellular calls are handled. See id. at 33–34.
`
`Even if Petitioner considered Yegoshin’s further details,
`Petitioner does not address directly how a busy signal or call-waiting
`leads to one of ordinary skill in the art understanding that would teach
`multiplexed signals. See Pet. 33–34. Petitioner’s cited testimonial
`evidence does not explain sufficiently with support how Yegoshin’s
`phone uses multiplexed signals. Ex. 1003 ¶¶ 126, 127.
`
`ID, 34.
`
`The Board is correct. Yegoshin states that the user selects one of cellular or
`
`WLAN for use in a call, clarifying that they are not used simultaneously. Ex-1004,
`
`- 7
`
`

`

`5:33-35; 5:40-41, 55-65. As Dr. Cooklev explains:
`
`
`
`[A] POSITA would understand that Yegoshin teaches the precise
`opposite of simultaneously using cellular and WLAN. Instead,
`Yegoshin teaches that the second incoming call is not connected and
`gets “a busy signal” or is “redirected” rather than simultaneously
`received.
`
`In Yegoshin, a “client software suite 19” enables a user to “select
`a protocol for voice communication,” i.e., whether to use cellular or
`WLAN. Ex-1004 [Yegoshin] 5:33-35; see also id., 5:40-42 (“A series
`of selection buttons such as 15 and 17 allow a user to switch modes
`from cellular to IP communication …”). When a call arrives at the
`cellular provider, the provider determines whether the user is within
`range of the local service area, in which case, the call would be routed
`to the user through the cellular network. Id., 8:15-20. If the user is
`outside of the range of the local service area (i.e., is roaming), the call
`would be routed to the user through the WLAN network. Id., 8:20-27.
`Yegoshin explains that a user can specify certain calls to be routed
`through the cellular network even if the user is outside of the local
`network area. Id., 8:47-56. In either case, a given call is serviced in its
`entirety either via the cellular or WLAN networks, but never both. This
`is shown schematically in Yegoshin’s annotated Figure 2 below:
`
`- 8
`
`

`

`Local Celbetar Network
`
`At time t,, a first phone call
`is serviced by WLAN only
`
`is serviced by cellular only
`
`At time t,, a second phonecall
`
`Ex-2019, 9954-55.
`
`Petitioner additionally argues that “[a] POSITA would have found it obvious
`
`that ... to switch between two networks, the phone multiplexes the signals
`
`communicated on two networkpaths.” Pet., 34. But, as discussed above,
`
`Petitioner provides no analysis or explanation for how merely switching between
`
`two networks for two different calls could disclose or render obvious multiplexing.
`
`Asthe Board found, Petitioner simply has not shown that a POSITA would
`
`considerthis to be (or render obvious) multiplexing. ID, 34.
`
`

`

`
`
`3.
`
`Petitioner Does Not Demonstrate That Yegoshin
`Multiplexes Under Any Construction, Including Petitioner’s
`District Court Construction.
`
`Petitioner did not attempt to demonstrate that Yegoshin discloses or renders
`
`obvious multiplexing under any claim construction, including its own district court
`
`construction and, in fact, did not even explain what “multiplexing” means.
`
`Petitioner did not proffer any construction of “multiplexing,” instead
`
`insisting that no constructions were necessary. Pet., 2. In the parallel district court
`
`litigation, however, Petitioner contends that “multiplexing” means “to interleave or
`
`simultaneously transmit two or more messages on a single communications
`
`channel.” Ex-2003, 37. Though the same claim construction standard applies in
`
`both proceedings, Petitioner does not argue that this construction should apply in
`
`this proceeding and does not otherwise address its district court construction, nor
`
`does Petitioner argue or demonstrate that its district court construction is met. If
`
`Petitioner wished to proffer this (or some other) construction in support of its
`
`position, the Office’s rules required Petitioner to identify “how the challenged
`
`claim is to be construed” and “how the construed claim is unpatentable” in the
`
`Petition. 37 C.F.R. §§ 42.104 (b)(3)-(4).
`
`Dr. Jensen provides no further clarity. Instead, he merely repeats the
`
`conclusory allegations of the Petition in substantially identical language. Ex-1003,
`
`¶ 127. Such conclusory testimony is entitled to little or no weight. See, e.g., 37
`
`- 10
`
`

`

`
`
`C.F.R. § 42.65(a). Indeed, it is precisely the sort of ipse dixit testimony rejected in
`
`Xerox Corp. v. Bytemark, Inc., IPR2022-00624, Paper 9, 15 (Aug. 24, 2022)
`
`(precedential).
`
`Significantly, Petitioner’s IPR position that “switching between two
`
`networks” for two different calls discloses “multiplexed signals” is at odds with its
`
`own district court claim construction position of multiplexing, which requires
`
`“interleav[ing] or simultaneously transmit[ting] two or more messages.” Ex-2003,
`
`37. As Dr. Cooklev explains:
`
`A POSITA would not understand Yegoshin’s alleged teaching of
`“selectively” “switch[ing] between” cellular and WLAN (Pet., 33-34)
`to be “interleaving” or “simultaneously transmitting” messages per
`Petitioner’s district court construction.
` Ex-2003 [Defendants’-
`Opening-Claim-Construction-Brief] 37. Yegoshin teaches that its
`device can only receive one call at a time. Ex-1004 [Yegoshin] 5:59-
`62 (“if engaged with an IP call, an incoming cell call would get a busy
`signal and so on, or it would be redirected to the IP call point, where it
`would then be presented as a call-waiting call”). Only after the device
`ends the first call could the device switch to the other network and
`receive the second call. Thus, it is important to note that this is not a
`case where Yegoshin within a single call utilizes both cellular and
`WLAN networks by switching between them; rather, Yegoshin uses
`either cellular or WLAN for any given call.
`
`A POSITA would understand that this disclosure does not result
`in multiplexing under Petitioner’s district court construction. Given
`
`- 11
`
`

`

`
`
`that Yegoshin does not use cellular and WLAN simultaneously, and
`terminates one call before servicing another, the cellular and WLAN
`are not “simultaneously” transferred. They simply service different
`calls. Furthermore, cellular and WLAN packets are not interleaved
`with each other. See, e.g., Ex-2023 [IEEE-Dictionary] 577 (“To
`arrange parts of one sequence of things or events so that they alternate
`with parts of one or more other sequences of things or events and so
`that each sequence retains its identity.”). Rather, all cellular packets
`are sent during the cellular phone call and, once that call is terminated,
`and when a separate WLAN call is initiated, all WLAN packets are sent
`for the WLAN call. There is simply no interleaving.
`
`Ex-2019, ¶¶58-59. Moreover, even Dr. Jensen agrees that for “interleaving” to
`
`occur the packets must be “mixed together in time. So interleaving would be one
`
`or a few packets from one, and then one or a few packets from another if they
`
`were, sort of, simultaneously in communication and transferring data.” Ex-
`
`2020, 65:19-66:4.
`
`Thus, Petitioner fails to prove that Yegoshin discloses or renders obvious
`
`“multiplexed” “signals.” Ex-2019, ¶¶61-64.
`
`C.
`
`Petitioner Fails To Show That Yegoshin-Bernard Renders
`Obvious The Claimed “Multiplexed” Signals.
`
`Petitioner additionally argues that “[t]he known multiplexing features are
`
`further confirmed by Bernard” and “a POSITA would have found it obvious to
`
`implement or modify Yegoshin-Johnston-Billström’s phone based on Bernard’s
`
`- 12
`
`

`

`
`
`features.” Pet., 35. In the ID, the Board rejected this theory because “the portions
`
`of Bernard cited by Petitioner, like Yegoshin, do not teach expressly that data
`
`packets from its cellular phone, phone modem, or other sources are multiplexed.”
`
`ID, 35. The Board is correct. Petitioner does not demonstrate that Bernard
`
`discloses “multiplexing,” and, even if it did, Petitioner has failed to prove a
`
`POSITA would be motivated to modify Yegoshin in view of Bernard to
`
`“multiplex” its cellular and WLAN signals.
`
`1.
`
`Petitioner Does Not Prove That Bernard Discloses The
`Claimed “Multiplexing.”
`
`Petitioner relies on Bernard’s “communication server 750” from its second
`
`embodiment for the alleged “multiplexing features” which Petitioner seeks to
`
`implement in Yegoshin. Pet., 35-39. The Board, however, found “that Petitioner
`
`does not provide sufficient argument and evidence that Bernard’s cradle or
`
`communication server 750 multiplexes signals.” ID, 37. The Board’s conclusion
`
`was correct.
`
`To support the contention that communication server 750 in Bernard’s
`
`second embodiment multiplexes, Petitioner argues that Bernard’s communication
`
`server 750 “implements ‘communication packet interface 752’” which “includes or
`
`operates as a multiplexer.” Pet., 36, 38-39. Petitioner, however, cites Bernard’s
`
`“decoder/multiplexer 112,” a different element that is part of Bernard’s first
`
`- 13
`
`

`

`[:
`
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`™%BE
`ro
`
`PACKET
`RADIO
`
`124
`
`CELLULAR TELEPHONE
`ANTENNA
`
`MICROPHONE
`AMPLIFIER
`
`128
`
`432
`
`MICROPHONE
`AND
`P
`
`embodiment, not its second. Pet., 37 (citing Ex-1007, 3:59-4:15, 17:10-25, Figure
`
`4). Bernard’s Fig. 4 includes the decoder/multiplexer 112, boxed in red:
`
`IPRIMARY
`|
`SERIAL
`PORT
`
`POWER
`CONNECTOR
`
`BUFFER
`
`~710
`
`PASSRIAL
`
`,
`
`sm
`
`CELLULAR
`TELEPHONE
`
`EARPHONE
`AMPLIFIER
`
`Lo. LL EE ee ee ee ee ee ee ee ee ee ee er nr er ener
`
`F/G. F
`
`Ex-1007, Fig. 4 (annotated).
`
`The Board has already addressed Petitioner’s assumption that Bernard’s
`
`“decoder/multiplexer 112” is a part of Bernard’s second embodiment,findingit to
`
`be incorrect and contrary to Bernard:
`
`Petitioner’s
`
`reference to decoder/multiplexer
`
`112
`
`from
`
`Bernard’s
`
`first embodiment
`
`indicates
`
`that Bernard’s
`
`second
`
`embodimentdoes not multiplex its data packets. Pet. 38.
`
`eK
`
`-14
`
`

`

`
`
`Bernard does not describe or show in its second embodiment a
`decoder/multiplexer between its microcontroller and phone modem,
`GPS engine, packet radio, and cellular telephone. Ex. 1007, 17:12–15.
`Bernard, instead, uses a UART in place of a decoder/multiplexer
`between the microcontroller and phone modem, GPS engine, packet
`radio, and cellular telephone in communication server 750. Compare
`id. at 3:59–6:19, Fig. 4, with id. at 23:60–25:24, Fig. 13. Petitioner does
`not explain