Trials@uspto.gov
`571-272-7822
`
`Paper 7
`Date: May 2, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VOLKSWAGEN GROUP OF AMERICA, INC.,
`Petitioner,
`v.
`NEO WIRELESS, LLC,
`Patent Owner.
`
`IPR2022-01539
`Patent 10,965,512 B2
`
`
`
`
`
`
`
`
`
`Before HYUN J. JUNG, CHARLES J. BOUDREAU, and
`MATTHEW S. MEYERS, Administrative Patent Judges.
`JUNG, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`Paper 7
`Date: May 2, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`VOLKSWAGEN GROUP OF AMERICA, INC.,
`Petitioner,
`v.
`NEO WIRELESS, LLC,
`Patent Owner.
`
`IPR2022-01539
`Patent 10,965,512 B2
`
`
`
`
`
`
`
`
`
`Before HYUN J. JUNG, CHARLES J. BOUDREAU, and
`MATTHEW S. MEYERS, Administrative Patent Judges.
`JUNG, Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`35 U.S.C. § 314
`
`
`
`
`
`
`
`
`
`
`
`IPR2022-01539
`Patent 10,965,512 B2
`
`INTRODUCTION
`I.
`A. Background and Summary
`Volkswagen Group of America, Inc. (“Petitioner”) filed a Petition
`(Paper 1, “Pet.”) requesting institution of an inter partes review of claims 1–
`30 of U.S. Patent No. 10,965,512 B2 (Ex. 1001, “the ’512 patent”). Neo
`Wireless LLC (“Patent Owner”) filed a Preliminary Response. Paper 6
`(“Prelim. Resp.”).
`Under 35 U.S.C. § 314, an inter partes review may not be instituted
`“unless . . . there is a reasonable likelihood that the petitioner would prevail
`with respect to at least 1 of the claims challenged in the petition.” Upon
`consideration of the Petition and for the reasons explained below, we
`determine that Petitioner has shown a reasonable likelihood of prevailing
`with respect to at least one of the challenged claims.
`Thus, we institute an inter partes review of claims 1–30 of the ’512
`patent on all presented challenges. 37 C.F.R. § 42.108(a) (“When instituting
`. . . review, the Board will authorize the review to proceed on all of the
`challenged claims and on all grounds of unpatentability asserted for each
`claim.”); see also SAS Inst. Inc. v. Iancu, 138 S. Ct. 1348, 1359–60 (2018).
`B. Real Parties in Interest
`The parties only identify themselves as real parties in interest. Pet. 2;
`Paper 4, 1. Petitioner additionally identifies itself as a subsidiary of
`Volkswagen AG. Pet. 2.
`C. Related Matters
`Petitioner lists several civil actions in which Neo Wireless, LLC is the
`plaintiff and the ’512 patent is involved. Pet. 2–3. Patent Owner lists ten
`current proceedings involving the challenged patent and nine proceedings
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`Patent 10,965,512 B2
`that, according to Patent Owner, have been terminated. Paper 4, 1–3. The
`current proceedings include:
`In Re: Neo Wireless, LLC Patent Litigation, No. 2:22-md-03034 (E.D.
`Mich.);
`Neo Wireless LLC v. American Honda Motor Co., Inc., No. 2:22-cv-
`11403 (E.D. Mich.);
`Neo Wireless, LLC v. Ford Motor Co., No. 2:22-cv-11402 (E.D.
`Mich.);
`Neo Wireless, LLC v. Tesla Inc., No. 2:22-cv-11408 (E.D. Mich.);
`Neo Wireless, LLC v. General Motors Co., No. 2:22-cv-11407 (E.D.
`Mich.);
`Neo Wireless LLC v. Toyota Motor North America, Inc., No. 2:22-cv-
`11406 (E.D. Mich.);
`Neo Wireless, LLC v. Volkswagen Group of America, Inc., No. 2:22-
`cv-11404 (E.D. Mich.);
`Neo Wireless, LLC v. Nissan North America Inc., No. 2:22-cv-11405
`(E.D. Mich.);
`Neo Wireless, LLC v. Mercedes-Benz, No. 2:22-cv-11769 (E.D.
`Mich.); and
`Neo Wireless, LLC v. FCA, No. 2:22-cv-11770 (E.D. Mich.). Id. at 1–
`
`2.
`
`Petitioner also identifies IPR2022-01537 and IPR2022-01538. Pet. 4.
`Patent Owner additionally identifies IPR2022-01567. Paper 4, 3. We
`further note that Mercedes-Benz USA, LLC and Ford Motor Company both
`have filed petitions substantially identical to the instant Petition, along with
`motions for joinder as petitioners in this proceeding. IPR2023-00079,
`Papers 1, 3; IPR2023-00764, Papers 1, 3.
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`Patent 10,965,512 B2
`D. The ’512 Patent (Ex. 1001)
`The ’512 patent issued on March 30, 2021, from an application filed
`on September 4, 2020, which is a continuation of several previously filed
`applications, the earliest of which was filed on January 20, 2005. Ex. 1001,
`codes (22), (45), (63), 1:10–29. The ’512 patent also claims priority to a
`provisional application filed on January 29, 2004. Id. at code (60), 1:29–31.
`The ’512 patent provides “methods to define the transmission formats
`of the cell-specific and common pilot subcarriers that enable a receiver to
`perform different system functions.” Ex. 1001, 3:37–40. According to the
`’512 patent, “signal reception can be improved by manipulating phase values
`of the pilot subcarriers and by using power control.” Id. at 3:43–45.
`The ’512 patent describes that wireless networks include base stations
`to cover designated areas or cells. Ex. 1001, 1:44–46. For “multi-carrier
`wireless communications,” such as “orthogonal frequency division multiple
`access (OFDMA),” “network information provided by a portion of total
`subcarriers such as pilot subcarriers” facilitates “important system functions
`such as frequency synchronization and channel estimation.” Id. at 1:36–40,
`3:55–57. “In a multi-cell environment, for example, the base station
`transmitter of each cell transmits its own pilot subcarriers, in addition to data
`carriers, to be used by the receivers within the cell.” Id. at 1:54–57. The
`’512 patent states that “degradation due to multipath propagation” and
`interference between signals from different base stations adversely affect
`“pilot-dependent functions.” Id. at 1:57–61.
`In the ’512 patent, a pilot generation and insertion functional block
`“generates pilot subcarriers and inserts them into predetermined frequency
`locations.” Ex. 1001, 3:6–8. The “pilot subcarriers are divided into two
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`Patent 10,965,512 B2
`different groups according to their functionalities, and hence their distinct
`requirements.” Id. at 3:10–12.
`“The first group is called ‘cell-specific pilot subcarriers,’ and will be
`used by the receiver 104 to extract information unique to each individual
`cell,” such as for “use[] in channel estimation where it is necessary for a
`particular receiver to be able to differentiate the pilot subcarriers that are
`intended for its use from those of other cells.” Ex. 1001, 3:17–23. “For
`these pilot subcarriers, counter-interference methods are necessary.” Id. at
`3:23–24.
`“The second group is termed ‘common pilot sub-carriers,’ and are
`designed to possess a set of characteristics common to all base stations of the
`system.” Ex. 1001, 3:25–27. “[E]very receiver 104 within the system is
`able to exploit these common pilot subcarriers to perform necessary
`functions without interference problem,” such as for a “frequency
`synchronization process, where it is not necessary to discriminate pilot
`subcarriers of different cells, but it is desirable for the receiver to combine
`coherently the energy of common pilot subcarriers with the same carrier
`index from different cells, so as to achieve relatively accurate frequency
`estimation.” Id. at 3:27–36.
`Figure 9 of the ’512 patent is below reproduced.
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`Patent 10,965,512 B2
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`Figure 9 shows examples of multiple antenna applications of the ’512
`patent’s communication system. Ex. 1001, 2:28–29, 7:44–45. “In case (a)
`where there is only one transmission branch that is connected to an array of
`antennas 902 through a transformer 904 (e.g., a beam-forming matrix), the
`implementation is exactly the same as in the case of single antenna.” Id. at
`7:45–59. “In case (b) of multiple transmission branches connected to
`different antennas 906 (e.g., in a transmission diversity scheme or a
`multiple-input multiple-output scheme), the cell-specific pilot subcarriers for
`transmission branches are usually defined by a multiple-antenna scheme
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`Patent 10,965,512 B2
`whereas the common pilot subcarriers for each transmission branch are
`generated to meet the requirements . . . for frequency estimation or . . . for
`timing estimation.” Id. at 7:49–57.
`E. Illustrative Claim
`The ’512 patent includes claims 1–30, all of which Petitioner
`challenges. Of the challenged claims, claims 1, 8, 15, and 23 are
`independent. Reproduced below is claim 1.
`1.
`An orthogonal frequency division multiple access
`(OFDMA)-compatible base station that uses subcarriers in a
`frequency domain and time slots in a time domain, the OFDMA-
`compatible base station comprising:
`a plurality of antennas; and
`a transmitter operably coupled to the plurality of antennas;
`the transmitter configured to:
`insert first pilots of a first type onto a first plurality of
`subcarriers, wherein the first pilots are cell-specific pilots; and
`insert data and second pilots of a second type onto a
`second plurality of subcarriers;
`wherein at least some subcarriers of the first plurality of
`subcarriers or the second plurality of subcarriers are beam-
`formed; and
`the plurality of antennas configured to transmit the first
`plurality of subcarriers and the second plurality of subcarriers in
`at least one of the time slots;
`wherein the second type is different than the first type and
`wherein the first pilots do not interfere with the second pilots.
`Ex. 1001, 9:46–67.
`Independent claim 8 recites “[a] method performed by an orthogonal
`frequency division multiple access (OFDMA)-compatible base station.”
`Ex. 1001, 10:25–26. Independent claims 15 and 23 recite “[a]n orthogonal
`frequency division multiple access (OFDMA)-compatible mobile station”
`and “[a] method performed by an orthogonal frequency division multiple
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`Patent 10,965,512 B2
`access (OFDMA)-compatible mobile station,” respectively. Id. at 10:64–65,
`12:4–6.
`F. Asserted Prior Art and Proffered Testimonial Evidence
`Petitioner identifies the following references as prior art in the
`asserted grounds of unpatentability:
`Exhibit
`Name
`Reference
`1005
`Tong
`US 7,120,395 B2, issued Oct. 10, 2006
`1007
`Li
`US 2002/0163879 A1, published Nov. 7, 2002
`1017
`Smee
`US 2004/0131007 A1, published July 8, 2004
`1006
`Ketchum US 2004/0179627 A1, published Sept. 16, 2004
`1004
`Kim
`WO 2004/049618 A1, published June 10, 2004
`Pet. 5. Petitioner states that “all references relied upon herein are prior art as
`of January 29, 2004,” “[t]he ‘512 patent’s earliest possible priority date.” Id.
`According to Petitioner, Kim, Tong, Ketchum, and Smee are prior art under,
`at least, pre-AIA 35 U.S.C. § 102(e); and Li is prior art under, at least, pre-
`AIA 35 U.S.C. § 102(b). 1 Id.
`Petitioner also provides a Declaration of Dr. Paul Min. Ex. 1003.
`Patent Owner provides a Declaration of William P. Alberth Jr. Ex. 2001.
`
`
`1 The relevant sections of the Leahy-Smith America Invents Act (“AIA”),
`Pub. L. No. 112–29, 125 Stat. 284 (Sept. 16, 2011), took effect on March 16,
`2013. Because the ’512 patent claims priority to an application filed before
`that date, our citations to 35 U.S.C. §§ 102 and 103 in this Decision are to
`their pre-AIA versions. See also Pet. 5 (stating but not conceding that “[t]he
`’512 patent’s earliest possible priority date is January 29, 2004”).
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`G. Asserted Grounds
`Petitioner asserts that claims 1–30 are unpatentable on the following
`grounds:
`
`Claims Challenged
`
`1–30
`1, 3, 4, 6–8, 10, 11, 13–15, 17, 18, 20, 22,
`23, 25, 26, 28, 30
`5, 12, 21, 29
`Pet. 6.
`
`35
`U.S.C. § References/Basis
`103(a)
`Kim, Tong
`103(a)
`Ketchum, Li
`103(a)
`Ketchum, Li, Smee
`
`II. ANALYSIS
`
`A. Legal Standards
`“In an [inter partes review], the petitioner has the burden from the
`onset to show with particularity why the patent [claim] it challenges is
`unpatentable.” Harmonic Inc. v. Avid Tech., Inc., 815 F.3d 1356, 1363 (Fed.
`Cir. 2016). This burden of persuasion never shifts to Patent Owner.
`Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378
`(Fed. Cir. 2015). The Board may authorize an inter partes review if we
`determine that the information presented in the Petition shows that there is a
`reasonable likelihood that Petitioner will prevail with respect to at least one
`of the claims challenged in the petition. 35 U.S.C. § 314(a).
`Petitioner contends that the challenged claims of the ’512 patent are
`unpatentable under § 103. Pet. 3. A claim is unpatentable under § 103 if the
`differences between the claimed subject matter and the prior art are such that
`the subject matter, as a whole, would have been obvious at the time the
`invention was made to a person having ordinary skill in the art to which said
`subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
`(2007). The question of obviousness is resolved on the basis of underlying
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`factual determinations, including: (1) the scope and content of the prior art;
`(2) any differences between the claimed subject matter and the prior art;
`(3) the level of skill in the art; and (4) where in evidence, so-called
`secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17–18
`(1966). When evaluating a combination of teachings, we must also
`“determine whether there was an apparent reason to combine the known
`elements in the fashion claimed by the patent at issue.” KSR, 550 U.S. at
`418 (citing In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Whether a
`combination of elements produces a predictable result weighs in the ultimate
`determination of obviousness. Id. at 416–417.
`B. Level of Ordinary Skill in the Art
`Petitioner contends that one of ordinary skill in the art “would have a
`bachelor’s degree in electrical engineering, computer engineering, computer
`science, or an equivalent field, or an advanced degree in those fields, as well
`as least 3–5 years of academic or industry experience in mobile wireless
`communications, or comparable industry experience.” Pet. 11–12 (citing
`Ex. 1003 ¶ 65). Patent Owner does not dispute Petitioner’s proposal and
`does not propose a level of ordinary skill in the art. See generally Prelim.
`Resp.
`Based on the preliminary record, we adopt Petitioner’s asserted level
`of ordinary skill only to determine whether there is a reasonable likelihood
`that Petitioner would prevail with respect to at least one of the claims
`challenged in the Petition.
`C. Claim Construction
`In an inter partes review, the claims are construed
`using the same claim construction standard that would be used to
`construe the claim in a civil action under 35 U.S.C. [§] 282(b),
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`including construing the claim in accordance with the ordinary
`and customary meaning of such claim as understood by one of
`ordinary skill in the art and the prosecution history pertaining to
`the patent.
`37 C.F.R. § 42.100(b) (2021); see Phillips v. AWH Corp., 415 F.3d 1303,
`1312–13 (Fed. Cir. 2005) (en banc).
`Petitioner states that “[s]olely for the purposes of this Petition,
`Petitioner submits that all claim terms should receive their plain and
`ordinary meaning in the context of the ’512 patent specification.” Pet. 12
`(citing Ex. 1003 ¶ 66).
`Patent Owner provides “the claim construction positions regarding the
`patent-at-issue taken in briefing by the parties in the district court
`proceedings co-pending with this proceeding.” Prelim. Resp. 4. According
`to Patent Owner, after multiple rounds of discussion in a jointly agreed to
`process, all parties in related litigation “arrived at a list of agreed-upon claim
`constructions and a list of claim construction disputes.” Id. at 5 (citing
`Ex. 2009 (“Joint Rule 26 Report and Proposed Scheduling Order” from In
`Re: Neo Wireless, LLC Patent Litigation)).
`Patent Owner argues that, even though Petitioner participated, it took
`“no position on how to construe the claims in the court proceedings.”
`Prelim. Resp. 5–6 (citing Ex. 2004 (“Agreed Claim Terms” from In Re: Neo
`Wireless, LLC Patent Litigation); Ex. 2005 (“Disputed Claim Terms” from
`In Re: Neo Wireless, LLC Patent Litigation)). After further discussion,
`according to Patent Owner, “Petitioner and Patent Owner agreed that
`Petitioner will be bound by the Court’s construction of any claim of ’512,
`and the PTAB’s potential adoption of any such construction.” Id. at 6 (citing
`Ex. 2006 (“Notice of Stipulation Regarding Claim Construction” from In
`Re: Neo Wireless, LLC Patent Litigation)).
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`Patent Owner notes that the parties dispute the meaning of “wherein
`the first plurality of subcarriers and the second plurality of subcarriers are
`received in at least one of the time slots” and “second pilots of a second
`type.” Prelim. Resp. 7 (citing Ex. 2005, 7). All independent claims recite
`“second pilots of a second type,” and only independent claims 15 and 23
`recite “wherein the first plurality of subcarriers and the second plurality of
`subcarriers are received in at least one of the time slots.” Ex. 1001, 9:57,
`10:33, 11:7–10, 12:11–14.
`For “second pilots of a second type,” Patent Owner argues that,
`“[g]iven that Petitioner has chosen not to express any claim construction
`analysis in this IPR,” Petitioner has “opted to implicitly apply the same
`understanding of the claims as the Patent Owner” and “waived any contrary
`claim construction position in this litigation.” Prelim. Resp. 7–8. Patent
`Owner, thus, contends that “the Board does not need to construe this
`limitation in this IPR.” Id. at 8.
`For “wherein the first plurality of subcarriers and the second plurality
`of subcarriers are received in at least one of the time slots,” Patent Owner
`contends that its arguments are consistent with its proposed construction in
`related litigation which is “wherein the first plurality of subcarriers and the
`second plurality of subcarriers are received in at least one of the same time
`slots.” Prelim. Resp. 7 (citing Ex. 2005, 7) (emphasis added).
`On the present record, we agree with Patent Owner that “second pilots
`of a second type” does not need express interpretation. Prelim. Resp. 8. We
`also see no reason to interpret expressly the wherein clause quoted above at
`this stage because Patent Owner has not yet presented its support for
`adopting its proposed interpretation which, as Patent Owner notes, is in
`dispute. Prelim. Resp. 8; Ex. 2005, 7. Patent Owner should consider
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`explaining how the language of the claims, the Specification, prosecution
`history, and possibly other evidence support its proposed interpretation. We
`note that Patent Owner’s interpretation requires adding “same” to the
`wherein clause, but the record at this stage does not make clear why claims
`15 and 23 should be narrowed in that manner, when the plain language of
`the claims is broader.
`Patent Owner also provides claim construction arguments for a
`similarly worded recitation in claim 1. See Prelim. Resp. 35–37.
`Specifically, for “plurality of antennas configured to transmit the first
`plurality of subcarriers and the second plurality of subcarriers in at least one
`of the time slots,” Patent Owner argues that “the plain meaning of the claims
`requires that there must be ‘at least one time slot’ where ‘the first plurality of
`subcarriers and the second plurality of subcarriers’ are both transmitted.”
`Id. at 35 (citing Ex. 2001 ¶ 79).
`According to Patent Owner, the phrase should not be interpreted as
`“merely requir[ing] that the signals generally be transmitted in one or more
`time slots,” “because pilots, as with any other signal, are necessarily
`transmitted in some time slot, and transmitting them in one or more time
`slots does not add any meaningful limitation to the Claims.” Prelim.
`Resp. 35.
`Patent Owner asserts that the Specification supports its view of “in at
`least one of the time slots.” Prelim. Resp. 35–36 (citing Ex. 2001 ¶ 82);
`Ex. 2001 ¶ 82 (citing Ex. 1001, 5:34–38, Fig. 1). Patent Owner also states
`that “Petitioner appears to apply the same understanding as Patent Owner to
`the claims.” Id. (citing Pet. 35–36). According to Patent Owner, “[g]iven
`that Petitioner has chosen not to present any claim construction analysis and
`has, instead, opted to implicitly apply the same understanding of the claims
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`as the Patent Owner, it has waived any contrary claim construction position
`in this litigation.” Id. at 36.
`On the present record, we agree with Patent Owner that Petitioner
`appears to be interpreting “plurality of antennas configured to transmit the
`first plurality of subcarriers and the second plurality of subcarriers in at least
`one of the time slots” to require that the first and second pluralities of
`subcarriers be transmitted in at least one time slot in the first challenge based
`on Kim and Tong. See Pet. 35–36; Prelim. Resp. 35–36. For the reasons
`described below, we determine that Petitioner shows a reasonable likelihood
`that it would prevail with respect to at least claim 1 in the first challenge.
`We, thus, see no reason to interpret expressly this wherein clause to
`determine whether or not to institute trial. Realtime Data, LLC v. Iancu, 912
`F.3d 1368, 1375 (Fed. Cir. 2019) (“The Board is required to construe ‘only
`those terms . . . that are in controversy, and only to the extent necessary to
`resolve the controversy.’” (quoting Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999))).
`The meaning of the phrase “in at least one of the time slots,” however,
`is in dispute. As noted above, the record now before us, even with the
`additional arguments presented for claim 1, does not indicate why the phrase
`should be interpreted to mean “in at least one of the same time slots” when
`the plain language of the claims is broader. See Prelim. Resp. 35–36 (citing
`Ex. 2001 ¶ 82); Ex. 2001 ¶ 82 (citing Ex. 1001, 5:34–38, Fig. 1).
`Further, we determine that no other claim term requires express
`interpretation at this preliminary stage. Realtime Data, 912 F.3d at 1375.
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`D. Asserted Obviousness Based on Kim and Tong
`1. Kim (Ex. 1004)
`Kim “relates to a method and apparatus for embodying and
`synchronizing downlink signals in a mobile communication system.”
`Ex. 1004, 1:14–16. In particular, Kim “relates to a method for generating a
`structure of a preamble and a pilot appropriate for downlinks of an OFDMA
`(orthogonal frequency division multiplexing access)-based cellular system.”
`Id. at 1:17–20. Figure 1 of Kim is below reproduced.
`
`
`Figure 1 is a “structural diagram of a frame of a downlink signal in an
`OFDMA-based mobile communication system.” Ex. 1004, 8:14–15. Kim
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`states that “[i]n general, a terminal is required to read signals of a base
`station and synchronize its time and frequency with the terminal for initial
`synchronization.” Id. at 1:23–25. “[T]he frame of the downlink signal
`comprises Np slots 10 and 20, and one slot 10 and 20 includes Ns symbols.”
`Id. at 11:18–19. “One slot 10 from among the Np slots 10 and 20 is a
`common slot,” and the remaining slots are traffic slots. Id. at 11:19–21.
`“The traffic slot 20 includes a pilot symbol given with respect to the time
`axis and the frequency axis.” Id. at 12:6–8.
`The pilot symbols “have a pattern” that “can be varied” so that slot
`and frequency synchronizations can be estimated, and the cell can be
`“searched by using a specific pilot pattern for each cell and finding a cross
`correlation on the available pattern.” Ex. 1004, 24:6–11. In describing
`Figure 10, which shows “patterns of pilots of downlink signals in an
`OFDMA-based mobile communication system,” Kim states that “Q1 patterns
`from among the Q patterns are used in common by all the cells, and residual
`Q2(=Q-Q1) patterns are defined to be different for the respective cells,” so
`that “the slot synchronization is found with a lesser amount of calculation by
`using the Q1 common patterns, and the cells are searched by using the
`residual Q2 patterns or a preamble.” Id. at 9:16–18, 24:23–25:5.
`The pilot pattern of Figure 10 “is used in common for all the
`antennas.” Ex. 1004, 31:10–11. The “positions of the pilot symbols AP0,
`AP1, AP2, and AP3 according to the respective antennas are modified for
`each predetermined period, and the patterns for changing the positions of the
`pilot symbols AP0, AP1 , AP2, and AP3 according to the respective antennas
`are differently allocated for the respective cells C1 and C2.” Id. at 31:12–16.
`Kim also provides “a brief block diagram for a downlink signal
`configuring device of a base station of an OFDMA-based mobile
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`communication system.” Ex. 1004, 45:21–23, Fig. 21. “[D]ownlink signal
`configuring device 2100 comprises a preamble generator 2110, a pilot
`pattern generator 2120, and a time-frequency-antenna mapper 2130,” and
`preamble generator 2110 “includes a synchronization preamble generator
`2111 and a cell search preamble generator 2112” that “generates a pilot
`pattern per transmit antenna.” Id. at 46:2–7, 46:9–10, Fig. 21. “The time-
`frequency-antenna mapper 2130 . . . maps the data according to the time,
`frequency, and antenna, and outputs mapped results to the OFDM
`transmitter 2101 per transmit antenna 2102.” Id. at 46:11–16, Fig. 21.
`2. Tong (Ex. 1005)
`Tong “relates to wireless communications,” particularly “to
`selectively choosing a select number of antennas within a larger array
`through which to transmit data to a receiver, as well as techniques for
`reinforcing transmitted signals using available antennas.” Ex. 1005, 1:5–9.
`According to Tong, “there is a need to provide signal reinforcement in the
`communication channel to provide a beam-forming effect in an efficient
`manner in a [multiple-input multiple-output (“MIMO”)] system.” Id. at
`1:62–67. Tong’s “transmission architecture is intended to represent a variety
`of multiple access architectures, including, but not limited to . . . orthogonal
`frequency division multiplexing (OFDM).” Id. at 4:49–55; see also id. at
`14:24–25 (stating that “the present invention is also beneficial in OFDM
`environments”).
`Tong’s base station 14 simultaneously modulates, amplifies, and
`transmits analog signals. Ex. 1005, 8:64–66, Fig. 4. Base station 14
`communicates with user elements 16. Id. at 3:23–24, Fig. 1. “[T]he
`transmitted data may be preceded by pilot signals, which are known by the
`intended user element 16” that “may use the pilot signals for channel
`
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`estimation and interference suppression and the header for identification of
`the base station 14.” Id. at 8:66–9:5.
`At user element 16, a signal processing function “generate[s] a
`channel quality measurement” that accounts for “channel conditions and/or
`signal-to-noise ratios for each receive path.” Ex. 1005, 6:27–32. “A
`channel quality indicator (CQI) may be determined based on the recovered
`data.” Id. at 6:59–60.
`Tong states that “unused or spare transmit antennas” can be “used to
`achieve additional gain,” and “a spare transmit antenna is used to
`redundantly transmit data being transmitted over another of the transmit
`antennas” so as “to effectively reinforce transmission.” Ex. 1005, 8:50–59.
`“The technique of transmitting the same data simultaneously from multiple
`transmit antennas in a manner intended to allow the energy of the multiple
`transmitted signals to combine in the channel in a constructive fashion to
`provide additional gain is referred to as beam-forming.” Id. at 8:61–66.
`“In general, beam-forming seeks to increase the signal-to-noise ratio
`at a receiver.” Ex. 1005, 9:3–4. According to Tong, “beam-forming in an
`MIMO environment” “provides not only additional diversity gain, but that
`additional transmit antenna can also be used for layer-based beam-forming,
`thus further improving the system capacity.” Id. at 11:23–28. Figure 7A of
`Tong is below reproduced.
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`
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`Figure 7A shows an exemplary beam-forming arrangement.
`Ex. 1005, 2:53–54. Figure 7A “assume[s] that there are three transmit
`antennas 401–403 and two layers (L=2) for transmitting to the receiver,” and
`“[t]he layers are represented by S1(1) and S2(1), respectively.” Id. at 11:61–64.
`“During MIMO encoding, the data S1(1) is transmitted from transmit antenna
`401, while the data S2(1) is . . . transmitted simultaneously from transmit
`antennas 402 and 403.” Id. at 11:64–12:1. “The data transmitted from
`transmit antennas 402 and 403 combine during transmission to effectively
`reinforce each other and provide a stronger signal at the receiver.” Id. at
`12:1–4.
`3. Independent Claim 1
`Petitioner argues that Kim discloses the preamble of claim 1, if the
`preamble is limiting. Pet. 23–24 (citing Ex. 1003 ¶¶ 52–53, 103–105;
`Ex. 1004, Abstr., 1:23–25, 11:18–21, 12:6–10, 24:2–25:5, 45:21–46:1,
`Fig. 1). For “a plurality of antennas; and a transmitter operably coupled to
`the plurality of antennas,” Petitioner argues that Kim teaches a plurality of
`transmit antennas 2102 coupled to OFDM transmitter 2101. Id. at 24–25
`(citing Ex. 1003 ¶ 106; Ex. 1004, 30:11–21, 46:2–16, Fig. 21).
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`For “the transmitter configured to: insert first pilots of a first type
`onto a first plurality of subcarriers, wherein the first pilots are cell-specific
`pilots,” Petitioner argues that Kim teaches inserting pilot symbols, and that
`the pilots include a Q1 pattern common to all cells and a Q2 pattern different
`for each cell. Pet. 26 (citing Ex. 1004, 6:23–7:11, 24:2–11, 24:20–25:5,
`26:3–7, 48:22–49:4), 27–28 (citing Ex. 1003 ¶¶ 109–110). Petitioner also
`argues that Kim shows three example pilot patterns inserted onto different
`subcarriers. Id. at 26–27 (citing Ex. 1003 ¶¶ 107–109; Ex. 1004, 12:6–10,
`24:2–8, 24:20–25:5, 26:3–7, Fig. 10). Petitioner, thus, argues that one of
`ordinary skill in the art would have understood that Kim’s transmitter is
`configured to insert a first pilot as required by the claim. Id. at 28 (citing
`Ex. 1003 ¶¶ 107–111).
`For the transmitter being configured to “insert data and second pilots
`of a second type onto a second plurality of subcarriers,” Petitioner argues
`that Kim teaches its downlink includes pilot symbols and traffic data.
`Pet. 28–29 (citing Ex. 1003 ¶¶ 112–113; Ex. 1004, 11:18–21, 46:11–16,
`Fig. 1). According to Petitioner, one of ordinary skill in the art would have
`understood that the traffic data is inserted into subcarriers in a traffic slot not
`occupied by pilot symbols. Id. at 29–30 (citing Ex. 1003 ¶¶ 112–113).
`Petitioner also argues with reference to previous contentions that Kim
`teaches its pilot signal having different Q1 and Q2 pilot patterns and the
`different pilot patterns being inserted into different subcarriers in the traffic
`slots of the downlink signal. Pet. 30–32 (citing Ex. 1003 ¶¶ 114–115;
`Ex. 1004, 12:2–10, 25:3–9, 25:18–26:7, Figs. 1, 10). Petitioner, thus, argues
`that Kim’s transmitter teaches the limitation. Id. at 33 (citing Ex. 1003
`¶¶ 112–118).
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`For “wherein at least some subcarriers of the first plurality of
`subcarriers or the second plurality of subcarriers are beam-formed,”
`Petitioner argues that Kim modified by Tong would have rendered obvious
`the limitation. Pet. 33 (citing Ex. 1003 ¶¶ 119–121). According to
`Petitioner, “Kim does not expressly disclose that at least some of these
`subcarriers are beam-formed,” but Tong does. Id.
`Petitioner argues that Tong discloses a wireless communication
`system with a base station that transmits data and pilot signals by beam-
`forming. Pet. 33–34 (citing Ex. 1005, Abstr., 8:50–66, 11:60–12:4,
`Fig. 7A). Petitioner also argues with reference to contentions summarized
`below that one of ordinary skill in the art would have been motivated to
`implement beam-forming in Kim with a reasonable expectation of success.
`Id. at 34 (citing Ex. 1003 ¶ 121).
`For “the plurality of antennas configured to transmit the first plurality
`of subcarriers and the second plurality of subcarriers in at least one of the
`time slots,” Petitioner refers to its arguments for the preamble and contends
`that Kim’s transmit antennas transmit traffic data and pilot symbols in time
`slots. Pet. 34–35 (citing Ex. 1003 ¶¶ 122–124; Ex. 1004, 12:4–12, 46:11–
`16, Fig. 1). Petitioner also contends that the asserted first and second
`pluralities of subcarriers are implemented in a single OFDM symbol and
`transmitted in a single time slot. Id. at 35–36 (citing Ex. 1003 ¶¶ 125–126;
`Ex. 1004, 31:10–16, 58:12–14, Fig. 1).
`For “wherein
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