Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9056 Filed 02/16/23 Page 1 of 19
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
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`§
`§
`§
`§
`§
`§
`§
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`2:22-MD-03034-TGB
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`HON. TERRENCE G. BERG
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`DECLARATION OF WILLIAM ALBERTH IN SUPPORT OF NEO WIRELESS’S
`OPENING CLAIM CONSTRUCTION BRIEF
`
`VWGoA EX1041
`VWGoA V. Neo Wireless
`IPR2022-01539
`
`

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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9057 Filed 02/16/23 Page 2 of 19
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`I. 
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`II. 
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`III. 
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`IV. 
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`V. 
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`VI. 
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`VII. 
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`VIII. 
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`IX. 
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`X. 
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`XI. 
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`TABLE OF CONTENTS
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`INTRODUCTION .................................................................................................... 1 
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`QUALIFICATIONS ................................................................................................. 2 
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`LEGAL STANDARD ............................................................................................... 3 
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`A. 
`B. 
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`Person of Ordinary Skill in the Art ....................................................................... 4 
`Patent Claims and Claim Construction ................................................................. 4 
`LEVEL OF ORDINARY SKILL IN THE ART ...................................................... 5 
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`THE ’366 PATENT .................................................................................................. 6 
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`THE ’941 PATENT .................................................................................................. 9 
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`THE ’450 PATENT ................................................................................................ 11 
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`THE ’908 PATENT ................................................................................................ 13 
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`THE ’302 PATENT ................................................................................................ 14 
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`THE ’512 PATENT ................................................................................................ 15 
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`CONCLUSION ....................................................................................................... 17 
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`i
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9058 Filed 02/16/23 Page 3 of 19
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`I.
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`INTRODUCTION
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`1.
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`My name is William P. Alberth, Jr. I am an expert in mobile telecommunications and
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`wireless technology. As further detailed below and exhibited in my filed Curriculum Vitae, Dkt.
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`118, I have over 25 years of experience in the design, development, implementation, and
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`manufacturing of mobile telephones, smartphones, and other electronic equipment in addition to
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`being an inventor on over 100 patents, including those related to telecommunications and
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`wireless communications.
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`2.
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` I have been retained by Neo Wireless LLC (“Neo”) to provide opinions concerning the
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`claim construction and definiteness of certain limitations in the asserted claims of U.S. Patent
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`Nos. 8,467,366 (“the ’366 patent”), 10,075,941 (“the ’941 patent”), 10,447,450 (“the’450
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`patent”), 10,833,908 (“the’908 patent”), 10,771,302 (“the ’302 Patent”), and 10,965,512
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`(“the ’512 Patent”) (collectively “the asserted patents”). For my work on this case, I am being
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`compensated for my time at my typical consulting rate of $200 per hour. I am also being
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`reimbursed for expenses that I incur during the course of this work. My compensation does not
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`depend on the substance of my opinions or the outcome of any issues in this case.
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`My opinions regarding the proper construction of the terms at issue are set forth below. I
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`understand that the Defendants in this case may submit arguments and expert declarations in
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`support of their proposed constructions at a later date, and I reserve the right to supplement my
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`opinions in response to those arguments.
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`3.
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`I have personal knowledge of the facts and opinions set forth in this declaration, and, if
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`called upon to do so, I would testify competently thereto.
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`4.
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`In forming my opinions, I understand that the claims should be interpreted as they would
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`be understood by a person of ordinary skill in the art of the patents at the times their respective
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`1
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9059 Filed 02/16/23 Page 4 of 19
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`applications were filed. I understand that the claims are to be construed with reference to the
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`patent’s specification, the claims, the prosecution history, in light of the plain meaning of the
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`terms used in the claims, and with reference to other sources of information, such as dictionaries,
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`textbooks, and literature or other patents in the same or related fields.
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`5.
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`My analysis of the materials produced in this matter is ongoing and I will continue to
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`review any new material as it is provided. This declaration represents only those opinions I have
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`formed to date. I reserve the right to amend or supplement my opinions based on additional
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`documents or evidence I am presented, including without limitation any arguments or expert
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`declarations advanced by Defendants in this case.
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`II. QUALIFICATIONS
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`6.
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`I believe that I am qualified to be an expert witness in this matter as I possess the
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`requisite knowledge, skill, experience, training and education relating to the subject matter
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`covered by the asserted patents.
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`7.
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`In summary, I have over 25 years of experience in the design, development,
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`implementation, and manufacturing of mobile telephones, smartphones, and other electronic
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`equipment. The majority of my career was spent at Motorola where my final role was serving as
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`the Chief Technology Officer for Motorola Mobile Devices. I held that position from 2007 until
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`August 2012, and in that role, I led the development of differentiating technology that was
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`integrated into Motorola’s commercial mobile telephone products.
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`8.
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`During the early stages of my career with Motorola (between 1987 and 2006, covering
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`the Priority Dates of the asserted patents), I was employed as an engineer, working on
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`developing cutting-edge chipsets to enable cellular devices, and in the development of many
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`products that changed the way people communicated, including the development of the Motorola
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`2
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9060 Filed 02/16/23 Page 5 of 19
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`MicroTAC, StarTAC and RAZR mobile telephones. I worked on or directed work on evaluating
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`transmitter technologies and architectures to mitigate the effects of PAPR (Peak to Average
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`Power Ratio) on the current drain of the devices. Some of the techniques evaluated include for
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`example: pre-distortion; envelope following; EER (Envelope Elimination and Restoration); and
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`Adaptive biasing.
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`9.
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`My educational background includes a B.S. in Electrical Engineering from the University
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`of Illinois Urbana-Champaign (1985), and a M.S. in Electrical Engineering from Illinois Institute
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`of Technology (1992).
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`10.
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`I am inventor or co-inventor on over 100 patents issued or pending, including patents
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`related to my work on transmitter architectures involved for wireless communications.
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`11.
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` In forming my opinions here, I am relying on my education and experience, including
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`my over 25 years of experience in a variety of technologies and industries related to various
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`wireless communications systems.
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`12.
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` Additional information concerning my background, qualifications, publications,
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`conferences, honors, and awards are described in my Curriculum Vitae, a copy of which has
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`been submitted to the Court. See Dkt. 118.
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`III. LEGAL STANDARD
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`13.
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`I am not a lawyer, and I do not intend to offer any opinions as to the interpretation of the
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`law. However, I have a general understanding of claim construction based on my experience
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`with patents, my work as an expert in other cases, and my conversations with counsel. I have
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`been informed by counsel of various legal standards related to claim construction and
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`indefiniteness. I set forth my understanding below.
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`3
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9061 Filed 02/16/23 Page 6 of 19
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`A. Person of Ordinary Skill in the Art
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`14.
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`I understand that claim construction and indefiniteness are both analyzed from the
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`perspective of a person having ordinary skill in the art. I understand that the person of ordinary
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`skill in the art is a hypothetical person of ordinary creativity, not an automaton. I understand that
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`a person of ordinary skill, while not someone who undertakes to innovate, is capable of drawing
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`inferences and taking creative steps. I understand that, in determining the level of skill in the art,
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`courts consider the type of problems encountered in the art, prior art solutions to those problems,
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`rapidity with which innovations are made, sophistication of the technology, and the educational
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`level of active workers in the field. I understand that not all of these factors will be relevant in a
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`given case.
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`B. Patent Claims and Claim Construction
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`15.
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`I understand that a patent may include two types of claims, independent claims and
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`dependent claims, that an independent claim stands alone and includes only the limitations it
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`recites, that a dependent claim can depend from an independent claim or another dependent
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`claim, and that a dependent claim includes all the limitations that it recites in addition to all of
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`the limitations recited in the claim from which it depends.
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`16.
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`I understand that the words of a claim are generally given their ordinary and customary
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`meaning. I understand the ordinary and customary meaning of a claim term is the meaning that
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`the term would have to a person of ordinary skill in the art in question at the time of the
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`invention. I understand that the person of ordinary skill in the art is deemed to read the claim
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`term not only in the context of the particular claim in which the disputed term appears, but in the
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`context of the entire patent, including the specification.
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`4
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9062 Filed 02/16/23 Page 7 of 19
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`17.
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`I understand there are only two exceptions to the general rule that words of a claim are
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`given their plain and ordinary meaning: first, when a patentee expressly sets out a definition and
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`acts as his own lexicographer; and second, when the patentee clearly and unambiguously
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`disavows the full scope of a claim term either in the specification or during prosecution. I
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`understand that these standards are exacting. I understand that, to act as its own lexicographer, a
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`patentee must set forth a definition of the disputed claim term other than its plain and ordinary
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`meaning and clearly express an intent to redefine the term. I understand that disavowal requires a
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`clear and unmistakable disclaimer. I understand that absent disavowal or lexicography, it is
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`improper to import limitations into the claims from the patent specification, or to limit the claims
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`to a particular embodiment. I understand that courts may consider extrinsic evidence outside of
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`the patent and its file history, such as dictionaries, scientific treatises, and testimony from experts
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`and inventors when determining the legal operative meaning of claim language. However, I also
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`understand that extrinsic evidence is less significant than the intrinsic record in determining the
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`legally operative meaning of claim language.
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`IV. LEVEL OF ORDINARY SKILL IN THE ART
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`18.
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`It is my opinion that a person of ordinary skill in the art (POSITA) at the time of the
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`alleged inventions of the asserted patents would have had an electrical engineering degree and at
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`least 2 years of experience related to the design or implementation of wireless
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`telecommunications systems or transceivers. Advanced education and degrees could compensate
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`for less work experience, and equivalent knowledge gained through experience could
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`compensate for less education.
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`19. My opinion regarding the POSITA is based on my own experience in the field of
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`electrical engineering, computer systems, and computer science, the technologies discussed in
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`5
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9063 Filed 02/16/23 Page 8 of 19
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`the asserted patents, my knowledge of the relevant backgrounds of co-workers and other
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`individuals in the field, and my familiarity with the fields and related technologies.
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`20.
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`Based on my experience and qualifications, I am a person of ordinary skill in the art and
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`was a person of ordinary skill in the art at the alleged priority dates of the asserted patents.
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`V. THE ’366 PATENT
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`21.
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`The ’366 patent was filed August 8, 2011, and claims priority to a provisional application
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`filed on March 9, 2004. The ’366 patent describes methods and apparatuses in a multi-carrier
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`cellular wireless network with random access. Generally, the asserted claims of the ’366 patent
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`relate to mobile stations and methods employed by mobile stations in establishing random access
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`to a serving base station in a cell.
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`22.
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`I understand that Defendants contend that the phrase “exhibits a low peak-to-average
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`power ratio in the time domain” renders the claims indefinite. I disagree with Defendants’
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`conclusion, as detailed below.
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`23.
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`The peak-to-average power ratio (also known as the PAPR or sometimes PAR) is
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`typically expressed in decibels (dB), which is a relative unit of measure of powers on a
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`logarithmic scale. For example, a signal may have an average power of 1 Watt. If the signal has a
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`PAPR of 10dB this would mean that the peak power of the signal is 10 Watts (which is 10dB
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`higher (or 10 times larger)) than the average power.
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`24.
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`In my opinion, the ’366 patent provides sufficient context for a POSITA to understand
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`the meaning of “low peak-to-average power ratio” with reasonable certainty. In light of the
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`remainder of the specification and how the term is used in the claims, a POSITA would
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`understand that a “low” PAPR is (1) based on the transmitter and signaling system being
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`considered and (2) that the PAPR of the target signal is low relative to the baseline PAPR of the
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9064 Filed 02/16/23 Page 9 of 19
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`signal of the system such that it does not hinder the efficiency of the power amplifier (e.g., such
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`that the target signal does not cause additional constraints on the power amplifier due to
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`excessive PAPR, which would reduce efficiency and increase the current drain). See, e.g., ’366
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`Patent 4:34–38 (“relatively low peak-to-average power ratio . . . improves the power efficiency
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`of the mobile station transmission power amplifier.”). As a related consideration, a POSITA
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`would understand that a “low” PAPR is one that, in the particular system involved, is sufficiently
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`below the baseline PAPR such that the transmitter does not need be specially designed to
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`accommodate that signal. The POSITA at the time of the invention would understand the
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`baseline PAPR of the system and understand that “low” means less than the system baseline
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`PAPR so that the transmitter design is unaffected. Accordingly, a POSITA would be able to use
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`these objective boundaries to determine what a “low peak-to-average power ratio” means.
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`25.
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`For example, here, the claims cover a mobile station (and methods for a mobile station)
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`“[i]n a multi-cell orthogonal frequency division multiple access (OFDMA) wireless
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`communication system.” Accordingly, a POSITA would take into context that particular type of
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`system and the baseline PAPR for signaling using that type of system when determining what it
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`means to be a “low” PAPR. At the time of the ’366 patent, circa 2004, a POSITA would
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`understand that cellular OFDMA systems could have a typical PAPR of 12dBs. See, e.g., Baxley
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`et al., Power Savings Analysis of Peak-to-Average Power Ratio Reduction, IEEE TRANSACTIONS
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`OF CONSUMER ELECS. (Aug. 2004) (showing a baseline PAR around 12dB at the 10^-4
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`probability level for an OFDM signal); You et al., A Simple Construction of OFDM-CDMA
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`Signals With Low Peak-To-Average Power Ratio, IEEE TRANSACTIONS ON BROADCASTING (Dec.
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`2003) (describing the creation of a signals with “Low Peak-To-Average Power Ratio” in contrast
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`to transmissions having a PAPR greater than 11).
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9065 Filed 02/16/23 Page 10 of 19
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`26.
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`Indeed, it was a well-known problem for conventional OFDMA systems to have such a
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`high PAPR. Accordingly, a signal that was approximately 3dBs or more below the system PAPR
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`would not require additional constraints on the transmitter and would have low PAPR.
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`Accordingly, a POSITA would understand that a relative difference in PAPR of 3dBs for a
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`reduced PAPR to be “low” in the context of the patented claims. See, e.g., Baxley et al. (Fig. 2
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`showing a PAR reduction from 12dBs to approximately 9dBs); You et al. (achieving a reduction
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`of the PAR of 2-3dBs). This is consistent with Neo’s alternative proposed construction that a
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`“low” PAPR for a conventional OFDMA system would be a PAPR of 9dBs or less.
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`27.
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`Of course, the claims of the ’366 patent are not limited to just conventional OFDMA
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`systems, and different specific implementations of OFDM/OFDMA networks could have
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`different baseline PAPRs. But the teachings above still provide a way for a POSITA to have
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`reasonable certainty about the level of reduction required for a PAPR to be considered “low”
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`relative to the pertinent baseline.
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`28.
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`For at least these reasons, it is my opinion that the plain and ordinary meaning of
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`“exhibits a low peak-to-average power ratio in the time domain” is reasonably certain and not
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`indefinite.
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`29.
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`I understand that Defendants contend that the phrase “the ranging signal is formed from a
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`ranging sequence selected from a set of ranging sequences [associated with the cell] for
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`identifying the mobile station” (appearing in Claims 1 and 17 of the ’366 patent) requires that the
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`“ranging sequence” is “selected by said apparatus” (that is, the mobile station). I disagree with
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`Defendants’ proposed construction at least because it excludes embodiments that a POSITA
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`would understand to be covered by the plain and ordinary meaning.
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`8
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`30.
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`For example, a POSITA would understand the phrase to also cover the scenario in which
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`the serving base station selects the ranging sequence from a set of ranging sequences. Although
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`the specification of the ’366 patent does not explicitly describe how a serving base station would
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`make this selection, it would have been well understood to a POSITA at the time of the patent
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`that a ranging sequence, such as a random access preamble, could be selected by the serving base
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`station and sent to a mobile station prior to the mobile station’s attempt to send a random access
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`to a base station. A similar technique was used according to the 3GPP standards 25.214 V5.7.0
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`(2003-12) in section 6.1 where a preamble scrambling code is provided from the base station via
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`RRC (Radio Resource Control).1
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`31.
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`Accordingly, a POSITA would be aware of random access methods at the time of the
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`’366 patent and understand that the ranging sequence, e.g., a random access preamble, may be
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`“selected from a set of ranging sequences” in a variety of ways, including at least by either a
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`mobile station or a base station.
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`VI. THE ’941 PATENT
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`32.
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`The ’941 patent also relates to wireless communications systems and more specifically to
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`the adaptability of a system to maximize capacity and efficiency without sacrificing integrity of
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`the signaling. See ’941 patent Abstract. Claim 8 of the ’941 patent requires “receiving a control
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`message from the serving base station . . . [containing] mobile-station specific transmission
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`parameters [that] indicate an antenna transmission scheme . . . comprising a transmission
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`diversity scheme or a multiple-input multiple-output (MIMO) scheme . . . .”
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`1 This may be found online at https://www.3gpp.org/ftp/Specs/archive/25_series/25.214/25214-
`570.zip.
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`9
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`33.
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`As described in the ’941 patent, multiple antennas can be used to create a multiple-input
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`multiple-output (“MIMO”) system that increases transmission throughput by transmitting
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`different data from each antenna. See, e.g., ’941 patent 6:63–65. Alternatively, multiple antennas
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`can be used to improve transmission robustness by transmitting the same data from each
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`antenna—a scheme sometimes called transmission diversity. See, e.g., id. 6:60–62.
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`34.
`
`I understand that all parties agree that the plain and ordinary meaning of the term above
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`would not cover an embodiment where the mobile station is only capable of operating within a
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`MIMO scheme (or only a transmit diversity scheme), for example, if the serving base station can
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`only be operated using MIMO (or only using a transmit diversity scheme).
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`35.
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`However, I understand Defendants have proposed a construction that intends to limit the
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`claimed system to only those two options, excluding other transmission schemes that are neither
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`MIMO nor transmission diversity. I disagree. Nothing in the specification or claim language
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`suggests to me that the inventors intended to limit their inventions to systems where those were
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`the only two antenna schemes available. And in my opinion, a POSITA would understand that a
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`system capable of supporting a transmission diversity scheme or a MIMO scheme could also
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`support other transmission schemes. As just one example, another known transmission scheme at
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`the time was transmitting from multiple base stations, as was used in CDMA systems.
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`36.
`
`I understand the parties also dispute the related claim term requiring “the mobile station-
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`specific transmission parameters indicate . . . a corresponding subchannel configuration, . . . the
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`corresponding subchannel configuration characterized by distributed subcarriers or localized
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`subcarriers in the frequency domain[.]” As with the previous dispute, I understand the parties
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`agree that this claim language requires a system be capable of supporting both localized or
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`distributed subcarrier configurations. But it appears that Defendants’ interpretation of this claim,
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`10
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`by omitting the words “characterized by” and adding “alternatively indicates,” would require the
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`subchannel configuration to explicitly include a “localized” or “distributed” indicator in the
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`control message. This is not how a POSITA would interpret this claim term. In light of the
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`record, a POSITA would instead recognize that the indicated subchannel configuration from the
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`mobile station-specific parameters would only be “characterized” by either localized or
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`distributed carriers. For example, whether the subchannel configuration is characterized by
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`localized or distributed carriers could be determined based on the allocation of resources in the
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`subchannel (which is indicated in the subchannel configuration itself).
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`VII. THE ’450 PATENT
`
`37.
`
`I understand that Defendants are attempting to construe the term “time-frequency
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`resource unit” to mean “a combination of time and frequency units designed according to the
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`application requirements of the application that is being grouped.” I disagree that a POSITA
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`would understand Defendants’ construction as consistent with the plain and ordinary meaning of
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`the term.
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`38.
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`As explained in the ’450 patent specification, the ’450 patent’s inventors transformed the
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`two independent dimensions of time and frequency into one time-frequency dimension measured
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`by a basic resource unit or time-frequency resource unit having a fixed number of symbols in a
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`fixed number of subcarriers that fits the resource requirements of a given application and thus
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`achieves an advantageous reduction in the amount of data required to allocate resources. ʼ450
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`patent 7:28–30 (“Using basic resource units as the granularity of a location offset to the packet
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`stream reduces the number of bits required to represent its location with[in] the zone 605a.”).
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`39.
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`Given the identity (m) of the relevant packet stream (id. 6:3–21), the packet stream can be
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`described by (1) the value of its one-dimensional time-frequency starting coordinate (VZIm),
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9069 Filed 02/16/23 Page 14 of 19
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`which defines where the packet stream’s associated time-frequency resource segment (Vm) starts
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`in the zone both in time and frequency (id. 7:10–27); and (2) the number of time-frequency basic
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`resource units in the time-frequency resource segment (based on MCSIm), which defines where
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`Vm ends, again both in time and frequency (id. 7:7–39). Using time-frequency resource units,
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`“each . . . containing a set of frequency subcarriers in a group of OFDM symbols,” to define a
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`new dimension of “time-frequency,” one can specify a resource in two parameters: a starting
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`time-frequency coordinate and the number of time-frequency resource units in a time-frequency
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`resource segment, as claimed.
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`40.
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`The “time-frequency resource unit” recited in the claims was significant and innovative
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`as it allowed for reduction of the overhead required to transmit and recover data in a multi-carrier
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`packet communication system because, using this basic resource unit, the resource space can be
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`defined with two parameters instead of four. This “time frequency resource unit” is thus not an
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`arbitrary combination of time and frequency units. Instead, it is a parameter designed according
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`to the application requirements of the application that is being grouped. By intentionally
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`foregoing the flexibility of irregular resource allocation at the lowest granularity level, which
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`requires multidimensional allocation, the inventors instead created regularly shaped time-
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`frequency resource units allocated at the application granularity level. These resource units used
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`a single dimension to provide the control overhead reduction. Without enforcing similar resource
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`requirements between users of the same application the regularity of the time-frequency resource
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`unit would not have been possible.
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`41.
`
`I note that while my discussion above (supra ¶¶ 37–40) references an embodiment
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`wherein the inventors grouped resources by common application type, as shown in Figure 6 of
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`the patent, the invention is not limited to that form of grouping. The inventors expressly
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`Case 2:22-md-03034-TGB ECF No. 127-3, PageID.9070 Filed 02/16/23 Page 15 of 19
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`indicated that resource zones “designated for particular applications” are merely present “[i]n
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`some embodiments,” ʼ450 patent 2:47, and that packet streams may also be classified, for
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`example, “based on application type, quality of service (QoS) requirement, or other properties.”
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`Id. 8:55–57. Thus, my discussion above, while illustrative of the concept that allowed the
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`inventors to reduce control overhead, should not be read as an indication that a time-frequency
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`resource unit is limited to a particular type of grouping. Indeed, a POSITA would understand that
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`other forms of grouping would still allow for the reduction of control overhead envisioned by the
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`inventors.
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`VIII. THE ’908 PATENT
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`42. With respect to the ’908 patent, I understand that, within the phrase “wherein the portion
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`of the frequency band used for transmission of the random access signal does not include control
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`channels,” the Defendants want to replace “control channels” with “channels carrying control
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`information.” I do not see any basis in the specification or claims of the patent for making this
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`substitution, which significantly alters the plain meaning of the claim language. A POSITA at the
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`time of the invention of the ’908 patent would have known unmistakably what a “control
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`channel” is, and would also have known that it is not just any channel that happens to carry
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`control information. It was a well-known technique in the art at the time of the patent to create
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`distinct channels within a wireless communication system based on the primary purpose of the
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`channel—a control channel for control information, a shared channel for data transmission, or a
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`random access channel for random access. But no POSITA would consider a shared channel, for
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`example, a “control channel” merely because it incidentally carried some control information in
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`addition to its primary purpose of data transmission. Thus, a POSITA would not misread the
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`plain language of the patent claim to broaden “control channel” to “channel carrying control
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`information.”
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`43.
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`I further understand that Defendants seek to construe the term “random access signal” as
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`“direct sequence spread spectrum signal.” I disagree with Defendants’ proposal, since a “random
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`access signal” was an extremely well-known term in the art at the time of this patent, and would
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`not have had inherent limitations in the mind of a POSITA with respect to the type of signal used
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`for the random access signal. In other words, “random access signal” has a plain and ordinary
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`meaning to a POSITA that has nothing to do with the type of system—spread spectrum, DSSS,
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`or otherwise—that should be used to generate it. Nor have I seen anything in the patent
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`specification or prosecution history that suggests the inventors intended to limit their random
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`access signal to exclusively DSSS signals.
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`IX. THE ’302 PATENT
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`44. With respect to this patent, I understand that the Defendants, as they did with the ’908
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`patent, seek to construe the term “probing signal” to mean “direct sequence spread spectrum
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`signal.” As with “random access signal” above, the term “probing signal” was an extremely well-
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`known term in the art at the time of this patent, and a POSITA would have a clear understanding
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`of its meaning in the context of these claims and the specification without any limitation on the
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`type of system—spread spectrum, DSSS, or otherwise—used to generate the signal.
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`45.
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`The specification of the ’302 Patent does use a DSSS signal as an example of a probing
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`signal, which a POSITA would understand to be a useful option since it would be sent over a
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`broad spectrum of frequency resources and used to estimate the channel conditions across a large
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`portion of the channel used for data. See, e.g., ’302 Patent 9:39–52 (describing using the probing
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`signal to “update the mobile station’s channel characteristics”).
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`46.
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`But in my opinion, it does not follow that a POSITA would take the inventors to mean
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`that the probing signal must be a DSSS signal in the patented claims. For example, a POSITA
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`would understand that the probing signals disclosed in the patent could be implemented in an
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`OFDM system at the time of the invention. For example, probing signals can be carried across
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`multiple OFDM subcarriers, at times different than when those subcarriers are used to carry data,
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`to accomplish the same functionality.
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`X. THE ’512 PATENT
`
`47.
`
`Regarding the ’512 patent, I understand that Neo has proposed that the term “wherein the
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`first plurality of subcarriers and the second plurality of subcarriers are received in at least one of
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`the time slots” be clarified by specifying that the first and second plurality of subcarriers are
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`received “in at least one of the same time slots.” I understand that Defendants oppose this
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`construction. In my opinion, Neo’s proposed construction represents the proper interpretation of
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`this claim language in view of the specification and claims of the ’512 patent. As I will explain
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`below, a POSITA would understand this limitation to require that there must be at least one time
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`slot that contains both “the first plurality of subcarriers and the second plurality of subcarriers.”
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`48.
`
`The plain meaning of the claims requires that there be “at least one time slot” where “the
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`first plurality of subcarriers and the second plurality of subcarriers” are both transmitted. In other
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`words, both subcarriers should be transmitted in the same time slot at least once.
`
`49.
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`Further, a POSITA would understand that a time slot, as use