Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 1 of 23 PageID #: 56495
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`TQ DELTA, LLC,
`
`v.
`
`2WIRE, INC.,
`
`Plaintiff,
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 13-cv-1835-RGA
`
`DEFENDANT 2WIRE, INC.’S OPPOSITION TO PLAINTIFF TQ DELTA, LLC’S
`MOTION FOR SUMMARY JUDGMENT OF NO INVALIDITY OF FAMILY 3 PATENT
`CLAIMS UNDER 35 U.S.C. § 103
`
`Dated: March 8, 2019
`
`Brett Schuman (pro hac vice)
`Rachel M. Walsh (pro hac vice)
`Monte M.F. Cooper (pro hac vice)
`GOODWIN PROCTER LLP
`Three Embarcadero Center, 24th Floor
`San Francisco, California 94111
`Telephone: 415.733.6000
`bschuman@goodwinprocter.com
`rwalsh@goodwinprocter.com
`mcooper@goodwinlaw.com
`
`Jody C. Barillare (#5107)
`MORGAN LEWIS & BOCKIUS LLP
`The Nemours Building
`1007 North Orange Street, Suite 501
`Wilmington, Delaware 19801
`Telephone: 302.574.3000
`jody.barillare@morganlewis.com
`
`Attorneys for Defendant 2Wire, Inc.
`
`TQ Delta Exhibit 2013
`COMMSCOPE, INC. v. TQ DELTA LLC
`IPR2023-00066
`
`Page 1 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 2 of 23 PageID #: 56496
`
`TABLE OF CONTENTS
`
`Page
`
`I.
`
`II.
`
`III.
`
`IV.
`
`V.
`
`INTRODUCTION ...............................................................................................................1
`
`NATURE AND STAGE OF THE PROCEEDING.............................................................2
`
`FACTUAL BACKGROUND ..............................................................................................2
`
`A.
`
`B.
`
`The Family 3 Patents. ..............................................................................................2
`
`The Asserted Claims. ...............................................................................................3
`
`LEGAL STANDARD ..........................................................................................................5
`
`ARGUMENT .......................................................................................................................5
`
`A.
`
`2Wire, Not TQ Delta, Is Entitled to Summary Judgment On The
`Obviousness Combinations Addressed In Both 2Wire’s Own Summary
`Judgment Motion, And TQ Delta’s Motion. ............................................................6
`
`1.
`
`2.
`
`LB-031 in Combination With Mazzoni. ......................................................6
`
`Mazzoni in Combination with G.993.1........................................................9
`
`B.
`
`Genuine Disputes Of Material Fact Preclude Summary Judgment On The
`Obviousness Combinations Addressed Only In TQ Delta’s Motion. ....................10
`
`1.
`
`2.
`
`3.
`
`4.
`
`5.
`
`LB-031 in Combination With the Knowledge of One of Ordinary
`Skill in the Art. ...........................................................................................10
`
`LB-031 in Combination With Voith. .........................................................13
`
`Voith in Combination with G.993.1, or Voith in Combination with
`G.993.1 and Mazzoni. ................................................................................14
`
`Fadavi-Ardekani in Combination with G.993.1. .......................................16
`
`Fadavi-Ardekani in Combination with G.992.2. .......................................19
`
`VI.
`
`CONCLUSION ..................................................................................................................20
`
`i
`
`Page 2 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 3 of 23 PageID #: 56497
`
`TABLE OF AUTHORITIES
`
`
`
`Page(s)
`
`Cases
`
`Anderson v. Liberty Lobby, Inc.,
`477 U.S. 242 (1986) ...................................................................................................................5
`
`C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc.,
`911 F.2d 670 (Fed. Cir. 1990)....................................................................................................5
`
`ClassCo, Inc. v. Apple, Inc.,
`838 F.3d 1214 (Fed. Cir. 2016)..................................................................................................7
`
`InTouch Techs., Inc. v. VGO Commc’ns, Inc.,
`751 F.3d 1327 (Fed. Cir. 2014), 2Wire......................................................................................7
`
`Kaavo Inc. v. Amazon.com Inc.,
`323 F. Supp. 3d 630, 635 (D. Del. 2018) .................................................................................10
`
`KSR Int’l Co. v. Teleflex Inc.,
`550 U.S. 398 (2007) ...........................................................................................................5, 7, 9
`
`MediaTek, Inc. v. Freescale Semiconductor, Inc.,
`No. 11-CV-5341, 2014 WL 2854705 (N.D. Cal. June 20, 2014) ..............................................7
`
`Transclean Corp. v. Bridgewood Servs., Inc.,
`290 F.3d 1364 (Fed. Cir. 2002)..................................................................................................5
`
`Other Authorities
`
`Fed. R. Civ. P. 56(c) ........................................................................................................................5
`
`i
`
`Page 3 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 4 of 23 PageID #: 56498
`
`I.
`
`INTRODUCTION
`
`TQ Delta, LLC’s (“TQ Delta”) motion for summary judgment of no invalidity under 35
`
`U.S.C. § 103 of claim 1 of U.S. Patent No. 8,276,048, claim 5 of U.S. Patent No. 7,836,381,
`
`claim 13 of U.S. Patent No. 7,844,882, and claim 19 of U.S. Patent No. 8,495,473 should be
`
`denied in its entirety.
`
`For the invalidity grounds that form the basis of 2Wire’s pending Motion for Summary
`
`Judgment of Invalidity (D.I. 773, 774), and that also are addressed in TQ Delta’s motion, 2Wire,
`
`not TQ Delta, is entitled to summary judgment. For these two combinations, TQ Delta does not
`
`argue that either combination – (1) U.S. Patent No. 7,296,208 to Mazzoni (hereafter, “Mazzoni”)
`
`with ITU-T standard G.993.1, and (2) Mazzoni with ITU-T contribution LB-031 –VDSL2 –
`
`Constraining Interleaver Complexity (hereafter, “LB-031”) – lacks disclosure of any limitation
`
`of the claims. Nor could it, given that TQ Delta’s own expert, Dr. Cooklev, admitted at his
`
`deposition that Mazzoni discloses the “shared memory” that TQ Delta claims is the centerpiece
`
`of the Family 3 patents. TQ Delta argues only that one of ordinary skill in the art (“POSITA”)
`
`would not be motivated to combine the references, or that together, the references somehow
`
`would be incompatible or inoperable. TQ Delta’s argument, however, ignores that a POSITA is
`
`assumed to apply his or her ordinary skill and creativity in combining the references, so TQ
`
`Delta’s only argument fails.
`
`For those invalidity grounds not addressed in 2Wire’s pending invalidity motion,
`
`summary judgment should be denied because there are genuine disputes of material fact with
`
`respect to whether those combinations render obvious the asserted claims. 2Wire has adduced
`
`evidence from its expert, Dr. Krista Jacobsen, that those combinations of references render
`
`obvious the asserted claims. TQ Delta argues that Dr. Jacobsen made admissions at her
`
`deposition that conflict with her opinions regarding these obviousness combinations. TQ Delta
`
`1
`
`Page 4 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 5 of 23 PageID #: 56499
`
`is wrong, but even if Dr. Jacobsen’s deposition testimony could be construed as presented by TQ
`
`Delta that still would not justify summary judgment for TQ Delta. Any purported inconsistency
`
`between Dr. Jacobsen’s deposition testimony and her opinions goes to the credibility of her
`
`opinions, which cannot be resolved on summary judgment.
`
`II.
`
`NATURE AND STAGE OF THE PROCEEDING
`
`TQ Delta filed this patent infringement lawsuit against 2Wire on November 4, 2013,
`
`asserting infringement of twenty-four patents across six patent families. See D.I. 1, D.I. 6
`
`(Complaint, and First Amended Complaint, respectively). The Court split the case into separate
`
`trials on individual patent families. See D.I. 280 (Third Amended Scheduling Order). Family 3
`
`is currently at issue, and TQ Delta asserts claim 1 of the ’048 patent, claim 5 of the ’381 patent,
`
`claim 13 of the’882 patent, and claim 19 of the ’473 patent.
`
`Fact and expert discovery is now closed. A pretrial conference for 2Wire’s trial on
`
`Family 3 is set for May 10, 2019, and trial is set for May 20, 2019. See D.I. 513 (Final
`
`Scheduling Order).
`
`III.
`
`FACTUAL BACKGROUND
`
`A.
`
`The Family 3 Patents.
`
`The claims of the Family 3 patents are directed to methods, systems, and apparatuses for
`
`allocating shared memory between transmitter and receiver latency paths. See D.I. 767
`
`(Declaration of Anna Targowska), Ex. 3 (’882 patent) at 4:1–3.1 The transmitter and receiver
`
`latency paths can share an interleaver/deinterleaver memory, which can be allocated to the
`
`transmitter’s interleaver and to the receiver’s deinterleaver. Id. at 4:5–9, 9:18–21.
`
`The Family 3 patents provide an example in which a first transceiver sends a message to
`
`1 The Family 3 patents share a common specification and have the same drawings. References to
`the specification herein will be to the ’882 patent.
`
`2
`
`Page 5 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 6 of 23 PageID #: 56500
`
`a second transceiver indicating the number of supported transmitter and receiver latency paths,
`
`the maximum interleaver memory for each of the latency paths, and the maximum total or shared
`
`memory for all of the latency paths. Id. at 8:9–19. The first transceiver then selects settings (i.e.,
`
`Reed-Solomon parameter values N and R, and the interleaver depth, D) for each of the latency
`
`paths. Id. at 8:21–22.
`
`B.
`
`The Asserted Claims.
`
`Claim 1 of the ’048 patent, claim 5 of the ’381 patent, and claim 13 of the ’882 patent
`
`recite as follows.2
`
`’048 Patent, Claim 1
`1. A system that allocates
`shared memory comprising:
`a transceiver that is capable
`of:
`
`transmitting or receiving a
`message during initialization
`specifying a maximum
`number of bytes of memory
`that are available to be
`allocated to an interleaver;
`
`determining an amount of
`memory required by the
`interleaver to interleave a first
`plurality of Reed Solomon
`(RS) coded data bytes within
`the shared memory;
`
`allocating a first number of
`bytes of the shared memory to
`the interleaver to interleave
`
`’381 Patent, Claim 5
`5. A non-transitory computer-
`readable information storage
`media having stored thereon
`instructions, that if executed
`by a processor, cause to be
`performed a method for
`allocating shared memory in a
`transceiver comprising:
`transmitting or receiving, by
`the transceiver, a message
`during initialization specifying
`a maximum number of bytes
`of memory that are available
`to be allocated to a
`deinterleaver;
`determining, at the
`transceiver, an amount of
`memory required by the
`deinterleaver to deinterleave a
`first plurality of Reed
`Solomon (RS) coded data
`bytes within a shared memory;
`allocating, in the transceiver, a
`first number of bytes of the
`shared memory to the
`
`’882 Patent, Claim 13
`13. A system that allocates
`shared memory comprising:
`a transceiver that performs:
`
`transmitting or receiving a
`message during initialization
`specifying a maximum
`number of bytes of memory
`that are available to be
`allocated to a deinterleaver;
`
`determining an amount of
`memory required by the
`deinterleaver to deinterleave a
`first plurality of Reed
`Solomon (RS) coded data
`bytes within a shared memory;
`
`allocating a first number of
`bytes of the shared memory to
`the deinterleaver to
`
`2 The claim language set forth here reflects the edits set forth in the Certificates of Correction for
`claim 5 of the ’381 patent and claim 13 of the ’882 patent. In a separate motion, 2Wire
`challenges the validity of those certificates of correction.
`
`3
`
`Page 6 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 7 of 23 PageID #: 56501
`
`the first plurality of Reed
`Solomon (RS) coded data
`bytes for transmission at a first
`data rate, wherein the
`allocated memory for the
`interleaver does not exceed the
`maximum number of bytes
`specified in the message;
`
`allocating a second number of
`bytes of the shared memory to
`a deinterleaver to deinterleave
`a second plurality of RS coded
`data bytes received at a second
`data rate; and
`
`interleaving the first plurality
`of RS coded data bytes within
`the shared memory allocated
`to the interleaver and
`deinterleaving the second
`plurality of RS coded data
`bytes within the shared
`memory allocated to the
`deinterleaver, wherein the
`shared memory allocated to
`the interleaver is used at the
`same time as the shared
`memory allocated to the
`deinterleaver.
`
`deinterleaver to deinterleave a
`first plurality of Reed
`Solomon (RS) coded data
`bytes for reception at a first
`data rate, wherein the
`allocated memory for the
`deinterleaver does not exceed
`the maximum number of bytes
`specified in the message;
`allocating, in the transceiver, a
`second number of bytes of the
`shared memory to an
`interleaver to interleave a
`second plurality of RS coded
`data bytes transmitted at a
`second data rate; and
`deinterleaving the first
`plurality of RS coded data
`bytes within the shared
`memory allocated to the
`deinterleaver and interleaving
`the second plurality of RS
`coded data bytes within the
`shared memory allocated to
`the interleaver, wherein the
`shared memory allocated to
`the deinterleaver is used at the
`same time as the shared
`memory allocated to the
`interleaver.
`
`deinterleave a first plurality of
`Reed Solomon (RS) coded
`data bytes for reception at a
`first data rate, wherein the
`allocated memory for the
`deinterleaver does not exceed
`the maximum number of bytes
`specified in the message;
`
`allocating a second number of
`bytes of the shared memory to
`an interleaver to interleave a
`second plurality of RS coded
`data bytes transmitted at a
`second data rate; and
`
`deinterleaving the first
`plurality of RS coded data
`bytes within the shared
`memory allocated to the
`deinterleaver and interleaving
`the second plurality of RS
`coded data bytes within the
`shared memory allocated to
`the interleaver, wherein the
`shared memory allocated to
`the deinterleaver is used at the
`same time as the shared
`memory allocated to the
`interleaver.
`
`Claim 19 of the ’473 patent recites:
`
`19. An apparatus comprising:
`
`a multicarrier communications transceiver that is configured to perform an
`interleaving function associated with a first latency path and perform a
`deinterleaving function associated with a second latency path, the multicarrier
`communications transceiver being associated with a memory,
`
`wherein the memory is allocated between the interleaving function and the deinterleaving
`function in accordance with a message received during an initialization of the
`transceiver and wherein at least a portion of the memory may be allocated to the
`interleaving function or the deinterleaving function at any one particular time
`depending on the message.
`
`4
`
`Page 7 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 8 of 23 PageID #: 56502
`
`IV.
`
`LEGAL STANDARD
`
`Summary judgment is appropriate only where the record, read in the light most favorable
`
`to the non-moving party, indicates that “there is no genuine issue as to any material fact and . . .
`
`the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). To avoid
`
`summary judgment, the non-moving party need only present sufficient evidence upon which a
`
`jury might reasonably return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S.
`
`242, 248-49 (1986); C.R. Bard, Inc. v. Advanced Cardiovascular Sys., Inc., 911 F.2d 670, 672-73
`
`(Fed. Cir. 1990). In determining whether a genuine issue of material fact exists, the district court
`
`views the evidence in the light most favorable to the nonmoving party and resolves all doubts in
`
`its favor. Id. “Credibility determinations, the weighing of evidence, and the drawing of
`
`legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling
`
`on a motion for summary judgment or for a directed verdict.” Anderson, 477 U.S. at 255.
`
`An accused infringer must establish by clear and convincing evidence that the claims at
`
`issue are invalid, whether by anticipation or obviousness. See Transclean Corp. v. Bridgewood
`
`Servs., Inc., 290 F.3d 1364, 1370 (Fed. Cir. 2002). A patent is obvious “if the differences
`
`between the subject matter sought to be patented 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, 416 (2007).
`
`V.
`
`ARGUMENT
`
`For those combinations of references where 2Wire moved for summary judgment of
`
`invalidity – LB-031 and Mazzoni for all asserted claims, and G.993.1 and Mazzoni for claim 19
`
`of the ’473 patent – 2Wire has established that it is entitled to summary judgment of invalidity.
`
`5
`
`Page 8 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 9 of 23 PageID #: 56503
`
`See generally D.I. 774. For the remaining combinations of references, genuine disputes of
`
`material fact preclude summary judgment for TQ Delta.
`
`A.
`
`2Wire, Not TQ Delta, Is Entitled to Summary Judgment On The
`Obviousness Combinations Addressed In Both 2Wire’s Own Summary
`Judgment Motion, And TQ Delta’s Motion.
`
`1.
`
`LB-031 in Combination With Mazzoni.
`
`As established in 2Wire’s Family 3 Invalidity Motion, LB-031 in combination with
`
`Mazzoni discloses each limitation of the Asserted Family 3 Claims. See generally D.I. 774 at
`
`11-20; D.I. 775 (Opening Declaration of Dr. Krista Jacobsen), ¶¶ 356-520. 2Wire also has
`
`established that a POSITA would have been motivated to combine the teachings of Mazzoni with
`
`the teachings of LB-031. See generally D.I. 774 at 19-20; D.I. 775 (Jacobsen Opening Decl.), ¶¶
`
`521-531. To avoid unnecessary repetition, 2Wire refers back to its motion for summary
`
`judgment.
`
`TQ Delta does not argue that the combination of LB-031 and Mazzoni fails to disclose
`
`any limitation of the Asserted Family 3 Claims. TQ Delta cannot possibly argue that Mazzoni
`
`does not disclose “shared memory” because its own expert, Dr. Cooklev, admits that Mazzoni
`
`discloses that limitation. Walsh Decl.,3 Ex. B (Cooklev Dep. Tr.); 147:1-8. TQ Delta also
`
`cannot argue that LB-031 does not disclose the messaging scheme recited in the claims, given its
`
`similarity with the messaging scheme specified by the VDSL2 standard that forms the basis for
`
`TQ Delta’s infringement position in this case. Instead, TQ Delta takes issue only with the
`
`evidence regarding whether the references can be combined. In its motion, 2Wire demonstrates
`
`that they can be.
`
`3 “Walsh Decl.” as used herein refers to the Omnibus Declaration of Rachel M. Walsh in Support
`of 2Wire, Inc.’s Oppositions to TQ Delta, LLC’s Family 3 Motions, filed concurrently herewith.
`
`6
`
`Page 9 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 10 of 23 PageID #: 56504
`
`TQ Delta first argues that “modifying LB-031 by adding shared memory would disrupt
`
`the operation of LB-031 rendering it inoperable.” D.I. 778 at 11. TQ Delta contends that LB-
`
`031 and Mazzoni cannot be combined because the resulting transceiver would have a memory
`
`deficiency, which TQ Delta refers to colloquially as the “Mazzoni problem.” See D.I. 778 at 12.
`
`This argument assumes that a POSITA would make no modification to either Mazzoni or LB-
`
`031, which is contrary to the law. A proper obviousness analysis “take[s] account of the
`
`inferences and creative steps that a person of ordinary skill in the art would employ.” KSR, 550
`
`U.S. at 418. Such an argument, which requires assuming that “a person of ordinary skill in the
`
`art can only perform combinations of a puzzle element A with a perfectly fitting puzzle element
`
`B,” is contrary to the law. ClassCo, Inc. v. Apple, Inc., 838 F.3d 1214, 1219 (Fed. Cir. 2016)
`
`(upholding Board’s finding of motivation to combine).4
`
`Taking into account such inferences and creative steps, Dr. Jacobsen opined that a
`
`POSITA would be motivated to combine the messaging scheme of LB-031 with Mazzoni. D.I.
`
`775 (Jacobsen Opening Decl.), ¶¶ 521-531. A POSITA would have recognized the shortcomings
`
`Mazzoni and LB-031, for example, that Mazzoni described a table of pre-defined services and
`
`settings, and that the teachings of LB-031, in particular, the exchange of interleaver/deinterleaver
`
`capabilities during initialization, would enable Mazzoni’s transceivers to partition its shared
`
`memory between the interleaver and deinterleaver without requiring all possible services and
`
`settings to be pre-defined. See id. at ¶ 526. As Dr. Jacobsen opined, this would result in a more
`
`4 The cases that TQ Delta cites regarding motivation to combine are distinguishable. See D.I.
`778 at 3-4. Unlike the expert in InTouch Techs., Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327,
`1351-52 (Fed. Cir. 2014), 2Wire and Dr. Jacobsen have explained how a POSITA would be
`motivated to combine Mazzoni and LB-031, including how such a combination could be
`implemented. Unlike the combinations at issue in MediaTek, Inc. v. Freescale Semiconductor,
`Inc., No. 11-CV-5341, 2014 WL 2854705, at *2 (N.D. Cal. June 20, 2014), crediting the skill of
`the POSITA, 2Wire has shown that the combination of the references would be operable.
`
`7
`
`Page 10 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 11 of 23 PageID #: 56505
`
`flexible transceiver. Id. 2Wire has presented unrebutted evidence that a POSITA would
`
`understand how to make these modifications, such as adjusting the amount of memory in a
`
`transceiver (thereby circumventing TQ Delta’s purported “Mazzoni problem”). Jacobsen Opp.
`
`Decl.,5 ¶ 700; see also id. at ¶ 129.
`
`Finally, TQ Delta misstates Dr. Jacobsen’s testimony in an attempt to show that she
`
`somehow admitted that Mazzoni in combination with LB-031 would be inoperable or
`
`incompatible. See D.I. 778 at 12-14. At her deposition, Dr. Jacobsen specifically and clearly
`
`disagreed with TQ Delta’s counsel’s characterization of LB-031. She testified as follows (Walsh
`
`Decl., Ex. C (Jacobsen Dep. Tr.), 509:22-510:5 (emphasis added):
`
`Q. … So – so to get to that point, it sounds like you agree that, if
`you literally used only messaging that said, “This is my maximum
`downstream, and this is my maximum upstream,” and then the
`devices could use up to that amount, it sounds like you don’t
`challenge Dr. Cooklev’s argument that that wouldn’t work with
`Mazzoni; correct?
`A. I don’t think that would work, but I also don’t think that that’s
`what LB-031 suggests doing.
`Elsewhere, Dr. Jacobsen agrees with the uncontroversial statement that Mazzoni allocates
`
`memory between interleaving and deinterleaving, depending on the service used, and that it
`
`would have sufficient memory to support the services programmed into its tables. See id. at
`
`(Jacobsen Dep. Tr.) 495:22-496:24. TQ Delta also states, without providing citation or
`
`explanation, that the benefit of Mazzoni would not be realized, or that memory would not be
`
`shared if memory were added. These conclusory statements do not create a genuine dispute of
`
`material fact, nor do they affect 2Wire’s showing that Mazzoni and LB-031 disclose each
`
`limitation of the Asserted Family 3 Claims.
`
`5 “Jacobsen Opp. Decl.” refers to the Omnibus Declaration of Dr. Krista S. Jacobsen in Support
`of 2Wire Inc.’s Oppositions to TQ Delta, LLC’s Family 3 Motions, filed concurrently herewith.
`
`8
`
`Page 11 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 12 of 23 PageID #: 56506
`
`2.
`
`Mazzoni in Combination with G.993.1.
`
`2Wire has presented evidence that Mazzoni in combination with G.993.1 discloses each
`
`limitation of claim 19 of the ’473 patent in its Motion for Summary Judgment of Invalidity for
`
`Family 3, and that summary judgment for 2Wire is warranted on that ground. D.I. 774 at 5-11.
`
`2Wire also has shown that a POSITA would have been motivated to combine Mazzoni with
`
`G.993.1. D.I. 775 (Jacobsen Opening Decl.) ¶¶ 532-582. In its motion, TQ Delta argues only
`
`that a POSITA would not be motivated to combine Mazzoni with G.993.1.
`
`First, TQ Delta first refers again to what it calls the “Mazzoni problem” in combining the
`
`two references. This argument fails for the same reason it fails with respect to the Mazzoni / LB-
`
`031 combination, discussed above. See supra, Section V.A.1. In short, there is no “Mazzoni
`
`problem.”
`
`Second, TQ Delta’s argument that combining Mazzoni with G.993.1 would result in a
`
`transceiver with too little memory completely ignores that a POSITA is assumed to use his or her
`
`ordinary creativity in combining references. Dr. Jacobsen has opined that a POSITA would
`
`understand that it would be trivial to add memory to a transceiver to support the desired services.
`
`Jacobsen Opp. Decl., ¶ 128. Whether memory is shared or not, it is difficult to imagine that a
`
`POSITA would design a transceiver with too little memory to support the desired services. And
`
`TQ Delta and its expert, Dr. Cooklev, present no evidence that such a simple modification would
`
`be impossible, or not within the capacity of a POSITA. See KSR, 550 U.S. at 418. Not only has
`
`TQ Delta failed to show that it is entitled to summary judgment, it has raised no serious
`
`challenge to 2Wire’s motion for invalidity of claim 19 of the ’473 patent over the combination of
`
`Mazzoni and G.993.1.
`
`9
`
`Page 12 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 13 of 23 PageID #: 56507
`
`B.
`
`Genuine Disputes Of Material Fact Preclude Summary Judgment On The
`Obviousness Combinations Addressed Only In TQ Delta’s Motion.
`
`1.
`
`LB-031 in Combination With the Knowledge of One of Ordinary Skill
`in the Art.
`
`a.
`
`LB-031 in Combination With the Knowledge of a POSITA
`Discloses Shared Memory.
`
`2Wire has adduced evidence that LB-031 in combination with the knowledge of a
`
`POSITA discloses “shared memory” and “where in a portion of the memory may be allocated to
`
`the interleaving function or the deinterleaving function at any one particular time depending on
`
`the message.”6 See Jacobsen Opp. Decl., ¶¶ 170-186, 226-230, 263-265, 280-297. LB-031
`
`discloses allocating memory between an interleaver and a deinterleaver in a VDSL system, and
`
`describes allocating memory by exchanging the interleaver delay in octets. Id. at ¶ 171. Dr.
`
`Jacobsen opines that a POSITA would understand, given the disclosure of LB-031, that it would
`
`be used with shared memory. Id. at ¶ 172. The concept of shared memory was well-known by
`
`the time of the invention, and LB-031 describes how the “actual amount of memory required for
`
`interleaving and deinterleaving is implementation specific, and that a VDSL2 implementation
`
`can support a larger memory than is actually required.” Id. Dr. Jacobsen further opines that a
`
`POSITA would have combined this well-known concept of shared memory with the disclosure
`
`of LB-031. Id. at ¶ 173. No more evidence is needed to show a genuine dispute of material fact.
`
`TQ Delta’s citation to Dr. Jacobsen deposition testimony regarding this combination does
`
`not justify summary judgment. See Kaavo Inc. v. Amazon.com Inc., 323 F. Supp. 3d 630, 635
`
`(D. Del. 2018) (noting that on summary judgment, the Court “may not make credibility
`
`determinations or weigh the evidence”). Dr. Jacobsen testified, consistent with the opinions in
`
`6 TQ Delta equates these claim elements, which appear in different claims. For purposes of this
`motion, 2Wire does the same. TQ Delta does not directly address both of these limitations in its
`motion (see D.I. 778 at 7). If it does so in reply, 2Wire reserves the right to respond.
`
`10
`
`Page 13 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 14 of 23 PageID #: 56508
`
`her invalidity reports, that a POSITA would understand that LB-031 could be – but does not
`
`necessarily have to be – used with shared memory. Walsh Decl., Ex. C (Jacobsen Dep. Tr.),
`
`550:17-21 (“Q. . . . But given the disclosure of LB-031, is it necessarily the case that it could
`
`only be used with a device that implements shared memory? A. I don’t think the disclosure of
`
`LB-031 is limited to use with a shared memory.”). 2Wire has shown that there is a genuine
`
`dispute of material fact as to whether LB-031 in combination with the knowledge of a POSITA
`
`discloses shared memory.
`
`b.
`
`LB-031 is Compatible with Shared Memory.
`
`TQ Delta’s argument that the messaging scheme disclosed in LB-031 is supposedly
`
`incompatible with the use of shared memory does not justify summary judgment.
`
`First, LB-031’s messaging scheme transfers parameters similar to the messages in the
`
`VDSL2 standard that forms the basis of TQ Delta’s infringement theories. See D.I. 791 (TQ
`
`Delta’s MSJ re infringement). In particular, TQ Delta asserts that the O-PMS message of
`
`VDSL2 contains a parameter called “max_delay_octet,” which purportedly meets the limitation
`
`“transmitting or receiving a message during initialization specifying a maximum number of bytes
`
`of memory that are available to be allocated to a deinterleaver [or interleaver].” See, e.g., D.I.
`
`792 (Targowska Decl. in support of TQ Delta’s MSJ of Infringement), Ex. 15 (Opening Report
`
`of Dr. Todor Cooklev), ¶¶ 232-236. LB-031 similarly discloses transmitting messages
`
`specifying interleaver delay in octets: “[f]or interoperability reasons, the VTU-O and VTU-R
`
`much exchange the interleaver delay in terms of octets.” D.I. 770 (Targowska Decl.), Ex. 14,
`
`(LB-031) at 3. Dr. Jacobsen has explained how this LB-031 message discloses the claimed
`
`message, at least within TQ Delta’s interpretation of the claims. Jacobsen Opp. Decl., ¶¶ 190-
`
`193, 231-236, 268, 280-292. If the messaging scheme in LB-031 is incompatible with shared
`
`11
`
`Page 14 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 15 of 23 PageID #: 56509
`
`memory, then TQ Delta would be hard pressed to explain why the messaging scheme in VDSL 2
`
`is compatible with shared memory.
`
`Second, TQ Delta takes issue with how LB-031 selects transceiver parameters,
`
`specifically in its disclosure to “select the smaller of the transmitter and receiver capabilities, in
`
`each direction,” to argue that this makes LB-031 incompatible with sharing memory. See D.I.
`
`778 at 7-8; D.I. 770 (Targowska Decl.), Ex. 14, (LB-031) at p. 3. The “explanation” identified
`
`by TQ Delta from its expert, Dr. Cooklev, is a generalized example that assumes that the VTU-O
`
`and VTU-R being used with LB-031’s messaging scheme each have a dedicated upstream
`
`memory and a dedicated downstream memory, i.e., dedicated memory. See D.I. 778 at 8-9
`
`(quoting Cooklev Corr. Rebuttal Report, ¶¶ 47-52). This example does not establish that LB-031
`
`is incompatible with shared memory as a matter of law. If instead, for example, the messaging
`
`scheme of LB-031were used with a VTU-O having 60 kilobytes of shared memory, and it
`
`received a message containing capabilities of 40 kB for deinterleaving and 20 kB for
`
`interleaving, it allocates its memory accordingly. Jacobsen Opp. Decl. ¶ 183. If the same VTU-
`
`O received a message containing capabilities of 30 kB for deinterleaving and 30kB for
`
`interleaving, it would allocate its memory accordingly, and a portion of the memory that had
`
`previously been used for interleaving would now be used for deinterleaving. Id. Thus, in an
`
`example that actually uses shared memory, there is no such “incompatibility.”
`
`Third, contrary to TQ Delta’s contention, Dr. Jacobsen did not admit at her deposition
`
`that LB-031 was incompatible with shared memory. See D.I. 778 at 9-10. Again, TQ Delta
`
`misconstrues Dr. Jacobsen’s deposition testimony. The discussion cited by TQ Delta related to
`
`the amount of delay that a VTU-O and VTU-R can support, not an amount of memory. See
`
`Walsh Decl., Ex. C (Jacobsen Dep. Tr.), 518:8-520:6. Because the delay and the amount of
`
`12
`
`Page 15 of 23
`
`

`

`Case 1:13-cv-01835-RGA Document 879 Filed 03/08/19 Page 16 of 23 PageID #: 56510
`
`memory used to meet a delay can be different, Dr. Jacobsen’s deposition te