Case 2:21-cv-00310-JRG Document 135-24 Filed 05/06/22 Page 1 of 47 PageID #: 4785
`
`EXHIBIT 23
`
`TQ Delta Exhibit 2020
`COMMSCOPE, INC. v. TQ DELTA LLC
`IPR2023-00066
`
`Page 1 of 47
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`

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`Case 2:21-cv-00310-JRG Document 135-24 Filed 05/06/22 Page 2 of 47 PageID #: 4786
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`CIV. A. NO. 2:21-CV-310-JRG
`(Lead Case)
`
`CIV. A. NO. 2:21-CV-309-JRG
`(Member Case)
`
`TQ DELTA, LLC,
`
`Plaintiff,
`
`v.
`
`COMMSCOPE HOLDING COMPANY, INC.,
`COMMSCOPE
`INC.,
`ARRIS
`INTERNATIONAL
`LIMITED,
`ARRIS
`GLOBAL LTD., ARRIS US HOLDINGS, INC.,
`ARRIS
`SOLUTIONS,
`INC.,
`ARRIS
`TECHNOLOGY,
`INC.,
`and
`ARRIS
`ENTERPRISES, LLC,
`
`Defendants.
`
`TQ DELTA, LLC,
`
`Plaintiff,
`
`v.
`
`NOKIA CORP., NOKIA SOLUTIONS AND
`NETWORKS OY, and NOKIA OF AMERICA
`CORP.,
`
`Defendants.
`
`NOKIA OF AMERICA CORP.,
`Third-Party Plaintiff,
`
`v.
`
`BROADCOM CORP., BROADCOM INC., and
`AVAGO
`TECHNOLOGIES
`INTERNATIONAL SALES PTE. LTD.,
`Third-Party
`Defendants.
`
`DECLARATION OF BRUCE MCNAIR
`REGARDING CLAIM CONSTRUCTION
`
`Page 2 of 47
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`

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`TABLE OF CONTENTS
`
`
`I.
`
`Introduction ..........................................................................................................................1
`
`II.
`
`Qualifications .......................................................................................................................2
`
`A.
`
`B.
`
`C.
`
`D.
`
`Education .................................................................................................................2
`
`Industry Experience .................................................................................................2
`
`Publications ..............................................................................................................3
`
`Prior Expert Testimony ............................................................................................3
`
`III.
`
`Scope of Opinions ................................................................................................................4
`
`IV.
`
`Legal Standards ....................................................................................................................4
`
`V.
`
`Background ..........................................................................................................................5
`
`A.
`
`B.
`
`The Family 1 Patent .................................................................................................5
`
`The Family 6 Patents .............................................................................................10
`
`VI.
`
`Level of Ordinary Skill in the Art ......................................................................................12
`
`VII. Disputed Claim Terms .......................................................................................................13
`
`A.
`
`Family 1 Patent ......................................................................................................13
`
`1.
`
`“each bit in the diagnostic message is mapped to [at least
`one / one] DMT symbol” ...........................................................................13
`
`B.
`
`Family 6 Patents .....................................................................................................17
`
`1.
`
`“FIP setting,” “FIP value,” and “interleaver parameter
`value” .........................................................................................................17
`
`
`
`
`
`
`
`
`
`i
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`Case 2:21-cv-00310-JRG Document 135-24 Filed 05/06/22 Page 4 of 47 PageID #: 4788
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`I.
`
`INTRODUCTION
`
`1.
`
`My name is Bruce McNair, and I have been retained as a technical expert by
`
`counsel for Defendants Nokia of America Corporation, Nokia Corporation, Nokia Solutions and
`
`Networks Oy (collectively, “Nokia”) and CommScope Holding Company, Inc., CommScope
`
`Inc., ARRIS US Holdings, Inc., ARRIS Solutions, Inc., ARRIS Technology, Inc., and ARRIS
`
`Enterprises, LLC (collectively, “CommScope”) (together, “Defendants”) to address certain
`
`issues concerning U.S. Patent No. 7,570,686 (the “Family 1 Patent,” or the “’686 Patent”), U.S.
`
`Patent No. 8,594,162 (the “’162 Patent”), U.S. Patent No. 10,567,112 (the “’112 Patent”), and
`
`U.S. Patent No. 8,462,835 (the “’835 Patent”) (collectively, the “Family 6 Patents”), whichhave
`
`been asserted by TQ Delta, LLC (“Plaintiff” or “TQ Delta”). Unless otherwise stated, the matters
`
`contained in this declaration are of my own personal knowledge and, if called as a witness, I
`
`could and would testify competently and truthfully with regard to the matters set forth herein.
`
`2.
`
`My opinions are based on my years of education, research and experience, as well
`
`as my investigation and study of relevant materials. A list of materials considered is included in
`
`Appendix A to my declaration.
`
`3.
`
`I may rely upon these materials, my knowledge and experience, and/or additional
`
`materials, documents, and information in forming any opinions in this Action, including but not
`
`limited to opinions to rebut arguments raised by Plaintiff. I reserve all rights that I may have to
`
`supplement this declaration if further information becomes available or if I am asked to consider
`
`additional information. Furthermore, I reserve all rights that I may have to consider and comment
`
`on any additional expert statements or testimony of Plaintiff’s experts in this matter.
`
`4.
`
`My analysis of materials relevant to this Action is ongoing, and I may continue to
`
`review new material as it becomes available. This declaration represents only those opinions I
`
`1
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`have formed to date. I reserve the right to revise, supplement, and/or amend my opinions stated
`
`herein based on new information and on my continuing analysis of the materials already
`
`provided. I also reserve the right to create exhibits to use in Court if called upon to testify.
`
`5.
`
`I am being compensated at my usual consulting rate of $650 per hour for my time
`
`spent working on issues in this case. My compensation does not depend upon the outcome of this
`
`matter or the opinions I express.
`
`II.
`
`QUALIFICATIONS
`
`6.
`
`I have summarized in this section my educational background, industry
`
`experience, and other relevant qualifications. A true and accurate copy of my curriculum vitae is
`
`attached as Exhibit B to this declaration.
`
`A.
`
`7.
`
`Education
`
`I received my Bachelors of Engineering (Electrical) from Stevens Institute of
`
`Technology in 1971 and my Masters of Electrical Engineering from Stevens in 1974. I have
`
`taken numerous PhD-level courses in Electrical Engineering, Computer Engineering, and
`
`Computer Science at Stevens, as well.
`
`B.
`
`8.
`
`Industry Experience
`
`I was employed by the U.S. Army Electronics Command at Fort Monmouth, NJ,
`
`from 1971 to 1973 and 1974 to 1978 where I worked with voice, data, and wireless
`
`communications systems.
`
`9.
`
`In 1973, I was employed by ITT Defense Communications Division in Nutley,
`
`NJ, where I designed digital hardware and computer software to investigate signal processing of
`
`speech signals and transmission of satellite communications signals using advanced forward
`
`error correction schemes.
`
`2
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`10.
`
`From 1978 to 2002, I was employed by AT&T Bell Laboratories and AT&T
`
`Laboratories at various New Jersey locations. My work there involved public data networks,
`
`high-speed digital communications over analog networks, speech processing, network security,
`
`and wireless communications. Several of my positions were closely associated with the subject
`
`matter of asserted patents. In particular, while I was in the Bell Labs Data Communications
`
`Laboratory in the early 1980s, I worked on high-speed analog modems using techniques that
`
`others in the organization later applied to DSL signaling. John Cioffi, one of the inventors of
`
`cited prior art, was one of the other members of the group I was in. Rich Gitlin, who was the
`
`supervisor of that group and later the head of the same department, is the recognized inventor of
`
`the initial concept of DSL technologies for the local telephone plant. Later in my AT&T/Bell
`
`Labs career (1994-2002) I investigated the use of Orthogonal Frequency Division Multiplexing
`
`(OFDM) for wireless communications. OFDM forms the basis for DSL communications,
`
`although the characteristics of a wireless network environment make communications far more
`
`difficult than the relatively benign DSL environment. My research in OFDM for wireless
`
`applications included the use of interleaving, forward error correction, synchronization, and
`
`Reed-Solomon codes.
`
`C.
`
`Publications
`
`11. My list of publications is shown in my curriculum vitae, listed in Exhibit B, but I
`
`highlight a few that are closely related to the subject matter of the asserted patents: At VTC00, I
`
`presented results from an experimental implementation of OFDM in a wireless environment. I
`
`presented further results for this OFDM system at the Sarnoff Symposium in 2001. Seven more
`
`of my papers also relate to OFDM.
`
`D.
`
`12.
`
`Prior Expert Testimony
`
`A complete list of cases in which I have testified at trial, hearing, or by deposition
`
`3
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`within the preceding five years is in Exhibit C to my declaration.
`
`13.
`
`Based on my education and experience, I believe I am qualified to render the
`
`opinions set forth here.
`
`III.
`
`SCOPE OF OPINIONS
`
`14.
`
`I have been asked to provide opinions regarding the meaning of certain disputed
`
`claim terms as understood by one of ordinary skill at the time of the claimed inventions. My
`
`opinions are based on my understanding of the disputed claim terms and proposed construction
`
`and the evidence relied upon by the parties.
`
`IV.
`
`LEGAL STANDARDS
`
`15.
`
`Certain legal principles that relate to my opinions have been explained to me by
`
`counsel.
`
`16.
`
`I understand that ultimately the Court will determine how specific terms shall be
`
`construed. The intent of this declaration is to help inform the Court how a person of ordinary
`
`skill in the art would have understood the meaning of certain disputed claim terms at the time of
`
`the claimed inventions in the context of the Asserted Patents’ claims, specifications, and
`
`prosecution histories in a manner that will assist the Court in the process of construing the
`
`claims. I understand that patent claims are generally given the meaning that the terms would
`
`have to a person of ordinary skill in the art in question as of the earliest claimed priority date. It
`
`is my understanding that a patentee can act as its own lexicographer by defining a term, in the
`
`patent specification, to have specific meaning. It is my understanding that statements made to the
`
`patent office by the patentee or its legal representative during prosecution can serve to
`
`illuminate, or possibly narrow the proper scope of claim terms, and that such statements must be
`
`considered when construing the claim terms. This is sometimes referred to as disclaimer. I have
`
`4
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`taken into account these principles in my analysis.
`
`17.
`
`I understand that a claim is indefinite if, when read in light of the specification
`
`and its prosecution history, the claim fails to inform, with reasonable certainty, those skilled in
`
`the art about the scope of the claimed invention.
`
`18.
`
`I understand that a patent may include both independent and dependent claims. I
`
`understand that a claim in dependent form must contain reference to a claim previously set forth
`
`and then specify a further limitation of the subject matter claimed. A claim in dependent form
`
`must be construed to incorporate by reference all the limitations of the claim on which it
`
`depends.
`
`V.
`
`BACKGROUND
`
`A.
`
`19.
`
`The Family 1 Patent
`
`I have been asked to provide opinions regarding the meaning of certain claim
`
`terms in the ’686 Patent.
`
`20.
`
`The ’686 Patent is titled “Systems and Methods for Establishing a Diagnostic
`
`Transmission Mode and Communicating Over the Same.”
`
`21.
`
`I understand that TQ Delta has asserted the following claims and priority dates:
`
`Patent
`’686 Patent
`
`Asserted Claims
`17, 18, 36, 37, 40
`
`Asserted Priority Date
`January 7, 2000, or, in the
`alternative, August 10, 2000,
`or, in the alternative, January
`8, 2001.
`
`
`
`22.
`
`I have been asked to assume the applicability of the priority date for this patent as
`
`detailed above and have therefore analyzed the claim constructions and knowledge of one of
`
`ordinary skill for the patent as of those dates.
`
`23.
`
`Digital Subscriber Line (DSL) is a technology that developed from research into
`
`5
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`analog modems in the early 1980s. As signal processing technology advanced while refinements
`
`in communications theory and error correction coding allowed higher and higher transmission
`
`speeds, it was recognized that there were two fundamental limitations to being able to send
`
`information at high speeds: noise and bandwidth. Transmission bandwidth limits the rate at
`
`which signals can be modified (modulated) while allowing reliable detection of the transmitted
`
`signals. Noise limits the number of distinct signal levels that can be reliably transmitted while
`
`allowing the receiver to reliably determine which particular signal was sent in a certain time slot.
`
`As my colleagues and I in the Bell Labs Digital Communications Laboratory, John Cioffi among
`
`them, researched techniques to send information at higher data rates, we recognized that there
`
`was a fundamental limit to transmission in the local loop (the transmission line between the
`
`customer premises and the central office), while long distance transmission had a different set of
`
`restrictions. The study of DSL recognized that, if the limitations in the local loop could be
`
`separated from the issues in the long distance network, higher-speed, reliable communications
`
`were possible. If the short-distance transmission through the local loop could be conquered, the
`
`evolving high-speed long-distance digital network could carry the high-speed transmission the
`
`rest of the way to the destination.
`
`24.
`
`By the late 1980s to early 1990s, key aspects of Discrete Multi-Tone (“DMT”)
`
`DSL had been developed by John Cioffi and his colleagues at Stanford and AT&T Bell Labs.
`
`Discrete multitone (DMT) had been deployed as a multi-carrier modulation scheme to allocate
`
`available spectrum for various DSL networks. The conventional DMT transceivers decompose
`
`the available frequencies/bandwidth into separate subchannels as specified by the recognized
`
`standards. This static infrastructure lead to an inefficient use of the available resources of the
`
`network when the transmitted traffic requires only part of the whole allocated spectrum. DMT
`
`6
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`makes use of the available frequencies that can be transmitted on the telephone line and splits
`
`them into 256/512 equal sized frequency bins of 4.3125 kHz each. Sub-channels (or carrier bins)
`
`are where data bits are transmitted to and from our modem. Each sub-channel within a specific
`
`frequency range will be responsible for either upstream or downstream data.
`
`25.
`
`By the time of the priority date of the Family 1 patents, multiple DSL standards
`
`had been developed and put into operation, including the T1.413-1995 and T1.413-1998 ADSL
`
`standards developed by the T1E1.4 committee of the American National Standards Institute
`
`(ANSI) and the ITU-T G.992.1 and G.992.3 ADSL and ADSL2 standards developed by
`
`SG15/Q4 of the ITU.
`
`26.
`
`To enable a DSL service provider to monitor the health of an ongoing ADSL
`
`connection and troubleshoot issues, all of the ADSL standards in force as of the priority date of
`
`the ’686 patent specify mechanisms to retrieve, during Showtime, ADSL transceiver status
`
`information and performance monitoring parameters.
`
`27.
`
`Specifically, each of the ADSL standards defines an embedded operations
`
`channel (EOC) to allow the ATU-C and ATU-R to communicate status information and
`
`performance monitoring parameters. T1.413-1995 at § 11.1; T1.413-1998 at § 8.1; G.992.1 at §
`
`9.1; G.992.2 at § 8.1. Using the EOC, the ATU-C can send commands to the ATU-R to read
`
`from data registers the ATU-R maintains to store status information or performance-monitoring
`
`parameters. T1.413-1995 at § 11.1.3; T1.413-1998 at § 8.1.3; G.992.1 at § 9.2.3; G.992.2 at §
`
`8.3.5. In response, the ATU-R sends the requested information using the EOC messaging
`
`protocol. T1.413-1995 at § 11.1.4.3.1; T1.413-1998 at § 8.1.5.3.1; G.992.1 at 9.2.5.3.1; G.992.2
`
`at § 8.4. The EOC messaging protocol includes substantial redundancy to ensure that commands
`
`from the ATU-C and responses from the ATU-R are received correctly. See, e.g., T1.413-1995 at
`
`7
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`§ 11.1.4.3.1 (ATU-R repeats transmissions until ATU-C has received three consecutive and
`
`identical frames); T1.413-1998 at § 8.1.5.3.1 (same); G.992.1 at § 9.2.5.3.1 (same); G.992.2 at §
`
`8.4.2.3 (same).
`
`28.
`
`The ’686 patent discloses systems and methods for exchanging diagnostic and test
`
`information between transceivers over a digital subscriber line. ’686 patent at Abstract. FIG. 2 of
`
`the ’686 patent, copied below, is a flowchart outlining an exemplary method for communicating
`
`diagnostic information according to the ’686 patent. Id. at 3:12-15.
`
`29.
`
`The diagnostic and test information can include information about specific
`
`limitations of the modems, information relating to the modem installation and deployment
`
`environment, or other diagnostic and test information that can be determined as needed to help to
`
`
`
`8
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`determine the cause of a failure or problem. Id. at 2:35-50. The diagnostic and test information
`
`can also include information “that has been assembled during, for example, the normal ADSL
`
`initialization procedure.” Id. at 5:64-66. The ’686 patent provides examples of diagnostic and test
`
`information, including the following in Table 1:
`
`
`
`30.
`
`The remote terminal (RT) can send a data message containing data variables to
`
`the central office (CO). Id. at 4:25-35. As used herein, the RT is located at a subscriber residence
`
`and is referred to elsewhere in the ’686 patent as an ATU-R, and the CO is located in a central
`
`location and is referred to as an ATU-C. The ’686 patent discloses three ways in which the RT
`
`may send the diagnostic and test information: (a) by using a one-bit-per-DMT-symbol message
`
`encoding scheme “as is used in the C-Rates1 message in the ITU and ANSI ADSL standards,”
`
`(b) by using “Differential Phase Shift Keying (DPSK) on a subset or all of the carriers, as
`
`specified in, for example, ITU standard G.994.1,” or (c) by using “higher order QAM
`
`modulation (>1 bit per carrier).” Id. at 3:50-53. These methods are used due to their robust nature
`
`and ability to be transmitted in the presence of large amounts of noise and other disturbances. Id.
`
`at 3:54-67.
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`31.
`
`The ’686 patent discloses that diagnostic and test information can be exchanged
`
`by the ATU-C and ATU-R during the normal steady-state communications mode, and during a
`
`“diagnostic link mode” that can be used “if the ATU-C and/or ATU-R modem fail to complete
`
`an initialization sequence, and are thus unable to enter a normal steady state communications
`
`mode, where the diagnostic and test information would normally be exchanged.” Id. at 2:22-26.
`
`The diagnostic link mode allows the ATU-C and ATU-R to “exchange the diagnostic and test
`
`information that is, for example, used by a technician to determine the cause of a failure without
`
`the technician having to physically visit, i.e., a truckroll to, the remote site to collect data.” Id. at
`
`2:29-34. An asserted claim of the ’686 patent is claim 17, which recites:
`
`An information storage media comprising instructions that when executed
`communicate diagnostic information over a communication channel using
`multicarrier modulation comprising:
`
`instructions that when executed direct a transceiver to receive or transmit
`an initiate diagnostic mode message; and
`
`instructions that when executed transmit a diagnostic message from the
`transceiver using multicarrier modulation, wherein the diagnostic message
`comprises a plurality of data variables representing the diagnostic information
`about the communication channel and each bit in the diagnostic message is
`mapped to at least one DMT symbol, and wherein one variable comprises an array
`representing frequency domain received idle channel noise information.
`
`Id. at Claim 17.
`
`
`B.
`
`32.
`
`The Family 6 Patents
`
`I have been asked to provide opinions regarding the meaning of certain claim
`
`terms in the Family 6 Patents.
`
`33.
`
`34.
`
`The Family 6 Patents are titled “Impulse Noise Management.”
`
`I understand that TQ Delta has asserted the following claims and priority dates:
`
`10
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`Patent1
`’162 Patent
`
`Asserted Claims
`8, 9, 11
`
`’112 Patent
`
`8, 10, 11, 12, 14
`
`’835 Patent
`
`8, 10, 24, 26
`
`Asserted Priority Date
`January 7, 2000, or, in the
`alternative, August 10, 2000,
`or, in the alternative, January
`8, 2001.
`March 3, 2004 or, in the
`alternative, March 24, 2004,
`or, in the alternative, March 3,
`2005, or in the alternative,
`April 28, 2010, or, in the
`alternative, June 11, 2003
`March 3, 2004 or, in the
`alternative, March 24, 2004,
`or, in the alternative, March 3,
`2005, or in the alternative,
`April 28, 2010, or, in the
`alternative, June 11, 2003
`
`
`
`35.
`
`I have been asked to assume the applicability of the priority dates for these patents
`
`as detailed above and have therefore analyzed the claim constructions and knowledge of one of
`
`ordinary skill for the patent as of those dates.
`
`36.
`
`In forming the opinions set forth in this declaration, I have reviewed the asserted
`
`Family 6 Patents and their file histories.
`
`37.
`
`The Family 6 Patents generally relate to impulse noise protection adaptation. ’162
`
`Patent at 1:23-24. The Family 6 Patents explain that “[c]ommunications systems often operate in
`
`environments that produce impulse noise. Impulse noise is a short-term burst of noise that is
`
`higher than the normal noise that typically exists in a communication channel.” ’162 Patent at
`
`1:29-32. For example, DSL systems may encounter impulse noise. ’162 Patent at 1:32-36.
`
`Impulse noise protection is managed through interleaving and Forward Error Correction (FEC),
`
`but as of the time of the Family 6 Patents, the “current xDSL procedure at least [did] not provide
`
`
`1 The ’162 Patent is only asserted against Nokia. The ’835 Patent is only asserted against
`CommScope. The ’112 Patent is asserted against both Nokia and CommScope.
`
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`specific states to enable training for the selection of the appropriate interleaving and FEC
`
`parameters.” ’162 Patent at 1:42-46.
`
`38.
`
`At the time of the Family 6 Patents, the “current technique” for selecting
`
`interleaving and FEC parameters “include[d] the steps of an operator . . . configuring the ADSL
`
`connection with a specific noise protection value, the ADSL connection [being] initialized and
`
`the transceivers enter[ing] into steady state data transmission (i.e., Showtime), and if the
`
`connection is stable, i.e., error-free, then the service is acceptable and the process ends.” ’162
`
`Patent at 2:41-47. But “if there are bit errors, then the process is repeated with the operator . . .
`
`configuring the ADSL connection with another specific INP value.” ’162 Patent at 2:47-49.
`
`39.
`
`The Family 6 Patents describe that the system of the alleged invention can
`
`transition from one “FEC and Interleaving Parameter (FIP) setting” “to another FIP setting
`
`without going through the startup initialization procedure such as the startup initialization
`
`sequence utilized in traditional xDSL systems.” ’162 Patent at 3:30-44.
`
`40. With respect to the background of the invention, I reserve the right to respond to
`
`TQ Delta’s expert’s description should a more detailed description of the background of the
`
`technology become necessary.
`
`
`
`VI.
`
`LEVEL OF ORDINARY SKILL IN THE ART
`
`41.
`
`I have been asked to offer my opinion regarding the level of ordinary skill in the
`
`art with respect to each of the Asserted Patents.
`
`42.
`
`In my opinion, with regard to the ’686 patent, a person having ordinary skill in the
`
`art at the time of the alleged inventions of the Asserted Patents would have possessed a
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`bachelor’s degree in electrical or computer engineering, or the equivalent, and at least 5–6 years
`
`of experience in telecommunications or a related field; a master’s degree in electrical or
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`computer engineering, or
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`the equivalent, and at
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`least 2–3 years of experience
`
`in
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`telecommunications or a related field; or a Ph.D. in electrical or computer engineering, or the
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`equivalent, with at least 1–2 years of experience in telecommunications or a related field. As of
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`the time of the invention of the various patents through the present, I qualify as a person of
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`ordinary skill in the art.
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`VII. DISPUTED CLAIM TERMS
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`43.
`
`I have been asked to provide opinions as to the terms and issues identified below
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`and the claims associated with those terms.
`
`A.
`
`Family 1 Patent
`
`1.
`
`“each bit in the diagnostic message is mapped to [at least one / one]
`DMT symbol”
`
`Claim(s)
`’686 Patent,
`Claims 17,
`36, 40
`
`Plaintiff’s Position
`Plain and ordinary meaning. No
`construction necessary.
`
`
`Defendants’ Position
`Indefinite
`
`
`
`44.
`
`I understand that the parties dispute the construction of “each bit in the diagnostic
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`message is mapped to [at least one / one] DMT symbol,” which is in the above-listed claims of
`
`the ’686 Patent. I understand that the Plaintiff contends that this term should be afforded its
`
`“[p]lain and ordinary meaning. No construction necessary.” Having considered the parties’
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`positions, I agree with Defendants’ position.
`
`45.
`
`This term is indefinite. Indeed, a person of ordinary skill in the art would not
`
`understand the meaning of the phrases “mapped” or “at least one” / “one” as used in the asserted
`
`limitation.
`
`46.
`
`As an initial matter, the term “mapped” is a jargon term that would not provide a
`
`person of skill in the art with reasonable certainty as to what is intended by this phrase in the
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`context of the claim. Specifically, the term “mapped” could mean that the same bit value is
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`represented by one symbol, two symbols, or every symbol that results from a given DMT signal.
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`A person of skill in the art would understand that you have to define a mapping function with
`
`specificity in order to implement that particular function.
`
`47.
`
`The specification contains a single description of the term “mapped.” The
`
`specification discloses “[i]n
`
`the one bit per DMT symbol modulation message
`
`encoding scheme, a bit with value 0 is mapped to the REVERB1 signal and a bit with a
`
`value of l mapped to a SEGUE1 signal.” ’686 patent at col. 3:54-57. But the language used in
`
`the specification references mapping to a particular signal, not a symbol, and provides no insight
`
`as to what it means to map a bit of the diagnostic message to a symbol.
`
`48.
`
`Further, this disclosure of mapping does not tell us anything about mapping a bit
`
`of the diagnostic message. The REVERB1 and SEGUE1 signals are instead only relevant to the
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`state of the communication protocol, and are not part of the diagnostic message.
`
`49.
`
`Next, the phrases “at least one” and “one” are both indefinite as they are used in
`
`the claims. While “one” is clear, the term “at least one” allows for the scenario that a given bit is
`
`mapped to more than one DMT signal. As described below, the different possible interpretations
`
`tied to each version of the claim further adds to the indefinite nature of the term.
`
`50. With respect to “at least one,” a person of ordinary skill in the art would not
`
`understand how a bit in a message could be “mapped” to more than one DMT symbol. Indeed, as
`
`described above, the discussion within the specification of the “one bit per DMT symbol
`
`modulation scheme,” ’686 patent at 3:54-67, does not disclose that any particular bit is mapped
`
`to more than one DMT symbol. The claim language would raise a number of questions in the
`
`mind of one of ordinary skill in the art. For example, a person of skill in the art may question 1)
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`whether there is some error coding used to map a bit into several redundant symbols, 2) whether
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`the same bit is sent multiple times, once in each symbol, or 3) whether the claim language
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`contemplates something else entirely.
`
`51. With respect to “one,” were a person of ordinary skill in the art to, in the
`
`alternative, interpret “one DMT symbol” to refer to the transmission of a bit, they would not
`
`understand how a bit, when transmitted, is transmitted for only one DMT symbol period. A
`
`person of ordinary skill in the art would understand that a DMT symbol includes transmission at
`
`multiple frequencies. It is not clear how a bit of data would be mapped to all of the subcarriers of
`
`a symbol. Stated differently, the symbol could consist of multiple subcarriers and a person of
`
`ordinary skill would not know how and to which of the subcarriers the data is mapped.
`
`52.
`
`A person having ordinary skill at the time of the alleged invention would have
`
`been familiar with and understood the G.992.1 Recommendation. G.992.1 consistently states that
`
`signals, including the initialization signals using REVERB1 and SEGUE1, span multiple DMT
`
`symbol periods—and requires that any signals that are limited in duration be expressly defined as
`
`limited in duration. For example, section 10.1.1 of G.992.1 states:
`
`The description of a signal will consist of three parts:
`
`* * *
`
`The second is a statement of the required duration, expressed in DMT symbol
`periods, of the signal. This signal duration may be a constant or may depend upon
`the detected signaling state of the far-end transceiver. The duration of a single
`DMT symbol period depends on whether the cyclic prefix is being used; some
`initialization signals contain a cyclic prefix, and some do not. ATU-C signals up
`to and including C-SEGUE1 are transmitted without a cyclic prefix; those from
`C-RATES1 on are transmitted with a prefix. Similarly, ATU-R signals up to and
`including R-SEGUE1 do not use a prefix; those from R-REVERB3 onward do.
`The duration of any signal in seconds is therefore the defined number of DMT
`symbol periods times the duration of the DMT symbol being used.
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`ITU-T Recommendation G.992.1 at § 10.1.1 (emphasis added). Section 10.4.5 describes the
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`signal C-REVERB1, which is transmitted by the ATU-C:
`
`C-REVERB1 is a signal that allows the ATU-C and ATU-R receiver to adjust its
`automatic gain control (AGC) to an appropriate level. . . . The duration of C-
`REVERB1 is 512 (repeating) symbols without cyclic prefix.
`
`G.992.1 at § 10.4.5 (emphasis added). Thus, the signal C-REVERB1 spans 512 DMT symbol
`
`period