UNITED STATES PATENT AND TRADEMARK OFFICE
`
`________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`________________________
`
`COMMSCOPE, INC.
`Petitioner
`
`v.
`
`TQ DELTA, LLC
`Patent Owner
`
`________________________
`
`Case No. IPR2023-00066
`
`U.S. Patent No. 7,836,381
`________________________
`
`DECLARATION OF RICHARD WESEL, Ph.D
`
`CommScope, Inc.
`IPR2023-00066, Ex. 1003
`Page 1 of 151
`
`

`

`TABLE OF CONTENTS
`
`II.
`
`Qualifications..................................................................................................................... 2
`
`III.
`
`Scope of the Engagement.................................................................................................. 4
`
`IV.
`
`Legal Standards Relied Upon .......................................................................................... 6
`
`V.
`
`Technical Background .................................................................................................... 10
`Reed-Solomon Coding ........................................................................................ 11
`a.
`Interleaving .......................................................................................................... 12
`b.
`Shared Memory ................................................................................................... 16
`c.
`Configuration Messages ..................................................................................... 16
`d.
`
`VI.
`
`The ’381 Patent ............................................................................................................... 19
`
`VII.
`
`Prosecution History ........................................................................................................ 21
`
`VIII. Prior Decisions by the District Court ............................................................................ 22
`
`IX.
`
`Litigation Related to the ’381 Patent ............................................................................ 23
`
`X.
`
`XI.
`
`Claim Construction ......................................................................................................... 23
`“transceiver” ....................................................................................................... 24
`a.
`“shared memory” ................................................................................................ 24
`b.
`“amount of memory” .......................................................................................... 25
`c.
`d.
`“the shared memory allocated to the [deinterleaver / interleaver] is
`used at the same time as the shared memory allocated to the
`[interleaver/ deinterleaver]” .............................................................................. 25
`
`Prior Art References ....................................................................................................... 25
`Mazzoni Overview .............................................................................................. 25
`e.
`Fadavi-Ardekani Overview ................................................................................ 28
`f.
`VDSL1 Overview ................................................................................................ 30
`g.
`Motivation to Combine the Prior Art ............................................................... 33
`h.
`Motivation to Combine Mazzoni and VDSL1 ...................................... 33
`i.
`Motivation to Combine VDSL1 and Fadavi-Ardekani ....................... 38
`ii.
`
`XII. Ground 1: The combination of Mazzoni and VDSL1 renders the challenged
`claims obvious.................................................................................................................. 42
`Analysis ................................................................................................................ 42
`a.
`i.
`Claim 1: [1.pre] 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: .............................................................................................. 42
`Claim 1: [1.A] transmitting or receiving, by the transceiver, a
`message during initialization specifying a maximum number of
`
`ii.
`
`i
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`iii.
`
`iv.
`
`v.
`
`vi.
`
`bytes of memory that are available to be allocated to an
`interleaver;............................................................................................... 53
`Claim 1: [1.B] determining, at the transceiver, an amount of
`memory required by the interleaver to interleave a first
`plurality of Reed Solomon (RS) coded data bytes within a
`shared memory; ...................................................................................... 63
`Claim 1: [1.C] allocating, in the transceiver, a first number of
`bytes of the shared memory to the interleaver to interleave 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; ............................................................... 81
`Claim 1: [1.D] allocating, in the transceiver, 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 ...................................................................... 90
`Claim 1: [1.E] 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. ........................................................................................... 91
`Claim 2: The media of claim 1, wherein the determining is
`based on an impulse noise protection requirement. ............................ 94
`viii. Claim 3: The media of claim 1, wherein the determining is
`based on a latency requirement. ............................................................ 96
`Claim 4: The media of claim 1, wherein the determining is
`based on a bit error requirement. ......................................................... 98
`Claim 5 [5.pre]: 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: ............................................................................................ 100
`Claim 5: [5.A] 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;......................................................................................... 101
`Claim 5: [5.B] 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; .................................................................................... 102
`xiii. Claim 5: [5.C] allocating, in the transceiver, a first number of
`bytes of the shared memory to the 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
`
`vii.
`
`ix.
`
`x.
`
`xi.
`
`xii.
`
`ii
`
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`xv.
`
`xiv.
`
`the deinterleaver does not exceed the maximum number of
`bytes specified in the message; ............................................................. 102
`Claim 5: [5.D] 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 ............................................................................ 103
`Claim 5: [5.E] 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, whereinthe shared memory allocated to the
`deinterleaver is used at the same time as the shared memory
`allocated to the interleaver. .................................................................. 103
`Claim 6: The media of claim 5, wherein the determining is
`based on an impulse noise protection requirement. .......................... 103
`xvii. Claim 7: The media of claim 5, wherein the determining is
`based on a latency requirement. .......................................................... 103
`xviii. Claim 8: The media of claim 5, wherein the determining is
`based on a bit error rate requirement................................................. 104
`
`xvi.
`
`XIII. Ground 2: The combination of VDSL1 and Fadavi-Ardekani renders the
`challenged claims obvious. ........................................................................................... 104
`Analysis .............................................................................................................. 104
`b.
`i.
`Claim 1: [1.pre] 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: ............................................................................................ 104
`Claim 1: [1.A] 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 an
`interleaver;............................................................................................. 113
`Claim 1: [1.B] determining, at the transceiver, an amount of
`memory required by the interleaver to interleave a first
`plurality of Reed Solomon (RS) coded data bytes within a
`shared memory; .................................................................................... 121
`Claim 1: [1.C] allocating, in the transceiver, a first number of
`bytes of the shared memory to the interleaver to interleave 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; ............................................................. 124
`Claim 1: [1.D] allocating, in the transceiver, 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 .................................................................... 129
`
`ii.
`
`iii.
`
`iv.
`
`v.
`
`iii
`
`CommScope, Inc.
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`

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`vi.
`
`vii.
`
`ix.
`
`x.
`
`xi.
`
`xii.
`
`Claim 1: [1.E] 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. ......................................................................................... 130
`Claim 2: he media of claim 1, wherein the determining is based
`on an impulse noise protection requirement. ..................................... 132
`viii. Claim 3: The media of claim 1, wherein the determining is
`based on a latency requirement. .......................................................... 135
`Claim 4: The media of claim 1, wherein the determining is
`based on a bit error rate requirement................................................. 137
`Claim 5 [5.pre]: 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 ............................................................................................. 138
`Claim 5: [5.A] 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;......................................................................................... 138
`Claim 5: [5.B] 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; .................................................................................... 139
`xiii. Claim 5: [5.C] allocating, in the transceiver, a first number of
`bytes of the shared memory to the 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; ............................................................. 139
`Claim 5: [5.D] 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 ............................................................................ 140
`Claim 5: [5.E] 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 shred 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. .................................................................. 140
`Claim 6: The media of claim 5, wherein the determining is
`based on an impulse noise protection requirement. .......................... 140
`
`xiv.
`
`xv.
`
`xvi.
`
`iv
`
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`xvii. Claim 7: The media of claim 5, wherein the determining is
`based on a latency requirement. .......................................................... 140
`xviii. Claim 8: The media of claim 5, wherein the determining is
`based on a bit error rate requirement................................................. 141
`
`XIV. Revision or Supplementation ....................................................................................... 141
`
`v
`
`CommScope, Inc.
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`

`Exhibit
`
`Short Name
`
`Description
`
`Ex. 1001
`
`’381 Patent
`
`U.S. Patent No. 7,836,381
`
`Ex. 1002
`
`’381 File History
`
`File History of U.S. Patent No. 7,836,381
`
`Ex. 1003
`
`Wesel Declaration Declaration of Dr. Richard Wesel, under 37 C.F.R. §
`1.68
`
`Ex. 1004
`
`Wesel CV
`
`Curriculum Vitae of Dr. Richard Wesel
`
`Ex. 1005
`
`Mazzoni
`
`U.S. Patent No. 7,269,208
`
`Ex. 1006
`
`Fadavi-Ardekani U.S. Patent No. 6,707,822
`
`Ex. 1007
`
`VDSL1
`
`ETSI TS 101 270-2 V1.2.1 Technical Specification
`
`Ex. 1008
`
`Ex. 1009
`
`Ex. 1010
`
`Ex. 1011
`
`Forney
`
`Zogakis
`
`G. David Forney, Burst-Correcting Codes for the
`Classic Bursty Channel, Vol. Com-19, No. 5, IEEE
`Transactions on Communications, 772 (1971)
`
`T. Nicholas Zogakis, A Coded and Shaped Discrete
`Multitone System, Vol. 43, No. 12, IEEE
`Transactions on Communications, 2941 (1995)
`
`Kernighan
`
`B.W. Kernighan, D. M. Ritchie, The C
`Programming Language, 1998
`
`AT&T DSP (1981)
`
`J. R. Boddie, Overview: The Device, Support
`Facilities, and Applications, Vol. 60, The Bell
`System Technical Journal, 1431 (1981)
`
`Ex. 1012
`
`AT&T DSP 32
`(1986)
`
`J. R. Boddie, The DSP32 Digital Signal Processor
`and its Application Development Tools, AT&T
`Technical Journal, 89 (1986)
`
`Ex. 1013
`
`Texas Instruments
`TMS 320 (1994)
`
`Mansoor A. Chishtie, Telecommunications
`Applications With the TMS320C5x DSPs, Digital
`Signal Processing Products (1994)
`
`Ex. 1014
`
`Maxwell
`
`U.S. Patent No. 4,924,456
`
`Ex. 1015
`
`V.32 bis
`
`ITU Recommendation V.32 bis (1991)
`
`Ex. 1016
`
`V.32
`
`ITU Recommendation V.32 (1993)
`
`Ex. 1017
`
`LB-031
`
`ITU Contribution LB-031 (June 2004)
`
`vi
`
`CommScope, Inc.
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`

`

`Exhibit
`
`Short Name
`
`Description
`
`Ex. 1018
`
`Family 3 Claim
`Construction
`Opinion
`
`TQ Delta, LLC v. 2Wire, Inc., No. 13-cv-01835-
`RGA, ECF. No. 445 (D. Del. Dec. 18, 2017) (Claim
`Construction Opinion)
`
`Ex. 1019
`
`Family 3 Claim
`Construction Order
`
`TQ Delta, LLC v. 2Wire, Inc., No. 13-cv-01835-
`RGA, ECF. No. 454 (D. Del. Dec. 28, 2017) (Claim
`Construction Order)
`
`Ex. 1020
`
`Family 1 Claim
`Construction
`Opinion
`
`TQ Delta, LLC v. 2Wire, Inc., No. 13-cv-01835-
`RGA, ECF. No.477 (D. Del. Jan 30, 2018) (Claim
`Construction Opinion)
`
`Ex. 1021
`
`Family 4 Claim
`Construction Order
`
`TQ Delta, LLC v. 2Wire, Inc., No. 13-cv-01835-
`RGA, ECF. No. 484 (D. Del. Feb. 6, 2018) (Claim
`Construction Order)
`
`Ex. 1022
`
`Family 3 MSJ
`Opinion
`
`TQ Delta, LLC v. 2Wire, Inc., No. 13-cv-01835-
`RGA, ECF No. 1106 (D. Del. Apr. 25, 2019) (MSJ
`Opinion)
`
`Ex. 1023
`
`Family 3 Jury Form
`
`TQ Delta, LLC v. 2Wire, Inc., No. 13-cv-01835-
`RGA, ECF No. 1187 (D. Del. May 23, 2019) (Jury
`Form)
`
`Ex. 1024
`
`’890 Patent
`
`U.S. Patent No. 7,831,890
`
`Ex. 1025
`
`’890 File History
`
`File History of U.S. Patent No. 7,831,890
`
`Ex. 1026
`
`Veithen
`
`Veithen et al., A 70 Mbps Variable-Rate DMT-based
`Modem for VDSL, IEEE International Solid-State
`Circuits Conference, 248 (1999)
`
`Ex. 1027
`
`Kiss
`
`Kiss et al, A Customizable DSP for DMT-Based
`ADSL Modem, IEEE, 349 (1998)
`
`Ex. 1028
`
`Third and Final
`Scheduling Order
`
`TQ Delta, LLC v. 2Wire, Inc., No. 1:13-cv-01835,
`Dkt. No. 117 (D. Del. April 10, 2017) (Third and
`Final Scheduling Order)
`
`Ex. 1029
`
`2Wire Docket
`
`TQ Delta, LLC v. 2Wire, Inc., No. 1:13-cv-01835
`(D. Del.) (Docket as of February 25, 2022)
`
`Ex. 1030
`
`Sept. 15, 2021
`Letter
`
`TQ Delta, LLC v. 2Wire, Inc., No. 1:13-cv-01835,
`Dkt. No. 1591 (D. Del. Sept. 15, 2021) (Letter)
`
`vii
`
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`Exhibit
`
`Short Name
`
`Description
`
`Ex. 1031
`
`Ex. 1032
`
`RESERVED
`
`RESERVED
`
`Feb. 24, 2022
`Letter Regarding
`ADTRAN Case
`Schedule
`
`TQ Delta, LLC v. ADTRAN, Inc., No. 1:14-cv-
`00954, Dkt. No. 1373 (Feb. 24, 2022) (Letter)
`
`Ex. 1033
`
`Hall-Ellis
`Declaration
`
`Declaration of Sylvia Hall-Ellis
`
`viii
`
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`DECLARATION OF RICHARD WESEL
`
`I, Richard Wesel, do hereby declare and say as follows:
`
`I.
`
`Introduction
`
`1.
`
`My name is Dr. Richard Wesel, and I have been retained as a
`
`technical expert by counsel for Petitioner CommScope, Inc. (“CommScope”) to
`
`address certain issues regarding U.S. Patent No. 7,836,381 (“the ’381 Patent”).
`
`2.
`
`I have personal knowledge of the facts contained in this Declaration,
`
`am of legal age, and am otherwise competent to testify.
`
`3.
`
`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 completely and truthfully with regard to the matters set forth herein.
`
`4.
`
`My opinions are based on my years of education, research, and
`
`experience, as well as my study of the relevant materials. A list of materials I
`
`considered is included at the beginning of this Declaration.
`
`5.
`
`I reserve all available rights to supplement this Declaration if further
`
`information becomes available, or if I am asked to consider additional information.
`
`This Declaration represents only those opinions I have formed to date.
`
`6.
`
`Further, I reserve all available rights to consider and comment on any
`
`additional expert statements or testimony of TQ Delta’s expert(s) in this matter.
`
`1
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`7.
`
`I am being compensated at my usual consulting rate of $600 per hour
`
`for my time spent working on issues in this matter. My compensation does not
`
`depend on the outcome of this matter or the opinions I express.
`
`II.
`
`Qualifications
`
`8.
`
`A true and correct copy of my curriculum vitae is attached as Ex.
`
`1004 to this Declaration.
`
`9.
`
`I have over 30 years of experience in communications and signal
`
`processing. I am a professor in the Electrical and Computer Engineering
`
`Department of UCLA as well as the Associate Dean for Academic and Student
`
`Affairs of the Henry Samueli School of Engineering and Applied Science. After
`
`receiving bachelors and master’s degrees in Electrical Engineering from MIT in
`
`1989, I worked at AT&T Bell Laboratories from 1989 to 1991 as a Member of
`
`Technical Staff performing research and development in telecommunications. I
`
`attended Stanford University from 1991 to 1996, receiving my Ph.D. in Electrical
`
`Engineering in 1996. Upon receiving my Ph.D. I joined the faculty of the UCLA
`
`Electrical Engineering Department, where I have been teaching and doing research
`
`on communications and signal processing for the last 24 years.
`
`10.
`
`I have extensive experience researching and teaching communications
`
`techniques including multi-carrier modulation, interleaving, and error control
`
`coding in general as well as Reed-Solomon coding in particular. My publications
`
`2
`
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`

`and patents are listed in my CV. I have published over 200 conference and journal
`
`publications, and I am the inventor on nine patents. I have received the National
`
`Science Foundation (NSF) CAREER Award and an Okawa Foundation award for
`
`research in information theory and telecommunications. I am a Fellow of the
`
`Institute of Electrical and Electronics Engineers (IEEE). I previously served as an
`
`Associate Editor for Coding and Coded Modulation for the IEEE Transactions on
`
`Communications. I currently serve as an Associate Editor for Coding and
`
`Decoding for the IEEE Transactions on Information Theory.
`
`11.
`
`I authored an Asilomar conference paper in 1995 entitled
`
`“Fundamentals of Coding for Broadcast OFDM” that discusses techniques for
`
`designing coding and modulation for multicarrier transmission with interleaving.
`
`My 1996 Ph.D. dissertation included the design of trellis codes for multicarrier
`
`transmission with interleaving. In a 1999 Communications Letter, I presented
`
`related results on trellis codes for multicarrier transmission with interleaving. In a
`
`2000 IEEE Transactions on Communications paper, I compared the performance
`
`of these new codes to Reed-Solomon codes used on multicarrier transmission with
`
`interleaving. I also authored several conference papers in the late 1990’s related to
`
`coding for multicarrier transmission with interleaving including “Joint Interleaver
`
`and Trellis Code Design,” “Periodic Symbol Puncturing of Trellis Codes,” and
`
`“Trellis Codes for Compound Periodic Gaussian Channels.”
`
`3
`
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`12.
`
`I authored the chapter entitled “Error Control” in the book Wireless
`
`Multimedia Communications: Networking Video, Voice, and Data in 1997, which
`
`discussed the concepts of Reed-Solomon codes and interleaving. This book also
`
`discusses multicarrier modulation in Section 3.4 and Section 5.2.
`
`13.
`
`I am an inventor on U.S. Patent No. 6,125,150 entitled “Transmission
`
`System using Code Designed for Transmission with Periodic Interleaving,” which
`
`discloses, among other things, error control techniques for multicarrier
`
`transmission with interleaving. I am also an inventor on U.S. Patent No. 6,158,041
`
`filed in October 1998 entitled “System and method for I/Q Trellis Coded
`
`Modulation” which also describes, among other things, error correction coding
`
`techniques for multicarrier transmissions using interleaving.
`
`III.
`
`Scope of the Engagement
`
`14.
`
`I have been retained by Goodwin Procter LLP on CommScope's
`
`behalf to provide various analyses and opinions. Among other tasks, I have been
`
`asked to address the technology claimed in the ’381 Patent and to evaluate
`
`whether certain claims of the ’381 Patent would have been obvious to a person of
`
`ordinary skill in the art.
`
`15. All of the opinions I express in this Declaration have been made from
`
`the standpoint of a person of ordinary skill in the relevant art at the time of the
`
`4
`
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`

`invention of the ’381 Patent, which I am informed is, for purposes of this matter,
`
`the earliest claimed priority date of October 12, 2004.
`
`16.
`
`I have been asked to identify the level of skill in the art pertinent to
`
`the ’381 Patent. It is my opinion that a person of ordinary skill in the art pertinent
`
`to the ’381 Patent would have had at least a Bachelor’s degree in electrical
`
`engineering, or a related field, and at least 6–7 years of experience in
`
`telecommunications or a related field; a master’s degree in electrical or computer
`
`engineering, or the equivalent, and at least 4–5 years of experience in
`
`telecommunications or a related field; or a Ph.D. in electrical or computer
`
`engineering, or the equivalent, with at least 1–2 years of experience in
`
`telecommunications or a related field. A person with a different degree but with
`
`additional relevant experience could still qualify if the additional experience
`
`compensates for the different educational background.
`
`17.
`
`I consider myself a person of ordinary skill in the art as of at least the
`
`earliest claimed priority date (October 12, 2004).
`
`18. My opinions are based on my experience and knowledge and the
`
`information I have reviewed as of the date of this Declaration. In connection with
`
`my analysis, I have reviewed the exhibits listed in the above list of exhibits, as well
`
`as each of the items referenced herein. My opinions directed to the invalidity of the
`
`challenged claims are based, at least in part, on the following prior art publications:
`
`5
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` “Mazzoni” (Ex. 1005), which is US. Patent No. 7,269,208, filed on
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`July 11, 2001 and issued on September 11, 2007;
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` “Fadavi-Ardekani” (Ex. 1006), which is U.S. Patent No. 6,707,822,
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`filed on January 7, 2000 and issued on March 16, 2004;
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` “VDSL1” (Ex. 1007), which is technical specification ETSI TS 101
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`270-2 put forth by the European Telecommunications Standards
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`Institute related to “Very High Speed Digital Subscriber Line
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`(VDSL).” This technical specification was published online by ETSI
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`on July 24, 2003. POSA’s at the time of this publication regularly
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`looked to publications from standards organizations, including ETSI,
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`for guidance. Thus, a POSA that was interested in VDSL
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`implementation would have looked to ETSI for publications on
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`technical specifications related to VDSL and would have found, and
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`relied upon, this specification.
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`IV.
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`Legal Standards Relied Upon
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`19.
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`For purposes of this Declaration, counsel has instructed
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`me to make the following assumptions:
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`20. Claims are construed from the perspective of a person of ordinary
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`skill in the art (“POSA”) as of the effective filing date of the patent application.
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`Persons of ordinary skill in the art are deemed to read the claims in the context of
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`the entire patent, including the specification and prosecution history. In other
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`words, the terms are not considered in a vacuum.
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`21.
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`It is my understanding that information that satisfies one of the
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`categories of prior art set forth in 35 U.S.C. § 102 may be used in an invalidity
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`analysis under §§ 102 or 103. If information is not properly classified as prior art
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`under one of the subsections of § 102 of the Patent Act, then it may not form the
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`basis of an anticipation or obviousness determination. It is also my understanding
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`that, for inter partes review, applicable prior art is limited to patents and printed
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`publications.
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`22.
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`I am also informed and understand that a patent claim is invalid under
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`35 U.S.C. § 103 if the differences between the invention and the prior art are such
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`that the subject matter as a whole would have been obvious at the time of the
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`invention to a person having ordinary skill in the art to which the subject matter
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`pertains. Obviousness, I am informed, is determined based on the scope and
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`content of the prior art, the differences between the prior art and the claim, the
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`level of ordinary skill in the art, and secondary indications of non-obviousness to
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`the extent they exist.
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`23.
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`I understand that whether there are any relevant differences between
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`the prior art and the claimed invention is to be analyzed from the view of a person
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`of ordinary skill in the art at the time of the invention. A person of ordinary skill in
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`the art is a hypothetical person who is presumed to be aware of all of the relevant
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`art at the time of the invention. The person of ordinary skill is not an automaton,
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`and may be able to fit together the teachings of multiple patents (or other printed
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`publications) by employing ordinary creativity and the common sense that familiar
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`items may have obvious uses in another context or beyond their primary purposes.
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`24.
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`In analyzing the relevance of the differences between the claimed
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`invention and the prior art, I understand that I must consider the impact, if any, of
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`such differences on the obviousness or non-obviousness of the invention as a
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`whole, not merely some portion of it. The person of ordinary skill faced with a
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`problem is able to apply his or her experience and ability to solve the problem and
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`also look to any available prior art to help solve the problem.
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`25.
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`I understand that an invention would have been obvious if a person of
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`ordinary skill in the art, facing the wide range of needs created by developments in
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`the field, would have seen an obvious benefit to the solutions tried by the patent
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`applicant. When there is a design need or market pressure to solve a problem and
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`there are a finite number of identified, predictable solutions, it would have been
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`obvious to a person of ordinary skill to try the known options. If a technique has
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`been used to improve one device, and a person of ordinary skill in the art would
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`recognize that it would improve similar devices in the same way, using the
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`technique would have been obvious.
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`26.
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`I understand that I do not need to look for precise teachings in the
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`prior art directed to the subject matter of the claimed invention. I understand that I
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`may consider the inferences and creative steps that a person of ordinary skill in the
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`art would have employed in reviewing the prior art at the time of the invention. For
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`example, if the claimed invention combines elements that were known in the prior
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`art and if the combination yields results that were predictable to a person of
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`ordinary skill in the art at the time of the invention, then this would make it more
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`likely that the claim was obvious. On the other hand, if the combination of known
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`elements yields unexpected or unpredictable results, or if the prior art teaches away
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`from combining the known elements, then this would make it more likely that the
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`claim that successfully combined those elements was not obvious. I understand
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`that hindsight must not be used when comparing the prior art to the invention
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`during an obviousness analysis.
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`27.
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`I understand that obviousness may be shown by demonstrating that it
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`would have been obvious to modify what is taught in a single piece of prior art to
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`create the patented invention. Obviousness may also be shown by demonstrating
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`that it would have been obvious to combine the teachings of more than one item of
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`prior art. I understand that a claimed invention may be obvious if some teaching,
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`suggestion, or motivation exists that would have led a person of ordinary skill in
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`the art to combine the invalidating references. I also understand that this suggestion
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`or motivation may come from sources such as explicit statements in the prior art,
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`or from the knowledge of a person having ordinary skill in the art. Alternatively,
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`any need or problem known in the field at the time and addressed by the patent