Trials@uspto.gov
`571-272-7822
`
`Paper 10
`Date: July 11, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LG ELECTRONICS, INC.,
`Petitioner,
`v.
`CONSTELLATION DESIGNS, LLC,
`Patent Owner.
`
`IPR2023-00228
`Patent 10,693,700 B1
`
`
`
`
`
`
`
`
`
`Before MIRIAM L. QUINN, BRENT M. DOUGAL, and
`MICHAEL T. CYGAN, Administrative Patent Judges.
`DOUGAL, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.4
`
`
`
`
`
`
`
`
`
`
`571-272-7822
`
`Paper 10
`Date: July 11, 2023
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`LG ELECTRONICS, INC.,
`Petitioner,
`v.
`CONSTELLATION DESIGNS, LLC,
`Patent Owner.
`
`IPR2023-00228
`Patent 10,693,700 B1
`
`
`
`
`
`
`
`
`
`Before MIRIAM L. QUINN, BRENT M. DOUGAL, and
`MICHAEL T. CYGAN, Administrative Patent Judges.
`DOUGAL, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314, 37 C.F.R. § 42.4
`
`
`
`
`
`
`
`
`
`
`
`IPR2023-00228
`Patent 10,693,700 B1
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`
`INTRODUCTION
`I.
`Background and Summary
`A.
`Petitioner, LG Electronics Inc., requests that we institute an inter
`partes review challenging the patentability of claims 1, 4, 6–11, 14, 16–21,
`24, and 26–30 (the “challenged claims”) of U.S. Patent 10,693,700 B1 (Ex.
`1001, “the ’700 patent”). Paper 2 (“Petition” or “Pet.”). Patent Owner,
`Constellation Designs, LLC, argues that Petitioner’s request is deficient and
`should not be granted. Paper 7 (“Preliminary Response” or “Prelim. Resp.”).
`Applying the standard set forth in 35 U.S.C. § 314(a), which requires
`demonstration of a reasonable likelihood that Petitioner would prevail with
`respect to at least one challenged claim, we deny the Petition and decline to
`institute an inter partes review.
`Related Matters
`B.
`The parties identify the following related district court litigation:
`Constellation Designs, LLC v. LG Electronics Inc. et al., No. 2:21-cv-00448
`(E.D. Tex.). Pet. 94–95; Paper 5, 1. Patent Owner also identifies the
`following related inter partes reviews: IPR2022-01482, IPR2022-01549,
`IPR2023-00229, IPR2023-00319, and IPR2023-00320. Paper 5, 1–2.
`The ’700 Patent
`C.
`The ’700 patent is directed to digital communication or transmission
`systems with “unequally spaced constellations.” Ex. 1001, 1:38–44. As
`background to the technology, “[a] digital communication system is used to
`transmit digital bits (sequences of 0s and 1s) from one device (a transmitter)
`to another (a receiver).” Ex. 2001 ¶ 11. “Each digital communication system
`has a measurable ‘capacity,’ which is the maximum amount of information
`that the system can reliably send over the channel.” Id. ¶ 14. The transmitter
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`maps each new bit sequence to constellation points. Id. ¶¶ 15, 18. “[A]
`‘constellation’ point is a carrier signal value (such as amplitude and/or
`phase) that can be used to represent a longer sequence of bits.” Id. The
`receiver in turn attempts to detect symbols that were received, from the
`transmitter, by mapping a received signal to a constellation. Ex. 1001, 1:44–
`46. The minimum distance (dmin) between constellation points at high signal-
`to-noise ratios (SNRs) correlates to the capacity of the constellation, and
`accordingly, many communication systems aim to maximize this value in
`order to maximize capacity of the system. Ex. 2001 ¶¶ 46–54. This is to
`decrease the risk that the noise in the signal makes the signal unreadable, i.e.
`decreases the risk that the system is unable to determine which signal value
`was intended between two adjacent signal values.
`As a simple illustration, Patent Owner’s declarant, Dr. Giuseppe
`Caire, provides the following example of a one-dimensional constellation,
`with bit values (constellation label) and signal amplitude values
`(constellation location):
`Constellation Label Constellation Location
`“00”
`0
`“01”
`.33
`“10”
`.66
`“11”
`1.0
`Ex. 2001 ¶ 29. An output based on this constellation, and including an
`illustration of signal noise, is reproduced below.
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`Id. ¶ 32. The above figure, provided by Dr. Caire, is a graph of the signal
`amplitude, in volts, over time. As can be seen above, “a time-dependent
`continuous waveform is shown in black including noise, the average of the
`time-dependent continuous waveform is shown in red, the output of the
`demodulator is shown as discrete time values in black, and the figure is
`again annotated with the corresponding bit sequence.” Id. Thus, it can be
`seen how each bit value (constellation label) corresponds to the signal
`amplitude value (constellation location) in wave form. The receiver, with
`information about the constellation, is thus able to determine the bit values
`communicated from the transmitter.
`As mentioned, the ’700 patent is directed to digital communication
`systems with “unequally spaced constellations.” Ex. 1001, 1:38–44. Rather
`than focusing on maintaining a minimum distance (dmin) between the signal
`values of the constellation, the ’700 patent attempts to provide “direct
`optimization of the constellation points of a communication system utilizing
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`a capacity approaching channel code, [that] can yield different constellations
`depending on the SNR for which they are optimized” Id. at 5:11–16. The
`’700 patent explains that “capacity optimized constellation at low SNRs are
`geometrically shaped constellations that can achieve significantly higher
`performance gains (measured as reduction in minimum required SNR) than
`constellations that maximize dmin.” Id. at 8:24–29. The ‘700 patent provides
`that “a constellation at one code rate can achieve gains that cannot be
`achieved at another code rate.” Id at 5:20-21. Dr. Caire provides one
`example of “a constellation optimized for a code rate of 1/2 may not have
`the same performance at a code rate of 2/3,” and “[i]nstead, a different
`constellation optimized for a code rate of 2/3 may perform better when the
`system is operating at a code rate of 2/3 than if the system used the
`constellation optimized for a code rate of 1/2.” Ex. 2001 ¶ 55.
`“Capacity measures that can be used in the selection of the location of
`constellation points include . . . parallel decode (PD) capacity and joint
`capacity.” Ex. 1001, 5:6–8. The “PD capacity of a channel can be viewed in
`terms of the mutual information between the output bits of the encoder (such
`as an LDPC encoder) at the transmitter and the likelihoods computed by the
`demapper at the receiver,” and it is “influenced by both the placement of
`points within the constellation and by the labelling assignment.” Id. at 6:64–
`7:3. Joint capacity describes “the achievable capacity between the input of
`the mapper on the transmit side of the link and the output of the channel
`(including for example AWGN and Fading channels).” Id. at 7:18–21.
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`
`Illustrative Claim(s)
`D.
`Of the challenged claims, claims 1, 11, and 21 are independent, and
`claim 1, reproduced below with emphasis added, is illustrative:
`A communication system, comprising:
`1.
`a receiver capable of receiving signals via a communication
`channel having a channel signal-to-noise ratio (SNR), wherein the
`receiver comprises:
`a demodulator capable of demodulating a received signal
`into a demodulated signal;
`a demapper, coupled to the demodulator, capable of
`determining likelihoods using the demodulated signal and a
`multidimensional symbol constellation selected from a plurality
`of multidimensional symbol constellations; and
`a decoder, coupled to the demapper, capable of using the
`likelihoods determined by the demapper to provide a sequence
`of received bits based upon a low density parity check (LDPC)
`code;
`wherein the plurality of multidimensional symbol constellations
`comprises a plurality of different non-uniform multidimensional
`symbol constellations having the same number of constellation points,
`where the constellation points are non-uniformly spaced in each
`degree of freedom available to the multidimensional symbol
`constellations;
`wherein the receiver is capable of selecting an LDPC code rate
`and multidimensional symbol constellation pair from a plurality of
`predetermined LDPC code rate and multidimensional symbol
`constellation pairs, where each of the plurality of different non-
`uniform multidimensional symbol constellations is only included in
`one of the plurality of predetermined LDPC code rate and
`multidimensional symbol constellation pairs.
`Ex. 1001, 13:43–14:5.
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`
`DVB-T
`
`Sommer
`
`DVB-S2
`
`DVB-TS
`
`DeGaudenzi
`
`Turbo-coded APSK modulations
`design for satellite broadband com-
`munications, May 2006
`
`Evidence
`E.
`Petitioner’s grounds of unpatentability rely on the following evidence:
`Name
`Non-Patent Literature
`Author(s) Exhibit
`ETSI EN
`Digital Video Broadcasting (DVB);
`300 744
`Framing structure, channel coding
`V1.2.1
`and modulation for digital
`terrestrial television, July 1999
`Signal Shaping by Non-Uniform
`QAM for AWGN Channels and
`Applications Using Turbo Coding,
`Jan. 2000
`Digital Video Broadcasting (DVB);
`Second generation framing
`structure, channel coding and
`modulation systems for
`Broadcasting, Interactive Services,
`News Gathering and other
`broadband satellite applications,
`June 2006
`Digital Video Broadcasting (DVB);
`Specification for System Software
`Update in DVB Systems,
`October 2002
`
`1005
`
`1006
`
`1009
`
`1013
`
`1014
`
`D. Sommer,
`G.P.
`Fettweis
`
`ETSI EN
`302 307
`V1.1.2
`
`ETSI TS
`102 006
`V1.2.1
`
`R. De
`Gaudenzi,
`A.G.
`Fabregas, A.
`Martinez
`
`
`
`Name
`Eroz
`
`Patent Document
`US Patent Pub. 2004/0054960 (Mar. 18, 2004)
`
`Exhibit
`1004
`
`7
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`Asserted Grounds
`F.
`Petitioner asserts the following grounds of unpatentability (Pet. 2),
`supported by the declaration of Dr. Bertrand Hochwald (Ex. 1003):
`Claim(s) Challenged
`35 U.S.C. §
`Reference(s)/Basis
`1, 8, 10, 11, 18, 20, 21, 28, 30
`103(a)1
`Eroz, DVB-T
`1, 6, 8, 10, 11, 16, 18, 20, 21, 26,
`Eroz, DVB-T,
`103(a)
`28, 30
`DeGaudenzi
`4, 14, 24
`103(a)
`Eroz, DVB-T, Sommer
`Eroz, DVB-T, Sommer,
`4, 14, 24
`103(a)
`DeGaudenzi,
`7, 17, 27
`103(a)
`Eroz, DVB-T, DVB-S2
`Eroz, DVB-T, DVB-S2,
`7, 17, 27
`103(a)
`DeGaudenzi
`9, 19, 29
`103(a)
`Eroz, DVB-T, DVB-TS
`Eroz, DVB-T, DVB-TS,
`9, 19, 29
`103(a)
`DeGaudenzi
`
`
`
`II. ANALYSIS
`Legal Standards
`A.
`Petitioner bears the burden to demonstrate unpatentability. Dynamic
`Drinkware, LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
`2015). At this preliminary stage, we determine whether the information
`presented in the Petition shows a reasonable likelihood that Petitioner would
`prevail in establishing that at least one of the challenged claims would have
`been obvious over the proposed combinations of prior art. See 35 U.S.C.
`§ 314(a).
`
`
`1 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, 125
`Stat. 284, 285–88 (2011), revised 35 U.S.C. § 103 effective March 16, 2013.
`We refer to the pre-AIA version of § 103.
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`A claim is unpatentable as 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, 406 (2007)
`(quoting 35 U.S.C. § 103(a)). We resolve the question of obviousness based
`on underlying factual determinations, including: (1) the scope and content of
`the prior art; (2) any differences between the prior art and the claims; (3) the
`level of skill in the art; and (4) when in evidence, objective indicia of
`nonobviousness. See Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`We apply these principles to the Petition’s challenges.
`Level of Ordinary Skill in the Art
`B.
`We review the grounds of unpatentability in view of the
`understanding of a person of ordinary skill in the art at the time of the
`invention. Id. at 13, 17. Petitioner asserts that a person of ordinary skill in
`the art
`would have had at least a Master’s degree in an academic area
`emphasizing electrical engineering or a similar discipline, and at
`least two years of experience in the field working with, teaching,
`or researching communication systems including the use of con-
`stellations in transmitting signals between devices. EX1003,
`¶¶21-23. Superior education could compensate for a deficiency
`in work experience, and vice-versa. Id.
`Pet. 9.
`Though Patent Owner makes arguments with reference to “a person of
`ordinary skill,” Patent Owner does not directly address or contest
`Petitioner’s level of skill. See e.g., Prelim. Resp. 31. We are persuaded, on
`the present record, that Petitioner’s proposal is consistent with the problems
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`and solutions in the ’700 patent and prior art of record. We adopt
`Petitioner’s definition of the level of skill for the purposes of this Decision.
`C. Claim Construction
`In inter partes review, we construe claims using the same claim
`construction standard that would be used to construe the claim in a civil
`action under 35 U.S.C. § 282(b), including construing the claim in
`accordance with the ordinary and customary meaning of such claim as
`understood by one of ordinary skill in the art and the prosecution history
`pertaining to the patent. 37 C.F.R. § 42.100(b) (2022).
`Petitioner asserts that no terms require express construction. Pet. 9.
`Likewise, Patent Owner does not argue that any terms require express
`construction. See generally, Prelim. Resp.
`We determine that no terms need to be construed. See Realtime Data,
`LLC v. Iancu, 912 F.3d 1368, 1375 (Fed. Cir. 2019) (“The Board is required
`to construe ‘only those terms . . . that are in controversy, and only to the
`extent necessary to resolve the controversy.’” (quoting Vivid Techs., Inc. v.
`Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999)).
`35 U.S.C. § 103(a)
`D.
`The Petition sets forth two grounds asserting that independent claims
`1, 11, and 21 would have been obvious to one of ordinary skill in the art.
`Pet. 2, 10–66. The Petition relies on Eroz and DVB-T for the first ground.
`Id. at 10–66. For the second ground, the Petition relies on Eroz and DVB-T
`in the same manner as the first, but adds DeGaudenzi to their argument over
`the last limitation of claim 1. 2 Id. at 38, 49–66.
`
`
`2 The Petition only refers to claim 1, however, this is likely a typographical
`error as independent claims 11 and 21 both include a similar limitation.
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`Among other arguments, Patent Owner argues that the Petition fails to
`show a reasonable likelihood of obviousness with respect to the last
`limitation of the independent claims. Prelim. Resp. 31–32, 49–57.
`In our below analysis, we first review the prior art and then discuss
`the parties’ arguments with respect to the last limitation of the independent
`claims. In our analysis, we determine that Petitioner has not established a
`reasonable likelihood of succeeding in showing that the combination of Eroz
`and DVB-T, with or without DeGaudenzi, teaches or renders obvious the
`last limitation of independent claims 1, 11, and 21. Thus, Petitioner has not
`established a reasonable likelihood of succeeding in showing that any of the
`claims are unpatentable. 3
`Eroz
`1.
`Eroz is a U.S. Patent Publication titled “Method and System for
`Providing Low Density Parity Check (LDPC) Encoding” Ex. 1004, code
`(54). Eroz describes a non-hierarchical digital communications system in
`which a transmitter utilizes a traditional equally spaced constellation coupled
`with LDPC codes. Ex. 1004 ¶¶ 33, 69. Eroz teaches a point-to-point (i.e.,
`
`
`3 Petitioner originally presented a stipulation not to pursue in a parallel
`proceeding the same grounds or any grounds that could have reasonably
`been raised before the PTAB. See Pet. 93–94. However, Petitioner has
`effectively withdrawn this stipulation by asserting that they are basing their
`invalidity arguments in the related District Court proceeding on
`DeGaudenzi. Ex. 2020. Because we decline to institute, it is unnecessary for
`us to perform an analysis under Apple Inc. v. Fintiv, Inc., IPR2020-00019,
`Paper 11 at 6 (PTAB Mar. 20, 2020). However, any further review of this
`case would likely require further analysis under Fintiv based on the
`withdrawal of the stipulation.
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`one-to-one) digital communication system, in which a single transmitter
`communicates to a single receiver. Id. ¶¶ 30, 33.
`DVB-T
`2.
`DVB-T is a standard document titled “Digital Video Broadcasting
`(DVB); Framing structure, channel coding and modulation for digital terres-
`trial television.” Ex. 1005, 1. DVB-T describes hierarchical modulation, in
`which two data streams having different transmission performance can be
`made available on a single TV frequency channel. Id. at 9. The hierarchical
`modulation can provide a lower-quality fallback signal in the case of weak
`signals, which allows for a graceful degradation instead of a complete signal
`loss. Id. Further, hierarchical modulation also allows for varying levels of
`quality of service. Id.
`DeGaudenzi
`3.
`DeGaudenzi is an article titled “Turbo-coded APSK modulations de-
`sign for satellite broadband communications.” Ex. 1014, 261. DeGaudenzi
`describes Amplitude Phase Shift Keying (APSK) constellations, in which
`the constellation point locations are indicated by two signal characteristics,
`amplitude and phase. Id. at 263–264. “Because both amplitude and phase are
`used to indicate a constellation point’s location, in APSK, different constel-
`lation points can have the same amplitude but still be at different locations
`because they have different phases.” Ex. 2001 ¶ 84; Ex. 2002 ¶ 15. As part
`of its optimization process, DeGaudenzi places constraints on the available
`locations including constraints on the number of constellation points located
`at each ring/amplitude and the phase aspect for each of those locations. Ex.
`1014, 262–263. DeGaudenzi requires that for each ring/amplitude, the con-
`stellation points be uniformly spaced in phase. Id. at 264
`
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`Analysis of the Claims
`4.
`Independent claim 1 includes the following limitation:
`wherein the receiver is capable of selecting an
`LDPC code rate and multidimensional symbol constella-
`tion pair from a plurality of predetermined LDPC code rate
`and multidimensional symbol constellation pairs, where
`each of the plurality of different non-uniform multidimen-
`sional symbol constellations is only included in one of the
`plurality of predetermined LDPC code rate and multidi-
`mensional symbol constellation pairs.
`Ex. 1001, 13:65–14:5. Independent claims 11 and 21 include a similar
`limitation. Id. at 15:65–16:5, 17:60–67. Because all of the challenged
`dependent claims depend from either of claim 1, 11, or 21, this limitation is
`relevant to all challenged claims.
`Eroz and DVB-T
`a)
`The Petition argues, and Patent Owner does not contest, that the
`combination of Eroz and DVB-T teaches a “receiver . . . capable of selecting
`an LDPC code rate and multidimensional symbol constellation pair from a
`plurality of predetermined LDPC code rate and multidimensional symbol
`constellation pairs,” as required by claim 1. Pet. 37–38.
`Concerning the second half of the limitation (above in italics),
`Petitioner argues that “[w]hile a plurality of constellation and code rate pairs
`can be used in a communication system, in some cases, an optimized set of
`constellation-code rate pairs would have been obvious and desirable to use.”
`Id. at 38 (citing Hochwald Decl. ¶ 123). The Petition asserts that “while it
`was known in the art that a constellation can be utilized with different code
`rates and, more generally, can be configured in various suitable ways,
`configuring constellation and code rate pairs that have been optimized for
`SNR or spectral efficiency would have been desirable so that inferior SNR
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`or inefficient constellation and code rate pairs are not utilized in EDC’s
`system.” Id. The Petition further asserts that as a result of this optimization,
`“each of the plurality of different nonuniform multidimensional symbol
`constellations is only included in one of the plurality of predetermined
`LDPC code rate and multidimensional symbol constellation pairs.” Id.
`(emphasis omitted).
`Patent Owner argues that “the Petition fails to even attempt to identify
`this limitation in either Eroz or DVB-T,” but instead “provides a number of
`conclusory statements that it would be obvious to optimize each
`constellation.” Prelim. Resp. 3. We agree. We first note that the Petition
`does not argue that Eroz or DVB-T, alone or in combination, teaches or
`renders obvious the noted limitation. Rather, the Petition argues that the
`combination of Eroz and DVB-T needs to be further modified, or “optimized
`for SNR or spectral efficiency,” in order to achieve the limitation. Pet. 38.
`Petitioner’s argument is largely conclusory, and does not sufficiently
`explain why it would have been obvious to modify or optimize the
`combination of Eroz and DVB-T to arrive at the claimed invention. The
`Petition asserts that limiting each constellation to only one constellation-
`code rate pair would be “desirable so that inferior SNR or inefficient
`constellation and code rate pairs are not utilized in [the combined Eroz and
`DVB-T] system” without any cited factual evidence to support this
`explanation. Pet. 38. Further, the Petition does not discuss or describe how
`the optimization would work in view of the teachings of Eroz or DVB-T,
`other than to merely assert that optimization would result in the claimed
`invention. This is insufficient.
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`Petitioner does cite to its declarant for support, but the declarant
`makes identical statements as the Petition without further explanation.
`Compare Pet. 38–39, with Ex. 1003 ¶¶ 122–123. Because the declarant
`testimony, like the Petition, is conclusory in nature with respect to the
`alleged obviousness of the limitation (i.e., “where each of the plurality of
`different non-uniform multidimensional symbol constellations is only
`included in one of the plurality of predetermined LDPC code rate and
`multidimensional symbol constellation pairs”), it is entitled to little weight.
`Xerox Corp. v. Bytemark, Inc., IPR2022-00624, Paper 9, 15 (August 24,
`2022) (precedential) (holding declaration is entitled to little weight when it
`contains an exact restatement of the petition’s conclusory arguments without
`any additional supporting evidence or reasoning). We further note that page
`38 of the Petition provides no citations, other than to their declarant, in
`support of their assertions as to why it would have been obvious to optimize
`the combination of Eroz and DVB-T to achieve the claimed limitation. In
`any event, even if we were to credit Dr. Hochwald that such a conclusion is
`evident to a person of ordinary skill in the art, the Petition lacks sufficient
`reasoning that would inform how the desire to optimize the constellation-
`rate pairs would have resulted in the claimed limitation. Personal Web
`Techs., LLC v. Apple, Inc., 848 F.3d 987, 994 (Fed. Cir. 2017) (holding
`obviousness determination to be improper where the record lacked a “clear,
`evidence-supported account” of “how the combination” would work).
`The Petition later cites to the ’700 patent for the general proposition
`“that individual constellations are designed and optimized” for capacity. Pet.
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`39 (citing Ex. 1001, 1:52–54). 4 However, this does not explain why or how
`it would have been obvious to limit each constellation to only one
`constellation-code rate pair as required by the claim. See id.
`Moreover, even if we accept Petitioner’s explanation, it does not limit
`a given constellation from being assigned to more than one constellation-
`code rate pair. Rather, Petitioner’s explanation simply excludes “inefficient
`constellation and code rate pairs” from being utilized, not excluding an
`efficient constellation from being paired with multiple code rates. As the
`claims require that a given constellation cannot be in more than one
`constellation-code rate pairing, this explanation is insufficient.
`Relatedly, Patent Owner explains that Eroz utilizes a “single […]
`uniform constellation for all code rates,” while DVB-T teaches selecting
`between “two […] non-uniform constellations,” each requiring a “high
`priority code rate” and a “low priority code rate,” wherein each code rate can
`be “any of five different code rate values.” Id at 52 (citing Ex. 1005, 9, 31–
`33). Even when optimized, it is unclear why Eroz and DVB-T’s modified
`system would result in each constellation being only included in one of the
`plurality of code rate and constellation pairs. DVB-T on its face suggests
`each constellation is paired with two different code rates and Eroz pairs a
`single constellation with multiple code rates. Thus, it is unclear how or why
`the optimized combination results in a plurality of code rate and
`constellation pairs, where each constellation is only included in one of the
`plurality.
`
`
`4 The Petition also points generally to DeGaudenzi and their discussion of
`the second ground for support. Pet. 39 (“The obviousness of such a system is
`corroborated in DeGaudenzi, as described in more detail below.”) We
`address Petitioner’s arguments surrounding DeGaudenzi in the next section.
`
`16
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`IPR2023-00228
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`
`Thus, we agree with Patent Owner that Petitioner’s argument is
`conclusory and does not sufficiently explain why it would have been
`obvious to a person of ordinary skill in the art to modify the combination of
`Eroz and DVB-T to arrive at the claimed invention. For these reasons,
`Petitioner has not established a reasonable likelihood of succeeding in
`showing that the combination of Eroz and DVB-T, teaches or renders
`obvious the last limitation of independent claims 1, 11, and 21.
`Patent Owner also argues that “modifying a constellation to improve
`the efficiency of one data stream [i.e., the high code rate of DVB-T], the
`efficiency of the other data stream [i.e., the low code rate of DVB-T] will be
`reduced.” Id. at 55; see also Ex. 2001 ¶ 97. Thus, Petitioner’s asserted
`obviousness rationale (i.e., “configuring constellation and code rate pairs
`that have been optimized for SNR or spectral efficiency would have been
`desirable so that inferior SNR or inefficient constellation and code rate pairs
`are not utilized in EDC’s system”) does not account for a hierarchical
`constellation, as in DVB-T, where “there are two code rates that must be
`defined, the high priority code rate, and the low priority code rate.” Id. at
`55–56. Thus, as mentioned previously, Petitioner’s argument fails to address
`the actual teachings of the references, or even fully explain their rationale in
`view of the teachings of DVB-T.
`Based on this additional reason, Petitioner has also not established a
`reasonable likelihood of succeeding in showing that the combination of Eroz
`and DVB-T, teaches or renders obvious the last limitation of independent
`claims 1, 11, and 21
`
`17
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`Patent 10,693,700 B1
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`
`Eroz, DVB-T, and DeGaudenzi
`b)
`Petitioner also argues that the last limitation of the independent claims
`would have been obvious in view of Eroz, DVB-T, and DeGaudenzi. Pet.
`60–62. Under this alternative ground, Petitioner asserts that “DeGaudenzi
`discloses optimizing the spectral efficiency or SNR of non-uniform symbol
`constellations by optimizing their parameters such as the location of the
`constellation points and the code rates” and that “as shown in DeGaudenzi’s
`Table I, the spectral efficiency/SNR of a number of 32-ary APSKs
`[(constellations)] has been optimized” such that “each of the listed
`constellations is a unique non-uniform constellation.” Id. (citing e.g., Ex.
`1014, 268, 271, 279). Petitioner concludes that “[i]t would have been
`obvious to a POSITA that when the teachings of DeGaudenzi (such as Table
`I) are incorporated into [the combined Eroz and DVB-T] system, each of the
`plurality of different non-uniform multidimensional symbol constellations
`would only be included in one of the plurality of predetermined LDPC code
`rate and multidimensional symbol constellation pairs.” Id. at 61.
`Petitioner states that “DeGaudenzi’s teachings are broad, are not
`limited to APSKs, and can be applied to LDPC encoded signals and QAM
`constellations.” Id. (citing Ex. E1014, 262–264). Thus, Petitioner asserts that
`“in the combination of [Eroz, DVB-T,] and DeGaudenzi, a table similar to
`DeGaudenzi’s Table I but with optimized 16-QAM or 64-QAM
`constellations and corresponding parameters (e.g., code rate, α, spectral
`efficiency) would have been provided” and that “in such a table, an LDPC
`code rate-constellation pair of non-uniform-16-QAM with α=2 and code rate
`that is optimized for a particular spectral efficiency/SNR would similarly
`
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`IPR2023-00228
`Patent 10,693,700 B1
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`have only been included in one of the plurality of predetermined LDPC code
`rate and multidimensional symbol constellation pairs.” Id. at 62.
`In response, Patent Owner correctly argues that the Petition fails to
`discuss how DeGaudenzi’s teachings from a non-hierarchical system would
`apply to DVB-T’s hierarchical system relied on in the combination by
`Petitioner. Prelim. Resp. 58–59. Patent Owner notes that “De Gaudenzi
`provides no suggestion or teaching whatsoever of how to optimize a
`hierarchical modulation system to improve capacity, where points represent
`multiple data streams and where multiple code rates can be used with a
`single constellation.” Id. at 59 (citing Ex. 2001 ¶ 47).
`Patent Owner’s argument is supported by the testimony of Dr. Guillén
`i Fàbregas, one of the authors of DeGaudenzi, who states “our optimization
`process only considered non-hierarchical APSK constellations in which a
`single data stream is represented and which only has one code rate
`associated with it at any one time,” and “it is not clear or straightforward
`how [anyone could] apply the techniques I disclosed in De Gaudenzi to a
`hierarchical system.” Ex. 2002 ¶ 27. Patent Owner’s declarant further
`explains: “my techniques were directed towards improving joint capacity
`for a constellation representing a single data stream that could only be used
`with a single code rate at any one time and could not be used with a
`hierarchical constellation having two code rates,” such as relied on in DVB-
`T. Id.
`
`Patent Owner also correctly argues that DeGaudenzi’s optimization
`teachings are not readily applicable to a QAM constellation. Prelim. Resp.
`62–65. Patent Owner’s argument, supported by declarant testimony, explains
`that DeGaudenzi optimizes a uniform phase and varying ring ratio while in
`
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`IPR2023-00228
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`the QAM constellations of DVB-T it is taught to “modulate (varies) the
`amplitude of two components of a sinusoid (the in-phase and quadrature
`components) that are offset in phase by 90 degrees.” Id. at 62. Patent
`Owner’s declarant states that “it is not clear how to apply the teachings of
`uniform phase and varying ring ratio [in DeGaudenzi] to a rectangular
`QAM” in DVB-T. Ex. 2002 ¶ 31. Patent Owner’s declarant further explains
`that in contrast to DeGaudenzi, there is no ring ratio to optimize or phase to
`maintain as uniform in a QAM constellation. Id.
`As with the initial ground, we agree with Patent Owner that
`Petitioner’s argument here is largely conclusory and does not sufficiently
`explain how or why it would have been obvious to combine Eroz, DVB-T,
`and DeGaudenzi to arrive at the claimed invention, including how to apply
`Table I, which lists a single code rate per APSK constellation, to a
`constellation that requires two different code rates (i.e., a high priority code
`rate and a low priority code rate). Moreover, as Patent Owner persuasively
`states, “[e]ven if a person of ordinary skill in the art were to try to combine
`De Gaudenzi with the Eroz and DVB-T combination, the Petition has failed
`to explain how they could possibly derive each constellation from two
`respective code rates using the teachings of De Gaudenzi […, or] recognize
`that each of the DVB-T constellations requires two code rates, rather than
`DeGaudenzi’s one code rate[…, and thus] a person of ordinary skill in t
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