`
`Triais@usptio. voy
`
`571.272.7822
`
`Paper No. 12
`Entered: October 31, 2022
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`COMMSCOPE,INC,
`Petitioner,
`
`V.
`
`TQ DELTA, LLC,
`Patent Owner.
`
`IPR2022-00833
`Patent 9,485,055 B2
`
`Before JEAN R. HOMERE, LYNNE E. PETTIGREW,and KARA L.
`SZPONDOWSKL, Administrative Patent Judges.
`
`HOMERE,Administrative Patent Judge.
`
`DECISION
`Denying Institution of /nter Partes Review
`3S US.C. $ 314
`
`
`
`IPR2022-00833
`Patent 9,485,055 B2
`
`I.
`
`INTRODUCTION
`
`A. Background and Summary
`
`CommScope,Inc. (“Petitioner”)! filed a Petition requesting inter
`
`partes review of claims 1, 4, 5, 7, 9-11, 14, 15, 17, 19, and 20 (“the
`
`challenged claims”) of U.S. Patent No. 9,485,055 B2 (Ex. 1001, “the ’055
`
`patent”). Paper 2 (“Pet.”), 1. TQ Delta, LLC. (“Patent Owner’) filed a
`
`Preliminary Response. Paper 8 (“Prelim. Resp.”). Pursuant to our
`
`authorization, Petitioner filed a Reply (Paper 9, “Reply’’), and Patent Owner
`
`filed a Sur-reply (Paper 11, “Sur-reply”’).
`
`Pursuant to 37 C.F.R. § 42.4(a), we have the authority to determine
`
`whetherto institute review. Under 35 U.S.C. § 314(a), an inter partes
`
`review may notbe instituted unless the information presented in the petition
`
`“showsthat there is a reasonable likelihood that the petitioner would prevail
`
`with respect to at least 1 of the claims challenged in the petition.” See 37
`
`C.F.R. § 42.108. For the reasons expressed below, we determinethat, on
`
`this record, Petitioner has not established a reasonable likelihood thatit
`
`would prevail with respect to at least one of the challenged claims of the
`
`°055 patent. Accordingly, we do notinstitute an inter partes review asto the
`
`challenged claims on the grounds of unpatentability presented.
`
`' Petitioner identifies itself as well as CommScope Holding Company,Inc.
`as real parties-in-interest. Pet. 80-81.
`? Patent Owneridentifies itself as the real-party-in-interest. Paper 5, 1.
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`B. Related Matters
`
`The parties indicate that the ’055 patent is involved in the following
`
`proceedings:
`
`TO Delta, LLC v. Nokia, Inc., Case No. 2:21-cv-00309 (E.D. Tex.),
`
`filed August 13, 2021. Pet. 81; Paper 5, 1; Paper 6, 3;
`
`TO Delta, LLC v. CommScope Holding Co., Case No. 2:21-cv-003010
`
`(E.D. Tex.), filed August 13, 2021 (the “Texas case”). Pet. 81; Paper 5, 1;
`
`Paper 6, 3; see also Ex. 2002 (District Court Consolidation Order)
`
`(consolidated the Nokia case? into the Texascase).
`
`C. The '055 Patent
`
`The °055 patent relates to a method and system for retransmitting
`
`packets in a communications system involving digital subscriber line (DSL)
`
`technology. Ex. 1001, 1:28—33, 2:28-33, 8:66—-9:4. Because packet
`
`retransmission reduceserror but increases latency, the system allows low
`
`packet error rate (PER) packets to be retransmitted using error control,
`
`whereas low-latency packets are not retransmitted.
`
`/d. at 2:1-12. As shown
`
`in Figure 1 below, the ’055 patent describes using transceiver (200, 300)
`
`including a transmitter and a receiver having commoncircuitry (e.g.,
`
`retransmission buffer 250, 350) to facilitate retransmission of low PER
`
`packets.
`
`/d. at 9:64—10:16.
`
`3 TQ Delta sued Nokia on various patents in 7O Delta, LLC v. Nokia Corp.,
`Case No. 2:21-cv-00309 (E.D. Tex.), filed August 13, 2021 (the “Nokia
`case”’).
`
`
`
`IPR2022-00833
`
`Patent 9,485,055 B2
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`Figure 1, reproduced above, depicts transceiver 200 transmitting
`
`packet information including quality of service (QOS) metrics (e.g. latency
`
`and PER) via communications channel 10 to receiving transceiver 300 for
`
`possible retransmission. /d. at 1:28—33. In particular, upon determining
`
`from a packet headerfield received from a higher layer of a communication
`
`device that the underlying packet has a low PER(1.e., re-transmittable type
`
`packet), transceiver 200 appends a sequence ID (SID)thereto, stores the
`
`packet in retransmission buffer 250, and forwards the packet to transceiver
`
`300, which in turn retransmits the packet.
`
`/d. at 1:44—54, 2:8-12, 11:25-31,
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`12:8-15, 12: 40-53, 21:19-27. Conversely, upon identifying the packet as
`
`having a low latency, transceiver 200 simply transmits the packet without
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`attaching a SID thereto so that transceiver 300 forwards the packet to an
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`upper layer for processing without retransmission.
`
`/d. at 21:12-18.
`
`D. Illustrative Claim
`
`Of the challenged claims, claims 1 and 11 are independent. Claim | is
`
`illustrative and is reproduced below:
`
`A method of packet retransmission, in a transceiver,
`comprising:
`
`transmitting, by the transceiver,a first type of packet; and:
`
`transmitting, by the transceiver, a second type of packet,
`
`wherein the first type of packet is stored in a retransmission
`buffer after transmission and the second type of packetis not stored in
`a retransmission buffer after transmission,
`
`wherein the first and second types of packet comprise a header
`field that indicates whether a transmitted packetis a first type of
`packet or a second type of packet, and
`
`wherein the headerfield of the first type of packet comprises a
`sequence identifier (SID) that is incremented after the first type of
`packetis transmitted and the headerfield of the second type of packet
`does not comprise the SID ofthe first type of packet.
`
`Ex. 1001, 23:65—24:14.
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`E. Asserted Prior Art
`
`US 2005/0036497 Al_|Feb. 17, 2005 1004
`
`
`
`Reynders Ethernet Networking,|2003 1005
`
`Comments (“RFC”)|Information Sciences|Sept. 1981 1006
`
`
`Practical TCP/IP and
`
`pp. 2-324.
`Internet Protocol;
`Request for
`
`791
`Institute (ISI
`Transmission Control
`
`
`
` 1,
`
`RFC 793
`RFC 768
`
`Protocol: ISI
`User Datagram
`Protocol:ISI
`
`Sept. 1981
`Aug. 1980
`
`1007
`1008
`
`F’. Asserted Grounds of Unpatentability
`
`Petitioner asserts that the challenged claims are unpatentable on the
`
`following grounds:
`
`
`
`
`
`5, 10, 11, 15, 20
`Kawakami
`
`
`
`
`1,4, 5, 7,9, 10, 11, 14,
`
`Reynders
`103(a)
`15, 17, 19, 20
`
`1,4, 5,7, 9, 10, 11, 14,
`15,17, 19, 20
`RFC 791, RFC 793, RFC 768
`
`* Becausethe claimsat issue have an effective filing date prior to
`March 16, 2013, the effective date of the applicable provisions of the Leahy-
`Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284 (2011)
`(“ATA”), we apply the pre-AIA version of 35 U.S.C. §§ 102 and 103 in this
`Decision.
`
`
`
`IPR2022-00833
`Patent 9,485,055 B2
`
`Il.
`
`DISCUSSION
`
`A. Claim Construction
`
`Weapply the same claim construction standard that would be used in
`
`a civil action under 35 U.S.C. § 282(b), following the standard articulated in
`
`Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc). 37 C.F.R.
`
`§ 42.100(b). In applying such standard, claim terms are generally given
`
`their ordinary and customary meaning, as would be understoodby a person
`
`of ordinary skill in the art, at the time of the invention and in the context of
`
`the entire patent disclosure. Phillips, 415 F.3d at 1312-13. “In determining
`
`the meaning of the disputed claim limitation, we look principally to the
`
`intrinsic evidence of record, examining the claim languageitself, the written
`
`description, and the prosecution history, if in evidence.” DePuy Spine, Inc.
`
`v. Medtronic Sofamor Danek, Inc., 469 F.3d 1005, 1014 (Fed. Cir. 2006)
`
`(citing Phillips, 415 F.3d at 1312-17).
`
`Petitioner proposes to construe “transceiver” as a “communications
`
`device capable of transmitting and receiving data wherein the transmitter
`
`portion and receiver portion share at least some commoncircuitry”
`
`according to the claim construction order issued by the District Court of
`
`Delaware. Pet. 11 (citing Ex. 1021).
`
`Patent Owner doesnot dispute the proposed claim construction inits
`
`Preliminary Response. Prelim. Resp. 25. Therefore, for purposesof this
`
`Decision, we adopt Petitioner’s construction of “transceiver,” which is
`
`consistent with the district court’s claim construction order, and apply it in
`
`our analysis below. See Realtime Data, LLC v. lancu, 912 F.3d 1368, 1375
`
`
`
`IPR2022-00833
`Patent 9,485,055 B2
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`(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))).
`
`B. Level of Ordinary Skill in the Art
`
`In determining the level of ordinary skill in the art, various factors
`
`may be considered, including the “type of problems encounteredin theart;
`
`prior art solutions to those problems; rapidity with which innovationsare
`
`made; sophistication of the technology; and educational level of active
`
`workersin the field.” Jn re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995)
`
`(internal quotation andcitation omitted). In that regard, Petitioner argues
`
`that a person with ordinary skill in the art (POSITA)at the time of the ’055
`
`patent
`
`would have possessed a bachelor’s degreein electrical or computer
`engineering, or the equivalent, and at least 5—6 years of experience; a
`master’s degree in electrical or computer engineering, or the
`equivalent, and at least 2-3 years of experience; or a Ph.D. in
`electrical or computer engineering, or the equivalent, with at least 1—2
`years of experience.
`
`Pet. 10 (citing Ex. 1003 § 37). Patent Owner doesnot specifically address
`
`the level of ordinary skill in the art asserted by Petitioner. See generally
`
`Prelim. Resp. On this record, Petitioner’s undisputed assessment of a person
`
`of ordinary skill in the art appears to be consistent with the level of ordinary
`
`skill in the art at the time of the invention as reflected in the prior art in the
`
`instant proceeding. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`Cir. 2001). Therefore, for purposes of this Decision, we adoptPetitioner’s
`
`assessment, which is consistent with the 055 patent and the asserted prior
`
`art, and we apply it in our analysis below.
`
`C. Obviousness over Kawakami
`
`Petitioner asserts that claims 1, 5, 10, 11, 15, and 20 are unpatentable
`
`under 35 U.S.C. § 103(a) as obvious over Kawakami. Pet. 31-43. Patent
`
`Owner opposes. Prelim. Resp. 26—33, 37-40.
`
`Based on the evidencein this record, we determine that Petitioner has
`
`not established that there is a reasonable likelihood that Petitioner would
`
`prevail with respect to this ground of unpatentability. In our discussion
`
`below, we address the parties’ contentions in turn.
`
`1.
`
`Principles ofLaw
`
`A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
`
`between the claimed subject matter and the prior art are such that the subject
`
`matter, as a whole, would have been obviousat the time the invention was
`
`madeto a person having ordinary skill in the art to which said subject matter
`
`pertains. See KSR Int’] Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).
`
`The question of obviousnessis resolved on the basis of underlying factual
`
`determinations, including: (1) the scope and contentof the priorart; (2) any
`
`differences between the claimed subject matter and the prior art; (3) the level
`
`of skill in the art; and (4) where in evidence, so-called secondary
`
`considerations. See Graham y. John Deere Co., 383 U.S. 1, 17-18 (1966).
`eee
`
`Wealso recognize that prior art references must be
`
`“‘considered together
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`with the knowledge of one of ordinary skill in the pertinent art.”” /n re
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`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994) (quoting /n re Samour, 571
`
`F.2d 559, 562 (CCPA 1978)). We analyze Petitioner’s obviousness ground
`
`with the principles identified above in mind.
`
`2.
`
`Overview ofKawakami
`
`Kawakamirelates to a frame transmission/reception system for
`
`allowing a mobile station to transfer and retransmit via a single radio
`
`protocol connection data flows associated with assigned quality of service
`
`(QOS)levels thereby reducing the establishment of radio protocol
`
`connections while improving the communication quality and performance of
`
`the network. Ex. 1004 4] 8—9. Figures 1 through 3 of Kawakami are
`
`reproduced below.
`
`Fig.1
`
`acnenenConn
`MOBILE COMMUNICATION NETWORK
`
`20
`
`MOBILE
`STATION
`
`401
`
` 30
`402
`
`MOBILE NETWORK
`
`CORE NETWORK
`
`10
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`Figure 1, reproduced above, depicts network 1a including mobile station 20
`
`for transmitting and retransmitting data flows to mobile communication
`
`network 10 via a radio interface.
`
`/d. 932. According to Kawakami, mobile
`
`station 20 and radio link control station 102 each include frame transmitting
`
`apparatus 40 and frame receiving apparatus 50 depicted in figures 2 and 3
`
`respectively below. /d. § 34.
`
`Fig.2
`
`FRAME .-TRANSMITTING APPARATUS
`
`401
`
`QoS
`IDENTIFYING
`PART
`
`402
`
`FRAME
`BUILDING
`PART
`
`TO
`LOWER O
`LAYER
`
`ERROR DETECTION
`CODE PROVIDING
`PART
`
`RETRANSMISSION
`MANAGEMENT
`PART
`
`FROM FRAME
`RECEIVING
`APPARATUS
`
`40
`
`
`
`
`
`
`.
`
`404
`
`403
`
`Figure 2, reproduced above, depicts frame transmitting apparatus 40
`
`including retransmission managementpart 403 that buffers an
`
`acknowledgmenttype frame received from frame receiving apparatus 50,
`
`and outputs a corresponding acknowledgment type frame to error detection
`
`code providing part 404 for transmission to a lower layer.
`
`/d. § 39.
`
`As shown in Figure 2 above, Kawakami discloses frame building part
`
`402 providing a header of each generated radio frame with a QOS ID
`
`11
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`according to the QOS information described in the packet.
`
`/d. 37. Ifthe
`
`QOS level indicates that the packet tolerates someerror(1.e., low PER) but
`
`is strict on delay, the packetis classified as an unacknowledgmenttype
`
`frame and no retransmission is performed.
`
`/d. {{ 37, 39. However,if the
`
`QOS indicates that the packet tolerates some delay (1.e., low latency) but
`
`doesnottolerate error, it is classified as an acknowledgmenttype frame
`
`(ACK) and retransmission is permitted.
`
`/d. ¢ 37. Frame building part 402
`
`outputs acknowledgementtype frames to the retransmission management
`
`part 403 and outputs unacknowledgementtype frames to the error detection
`
`code providing part 404.
`
`/d. The error detection code providing part 404
`
`outputs acknowledgmenttype and unacknowledgmenttype frames to a
`
`lowerlayer for transmitting them to the frame receiving apparatus 50.
`
`/d.
`
`q 40.
`
`Uponreceiving an acknowledgmenttype frame retransmitted from
`
`frame transmitting apparatus 40, frame receiving apparatus 50 stores the
`
`frame in buffer part 504 and performs ordering control of frames including
`
`every buffered acknowledgment type frame.
`
`/d. { 45. Figure 3, depicting
`
`frame receiving apparatus 50, is reproduced below.
`
`12
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`Fig.3
`
`50
`
`| FRAME RECEIVING APPARATUS
`|
`501
`|
`PART.
`|
`PACKET
`|
`PART
`
`FROM
`LOWER C)
`
`~
`
`LAYER
`TO
`LAYER
`
`UPPER ()¢
`
`|
`|
`I
`
`.
`
`RROR
`DETECTION
`
`RECONFIGURATION
`
`502
`|
`PART
`SEQUENCE]
`| 505
`| 503 [REFERENCEPART|
`
`___QoS
`FERENCE
`
`!
`
`NUMBER
`
`C) TRANSMITTING
`
`TO FRAME
`APPARATUS
`
`.
`
`.
`
`BUFFER
`PART
`
`504
`
`Figure 3, reproduced above, depicts frame receiving apparatus 50
`
`including buffer part 504 that performs ordering control of acknowledgment
`
`frames retransmitted from frame transmitting apparatus 40, and sequence
`
`numberreference part 503 that transmits an acknowledgementwith the
`
`sequence numberto frame transmitting apparatus 40. Jd. 9] 44, 45.
`
`3,
`
`Obviousness Analysis
`
`Claim1
`
`Independent claim | recites, in relevant part, “[a] method of packet
`
`retransmission, in a transceiver, comprising:
`
`transmitting, by the
`
`transceiver, a first type of packet; and transmitting, by the transceiver, a
`
`second type of packet.” Ex. 1001, 23:65—24:1.
`
`13
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`
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`IPR2022-00833
`Patent 9,485,055 B2
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`a.
`
`Petitioner’s Contentions
`
`Petitioner contends that Kawakami disclosesa “transceiver” as recited
`
`in claim | consistent with the claim construction set forth above. Pet. 31-32
`
`(citing Ex. 1004, passim). In particular, Petitioner contendsthat
`
`Kawakami’s disclosure of mobile station 20 teaches the claimed
`
`“transceiver.” /d. at 31—34 (citing Ex. 1003 § 180; Ex. 1004 §¥ 32, 34, 35,
`
`39). According to Petitioner, frame transmitting apparatus 40 of mobile
`
`station 20, in addition to being capable of transmitting data, is also capable
`
`of receiving data from frame receiving apparatus 50 via retransmission
`
`managementpart 403.
`
`/d. at 33-34. Petitioner contendsthat “the
`
`transmitting and receiving portions of frame transmitting apparatus 40 share
`
`at least some commoncircuitry, e.g., retransmission managementpart 403.”
`
`Id. at 34.
`
`Alternatively, Petitioner asserts the following:
`
`To the extent that Kawakami does not explicitly disclose
`that the transmitting and receiving portions of mobile station 20
`share at least some commoncircuitry, a POSITA would have
`understood that they do. Decl., 9185. For example, a POSITA
`would have been aware that mobile communication systems
`routinely used shared circuitry for their transmitting and
`receiving components. See, e.g., U.S. Patent No. 7,016,658 (Ex.
`1024), Figs. 3-4 (showing shared controller between transmitter
`and receiver in a CDMA mobile communications system); U.S.
`Pat. App. Pub. No. 2006/0039330 (“Hackett”) (Ex. 1025), Fig.
`3 (depicting a transceiver having a transmitter and a receiver,
`and several common components, such as the “Host CPU”and
`the “Timing and Sync Unit” in a mobile communications
`system); Decl., 4185.
`
`14
`
`
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`Patent 9,485,055 B2
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`Id. at 34-35.
`
`b. Patent Owner’s Response
`
`Patent Ownerasserts that Kawakami’s mobile device does not teach
`
`or suggest a transceiver consistent with the claim construction set forth
`
`above. Prelim. Resp. 26. In particular, Patent Owner arguesthat although
`
`Kawakami’s mobile device includes a frame transmitting apparatus and a
`
`frame receiving apparatus, Kawakami is devoid of any teaching, and the
`
`Petition fails to show, that the two apparatuses share commoncircuitry. /d.
`
`at 27-29. According to Patent Owner, neither retransmission management
`
`part 403 nor buffer part 504 is shared by the transmitter and receiver
`
`apparatuses.
`
`/d. at 29-30. Further, Patent Ownerargues that Petitioner’s
`
`assertion that “POSITA would have understood that they do” is an inherency
`
`argument implying that Kawakami must disclose a transceiver.
`
`/d. at 31.
`
`Patent Ownerasserts, however, there is insufficient evidence on the record
`
`before us to support a showing of inherency.
`
`/d. at 32. Patent Ownerthen
`
`submits that the Petition does not provide a motivation as to why a POSITA
`
`would look to the other cited references to rearchitect the frame transmitting
`
`apparatus, and that there is no need in Kawakamito share any circuitry
`
`between those separate devices because they do not share resourcesfor their
`
`respective operations. /d.
`
`c. Our Review
`
`Asan initial matter, the parties do not dispute that the claimed
`
`“transceiver” consistent with the claim construction set forth above requires
`
`a device including a transmitting portion and a receiving portion sharing
`
`15
`
`
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`commoncircuitry. Pet. 11; Prelim. Resp. 25. According to Petitioner, as
`
`noted above, becauseof its capability to transmit data (to a lower layer) and
`
`to receive data from frame receiving apparatus 50 via retransmission
`
`managementpart 403, Kawakami’s frame transmitting apparatus 40 includes
`
`both a transmitting portion and a receiving portion. Pet. 33-34. In other
`
`words, Petitioner asserts that retransmission managementpart 403
`
`constitutes shared circuitry between the asserted transmitting and receiving
`
`portions of frame transmitting apparatus 40.
`
`/d.
`
`Therefore, the pivotal issue before us is whether Kawakami’s frame
`
`transmitting apparatus 40 includesa transmitting portion and receiving
`
`portion that share commoncircuitry (e.g., the retransmission management
`
`part), and thereby teachesa transceiver as recited in independentclaim 1.
`
`Based on the current record, we do not agree with Petitioner that
`
`Kawakami’s disclosure of a mobile station including a frame transmitting
`
`apparatus teaches or suggests the claimed transceiver.
`
`Kawakami’s mobile station 20 includes frame transmitting apparatus
`
`40 containing, inter alia, retransmission manager part 403, which buffers an
`
`acknowledgment type frame received from frame receiving apparatus 50 and
`
`outputs a corresponding acknowledgment type frameto error detection code
`
`providing part 404 for subsequent retransmission to a lower layer. Ex. 1004
`
`439; see Pet. 34. Although we agree with Petitioner that Kawakam1’s frame
`
`transmitting apparatus performstransmitting and receiving functions,
`
`Kawakami doesnotparticularly delineate transmitting and receiving
`
`portions of the frame transmitting apparatus, or shared commoncircuitry
`
`16
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`
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`IPR2022-00833
`Patent 9,485,055 B2
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`between the two portions. Nor does Petitioner persuasively show that a
`
`POSITA would readily ascertain the boundaries of such portions, or
`
`persuasively explain why the retransmission managementpart constitutes
`
`common circuitry between these portions. Thus, the evidence does not show
`
`that the retransmission managementpart constitutes commoncircuitry
`
`between undefined transmitting and receiving portions of the frame
`
`transmitting apparatus. Therefore, we find insufficient evidence on the
`
`current record to support Petitioner’s assertion that a POSITA would have
`
`understood that Kawakamiteaches a transmitting portion and a receiving
`
`portion that share commoncircuitry.
`
`To the extent Petitioner argues that a POSITA would have understood
`
`that Kawakami’s frame transmitting apparatus 40 has a transmitting portion
`
`and a receiving portion that must share commoncircuitry (Pet. 34-35), such
`
`an argument would be tantamountto an inherency argument. “Inherency,
`
`however, may notbe established by probabilities or possibilities. The mere
`
`fact that a certain thing may result from a given set of circumstancesis not
`
`sufficient.” Cont’] Can Co. USA, Inc. v. Monsanto Co., 948 F.2d 1264,
`
`1269 (Fed. Cir. 1991) (quoting Jn re Oelrich, 666 F.2d 578, 581 (CCPA
`
`1981)); see also Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292,
`
`1295 (Fed. Cir. 2002) (“Inheren[cy] ... requires that the missing descriptive
`
`material is “necessarily present,’ not merely probably or possibly present, in
`
`the prior art.” (quoting /n re Robertson, 169 F.3d 743, 745 (Fed. Cir.
`
`1999))). That is, even if as alleged by Petitioner “a POSITA would have
`
`been aware that mobile communication systemsroutinely used shared
`
`17
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`IPR2022-00833
`Patent 9,485,055 B2
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`circuitry for their transmitting and receiving components,” wefind no
`
`evidencein the record that such possibility is necessarily materialized in
`
`Kawakami’s communications system. Nor has Petitioner shown that
`
`Kawakami’s frame transmitting apparatus necessarily includes transmitting
`
`and receiving portions that share commoncircuitry. Therefore, Petitioner has
`
`not shown on this record that Kawakami’s disclosure of a mobile station
`
`including a frame transmitting apparatus teaches or suggests the transceiver
`
`as recited in independent claim 1. Accordingly, we determinethat Petitioner
`
`has not demonstrated a reasonable likelihood of prevailing on its assertion
`
`that Kawakami renders independent claim | unpatentable, as well as
`
`independent claim 11, which commensurately recites the disputed limitation.
`
`Because dependent claims 5, 10, 15, and 20 recite the disputed
`
`limitation of their respective base claims 1 or 11, we determinethat
`
`Petitioner has likewise not demonstrated a reasonable likelihood of
`
`prevailing on its assertion that Kawakami renders these dependent claims
`
`unpatentable.
`
`4.
`
`Conclusion
`
`In view of the foregoing, we determine that Petitioner has not
`
`demonstrated a reasonable likelihood of prevailing on its assertion that
`
`claims 1, 5, 10, 11, 15, and 20 are unpatentable as obvious under § 103(a)
`
`over Kawakamiasset forth above.
`
`18
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`IPR2022-00833
`Patent 9,485,055 B2
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`D. Obviousness over Reynders
`
`Petitioner asserts that claims 1, 4, 5, 7,9, 10, 11, 14, 15, 17, 19, and
`
`20 are unpatentable under 35 U.S.C. § 103(a) as obvious over Reynders.
`
`Pet. 43-60. Patent Owner opposes. Prelim. Resp. 33-35.
`
`Based on the evidence in this record, we determine that Petitioner has
`
`not established that there is a reasonable likelihood that Petitioner would
`
`prevail with respect to this ground of unpatentability. In our discussion
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`below, we address the parties’ contentions in turn.
`
`1. Overview ofReynders
`
`Reyndersrelates to a full duplex communications system having
`
`Stations A and B, each including a transmitting unit and a receiving unit as
`
`depicted in Figure 1.11 below:
`
`Station A
`
`Station8
`
`Receiver
`
`¢
`
`¢
`¢
`Shon Heres EE
`e
`TSE RY SERE §
`SEN
`SSSSESEi
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`Te
`333
`
`5
`
`| Transmitter
`¢¢
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`Asosnonsnnsngnnsngnnsngnnns
`SSS
`
`3
`4
`
`Fig a
`
`19
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`Figure 1.11 above depicts a full duplex channel providing
`
`simultaneous communications in both directions between Stations A and B,
`
`each station having a transmitting unit and a receiving unit. Ex. 1005, 28.
`
`Reynders discloses that a coaxial cable (e.g. 10Base5) can be used for
`
`Ethernet systems as depicted in Figure 3.1 below.
`
`/d. at 64,75.
`
`Azx
`Lote FS
`gg
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`i
`3
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`Node ~
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`t
`
`Figure 3. 1 above depicts a 10Base5 coaxial cable including a
`
`transceiver unit for connecting stations within a communications system.
`
`/d.
`
`at 64.
`
`Reynders further discloses that devices within a communications
`
`system can alternatively be connected via a modem.
`
`/d. at 198.
`
`2. Obviousness Analysis
`
`a. Petitioner’s Contentions
`
`Petitioner contends that Reynders discloses “a transceiver”as recited
`
`in claim 1 consistent with the claim construction set forth above. Pet. 43—44
`
`20
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
`
`(citing Ex. 1005, passim). In particular, Petitioner contends that Reynders’
`
`Station A or Station B teaches the “transceiver.” /d. More particularly,
`
`Petitioner asserts the following:
`
`A POSITA would have understood that the full-duplex stations,
`such as Station A and Station B above, share commoncircuitry across
`the whole device, including their transmitting and receiving portions.
`Decl., 4232. A POSITA would have understood that clock circuitry,
`powersupplies, and other similar circuitry would be shared./d.
`Reyndersalso discloses the use of modems. See, e.g., Reynders, 199.
`A POSITA would have understood that the full-duplex stations and
`modems share commoncircuitry across the whole device, including
`their transmitting and receiving portions. Decl., 4232. In particular, a
`POSITA would have understood a modem to be a “transceiver” under
`the Court’s construction. /d., 9233... A POSITA would have
`recognized that the modem disclosed by Reynders thus contains both
`transmitter and receiver functions. /d. A POSITA would have further
`understood that the transmitting and receiving portions of a modem
`would share some circuitry. /d. For example, a POSITA would have
`understood that clock circuitry, power supplies, and other similar
`circuitry would be shared./d.
`
`Td. at 44-45. Petitioner also asserts:
`
`To the extent that Reynders’s disclosures are found to not
`explicitly include the use of a transceiver, a POSITA would have
`found it obvious to use the methods of Reynders in a system that
`shared commoncircuitry betweenits data transmitting and receiving
`components. Decl., 9235...
`Reyndersfurther discloses that standard Ethernet transceivers
`could include commoncircuitry between their data transmitting and
`receiving components. See, e.g., id., 64 (disclosing “100Base-T2
`system” which can achieve “simultaneous[] transmitting and
`receiving” “by using digital signal processing (DSP) techniques’).
`
`21
`
`
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`IPR2022-00833
`Patent 9,485,055 B2
`
`Further, it would have been obvious to use the methods of Reynders
`with DSL systems, which were knownto include transceivers. /d.,
`4236. Reynders doesnot explicitly refer to DSL systems, referring
`instead to examples of Internet access methodssuch as dial-up
`modem, ISDN connections, and leased lines. Reynders, 199.
`However, it was common knowledgeas of the priority date that
`DSL systems had advantages over these previous access methods, and
`DSL systems were rapidly being adopted by Internet subscribers
`aroundthe world... It would have been obvious to a POSITA to use
`the TCP/IP protocol suite in combination with any standard method of
`Internet access, including DSL. /d. Further, it was common
`knowledge in the art—including in published standards—
`that DSL systems included transceivers.
`
`Id. at 45-46.
`
`b. Patent Owner’s Response
`
`Patent Ownerasserts that Reynders does not teach or suggest a
`
`transceiver consistent with the claim construction set forth above. Prelim.
`
`Resp. 33. In particular, Patent Owner argues that although Reynders’
`
`Station includes a transmitter and a separate receiver, Reynders does not
`
`teach, and the Petition fails to show, that the separate transmitter and
`
`receiver devices share commoncircuitry. /d. at 33-34. According to Patent
`
`Owner,the Petition also asserts without any evidentiary support that the
`
`transmitting portion and the receiving portion of a modem (cited in a
`
`completely different section of Reynders) would share commoncircuitry.
`
`Id. at 34. Patent Owner argues that because Reynders’ disclosure does not
`
`discuss the internals of a modem,“let alone a transmitter portion and a
`
`receiver portion with (1) commoncircuitry that is (2) shared between the
`
`22
`
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`IPR2022-00833
`Patent 9,485,055 B2
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`portions,” Petitioner’s assertions are wholly unsubstantiated.
`
`/d. Further,
`
`Patent Owner submits that the Petition does not provide a motivation as to
`
`why a POSITA would have modified the Stations or modem in Reyndersto
`
`include common circuitry that is shared by the transmitter and receiver. /d.
`
`Last, Patent Ownerargues that because Reynders does not mention DSL at
`
`all, Petitioner’s assertion that it “would have been obviousto use the
`
`methods of Reynders with DSL systems, which were knownto include
`
`transceivers” is unfounded.
`
`/d. at 34-35.
`
`c. Our Review
`
`Based on the current record, we do not agree with Petitioner that
`
`Reynders’ disclosure of a Station including a transmitter and receiver, or
`
`Reynders’ disclosure of a modem, teaches or suggests a transceiver.
`
`Reynders discloses a communications system including Stations A
`
`and B each containing a transmitter and a receiver. Ex. 1005, 28. Reynders
`
`further discloses that the Stations can be connected via a 10Base5 coaxial
`
`cable, which may include a transceiver unit.
`
`/d. at 64. Alternatively, in a
`
`separate, unrelated chapter, Reynders discloses a modem.
`
`/d. at 199. We
`
`find insufficient evidence on this record to substantiate Petitioner’s
`
`allegations that Reynders’ Stations or modem teach a “transmitter portion
`
`and receiver portion [that] share at least some commoncircuitry.”
`
`In particular, we find insufficient evidence on this record to support
`
`Petitioner’s statements that “[a] POSITA would have understood that clock
`
`circuitry, power supplies, and other similar circuitry would be shared.” Pet.
`
`44-45 (referring to Reynders’ Stations and modem). Petitioner’s declarant,
`
`23
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`
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`IPR2022-00833
`Patent 9,485,055 B2
`
`Mr. MeNair, also makes this statement nearly verbatim, without more, and
`
`with no further explanation or additional citations to evidence. See Ex. 1003
`
`4] 232, 233. Wegive such conclusory, unsupported assertions by
`
`Petitioner’s declarantlittle or no weight. See In re Am. Acad. ofSci. Tech
`
`Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Boardis entitled to
`
`weigh the declarations and conclude that the lack of factual corroboration
`
`warrants discounting the opinions expressed in the declarations.”); 37
`
`C.F.R. § 42.65(a) (“Expert testimony that does not disclose the underlying
`
`facts or data on whichthe opinionis basedis entitled to little or no
`
`weight.”’). Petitioner, therefore, does not sufficiently establish that these
`
`examples of circuitry are shared or even pertinentto the particular
`
`communications system disclosed by Reynders. The record before us
`
`further lacks persuasive evidence as to how the transmitter and receiver in
`
`the Stations or modem would utilize any of the alleged shared circuitry. As
`
`correctly noted by Patent Owner, Petitioner has not shown any need for the
`
`transmitter and the receiver to share resourcesfor
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