Trials@uspto.gov
`571.272.7822
`
`Paper No. 9
`Filed: September 20, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SPRINT SPECTRUM L.P., CELLCO PARTNERSHIP D/B/A VERIZON
`WIRELESS, and AT&T MOBILITY LLC,
`Petitioner,
`
`Vv.
`
`ADAPTIX, INC.,
`Patent Owner.
`
`Case IPR2016-00824
`Patent 8,934,375 B2
`
`Before KALYAN K. DESHPANDE, TREVORM.JEFFERSON,and
`J. JOHN LEE, Administrative Patent Judges.
`
`DESHPANDE,Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`37 C.F-R. § 42.108
`
`
`571.272.7822
`
`Paper No. 9
`Filed: September 20, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`SPRINT SPECTRUM L.P., CELLCO PARTNERSHIP D/B/A VERIZON
`WIRELESS, and AT&T MOBILITY LLC,
`Petitioner,
`
`Vv.
`
`ADAPTIX, INC.,
`Patent Owner.
`
`Case IPR2016-00824
`Patent 8,934,375 B2
`
`Before KALYAN K. DESHPANDE, TREVORM.JEFFERSON,and
`J. JOHN LEE, Administrative Patent Judges.
`
`DESHPANDE,Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`37 C.F-R. § 42.108
`
`
`
`“4
`
`IPR2016-00824
`‘Patent 8,934,375 B2
`
`coe INTRODUCTION|.°~ —. J,
`
`
`
`
`Sprint Spectrum L.P., Cellco Partnership d/b/a Verizon Wireless, and
`AT&T Mobility LLC (collectively, “Petitioner”) filed a Petition requesting
`an inter partes review ofclaims 2, 4-8, 11, 13, 14, 18, 20-24, 27, 29, and 30
`ofU.S. Patent No. 8,934,375 B2 (Ex. 1101, “the 375 patent”). Paper 4
`(“Pet.”). Adaptix, Inc. (“Patent Owner’) filed a Preliminary Response.
`Paper 8 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C. § 3 14(a),
`_whichprovides that an interpartes review maynotbe instituted “unless...
`there is a reasonable likelihood that the petitioner would prevail with respect
`to at least 1 of the claims challenged in the petition.” After considering the
`Petition, the Preliminary Response, and associated evidence, we conclude
`that Petitioner has demonstrated a reasonable likelihoodthat it would prevail
`
`in showing unpatentability of claims 2, 4, 6, 8, 18, 20, 22, and 24 of the ’375
`patent. Thus, we institute an interpartesreview of claims 2, 4, 6, 8, 18, 20,
`22, and 24 ofthe °375 patent. Wefurther conclude that Petitioner has not |
`demonstrated a reasonable likelihood that it would prevail in showing the
`
`unpatentability of claims 5, 7, 11, 13,.14, 21, 23, 27, 29, and 30 of the °375
`patent. Therefore, we do not institute an inter partes review of claims 5, 7,
`11, 13, 14, 21, 23, 27, 29, and 30 of the ’375 patent.
`
`A. Related Proceedings
`
`Petitioner indicates that the °375 patent is the subject of the following
`proceedings: Adaptix, Inc. v. AT&T Mobility LLC, Case No. 6:15-cv-43
`(E.D. Texas), Adaptix, Inc. v. Sprint Spectrum, L.P., Case No. 6:15-cv-44
`(E.D. Texas), and Adaptix,Inc. v. Cellco Partnership d/b/a Verizon’
`Wireless, Case No. 6:15-cv-45 (E.D. Texas). Pet. 59-60.
`
`
`
`IPR2016-00824
`Patent 8,934,375 B2
`
`IPR2016-00823, filed concurrently, also challenges the ’375 patent.
`
`Sprint Spectrum L.P. v. Adaptix, Inc., Case IPR2016-00823 (PTAB date)
`
`(Paper 9) (“IPR2016-00823 Inst. Dec.”).
`
`B. The ’375 Patent (Ex. 1101)
`
`The °375 patent discloses methods and apparatusesfor allocating
`
`subcarriers in an orthogonal frequency division multiple access (OFDMA)
`
`system. Ex. 1101, 2:27-29. Accordingly, each of multiple subscribers
`
`measures performance parametersfor a plurality of subcarriers, selects
`
`multiple candidate subcarriers with good performance, and provides
`
`information regarding respective candidate subcarriers to a basestation.
`
`Id. at 3:24-29. The performance parameter measurements may be based
`
`upon pilot symbols provided by the base station. Jd. at 5:36-46. Upon
`
`receiving the information from the subscribers, the base station selects
`
`subcarriers from the candidate subcarriers to be allocated for use by each
`
`subscriber. Jd. at 3:37-39. Subsequently, the base station informs each
`
`subscriber of its respective subcarrier allocation. Jd. at 3:55—57. This
`
`process is repeated periodically and/or when channeldeterioration is
`
`observed. Jd. at 6:63-7:15.
`
`Figure 1B, reproduced below,is a flow diagram of one embodiment
`
`of the process for allocating clusters of subcarriers to subscribers.
`
`
`
`IPR2016-00824
`Patent 8,934,375 B2
`
`Retraining
`Neadod
`?
`
`———
`
`
`Periodically Srosdrast Pflot
`OFDM Symbols to Subseribors
`
`
`BAe
`Subseriber(s) Continuously Monitors
`
`
`Pitot Symbols/Moasures SINR arkvor
`Other
`
`
`
`
`
`Bass Station Nolifies the Subscriber
`| 405
`Regarding Cluster Allocation
`~s
`a__
`
`en 1
`
`%
`
`Each Subsciber Selects One or Mora
`Clusters for Each Basa Station
`
`pharmtnerereensannnirnea
`
`sramanvenenet
`
`Base Station Selects One or Morn
`Clustars for Each Subscriber
`
`FIG. 1B
`
`In accordancewith the process depicted above in Figure 1B, each base
`
`station periodically broadcasts pilot OFDM symbols to every subscriber
`
`(step 101). Jd. at 5:36-38. Each subscriber continuously monitors the
`
`reception ofthe pilot symbols and measures associated performance
`
`parameters (step 102). Jd. at 5:47-50. Then, each subscriber selects one or
`
`moreclusters with good performance and feeds backto the basestation
`
`information regarding these candidate clusters (step 103). Id. at 5:50—-S5.
`
`The basestation then selects, for each subscriber, one or more clusters from
`
`among the candidate clusters (step 104). Jd. at 6:18-20. The basestation
`
`notifies each subscriber aboutthe cluster allocation at step 105. This process
`
`maybe repeated, as further depicted in Figure 1B. Jd. at 6:63-65.
`
`C. Illustrative Claims
`
`Petitioner challenges claims 2, 4-8, 11, 13, 14, 18, 20-24, 27, 29, and
`
`30 of the °375 patent. Pet. 4-58. All of the challenged claims depend,
`
`4
`
`
`
`_
`
`IPR2016-00824
`Patent 8,934,375 B2
`
`directly or indirectly, from independent claims 1 and 17. Claims 2 and 5 are
`illustrative of the claims at issue and are reproduced below:
`
`_- The method of claim 1, wherein the plurality of feedback
`.2.
`clusters at the second time is different than the plurality of
`feedback clusters at the first time.
`
`Ex. 1101, 17:54-56.
`
`. -
`
`The method of claim 4, wherein at least one subcarrier of the
`5.
`first plurality of subcarriersin the first time slot is different than all of
`the subcarriers of the secondplurality of subcarriers in the second
`timeslot.
`Ex. 1101, 18:1-4.
`D. The Alleged Grounds of Unpatentability
`
`The information presentedin the Petition sets forth proposed grounds
`of unpatentability of claims 2, 4-8, 11, 13, 14, 18, 20-24, 27, 29, and 30 of
`the *375 patent under 35 U/S.C. § 103(a) as follows (see Pet. 7-58):'
`
`
`
`References
`
`.
`Ritter,2 Gesbert,3 and Thoumy*
`Ritter, Gesbert, Thoumy, and
`Gitlin
`Thoumy, Gesbert, and Gitlin
`Thoumy, Gesbert, and Ritter
`
`
`
`
`
`
`
`Claims'
`Challenged
`—s2, 8, 14, 18, 24, and 30
`4-7, 11, 13, 20-23, 27, and 29
`.
`6-8, 11, 13, 22-24, 27, and 29
`2, 14, 18, and 30
`
`—
`
`~~
`
`.
`
`|
`
`
`
`
`
`
`
`
`
`! Petitioner supports its challenge with the Declaration of Richard D.Gitlin,
`Sc.D. (Ex. 1102).
`.
`2 Theparties refer to Exhibit 1104 as “Ritter,” which is an English
`translation of DE 198 00 953 Cl. The German patent document has been
`entered as Exhibit 1103.
`3 U.S. Patent No. 6,760,822 B1; issued July 6, 2004 (Ex. 1105) (“Gesbert”).
`4U.S. Patent No. 7,039,120 B1; issued May 2, 2006 (Ex. 1107) (“Thoumy”).
`5 U.S. Patent No. 6,018,528; issued January 25, 2000 (Ex. 1106) (“Gitlin”).
`5
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`
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`IPR2016-00824
`Patent 8,934,375 B2
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`
`
`References
`
`Thoumy, Gesbert, Gitlin, and
`
`Ritter
`
`.
`
`
`
`4
`
`'
`
`Claims
`Challenged
`4, 5,20, and 21
`
`II. ANALYSIS
`
`A. 35 U.S.C. & 325(d)
`
`_ Patent Ownerarguesthat “[t]hree of the four references relied on by _
`the Petitioners were considered .
`.
`. during the prosecutionofthe ‘375
`|
`patent.” Prelim. Resp. 3 (citing Ex. 1113,° 118, 122, 127). Specifically,
`Patent Ownerarguesthat the 375 patent claimspriority to five applications,
`and the Examinersubstantively discussed Ritter in at least two of the prior
`
`applications. Jd. at 4. Patent Ownerfurther argues that the Examiner
`
`“considered Gesbert in three of the prior applications and considered Gitlin
`in one ofthe prior applications.” Jd. Patent Ownerrepresents that the
`Examinerhas been notified that two ofthe prior applications, now two
`patents, were the subject of two inter partes reviews, and additionally
`represents that Ritter, Gesbert, and Gitlin were identified by defendantsin
`variouslitigation proceedings. Jd. Patent Owner appearsto rely onthis
`information in arguing that the Board should deny the Petition under
`
`35 U.S.C. § 325(d) becauseit raises substantially the samepriorart or
`
`arguments previously presented to the Office. Jd. at 1.
`Petitioner seeks interpartes review ofclaims 2, 4-8, 11, 13, 14, 18,
`20-24, 27, 29, and 30 of the ’375 patent. Pet. 1. Petitioner does not
`pry
`
`6 Patent Owner cites Exhibit 1013, whichis not in the record for IPR2016-
`00824. We understandthis to be a typographical error and assume Patent
`Ownerintended to cite Exhibit 1113.
`
`6
`
`
`
`IPR2016-00824
`Patent 8,934,375 B2
`specifically address 35 U.S.C. § 325(d) in its Petition, but does note that
`during prosecution ofthe ’375 patent, Patent Owner submitted five —
`Information Disclosure Statements, citing over 1,400 references. Jd. at 3-4.
`Petitioner asserts thatthe Examiner noted “the numberof references
`submitted is unreasonably large in quantity and without any indication of
`relevancy.” Id. (quoting Ex. 1113).
`The Board has discretion to decline to institute an inter partes review
`
`under 35 U.S.C. § 314(a). One factor the Board may take into account when
`exercising that discretion is whether “the same or substantially the same
`prior art or arguments previously were presented to the Office.” 35 U.S.C.
`
`§ 325(d) (“[i]n determining whetherto institute or order a proceeding”
`for inter partes review,“the Directormaytake into account”that factor, and
`“reject the petition” on that basis).
`Weare not persuaded to use our discretion to deny this Petition under
`35 U.S.C. § 325(d). Patent Owner merely asserts that Gesbert has been
`
`considered in three prior applications and Gitlin has been considered .in one
`
`prior application. Prelim. Resp. 4. Patent Ownersimilarly asserts only that.
`the Examiner substantively discussed Ritter in at least two prior applications.
`Id. Patent Owner, however does not discuss to what extent Ritter, Gesbert,
`and Gitlin have been considered in the prosecution of the ’375 patent. The
`fact that Gesbert and Gitlin were considered inother patent applications, and
`Ritter was discussed separatelyin other applications, is not determinativeas.
`to whether “the same or substantially the same prior art or arguments” were
`
`presented in the prosecution of the ’375 patent. That is, absent persuasive
`evidence that Ritter, Gesbert, and Gitlin were presented to, and considered
`by, theExaminer during the prosecution of the ’375 patent, we do not
`
`7
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`IPR2016-00824
`Patent 8,934,375 B2
`
`consider Ritter, Gesbert, and Gitlin to have been previously presented before
`
`the Office in a mannersufficient to warrant denial of the Petition.
`
`Accordingly, we decline to use our discretion and denythis Petition
`because only someofthe prior art were considered during the prosecution of
`
`other related patent applications.
`
`B. Claim Construction
`
`The Boardinterprets claims of an unexpired patent using the broadest
`
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); see Cuozzo Speed Techs., LLC v.
`Lee, 136 S. Ct. 2131, 2142-46 (2016). Under the broadest reasonable
`
`construction standard, claim terms are given their ordinary and customary
`
`meaning, as would be understood by oneof ordinary skill in the art in the
`context of the entire disclosure. In re Translogic Tech. Inc., 504 F.3d 1249,
`
`1257 (Fed. Cir. 2007).
`
`1. “Pilot Symbols”
`
`Petitioner argues that the term “pilot symbols” should be construedto
`mean “symbols, sequences,or signals knownto both the base station and
`subscriber.” Pet. 5 (citing Exs. 1111, 1112). Petitioner asserts that the *375
`patent specification discloses that “pilot symbols, often referred to as a
`sounding sequenceorsignal, are knownto both the base station and the
`subscribers.” Jd. (citing Ex. 1101, 5:38-40). Patent Owner doesnotproffer
`a construction forthis term.
`
`Although the 375 patent does not provide an express definition for
`“pilot symbols,” we adopt Petitioner’s construction of “pilot symbols”as
`“symbols, sequences, or signals knownto both the base station and
`subscriber,” for the purposesofthis decision.
`
`8
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`IPR2016-00824
`Patent 8,934,375 B2
`mw
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`2. “Cluster”
`Petitioner argues that the term “cluster”is expressly defined in the
`°375 patent specification as “a logical unit that contains at least one physical
`
`x
`
`subcarrier.” Pet. 5—6 (citing Ex. 1101, 5:20—21). Patent Owner arguesthat
`
`the term “cluster” should be construed as “being at least two subcarriers”
`because each of independentclaims 1 and 17 recite that “each feedback
`cluster ofthe plurality offeedback clusters being at least two subcarriers.” )
`Prelim. Resp. 9.
`
`Onthis record, we construe “cluster” to mean “‘a logical unit that
`
`contains at least one physical subcarrier” based on the ’375 patent
`
`,
`
`specification’s express definition for “cluster.” Indeed, independentclaims
`1 and V7 recite “each feedback cluster ofthe plurality of feedback clusters
`being at least two subcarriers” and, therefore, impart the limitation of “at
`least two subcarriers.” However, on this record, we do not import this
`
`limitation into the term “cluster”itself.
`
`Additionally, we note that the term “cluster” is not synonymous with
`, “subcarrier.” The claimsrecite the terms “cluster” and “subcarrier,” and the
`
`*
`
`’375 patent specification provides a different context for each of these terms.
`
`. being at least two
`.
`For example, claim 1 recites “each feedbackcluster .
`subcarriers,” and the ’375 patent specification discloses a “cluster can
`contain consecutive or disjoint subcarriers. The mapping betweena cluster
`and its subcarriers can be fixed or reconfigurable.” Ex. 1101, 5:22-24.
`Therefore, a cluster is a “logical unit that containsat least one physical
`subcarrier,” but is different than a “subcarrier.”
`
`|
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`IPR2016-00824
`Patent 8,934,375 B2
`
`3. “Diversity Cluster”
`
`Petitioner argues that the term “diversity cluster” should be construed
`
`to mean “a cluster containing multiple subcarriers with at least some of the
`
`subcarriers spread far apart over the spectrum.” Pet. 6 (citing
`
`Ex. 1102 4 34). Petitioner asserts that the °375 patent specification describes
`
`a “diversity cluster” as a cluster “containing multiple subcarriers with at
`
`least some of the subcarriers spread far apart over the spectrum.” Jd. (citing
`
`Ex. 1101, 14:28-30). Patent Ownerdoes not proffer a construction forthis
`
`term. For the purposesofthis decision, we adopt Petitioner’s construction
`
`of “diversity cluster”as “a cluster containing multiple subcarriers with at
`
`least some ofthe subcarriers spread far apart over the spectrum.”
`
`4. “Coherence Cluster”
`
`Petitioner argues that the term “coherence cluster” should be
`
`construed to mean “‘a cluster containing multiple subcarriers close to each
`
`other.” Pet. 6 (citing Ex. 1102 435). Petitioner asserts that the ’375 patent
`specification describes a “coherence cluster” as a cluster “containing
`multiple subcarriers close to each other.” Jd. (citing Ex. 1101, 14:27-28).
`Patent Owner does not proffer a construction for this term. For the purposes
`
`of this decision, we adopt Petitioner’s construction of “coherence cluster”as
`
`“a cluster containing multiple subcarriers close to each other.”
`
`5. “Coherence Bandwidth”
`
`Petitioner argues that the term “coherence bandwidth” should be
`
`construed to mean “the bandwidth within which the channel response
`
`remains roughly the same.” Pet. 6 (citing Ex. 1102 4 36). Petitioner asserts
`that the °375 patent specification describes “coherence bandwidth”as a “the
`bandwidth within which the channel response remains roughly the same.”
`
`10
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`f
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`1PR2016-00824
`Patent 8,934,375 B2
`Td. (citing Ex.-1 101, 11:55-60). Patent Owner doesnot proffer a
`construction for this term. For the purposesofthis decision, we adopt
`Petitioner’s construction of “coherence bandwidth”as“the bandwidth within
`which the channel response remainsroughly the same.”
`|
`C. Obviousness ofClaims2, 8, 14, 18, 24, and 30 over Ritter, Gesbert, and
`Thoumy |
`Petitioner contends ‘that claims 2, 8, 14, 18, 24, and 30 of the *375
`patent are unpatentable under 35 U.S.C. § 103(a) as obviousoverRitter,
`Gesbert, and Thoumy. Pet. 10-33. For the reasons discussed below,the
`evidence onthis record indicates there is a reasonable likelihood that
`
`Petitioner would prevail in showing that claims 2, 8, 18, and 24 of the °375
`patent are unpatentable under 35 U.S.C. § 103(a) as obvious. Petitioner
`_ provides a detailed analysis, supported by evidence,identifying sections of
`the prior art as teachingthe limitations of claims 2, 8, 18, and 24. Id.
`Petitioner further provides the Declaration of Dr. Richard D.Gitlin in
`support of its analysis. See Ex. 1102. For the reasons discussed below,
`based on the evidence ofrecord, there is not a reasonable likelihood that
`Petitioner would prevail in showing that claims 14 and 30 of the ’375 patent
`are unpatentable under 35 U.S.C. § 103(a) as obvious.
`
`1. Ritter (Ex. 1104)
`
`Ritter discloses methods and systemsfor allocating radio resources in
`“an OFDMA system comprising a base station and multiple mobilestations.
`Ex. 1104, 3-5, 13-14.’ As described in Ritter, each mobile station measures
`the quality of various segmentsof the frequency spectrum, determines a
`
`7 Exhibit 1104 includes page numbersindicated by the publication itself, and
`different page numbersprovided by Petitioner. Our referencesare to the
`page numbersofthe exhibit as provided by Petitioner.
`11
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`IPR2016-00824
`Patent 8,934,375 B2 .
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`preferred segment to use for communications with the base station, and
`provides information to the base station regarding the preferred segment.
`j Id. at 5-6, 13-14. The quality measurements may be based ontherelative
`amplitudes of data symbols received on all sub-channels by a mobile station.
`Id. at 9-10. The base station evaluates the received information and
`allocates a respective segment for communications with each mobilestation.
`- Id. at 6-7.
`|
`
`_
`2. Gesbert (Ex. 1105)
`Gesbert discloses methods and systemsfor selecting a mode for
`' encoding data for transmission in a wireless communication channel
`between a transmit unit and a receive unit. Ex. 1105, Abstract, 2:56—-59.
`Data encoded in accordance with an initial modeis transmitted from the
`
`transmit unit to the receive unit. Jd. at 2:59-61. Quality parameters are
`
`sampled in the data received by the receive unit. Jd. at 2:61-62. Anda
`
`subsequent mode for encoding the data is selected based on first-order and
`second-orderstatistical parameters ofthe quality parameters. Id. at 2:59-65.
`Asdescribed in Gesbert, a mode mayinclude a modulation rate and a coding
`
`rate. Jd. at 3:6-37. The modulation rate and data rate of a mode may be
`indexed by a mode numberforidentification. Id. at 3:37-39. Quality
`parameters may include signal-to-interference and noise ratio (SINR),
`
`signal-to-noise ratio (SNR), and/or powerlevel. /d..at 3:1-3. The
`subsequent mode may be selected in order to maximize a channel
`communication parameter such as maximum data capacity, signal quality
`spectral efficiency, and/or channel throughput. /d. at 3:46—51.
`
`12
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`-IPR2016-00824
`Patent 8,934,375 B2
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`a
`3. Thoumy (Ex. 1107)
`Thoumydiscloses methods and systems for dynamicallocation of
`carrier frequencies in systems using multi-carrier type modulation.
`Ex. 1107, 1:9-12. As described in Thoumy,the transmissionreliability of
`
`u
`
`carrier frequencies is dynamically estimated, and a significance
`_ measurementis attributed to each group of data to be transmitted via the
`‘carrier frequéncies.
`Id. at Abstract. The mostsignificant data are
`
`_
`
`~
`
`transmitted over the most reliable carrier frequenciesat that time, and less
`significant data are transmitted over carrier frequencies of decreasing
`reliability in decreasing orderof significance. Jd. at Abstract, 5:29-35.
`.
`4. Analysis
`.
`The evidencesét forth by Petitioner indicates there is a reasonable
`likelihood that Petitioner will prevail in showing that claims 2, 8, 18, and 24
`are unpatentable under 35 U.S.C. § 103(a) as obvious. See Pet. 10-33. The
`evidence set forth by Petitioner does not indicate that there is a reasonable
`likelihoodthat Petitioner will prevail in showing that claims 14 and 30 are
`unpatentable under 35 U.S.C.§ 103(a) as obvious. Id.
`Petitioner and Patent Ownerpresent the same arguments, based on the
`same evidence, as those presentedin IPR2016-00823. As discussed in our
`Decision onInstitution in IPR2016-00823, Petitioner has demonstrated a
`
`reasonablelikelihood it will prevail in showing claims 1 and 17 of the ’375
`patent are obvious under 35 U.S.C. § 103(a) in View ofRitter, Gesbert, and
`Thoumy. IPR2016-00823 Inst. Dec., 13-22. We,therefore, incorporate our
`analysis from 1PR2016-00823 for independentclaims 1 and 17 ofthe °375
`patent and determine Petitioner has shownsufficiently that the combination
`a
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`Patent 8,934,375 B2
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`of Ritter, Gesbert, and Thoumyteaches or suggests eachlimitation of
`independentclaims 1 and 17, for the same reasons. See id.
`Claims 2, 8, 14, 18, 24, and 30 depend from independent claims 1 and
`17, and are discussedbelow.
`
`so@
`
`a. Claims 2 and 18
`
`Claims 2 and 18 recite “the plurality offeedback clusters at the second
`timeis different than the plurality of feedback clusters at the first time.”
`Petitioner argues Ritter discloses a mobile station taking measurements of
`the quality of various segments, and because Ritter’s segments comprise
`multiple subcarriers, one of skill in the art would understandRitter’s
`disclosure of measuring the quality of “various segments” to meanthat the
`subscriber unit can measure different segments at different times. Pet. 30
`(citing Ex. 1104, 13, 28). Petitioner additionally argues that Ritter
`recognizes that the best suited segments for communication vary with
`changing channel conditions, and, therefore, one of ordinary skill in the art
`would understand that the “system described in Ritter could include a
`different plurality of feedback clusters at a second time.” Jd. (citing Ex.
`
`1104, 14, 16; Ex. 1102 4 110).
`
`Patent OwnerarguesRitter fails to disclose performing the
`measurement “at a second time,”as recited by claims 2 and 18. Prelim.
`Resp. 24-25 (citing Ex. 1104, 14). Patent Owner argues that because Ritter
`fails to disclose a second measurement at a second time, Ritter cannot
`
`disclose the plurality of feedback clusters at the second time is different than
`
`the plurality of feedbackclusters at the first time. Jd.
`_ We are not persuaded by Patent Owner’s argument. Petitioner argues
`
`that Ritter discloses measuring “various segments.” Pet. 30 (Ex. 1104, 13,
`
`14
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`IPR2016-00824
`Patent 8,934,375 B2
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`28). As discussedin our analysis of claim 1, Petitioner also shows Ritter
`
`discloses that “the best suited segments for communication can be
`
`determinedat any time,” and Gesbert further discloses repeating the
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`measurementsteps to account for changing conditions of the channel. Pet.
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`24-25 (citing Ex. 1104, 8-9; Ex. 1105, 11:20—25); see IPR2016-00823 Inst.
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`Dec., 15-16. On this record, we determine that Petitioner has demonstrated
`
`a reasonablelikelihood that a person with ordinary skill in the art would
`
`understand that the measurementsat different times, as disclosed by Ritter
`
`and Gesbert, combined with Ritter’s disclosure of segmentsorclusters,
`
`teaches a different plurality of feedback clusters at a second time. See Pet.
`
`30.
`
`b. Claims 8 and 24
`
`Claim 8 recites “the receiving of thefirst allocation of OFDMA
`
`subcarriers is receivingafirst allocation of at least one coherencecluster.”
`
`Claim 24 recites similar limitations. As discussed above, Petitioner argues
`
`that “coherence cluster” means “a cluster containing multiple subcarriers
`
`close to each other.” Petitioner argues that Ritter discloses subcarriers with
`
`a separation of only several kilohertz between adjacent carriers, and,
`
`accordingly, discloses a “coherencecluster.” Pet. 31 (citing Ex. 1104, 16;
`
`Ex. 1102 Jf 102-103); see section II.B.4. On this record, we determinethat
`
`Petitioner has demonstrated a reasonablelikelihood it will prevail in
`
`demonstrating that claims 8 and 24 are unpatentable.
`
`Patent Ownerargues that dependent claims 8 and 24 depend from
`
`independentclaims 1 and 17, and, thus, are patentable dueto their
`dependency from patentable independent claims. Prelim. Resp. 10. We are
`not persuaded by this argument for the same reasons discussed with respect
`
`15
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`IPR2016-00824
`Patent 8,934,375 B2
`
`to claims 1 and 17 in IPR2016-00823. See IPR2016-00823 Inst. Dec., 12—
`
`22.
`
`c. Claims 14 and 30
`
`Claims 14 and 30 depend from claims 9 and 25 respectively. We
`
`determine that Petitioner has not demonstrated a reasonable likelihood of
`
`prevailing with respect to claims 9 and 25 in IPR2016-00823 based on the
`
`same arguments and evidence presented here. See IPR2016-00823 Inst.
`
`Dec., 22-24. Accordingly, we determine that Petitioner has not
`
`demonstrated a reasonable likelihood it will prevail as to claims 14 and 30
`
`for the same reasons. Id.
`
`5. Conclusion
`
`Onthis record, we are persuaded that Petitioner has shown a
`
`reasonable likelihood that claims 2, 8, 18, and 24 of the 375 patent are
`
`obvious over a combination of Ritter, Gesbert, and Thoumy.
`
`Onthis record, we are not persuadedthat Petitioner has shown a
`
`reasonable likelihood that claims 14 and 30 of the °375 patent are obvious
`
`over a combination of Ritter, Gesbert, and Thoumy.
`
`D. Obviousness ofClaims 4-7, 11, 13, 20-23, 27, and 29 overRitter,
`Gesbert, Thoumy, and Gitlin
`Petitioner contendsthat claims 4—7, 11, 13, 20-23, 27, and 29 of the
`
`°375 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
`Ritter, Gesbert, Thoumy,and Ritter. Pet. 33-42. For the reasons discussed
`
`below, the evidence,onthis record, indicates there is a reasonable likelihood
`
`that Petitioner would prevail in showing that claims 4, 6, 20, and 22 of the
`
`°375 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
`Ritter, Gesbert, Thoumy, and Gitlin.
`/d. Petitioner provides a detailed
`
`analysis, supported by evidence, identifying sections of the prior art as
`16
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`
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`IPR2016-00824
`Patent 8,934,375 B2
`
`teachingthe limitations of claims 4, 6, 20, and 22. Jd. Petitioner further
`
`cites Dr. Gitlin’s Declaration in support ofits analysis. See Ex. 1102. For
`the reasonsdiscussed below,the evidence, on this record, indicates there is
`not a reasonable likelihood that Petitioner would prevail in showing that
`
`claims 5, 7, 11, 13, 21, 23, 27, and 29 of the ’375 patent are unpatentable
`
`under 35 U.S.C. § 103(a) as obvious.
`
`1. Gitlin (Ex. 1106)
`
`Gitlin discloses methods and systems for allocating a communications
`medium using time-frequency-code slicing. Ex. 1106, Abstract. As
`
`described in Gitlin, a communications medium maybe dividedinto a
`
`plurality of time-frequencies slices that may be allocated to users according
`to their various transmission requirements. Jd. at 3:1-5. Time-frequency
`
`slices may be allocated on non-contiguousor contiguous frequency bands.
`
`Id. at Abstract, 3:5—7.
`
`2. Analysis
`
`The evidenceset forth by Petitioner indicates there is a reasonable
`
`likelihood that Petitioner will prevail in showing that claims 4, 6, 20, and 22
`
`are unpatentable under 35 U.S.C. § 103(a) as obvious. Pet. 10-33. The
`evidence set forth by Petitioner does not indicate that there is a reasonable
`
`likelihood that Petitioner will prevail in showing that claims 5, 7, 11, 13, 21,
`
`23, 27, and 29 are unpatentable under 35 U.S.C. § 103(a) as obvious. Id.
`
`a. Claims 4 and 20
`
`Claim 4 depends from claim 3, which depends from independent
`
`claim 1. Claim 20 depends from claim 19, which depends from independent
`
`claim 17. As discussed in our Decision on Institution in IPR2016-00823, we
`
`determine that Petitioner has shown a reasonable likelihood that the
`
`17
`
`
`
`IPR2016-00824
`Patent 8,934,375 B2
`
`limitations of claims 1 and 17 were taught or suggested by the combination
`of Ritter, Gesbert, and Thoumy, and the limitations of claims 3 and 19 were
`taught or suggested by the combination of Ritter, Gesbert, Thoumy, and
`Gitlin. IPR2016-00823 Inst. Dec., 12-22, 25-27.
`
`Claim 4 recites:
`
`the first allocation of OFDMA subcarriers includes a
`clusteridentifier that identifies a first plurality of subcarriersin a
`first time slot and a secondplurality of subcarriers in a second
`time slot, at
`least
`two subcarriers of the first plurality of
`subcarriers and of the second plurality of subcarriers being
`disjoint.
`:
`
`Claim 20recites similar limitations. Petitioner argues Ritter teaches “a
`subscriberunit receiving allocations ofOFDMA subcarriersthat include a
`cluster identifier.” Pet. 35-36. Petitioner specifically argues that “Ritter
`describes the base station assigning segments of subcarriers, where the
`segments (clusters) are identified as Sx, Sa, and Sm.” /d. at 36 (citing Ex.
`1104 14, 19-20). Petitioner argues that “Sx, Sa, and Sm each constitutes a
`cluster identifier that identifies a plurality of subcarriers in a timeslot.” Id
`Petitioner argues that “Gitlin teaches allocations wherein some subcarriers of
`an allocation are disjoint from other subcarriers, both within the same time
`
`slot and across two different time slots.” /d. (citing Ex 1106, Fig. 6).
`
`Accordingly, Petitioner argues that the combination of Ritter, Gesbert,
`Thoumy, and Gitlin discloses the limitations of claims 4 and 20. Jd. (citing
`Ex. 1102 ¥ 115-118, 122). In view ofPetitioner’s arguments and
`associated evidence, we are persuadedthat Petitioner is reasonably likely to
`
`prevail in demonstrating that claims 4 and 20 are obvious in view ofRitter,
`
`Gesbert, Thoumy,and Gitlin.
`
`
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`IPR2016-00824
`Patent 8,934,375 B2
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`Patent Ownerargues that dependent claims 4 and 20 depend from
`
`dependent claims 3 and 19, which depend from independent claims 1 and
`17, and, thus, are patentable due to their dependency from patentable
`
`independent claims. Prelim. Resp. 29-30. Weare not persuadedbythis
`
`argumentfor the same reasons discussed with respect to claims 1, 3, 17, and
`
`19 in IPR2016-00823. See IPR2016-00823 Inst. Dec., 12-22, 25-27.
`
`b. Claims 5 and 21
`
`Claims 5 and 21 recite “at least one subcarrierof the first plurality of
`
`subcarriers in thefirst time slot is different than all of the subcarriers of the
`
`second plurality of subcarriers in the second timeslot.” Petitioner argues
`
`that a frequency bandas disclosed in Gitlin is a cluster of subcarriers. Pet.
`
`35. Petitioner then argues that the combination of Ritter, Gesbert, Thoumy,
`
`and Gitlin teaches the limitations of claims 5 and 21 because oneof ordinary
`
`skill in the art would understand from Gitlin that a user could be allocated
`
`one frequency band(i.e., cluster of subcarriers) in the first time slot and a
`different frequency band(i.e., cluster of subcarriers) in the second time slot.
`Pet. 37. Petitioner points to Figure 6 of Gitlin, reproduced below,as
`
`depicting an example of such an allocation, where frequency band F1 is
`assignedin timeslot S1 and frequency band F2is assignedin timeslot S2.
`Td.
`
`19
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`
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`IPR2016-00824
`Patent 8,934,375 B2
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`FIG. 6
`
`
`
`
`
`40"|
`F3F2
`34
`
`
`FREQUENCE
`
`BANDS=Fy
`
`
`44
`TIME SLOTS ————~
`46 GH-SPEED USERS: AB,G,L
`“—~ WEDIUH-SPEED USERS: C,E,F,H,I,J,M,0,0
`“——™~ LOW-SPEED USERS: 0,K,N,P,R,S,T
`
`Figure 6 is anillustration of frequency band and time
`slot assignments for various users, with frequency
`bands depicted along the vertical axis, and time slots
`depicted along the horizontal axis.
`
`As depicted in Figure 6 of Gitlin, user F is allocated frequency bands
`
`F1-F2in time slot S1 and user G is allocated frequencies bands FO—F6 in
`
`time slot S2. Ex. 1106, Fig. 6, 5:47-60. Petitioner argues thatthis
`
`configuration showsthat a user could be allocated one frequency band(i.e.,
`F1) in thefirst time slot (i.e., $1) and a different frequency band(i.e., F2) in
`the second timeslot (i.e., $2). Pet. 37. From this, Petitioner concludes that
`
`Gitlin discloses subcarriers allocated in thefirst time slot are different from
`
`all of the subcarriers allocated in the second timeslot. Jd.
`
`We, however, are not persuaded by Petitioner’s argument. Figure 6 of
`
`Gitlin discloses that in time slot S1, frequency bands F1 and F2 are assigned
`
`20
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`
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`IPR2016-00824
`Patent 8,934,375 B2
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`to user F. Ex. 1106, Fig. 6. In time slot S2, frequency bands FO, F1, F2, F3,
`
`F4, F5, and F6 are assigned to user G. Jd. Therefore, frequency bands F1
`
`and F2 are assignedin both time slots S1 and S2. Therefore, all of the
`
`frequency bands(i.e., cluster of subcarriers) between time S1 and S2 are not
`
`different, as required by claims 5 and 21.
`
`Furthermore, claims 5 and 21 indirectly depend from independent
`
`claims 1 and 17, which are directed to “a subscriber unit” and, therefore,
`
`claims 5 and 21 are directed to that same subscriber unit. As argued by
`
`Patent Owner, frequency band F1 in time slot S1 is allocated to user “F” and
`
`frequency band F2in timeslot S2 is allocated to user “G.” Prelim. Resp.
`
`30-32. Therefore, the frequency ba
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