Trials@uspto.gov
`$71.272.7822
`
`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,
`
`V.
`
`ADAPTIX,INC.,
`Patent Owner.
`
`Case IPR2016-00823
`Patent 8,934,375 B2
`
`Before KALYAN K. DESHPANDE, TREVOR M.JEFFERSON,and
`J. JOHN LEE, Administrative Patent Judges.
`
`DESHPANDE,Administrative Patent Judge.
`
`DECISION
`Granting Institution of Inter Partes Review
`37 CFR. § 42.108
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`I.
`
`INTRODUCTION
`
`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 of claims 1, 3, 9-10, 12, 15-17, 19, 25-26, 28, and
`31-32 of U.S. Patent No. 8,934,375 B2 (Ex. 1001, “the 375 patent”). Paper
`
`4 (“Pet.”). Adaptix, Inc. (“Patent Owner”) filed a corrected Preliminary
`Response. Paper8 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C.
`§ 314(a), which provides that an inter partes review may not beinstituted
`“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 likelihood thatit
`would prevail in showing the unpatentability of claims 1, 3, 15-17, 19, and
`31-32 of the °375 patent. Thus, weinstitute an inter partes review of claims
`1, 3, 15-17, 19, and 31-32 of the ’375 patent. We further concludethat
`
`Petitioner has not demonstrated a reasonable likelihood that it would prevail
`
`in showing the unpatentability of claims 9, 10, 12, 25, 26, and 28 of the °375
`patent. Therefore, we do notinstitute an inter partes review ofclaims9, 10,
`
`12, 25, 26, and 28 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, 6:15-cv-45 (E.D. Texas). Pet. 57-58.
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`IPR2016-00824, filed concurrently, also challenges the ?375 patent.
`
`Sprint Spectrum L.P. v. Adaptix, Inc., Case IPR2016-00824.
`
`B. The ’375 Patent (Ex. 1001)
`
`The °375 patent discloses methods and apparatusesforallocating
`
`subcarriers in an orthogonal frequency division multiple access (OFDMA)
`
`system. Ex. 1001, 2:27-29. Accordingly, each of multiple subscribers
`measures performance parameters for 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
`processis repeated periodically and/or when channel deterioration is
`
`observed.
`
`/d. 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.
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`;
`
`n
`
`
`
`
`Periodically Broadcast Pilot
`OFOM Symbols to Subscribers
`
`108
`
`é
`
`Remarc
`
`
`? issrvesnsuareceemnremenses—_
`
`
`
`cena
`I
`
`Subacriber’s} Continuously Monitors
`Pict Symbols/Measures SINR and/or
`Other Parameters
`‘
`
`
`Each Subseiber Selects One or Mors
`
`
`Clusters tor Each Basa Station
`
`
`
`Base Station Selects One or More
`
`Clusters forEach Subscriber
`[7 “4
`|”
`
`
`
`
`Base Station Nolifies the Subscriber
`Regarding Cluster Allocation
`
`
`~ 105
`
`.
`
`3
`
`FIG. 1B
`
`In accordance with 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). Id. at 5:47-50. Then, each subscriber selects one or
`more clusters with goodperformance and feeds backto the base station
`information regarding these candidate clusters (step 103). Jd. at 5:50—55.
`The base station then selects, for each subscriber, one or more clusters from
`among the candidate clusters (step 104). Id. at 6:18-20. The base station
`notifies each subscriber about the cluster allocation. This process may be
`repeated. Id. at 6:63-65.
`
`C. Illustrative Claim
`
`Petitioner challenges claims 1, 3, 9-10, 12, 15-17, 19, 25—26, 28, and
`31-32 of the ’375 patent. Pet. 5-56. Claims 1 and 17 are independent
`
`f
`
`| 4
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`claims. Claims 3, 9, 15, and 16 depend from independent claim 1, and
`
`claims 10 and 12 depend from dependent claim 9. Claims 19, 25-26,28,
`
`and 31-32 depend from independent claim 17. Claims 26 and 28 depend
`
`from dependent claim 25. Claim1is illustrative of the claims at issue andis
`
`reproduced below:
`
`A method for a wireless system employing orthogonal
`1.
`frequency division multiple access (OFDMA),
`the method
`comprising:
`measuring, at a first time by a subscriber unit, a first
`channel information for a plurality of subcarriers based ona first
`plurality of pilot symbols received from a base station;
`feedback
`providing, by the subscriber unit,
`a first
`information relating to a plurality of feedback clusters based on
`at least the measuring of the first channel information for the
`plurality of subcarriers based on the first plurality of pilot
`symbols, each feedback cluster of the plurality of feedback
`clusters being at
`least
`two subcarriers,
`the first
`feedback
`information relating to the plurality of feedback clusters based
`on the first plurality of pilot symbols includes an index
`corresponding to a first modulation and coding rate associated
`with each feedbackcluster of the plurality of feedback clusters;
`receiving, by the subscriber unit, a first allocation of
`OFDMA subcarriers based on at least the providing of the first
`feedback information selected by the base station for use by the
`subscriber unit,
`the first allocation of OFDMA subcarriers
`including an indication of a modulation and coding rate
`associated with thefirst allocation of OFDMA subcarriers;
`measuring, at a second time by the subscriber unit, a
`second channelinformation for the plurality of subcarriers based
`on a secondplurality of pilot symbols received from the base
`station;
`providing, by the subscriber unit, a second feedback
`information relating to the plurality of feedback clusters based
`on at least the measuring of the second channel information for
`the plurality of subcarriers based on the secondplurality ofpilot
`symbols,
`the second feedback information relating to the
`
`5
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`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`plurality of feedback clusters based on the secondplurality of
`pilot symbols includes an index corresponding to a second
`modulation and coding rate associated with each feedback cluster
`of the plurality of feedback clusters; and
`receiving, by the subscriber unit, a second allocation of
`OFDMA subcarriers basedonat least the providing ofthe second
`feedback information selected by the base station for use by the
`subscriber unit, the second allocation of OFDMA subcarriers
`including an indication of a modulation and coding rate
`associated with the second allocation of OFDMA subcarriers, the
`second allocation of OFDMA subcarriers being different from
`the first allocation of OFDMA subcarriers, the first and second
`allocations of OFDMA subcarriers being received by the
`subscriber unit at two different times.
`
`Ex. 1001, 17:2-53.
`
`D. The Alleged Grounds of Unpatentability
`
`The information presentedin the Petition sets forth proposed grounds
`of unpatentability of claims 1, 3, 9-10, 12, 15-17, 19, 25~—26, 28, and 31-32 °
`ofthe °375 patent under 35 U.S.C. § 103(a) as follows(see Pet. 5-56):
`References
`Claims
`Challenged
`1, 9, 12, 15-17, 25, 28, and 31-32
`3, 10, 19, and 26
`
`
`
`Ritter,? Gesbert,? and Thoumy*
`Ritter, Gesbert, Thoumy, and
`Gitlin?
`
`
`
`
`
`
`
`
`’|Thoumy and Gesbert 1, 9, 15-17, 25, 31, and 32
`
`Sc.D. Ex. 1002.
`
`' Petitioner supportsits challenge :with the DeclarationofRichard D. Gitlin,
`2 Theparties refer to Exhibit 1004 as “Ritter,which is an English
`translation of DE 198 00 953 Cl. The German patent document has been
`entered as Exhibit 1003.
`3U.S. Patent No. 6,760,822 B1; issued July 6, 2004 (Ex. 1005) (“Gesbert”).
`4U.S. Patent No. 7,039,120 B1; issued May 2, 2006 (Ex. 1007) (“Thoumy”).
`> U.S.Patent No. 6,018,528; issued Jan. 25, 2000 (Ex. 1006) (“Gitlin”).
`6
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`
`
`References
`
`Thoumy, Gesbert, and Gitlin
`
`
`
`Claims
`Challenged
`3, 10, 12, 19, 26, and 28
`
`
`
`
`wo
`
`I. ANALYSIS
`A. 35US.C. § 325(d)
`Patent Owner arguesthat “It]hree of the four references relied on by
`the Petitioners were considered. . . during the prosecution of the ‘375
`. patent.” Prelim. Resp. 3-4 (citing Ex. 1013, 118, 122, 127). Specifically,
`Patent Owner argues that the °375 patent claims priority to five applications,
`and the Examiner substantively discussed Ritter in at least two ofthe prior
`applications. Jd. at 4. Patent Ownerfurther argues that the Examiner
`“considered Gesbert in three ofthe prior applications and considered Gitlin
`in one ofthe prior applications.” Id. Patent Ownerrepresents that two of
`the prior applications, now two patents, were the subject oftwo interpartes
`reviews, and additionally represents that Ritter, Gesbert, and Gitlin were
`identified by defendants in variouslitigation proceedings. Jd. Patent Owner,
`‘appearsto rely on this information in arguing that the Board should deny this
`Petition under 35 U.S.C. § 325(d) becauseit raises substantially the same
`prior art or arguments previously presented to the Office.
`/d. at 1.
`Petitioner seeks inter partes review ofclaims 1, 3, 9-10, 12, 15-17,
`19, 25-26, 28, and 31-32 ofthe ’375 patent. Pet. 1. Petitioner does not
`|
`specifically address 35 U.S.C. § 325(d) in its Petition, but does note that
`during prosecution of the ’375 patent, Patent Owner submittedfive
`Information Disclosure Statements, citing over 1,400 references. Jd. at 4—5.
`
`Petitioner asserts that the Examiner noted “the numberof references
`
`sou
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`submitted is unreasonably large in quantity andwithout any indication of
`relevancy.”’Jd. (quoting Ex. 1013). ; 4
`
`The'Board has discretion to decline to institute an inter partes review
`under35 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 argumentspreviously were presented to the Office.” 35 U.S.C.
`§ 325(d) (“[i]n determining whethertoinstitute or order a proceeding”
`for inter partes review, “the Director may take into account” that factor, and
`“reject the petition” on that basis).
`.
`Weare not persuadedto 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. 1. Patent Owner similarly only asserts that
`the Examiner substantively discussed Ritter in at least two prior applications.
`Id. However, Patent Owner does not discuss to what extent Ritter, Gesbert,
`and Gitlin have beenconsidered in the prosecution ofthe ?375 patent. The
`fact that Gesbert and Gitlin were considered in other patent applications, and
`Ritter was discussed separately in other applications, is not determinative as
`to whether“the same or substantially the sameprior 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, the Examiner during the prosecution ofthe °375 patent, we do not
`consider Ritter, Gesbert, and Gitlin to have been previously presented before
`
`the Office in a mannersufficient to warrant denial of the Petition.
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`Accordingly, we decline to use our discretion and deny this 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., LLCv.
`
`Lee, 136 S. Ct. 2131, 2142-46 (2016). Underthe 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).
`
`I. “Pilot Symbols”
`
`Petitioner argues that the term “pilot symbols” should be construed to
`mean “symbols, sequences, or signals knownto both the base station and
`subscriber.” Pet. 6 (citing Exs. 1011, 1012). Petitioner asserts that the °375
`
`patent specification disclosesthat “pilot symbols, often referred to as a
`sounding sequenceorsignal, are knownto both thebasestation and the
`subscribers.” Jd. (citing Ex. 1001, 5:38-40). Patent Owner does notproffer
`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 known to boththe base station and
`
`subscriber,” for the purposes of this decision.
`
`2. “Cluster”
`
`

`

`IPR2016-00823
`Patent 8,934,375 B2
`
`Petitioner argues that the term “cluster” is expressly defined in the
`
`’375 patent specification as “a logical unit that contains at least one physical
`
`subcarrier.” Pet. 6—7 (citing Ex. 1001, 5:20-21). Patent Owner arguesthat
`
`the term “cluster” should be construed as “being at least two subcarriers”
`
`because independent claims 1 and 17 recite that “each feedback cluster of
`
`the plurality of feedback clusters being at least two subcarriers.”
`
`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 17 recite “each feedback cluster of the plurality of feedback clusters
`
`being at least two subcarriers” and, therefore, impart the limitation of“at
`
`least two subcarriers” within the meaning of claims 1 and 17. 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 claims recite the terms “cluster” and “subcarrier,” and the
`
`’375 patent specification provides a different context for each of these terms.
`For example, claim 1 recites “each feedback cluster .
`.
`. being at least two
`
`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. 1001, 5:22—24.
`
`Therefore, a cluster is a “logical unit that contains at least one physical
`
`subcarrier,” but is different than a “subcarrier.”
`
`C. Obviousness ofClaims 1, 9, 12, 15-17, 25, 28, and 31-32 overRitter,
`Gesbert, and Thoumy
`Petitioner contends that claims 1, 9, 12, 15—17, 25, 28, and 31-32 of
`
`the °375 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
`
`Ritter, Gesbert, and Thoumy. Pet. 11-37. For the reasons discussed below,
`10
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`

`

`_IPR2016-00823
`Patent 8,934,375 B2
`
`~
`
`the evidence, on this record, indicates there is a reasonable likelihood that
`Petitioner would prevail in showing that claims 1, 15-17, and 31-32 of the
`°375 patent are unpatentable under 35 U.S.C. § 103(a) as obvious. Forthe
`reasonsdiscussed below,the evidence, on this record, indicates there is not a
`reasonable likelihood that Petitioner would prevail in showing that claims 9,
`12, 25, and 28 of the °375 patent are unpatentable under 35 U.S.C. § 103(a)
`as obvious.
`oe
`|
`,
`|
`1. Ritter (Ex. 1004)
`Ritter discloses methods andsystemsfor allocating radio resources in
`
`an OFDMA system comprising a base station and multiple mobile stations.
`" Ex. 1004, 3-5, 13-14.° As described in Ritter, each mobile station measures
`the quality of various segmentsof the frequency spectrum, determines a
`preferred segment to use for communications with the base station, and
`provides information to the base station regarding the preferred segment.
`Id. at 5-6, 13-14. The quality measurements may be based ontherelative
`amplitudes of data symbols received onall sub-channels by a mobile:station.
`Id, at 9-10. The basestation evaluates the received information and
`allocates a respective segment for communications with each mobilestation.
`
`Id. at 6-7.
`
`|
`2. Geshert (Ex 1005)
`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. 1005, Abstract, 2:56—59.
`
`6 Exhibit 1004 includes page numbersindicated by the publicationitself, and
`different page numbersprovided by Petitioner. Our references are to the
`page numbersofthe exhibit provided by Petitioner.
`Nw
`11
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`

`

`IPR2016-00823
`Patent 8,934,375 B2
`Data encodedin accordance with an initial mode is transmitted from the
`transmit unit to the receive unit, Id at 2:59-61. Quality parameters are
`sampledin the data received by the receive unit. Id. at 2:61-62. Anda
`subsequent modefor encodingthe data is selected based on first-order and
`second-order statistical parameters ofthe quality parameters. Id. at 2:59-65.
`_ Asdescribed in Gesbert, a mode mayinclude a modulation rate and a coding
`rate. Id. at 3:6-37. The modulation rate and data rate ofa mode may be.
`indexed by a mode numberfor identification. Jd. at 3:37-39. Quality
`parameters may include signal-to-interference and noise ratio (SINR),
`signal-to-noise ratio (SNR), and/or powerlevel. Jd. at 3:1-3. The
`subsequent mode may beselected 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.
`3. Thoumy (Ex. 1007)
`.
`Thoumy discloses methods and systems for dynamic allocation of
`carrier frequencies in systems using multi--carrier type modulation.
`—
`|
`Ex. 1007, 1:9-12. As described in Thoumy, the.transmission reliability of
`
`carrier frequencies is dynamically estimated, and a significance
`
`measurementis attributed to each group ofdata to be transmitted via the
`carrier frequencies. Jd. at Abstract. The mostsignificant data are
`transmitted over the most reliable carrier frequencies at 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 evidenceset forth by Petitioner indicates there is a reasonable
`likelihood that Petitioner will prevail in showing that claims 1, 15-17, and
`
`12
`
`

`

`~
`
`"
`
`IPR2016-00823
`, Patent 8,934,375 B2
`
`- 31-32 are unpatentable under 35 U.S.C. § 103(a) as obvious. See Pet. 11-
`37. The evidenceset forth by Petitioner does notindicate that there is a
`reasonablelikelihood that Petitionerwill prevail in showing that claims 9,
`12, 25, and 28are unpatentable under.35 U.S.C. § 103(a) as obvious. Id.
`For example, claim 1 recites “a method for a wireless system
`employing orthogonal frequency division multiple access (OFDMA).”
`Petitioner argues that Ritter discloses an “invention [that] begins with the
`OFDMA multi-carrier procedure and the use of a numberof subcarriers
`which are assigned for the communication link between the base station and
`the mobile stations.” Pet. 12 (quoting Ex. 1004, 5; citing Ex. 1002 { 56)
`(emphasis omitted).
`Claim 1 further recites “measuring, at a first time by a subscriberunit,
`‘a first channel information for a plurality of subcarriers based on a first
`plurality ofpilot symbols received from a basestation.” Petitioner argues
`that Ritter discloses measuring the quality of segments received by the
`mobilestation from all subcarriers and forming an average value from the ‘
`results ofthe test from all subcarriers belonging to a respective segment.
`Pet. 12-13 (citing Ex.1004, 9-10; Ex. 1002 4 57). Petitioner further argues
`
`that Gesbert discloses “measuring . . based.onafirst plurality of pilot.
`
`symbols.” Jd. at 13-14. Petitioner specifically argues that Gesbert discloses
`“an OFDMA system that performs subcarrier quality measurements based ,
`on training tones (knownto both the subscriber andbase station) received
`from the base station.” Jd. (citing Ex. 1005, 7:16—20, 7:57-59, 8:13-34).
`Claim 1 also recites:
`
`,
`
`feedback
`providing, by the subscriber unit, a first
`informationrelating to a plurality of feedback clusters based on
`at least the measuring of the first channel information for the
`
`13
`
`.
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`IPR2016-00823
`Patent 8,934,375 B2
`
`plurality of subcarriers based on the first plurality of pilot
`symbols, each feedback cluster of the plurality of feedback
`clusters being at
`least
`two subcarriers,
`the first
`feedback
`information relating to the plurality of feedback clusters based
`on the first plurality of pilot symbols includes an index
`corresponding to a first modulation and coding rate associated
`with each feedback cluster of the plurality of feedback clusters.
`Petitioner argues Ritter discloses that each mobile station measures
`
`the quality of various segments, checks the quality of each individual
`subcarrier, determines the quality of the subcarriers, and then determines and
`
`transmits a preferred segmentfor its communication link. Pet. 18-19 (citing
`Ex. 1004, 13-15; Ex. 1002 9 69). Petitioner further argues that Gesbert
`
`discloses “an index correspondingto a first modulation and codingrate.”
`
`Petitioner specifically argues Gesbert discloses “that receive units (i.e.,
`
`subscriber units) transmit an index indicating a modulation and codingrate
`
`to the transmit unit (i.e., base station).” Pet. 19-20 (citing Ex. 1005, 10:17—
`
`22). Petitioner additionally argues that Gesbert discloses “[t]he modes are
`indexed by a mode numbersoas to conveniently identify the modulation
`and coding rates,” and Table 1 of Gesbert illustrates the mode indices and
`
`corresponding modulation and codingrates. Jd. (citing Ex. 1005, 6:37-39,
`
`Table 1) (emphasis omitted).
`
`Claim 1 also recites:
`
`receiving, by the subscriber unit, a first allocation of
`OFDMA subcarriers based on at least the providing ofthe first
`feedback information selected by the base station for use by the
`subscriber unit,
`the first allocation of OFDMA subcarriers
`including an indication of a modulation and coding rate
`associated withthe first allocation of OFDMA subcarriers.
`
`Petitioner argues Ritter discloses that “[t]he base station, BS,
`
`evaluatesall information received from the mobile stations, MS, and assigns
`
`14
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`

`IPR2016-00823
`Patent 8,934,375 B2
`
`<
`
`each mobile station a segmentfor the respective communication link
`depending on the evaluation.” Pet. 22 (citing Ex. 1004, 15; Ex. 1002 4 77)
`(emphasis omitted). Petitioner also argues that Ritter discloses “[t]he base
`station sends the mobile station information about the assigned segment.”
`
`Id. (citing Ex. 1004, 15; Ex. 1002 § 77) (emphasis omitted). Petitioner
`argues Thoumydisclosesthat the base station transmits information
`concerningallocatedsubcarriers tothe subscriber unit, and includes an :
`indicationof modulation and coding, where Thoumy specifically discloses
`“the transmission parameters, namely the numberofcarriers and the
`modulation. . are transmitted ... by the managementunit .
`.
`. to the
`information reception unit .. . and to the information sendingunit ... witha
`view to the sending ofthese parameters to the peripheral station ....” Pet.
`23 (quoting Ex. 1007, 31:16—22; citing Ex. 1002 § 79) (emphasis and
`bracketed alteration omitted).
`Claim 1 further recites “measuring, at a second time by the subscriber
`unit, a second channelinformation forthe plurality of subcarriers based on a
`secondplurality ofpilot symbols received from the base station.” Petitioner
`argues Ritter discloses that “the best suited segments for communication can
`be determined at any time .
`.
`. and they can be changed as needed.” Pet. 26—
`
`.
`
`27 (citing Ex. 1004, 8-9; Ex. 1002 | 86) (emphasis omitted). Petitioner
`further argues Gesbert discloses that once a mode determinedto be used for
`the streams, subsequent modesare fed back and appliedto the streams. Id.
`(citing Ex. 1005, 11:20-25; Ex. 1002 § 87). Petitioner argues Gesbert
`discloses that the process of selecting the moderepeatsitself and, therefore,
`this accounts for the changing conditions of the channel.
`/d. (citing Ex.
`
`.
`
`1005, 11:20-25; Ex. 1002 § 87).
`
`15°
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`Patent 8,934,375 B2
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`Claim 1 additionally recites:
`
`providing, by the subscriber unit, a second feedback
`_
`information relating to the plurality of feedback clusters based
`on at least the measuring of the second channel information for
`the plurality of subcarriers based on the secondplurality ofpilot
`symbols,
`the second feedback information relating to the
`plurality of feedback clusters based on the secondplurality of
`pilot symbols includes an index corresponding to a second
`modulation and coding rate associated with each feedbackcluster
`of the plurality of feedback clusters.
`
`Petitioner argues that, as discussed above, the combination ofRitter
`and Gesbert discloses this limitation. Pet. 28. Petitioner arguesthat Ritter
`discloses that each mobile station measuresthe quality of segments and
`transmits a preferred segmentfor its communication link. See Pet. 18-19
`(citing Ex. 1004, 13-15; Ex. 1002 4 69). As further discussed above,
`Petitioner argues that Gesbert discloses subscriber units transmitting an
`index indicating a modulation and codingrate to the base station. See Pet.
`19-20 (citing Ex. 1005, 10:17-22). As also discussed above, Petitioner
`further argues Ritter discloses that the best suited segments are determined at
`any time, and Gesbert discloses that the process of selecting the mode
`repeats itself, thereby accounting for changing conditions of the channel.
`Pet. 28. Accordingly,Petitioner argues that the combination of Ritter and
`Gesbert disclose this limitation for.the same reasons discussed above. Id.
`
`-Claim 1 also recites:
`
`receiving, by the subscriber unit, a second allocation of
`OFDMA subcarriers basedon atleast the providing ofthe second
`feedback information selected by the base station for use by the
`subscriber unit, the second allocation of OFDMA subcarriers
`including an indication of a modulation and coding rate
`associated with the second allocation of OFDMA subcarriers, the
`second allocation of OFDMA subcarriers being different from
`
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`Patent 8,934,375 B2
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`the first allocation of OFDMA subcarriers, the first and second
`allocations of OFDMA subcarriers being received by the
`subscriber unit at two different times.
`
`Petitioner argues that, as discussed above, the combination ofRitter,
`
`Gesbert, and Thoumydisclosesthis limitation. Pet. 29-32. As discussed
`
`above,Petitioner argues that Ritter discloses that the base station evaluates
`
`information received and assigns each mobile station a segment. See Pet. 22
`
`(citing Ex. 1004, 15; Ex. 1002 § 77). As further discussed above,Petitioner
`
`argues Thoumydiscloses that the base station transmits information
`
`concerningallocated subcarriers to the subscriber unit, and includes an
`
`indication of modulation and coding. See Pet. 23 (quoting Ex. 1007, 31:16—
`
`22; citing Ex. 1002 ] 79). As also discussed above, Petitioner further argues
`
`that the best suited segments are determined at any time, and Gesbert
`
`discloses that the process of selecting the moderepeatsitself, thereby
`
`accounting for changing conditions of the channel. Pet. 29-30. Petitioner
`
`further argues that Thoumydiscloses “adaptively reconfiguring the
`
`modulation based on current transmission conditions.” Jd. at 30 (citing Ex.
`
`1007, 13:15-22). Based on the contentions discussed above, Petitioner has
`
`shownsufficiently on this record that the combination of Ritter, Gesbert, and
`
`Thoumyteaches or suggests each limitation of independent claims 1 and 17.
`
`Petitioner further articulates multiple reasons to combine the
`
`references, with rational underpinnings, in support of the conclusion of
`
`obviousness. See Pet. 15—17, 20-22, 24—26, 31-32. For example, Petitioner
`argues that the combination ofthe use of “pilot symbols,” as disclosed by
`Gesbert, to Ritter’s OFDMA system is nothing more than the application of
`
`a knowntechnique that would yield nothing more than predictable results.
`
`Pet. 15-16. Petitioner argues that the technique of using “pilot symbols”
`
`17
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`within an “OFDMA wireless communications system to measure channel
`quality was well known in the art at the time ofthe alleged invention, and
`was a simple design choice from among manypossible alternatives.” Id.”
`(citing Ex. 1005, 8:13—34). Petitioner further asserts that the 7375 patent
`" specification discloses that the use of “pilot symbols”in this manner was
`well known.
`/d. (citing Ex. 1001, 9:14-17). Petitioner similarly argues that
`_ the technique of communicating an index to a modulation and codingrate, as
`disclosed by Gesbert, to Ritter’s OFDMA system is nothing more than the —
`application of a known technique that would yield nothing more than
`predictable results. Pet. 20-21’ Petitioner also similarly argues that
`adaptive modulation and coding, as disclosed by Gesbert and Thoumy,to
`- Ritter’s OFDMA system is nothing more than the application of a known |
`technique that wouldyield nothing more than predictable results. Pet. 25—
`26. Petitioner provides sufficient evidence, including declaration testimony,
`to support these allegations sufficiently on this record. See, e.g., Ex.
`©
`1002 49] 72-75.
`|
`}
`Patent Ownerarguesthat Petitioner’s combination of Ritter and
`Gesbert is improper, and, therefore, cannotbe relied uponto disclose
`“measuring, at a first time by a subscriber unit, a first channel information
`for a plurality of subcarriers based onafirst plurality of pilot symbols
`received fromabasestation,” as recited by independent claim 1 and as
`similarly recited by independent claim 17. Prelim. Resp. 11-13.
`Specifically, Patent Owner argues that Ritter “departed from the use ofpilot
`symbols, and instead invented a novel method of measurementto save
`valuable ‘overhead.’” Jd. at 13. Accordingly, Patent Ownerarguesthat
`
`substituting Ritter’s novel approach with the use of “pilot symbols,” as
`
`18
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`A
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`disclosed by Gesbert, would changethe basic principles under whichRitter
`
`was designed to operate. Jd. We are not persuaded that a person with
`
`ordinary skill in the art would not have found it obvious to combine
`Gesbert’s use of “pilot symbols” to Ritter’s OFDMA system. Asarticulated
`
`by Petitioner, the technique of using “pilot symbols” within an “OFDMA
`
`wireless communication[s] system to measure channel quality was well
`
`knownin the art at the time of the alleged invention, and was a simple
`
`design choice from among manypossible alternatives.” Pet. 15-16 (citing
`
`Ex. 1005, 8:13-34). The ’375 patent specification also discloses that this
`
`technique was well known.
`
`/d. (citing Ex. 1001, 9:14-17). Although Ritter
`
`may disclose a more “sophisticated” approach to taking measurements(see
`
`Prelim. Resp. 11-12 (citing Ex. 2001 {J 245, 261, 263)), a person with
`
`ordinary skill in the art would have recognizedthat substituting a well-
`known methodfor taking measurements, such as the use of “pilot symbols,”
`
`for even a more “sophisticated” method, would yield nothing more than
`
`predictable results. Accordingly, on the record before us, we are not
`persuaded by Patent Owner’s argumentthat Petitioner’s combination of
`Ritter and Gesbert is improperand, therefore, Petitioner improperly relied on
`
`the combination of Ritter and Gesbert.
`
`Patent Ownerfurther argues that the combination of Ritter, Gesbert,
`
`and Thoumyfails to disclose “measuring, at a second time by the subscriber
`unit, a second channelinformationfor the plurality of subcarriers based on a
`second plurality of pilot symbols,”as recited by independent claim 1 and as
`similarly recited by independent claim 17. Prel