Trials@uspto.gov
`571.272.7822
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` Paper No. 9
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`Filed: September 20, 2016
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`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 C.F.R. § 42.108
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`IPR2016-00823
`Patent 8,934,375 B2
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`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. Paper 8 (“Prelim. Resp.”). We have jurisdiction under 35 U.S.C.
`§ 314(a), which provides that an inter partes review may not be 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 likelihood that it
`would prevail in showing the unpatentability of claims 1, 3, 15‒17, 19, and
`31‒32 of the ’375 patent. Thus, we institute an inter partes review of claims
`1, 3, 15‒17, 19, and 31‒32 of the ’375 patent. We further conclude that
`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 not institute an inter partes review of claims 9, 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.
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`IPR2016-00824, filed concurrently, also challenges the ’375 patent.
`Sprint Spectrum L.P. v. Adaptix, Inc., Case IPR2016-00824.
`B. The ʼ375 Patent (Ex. 1001)
`The ’375 patent discloses methods and apparatuses for allocating
`
`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 base station.
`Id. at 3:24–29. The performance parameter measurements may be based
`upon pilot symbols provided by the base station. Id. 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. Id. at 3:37–39. Subsequently, the base station informs each
`subscriber of its respective subcarrier allocation. Id. at 3:55–57. This
`process is repeated periodically and/or when channel deterioration is
`observed. Id. 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.
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`In accordance with the process depicted above in Figure 1B, each base
`station periodically broadcasts pilot OFDM symbols to every subscriber
`(step 101). Id. at 5:36–38. Each subscriber continuously monitors the
`reception of the pilot symbols and measures associated performance
`parameters (step 102). Id. at 5:47–50. Then, each subscriber selects one or
`more clusters with good performance and feeds back to the base station
`information regarding these candidate clusters (step 103). Id. 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
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`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. Claim 1 is illustrative of the claims at issue and is
`reproduced below:
`1.
`A method for a wireless system employing orthogonal
`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 on a first
`plurality of pilot symbols received from a base station;
`providing, by the subscriber unit, a first feedback
`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 feedback cluster 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 the first allocation of OFDMA subcarriers;
`measuring, at a second time by the subscriber unit, a
`second channel information for the plurality of subcarriers based
`on a second plurality 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 second plurality of pilot
`symbols, the second feedback information relating to the
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`References
`
`Ritter,2 Gesbert,3 and Thoumy4
`Ritter, Gesbert, Thoumy, and
`Gitlin5
`Thoumy and Gesbert
`
`plurality of feedback clusters based on the second plurality 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 based on at least the providing of the 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 presented in the Petition sets forth proposed grounds
`of unpatentability of claims 1, 3, 9‒10, 12, 15‒17, 19, 25‒26, 28, and 31‒32
`of the ’375 patent under 35 U.S.C. § 103(a) as follows (see Pet. 5–56):1
`Claims
`Challenged
`1, 9, 12, 15‒17, 25, 28, and 31‒32
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`3, 10, 19, and 26
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`1, 9, 15‒17, 25, 31, and 32
`
`
`1 Petitioner supports its challenge with the Declaration of Richard D. Gitlin,
`Sc.D. Ex. 1002.
`2 The parties 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.
`3 U.S. Patent No. 6,760,822 B1; issued July 6, 2004 (Ex. 1005) (“Gesbert”).
`4 U.S. Patent No. 7,039,120 B1; issued May 2, 2006 (Ex. 1007) (“Thoumy”).
`5 U.S. Patent No. 6,018,528; issued Jan. 25, 2000 (Ex. 1006) (“Gitlin”).
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`References
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`Thoumy, Gesbert, and Gitlin
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`Claims
`Challenged
`3, 10, 12, 19, 26, and 28
`
`II. ANALYSIS
`A. 35 U.S.C. § 325(d)
`Patent Owner argues that “[t]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 of the prior
`applications. Id. at 4. Patent Owner further argues that the Examiner
`“considered Gesbert in three of the prior applications and considered Gitlin
`in one of the prior applications.” Id. Patent Owner represents that two of
`the prior applications, now two patents, were the subject of two inter partes
`reviews, and additionally represents that Ritter, Gesbert, and Gitlin were
`identified by defendants in various litigation proceedings. Id. Patent Owner
`appears to rely on this information in arguing that the Board should deny this
`Petition under 35 U.S.C. § 325(d) because it raises substantially the same
`prior art or arguments previously presented to the Office. Id. at 1.
`Petitioner seeks inter partes review of claims 1, 3, 9‒10, 12, 15‒17,
`19, 25‒26, 28, and 31‒32 of the ’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 submitted five
`Information Disclosure Statements, citing over 1,400 references. Id. at 4‒5.
`Petitioner asserts that the Examiner noted “the number of references
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`submitted is unreasonably large in quantity and without any indication of
`relevancy.” Id. (quoting Ex. 1013).
`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 whether to institute or order a proceeding”
`for inter partes review, “the Director may take into account” that factor, and
`“reject the petition” on that basis).
`We are 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. 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 been considered in the prosecution of the ’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 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, the Examiner during the prosecution of the ’375 patent, we do not
`consider Ritter, Gesbert, and Gitlin to have been previously presented before
`the Office in a manner sufficient to warrant denial of the Petition.
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`Accordingly, we decline to use our discretion and deny this Petition
`because only some of the prior art were considered during the prosecution of
`other related patent applications.
`B. Claim Construction
`The Board interprets 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 one of 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 construed to
`mean “symbols, sequences, or signals known to both the base station and
`subscriber.” Pet. 6 (citing Exs. 1011, 1012). Petitioner asserts that the ’375
`patent specification discloses that “pilot symbols, often referred to as a
`sounding sequence or signal, are known to both the base station and the
`subscribers.” Id. (citing Ex. 1001, 5:38‒40). Patent Owner does not proffer
`a construction for this 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 both the base station and
`subscriber,” for the purposes of this decision.
`2. “Cluster”
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`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 argues that
`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.”
`On this 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, independent claims
`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 between a 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 of Claims 1, 9, 12, 15‒17, 25, 28, and 31‒32 over Ritter,
`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,
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`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. For the
`reasons discussed 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.
`
`1. Ritter (Ex. 1004)
`Ritter discloses methods and systems for allocating radio resources in
`an OFDMA system comprising a base station and multiple mobile stations.
`Ex. 1004, 3–5, 13–14.6 As described in Ritter, each mobile station measures
`the quality of various segments of 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 on the relative
`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 mobile station.
`Id. at 6–7.
`
`2. Gesbert (Ex. 1005)
`Gesbert discloses methods and systems for 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 numbers indicated by the publication itself, and
`different page numbers provided by Petitioner. Our references are to the
`page numbers of the exhibit provided by Petitioner.
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`Data encoded in accordance with an initial mode is transmitted from the
`transmit unit to the receive unit. Id. at 2:59–61. Quality parameters are
`sampled in the data received by the receive unit. Id. at 2:61–62. And a
`subsequent mode for encoding the data is selected based on first-order and
`second-order statistical parameters of the quality parameters. Id. at 2:59–65.
`As described in Gesbert, a mode may include a modulation rate and a coding
`rate. Id. at 3:6–37. The modulation rate and data rate of a mode may be
`indexed by a mode number for identification. Id. at 3:37–39. Quality
`parameters may include signal-to-interference and noise ratio (SINR),
`signal-to-noise ratio (SNR), and/or power level. Id. 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. Id. 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
`measurement is attributed to each group of data to be transmitted via the
`carrier frequencies. Id. at Abstract. The most significant 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 order of significance. Id. at Abstract, 5:29–35.
`4. Analysis
`The evidence set forth by Petitioner indicates there is a reasonable
`likelihood that Petitioner will prevail in showing that claims 1, 15‒17, and
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`31‒32 are unpatentable under 35 U.S.C. § 103(a) as obvious. See Pet. 11–
`37. The evidence set forth by Petitioner does not indicate that there is a
`reasonable likelihood that Petitioner will prevail in showing that claims 9,
`12, 25, and 28 are 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 number of 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 subscriber unit,
`a first channel information for a plurality of subcarriers based on a first
`plurality of pilot symbols received from a base station.” Petitioner argues
`that Ritter discloses measuring the quality of segments received by the
`mobile station from all subcarriers and forming an average value from the
`results of the test from all subcarriers belonging to a respective segment.
`Pet. 12‒13 (citing Ex. 1004, 9‒10; Ex. 1002 ¶ 57). Petitioner further argues
`that Gesbert discloses “measuring . . . based on a first plurality of pilot
`symbols.” Id. at 13‒14. Petitioner specifically argues that Gesbert discloses
`“an OFDMA system that performs subcarrier quality measurements based
`on training tones (known to both the subscriber and base station) received
`from the base station.” Id. (citing Ex. 1005, 7:16‒20, 7:57‒59, 8:13‒34).
`Claim 1 also recites:
`providing, by the subscriber unit, a first feedback
`information relating to a plurality of feedback clusters based on
`at least the measuring of the first channel information for the
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`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 segment for its communication link. Pet. 18‒19 (citing
`Ex. 1004, 13‒15; Ex. 1002 ¶ 69). Petitioner further argues that Gesbert
`discloses “an index corresponding to a first modulation and coding rate.”
`Petitioner specifically argues Gesbert discloses “that receive units (i.e.,
`subscriber units) transmit an index indicating a modulation and coding rate
`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 number so as to conveniently identify the modulation
`and coding rates,” and Table 1 of Gesbert illustrates the mode indices and
`corresponding modulation and coding rates. Id. (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 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 the first allocation of OFDMA subcarriers.
`Petitioner argues Ritter discloses that “[t]he base station, BS,
`evaluates all information received from the mobile stations, MS, and assigns
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`each mobile station a segment for the respective communication link
`depending on the evaluation.” Pet. 22 (citing Ex. 1004, 15; Ex. 1002 ¶ 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 Thoumy discloses that the base station transmits information
`concerning allocated subcarriers to the subscriber unit, and includes an
`indication of modulation and coding, where Thoumy specifically discloses
`“the transmission parameters, namely the number of carriers and the
`modulation . . . are transmitted . . . by the management unit . . . to the
`information reception unit . . . and to the information sending unit . . . with a
`view to the sending of these 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 channel information for the plurality of subcarriers based on a
`second plurality of pilot 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 determined to be used for
`the streams, subsequent modes are fed back and applied to the streams. Id.
`(citing Ex. 1005, 11:20‒25; Ex. 1002 ¶ 87). Petitioner argues Gesbert
`discloses that the process of selecting the mode repeats itself and, therefore,
`this accounts for the changing conditions of the channel. Id. (citing Ex.
`1005, 11:20‒25; Ex. 1002 ¶ 87).
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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 second plurality of pilot
`symbols, the second feedback information relating to the
`plurality of feedback clusters based on the second plurality 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.
`
`Petitioner argues that, as discussed above, the combination of Ritter
`and Gesbert discloses this limitation. Pet. 28. Petitioner argues that Ritter
`discloses that each mobile station measures the quality of segments and
`transmits a preferred segment for its communication link. See Pet. 18‒19
`(citing Ex. 1004, 13‒15; Ex. 1002 ¶ 69). As further discussed above,
`Petitioner argues that Gesbert discloses subscriber units transmitting an
`index indicating a modulation and coding rate 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 based on at least the providing of the 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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`the first allocation of OFDMA subcarriers, the first and second
`allocations of OFDMA subcarriers being received by the
`subscriber unit at two different times.
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`Petitioner argues that, as discussed above, the combination of Ritter,
`Gesbert, and Thoumy discloses this 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 Thoumy discloses that the base station transmits information
`concerning allocated 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 mode repeats itself, thereby
`accounting for changing conditions of the channel. Pet. 29‒30. Petitioner
`further argues that Thoumy discloses “adaptively reconfiguring the
`modulation based on current transmission conditions.” Id. at 30 (citing Ex.
`1007, 13:15‒22). Based on the contentions discussed above, Petitioner has
`shown sufficiently on this record that the combination of Ritter, Gesbert, and
`Thoumy teaches 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 of the use of “pilot symbols,” 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. 15‒16. Petitioner argues that the technique of using “pilot symbols”
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`within an “OFDMA wireless communications system to measure channel
`quality was well known in the art at the time of the alleged invention, and
`was a simple design choice from among many possible alternatives.” Id.
`(citing Ex. 1005, 8:13‒34). Petitioner further asserts that the ’375 patent
`specification discloses that the use of “pilot symbols” in this manner was
`well known. Id. (citing Ex. 1001, 9:14‒17). Petitioner similarly argues that
`the technique of communicating an index to a modulation and coding rate, 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 would yield 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 ¶¶ 72–75.
`Patent Owner argues that Petitioner’s combination of Ritter and
`Gesbert is improper, and, therefore, cannot be relied upon to disclose
`“measuring, at a first time by a subscriber unit, a first channel information
`for a plurality of subcarriers based on a first plurality of pilot symbols
`received from a base station,” 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 of pilot
`symbols, and instead invented a novel method of measurement to save
`valuable ‘overhead.’” Id. at 13. Accordingly, Patent Owner argues that
`substituting Ritter’s novel approach with the use of “pilot symbols,” as
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`disclosed by Gesbert, would change the basic principles under which Ritter
`was designed to operate. Id. 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. As articulated
`by Petitioner, the technique of using “pilot symbols” within an “OFDMA
`wireless communication[s] system to measure channel quality was well
`known in the art at the time of the alleged invention, and was a simple
`design choice from among many possible alternatives.” Pet. 15‒16 (citing
`Ex. 1005, 8:13‒34). The ’375 patent specification also discloses that this
`technique was well known. Id. (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 ¶¶ 245, 261, 263)), a person with
`ordinary skill in the art would have recognized that substituting a well-
`known method for 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 O