Trials@uspto.gov
`571-272-7822
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`Paper 10
`Date Entered: June 10, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KYOCERA CORPORATION, and
`KYOCERA COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`ADAPTIX, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00318
`Patent 7,454,212 B2
`____________
`
`Before GLENN J. PERRY, TREVOR M. JEFFERSON, and
`JUSTIN BUSCH, Administrative Patent Judges.
`
`PERRY, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`571-272-7822
`
`
`
`Paper 10
`Date Entered: June 10, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`KYOCERA CORPORATION, and
`KYOCERA COMMUNICATIONS, INC.,
`Petitioner,
`
`v.
`
`ADAPTIX, INC.,
`Patent Owner.
`____________
`
`Case IPR2015-00318
`Patent 7,454,212 B2
`____________
`
`Before GLENN J. PERRY, TREVOR M. JEFFERSON, and
`JUSTIN BUSCH, Administrative Patent Judges.
`
`PERRY, Administrative Patent Judge.
`
`DECISION
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`IPR2015-00318
`Patent 7,454,212 B2
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`INTRODUCTION
`
`A. Background
`
`
`
`Kyocera Corporation and Kyocera Communications Inc. (collectively,
`
`“Petitioner”) filed a Petition (Paper 1, “Pet.”) requesting an inter partes
`review of claims 1, 8–13, 15, 18, 19, and 23–29 of U.S. Patent No.
`7,454,212 B2 (Ex. 1003, “the ’212 patent”). Adaptix, Inc. (“Patent Owner”)
`filed a Preliminary Response. Paper 6 (“Prelim. Resp.”). We have
`jurisdiction under 35 U.S.C. § 314(a), which provides that an inter partes
`review may not be instituted unless “the information presented in the
`petition . . . shows that there is a reasonable likelihood that the petitioner
`would prevail with respect to at least 1 of the claims challenged in the
`petition.” See 37 C.F.R. § 42.108(c). For reasons that follow, we deny the
`petition.
`
`B. Related Proceedings
`
`Petitioner indicates that the ’212 patent is involved in numerous
`lawsuits pending in district courts in Texas and California. Pet. 1–2. The
`’212 patent is also involved in Case IPR2014-01525 (Decision to Institute
`April 8, 2015) brought by a different Petitioner. The ’212 patent was
`involved in Case IPR2014-01408 brought by a different Petitioner and
`which was terminated prior to a decision on its Petition.
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`THE ’212 PATENT
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`
`
`A. The Invention
`The ’212 patent describes a particular technique1 for adaptive channel
`allocation of subcarriers of an orthogonal frequency division multiple access
`(OFDMA) cellular communications system including multiple base stations
`and multiple subscriber units. Ex. 1003, Abstract. It is described as a
`“distributed, reduced-complexity approach.” Id. at 3:4–5. Each subscriber
`unit uses pilot symbols received from its subcarrier allocating base station to
`measure “channel and interference information” for available subcarriers.
`Id. at Abstract. The ’212 patent specification describes as an example that
`the “channel and interference information” can be determined by measuring
`a “signal-to-interference plus noise ratio (SINR)”. Id. at 3:21. A subscriber
`unit making measurements selects “candidate subcarriers.” Id. at Abstract.
`An allocating base station receives a list of the “candidate subcarriers” and,
`based on additional information, prunes the set of “candidate subcarriers” to
`a smaller subset of “selected subcarriers.” The subscriber unit, after
`receiving the “selected subcarriers” provides “additional feedback” to the
`base station which updates its subcarriers for communicating with the base
`station. Id.
`
`B. Illustrative Claims
`
`Among the challenged claims, Independent claims 1 and 18, both
`reproduced below, are illustrative.
`1. A method for subcarrier selection for a system
`employing orthogonal frequency division multiple access
`
`1 From the list of references and citations in those references, there appear to
`be many different techniques for dynamic channel allocation.
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`(OFDMA) comprising:
`
` a
`
` subscriber unit measuring channel and interference
`information for a plurality of subcarriers based on pilot symbols
`received from a base station;
`
`the subscriber unit selecting a set of candidate
`subcarriers;
`
`the subscriber unit providing feedback information on the
`set of candidate subcarriers to the base station;
`
`the subscriber unit receiving an indication of subcarriers
`of the set of subcarriers selected by the base station for use by
`the subscriber unit; and
`
`the subscriber unit submitting updated feedback
`information, after being allocated the set of subcarriers to be
`allocated an updated set of subcarriers, and thereafter the
`subscriber unit receiving another indication of the updated set
`of subcarriers.
`
`
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`18. An apparatus comprising:
`
` a
`
` plurality of subscriber units in a first cell operable to
`generate feedback information indicating clusters of subcarriers
`desired for use by the plurality of subscriber units; and
`
` a
`
` first base station in the first cell,
`
`
`the first base station operable to allocate OFDMA
`subcarriers in clusters to the plurality of subscriber units;
`
`each of said plurality of subscriber units to measure
`channel and interference information for the plurality of
`subcarriers based on pilot symbols received from the first base
`station and at least one of the plurality of subscriber units to
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`select a set of candidate subcarriers from the plurality of
`subcarriers, and
`
`said at least one subscriber unit to provide feedback
`information on the set of candidate subcarriers to the base
`station and to receive an indication of subcarriers from the set
`of subcarriers selected by the first base station for use by the at
`least one subscriber unit, and wherein the subscriber unit
`submits updated feedback information after being allocated the
`set of subscriber units to receive an updated set of subcarriers
`and thereafter receives another indication of the updated set of
`subcarriers.
`
`C. Asserted Grounds of Unpatentability
`
`Petitioner asserts the following challenges under 35 U.S.C. § 103(a)
`against claims 1, 8–13, 15, 18, 19, and 23–29 (Pet. 5).
`
`Prior Art
`
`Claim(s)
`
`Frodigh2 and Sollenberger3
`
`Frodigh, Sollenberger, and Ritter4
`
`Frodigh and Chuang5
`
`Frodigh, Chuang, and Ritter
`
`1, 8, 11–13, 18, 19, 23, and
`26–28
`1, 8–13, 15, 18, 19, 23–27,
`and 29
`1, 8, 11–12, 18, 23, and 26–
`28
`1, 8–12, 15, 18, 23–27,
`and 29
`
`
`2 U.S. Patent No. 5,726,978, Mar. 10, 1998 (Ex. 1004, “Frodigh”).
`3 U.S. Patent No. 6,052,594, Apr. 18, 2000 (Ex. 1005, “Sollenberger”)
`4 DE 19800953 C1, July 29, 1999. The parties refer to Exhibit 1006 as
`“Ritter,” which is an English translation of DE 19800953 C1. The German
`patent document has been entered as Exhibit 1015.
`5 J. C-I Chuang, N. R. Sollenberger, and D. C. Cox, A Pilot Based Dynamic
`Channel Assignment Scheme for Wireless Access TDMA/FDMA Systems, 2
`1993 2ND IEEE INT’L CONF. ON UNIVERSAL PERSONAL COMMC’NS 706–712
`(1993). Exhibit 1007 (“Chuang”).
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`Prior Art
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`Claim(s)
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`Alamouti6, Minegishi7, and Ritter
`
`1, 8–13, 15, 18, 19, 23–26,
`and 29
`
`CLAIM CONSTRUCTION
`
`A. Claim Interpretation
`
`In an inter partes review, the Board construes claim terms in an
`unexpired patent using their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,764 (Aug. 14,
`2012).
`Petitioner submitted various claim term constructions adopted by the
`District Court in related litigation. Pet. 7–13. Patent Owner indicated
`agreement with certain of those terms. See Prelim. Resp. 6–9.
`
`B. “pilot symbol” (claims 1 and 18)
`
`Patent Owner agrees with the meaning of “pilot symbols” articulated
`by the District Court in related litigation as “symbols, sequences, or signals
`known to both the base station and subscriber.” Prelim. Resp. 9, Ex. 1013,
`17. According to the ’212 specification,
`Referring to FIG. 1B, each base station periodically
`broadcasts pilot OFDM symbols to every subscriber
`within its cell (or sector) (processing block 101). The pilot
`symbols, often referred to as a sounding sequence or
`signal, are known to both the base station and the
`subscribers. In one embodiment, each pilot symbol covers
`the entire OFDM frequency bandwidth. The pilot symbols
`
`6 U.S. Patent 5,933,421, Aug. 3, 1999 (Ex. 1008, “Alamouti”).
`7 U.S. Patent 6,072,988, June 6, 2000 (Ex. 1009, “Minegishi”).
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`may be different for different cells (or sectors). The pilot
`symbols can serve multiple purposes: time and frequency
`synchronization, channel estimation and signal-to-
`interference/noise (SINR) ratio measurement for cluster
`allocation.
`Ex. 1003, 5:32–42. We agree with the District Court construction and adopt
`it.
`
`
`
`C. “channel and interference information”
` (claims 1 and 18) and “SINR” (claim 19)
`
`The parties have not proposed a construction of “channel and
`interference information” appearing in claims 1 and 18. The parties do,
`however, propose different constructions for “SINR” appearing in claim 19,
`which depends from claim 18. We construe “SINR” in dependent claim 19
`to be a more specific characterization of “channel and interference
`information,” recited in claim 18.
`Patent Owner agrees with the meaning of “SINR” articulated by the
`District Court as “signal-to-interference-plus-noise ratio.” Ex. 1010, 23.
`Patent Owner notes that the specification expressly defines the term SINR as
`“signal-to-interference-plus-noise ratio.” Ex. 1003, 3:21.
`Petitioner asserts that, despite the District Court’s construction of
`SINR to mean “signal-to-interference-plus-noise ratio,” the Board should
`construe SINR to mean “signal-to-interference-plus-noise ratio and related
`measures such as signal-to-interference ratio (SIR or S/I), carrier-to-
`interference-plus-noise ratio (C/(I+N)), and carrier-to-interference ratio
`(C/I).” Pet. 9. To support this assertion, Petitioner reasons that “[b]ecause,
`the ‘noise’ is fixed while the interference is variable and often substantially
`larger than noise, the terms ‘signal-to-interference ratio’ (SIR or S/I, or C/I,
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`where C stands for ‘carrier,’ which is equivalent to ‘signal’) and ‘signal-to-
`interference-plus-noise-ration’ (SINR) can be broadly used
`interchangeably.” Id.
`We are not persuaded by Petitioner to adopt Petitioner’s proposed
`equivalence of these ratios, each of which appears to have a clear meaning
`on its own. While there may be situations (e.g., noise fixed) in which two
`different measurements provide the same result, there is no reason to adopt a
`sweeping equivalence.
`Based on the literal claim language and the doctrine of claim
`differentiation, we construe “channel and interference information”
`(appearing in independent claims 1 and 18) to be broader than the term
`“SINR.” “Channel and interference information” is not defined in the ’212
`patent specification and there is no evidence presented that it is a term of art.
`For purposes of this opinion, we construe the term as including various
`measurements that characterize a channel’s signal strength and interference.
`SINR is a specific example of such a characterization. See Ex. 1003, 3:21.
`
`D. Preamble (claim 1)
`
`Petitioner argues that the preamble of claim 1 should not be regarded
`as limiting it to OFDMA. Pet. 10. Patent Owner argues that the preamble
`should be limiting for three reasons: 1) claim 1 should be differentiated
`from claim 32; 2) the ’212 patent specification describes enabling subcarrier
`selection in a cellular system; and 3) the preamble provides context for
`understanding the measuring step of claim 1. Prelim. Resp. 6–7.
`For purposes of this decision we do not regard the preamble limitation
`“OFDMA” to be limiting. First, there is no need for the claim 1 preamble to
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`differentiate from claim 32 — as there are differences between these claims
`other than the OFDMA limitation in the preamble of claim 1. Second, there
`is no persuasive evidence of record that the steps described by the body of
`claim 1 can not be carried out in a cellular system that is not OFDMA.
`Third, there is no persuasive evidence in the record thus far that the
`measuring step of claim 1 only makes sense in an OFDMA system. Such
`evidence may be presented at trial, but is not presently in the record. Thus,
`for purposes of this decision, we regard claim 1 as not being limited to
`OFDMA.
`
`REFERENCES AND ARGUMENTS
`
`A. Frodigh and Sollenberger
`
`Petitioner submits that the subject matter of claims 1, 8, 11–13, 18,
`19, 23, and 26–28 would have been obvious over the combination of
`Frodigh and Sollenberger. Petitioner provides a detailed analysis of each of
`the claims, applies the prior art, and relies on the testimony of Nicholas
`Bambos, Ph.D. Pet. 13–36; Exhibit 1012. Petitioner relies on the same
`portions of Frodigh and Sollenberger with respect to both independent
`claims 1 and 18. Pet. 14–16, 33. For both claims 1 and 18, Petitioner relies
`upon Frodigh for all claim features except for the claim limitation requiring
`channel and interference measurements based on pilot symbols received
`from a base station. For this feature, Petitioner relies upon Sollenberger.
`See e.g., Pet. 15.
`
`1. Frodigh
`
`Frodigh describes a method and system of adaptive channel allocation
`(ACA) in an orthogonal frequency division multiplexed (OFDM) system to
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`lower co-channel interference between cells. Ex. 1004, 4:25–31. Frodigh
`Fig. 2 is reproduced below.
`
`
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`
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`Frodigh Figure 2 illustrates allocation of subcarriers in an orthogonal
`frequency division multiplexed system. Ex. 1004, 5:30–33. Base station
`200 communicates with mobile station 202 over downlink 206 and uplink
`208. Base station 200 also communicates with mobile station 204 over
`downlink 210 and uplink 212. Transmissions on links 206, 208, 210 and
`212 are made over the system RF channel. Voice and data to be transmitted
`on each link are modulated onto a number (M) of subcarriers. Each link
`206, 208, 210 and 212, within the cell uses a separate subset of M
`subcarriers. Particular subcarriers may only be used for one link at a time
`within a cell. Ex 1004, 7:51–63.
`An initial subset of M subcarriers is chosen from a larger group of N
`subcarriers. Id. at 4:50–51. As communications take place on the M
`subcarriers, a mobile station periodically measures signal quality level (C/I)
`of the M subcarriers and the interference level (I) of all N available
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`subcarriers. Id. at 4:56–59. If it is determined that a more preferred unused
`subcarrier exists the system reconfigures the subset of M subcarriers to
`include the unused subcarrier. Id. at 4:62–67. An embodiment of Frodigh’s
`subcarrier substitution is illustrated in its Figure 6A, reproduced below.
`
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`Petitioner points to steps 628 and 630 of Frodigh Figure 6A. These
`steps indicate that a mobile station measures interference on all N
`subcarriers and measures C/I on subset M of the subcarriers. Pet. 14.
`
`2. Sollenberger
`
`Sollenberger describes dynamically assigning channels for wireless
`packet communications. Ex. 1005, [57] (Title). Sollenberger Figure 1 is
`reproduced below.
`
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`Sollenberger’s Figure 1 is a flow diagram showing an overview of its
`subcarrier assignment process. Ex. 1005, 7:16–17. A paging message is
`transmitted from a base station to a wireless station when a data packet is
`received for downlink transmission to the wireless station. “In response to
`the paging message, a level of each of a plurality of pilot frequency signals
`is detected at the wireless station. Each pilot frequency corresponds to a
`downlink traffic channel and is transmitted by base stations to which the
`downlink traffic channel is assigned.” Id. at 6:63–66. The wireless station
`generates a list of preferred traffic channels based on a priority order of
`traffic channels and on detected levels of the pilot frequency signals, and
`transmits the list to the associated base station (reference numeral 11, item 3)
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`which assigns a downlink traffic channel (reference numeral 12a). Ex. 1005,
`Abstract, Figure 1.
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`3. Combination of Frodigh and Sollenberger
`
`Petitioner relies upon Sollenberger with respect to limitations of
`claims 1 and 18 requiring channel measurements based on pilot symbols
`from a base station. Pet. 15.
`Patent Owner distinguishes between “channel information” and
`“interference information” and argues that Sollenberger measures only
`“interference information.” Prelim. Resp. 16–17. Given our construction of
`“channel and interference information” we are not persuaded by this
`argument.
`However, we do find persuasive Patent Owner’s argument that
`Sollenberger does not describe measuring channel and interference
`information based on pilot symbols transmitted from a base station that is
`the same as the allocating base station. Prelim. Resp. 15–19.
`Sollenberger states:
`
`In response to the paging message, a level of each of a
`plurality of pilot frequency signals is detected at the
`wireless station. Each pilot frequency signal corresponds
`to a downlink traffic channel and is transmitted by base
`stations to which the downlink traffic channel is assigned.
`Ex. 1005, 6:63–66. Sollenberger further states:
`According to the invention, a wireless station, such as a
`mobile station or wireless terminal, performs interference
`measurements for determining acceptable channels, from
`the point of view of the wireless station, after the wireless
`station has been informed by a base station of pending
`data packets for delivery to the wireless station. The
`wireless station scans a pilot signal frequency band using
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`fast Fourier transform (FFT) technique for detecting pilot
`signals that respectively correspond to channels that are
`currently being used for downlink transmission. A
`feedback channel is then used for informing a base station
`of acceptable channels. To avoid more than one wireless
`station in the same cell from selecting the same acceptable
`channel, a list of more than one acceptable channel is
`provided by the wireless station.
`Id. at 7:60–8:7.
`According to Patent Owner, Sollenberger measures power on
`subcarriers only to assess interference (power generated by interfering
`transmissions). Prelim. Resp. 15–16 (citing to Ex. 1005, 9:7–11). Given our
`construction of “channel and interference information” Sollenberger
`measures channel and interference information. However, Sollenberger’s
`measurements are made in response to paging signals and are carried out by
`listening to the pilot frequencies for competing downlink traffic.
`Sollenberger does not suggest making measurements based on the “pilot
`symbols” transmitted by the allocating base station. Rather, Sollenberger
`measures signal levels that are present on “pilot frequencies” that would
`interfere with use of those frequencies.
`The record does not establish that Sollenberger bases its
`measurements on “pilot symbols” from the allocating base station as claims
`1 and 18 require.
`Petitioner does not rely on Sollenberger as describing an OFDMA
`system. Petitioner acknowledges that Frodigh does not explicitly describe
`an OFDMA system. Petitioner relies on Dr. Bambos’ declaration testimony
`to establish that one of ordinary skill would regard Frodigh as describing
`OFDMA. Pet. 13.
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`Dr. Bambos testifies that one of ordinary skill would understand that
`Frodigh teaches OFDMA. His logic in arriving at this conclusion is
`essentially 1) the ’212 patent states that OFDMA is another method for
`multiple access using the basic format of OFDM (Ex. 1012, 33 (citing Ex.
`1003, 2:39–43)); 2) Frodigh teaches an OFDM system adapted for multiple
`mobile stations (Id. (citing Ex. 1004, 4:25–31, Fig. 2, 202 and 204)); and 3)
`multiple mobile stations use different subcarriers at the same time (Id.
`(citing Ex. 1004, 7:51–63, Fig. 2, 206, 208, 210 and 212)). Therefore, Dr.
`Bambos concludes, one of ordinary skill in the art would conclude that
`Frodigh teaches an OFDMA system.
`We do not find this logic to be persuasive. It is inappropriate for Dr.
`Bambos to rely on the ’212 patent itself to argue what Frodigh teaches. In
`addition, there are ways other than OFDMA to make an OFDM modulation
`scheme available to multiple subscribers (e.g. TDMA). For at least these
`reasons, we are not persuaded that Frodigh teaches OFDMA.
`Recognizing the potential weakness that neither Frodigh nor
`Sollenberger describes an OFDMA system, Petitioner proposes a “Ground
`2” challenge that includes Ritter (see below), which describes an OFDMA
`system.
`Because neither Frodigh nor Sollenberger describe an OFDMA
`system as required by independent claim 18, we decline to grant the Petition
`as to independent claim 18 and its dependent claims 19, 23, and 26–28 based
`only on Frodigh and Sollenberger.
`Accordingly, we determine that Petitioner has not established a
`reasonable likelihood of prevailing in establishing that claims 1, 8, 11–13,
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`18, 19, 23, and 26–28 are unpatentable as obvious over Frodigh and
`Sollenberger.
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`B. Frodigh, Sollenberger, and Ritter
`
`Petitioner submits that the subject matter of claims 1, 8–13, 15, 18,
`19, 23–27, and 29 would have been obvious over the combination of
`Frodigh, Sollenberger, and Ritter. Petitioner submits a detailed analysis of
`each of the claims, applies the prior art, and relies on the testimony of
`Professor Nicholas Bambos. Pet. 13–36 (discussing Frodigh and
`Sollenberger) and Pet. 36–42 (including discussion of Ritter); Exhibit 1012.
`The only substantial difference between this challenge and the one
`above relying only on Frodigh and Sollenberger is that Ritter is cited for its
`teaching of OFDMA. See “Ground 2” claim chart at Pet. 36–37. Petitioner
`does not rely upon Ritter regarding measurement of channel and interference
`information based on pilot symbols from an allocating base station. Thus,
`the addition of Ritter does not overcome the insufficiency of Sollenberger’s
`teaching noted above.
`The addition of Ritter does not overcome the deficiencies noted with
`respect to claim 1, above. These deficiencies also apply to claim 18.
`Accordingly, we determine that Petitioner has not established a
`reasonable likelihood of prevailing in establishing that claims 1, 8–13, 15,
`18, 19, 23–27, and 29 are unpatentable as obvious over Frodigh,
`Sollenberger, and Ritter.
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`C. Frodigh and Chuang
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`Petitioner submits that the subject matter of claims 1, 8, 11–12, 18,
`23, and 26–28 would have been obvious over the combination of Frodigh
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`and Chuang. Petitioner provides a claim chart (Pet 42) that discusses
`Chuang only with respect to the “pilot symbol” limitation. Petitioner also
`relies on the testimony of Professor Nicholas Bambos. Pet. 42–44; Exhibit
`1012.
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`1. Chuang
`
`Chuang is an article describing pilot-based dynamic channel
`assignment in a TDMA8 system. Ex. 1007, Title.
`
`2. Combination of Frodigh and Chuang
`
`Petitioner relies upon Chuang only as meeting the claim 1 and claim
`18 limitations requiring measurements “based on pilot symbols received
`from a base station.” Petitioner relies upon Frodigh as meeting the
`remaining limitations of claims 1 and 18. Pet. 42.
`Patent Owner argues that Chuang (like Sollenberger) does not teach
`measuring both channel and interference information based on pilot
`symbols. Prelim. Resp. 32. We agree with Patent Owner’s argument
`(Prelim. Resp. 34–35) that Chuang utilizes “beacons” to determine which
`port to communicate with, and not to determine strength of traffic
`subcarriers.
`Accordingly, we determine that Petitioner has not established a
`reasonable likelihood of prevailing in establishing that claims 1, 8, 11–12,
`18, 23, and 26–28 are unpatentable as obvious over Frodigh, and Chuang.
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`8 Time Division Multiple Access.
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`D. Frodigh, Chuang, and Ritter
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`Recognizing the potential weakness that neither Frodigh nor Chuang
`describe OFDMA systems, Petitioner includes a “Ground 4” challenge
`including Ritter, which describes an OFDMA system. However, Ritter is
`not cited as meeting any of the limitations for which Petitioner relies upon
`Frodigh and Chuang.
`Accordingly, we determine that Petitioner has not established a
`reasonable likelihood of prevailing in establishing that claims 1, 8–12, 15,
`18, 23–27, and 29 are unpatentable as obvious over Frodigh, Chuang, and
`Ritter.
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`E. Alamouti, Minegishi, and Ritter
`
`Petitioner submits that the subject matter of claims 1, 8–13, 15, 18,
`19, 23–26, and 29 would have been obvious over the combination of
`Alamouti, Minegishi, and Ritter. Petitioner submits a detailed analysis of
`each of the claims, applies the prior art, and relies on the testimony of
`Professor Nicholas Bambos. Pet. 44–60; Exhibit 1012.
`
`1. Alamouti
`
`Alamouti describes a method for frequency division duplex
`communication. Ex. 1008, Title. More specifically, it utilizes a
`combination of time division duplex (TDD), frequency division duplex
`(FDD), time division multiple access (TDMA) and orthogonal frequency
`division multiplexing (OFDM). Ex. 1008, Abstract. Its multiple subscriber
`access is achieved using TDMA and not OFDMA.
`
`18
`
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`
`IPR2015-00318
`Patent 7,454,212 B2
`
`
`
`2. Minegishi
`
`
`
`Minegishi describes a mobile communication system that allocates
`optimum traffic channels among mobile stations. Ex. 1009, Title, Abstract.
`
`3. Combination of Alamouti, Minegishi, and Ritter
`
`Patent Owner argues that the combination of references does not
`disclose a subscriber unit that submits updated feedback information in order
`to receive a new set of subcarriers after being allocated a first set of
`subcarriers, as required by independent claims 1 and 18. Prelim. Resp. 41.
`We agree with Patent Owner that, according to Alamouti, once channels are
`allocated, there is no feedback from the subscriber unit to the base. We note
`the “procedure” set forth in Alamouti at column 24. Ex. 1008, 24:23–46.
`Petitioner acknowledges (Pet. 49) that reliance on Alamouti requires
`that we find that one of ordinary skill would have understood by December
`1999 that conditions encountered by subscriber units would be changing
`with a very short time scale and that it would be appropriate to repeat
`reporting and assignment, as claimed. We are not willing to make that leap
`on this record.
`Petitioner looks to Minegishi (Pet. 48–49) to overcome this deficiency
`by pointing to Ex. 1009, 2:65–3:26 whereat Minegishi discloses re-taking
`measurements on a set of candidate channels after that set is first identified
`based on channel quality measurements. However, Patent Owner correctly
`notes that Minegishi retakes measurements, but not after allocation. Patent
`Owner further notes that Minegishi takes these measurements during
`standby mode operation. Ex. 1009, 3:46–50. Thus, Minegishi is searching
`regularly during standby mode to establish a good channel list. Then, when
`
`19
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`IPR2015-00318
`Patent 7,454,212 B2
`
`
`it is time to transmit, it uses the list it has established, thereby eliminating
`delays in allocating channels with a back and forth process with the base
`station, such as the double feedback scheme described by claims 1 and 18.
`Accordingly, we determine that Petitioner has not established a
`reasonable likelihood of prevailing in establishing that claims 1, 8–13, 15,
`18, 19, 23–26, and 29 of the ’212 patent are unpatentable as obvious over
`Alamouti, Minegishi, and Ritter.
`
`
`
`F. Objective Evidence of Non-obviousness
`
`In view of our conclusions above, we do not reach the issue of Patent
`Owner’s objective evidence of non-obviousness.
`
`CONCLUSION
`
`For the foregoing reasons, Petitioner has not persuaded us that the
`information presented in the Petition establishes a reasonable likelihood that
`Petitioner would prevail in establishing that claims 1, 8–13, 15, 18, 19, and
`23–29 are unpatentable.
`
`ORDER
`
`For the reasons given, it is hereby
`ORDERED that the Petition is denied and no inter partes review is
`instituted.
`
`
`20
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`IPR2015-00318
`Patent 7,454,212 B2
`
`
`For PETITIONER:
`Marc Weinstein
`Quinn Emanuel Urquhart & Sullivan, LLP
`marcweinstein@quinnemanuel.com
`
`
`
`
`
`For PATENT OWNER:
`Amedeo Ferraro
`Wesley Meinerding
`Martin & Ferraro, LLP
`aferraro@martinferraro.com
`wmeinerding@martinferraro.com
`
`
`21
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