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` Paper No. 46
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` Entered: February 1, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-010211
`Patent 8,718,158 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`DECISION
`Denying Patent Owner’s Rehearing Request
`37 C.F.R. § 42.71
`
`
`
`
`1 DISH Network, L.L.C., who filed a Petition in IPR2017-00255, and
`Comcast Cable Communications, L.L.C., Cox Communications, Inc., Time
`Warner Cable Enterprises L.L.C., Verizon Services Corp., and ARRIS
`Group, Inc., who filed a Petition in IPR2017-00417, have been joined in this
`proceeding.
`
`
`
`IPR2016-01021
`Patent 8,718,158 B2
`
`
`INTRODUCTION
`I.
`Pursuant to 37 C.F.R. § 42.71(d), TQ Delta, LLC (“Patent Owner”)
`requests rehearing of our Final Written Decision (Paper 44, “Dec.”). Paper
`45 (“Req. Reh’g”). Specifically, Patent Owner submits that our construction
`of “scrambling the phase characteristics of the carrier signals”
`misapprehends or overlooks certain evidence, that Stopler2 does not disclose
`“scrambling the phase characteristics of the carrier signals,” that we
`misapprehended or overlooked certain testimony, and that we
`misapprehended that Shively3 would not have an increased or high PAR.
`Req. Reh’g passim.
`For the reasons set forth below, Patent Owner’s Request for
`Rehearing is denied.
`
`II. STANDARD OF REVIEW
`A party requesting rehearing bears the burden of showing that the
`decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
`specifically all matters we misapprehended or overlooked, and the place
`where each matter was addressed previously in a motion, an opposition, or a
`reply. Id. With this in mind, we address the arguments presented by Patent
`Owner.
`
`III. ANALYSIS
`
`A. “scrambling the phase characteristics of the carrier signals”
`Claim 1 recites “a method for scrambling the phase characteristics of
`the carrier signals, comprising.” We adopted Patent Owner’s proposed
`
`2 U.S. Patent No. 6,625,219 B1; issued Sept. 23, 2003 (Ex. 1012)
`(“Stopler”).
`3 U.S. Patent No. 6,144,696; issued Nov. 7, 2000 (Ex. 1011) (“Shively”).
`2
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`IPR2016-01021
`Patent 8,718,158 B2
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`construction in part by construing “scrambling the phase characteristics of
`the carrier signals” to mean “adjusting the phases of a plurality of carriers in
`a single multicarrier symbol.” Dec. 8–11. We did not add to that
`construction “by pseudo-randomly varying amounts” because Patent Owner
`did not show why that additional language should be included for the
`broadest reasonable construction of the term “scrambling the phase
`characteristics of the carrier signals.” Id. Patent Owner argues that our
`construction is overly broad because it encompasses adjusting the phases of
`every carrier in the single multicarrier symbol by the same amount. Req.
`Reh’g. 2–3. Such an adjustment, according to Patent Owner, would not
`reduce peak-to-average power ratio (“PAR”), which the parties and the panel
`all agree scrambling must do. Id. at 3–6. “The FWD misapprehends or
`overlooks that, under any proper construction, there must at a minimum be
`varying amounts by which the phases are adjusted within a single
`multicarrier symbol (i.e., from carrier-to-carrier) such that PAR is reduced.”
`Id. at 2.
`Patent Owner presents arguments not presented previously. We could
`not have overlooked or misapprehended those arguments presented for the
`first time in the rehearing request. Importantly, Patent Owner argues now
`for the first time that for any proper construction “there must at a minimum
`be varying amounts by which the phases are adjusted within a single
`multicarrier symbol (i.e., from carrier-to-carrier) such that PAR is reduced.”
`Id. at 2. This proposed construction differs from Patent Owner’s original
`proposed construction which included “by pseudo-randomly varying
`amounts.” Absent from the new proposed construction is the term “pseudo-
`randomly.”
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`In any event, it is clear from the Decision that we construed the
`totality of claim 1, for example, as requiring varying the amount by which
`the phase of each carrier is adjusted. See, e.g., Dec. 28. Accordingly, even
`if we were to adopt Patent Owner’s new proposed construction, it would not
`change the way we applied the prior art to the claim language as a whole.
`
`B. Stopler’s Single-Carrier Embodiment
`Patent Owner argues that Stopler’s QAM Mapper and Phase
`Scrambler 82 “must be compatible with single-carrier CDMA” because
`Stopler teaches that its output can, in one embodiment, be provided to a
`CDMA modulator. Req. Reh’g. 7–8. Patent Owner concludes that Stopler’s
`phase scrambling “must have a different purpose than the claimed phase
`scrambling because [it] . . . cannot reduce PAR.” Id. at 8.
`We addressed this argument and found it unpersuasive. Dec. 23–28.
`Mere disagreement with the Board’s conclusion is not a proper basis for
`rehearing. It is not an abuse of discretion to have made a conclusion with
`which a party disagrees.
`
`C. Allegedly Misapprehended or Overlooked Testimony
`Patent Owner quotes pages 25 to 26 of our Decision and argues that
`“there are several inaccuracies.” Req. Reh’g 8–12. These arguments are
`based, in part, on a mischaracterization of our claim construction as
`requiring the same amount of rotation of the phase of each of the QAM
`symbols in a DMT symbol. See, e.g., id. at 9 (“First, a DMT symbol cannot
`be phase scrambled as that term is used in the claims by having its
`component QAM symbols rotated by the same amount.”), 9 (“as interpreted
`in the FWD (‘i.e., rotates by the same amount, the phase of a plurality of
`QAM symbols.’).”). Our construction of “scrambling the phase
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`characteristics of the carrier signals” does not require rotating by the same
`amount. And as we applied the prior art, to the totality of the claim
`language, it is clear that we construed the totality of the claim language to
`require the phases of the carriers of the multi-carrier signal be rotated by
`varying amounts. For example, our Decision states
`Stopler further teaches that, “a phase scrambling sequence is
`applied to the output symbols,” including “all symbols, not just
`the overhead symbols.” Id. at 12:25–28. Patent Owner’s expert,
`Dr. Short, agreed that Stopler is referring to phase scrambling
`QAM symbols. Reply 16–17 (citing Ex. 1027 (Tellado Dep.),
`54:17–55:3, 55:19–24, 58:6–8, 59:9–12, 60:15–22). Stopler
`further teaches that a “scrambling sequence may be generated by
`a pseudorandom generator” that generates pairs whose sum “is
`used to select the amount of rotation to be applied to the symbol,”
`singular; not “symbols” plural. Ex. 1012, 12:28–36. Thus, the
`most intuitive reading of Stopler supports Petitioner’s contention
`that QAM Mapper and Phase Scrambler 82 determines an
`amount of rotation and rotates the phase of a single QAM symbol
`by that amount.
`Dec. 26.
`Patent Owner also objects to our characterization of Dr. Short’s
`testimony as “admit[ing] that Stopler does not describe phase scrambling
`DMT symbols” (Dec. 25 (citing Ex. 1027, 60:11–14)). Req. Reh’g 9
`(regarding Ex. 1027, 60:11–14). That testimony is as follows:
`Q. Well, you would agree with me that [Stopler] doesn’t
`expressly teach applying the phase scrambler to the DMT as a
`whole?
`A. I would agree with that.
`Ex. 1027, 60:11–14. We acknowledge that Dr. Short testified that he
`understands Stopler to be rotating all of the QAM symbols within a
`DMT symbol by the same amount, but the point made in our Decision
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`remains: Dr. Short clearly conceded, however, that Stopler does not
`expressly teach applying the phase scrambler to the DMT symbol as a
`whole. Dec. 25 (citing Ex. 1027, 60:11–14).
`Patent Owner also argues that we misapprehended its argument that
`Stopler would adjust the phases of QAM symbols over time in order to
`reduce narrowband noise. Req. Reh’g 10 (citing PO Resp. 39 (“According
`to a second narrowband-noise-reducing technique, Stopler addresses
`narrowband noise at the frequency of an overhead pilot carrier by
`scrambling the phase of the pilot carrier over time from one DMT symbol to
`the next, i.e., by inter-symbol phase scrambling. See Ex. 2003 at ¶ 82.”).
`As we noted in our Decision, however, Stopler teaches and Petitioner relies
`“not just on the scrambling of ‘overhead signals, such as pilot tones,’ (Pet.
`13) but on the scrambling of all QAM symbols. Because neither Petitioner’s
`argument nor Stopler’s teaching of phase scrambling is limited to pilot
`tones, Patent Owner’s argument is not persuasive.” Dec. 27.
`Patent Owner also argues that we misapprehended its burden by
`noting that “Patent Owner identifies nothing in Stopler to suggest that, in an
`alternative embodiment with a multicarrier modulator, QAM Mapper and
`Phase Scrambler 82 do not supply a plurality of phase-scrambled QAM
`symbols for modulation onto the plurality of carriers in the, e.g., DMT
`symbol.” Req. Reh’g 11 (quoting Dec. 25–26). Petitioner has the burden of
`persuasion to prove unpatentability by a preponderance of the evidence. See
`35 U.S.C. § 316(e); Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800
`F.3d 1375, 1379 (Fed. Cir. 2015). For this element, we explained how
`Petitioner satisfied that burden based, inter alia, on express disclosure in
`Stopler. Dec. 26–27. The sentence to which Patent Owner objects merely
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`notes that, even assuming Stopler works as Patent Owner argues in an
`embodiment with a single-carrier modulator, that does not persuasively rebut
`the express disclosure upon which Petitioner relies. Accordingly, we are not
`persuaded that we misapprehended Patent Owner’s burden.
`Patent Owner also argues it was denied the opportunity to file a sur-
`reply. Req. Reh’g. 11–12. Patent Owner was, however, granted an
`opportunity to identify allegedly new arguments and evidence in Petitioner’s
`Reply (Paper 25), and we considered the identified portions when reaching
`our Decision (Dec. 22 n.8). Although the “listing” format required Patent
`Owner to be efficient in its identification and required Petitioner to be
`efficient in its responsive paper, these papers provided “the information
`necessary to make a reasoned decision” (Ultratec, Inc. v. CaptionCall, LLC,
`872 F.3d 1267, 1273 (Fed. Cir. 2017)) about whether the arguments and
`evidence raised in reply were outside the scope of a proper reply.
`
`D. Shively’s PAR
`Finally, Patent Owner argues that we misapprehended or overlooked
`its argument that Shively’s PAR would not be so “increased” or “high” that
`it resulted in clipping, as would be needed before a person of ordinary skill
`in the art had reason to modify Shively. Req. Reh’g 12–15. We addressed
`this argument and found it unpersuasive. Dec. 30–31. Mere disagreement
`with the Board’s conclusion is not a proper basis for rehearing. It is not an
`abuse of discretion to have made a conclusion with which a party disagrees.
`Moreover, Patent Owner alleges that “the FWD characterizes Shively
`as having a ‘high’ or ‘increased’ PAR.” Req. Reh’g. 14 (citing Dec. 30).
`That is false. Our Decision states that it is undisputed that Shively’s
`technique “will increase PAR” (Dec. 30–31), but does not characterize
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`Shively as having a “high” or “increased” PAR.4 Our Decision relies upon
`page 28 of Patent Owner’s Response (Paper 15), which concedes that
`“Shively’s ‘spreading’ technique will contribute a small uptick in clipping
`probability.” Patent Owner does not dispute, in its Request for Rehearing,
`Shively’s technique increases PAR.
`With respect to Patent Owner’s argument that “there is no PAR
`problem presented by Shively” (Req. Reh’g. 14) and “the only PAR problem
`in this case relates to clipping” (id. at 15), we considered that argument and
`found it unpersuasive. Dec. 30–31. As we noted, “Petitioner’s reason to
`combine does not depend on the PAR increase exceeding some specific
`numeric threshold,” “there also is no dispute that equipment designed to
`handle a higher PAR can be larger, more expensive, and more power hungry
`than equipment designed to handle a lower PAR,” and, therefore, “a person
`of ordinary skill in the art . . . would have been motivated to reduce PAR
`regardless of whether Shively’s technique resulted in clipping.” Id. In other
`words, as we explained in our Decision, Shively’s PAR need not result in
`clipping in order to motivate a person of ordinary skill in the art because we
`are persuaded such a person would have been motivated sufficiently to
`reduce PAR by the benefit of being able to use smaller, less expensive, less
`power hungry components.
`
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`4 In a sentence summarizing Petitioner’s position, our Decision states,
`“Petitioner alleges that Shively’s proposed system would have an
`‘increased’ or ‘high’ PAR.” Dec. 30 (quoting Pet. 14–15) (emphasis added).
`It should be obvious, however, that a summary of Petitioner’s allegation is
`not a characterization by the panel.
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`IV. ORDER
`Accordingly, it is ORDERED that Patent Owner’s Request for
`Rehearing is denied.
`
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`IPR2016-01021
`Patent 8,718,158 B2
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`For PETITIONER:
`David L. McCombs
`Theodore M. Foster
`Gregory P. Huh
`HAYNES AND BOONE, LLP
`david.mccombs.ipr@haynesboone.com
`ipr.theo.foster@haynesboone.com
`gregory.huh.ipr@haynesboone.com
`
`
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`For PATENT OWNER:
`
`Peter J. McAndrews
`Thomas J. Wimbiscus
`Scott P. McBride
`Christopher M. Scharff
`McANDREWS, HELD & MALLOY, LTD.
`pmcandrews@mcandrews-ip.com
`twimbiscus@mcandrews-ip.com
`smcbride@mcandrews-ip.com
`cscharff@mcandrews-ip.com
`
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