UNITED STATES PATENT AND TRADEMARK OFFICE
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`———————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
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`ERICSSON INC. AND TELEFONAKTIEBOLAGET
`LM ERICSSON,
`Petitioner
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`v.
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`INTELLECTUAL VENTURES II LLC,
`Patent Owner
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`
`———————
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`Patent No. 7,269,127
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`Inter Partes Review No. IPR2014-01185
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`——————————————
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`
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`PETITIONER’S RESPONSE TO PATENT OWNER MOTION FOR
`OBSERVATION REGARDING CROSS-EXAMINATION OF ZYGMUNT J.
`HAAS, PH.D.
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`
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`———————
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`———————
`
`ERICSSON INC. AND TELEFONAKTIEBOLAGET
`LM ERICSSON,
`Petitioner
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`v.
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`INTELLECTUAL VENTURES II LLC,
`Patent Owner
`
`
`———————
`
`Patent No. 7,269,127
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`Inter Partes Review No. IPR2014-01185
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`——————————————
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`
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`PETITIONER’S RESPONSE TO PATENT OWNER MOTION FOR
`OBSERVATION REGARDING CROSS-EXAMINATION OF ZYGMUNT J.
`HAAS, PH.D.
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`Petitioner’s Response to PO Motion for Observation
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`IPR2014-01185
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`TABLE OF CONTENTS
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`Response to Observation No. 1…………………………………………………..1
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`Response to Observation No. 2…………………………………………………..1
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`Response to Observation No. 3…………………………………………………..1
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`Response to Observation No. 4…………………………………………………..1
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`Response to Observation No. 5…………………………………………………..2
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`Response to Observation No. 6…………………………………………………..3
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`Response to Observation No. 7…………………………………………………..4
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`Response to Observation No. 8…………………………………………………..4
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`Response to Observation No. 9…………………………………………………..5
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`Response to Observation No. 10…………………………………………………6
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`Response to Observation No. 11…………………………………………………7
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`Response to Observation No. 12…………………………………………………8
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`Response to Observation No. 13…………………………………………………9
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`Response to Observation No. 14………………………………………………..10
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`Response to Observation No. 15………………………………………………..11
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`Response to Observation No. 16………………………………………………..12
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`Response to Observation No. 17………………………………………………..12
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`Response to Observation No. 18………………………………………………..13
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`Response to Observation No. 19………………………………………………..14
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`i
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`Petitioner’s Response to PO Motion for Observation
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`IPR2014-01185
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`Petitioner submits this response to Patent Owner’s Motion for Observation
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`Regarding Cross-Examination of Zygmunt J. Haas, Ph.D., Paper No. 27.
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`Response to Observation No. 1
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`Despite their Observation, during cross-examination Patent Owner (PO) did
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`not identify any portions of Dr. Hartogs’ declaration, beyond those identified by
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`Petitioner, that were relevant to Dr. Haas’ Supplemental Declaration.
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`Response to Observation No. 2
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`Despite their Observation, during cross-examination PO did not identify any
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`portions of Dr. Hartogs’ testimony, beyond those identified by Petitioner, that were
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`relevant to Dr. Haas’ Supplemental Declaration.
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`Response to Observation No. 3
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`Dr. Haas’ Supplemental Declaration was prepared to rebut positions taken
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`by PO’s expert, Dr. Hartogs, and is relied upon by Petitioner to rebut PO’s
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`arguments set forth in the PO Response.
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`Response to Observation No. 4
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`Dr. Haas explains the use of the quotation marks as follows:
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`So my explanation of his statement is that he [Dr. Hartogs] interprets
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`the claim insert pilot symbols into data blocks as -- as insert pilot
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`symbols into at least one date block. Again, the quotes, I don’t think
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`the quotes are put here to signify that this is a direct quotation from
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`1
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`Petitioner’s Response to PO Motion for Observation
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`IPR2014-01185
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`his saying, but rather it’s this term -- claim term, “insert pilot symbols
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`into data blocks,” is interpreted by him as this other what’s put in the
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`quotes.
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`Ex. 2011, 12:11-18.
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`Response to Observation No. 5
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`PO alleges that the opinions of Petitioner’s expert, Dr. Haas, are based on an
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`incorrect interpretation of claim 1. The testimony PO cites (Ex. 2011, 14:15-18) is
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`part of a line of questioning regarding ERIC-1036 (Supp. Haas Decl.), ¶ 4. During
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`this questioning, Dr. Haas was asked to further explain a distinction in ¶ 4 of Supp.
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`Haas Decl. between his position and a position of PO’s expert, Dr. Hartogs, and
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`Dr. Haas did so. See Ex. 2011, 12:20-13:16. Dr. Haas’ testimony is consistent
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`with an illustration of an embodiment of claim 1 that satisfies the claim language
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`“insert pilot symbols into data blocks” in Figure A on p. 7 of Supp. Haas Decl. As
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`Dr. Haas explains – “Fig. A is consistent with how the ’127 patent describes pilot
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`symbols. The pilot symbols and training symbols are inserted in a similar manner
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`so as to result in separate OFDM symbols (which are in the time domain).” Supp.
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`Haas Decl., ¶ 13. Dr. Haas provided several citations to the ’127 patent and the
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`Mody Provisional (ERIC-1035), which is incorporated by reference into the ’127
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`patent, to support his opinion, which is consistent with the language of claim 1.
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`See, e.g., Supp. Haas Decl., ¶¶ 6, 7, and 9 (citing ’127 patent, 2:10-25 and 11:44-47
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`and Mody Provisional, p. 2).
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`2
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`Petitioner’s Response to PO Motion for Observation
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`Response to Observation No. 6
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`As Dr. Haas explains – “Fig. A is consistent with how the ’127 patent describes
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`pilot symbols. The pilot symbols and training symbols are inserted in a similar
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`manner so as to result in separate OFDM symbols (which are in the time domain).”
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`Supp. Haas Decl., ¶ 13. Dr. Haas provided several citations to the ’127 patent and
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`the Mody Provisional (ERIC-1035), which is incorporated by reference into the
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`’127 patent, to support his opinion, which is consistent with the language of claim
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`1. See, e.g., Supp. Haas Decl., ¶¶ 6, 7, and 9 (citing ’127 patent, 2:10-25 and
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`11:44-47 and Mody Provisional, p. 2). For example, Dr. Haas discussed one of the
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`citations (i.e., ’127 patent, 11:44-47) during cross-examination supporting Figure
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`A:
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`In -- in Column 11 of -- of the ’127 patents -- patent in Line 44 to 47,
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`“Although immediate [sic – omitted] from Figure 6 for simplicity,
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`pilot symbols may also be intermittently inserted into data symbols
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`(80) by the pilot/training symbol inserter (46) as discussed above.” So
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`if you take Figure 6 -- more precisely, one frame of Figure 6, which is
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`Number 68, one of the 68s, and modify it to -- not to omit the pilot
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`symbols as Figure 6 does, then the result would be something similar
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`to my bottom of Figure A.
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`Ex. 2011, 32:18-33:5.
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`3
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`Response to Observation No. 7
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`PO again cites Dr. Haas’ cross-examination testimony regarding Figure A of his
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`supplemental declaration as allegedly demonstrating that Dr. Haas’ opinions
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`regarding the obviousness of claim 1 are based on an incorrect interpretation of
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`claim 1. The response is the same as that in Observation No.6 above. See
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`Response to Observation No.6.
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`Response to Observation No. 8
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`PO seems to allege that because Dr. Haas testified that “the data structure is
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`composed of a sequence of data symbols” and “pilots are inserted into the
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`sequence of data symbols,” that Dr. Haas has impermissibly rewritten claim 1 as
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`“inserting pilot symbols into the data structure.” PO mischaracterizes Dr. Haas’
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`position1, which is that “the pilot/training symbol inserter ‘inserts pilot symbols
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`into data blocks’ in the frequency domain in such a way to result in pilot blocks in
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`the time domain that consist solely of pilot symbols in the frequency domain.”
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`Supp. Haas Decl., ¶ 13. For example, just prior to PO’s cited testimony of 31:13-
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`14, Dr. Haas explains (regarding Figure A on p. 7 of Supp. Haas Decl.):
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`Q And do you illustrate any pilots inserted into this leftmost data
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`symbol (80)?
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`1 PO misquotes Dr. Haas – the correct quote of Ex. 2001, 31:13-14 is “[t]he pilots
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`are inserted into the sequence of data symbols in plural.”
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`4
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`Petitioner’s Response to PO Motion for Observation
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`IPR2014-01185
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`A Again, data – I’m sorry. Pilot symbols are not inserted into a
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`single data symbol, are inserted into data symbols into the sequence of
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`data symbols or sequence of data blocks if you disregard the guard.
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`Ex. 2011, 31:6-11. Dr. Haas makes a similar point in other cross-examination
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`testimony:
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`A Well, so if you look at the top of my Figure A, you -- in the left
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`part of the Figure A, you have data blocks. This is the stream of data
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`blocks. And the pilot symbols or pilot blocks, if you want to just
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`concentrate on the blocks, the pilot blocks, I inserted into the stream
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`of the data blocks, which is in -- in -- in Figure A in the left -- the top
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`left part with the understanding that what is in the top left part are
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`those data blocks in frequency domain, and when they come out of the
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`IDFT, they are data blocks in the time domain. So the pilot symbols
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`are inserted into the stream of the data blocks.
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`Ex. 2011, 30:1-11.
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`Response to Observation No. 9
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`Both parties agree that the pilot/training symbol inserter 46 referred to in the ’127
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`patent operates in the frequency domain. See, e.g., Petitioner Reply, pp. 3 and 10-
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`11 and PO Response, p. 13. As Dr. Haas explained in his cross-examination
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`testimony:
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`So if you take Figure 6 -- more precisely, one frame of Figure 6,
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`which is Number 68, one of the 68s, and modify it to -- not to omit the
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`pilot symbols as Figure 6 does, then the result would be something
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`similar to my bottom of Figure A.
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`5
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`Ex. 2011, 33:1-5. The frame 68 at the bottom of Figure A is in the time domain,
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`but the frame is generated by inserting pilot symbols into data blocks in the
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`frequency domain, as explained, for example, in Supp. Haas Decl., ¶ 13.
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`Response to Observation No. 10
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`PO alleges that because the cited portion of the ’127 patent in Supp. Haas Decl., ¶
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`7 (i.e., ’127 patent, 2:10-25) is in the Background Section, Dr. Haas’ conclusion in
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`¶ 7 is based solely on the background of the ’127 patent rather than the complete
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`detailed description. However, Dr. Haas repeatedly explained during cross-
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`examination that his conclusion in Supp. Haas Decl., ¶ 7 is based on his reading of
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`the entire ’127 patent, including the Mody Provisional, which is incorporated by
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`reference. Below is a more complete excerpt of Dr. Haas’ cross-examination (PO
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`cited only to 42:17-21).
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`Q All right. So going back to your Page 4, Paragraph 7 again, and
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`the sentence that we've discussed earlier, again, you state, “Pilot
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`symbols have the same structure as training symbols,” and in
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`parentheses, “also known as preambles in the time domain, but the
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`pilot symbols are arranged within groups of data symbols as opposed
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`to being at the beginning of the transmission.” Do you see that
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`statement?
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`A Yes.
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`Q And you're basing that on a citation from the ’127 patent,
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`correct?
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`6
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`A
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`I based it on my understanding of both the – of reading
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`whatever I read from the ’127, Mody Provisional and everything
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`else.
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`…
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`A
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`Right, but that understanding is not only based on this
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`passage, it's based on the whole ’127 patent.
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`…
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`A
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`Is -- yes. To answer your question, this particular citation,
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`Column 2, Line 10 to 25, appears in the background of the invention.
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`However, as I said before, my statement here is based in the -- the
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`whole disclosure of the ’127 patent.
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`Ex. 2011, 41:15-43:1 (emphasis added).
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`Response to Observation No. 11
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`PO simply confirms the obvious -- that Dr. Haas uses the term “pilot symbol” in
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`both the time domain and the frequency domain in the following statement.
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`This is why, for example, multiple training symbols are shown at the
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`beginning of a transmission in Fig. 6 of the ’127 patent, with the first
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`one of the training symbols being an “enhanced” training symbol,
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`whereas for periodic calibration after initial synchronization as few as
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`one pilot symbol in the time domain (from multiple pilot symbols in
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`the frequency domain) may be used for periodic calibration.
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`Supp. Haas Decl., ¶ 14 (emphasis added). As seen from the statement, Dr. Haas is
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`clear when he is referring to a pilot symbol in the time domain versus a pilot
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`symbol in the frequency domain. PO misapplies this statement in ¶ 14 as relevant
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`7
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`Petitioner’s Response to PO Motion for Observation
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`to the statement in Supp. Haas Decl., ¶ 7, which states that “pilot symbols have the
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`same structure as training symbols … in the time domain” because Dr. Haas’ use
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`of the term pilot symbol in both time and frequency domains “demonstrates that
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`the ’127 patent’s disclosure of the pilot symbols having the same structure as
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`training symbols could instead apply to the frequency domain.” PO’s Motion for
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`Observations (Paper #27), p. 8. This is clearly not Dr. Haas’ position, as Dr. Haas
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`explains that the portion of the ’127 patent referred to in ¶ 7 refers to the time
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`domain. See Supp. Haas Decl., ¶ 7 (“referring to the time domain, the ’127 patent
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`explains…”).
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`Response to Observation No. 12
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`PO does not allege that Dr. Haas’ understanding is unreasonable, only that in PO’s
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`view Dr. Hartogs’ interpretation “is more consistent with the ‘127 patent than Dr.
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`Haas’ interpretation.” PO’s Motion for Observations (Paper #27), p. 9. The ‘127
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`patent provides that training and pilot symbols have the same structure, with
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`training symbols “preferably inserted into preamble structures at the beginning of
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`the frame and transmitted once per frame structure.” ‘127 patent, 2:17-22 and
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`7:26-39. The ‘127 patent also states that pilot symbols are inserted periodically “at
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`any point in the data blocks” and that the “[p]ilot blocks are typically transmitted
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`with data blocks….” Id. 7:26-30 and 7:40. Dr. Haas testified that the training
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`blocks of Figure A in his supplemental declaration have the same structure as pilot
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`blocks but the two do not necessarily have the same content, citing the ’127 patent,
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`7:47-50. See Ex. 2011, 37:6-21, including the following:
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`So if you say they’re identical, I cannot tell you if they’re identical or
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`not, but I know at least the structure is the same, which is that there is
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`N, sub I, samples in the pilot block, and the N, sub I, samples in the
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`training symbol.
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`Ex. 2011, 37:17-21. Thus, the evidence shows that Dr. Haas’ interpretation shown
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`in Figure A of the Supplemental Haas Declaration is consistent with the ’127
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`patent.
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`Response to Observation No. 13
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`PO alleges that Dr. Haas’ distinction between training symbols and pilot symbols
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`that training symbols are at the beginning of a transmission and pilot symbols are
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`later in a frame runs contrary to the ’127 patent’s description of training blocks.
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`However, PO disregards most of the disclosure of the ’127 patent, including the
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`following, in which PO’s citation in support of its position is underlined for ease of
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`reference.
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`The term pilot blocks, as used in this description, refers to symbols
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`provided by the pilot/training symbol inserter 46, which are inserted
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`periodically into the data blocks. Typically, pilot symbols may be
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`inserted at any point in the data blocks. The term training blocks
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`refers to one or more continuous sections of symbols provided by the
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`pilot/training symbol inserter 46. Training blocks are preferably
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`inserted into preamble structures at the beginning of the frame
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`structures and transmitted once per frame structure. However,
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`training blocks may also be inserted in other parts of the signal
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`structures, such as the middle or end of the frame structures.
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`Preambles (or preamble structures) are symbol structures formed of
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`training blocks inserted at the beginning of the frame.
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`’127 patent, 7:26-39 (only portion cited by PO underlined; other portions
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`emphasized by Petitioner for comparison). As shown above, training blocks “are
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`preferably” at the beginning of the frame structures in a preamble. Furthermore,
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`the location of training blocks in a preamble is consistent with claim 1, in which
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`“the preamble structure [comprises] at least one training symbol…,” (in time
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`domain) suggesting that the first instance of “training symbols” (in frequency
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`domain) in claim 1 are inserted by claim 1’s pilot/training symbol inserter at the
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`beginning of a frame.
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`Response to Observation No. 14
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`PO attempts to equate Mody Provisional’s “pilot symbols” with the ’127 patent’s
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`“training symbols.” PO seems to allege that only training symbols, and not pilot
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`symbols, are used for synchronization in the ’127 patent. Dr. Haas cross-
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`examination testimony refutes this allegation.
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`Pilots could be considered using for synchronization. … So pilot
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`symbols do perform synchronization and it doesn’t mean that the
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`system has to be completely desynchronized before the pilot symbols
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`Petitioner’s Response to PO Motion for Observation
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`are being used. So the system -- the system can be synchronized to
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`some degree and the pilot symbols improve the synchronization
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`further, and it's just synchronization.
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`Ex. 2011, 55:10-22 (emphasis added). This testimony is consistent with the
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`Supplemental Haas Declaration. See, e.g., Supp. Haas Decl., ¶ 14. As set forth in
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`the ’127 patent, “pilot blocks are typically transmitted with data blocks to calibrate
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`(i.e., synchronize) the receiver 16 to the transmitter 14 on a small scale.” ’127
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`patent, 7:40-42.
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`Response to Observation No. 15
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`PO again attempts to equate Mody Provisional’s “pilot symbols” with the ’127
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`patent’s “training symbols.” The authors of the Mody Provisional are the same as
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`the inventors of the ’127 patent, and the authors/inventors chose to use the term
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`“pilot” or “pilot symbol” in Mody Provisional, not training symbol. Dr. Haas
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`confirms that the Mody Provisional uses the term “pilot” or “pilot symbol” in the
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`same manner as the ’127 patent:
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`Q Okay. So is it possible that Exhibit 1035 uses the term “pilot”
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`differently than it’s being used in the ’127 specification?
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`A There’s nothing that would indicate to me that this is the case. The
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`term “pilots” in the provisional Mody -- the use of the term “pilots” in
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`the provisional Mody seems to be consistent with the use of the word
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`“pilots” or the term “pilots” in the ’127.
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`11
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`Ex. 2011, 52:3-10; see also id., 58:19-59:9. Also, Dr. Haas testified that pilot
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`symbols are used to perform synchronization. See Ex. 2011, 55:10-22 (recited in
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`the Response to Observation No. 14).
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`Response to Observation No. 16
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`PO again attempts to equate Mody Provisional’s “pilot symbols” with the ’127
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`patent’s “training symbols,” by discussing the use of various types of symbols in
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`these documents for different types of synchronization. As discussed in the
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`Responses to Observations No. 14 and No. 15, Dr. Haas’ opinion is that pilot
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`symbols are used to perform synchronization. See Ex. 2011, 52:3-10 and 55:10-22
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`and Supp. Haas Decl., ¶ 14. Dr. Haas explained in PO’s cited testimony of 59:10-
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`60:14 that Mody Provisional is not limited only to the type of synchronization
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`performed by the training symbols in the ’127 patent. Regardless, at a minimum
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`the Mody Provisional describes the structure of a pilot symbol in the time domain,
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`and the ’127 patent elaborates on the function of a pilot symbol.
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`Response to Observation No. 17
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`PO again attempts to equate Mody Provisional’s “pilot symbols” with the ’127
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`patent’s “training symbols,” this time pointing to Dr. Haas’ testimony regarding
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`references to 802.11a in both the ’127 patent and the Mody Provisional. PO did
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`not provide the full context of Dr. Haas’ testimony, which further recites:
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`12
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`Petitioner’s Response to PO Motion for Observation
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`Q
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`But
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`I’m asking you about
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`the 1035
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`training and
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`synchronization, and I'm asking, where does it state in the 1035 --
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`Exhibit 1035
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`that
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`its
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`synchronization
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`is
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`for
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`small-scale
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`synchronization?
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`A
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`Right. If we go -- if you allow me to go to the next paragraph,
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`in this paper, we'll be using the word “training” and “synchronization
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`sequence” interchangeably since we proposed an efficient sequence
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`structure that can be used for both synchronization as well as training.
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`This has to be read in the context of the previous paragraph. The
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`previous paragraph talks about short sequences using 802.11 for time
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`synchronization coarse -- I'm sorry – time synchronization in both fine
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`and coarse frequency offset estimation.
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`The next paragraph talks about using the word “training” and
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`“synchronization”
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`interchangeably and proposed sequences
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`--
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`efficient sequences for both synchronization and training. Reading
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`those together, I would understand that presumably the purpose
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`is -- of those sequences is to have both. Presumably it could be
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`used for both fine and coarse frequency offset estimation.
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`Ex. 2011, 60:17-61:15. Thus, Dr. Haas expressed the opinion that Mody
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`Provisional’s framework is not limited to one type of synchronization but is in fact
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`applicable to both fine and coarse synchronization.
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`Response to Observation No. 18
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`PO alleges that Mody Provisional is not relevant to interpretation of the claim 1
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`element that recites “inserts pilot symbols into data blocks” because Mody
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`Provisional does not reference the term “data block.” However, as shown
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`repeatedly in the filed papers, the parties dispute whether pilot symbols are inserted
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`into data blocks in such a way that results in separate pilot symbols in the time
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`domain. See, e.g., Supp. Haas Decl., ¶ 6 and Petitioner Reply, pp. 4-11. Mody
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`Provisional is relevant to this issue. For example, Dr. Haas states:
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`Dr. Hartog’s position that there would never be a separate and distinct
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`pilot symbol in the time domain is in direct contradiction to the ’127
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`patent for several reasons. First and most glaringly, U.S. Provisional
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`Application 60/322,786 (“Mody Provisional”), which is incorporated
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`by reference into the ’127 patent, explicitly shows that the inventors
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`intended for there to be separate time-domain pilot symbols.
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`Supp. Haas Decl., ¶ 6. Accordingly, Mody Provisional is relevant as disclosing a
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`pilot symbol in the time domain.
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`Response to Observation No. 19
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`PO alleges that Mody Provisional’s use of the term “pilot” is not necessarily
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`representative of the’127 patent’s use of the term. However, Dr. Haas believes the
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`term “pilot” in Mody Provisional is representative of the way the term is used in
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`the ’127 patent.
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`Q Okay. So is it possible that Exhibit 1035 uses the term “pilot”
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`differently than it’s being used in the ’127 specification?
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`A
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`There’s nothing that would indicate to me that this is the case.
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`The term “pilots” in the provisional Mody -- the use of the term
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`Petitioner’s Response to PO Motion for Observation
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`IPR2014-01185
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`“pilots” in the provisional Mody seems to be consistent with the use
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`of the word “pilots” or the term “pilots” in the ’127.
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`Ex. 2011, 52:3-10. Finally, to reiterate, the authors of the Mody Provisional are
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`the same as the inventors of the ’127 patent (i.e., Mody and Stuber), and the
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`authors/inventors chose to use the term “pilot” or “pilot symbol” in Mody
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`Provisional, not training symbol.
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`Dated: September 25, 2015
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`
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`Respectfully submitted,
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`
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`/J. Andrew Lowes/
`J. Andrew Lowes
`Counsel for Petitioner
`Registration No. 40,706
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`15
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`Petitioner’s Response to PO Motion for Observation
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`IPR2014-01185
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`CERTIFICATE OF SERVICE
`
`Pursuant to 37 C.F.R. § 42.6(e), this is to certify that I caused to be served a
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`true and correct copy of the foregoing “Petitioner’s Response to Patent Owner
`
`Motion for Observation,” as detailed below:
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`Date of service: September 25, 2015
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`Persons Served:
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`Manner of service: Email: Lgordon-PTAB@skgf.com, Mspecht-
`PTAB@skgf.com, Rrichardson-PTAB@skgf.com,
`jhietala@intven.com, tim@intven.com, bpickard-
`PTAB@skgf.com
`
`Lori A. Gordon
`Michael D. Specht
`Ryan C. Richardson
`Byron L. Pickard
`Sterne, Kessler, Goldstein &
`Fox P.L.L.C.
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`
`James R. Hietala
`Tim R. Seeley
`Intellectual Ventures Management
`Building 4, Floor 2
`3150 139th Avenue SE
`Bellevue, WA 98005
`
`
`
`/J. Andrew Lowes/
`J. Andrew Lowes
`Counsel for Petitioner
`Registration No. 40,706
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