IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`In re inter partes review of:
`
`U.S. Patent 7,477,624 to Gan, et al Atty. Docket: 3559.001IPR2
`
`Filed: Herewith
`
`For: Approach for Managing the Use
`of Communications Channels
`Based on Performance
`
`
`
`Declaration of Dr. Zhi Ding in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,477,624
`
`Mail Stop Inter Partes Review
`
`Attn: Patent Trial and Appeal Board
`Commissioner for Patents
`PO Box 1450
`Alexandria, VA 22313-1450
`
`Commissioner:
`
`
`
`I, Dr. Zhi Ding, declare as follows:
`
`1.
`
`I have been retained on behalf of Marvell Semiconductor, Inc., Medi-
`
`aTek Inc., and MediaTek USA, Inc. for the above-captioned inter partes review
`
`proceeding. I understand that this proceeding involves U.S. Patent No. 7,477,624
`
`to Gan, et al., titled “Approach for Managing the Use of Communications Chan-
`
`nels Based on Performance” (“the ʼ624 patent”) and that the ’624 patent is current-
`
`ly assigned to Bandspeed, Inc.
`
`
`
`- 1 -
`
`Marvell Semiconductor, Inc.
`MediaTek Inc.
`MediaTek USA, Inc.
`Exh. 1002
`IPR of U.S. Pat. No. 7,477,624
`
`
`In re inter partes review of:
`
`U.S. Patent 7,477,624 to Gan, et al Atty. Docket: 3559.001IPR2
`
`Filed: Herewith
`
`For: Approach for Managing the Use
`of Communications Channels
`Based on Performance
`
`
`
`Declaration of Dr. Zhi Ding in Support of
`Petition for Inter Partes Review of U.S. Patent No. 7,477,624
`
`Mail Stop Inter Partes Review
`
`Attn: Patent Trial and Appeal Board
`Commissioner for Patents
`PO Box 1450
`Alexandria, VA 22313-1450
`
`Commissioner:
`
`
`
`I, Dr. Zhi Ding, declare as follows:
`
`1.
`
`I have been retained on behalf of Marvell Semiconductor, Inc., Medi-
`
`aTek Inc., and MediaTek USA, Inc. for the above-captioned inter partes review
`
`proceeding. I understand that this proceeding involves U.S. Patent No. 7,477,624
`
`to Gan, et al., titled “Approach for Managing the Use of Communications Chan-
`
`nels Based on Performance” (“the ʼ624 patent”) and that the ’624 patent is current-
`
`ly assigned to Bandspeed, Inc.
`
`
`
`- 1 -
`
`Marvell Semiconductor, Inc.
`MediaTek Inc.
`MediaTek USA, Inc.
`Exh. 1002
`IPR of U.S. Pat. No. 7,477,624
`
`
`
`2.
`
`I have reviewed and am familiar with the specification of the ’624 pa-
`
`tent filed on April 3, 2006. I will cite to the specification using the following for-
`
`mat: (’624 patent, 1:1-10). This example citation points to the ’624 patent specifi-
`
`cation at column 1, lines 1-10.
`
`3.
`
`I have reviewed and am familiar with the file history of the ’624 pa-
`
`tent. I have also reviewed the reexamination of U.S. Patent No. 7,027,418 (“the
`
`’418 patent”). I understand that the ’624 patent is a continuation of the ’418 pa-
`
`tent. I understand that the ’624 patent and the ’418 patent share a common specifi-
`
`cation.
`
`4.
`
`I have reviewed and am familiar with the following prior art used in
`
`the Petition for Inter Partes Review of the ’624 patent and/or referenced below:
`
`U.S. Patent No. 6,760,319 to Gerten, et al. (“Gerten”), titled
`“Fixed Frequency Interference Avoidance Enhancement.” (Exhibit
`1003.)
`
`U.S. Patent No. 6,418,317 to Cuffaro, et al. (“Cuffaro”), titled
`“Method and System for Managing Frequencies Allocated to a
`Base Station.” (Exhibit 1004.)
`
`U.S. Patent No. 6,115,407 to Gendel, et al. (“Gendel”), titled
`“Frequency Hopping Communication Method and Apparatus for
`Modifying Frequency Hopping Sequence in Accordance with
`Counted Errors.” (Exhibit 1005.)
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`- 2 -
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`
`
`U.S. Patent No. 7,280,580 to Haartsen, et al. (“Haartsen”), titled
`“Hop Sequence Adaptation in a Frequency-Hopping Communica-
`tion System.” (Exhibit 1006.)
`
`U.S. Patent No. 5,781,582 to Sage, et al. (“Sage”), titled “Fre-
`quency Agile Transceiver with Multiple Frequency Synthesizers
`Per Transceiver.” (Exhibit 1007.)
`
`5.
`
`I have also reviewed the pages cited below from the Microsoft Press
`
`Computer Dictionary, Third Edition (Microsoft Press, 1997), provided as Exh.
`
`1013.
`
`6.
`
`The ’624 patent describes “managing the use of communications
`
`channels based on channel performance” in a communications network. (’624 pa-
`
`tent, 1:46-48.) I am familiar with the technology described in the ’624 patent as of
`
`its earliest possible priority date of January 25, 2001.
`
`7.
`
`I have been asked to provide my technical review, analysis, insights,
`
`and opinions regarding the ’624 patent and the above-noted references that form
`
`the basis for the grounds of rejection set forth in the Petition for Inter Partes Re-
`
`view of the ’624 Patent.
`
`I.
`
`Qualifications
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`- 3 -
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`
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`8.
`
`I have 3 decades of experience in wireless communications and signal
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`processing and have authored over 100 journal papers and 2 technical books on
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`communication technologies.
`
`9.
`
`I earned a Bachelor of Engineering degree from Nanjing Institute of
`
`Technology in Nanjing, China in 1982. I later received a Master of Applied Sci-
`
`ence degree from the University of Toronto in Toronto, Canada in 1987 and a Doc-
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`tor of Philosophy degree from Cornell University in Ithaca, New York in 1990,
`
`both in Electrical Engineering.
`
`10.
`
`I have been a professor of Electrical (and Computer) Engineering
`
`since 1990. For over two decades, I have taught classes that cover fundamentals of
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`signal detection, communications, and systems. I am currently a professor in the
`
`Department of Electrical and Computer Engineering at University of California at
`
`Davis in Davis, California.
`
`11.
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`I have served as the steering committee chair of The Institute of Elec-
`
`trical and Electronics Engineers (IEEE) Transactions on Wireless Communications
`
`(1.2009 – 1.2011.). I was elevated to Fellow of IEEE in 2002 by the IEEE Signal
`
`Processing Society. I have also served as the Technical Program Chair of the IEEE
`
`Globecom 2006 (the flagship conference of the IEEE Communications Society). In
`
`2013, I received the IEEE Communications Society Wireless Communications
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`- 4 -
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`
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`Technical Committee Recognition Award. This annual award is presented to a per-
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`son with a high degree of visibility and contribution in the field of “Wireless and
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`Mobile Communications Thoery, Systems, and Networks” according to the WTC
`
`Award website http://bbcr.uwaterloo.ca/~wtc/awards.html.
`
`12.
`
`I am the co-author of the text book: B.P Lathi and Zhi Ding, “Modern
`
`Digital and Analog Communication Systems,” Fourth Edition, Oxford University
`
`Press, January 23, 2009. This textbook contains discussions on frequency hopping
`
`and its application in Bluetooth.
`
`13. My Curriculum Vitae is provided as Exhibit 1014, which contains fur-
`
`ther details on my education, experience, publications, and other qualifications to
`
`render an expert opinion. My work on this case is being billed at a rate of $475 per
`
`hour, with reimbursement for actual expenses. My compensation is not contingent
`
`upon the outcome of this inter partes review.
`
`II. Level of Ordinary Skill in the Art
`14.
`I understand that the person of ordinary skill in the art is viewed at the
`
`time of invention. Based on the disclosure of the ’624 patent, one of ordinary skill
`
`in the art would have a B.S. degree in Electrical and/or Computer Engineering, or
`
`an equivalent field, as well as at least 3-5 years of academic or industry experience
`
`in the communications field.
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`15. By equivalent field, I mean that the required levels of educational and
`
`industry experience are on a sliding scale relative to each other. For example, a
`
`person of ordinary skill could have a more advanced educational degree with less
`
`industry experience.
`
`16.
`
`In deciding the level of ordinary skill, I considered the following: the
`
`levels of education and experience of persons working in the field; the types of
`
`problems encountered in the field; and the historical development and the sophisti-
`
`cation of the technology.
`
`III. My Understanding of Claim Construction
`17.
`I understand that, during an inter partes review, claims are to be given
`
`their broadest reasonable construction in light of the specification as would be read
`
`by a person of ordinary skill in the relevant art.
`
`IV. My Understanding of Anticipation
`18.
`I understand that a reference anticipates a claim if it discloses each
`
`and every element recited in the claim, arranged as in the claim, so as to enable one
`
`of ordinary skill in the art to make and use the claimed invention without the need
`
`for undue experimentation in light of the general knowledge available in the art.
`
`V. My Understanding of Obviousness
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`- 6 -
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`19.
`
`I understand that a claim is obvious when the differences between the
`
`subject matter sought to be patented and the prior art are such that the subject mat-
`
`ter as a whole would have been obvious at the time the invention was made to one
`
`of ordinary skill in the art.
`
`20.
`
`I understand that to prove that prior art or a combination of prior art
`
`renders a claim obvious, it is necessary to (1) identify the particular references that,
`
`singly or in combination, make the claim obvious; (2) specifically identify which
`
`elements of the claim appear in each of the asserted references; and (3) explain
`
`how the prior art references could have been combined or modified in order to cre-
`
`ate the claimed invention.
`
`21.
`
`I understand that certain objective indicia can be important evidence
`
`regarding whether a claim is obvious or nonobvious. Such indicia include: com-
`
`mercial success of products covered by the claim; a long-felt need for the claimed
`
`invention; failed attempts by others to make the claimed invention; copying of the
`
`claimed invention by others in the field; unexpected results achieved by the
`
`claimed invention as compared to the closest prior art; praise of the claimed inven-
`
`tion by the infringer or others in the field; the taking of licenses under the patent by
`
`others; expressions of surprise by experts and those skilled in the art at the time of
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`- 7 -
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`
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`the claimed invention; and the patentee proceeding contrary to the accepted wis-
`
`dom of the prior art.
`
`VI. Overview of the ’624 Patent
`22. The ’624 patent relates to “managing the use of communications
`
`channels based on channel performance” in a communications network. (’624 pa-
`
`tent, 1:46-48.) FIG. 2 of the ’624 patent depicts a communications network having
`
`a number of communications devices labeled master 210, slave 220, and slave 230.
`
`Each of the communications devices includes a memory, a processor that may exe-
`
`cute the instructions stored in the memory, and a transceiver that is configured to
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`transmit and receive communications with other devices of the communications
`
`network. (Id., 9:53-59.)
`
`23. The ’624 patent generally relates to use of frequency hopping, and in
`
`particular frequency hopping in the context of Bluetooth communications. The
`
`Background section of the ’624 patent describes that “[a] frequency hopping (FH)
`
`protocol is an approach for wireless communications in a communications network
`
`that uses a frequency hopping signal transmission technique in which information
`
`or data is transmitted over a set of frequencies in a communications frequency
`
`band.” (Id., 2:5-9.) “The order in which the communications network hops among
`
`the set of frequencies is known as the hopping sequence.” (Id., 2:11-13) “With the
`
`FH approach, the frequency band is broken up into separate frequencies, often re-
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`- 8 -
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`
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`ferred to as ‘channels.’ The FH system transmits data on one channel, hops to the
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`next channel in the hopping sequence to transmit more data, and continues by
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`transmitting data on subsequent channels in the hopping sequence. The switching
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`of frequencies may occur many times each second. The use of an FH protocol
`
`helps to reduce problems with interference from other communications systems
`
`and other interference sources.” (Id., 2:19-27.)
`
`24.
`
`“An example of a frequency hopping protocol is the Institute of Elec-
`
`trical and Electronics Engineers (IEEE) 802.15.1 Wireless Personal Area Network
`
`Standard, which is based on the BluetoothTM wireless personal area network
`
`(WPAN) technology . . . . The Bluetooth protocol uses 79 individual randomly
`
`chosen frequency channels numbered from 0 to 78 and changes the frequencies
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`1600 times per second.” (Id., 2:32-40.)
`
`25. To manage the use of communications channels under potential inter-
`
`ference, the system of the ’624 patent selects a first set of communications chan-
`
`nels “based on the performance of the communications channels and channel selec-
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`tion criteria.” (Id., 4:11-13.) For example, at start-up of the communications net-
`
`work, the system selects an initial set of channels. (Id., 6:19-21.) The system then
`
`periodically selects sets of channels based on later performance of the communica-
`
`tions channels. (Id., 4:14-16.)
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`- 9 -
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`
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`26. The ’624 patent describes various techniques for measuring perfor-
`
`mance of communications channels. (See id., 10:19-14:59.) The disclosed tech-
`
`niques include special test packets (Id.,10:33-12:35), received signal strength indi-
`
`cator (RSSI) (Id., 12:37-13:2), and cyclic redundancy checks (CRC) (Id., 13:50-
`
`14:6.) These were well-known techniques in the art prior to January 2001. The
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`special test packet technique involves sending a packet containing known content
`
`and calculating “[t]he number of error bits (NEB) that occur in the known con-
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`tent . . . to determine channel performance.” (Id., 10:42-47.) The RSSI technique
`
`involves a master listening on a return channel of a slave where the slave is not
`
`transmitting. (Id., 12:41-52.) “If there is interference, such as from another com-
`
`munications system, the RSSI will be high. Conversely, if there is no interference,
`
`the RSSI will be low.” (Id., 12:52-55.) The CRC technique involves determining
`
`whether the complete contents of a packet or the payload of the packet are received
`
`correctly based on a CRC check. (Id., 13:54-13:57.) Regardless of the specific
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`technique used, not every channel in the set of available communications channels
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`must be measured: “For example, for a communications system that uses 100
`
`channels, some or all of the 100 channels may be tested to determine channel per-
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`formance.” (Id., 6:28-31.)
`
`27. The system of the ’624 patent classifies a communication channel
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`based on channel performance and one or more classification criteria. (Id., 14:63-
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`- 10 -
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`
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`65.) “For example, a channel may be classified as ‘good’ or ‘bad’ based on the re-
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`sults of the channel performance testing by applying one or more performance
`
`measurements to specified performance criteria.” (Id., 14:65-15:2.)
`
`28.
`
`“Channel testing and classification may be performed by a master”
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`(e.g., master 210) “or other participants, such as slaves” (e.g., slaves 220 or 230).
`
`(Id., 16:42-43.) “In addition, channel testing and classification from multiple par-
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`ticipants may be combined and/or weighted to determine an overall, or final, clas-
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`sification for the channels of interest.” (Id., 16:43-46.) The ’624 patent describes
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`one technique for this “‘referendum’ approach” involving voting by participants,
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`including the master. (Id., 16:47-49.)
`
`29.
`
`In the exemplary voting technique, a participant has a “‘vote’ on
`
`whether to use a channel or not.” (Id., 16:65-66.) For example, a vote may indi-
`
`cate that the participant prefers not to use the channel (e.g., participant finds chan-
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`nel “bad”) or a vote may indicate that the participant prefers to use the channel
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`(e.g., participant finds channel “good”). (Id., 16:66-17:4.) A certain number of to-
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`tal votes “is required for the channel to be judged ‘good’ and therefore available
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`for use by the FH communications system.” (Id., 17:5-7.) “Not every participant
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`needs to have input for each channel under consideration.” (Id., 17:29-30.) As ex-
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`plained in the ’624 patent, participants “may collect and combine the channel per-
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`- 11 -
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`
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`formance information, or votes, to determine the final channel classifications.”
`
`(Id., 17:30-34.)
`
`VII. Background of the Technologies Disclosed in the ’624 Patent
`A.
`Frequency Hopping
`30. Prior to January 2001, frequency hopping (FH) was one of two known
`
`major technologies designed for spread spectrum data communications. Spread
`
`spectrum technologies were initially developed for the military and intelligence
`
`communities to overcome shortcomings against interception and jamming. The
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`basic idea is to spread each user signal energy/power over a much broader spec-
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`trum than necessary. For a fixed transmission power, broader spectrum means low-
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`er signal power level as well as improved spectral redundancy. The low signal
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`power level makes the communication signals difficult to detect and intercept,
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`whereas high spectral redundancy makes the signals more resistant to (intentional
`
`or unintentional) partial band jamming.
`
`31. Prior to January 2001, there were two dominant spread spectrum
`
`technologies: frequency hopping (FH) spread spectrum and direct sequence (DS)
`
`spread spectrum.
`
`32. The concept of frequency hopping spread spectrum is in fact quite
`
`simple. Each user can still use a conventional modulation. The only change is that
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`
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`now the transmitting user’s carrier frequency can vary over regular intervals. By
`
`letting each user vary its carrier frequency according to a pre-determined, pseudo-
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`random pattern, its evasive signal would effectively be occupying a broader spec-
`
`trum band and become harder to intercept and jam. This pre-determined, pseudo-
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`random carrier frequency variation pattern is known as the frequency hopping pat-
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`tern. To receive the FH transmission, a receiver can also synchronously change its
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`own carrier frequency by following exactly the same FH pattern as the transmitter.
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`A simple analogy to FH transmission and reception is for a television (TV) show to
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`be broadcast over several TV stations in a sequential manner. In FH, a TV program
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`begins on station A, lasting 10 minutes, then moves to station B, lasting another 10
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`minutes, and so forth. TV viewers can simply follow this hopping pattern so long
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`as they are aware of the hopping pattern.
`
`B.
`Bluetooth
`33. Prior to January 2001, Bluetooth was a short range communication
`
`technology used in electronic products such as cell-phones, computers, automo-
`
`biles, modems, headsets, and appliances. Replacing the line-of-sight infrared,
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`Bluetooth was acceptable for situations when two or more devices are in proximity
`
`to each other. Bluetooth was one of the most successful commercial wireless tech-
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`nologies that utilized the frequency hopping (FH) technology for data transmission.
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`- 13 -
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`34. Prior to January 2001, Bluetooth devices operated in the license-free
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`industrial, scientific, and medical (ISM) band of 2.4-2.4835 GHz. (See, e.g., Exhib-
`
`it 1016, Specification of the Bluetooth System Version 1.0B (“Bluetooth 1.0B”),
`
`December 1, 1999, p. 19.) To avoid interfering with other devices and networks in
`
`the ISM band, the prior art Bluetooth protocol divided the frequency band into 79
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`channels of 1 MHz bandwidth and executed frequency hopping at a rate up to 1600
`
`hops per second. (Id., p. 43.) Two Bluetooth devices communicated in a master-
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`slave mode relationship in order to synchronize transmission and reception fre-
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`quency hopping. (Id., pp. 41-42.) A network group of up to eight participant de-
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`vices form a piconet which is a local wireless network controlled by one master
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`node to facilitate data communications. (Id.) FIG. 1.2 from Bluetooth 1.0B illus-
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`trates exemplary piconets.
`
`
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`VIII. Claim Construction
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`- 14 -
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`35. The term “hopping sequence” is used in claims 1, 2, 14, 16, 26, and
`
`28. This term is a well-understood term of art. (See, e.g., Bluetooth Version 1.0B,
`
`pp. 127-133.) The specification uses the term in accordance with its well-
`
`understood meaning stating that “[t]he order in which the communications network
`
`hops among the set of frequencies is known as the hopping sequence.” (’624 pa-
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`tent, 2:11-13.)
`
`IX. Gerten
`A. Overview of Gerten
`36. Gerten is directed “to a system and method for removing channels in a
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`frequency hopping scheme having strong interference or interferers in a wireless
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`communication system.” (Gerten, 2:34-37.) FIG. 1 of Gerten (reproduced below)
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`depicts a network having three piconets 10, 12, and 14. (Id., 3:8-12.) As shown in
`
`FIG. 1, the first piconet 10 has a plurality of mobile units 20 including a master
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`mobile unit and a slave mobile unit. (Id., 3:27-31.) The master mobile unit in Ger-
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`ten is a device “whose clock and hopping sequence are employed to synchronize
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`other devices in the piconet —devices in a piconet that are not the master are typi-
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`cally slaves.” (Id., 3:22-26.)
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`37. The mobile device 20 of Gerten, depicted below in FIG. 2, includes a
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`transceiver 32, a frequency synthesizer 60 having a memory 62, and a central con-
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`trol system 30 that can include “a processor or the like that is programmed to con-
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`trol and operate various components within the mobile communication unit 20 in
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`order to carry out various functions.” (Id., 3:44-48.) The “frequency synthesizer
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`component 60 cooperates with the central control system 30 and a device clock 64
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`to provide frequency hopping for the mobile communication unit 20.” (Id., 3:65-
`
`4:1)
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`38.
`
`In operation, a master device determines “which channels have the
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`strongest interference.” (Id., 4:50-51.) For example, the master device may em-
`
`ploy “signal strength measurements on N number of channels (N being an integer)
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`of the frequency hopping scheme to determine M number of channels (M being an
`
`integer less than or equal to N) to avoid.” (Id., 2:37-41.) The master device com-
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`municates the channels to be avoided (the bad channels) to a remote device. (Id.,
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`2:41-47.) The master and remote device then modify their respective hopping se-
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`quences and begin transmitting data at the modified hopping sequence with the
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`remaining N-M good channels. (Id., 2:47-49.) As explained by Gerten, “[t]he fre-
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`quency hopping scheme can be modified by providing a first register bank storing
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`synthesizer codes for generating frequency hopping over the N total channels in
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`normal mode with an alternate register bank storing synthesizer codes for generat-
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`ing frequency hopping over N-M channels for interference avoidance mode.” (Id.,
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`2:47-52.) The master device “periodically updates the channels to be avoided.”
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`(Id., 4:58-59.) When a subsequent update occurs, the master device again com-
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`municates the channels to be avoided to a remote device and they both modify
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`their respective hopping sequences again. (Id., 4:62-65.)
`
`B.
`Independent claim 1
`39. Gerten discloses each and every limitation recited in claim 1. Claim 1
`
`is reproduced below. The claim limitations have been labeled for ease of discus-
`
`sion.
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`1. [P] A communications device for use in a network of devices,
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`comprising:
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`[A] a memory for storing instructions;
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`[B] a processor that is communicatively coupled to the memory,
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`wherein the memory includes instructions which, when processed by the
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`processor, causes:
`
`
`
`[i] selecting, based upon performance of a plurality of communi-
`
`cations channels at a first time, a first set of two or more communications
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`channels from the plurality of communications channels;
`
`
`
`[ii] selecting, based upon performance of the plurality of com-
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`munications channels at a second time that is later than the first time, a sec-
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`ond set of two or more communications channels from the plurality of com-
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`munications channels; and
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`[C] a transceiver that is communicatively coupled to the memory and
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`that is configured to transmit to and receive from another communications
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`device,
`
`wherein:
`
`
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`[Di] for a first period of time, the first set of two or more com-
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`munications channels is used to transmit to and receive from the other com-
`
`munications device; and
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`
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`[Dii] for a second period of time that is after the first period of
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`time, the second set of two or more communications channels is used to
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`transmit to and receive from the other communications device instead of the
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`first set of two or more communications channels,
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`[E] wherein the communications device is a first communications de-
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`vice, the other communications device is a second communications device, a
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`default set of two or more communications channels is associated with a
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`hopping sequence and is not changed based on the performance of the plu-
`
`rality of communications channels; and
`
`
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`[F] the transceiver is configured to transmit to and receive from a third
`
`communications device over the default set of two or more communications
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`channels while transmitting to and receiving from the second communica-
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`tions device over the first set of two or more communications channels and
`
`while transmitting to and receiving from the second communications device
`
`over the second set of two or more communications channels.
`
`1. Gerten discloses “[a] communications device for use in a net-
`work of devices”[1P].
`
`40.
`
` As illustrated above in FIG. 1, a piconet of Gerten is “[a] collection
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`of devices that can be connected via Bluetooth technology.” (Gerten, 3:8-12.)
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`This collection of devices is a “network of devices.” The master mobile unit of the
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`piconet, for example, is a “communication device for use in the network of devic-
`
`es.” (Id., 3:27-31.)
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`2. Gerten discloses “a memory for storing instructions” [1A] and
`“a processor that is communicatively coupled to the memory,
`wherein the memory includes instructions which, when pro-
`cessed by the processor, causes” [1B] a set of actions to occur.
`41. Gerten includes a memory for storing instructions, and more specifi-
`
`cally a memory storing instructions that when processed by the processor of Gerten
`
`cause the channel selection actions of limitations [1Bi] and [1Bii] (discussed be-
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`low) to occur. In relation to channel avoidance identification, Gerten discloses that
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`“[t]he identification algorithm can use hardware (e.g., measurement power compo-
`
`nent 66) and software (e.g., residing in central control system 30) to read signal
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`- 20 -
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`
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`strength of channels and determine which channels to avoid.” (Gerten, 5:20-24,
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`emphasis added.)
`
`42. As was well-known to one of ordinary skill in the art well prior to
`
`January 2001, software consists of a set of instructions used to program a processor
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`to perform a specific task. A processor retrieves the instructions from memory and
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`executes them to carry out the task. Because Gerten discloses that the identifica-
`
`tion algorithm uses software residing in central control system 30 to read the signal
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`strength of channels and to determine which channels to avoid, the set of instruc-
`
`tions that make up the software are necessarily stored in a memory and processed
`
`by a processor.
`
`43.
`
`In fact, Gerten discloses such a memory and processor. Specifically,
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`Gerten discloses that the central control system 30 “is responsible for controlling
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`general operations of the mobile communication unit 20. The central control sys-
`
`tem 30 can include a processor or the like that is programmed to control and op-
`
`erate various components within the mobile communication unit 20 in order to car-
`
`ry out various functions.” (Id., 3:40-48, emphasis added.) Gerten further discloses
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`that “[t]he memory component 62 may include a plurality of register banks for
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`storing synthesizer codes that are employed to facilitate frequency hopping. Alter-
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`natively, the register banks may reside in the central control system 30 (e.g., in a
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`- 21 -
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`
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`memory component, onboard registers or memory in a processor or in separate
`
`register components).” (Id., 4:1-6, emphasis added.) In order for the software that
`
`resides in central control system 30 to be used for channel identification, the set of
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`instructions making up the software is necessarily stored in memory and processed
`
`by the processor.
`
`3. Gerten discloses “selecting, based upon performance of a plu-
`rality of communications channels at a first time, a first set of
`two or more communications channels from the plurality of
`communications channels” [1Bi].
`
`44.
`
` Gerten selects a first set of two or more communications channels
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`based upon scanning the performance of a plurality of communications channels.
`
`In Gerten, “the master device performs a channel scan at completion of its last
`
`transmission (step 120) and determines which channels have strongest interfer-
`
`ence.” (Gerten, 4:47-51.) As shown in the example in Gerten, the master unit of
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`Gerten performs signal strength measurements on N channels in a frequency hop-
`
`ping scheme to determine each channel’s performance. (Id., 2:37-41.) Based on
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`the performance data, the master unit determines “M number of channels (M being
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`an integer less than or equal to N) to avoid.” (Id.) This selection process of Gerten
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`occurs at a first time. The system of Gerten then “modif[ies] the frequency hop-
`
`ping scheme to avoid transmission over the M channels.” (Id., 2:41-42.) The re-
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`sulting set of channels (N-M) used in the modified hopping sequence is the “first
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`- 22 -
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`
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`set of two or more communications channels from the plurality of communications
`
`channels.” (See, e.g., id., 2:47-52.)
`
`4. Gerten discloses “selecting, based upon performance of the
`plurality of communications channels at a second time that is
`later than the first time, a second set of two or more communi-
`cations channels from the plurality of communications chan-
`nels” [1Bii].
`
`45.
`
` After establishing a modified hopping sequence “at a first time” (as
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`discussed above), the master unit of Gerten “periodically updates the channels to
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`be avoided.” (Gerten, 4:58-59, emphasis added; see also, Fig. 3 (block 180).)
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`When a subsequent update occurs, the master unit repeats the identification process
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`described above: the master unit determines [M2] number of channels ([M2] being
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`an integer less than or equal to N) to avoid. (Gerten, 2:37-52; see also id., 9:64-
`
`10:2, “[e]ach time the master decides to update the channels to be avoided, a new
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`packet is sent . . . . Preferably, a master and slave can remain in the interference
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`avoidance hop mode for the duration of their connection.”) The subsequent update
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`occurs at a second time that is later than the first time. The system of Gerten then
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`“modif[ies] the frequency hopping scheme to avoid transmission over the [M2]
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`channels.” (Id., 2:41-42, FIG. 3, block 180.) I use M2 to reflect that the value of M
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`could change during a subsequent update. The resulting set of channels (N-M2) is
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`the “second set of two or more communications channels from the plurality of
`
`communications channels.” (See, e.g., id., 2:47-52.)
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`- 23 -
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`
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`5. Gerten discloses “a transceiver that is communicatively coupled
`to the memory and that is configured to transmit to and receive
`from another communications device” [1C].
`46. Gerten discloses that the master unit “includes a transceiver 32 having
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`transmitting circuitry 34 and receiving circuitry 36 that are both coupled to an an-
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`tenna 38.” (Gerten, 3:53-55.) The transmitter is configured to transmit to another
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`communications device: “Transmissions are transmitted from the central control
`
`system 30 through a D/A converter 48 to a modulator 50 and a filter 52 to the
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`transmitter 34 out through the antenna 38.” (Id., 3:60-63.) And the receiver is con-
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`figured to receive from another communication device: “The receiver 36 receives
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`transmissions through the antenna 38.” (Id., 3:55-58.)
`
`47. The transceiver of Gerten is “communicatively coupled to the
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`memory.” As discussed above, the central control system 30 includes a processor
`
`and a memory. (Id., 4:3-6.) As further discussed above and shown in FIG. 2, the
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`transceiver 32 is “communicatively coupled” to the central control system 30.
`
`Therefore, transceiver 32 is also “communicatively coupled” to the memory of
`
`central control system 30.
`
`6. Gerten discloses “for a first period of time, the first set of two or
`more communications channels is used to transmit to and re-
`ceive from the other communications device” [1Di] and “for a
`second period of time that is after the first period of time, the
`second set of two or more communications channels is used to
`transmit to and receive from the other communications device
`
`- 24 -
`
`
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`instead of the first set of two or more communications chan-
`nels” [1Dii].
`48. After the master unit of Gerten selects the first set of two or more
`
`communications channels, the master unit communicates the M channels to be
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`avoided “to [remote mobile] units involved in the communication system, so that
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`the members of the wireless communication system can frequency hop together
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`over the modified frequency hopping scheme.” (Gerten, 2:43-47, emphasis add-
`
`ed.) Once the mobile units “modify their respective hopping sequences . . . [then
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`i]n step 170, the master device and the remote device begin transmitting data at the
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`modified hopping sequences.” (Id., 4:54-58.) Accordingly, in Gerten, “for a first
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`period of time, the first set of two or more communications channels is used to
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`transmit to and receive from the other communications device.”
`
`49. The first period of time lasts until the master device repeats the selec-
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`tion pro
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