trials@uspto.gov
`
`571-272-7822
`
`
`
`
`
`
`IPR2015-00369, Paper No. 39
`IPR2015-00373, Paper No. 38
`May 31, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`DSS TECHNOLOGY MANAGEMENT, INC.,
`Patent Owner.
`____________
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`____________
`
`Held: March 15, 2016
`____________
`
`
`BEFORE: JAMESON LEE, MATTHEW R. CLEMENTS, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`March 15, 2016, commencing at 1:02 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`571-272-7822
`
`
`
`
`
`
`IPR2015-00369, Paper No. 39
`IPR2015-00373, Paper No. 38
`May 31, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`APPLE INC.,
`Petitioner,
`
`v.
`
`DSS TECHNOLOGY MANAGEMENT, INC.,
`Patent Owner.
`____________
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`____________
`
`Held: March 15, 2016
`____________
`
`
`BEFORE: JAMESON LEE, MATTHEW R. CLEMENTS, and
`CHARLES J. BOUDREAU, Administrative Patent Judges.
`
`
`
`
`
`The above-entitled matter came on for hearing on Tuesday,
`March 15, 2016, commencing at 1:02 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`
`
`
`
`
`
`
`
`ON BEHALF OF THE PATENT OWNER:
`
`
`
`
`
`
`
`
`
`ROBERT GREENE STERNE, ESQUIRE
`DAVID K.S. CORNWELL, ESQUIRE
`MARK W. RYGIEL, ESQUIRE
`JASON A. FITZSIMMONS, ESQUIRE
`Sterne Kessler Goldstein Fox
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
`
`
`
`
`
`
`
`ANTON J. HOPEN, ESQUIRE
`ANDRIY LYTVYN, ESQUIRE
`Smith & Hopen
`180 Pine Avenue North
`Oldsmar, Florida 34677
`
`
`
`
`
`
`
`
`
`
`
`
` 2
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE LEE: Good afternoon. Please be seated.
`Judge Boudreau will be conducting today's session and
`he and Judge Clements will appear on the screen from San Jose,
`California. So if we could all wait a few minutes, I would
`appreciate that. Thank you.
`JUDGE BOUDREAU: Good afternoon. This is the
`oral hearing in Cases IPR2015-00369 and IPR2015-00373
`involving U.S. Patent Number 6,128,290.
`Can counsel please state your names for the record?
`MR. STERNE: Good afternoon, Your Honor. Robert
`Sterne for Petitioner Apple Inc.
`JUDGE BOUDREAU: Thank you, Mr. Sterne.
`MR. HOPEN: Good afternoon, Your Honor. My name
`is Anton Hopen. I am counsel for the Patent Owner. With me
`here is my colleague, Andriy Lytvyn, as well.
`JUDGE BOUDREAU: Thank you, Mr. Hopen.
`Per the trial hearing order in this case, each party will
`have 60 minutes of total time to present arguments. The order of
`presentation will be that the Petitioner will go first and present its
`case regarding the challenged claims. You may reserve time for
`rebuttal. Patent Owner will then respond to Petitioner's
`presentation and, finally, Petitioner may use any remaining time
`to respond to Patent Owner's presentation.
`
` 3
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`Just a few reminders, before you begin, one is to ensure
`that the transcript is clear and because we have two judges here in
`a different office, please try to refer to your demonstratives by
`slide number.
`Also, if either party believes that something the other
`party is arguing is a new argument in substance that was not
`made in the party's briefs, I would ask you to please raise that
`during your presentation rather than interrupting the other side.
`Any questions from either party before we begin?
`MR. HOPEN: No, sir.
`JUDGE BOUDREAU: All right. Thank you.
`Counsel for the Petitioner, you may begin. And do you
`plan to reserve time for rebuttal?
`MR. STERNE: Yes, Your Honor. I'd like to reserve 15
`minutes, if I may.
`JUDGE BOUDREAU: Okay. Thank you.
`MR. STERNE: Before I begin, I would like to
`approach Judge Lee and give him a hard copy of the slides.
`JUDGE LEE: I would like that very much. Thank you.
`MR. STERNE: And for our judges in San Jose, I've got
`hard copies for you that you can either get through Judge Lee or
`use the electronic versions.
`JUDGE BOUDREAU: Thank you. And just to be
`clear, the electronic versions that you filed two days ago are the
`same as what you just provided Judge Lee?
`
` 4
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`MR. STERNE: That's correct.
`JUDGE BOUDREAU: Okay. Thank you.
`MR. STERNE: So, Your Honor, it's my understanding
`that if I am looking at the camera above Judge Lee's head that I
`will be look directly at you; is that correct?
`JUDGE BOUDREAU: That is correct, yes. Thank
`
`you.
`
`MR. STERNE: Thank you.
`So good afternoon, Your Honors, and may it please the
`Board, Robert Sterne for Petitioner Apple Inc. With me at
`counsel table is my colleague, Jason Fitzsimmons, who's on my
`right. Also from my firm present are David Cornwell and Mark
`Rygiel and also joining us from California is trial counsel, David
`Alberti, and they are in the back of the room.
`Let me begin. Six challenged claims remain at issue.
`This Board properly instituted trial based on the combination of
`Natarajan and Neve patents. As we will discuss today, these
`claims are unpatentable on this ground. So let me summarize, if I
`can begin with, five key points that I will be addressing more
`today.
`
`First, Patent Owner has not disputed that a vast majority
`of the claim limitations are disclosed in the combination of
`Natarajan and Neve under any reasonable claim construction.
`Number two, Patent Owner disputes only a single
`limitation of the claims related to the term low duty cycle. Your
`
` 5
`
`
`
`
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`Honors, I have had Mr. Fitzsimmons display slide 1 of our slide
`deck and also slide 2, which show Claims 1 and 9, respectively,
`and also break out the single limitation that we will be addressing
`today, which is said server transmitters being energized in low
`duty cycle RF bursts.
`Third, Patent Owner's argument that Natarajan does not
`disclose a quote, low duty cycle, as required by the claims,
`requires this Board to improperly focus only on period A of the
`relevant time cycle in Natarajan and ignore periods B and C of
`this time cycle.
`Number four, but even if you, the Board, consider just
`Period A of Natarajan, Natarajan still discloses a low duty cycle
`as required by the claims.
`And, number five, Patent Owner's position on period A
`is premised entirely on an argument about the HDLC protocol
`that is contradicted by its own '290 patent.
`Patent Owner argues that the HDLC protocol is
`inconsistent with a "low duty cycle" and incompatible with their
`very own '290 patent, but yet the only disclosed embodiments of
`the '290 patent uses the HDLC packet protocol. In essence, we
`submit Patent Owner's argument requires the Board to ignore the
`teachings of its own patent.
`So turning now to claim construction, the only issue
`termed -- the only claim term here at issue appears in both
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 6
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`Independent Claims 1 and 9 and, as I've said before, we have
`highlighted those in our slides 1 and 2 of the slide deck.
`A reasonable claim construction for low duty cycle is
`found at paragraph 79 of Dr. Hu's declaration, which I have now
`reproduced for the Board's convenience. This is slide 11 of our
`slide deck. And what did Dr. Hu state in 79? And I'll read this
`into the record to complete the record.
`Accordingly, it is my opinion that the term "low duty
`cycle" does not impose an upper limit of 10 percent for the duty
`cycle. Under the broadest reasonable interpretation standard, a
`"low duty cycle" of a transmitter should simply be interpreted as
`the transmitter being carefully designed to be on only to satisfy
`the data communication needs over the communication cycle of
`the system. Moreover, a transmitter that is off for more time than
`it is on over the communication cycle of the system would be an
`example of a low duty cycle.
`JUDGE LEE: Mr. Sterne, I have a question. I'm a little
`confused by the terminology low duty cycle. It isn't defined in
`the spec and it wasn't construed in your petition at first either, but
`right now it seems to be at the focal point of the dispute.
`I'm wondering if the transmitter is energized for more
`than half the time that it could be energized, maybe even 80 or 90
`percent of the time. Could that possibly still be deemed low duty
`cycle if there is such a need to transmit? If it has a need to
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 7
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`transmit to everybody and it takes all of that time, would that still
`be considered low duty cycle?
`MR. STERNE: Yes, it would be, Your Honor, because
`you're looking at -- well, there's a lot of parts to my answer to
`your question, but the simple answer is regardless of any
`reasonable claim construction here, whether we focus just on
`period A, as has been argued by the Patent Owner, or if we
`impose a 10 percent cap on the transmitter at the master station
`being the maximum, it can be on during time frame A. Under
`any reasonable construction, even that one which we say is
`unreasonable in the record, the Natarajan and Neve combination
`renders those claims unpatentable as obvious.
`And if you want, I can go through the claim
`construction arguments or I can approach this from the
`perspective of the Natarajan and Neve patents. But regardless of
`what reasonable claim construction is done here, our position in
`the record -- this is not a new argument -- is that the claims are
`unpatentable over the two U.S. patents that are the combination.
`JUDGE LEE: I understand that, but it would be nice if
`we know what the term actually means.
`MR. STERNE: Right. And Dr. Hu in her paragraph 79
`says under the broadest reasonable interpretation a low duty cycle
`of a transmitter should simply be interpreted as the transmitter
`being carefully designed to be on only to satisfy the data
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 8
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`communication needs over the communication cycle of the
`system.
`
`And what she's driving at here is the communication
`cycle of the system, the data requirements for the master station
`to broadcast to the peripherals changes, and the data requirements
`for the peripherals to transmit back to the master station change
`over time, and Natarajan and Neve teach what is required by the
`claim and, therefore, you know, the claims are unpatentable.
`The Patent Owner has argued that there is a 10 percent
`cap when the transmitter can be -- there's a 10 percent cap in
`terms of low duty cycle and you only focus on period A when the
`master station is transmitting to the remote stations.
`If we could go and look perhaps at Figure 4 of the
`Natarajan patent so that I can put this in better context. By the
`way, this is slide 4 in our slide deck and I'm looking at Figures 4
`and 5 of the Natarajan patent. As we -- and we're also looking at
`an excerpt from the Natarajan patent that comes from column 4,
`lines 20 to 26.
`So if we look at Figure 4, we see there are three
`subframes A, B, and C. In subframe A the base station or the
`server, as it's used in the claim, Judge Lee, is transmitting to the
`mobile devices. This is a point to multipoint RF communication
`system using a time domain multiple access protocol with an
`HDLC packet structure. We'll get more into that in a minute.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 9
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`But essentially for this conversation at this point is
`there's a subframe A, a subframe B and a subframe C. Subframe
`A is when the base station is transmitting to the mobiles as
`indicated and each of the mobile devices in those various slots
`shown in subframe A are turned and off based on the code in
`Figure 5 during that period A.
`So when the transmitter is transmitting in each of -- or
`in some or each or none of those slots during subframe A,
`depending on what the data is that's going to be transmitted from
`the master station to the peripherals, the receivers in the remote
`devices turn themselves on based on the control information that
`they have received from the period AH. AH is a header in the
`frame and AH provides control information and synchronization
`information for that particular frame.
`After the transmitter from the base station transmits to
`the mobile devices, you enter another control period. BH is
`shown in Figure 4. In BH you, again, have control signals and
`synchronization signals according to Natarajan and at that point
`the peripheral devices, were all listening to BH, because they're
`all synchronized to the master, know when they are going to be
`allowed to transmit from their device to the base station and so
`they're off, their transmitters are off until they need to transmit
`according to this framing format specified on a frame-by-frame
`basis.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 10
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`After that occurs, as shown in shown in Figure 4, you
`have another control period and synchronization period, CH, as
`described in Natarajan, and then we enter subframe C, which is
`the contention period. During the contention period, some or all
`or none of the mobile devices can raise their hand, so to speak,
`and send a packet to the master station and many times there will
`be a couple stations transmitting at once, which is why it's called
`contention.
`The transmitter at the master station sends back what's
`called an acknowledgment frame, which is in one of the slots in
`C, when it picks up a particular request from a particular
`peripheral station and in that way there's a handshaking that goes
`on between the peripheral station that's sent a packet that is
`received by the master and the master acknowledges that with a
`return transmission in one of the slots later in C and tells that
`particular peripheral device that it has received its contention
`message, and then the whole thing repeats itself after we have this
`footer FT, which again synchronizes the end of the frame.
`So regardless of whether you look at subframes A, B,
`and C, which is our position, for determining duty cycle or
`whether you look just at subframe A, which we contend is not
`proper, but even if you were to do that and under any claim
`construction that is being advanced in this proceeding, including
`the one from the Patent Owner of limiting duty cycle to 10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 11
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`percent, as we've laid out carefully in the record they -- all of
`these variants are obvious in view of Natarajan and Neve.
`That's essentially our position. And if you'd like, I can
`go through the specifics of that.
`JUDGE LEE: Well, my question is, what does any of
`this have to do with the specific number --
`JUDGE BOUDREAU: Are you referring to the
`examples that Dr. Hu provided in her declaration where she
`ended up with duty cycles of -- let's see, this is paragraph 86 of
`her declaration. It says 8.57 percent. Paragraph 87, she ended up
`with a calculation of 9.09 percent.
`MR. STERNE: Yes, Your Honor. Judge Boudreau, if
`we look at her paragraph 86 and we have only reproduced the
`beginning of it because there's more detail as you know that
`comes after, but the portion that we have highlighted on slide 13
`of our slide deck states under 86, using the proper calculation
`over periods A through C for duty cycle in Natarajan, even under
`DSS's incorrect interpretation of "low duty cycle" being less than
`10 percent, Natarajan can operate in a manner that satisfies the
`proposed interpretation, and then she shows you some
`representative examples.
`JUDGE BOUDREAU: And what is the basis for those
`examples? I see in paragraph 86 it says, “[b]y way of example, if
`the base station transmits to 1 mobile unit during period A, 30
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 12
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`mobile units transmit to the base station during period B, and 2
`mobile units transmits to the base station during period C. . . .”
`Where do those 1, 30 and 2 come from?
`MR. STERNE: They are representative examples that
`Dr. Hu has proposed as representative of a frame that could easily
`occur in the communication cycle of a normal system.
`As you can imagine, Judge Boudreau, as I said before,
`the data that's being transmitted from the base station to the
`specified peripherals changes over time and the data that's being
`transmitted by the respective peripherals back to the base station
`change over time because these are RF LANs point to multipoint.
`So what Dr. Hu has done here is advanced particular examples of
`how the system could operate, and what I would like to do, Your
`Honor, before I go any further is go back to my slide that shows
`Figure 4.
`JUDGE BOUDREAU: Okay. My question, though, is
`whether those have any basis in examples that are actually
`disclosed in Natarajan?
`MR. STERNE: No, Your Honor. Those are not
`specific examples disclosed in Natarajan, but they're based on the
`-- they are based on the statement that I wanted to point to, if I
`may, which is critical. The critical point in this whole discussion
`is what is stated specifically in Natarajan and it says at column 4,
`lines 20 through 26, in the scheme described here, a scheduled
`multiaccess protocol is used in which time is divided into
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 13
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`fixed-length frames, and frames are divided into slots as shown in
`Figure 4.
`It is to be appreciated the different frame divisions and
`header lengths and content -- remember content, that's what we're
`talking about here -- content may be utilized in the practice of the
`invention, and the scheme set forth here is merely exemplary.
`So you can see that a person of ordinary skill in the art
`in 1997 reading Natarajan, which was filed in 1991 and issued in
`1993, could understand that the content could change, the header
`lengths could change, the frame divisions could change. All is
`contemplated by a person of ordinary skill in the art.
`And the reason this is important is because the system
`needs to conserve battery power. And in order to conserve
`battery power both at the base station and at the peripherals, you
`only want to be transmitting on either side of that when you need
`to. You don't want to be sending the same message more than
`once unless you have to. You don't want to be sending idle words
`because you don't need to. And the point is, battery power is
`primarily regulated and conserved by reducing the unneeded
`transmissions that occur.
`The receiver, of course, uses some power when it's on
`and the logic of both the peripheral and the base stations are on
`all the time because they have to be keeping track of when to turn
`on the transmitters and the receivers based on the framing that has
`information that's been received in this TDMA approach.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 14
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`But the real power consumption, as is well understood
`in the art, comes from the transmitter and it's the transmitters at
`the base station and at the peripheral devices that are consuming
`the power and, also, you don't want the transmitters running
`unnecessarily because they produce interference with other
`systems that are being operated in the same frequency spectrum.
`So the goals of the '290 patent are the same as what's
`shown in Natarajan and they’re both point to multipoint systems
`as is the system in Neeve or Neve and, therefore, it's our position
`that the combinations are legitimate and fully supported and that
`the combinations render the challenged claims that remain in the
`case unpatentable.
`Your Honor, I would like to talk, if I may, about some
`of the other things that are important to know. I would point to
`Dr. Hu's deposition.
`JUDGE LEE: Before you go on, let me ask a follow-up
`a little bit on claim construction. Under the broadest reasonable
`construction rule, would it be sufficient to simply say that as long
`as the transmitter is not transmitting idle data, that's enough to be
`low duty cycle, or is that too broad?
`MR. STERNE: No. I think -- Your Honor, the way the
`claim is written -- if we go back to Claim 1, what we're talking
`about is it's in the context of this combination. So in order for the
`server transmitter to be in the low duty cycle range, the server
`transmitter needs to -- according to the '290 patent, the server
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 15
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`transmitter needs to be transmitting when it has to transmit
`for that particular frame.
`JUDGE LEE: It doesn't want to be transmitting all the
`
`time.
`
`MR. STERNE: Well, it doesn't want to be transmitting
`more than once per frame for that particular peripheral device
`would be one way to look at it. In other words, it doesn't want to
`be transmitting redundantly, which is what would be going on
`when you are using this idle word construction that has been
`advanced by Patent Owner where you're just sending idle words
`that have no data. You have synchronization. It's produced by
`the frame structure and by the use of the HDLC frame protocol
`and, therefore --
`JUDGE LEE: Yeah, but that's in the spec. Just on the
`claim itself, the claim doesn't call for slots or frames.
`MR. STERNE: Right.
`JUDGE LEE: And I think somewhere in the patent it
`distinguishes over the art by saying, well, in the prior art there's
`transmission of idle data, which is bad for the battery and bad for
`interference.
`MR. STERNE: Right, that's correct.
`JUDGE LEE: So I'm thinking whether it would be
`unreasonably broad simply to say low duty cycle just means don't
`have the transmitter transmit idle data when there's nothing to
`transmit.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 16
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`MR. STERNE: That could be a possible construction.
`Under any of the constructions that have been advanced in this
`proceeding, even if you were as I said before to adopt this 10
`percent ceiling, the combination renders the claims obvious.
`JUDGE LEE: I know that, but I'm trying to figure out
`exactly what the term means. I'm positing different constructions
`to see what the parties' views are and one possible construction
`simply is we don't want the transmitter to be transmitting
`unnecessarily because that's the broad idea. It's bad for battery,
`bad for interference.
`So is it unreasonably broad simply to say it meets low
`duty cycle if you limit the transmitter such that it does not
`transmit idle data just to fill up its total frame?
`MR. STERNE: Yeah, that would be one example.
`Your Honor, as you probably know, but let me make it clear for
`the record the patent expired on March 6. Okay. So throughout
`the proceedings we've used BRI, broadest reasonable
`interpretation.
`The patent expired on March 6, so it could be argued
`that -- I don't believe there's a precedential decision from the
`Board on this issue yet. I know there is in reexamination, in inter
`partes reexamination, but when you -- when the patent expires
`during a proceeding like a reexam, inter partes reexam, you
`convert over to the Phillips standard.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 17
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`This, of course, was not raised in this proceeding. But
`when the patent expired, we would, of course, arguably be under
`the Phillips standard. Well, it doesn't matter under Phillips
`because the claim construction is the same because there was no
`prosecution history, no amendments made during the prosecution
`of this patent dealing with low duty cycle, so the low duty cycle
`limitation doesn't change from BRI to Phillips.
`JUDGE LEE: But let me ask you another possible
`construction, which is not as broad, and that would be you divide
`up a frame into slots and then you assign slots to each of the
`peripherals for the server. So each unit has its own designated
`slot in which to transmit or not to transmit. And unless it's in that
`slot, it should power off.
`Is that -- could that be a proper construction for low
`duty cycle?
`MR. STERNE: Well, I mean, I'm answering this
`hypothetically, but if the -- if during that frame where you've got
`these assigned slots for each peripheral unit and then each
`peripheral unit has an assigned slot to transmit back to the base
`station, as you say, so it's not dynamic at all, depending on the
`data requirements in the system at that moment in time, it would
`be low duty cycle because you wouldn't be transmitting the same
`information twice I would submit that was the requirement during
`that frame.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`
` 18
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`You would transmit it and then if you had to transmit it
`again, you'd have to transmit it in a subsequent frame or frames.
`JUDGE LEE: Right, and then it's powered off --
`MR. STERNE: Powered off.
`JUDGE LEE: -- between the time of the assigned slots.
`MR. STERNE: Right. And because you have
`synchronization on a frame-by-frame basis between the master
`and the peripherals, the master and the slaves, you would -- the
`slaves would know or the peripherals would know when to turn
`their receivers on and off, when to turn their transmitters on and
`off and the same would apply for the master.
`The only difference would be that the master would not
`know if a particular peripheral was going to need to transmit
`during that frame. It would assume that that peripheral would
`have reserved a dedicated reserve to transmit slots.
`JUDGE LEE: Right. So the server would have to be
`powered on to listen because the peripheral might transmit.
`MR. STERNE: Right, and the beauty of the '290 patent
`and the beauty of Natarajan and Neve is they're dynamic in that
`sense so they can know -- on the master side you don't have to be
`listening unless you know that something is supposed to be
`transmitted by that peripheral.
`Now, of course, we have that contention period in
`Natarajan where they can set it up for the next frame or frames,
`but there would be times that the master station in your
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 19
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`configuration would be listening and there would be no signal
`that would be transmitted by the peripheral dedicated to that slot.
`JUDGE LEE: So you don't object to that construction,
`because I'm also reading from the abstract. Just a few lines after
`low duty cycle appears, it says by establishing a tightly
`synchronized common time base between the units and by the use
`of sparse codes, timed in relation to the common time base, lower
`power consumption and avoidance of interference between
`nearby similar systems is obtained.
`So that seems to indicate that, to be low duty cycle, all
`you need is a synchronized frame in which different units are
`assigned transmission time or receiving time. We don't need any
`particular number, 10 percent, 20 percent, 30, 40, 50. That
`doesn't matter. That's the way I'm reading this.
`MR. STERNE: Yeah, there's nothing -- as you
`correctly point out, there's nothing in the spec that defines low
`duty cycle. The term low duty cycle is given its ordinary
`meaning and, therefore, a person of ordinary skill in the art
`reading the objectives or I guess we used to call them the objects
`of the invention would understand that the goal is to achieve
`those two objectives that you keep pointing out, which is low
`battery consumption and reducing interference, and that I believe
`would be accomplished by your construction.
`That's not been the specific constructions advanced here
`because we've been more focused, frankly, on what is shown in
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 20
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`Natarajan and what is shown in Neve. So we're trying to show
`that what is shown in those two references either individually or
`combined would meet the limitations of claims -- of the
`challenged claims.
`JUDGE LEE: I understand you probably never heard of
`it before today, but we've got to figure out what the term means.
`We can't say whatever the term means the art meets it. It's not the
`better way to go, but I'm just proposing this and see what the
`parties think about it.
`MR. STERNE: Right.
`JUDGE LEE: So you don't think that's too narrow or
`too broad? Let's apply the Phillips standard. Would that be a
`reasonable construction, that if you have synchronized time slots
`for transmission and receiving, that would constitute utilizing low
`duty cycle.
`MR. STERNE: I would say that the concept of low
`duty cycle there would be met based on what I can appreciate
`your hypothetical to be. It would be encompassed I submit by the
`'290 patent's disclosure. The examples that they use are not bad,
`but the claims in terms of their broad meaning and the objectives
`of the embodiments that are shown to the public and disclosed to
`the public and being interpreted by a person reading the patent
`could encompass that.
`JUDGE LEE: The Petitioner has no objection to that
`construction.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 21
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`MR. STERNE: No. No, I don't have an objection to
`that. Obviously what we have built our whole case around is
`what's laid out in the record and I want to make sure the record is
`understood, as I said a couple of times, that regardless of the
`claim constructions that are currently in the record, the
`combinations render the claims obvious.
`I don't know where my time is. I realize that I probably
`-- I reserved 15 minutes. I'd like to talk a little bit about the --
`two things I guess.
`JUDGE BOUDREAU: Mr. Sterne, if I could just ask
`one more question before you move on. Even if you energize the
`server transmitter only when you need to transmit, doesn't the
`duty cycle necessarily depend on how many of the peripheral
`units need to receive data?
`MR. STERNE: The duty cycle is from the focus of the
`transmitter in the base station or master station to the peripherals,
`that's correct, Judge Boudreau, in my opinion. And in Natarajan,
`for example, you have a transmitter that's on both in subframe A
`when it's transmitting data from the master station to the
`designated receivers as indicated by Figure 5 the code that's used.
`And then in the contention period in subframe C, you
`also have acknowledgments from the transmitter at the master
`station to the peripheral devices whose requests have been heard.
`So you have transmitting both in subframe A and subframe C in
`Natarajan.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
` 22
`
`
`
`
`
`
`
`Cases IPR2015-00369 and IPR2015-00373
`Patent 6,128,290
`
`
`Does that answer your questions?
`JUDGE BOUDREAU: So, in other words, if you had
`30 peripheral units that each have a slot and all 30 of those
`peripheral units are trying to d
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
