Trials@uspto.gov
`571-272-7822
`
`
`Paper 11
`Entered: March 15, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COMMSCOPE TECHNOLOGIES, LLC
`Petitioner,
`
`v.
`
`COMMUNICATIONS COMPONENTS ANTENNA INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00999
`Patent 8,311,582 B2
`____________
`
`
`Before JEFFREY S. SMITH, TRENTON A. WARD, and PETER P. CHEN,
`Administrative Patent Judges.
`
`SMITH, Administrative Patent Judge.
`
`DECISION
`On Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`571-272-7822
`
`
`Paper 11
`Entered: March 15, 2017
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`COMMSCOPE TECHNOLOGIES, LLC
`Petitioner,
`
`v.
`
`COMMUNICATIONS COMPONENTS ANTENNA INC.,
`Patent Owner.
`____________
`
`Case IPR2016-00999
`Patent 8,311,582 B2
`____________
`
`
`Before JEFFREY S. SMITH, TRENTON A. WARD, and PETER P. CHEN,
`Administrative Patent Judges.
`
`SMITH, Administrative Patent Judge.
`
`DECISION
`On Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`IPR2016-00999
`Patent 8,311,582 B2
`
`
`I. INTRODUCTION
`Petitioner, Commscope Technologies, LLC, filed a Request for
`Rehearing (Paper 10, “Req. Reh’g”) of our Decision Denying Institution of
`Inter Partes Review (“Decision Denying Institution”) (Paper 9, “Dec.”),
`dated November 3, 2016, which denied instituting inter partes review of
`claims 1–28 of US Patent No. 8,311,582 B2 (Ex. 1001, “the ’582 patent”).
`In its Request, Petitioner argues that the Decision Denying Institution
`relied on Patent Owner’s incorrect arguments, and misapprehended or
`overlooked Petitioner’s arguments that there is no credible dispute that
`steering planar array antennas always inherently result in asymmetrical
`beams. Req. Reh’g 1–2.
`For the reasons set forth below, Petitioner’s Request for Rehearing is
`denied.
`
`II. STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
`a panel will review the decision for an abuse of discretion.” An abuse of
`discretion may be determined if a decision is based on an erroneous
`interpretation of law, if a factual finding is not supported by substantial
`evidence, or if the decision represents an unreasonable judgment in weighing
`relevant factors. See Star Fruits S.N.C. v. United States, 393 F.3d 1277,
`1281 (Fed. Cir. 2005); Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed.
`Cir. 2004); In re Gartside, 203 F.3d 1305, 1315–16 (Fed. Cir. 2000). The
`request must identify, with specificity, all matters that the moving party
`believes the Board misapprehended or overlooked. See 37 C.F.R.
`§ 42.71(d). Section 42.71(d) further provides that the request must identify
`where each matter was previously addressed.
`
`2
`
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`IPR2016-00999
`Patent 8,311,582 B2
`
`
`III. DISCUSSION
`Claim 1 recites “a split-sector antenna having a plurality of sub-sector
`coverage areas extending therefrom, at least one of which is asymmetrical.”
`Petitioner relied on plots of radiation patterns shown in Figures 4 and 8 of
`Yea (Ex. 1016) to support the contention that Yea describes a split-sector
`antenna having at least one asymmetrical sub-sector coverage area. Pet. 36–
`38. In our Decision, we found that Petitioner did not (i) identify any portion
`of Yea disclosing that Figures 4 and 8 were drawn accurately enough to
`determine an asymmetrical nature of the radiation patterns, or (ii) cite to any
`disclosure in Yea that describes an asymmetrical nature of the radiation
`patterns, or (iii) explain why the shapes shown in the linear scale of Figure 4
`would show similar shapes when converted to a logarithmic scale, or (iv)
`sufficiently establish that the plots shown in Figures 4 and 8 could be used to
`determine that the radiation pattern is asymmetrical. Dec. 14–15.
`Petitioner contends the Decision Denying Institution misapprehended
`or overlooked that the same asymmetry of a given beam pattern will be
`present when plotted on either a linear or a logarithmic scale. Req. 3–7
`(citing Pet. 10–11, 15, 19–20). According to Petitioner, the asymmetry of
`Figure 4 of Yea as measured by its declarant Mr. Collins will be present no
`matter what scale is used to plot the beam. Req. 7 (citing Ex. 2005,
`Fig. 2.2). However, as we stated in our Decision, Petitioner did not identify
`any portion of Yea disclosing that Figure 4 was drawn accurately enough to
`determine an asymmetrical nature of the radiation pattern. Dec. 14–15.
`Regardless of the plotting using a linear or logarithmic scale, Petitioner did
`not identify any text in Yea used to describe Figure 4 that identifies or
`describes asymmetry. Dec. 14–15. Petitioner also did not identify any text
`
`3
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`IPR2016-00999
`Patent 8,311,582 B2
`
`in Yea disclosing the plots in Figure 4 were drawn accurately enough to be
`measured. Dec. 14–15. Petitioner’s subjective interpretation of Figure 4
`alone is not enough to establish a reasonable likelihood that Yea describes
`an asymmetrical beam pattern. Dec. 14–15 (citing Nystrom v. Trex Co., 424
`F.3d 1136, 1149 (Fed. Cir. 2005)).
`Petitioner also contends the Decision misapprehended or overlooked
`Patent Owner’s plot, which converts the linear plot of Figure 4 of Yea to a
`logarithmic plot, and allegedly shows the same asymmetry identified by
`Petitioner. Req. 7–10 (citing Ex. 2001 ¶ 112). Petitioner’s contention is
`based on the premise that Figure 4 of Yea alone is enough to describe an
`asymmetrical beam. However, Petitioner did not identify any portion of Yea
`disclosing that Figure 4 shows an asymmetrical beam pattern, or that
`Figure 4 was drawn accurately enough to determine an asymmetrical nature
`of the radiation pattern. See Dec. 14–15.
`Petitioner further contends the Decision misapprehended or
`overlooked that Figures 4 and 8 of Yea are radiation patterns verified by
`measurements. Req. 10–13 (citing Pet. 12–15). The cited section of the
`Petition includes an overview of Yea, but does not raise this or any argument
`for unpatentability. See Pet. 12–15. As Petitioner raises this argument for
`the first time in the Request for Rehearing, the Board could not have
`misapprehended or overlooked such an argument. Thus, Petitioner’s
`challenge does not meet the standard set forth for a request for rehearing,
`which requires a party to identify where the matter was previously
`addressed. See 37 C.F.R. § 42.71(d) (“The request must specifically identify
`all matters the party believes the Board misapprehended or overlooked, and
`
`4
`
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`IPR2016-00999
`Patent 8,311,582 B2
`
`the place where each matter was previously addressed in a motion, an
`opposition, or a reply.”).
`Even if we consider Petitioner’s contention that Figures 4 and 8 are
`verified by measurements, we find this contention unpersuasive. According
`to Petitioner, Yea states that the antenna patterns of Figure 4 are verified by
`measurements representing real world test data. Req. 11 (citing Ex. 1016,
`5). Although the cited portion of Yea discloses that Figure 4 shows ERP
`plots of a cell where deployment occurred, the cited portion does not
`disclose that Figure 4 was drawn accurately enough to determine an
`asymmetrical nature of the radiation pattern, nor does the cited portion
`disclose that Figure 4 shows an asymmetrical beam pattern. See Dec. 14–15.
`Lastly, Petitioner contends the Decision overlooked or
`“misapprehended the facts showing that all steered planar array antennas
`inherently result in radiation patterns having at least one asymmetrical
`beam.” Req. 13–15. According to Petitioner, Figure 4 of U.S. Patent No.
`5,929,823 (Exhibit 2010) and Figure 3 of U.S. Patent No. 6,198,434 (Exhibit
`2011), relied upon in Patent Owner’s Preliminary Response as describing
`remedies for distortion effects due to asymmetrical beams (Prelim. Resp.
`47–48), do not eliminate the inherent asymmetry of the main beam. Req. 14.
`However, our Decision relies on Paragraphs 151 to 156 of Mr. Cosgrove’s
`testimony (Ex. 2001), which cite additional sections of Exhibits 2010 and
`2011, to determine that the steered beams of a planar array are not
`necessarily asymmetrical. Dec. 21–23 (citing Ex. 2001 ¶¶ 151–156). For
`example, Mr. Cosgrove addresses the asymmetric bulge shown in Figure 4
`of Exhibit 2010 by citing to a description of Figure 6, which describes a lobe
`symmetry of main lobe 610 that presents a more slender beam mid-section
`
`5
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`IPR2016-00999
`Patent 8,311,582 B2
`
`than that of main lobe 410 of Figure 4. Ex. 2001 ¶ 152 (citing Ex. 2010,
`7:65–8:6). Mr. Cosgrove also addresses the asymmetric bulge shown in
`Figure 3 of Exhibit 2011 by citing to a description of Figure 6, which
`describes main lobe 610 as substantially symmetric, and more suited than
`lobe 310 of Figure 3 to provide communications within a defined subsection
`of an area to be served. Ex. 2001 ¶ 156 (citing Ex. 2011, 10:13–16).
`Accordingly, the Decision did not misapprehend or overlook any
`arguments or evidence presented by Petitioner. We did not abuse our
`discretion in determining that the Petitioner did not adequately establish a
`reasonable likelihood that a steered beam of a planar array is necessarily
`asymmetrical.
`
`IV. CONCLUSION
`For the foregoing reasons, Petitioner has not shown that the Board
`abused its discretion in declining to institute trial on claims 1–28 of the
`’582 patent.
`
`V. ORDER
`
`Accordingly, it is
`ORDERED that the Request for Rehearing is denied.
`
`
`
`
`
`
`
`6
`
`
`
`IPR2016-00999
`Patent 8,311,582 B2
`
`PETITIONER:
`Lynne A. Borchers
`Peter D. Siddoway
`MYERS BIGEL & SIBLEY, P.A.
`lborchers@myersbigel.com
`psiddoway@myersbigel.com
`
`PATENT OWNER:
`Joseph Sofer
`SOFER & HAROUN LLP
`joesofer@soferharoun.com
`
`John DiMatteo
`HOLWELL SHUSTER & GOLDBERG LLP
`jdimatteo@hsgllp.com
`
`
`
`
`
`7
`
`
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