Trials@uspto.gov
`571-272-7822
`
`
`Paper 9
`Entered: November 3, 2016
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`
`
`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
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`571-272-7822
`
`
`Paper 9
`Entered: November 3, 2016
`
`
`
`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
`Denying Institution of Inter Partes Review
`37 C.F.R. § 42.108
`
`
`
`
`
`
`
`IPR2016-00999
`Patent 8,311,582 B2
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`I. INTRODUCTION
`Petitioner, Commscope Technologies, LLC, filed a Petition for inter
`partes review of claims 1–28 of U.S. Patent No. 8,311,582 B2 (Ex. 1001,
`“the ’582 patent”). Paper 1 (“Pet.”). Patent Owner, Communications
`Components Antenna Inc., filed a Preliminary Response. Paper 7 (“Prelim.
`Resp.”). Institution of an inter partes review is authorized by statute when
`“the information presented in the petition . . . and any response . . . shows
`that there is a reasonable likelihood that the petitioner would prevail with
`respect to at least 1 of the claims challenged in the petition.” 35 U.S.C.
`§ 314(a); see 37 C.F.R. § 42.108.
`Upon consideration of the Petition and the Preliminary Response, we
`are not persuaded Petitioner has demonstrated a reasonable likelihood that it
`would prevail in establishing the unpatentability of claims 1–28 of the
`’582 patent. Accordingly, we do not institute an inter partes review.
`
`A. Related Matters
`Neither party identifies any other matter related to the ’582 patent.
`
`B. The ’582 Patent
`The ’582 patent is titled “Asymmetrical beams for spectrum
`
`efficiency,” and relates generally to improving sector capacity and
`throughput in an established network without creating coverage holes.
`Ex. 1001, 1:6–8. A sector antenna of a base station for a cellular network is
`replaced with a sub-sector antenna that generates a plurality of sub-sector
`coverage areas that collectively substantially cover the coverage area of the
`replaced sector antenna. Id. at Abstract. Figure 2 of the ’582 patent is
`reproduced below.
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`Figure 2 above shows three mirror-image pairs (210, 211), (220, 221),
`(230, 231) of asymmetrical sub-sector beams to replace a traditional three
`sector configuration with a six sub-sector configuration. Id. at 5:10–14. The
`use of asymmetrical beams ensures handover region reduction by means of
`low overlap 212 of adjacent pairs of sub-sector beams 210, 211 and low
`overlap 223 between sub-sector beam 211 of a first pair and sub-sector beam
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`220 of a second pair. Id. at 5:14–19. Figure 3 of the ’582 patent is
`reproduced below.
`
`Figure 3 above shows sub-sector beams 230, 231, overlaying
`conventional full sector beam patterns 310, 320, 330 shown in dashed
`outline. Ex. 1001, 5:27–30. The beam patterns of the new antenna
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`corresponding to a sector to sub-sector upgrade have largely the same
`overall beam pattern as the antenna being replaced. Id. at 5:64–67.
`According to the ’582 patent, the use of the sub-sector antenna permits the
`selective replacement of a single sector antenna rather than replacement of
`all sector antennas in a region, leading to lower transitional costs. Id. at
`Abstract.
`
`C. Illustrative Claim
`Claims 1, 13, and 20 of the ’582 patent are independent. Claim 1 is
`illustrative of the claimed subject matter:
`1. A method for increasing subscriber capacity in a sectorized
`cellular communications network having a plurality of
`subscribers and a base station supporting at least one sector,
`each of the at least one sector having one or more associated
`sector antennae at the base station having a critical coverage
`area extending therefrom and overlapping neighbouring
`sectors thereof in a sector handover zone, the method
`comprising a step of:
`replacing the associated one or more sector antennae for a
`given sector with a split-sector antenna having a plurality of
`sub-sector coverage areas extending therefrom, at least one of
`which is asymmetrical, each corresponding to a sub-sector
`and overlapping a neighbouring sub-sector coverage area in a
`sub-sector handover zone, whereby a total critical coverage
`area provided by the plurality of sub-sector coverage areas is
`substantially equivalent to a critical coverage area of the
`replaced one or more associated sector antennae, wherein said
`at least one asymmetrical sub-sector coverage area reduces
`overlap with said neighbouring sub-sector coverage area
`comparing to overlap of the replaced antennae while
`maintaining the critical coverage area of the replaced antenna.
`
`Ex. 1001, 10:3–23.
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`D. Asserted Grounds of Unpatentability
`Petitioner contends that claims 1–28 of the ’582 patent are
`unpatentable based on the following specific grounds:
`
`Reference(s)
`Yea 1
`
`Yea, Metawave Website2,
`Litva3, and Wästberg4
`Yea and Mouly5
`Yea and Smith6
`Yea and CSA Antennas7
`Yea and Wastberg
`Yea and Derneryd8
`Yea and Metawave Website
`
`§ 103
`
`Challenged Claim(s)
`Basis
`§ 102(b) 1, 2, 6, 7, 9, 11–15, 18–22,
`24, and 27
`1, 2, 6, 7, 9, 11–15, 18–22,
`24, and 27
`3–5
`8, 16, and 23
`10
`17 and 25
`26 and 27
`28
`
`§ 103
`§ 103
`§ 103
`§ 103
`§ 103
`§ 103
`
`
`1 Ji-Hae Yea, Smart Antennas for Multiple Sectorization in CDMA Cell
`Sites, RF Design, April 2001 (Pet. 24), (Ex. 1016, “Yea”).
`2 From Internet Archive Affidavit of Christopher Butler (Ex. 1015).
`3 J. Litva et al., Digital Beamforming in Wireless Communications (Artech
`House Publishers 1996) (Ex. 1009, “Litva”).
`4 U.S. Patent No. 6,608,591 B2, filed Nov. 14, 2001, issued Aug. 19, 2003
`(Ex. 1018).
`5 M. Mouly et al., The GSM System for Mobile Communications (Cell & Sys
`1992) (Ex. 1004, “Mouly”).
`6 U.S. Patent No. 6,104,935, filed May 5, 1997, issued Aug. 15, 2000 (Ex.
`1019, “Smith”).
`7 From Internet Archive Affidavit of Christopher Butler (Ex. 1015).
`8 A. Derneryd et al., Adaptive Base-Station Antenna Arrays, Ericsson
`Review No. 3, 1999 (Ex. 1021, “Derneryd”).
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`Pet. 24–25.
`
`II. DISCUSSION
`A. Claim Construction
`In an inter partes review, we construe claim terms in an unexpired
`patent according to their broadest reasonable construction in light of the
`specification of the patent in which they appear. 37 C.F.R. § 42.100(b);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`(upholding the use of the broadest reasonable interpretation standard as the
`claim interpretation standard to be applied in inter partes reviews).
`Consistent with the broadest reasonable construction, claim terms are
`presumed to have their ordinary and customary meaning as understood by a
`person of ordinary skill in the art in the context of the entire patent
`disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). An inventor may provide a meaning for a term that is different from
`its ordinary meaning by defining the term in the specification with
`reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994).
`Petitioner proposes the scope of “a plurality of sub-sector coverage
`areas extending therefrom, at least one of which is asymmetrical”
`encompasses a plurality of replacement sub-sector beams, at least one of
`which has an asymmetrical shape, where asymmetry includes deliberate or
`inherent asymmetry. Pet. 29 (citing Ex. 1001, 4:4–6; 5:27–30; 5:61–6:3).
`Patent Owner proposes there is no reason to construe this term any
`differently from its ordinary meaning. Prelim. Resp. 22. According to
`Patent Owner, this means that a sub-sector coverage area, rather than a sub-
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`sector beam, includes asymmetry. Id. at 22–23 (citing Ex. 1001, 3:11–12;
`3:16–23).
`Petitioner’s proposed construction of this limitation is supported by
`the specification of the ’582 patent. The ’582 patent discloses replacing a
`single sector coverage area with sub-sector coverage areas, at least one of
`which is an asymmetrical coverage area. Ex. 1001, 3:16–18. The ’582
`patent discloses that the use of asymmetrical coverage areas permits the total
`coverage area to closely approximate the symmetrical sector coverage area
`being replaced, without creating excessively large sub-sector handover zones
`or introducing sever degradation in network performance. Id. at 3:18–24.
`The ’582 patent discloses creating the asymmetrical coverage areas by
`replacing an existing antenna with an antenna that has substantially the same
`coverage area, but divides the coverage area into a plurality of separate
`asymmetrical beams or sub-sectors. Id. at 4:32–38. As disclosed by the
`’582 patent, the replacement antenna produces a plurality of separate beams,
`each defining a new sub-sector with only a small overlapping area between
`them and which together provide substantially identical coverage to the
`sector supported by the original antenna, to upgrade the single sector to a
`plurality of sub-sectors without significantly affecting neighboring sites. Id.
`at 4:51–57. The replacement antenna introduces asymmetry into the
`generated beam pattern. Id. at 4:58–60. The introduction of asymmetrical
`beams by the replacement antenna allows close approximation of the
`coverage area of the conventional sector antenna being replaced. Id. at
`5:61–64.
`For purposes of this Decision, we adopt Petitioner’s proposed
`construction of “a plurality of sub-sector coverage areas extending
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`therefrom, at least one of which is asymmetrical,” as a plurality of
`replacement sub-sector beams, at least one of which has an asymmetrical
`shape, where asymmetry includes deliberate or inherent asymmetry as the
`broadest reasonable construction consistent with the specification.
`We further determine that none of the other terms, including those
`proposed by Petitioner, require express construction for purposes of this
`decision.
`
`B. Asserted Anticipation By Yea: Claims 1, 2, 6, 7, 9, 11–15, 18–22, 24,
`and 27
`Petitioner contends that seventeen of the ’582 claims—independent
`claims 1, 13, and 20, and dependent claims 2, 6, 7, 9, 11, 12, 14, 15, 18, 19,
`21, 22, 24, and 27—are anticipated under 35 U.S.C. § 102(b) by Yea.
`Pet. 35–53.
`
`1. Yea (Ex. 1016)
`Yea provides smart antennas for multiple sectorization in CDMA
`
`(code division multiple access) cell sites. Ex. 1016, Title. With a smart
`antenna system, as few as three antennas can configure a site for three, four,
`five, or six sectors. Id. at 5. According to Yea, the smart antenna six-sector
`configuration was deployed in a site originally configured in three sectors
`using conventional antennas. Id. Yea discloses that the smart antenna six-
`sector configuration provided increased site capacity. Id. at 9. Figure 4 of
`Yea is reproduced below.
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`Figure 4 of Yea above shows ERP (effective radiated power) plots of
`the three-sector (left) and six-sector (right) site configurations. Id. at 5.
`Figure 8 of Yea is reproduced below.
`
`
`Figure 8 of Yea above compares Ec/I0 (Energy per chip to Interference
`power ratio) plots for the three-sector configuration with conventional
`antennas (left) and the smart antenna six-sector configuration (right). Id. at
`9. The size of the inter-sector softer handoff regions––and thus the amount
`of handoff overhead––is indicated by the darker (purple and red) shaded
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`areas. Id. Yea does not expressly use the term “asymmetrical” to describe
`the coverage areas.
`
`2. Analysis
`a. Claims 1, 13, and 20
`Claim 1 recites “[a] method for increasing subscriber capacity in a
`sectorized cellular communications network having a plurality of subscribers
`and a base station supporting at least one sector.” Ex. 1001, 10:3–5.
`Claims 13 and 20 recite similar limitations. Id. at 11:4–6, 12:1–3. Petitioner
`contends Yea describes this limitation in disclosing six-sector deployment of
`a CDMA smart antenna system, in a site originally configured in three-
`sector form, to provide increased site capacity. Pet. 35–36 (citing Ex. 1016
`at 5, 9; Ex. 1024 ¶ 157).
`Claim 1 recites “each of the at least one sector having one or more
`associated sector antennae at the base station having a critical coverage area
`extending therefrom and overlapping neighbouring sectors thereof in a
`sector handover zone.” Ex. 1001, 10:4–9. Claims 13 and 20 recite similar
`limitations. Id. at 11:6–10; 12:3–6. Petitioner contends Yea discloses this
`limitation in describing a site originally configured in three-sector form
`using conventional antennas, where the left side of Figures 4 and 8 show the
`coverage area extending from three sector antennas, including overlapping
`neighboring sectors in a sector handover zone. Pet. 36 (citing Ex. 1016, 5,
`Figs. 4 and 8; Ex. 1024 (Declaration of Brian S. Collins) ¶ 158).
`Claim 1 recites “replacing the associated one or more sector antennae
`for a given sector with a split-sector antenna having a plurality of sub-sector
`coverage areas extending therefrom, at least one of which is asymmetrical,
`each corresponding to a sub-sector and overlapping a neighbouring sub-
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`sector coverage area in a sub-sector handover zone.” Ex. 1001 10:10–15.
`Claims 13 and 20 recite similar limitations. Id. at 11:10–16; 12:7–12.
`Petitioner contends Yea discloses replacing the associated one or more
`sector antennae for a given sector with a split-sector antenna in describing
`using multi-beam antennas to facilitate multiple sectorization schemes in a
`site originally configured in three sectors using conventional antennas. Pet.
`36–37 (citing Ex. 1016, 5, 9, 17, Figs. 4 and 8; Ex. 1024 ¶ 159). Petitioner
`does not contend Yea expressly characterizes the beams as “asymmetric,”
`but contends the radiation pattern of the six-sector configuration shown in
`Figures 4 and 8 of Yea shows the beams are asymmetrical and overlap in a
`neighboring sub-sector in a sub-sector handover zone, as evidenced by a
`visual review of the figures and by Mr. Collins’ measurements of Yea’s six-
`sector radiation patterns. Pet. 37 (citing Ex. 1016, Figs. 4 and 8; Ex. 1017).
`Petitioner also relies on statements made by Patent Owner regarding
`litigation in India. Pet. 37–38.
`Claim 1 recites “whereby a total coverage area provided by the
`plurality of sub-sector coverage areas is substantially equivalent to a critical
`coverage area of the replaced one or more associated sector antennae.”
`Ex. 1001, 10:15–18. Claims 13 and 20 recite similar limitations. Id. at
`11:16–19, 12:12–15. Petitioner contends this limitation is readily seen in
`Figures 4 and 8 of Yea, where the right side of each figure has a coverage
`area substantially equivalent to the critical coverage area of the replaced
`three-sector antennas shown on the left side. Pet. 38 (citing Ex. 1016, Figs.
`4 and 8; Ex. 1024 ¶ 161). Petitioner also relies on Mr. Collins’ overlay of
`the six-sector beam pattern on the three-sector beam pattern shown in
`Figures 4 and 8 of Yea to show the total critical coverage area provided by
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`the six-sector configuration is substantially equivalent to the critical
`coverage area provided by the three-sector configuration. Id. (citing Ex.
`1014; Ex. 1024 ¶¶ 162–66).
`Claim 1 recites “wherein said at least one asymmetrical sub-sector
`coverage area reduces overlap with said neighbouring sub-sector coverage
`area comparing to overlap of the replaced antenna while maintaining the
`critical coverage area of the replaced antenna.” Ex. 1001, 10:18–23.
`Claims 13 and 20 recite similar limitations. Id. at 11:20–23, 12:15–19.
`Petitioner contends Figures 4 and 8 of Yea disclose split-sector antennas
`have asymmetrical sub-sector coverage areas that reduce overlap with
`neighboring sub-sector coverage areas compared to overlaps between sectors
`of the replaced antennas, while the total critical coverage area of the split-
`sector antennas closely approximates the critical coverage area of the
`replaced antennas. Pet. 38–39 (citing Ex. 1016, Figs. 4 and 8; Ex. 1014,
`slides 5 and 10; Ex. 1024 ¶¶ 167–68).
`Patent Owner argues that Yea does not disclose “a split-sector antenna
`having a plurality of sub-sector coverage areas extending therefrom, at least
`one of which is asymmetrical,” as required by claim 1. Prelim. Resp. 27.
`According to Patent Owner, the text of the Yea reference does not use the
`term “asymmetric” or otherwise disclose the asymmetrical nature of the
`radiation patterns. Id. at 29–43. Specifically, Patent Owner argues Yea does
`not indicate whether the scales shown in the plots of Figures 4 and 8 can be
`accurately measured, or whether the dimensions represent a constant ratio
`relative to actual dimensions of the antenna pattern, because Yea was printed
`for marketing purposes, not for a scientific journal. Id. at 29, 31, 41. Patent
`Owner contends that there is no explanation in the text of Yea to disclose
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`sufficient underlying parameters that allow a person of ordinary skill in the
`art to scientifically and reliably recreate the plots to scale. Id. at 31–32.
`Patent Owner also argues that the plots of Figure 4 only show a 4 dB
`(decibel) range of radiation extending from the antenna, but the entire range
`is around 40 dB. Id. at 30–31.
`According to Patent Owner, another problem with the drawings is that
`the drawings shown in Figure 4 are on a linear scale, and must be converted
`to a logarithmic scale to surmise the shape of the coverage area
`corresponding to the antenna pattern, because radio signals attenuate as an
`exponential function of a distance from an antenna. Id. at 32–36. Patent
`Owner asserts that plots depicted in a logarithmic scale have a different
`shape than plots depicted in a linear scale. Id. at 39.
`Patent Owner also argues that the carrier to interference ratio plot of
`Figure 8 is not the same as an antenna radiation plot. Id. at 40. Patent
`Owner contends that the carrier to interference ratio is used to show the
`effect of noise or interference on a radiated signal caused by neighboring
`cells, and is only loosely related to the antenna radiation beam pattern. Id. at
`41–42.
`A similar issue arose in Nystrom v. TREX Co., 424 F.3d 1126, 1148–
`49 (Fed. Cir. 2005). There, the district court invalidated claims of the patent
`in suit on summary judgment based on the measured dimensions of a prior
`art patent figure. Id. at 1148. The Federal Circuit reversed, warning “that
`arguments based on drawings not explicitly made to scale in issued patents
`are unavailing.” Id. at 1149. Petitioner here does not identify any portion of
`Yea disclosing that Figures 4 and 8 are drawn accurately enough to
`determine an asymmetrical nature of the radiation patterns. Petitioner also
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`fails to cite to any disclosure in Yea that identifies or describes an
`asymmetrical nature of the radiation patterns. Furthermore, Petitioner also
`has not explained why the shapes shown in the linear scale drawings of
`Figure 4 would show similar shapes when converted to a logarithmic scale.
`Additionally, Petitioner does not explain why the carrier to interference ratio
`shown in Figure 8 can be used to accurately measure antenna radiation beam
`patterns. We find Petitioner does not sufficiently establish that the plots
`shown in Figures 4 and 8 of Yea can be used to determine whether the
`antenna radiation beam pattern is asymmetrical.
` On the record before us, we determine the Petition and supporting
`evidence does not adequately establish a reasonable likelihood that
`Petitioner would prevail in showing that Yea anticipates independent claims
`1, 13, and 20.
`
`b. Dependent Claims 2, 6, 7, 9, 11, 12, 14, 15, 18, 19, 21, 22, 24, and 27
`Petitioner argues that Yea anticipates dependent claims 2, 6, 7, 9, 11,
`12, 14, 15, 18, 19, 21, 22, 24, and 27. Pet. 47–53. In so arguing, Petitioner
`relies on Yea as disclosing the claimed asymmetrical coverage area. Id.
`Because we are not persuaded that Yea discloses this limitation, we are not
`persuaded that Petitioner establishes a reasonable likelihood of prevailing in
`showing that Yea anticipates dependent claims 2, 6, 7, 9, 11, 12, 14, 15, 18,
`19, 21, 22, 24, and 27.
`
`C. Asserted Obviousness Over Yea, Metawave Website, Litva, and
`Wästberg: Claims 1, 2, 6, 7, 9, 11–15, 18–22, 24, and 27
`1. Metawave Website (Ex. 1015)
`The Metawave Website discloses the SpotLight 2000 smart antenna
`system as a non-invasive applique on a base station infrastructure. Ex. 1015
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`at 33. Three multibeam panel antennas of the SpotLight 2000 system
`replace conventional antennas on the tower. Id. According to the Metawave
`Website, drawing on phased-array technology, SpotLight 2000 allows the
`user to craft custom antenna patterns based on 12 narrow beams produced by
`the three panel antennas. Id. The Metawave Website further discloses that
`in the SpotLight 2000 system, sector synthesis allows adjustment of antenna
`gain and phase on a 30 degree, per-beam basis, allowing the operator to
`sculpt the cell’s coverage footprint. Id. at 16.
`
`2. Litva (Ex. 1009)
`Litva discloses analog beamforming, in which energy radiated by an
`aperture antenna is focused along a specific direction, to receive or transmit
`a signal in that direction. Ex. 1009 at 4. In an example of beamforming,
`Litva discloses generating four beams from a four element array known as a
`Butler beamforming matrix. Id. at 6–8. Figure 2.13(a) of Litva is
`reproduced below.
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`Figure 2.13(a) above shows a 4 x 4 Butler beamforming matrix with four
`ports numbered 1 through 4. The matrix uses four 90 degree phase-lag
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`hybrid junctions and two 45 degree fixed-phase shifters. Figure 2.14 of
`Litva is reproduced below.
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`Figure 2.14 of Litva above shows four mutually orthogonal overlapped
`beams produced by the Butler beamforming matrix. Id. at 8.
`
`3. Wästberg (Ex. 1018)
`Wästberg relates to phased antenna arrays for base stations in
`communication networks. Ex. 1018 1:5–7. An antenna provides an aperture
`generating a multibeam pattern producing lower side lobe levels for a base
`station in a communication network compared to the state of the art. Id. at
`1:55–58. Figure 2 of Wästberg is reproduced below.
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`Figure 2 above illustrates a prior art simulated azimuth antenna diagram of a
`dual-beam aperture, consisting of a two-element array with 90 degree phase-
`gradient. Id. at 2:21–23. Figure 18 of Wästberg is reproduced below.
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`Figure 18 above illustrates a simulated azimuth antenna diagram for the
`dual-beam antenna aperture with three radiating elements. Id. at 1:62–64. A
`right beam of Figure 18 has a null coinciding with the maximum of the left
`beam and vice versa. Id. at 6:16–18. The side lobe level at the left and right
`of the respective right and left lobes is well below –25 dB. Id. at 6:18–19.
`In contrast, Figure 2 shows the first side lobe of the right and left beams has
`its peak well above –15 dB, and a substantial part of the power will therefore
`radiate into adjacent cells. Id. at 1:47–51.
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`4. Analysis
`Petitioner contends that if Patent Owner argues that asymmetrical
`beams are not expressly or inherently disclosed in Yea because the word
`“asymmetric” is not used, the asymmetrical beams would have been obvious
`in view of Yea and the Metawave Website (Ex. 1015) and/or the
`Asymmetric Beam Prior Art (Ex. 1009 and Ex. 1018). Pet. 39. Petitioner
`contends that the Metawave Website discloses this limitation in describing
`that the split-sector antennas of the SpotLight 2000 system disclosed in Yea
`were steered planar array antennas. Id. (citing Ex. 1015; Ex. 1024 ¶¶ 173–
`78). According to Petitioner, a person of ordinary skill in the art would have
`understood that steered beams of a planar array antenna are necessarily
`asymmetrical. Pet. 39–40 (citing Ex. 1024 ¶¶ 45, 46, 171, 172, 179; Ex.
`1009, Fig. 2.14; Ex. 1018, Figs. 2 and 18).
`To support this argument, Petitioner relies on the testimony of Mr.
`Collins, who states that the “Metawave Website expressly discloses that the
`split-sector antennas used to generate the beam patterns of the SpotLight
`2000 system shown in Yea are steered planar arrays.” Ex. 1024 ¶ 174.
`According to Mr. Collins, a person of ordinary skill in the art would have
`understood that the antenna radiation patterns of the SpotLight 2000 system
`disclosed in Yea are asymmetrical beams formed by beam steering of multi-
`beam planar array antennas because “all prior art steered beam planar array
`antennas result in asymmetrical beams.” Id. at ¶¶ 178–179 (citing Ex. 1009
`and Ex. 1018).
`Patent Owner contends the asymmetrical characteristics exhibited in
`the prior art were viewed as a distortion. Prelim. Resp. 47. Patent Owner
`cites Wästberg’s teaching that asymmetric beams are a drawback. Id. at 48
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`(citing Ex. 1018 5:60–65). Patent Owner also relies on the testimony of its
`declarant Mark Cosgrove to show that Metawave obtained several patents to
`remedy what it deemed to be distortion effects due to the asymmetrical beam
`characteristics, during the same time it was promoting the SpotLight 2000
`system. Id. at 47–48 (citing Ex. 2001 ¶¶ 150–161). Mr. Cosgrove testifies
`that Metawave was granted several patents for planar array antennas that
`express the desirability of symmetric beams, the undesirability of
`asymmetric beams, and solutions to achieve highly symmetric antenna
`patterns. Ex. 2001 ¶¶ 150–160.
`Specifically, Mr. Cosgrove testifies that U.S. Patent No. 5,929,823
`titled “Multiple Beam Planar Array with Parasitic Elements” (Ex. 2010)
`discloses an antenna to produce a symmetric beam pattern devoid of
`undesired asymmetry. Ex. 2001 ¶¶ 151–154. Mr. Cosgrove testifies that
`U.S. Patent No. 6,198,434 titled “Dual Mode Switched Beam Antenna” (Ex.
`2011) discloses that a symmetric beam, rather than an asymmetric beam, is
`suited for providing communications within a sector. Id. ¶¶ 155–156. Mr.
`Cosgrove further testifies that U.S. Patent No. 6,317,100 titled “Planar
`Antenna Array with Parasitic Elements Providing Multiple Beams of
`Varying Widths” (Ex. 2012) describes the undesirability of asymmetrical
`beam patterns, and suggests a solution to achieve a highly symmetric
`antenna pattern. Id. ¶¶ 157–160. Mr. Cosgrove also testifies that U.S.
`Patent No. 6,583,760 titled “Dual Mode Switched Beam Antenna” (Ex.
`2013) discloses a substantially symmetric solution that provides a beam
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`Patent 8,311,582 B2
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`more suited to providing communications within a defined subsection of an
`area to be served. Id. ¶ 161.
`We have reviewed the arguments from Petitioner and Patent Owner,
`as well as testimony of both Mr. Collins and Mr. Cosgrove. Under Rule 37
`C.F.R. § 42.108, any genuine issues of material fact created by the
`testimonial evidence should be viewed in light most favorable to the
`petitioner solely for purposes of deciding whether to institute an inter partes
`review. Even reviewing the testimony of Mr. Collins in the light most
`favorable to Petitioner, we determine Petitioner has established only that
`asymmetrical beams may be used in a planar array antenna, but not that a
`person of ordinary skill in the art would have understood steered beams of a
`planar array antenna are necessarily asymmetrical. Mr. Collins cites to Litva
`(Ex. 1009) and Wästberg (Ex. 1018) in stating that prior art steered beams of
`a planar array antenna can be asymmetrical beams. Ex. 1024 ¶ 179.
`We credit Patent Owner’s arguments and the testimony of Mr.
`Cosgrove to determine Petitioner does not sufficiently establish the
`likelihood that a person of ordinary skill in the art would have understood
`that steered beams of a planar array antenna are necessarily asymmetrical.
`Further, Petitioner fails to set forth a sufficient rationale for why a person of
`ordinary skill in the art would use the asymmetrical beams of the prior art
`with the disclosure of Yea. Pet. 39–40. On the record before us, we
`determine the Petition and supporting evidence does not adequately establish
`a reasonable likelihood that using asymmetrical beams in Yea would have
`been obvious. We therefore conclude that the information presented does
`not show a reasonable likelihood that Petitioner would prevail in showing
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`the subject matter of claims 1, 2, 6, 7, 9, 11–15, 18–22, 24, and 27 would
`have been obvious over Yea, Metawave Website, Litva, and Wästberg.
`
`D. Asserted Obviousness Over Yea and Mouly: Dependent Claims 3–5
`1. Mouly (Ex. 1004)
`Mouly discloses that in order to communicate with a base station, a
`mobile station must first become synchronized with the base station. Ex.
`1004, 192. A broadcast control channel (BCCH) sends information to a
`mobile station so the mobile station can select a cell. Id. Cell selection
`information includes cell identity, location area identity, and various
`parameters impacting the access choice. Id. at 425, 427–428.
`
`2. Analysis
`Petitioner argues that claims 3–5 are obvious over the combination of
`Yea and Mouly. Pet. 53–55. In so arguing, Petitioner relies on Yea as
`disclosing the claimed asymmetrical coverage area. Id. Because we are not
`persuaded that Yea discloses, teaches, or suggests this limitation, we are not
`persuaded that Petitioner establishes a reasonable likelihood of prevailing on
`this asserted ground.
`
`E. Asserted Obviousness Over Yea and Smith: Dependent Claims 8,
`16, and 23
`1. Smith (Ex. 1019)
`Smith discloses an antenna configuration for forming a plurality of
`overlapping radiation beams at a base station for use in a cellular radio
`communications system, and a method of forming a plurality of overlapping
`radiation beams. Ex. 1019, 1:6–10. Figure 7 of Smith is reproduced below.
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`Figure 7 of Smith above illustrates an azimuth plot of measured radiation
`beams radiating from an antenna base station and formed by a beam forming
`apparatus. Ex. 1019, 7:3–8.
`
`2. Analysis
`Petitioner argues that claims 8, 16, and 23 are obvious over the
`combination of Yea and Smith. Pet. 56–58. In so arguing, Petitioner relies
`on Yea as disclosing the claimed asymmetrical coverage area. Id. Because
`we are not persuaded that Yea discloses, teaches, or suggests this limitation,
`we are not persuaded that Petitioner establishes a reasonable likelihood of
`prevailing on this asserted ground.
`
`F. Asserted Obviousness Over Yea and CSA Antennas: Dependent Claim 10
`1. CSA Antennas (Ex. 1015)
`Petitioner contends that CSA Ltd. was a company that made and sold
`base station antennas for use in sectorized cellular communications networks
`more than one year before the effective filing date of the ’582 patent. Pet.
`22 (citing Ex. 1015, 46–57; Ex. 1024 ¶ 148). CSA Antennas discloses base
`station antennas having half power beamwidths (HPBW) including 65˚, 90˚,
`105˚, and 120˚. Id.
`
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`2. Analysis
`Petitioner argues that claim 10 is obvious over the combination of Yea
`and CSA Antennas. Pet. 58–59. In so arguing, Petitioner relies on Yea as
`disclosing the claimed asymmetrical coverage area. Id. Because we are not
`persuaded that Yea discloses, teaches, or suggests this limitation, we are not
`persuaded that Petitioner establishes a reasonable likelihood of prevailing on
`this asserted ground.
`
`G. Asserted Obviousness Over Yea and Wästberg: Dependent Claims 17
`and 25
`Petitioner argues that claims 17 and 25 are obvious over the
`combination of Yea and Wästberg. Pet
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