UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner
`
`_____________________
`
`Case IPR2016-010061
`Patent 7,835,430 B2
`_____________________
`
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S MOTION FOR
`OBSERVATION ON CROSS-EXAMINATION TESTIMONY
`
`
`
`
`
`
`1 DISH Network, LLC, who filed a Petition in IPR2017-00251, and Comcast Cable
`Communications, LLC, Cox Communications, Inc., Time Warner Cable
`Enterprises LLC, Verizon Services Corp., and ARRIS Group, Inc., who filed a
`Petition in IPR2017-00420, have been joined in this proceeding.
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_____________
`
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner
`
`_____________________
`
`Case IPR2016-010061
`Patent 7,835,430 B2
`_____________________
`
`
`PETITIONER’S RESPONSE TO PATENT OWNER’S MOTION FOR
`OBSERVATION ON CROSS-EXAMINATION TESTIMONY
`
`
`
`
`
`
`1 DISH Network, LLC, who filed a Petition in IPR2017-00251, and Comcast Cable
`Communications, LLC, Cox Communications, Inc., Time Warner Cable
`Enterprises LLC, Verizon Services Corp., and ARRIS Group, Inc., who filed a
`Petition in IPR2017-00420, have been joined in this proceeding.
`
`
`
`Petitioner’s Response to Patent Owner’s Motion for Observation
`IPR2016-01006
`
`This response is submitted in view of the Scheduling Order (Paper 8); the
`
`Notice of Parties’ Stipulation Regarding Scheduling Order, submitted June 28,
`
`2017 (Paper 23); and the Trial Practice Guide, 77 Fed. Reg. 48756, 48767–68
`
`(Aug. 14, 2012). This paper responds to Patent Owner’s Motion for Observation on
`
`Cross-examination (Paper 32) filed on July 5, 2017, in the present inter partes
`
`review. Patent Owner presented six (6) observations on the June 26, 2017,
`
`deposition testimony of Dr. Kiaei (Ex. 2011). Although Petitioner responds to
`
`each of Patent Owner’s observations below, the Board should deny Patent Owner’s
`
`motion because the observations contain at least one of the following deficiencies:
`
`(1) they fail to identify the relevant issue; (2) they are not relevant to any issue; (3)
`
`they include attorney argument, and; (4) they mischaracterize Dr. Kiaei’s
`
`testimony.
`
`Response to Observation 1:
`
`
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`Patent Owner’s observation omits Dr. Kiaei’s testimony that Chang taught
`
`multiple ways to measure background noise.
`
`Q. But it is your position that to measure background
`noise you have to transmit a signal and measure the
`reflection back. Isn't that what you said?
`A. You mischaracterized what I said, Counsel. I said
`there are different methodologies -- three different
`methods in this patent [Chang] I discussed that talks
`
`2
`
`
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`Petitioner’s Response to Patent Owner’s Motion for Observation
`IPR2016-01006
`about these different methods. These different teachings
`can be used in general to -- for measuring the background
`noise.
`Ex. 2011, 153:16-25. Also, Patent Owner’s citation is incomplete since it omits
`
`relevant portions of Dr. Kiaei’s testimony that supports Petitioner’s position (see
`
`Petition, Paper 2, 19; Reply, Paper 17, 14-15) that a POSITA would have known
`
`how to apply Chang’s general teachings of measuring idle channel noise to
`
`Milbrandt’s ADSL system, without physical incorporation of elements. Ex. 2011,
`
`16-:6-22 (“Actually, TQ Delta's expert, Dr. Chrissan, also agrees with the
`
`specification of the patent at issue, did not disclose how to determine idle channel
`
`noise, and that was well known how to measure idle channel noise without a truck
`
`roll.”); see also Ex. 2011, 157:10-22 (“I personally performed background noise
`
`measurements at different modes of the system when I was in Motorola and
`
`ADSL. I was aware of many other vendors that performed the same thing, both
`
`during the DSL standards as well as the interactions we had with different
`
`customers. It's based on my experience of being in the field for the past 35 years
`
`and knowing that these general teachings could apply to different methods. I would
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`be able to hand this patent to one of my students and say go and come up with the
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`methodologies based on his method of measuring background noise.”)
`
`
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`3
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`
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`Petitioner’s Response to Patent Owner’s Motion for Observation
`IPR2016-01006
`
`Response to Observation 2:
`
`
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`Patent Owner’s citation to Dr. Kiaei’s testimony (Ex. 2011, 154:1-157:4) is
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`consistent with Petitioner’s position (see Petition, Paper 2, 19; Reply, Paper 17, 14-
`
`15) that a POSITA would have known how to apply Chang’s general teachings of
`
`measuring idle channel noise to Milbrandt’s ADSL system, without physical
`
`incorporation of elements. Patent Owner also omits other relevant portions of Dr.
`
`Kiaei’s testimony stating that both experts agree that it was well known how to
`
`measure idle channel noise. Ex. 2011, 160:6-22 (“Actually, TQ Delta's expert, Dr.
`
`Chrissan, also agrees with the specification of the patent at issue, did not disclose
`
`how to determine idle channel noise, and that was well known how to measure idle
`
`channel noise without a truck roll.”).
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`Response to Observation 3:
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`
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`Contrary to Patent Owner’s observation, “the factual basis” for Dr. Kiaei’s
`
`position that a POSITA would have known “how to apply Chang’s general
`
`teaching of measuring idle channel noise to Milbrandt ADSL without a physical
`
`incorporation of Chang’s elements,” is demonstrated by his deposition testimony.
`
`Ex. 2011, 157:10-22 (“I personally performed background noise measurements at
`
`different modes of the system when I was in Motorola and ADSL. I was aware of
`
`many other vendors that performed the same thing.”) Further, Patent Owner’s
`
`contention that Dr. Kiaei “would not discuss the nature of his work at Motorola”
`
`4
`
`
`
`Petitioner’s Response to Patent Owner’s Motion for Observation
`IPR2016-01006
`mischaracterizes the testimony. Ex. 2011, 159:8-18 (“A. We had a working DSL.
`
`We had a -- which many customers used it. I was in charge of the system
`
`engineering for the DSL and I have personally experience in there.”) Patent
`
`Owner’s citation is also incomplete since it omits other relevant portions of Dr.
`
`Kiaei’s testimony, which demonstrate that it was well known how to measure idle
`
`channel noise. Ex. 2011, 160:6-22 (“Actually, TQ Delta's expert, Dr. Chrissan, also
`
`agrees with the specification of the patent at issue, did not disclose how to
`
`determine idle channel noise, and that was well known how to measure idle
`
`channel noise without a truck roll.”)
`
`Response to Observation 4:
`
`
`
`Patent Owner’s observation pertaining to “idle packets” disclosed in Ex.
`
`1014 (ANSI T1.413 standard) is not relevant to Petitioner’s combination which
`
`addressed the “idle channel noise” claim limitation with the combination of
`
`Milbrandt and Chang—not ANSI T1.413. See, Petition, Paper 2, 15-16 and 29.
`
`Also, Patent Owner did not afford Dr. Kiaei an opportunity to review the relevant
`
`portion of the ANSI T1.413, to answer the question. Ex. 2011, 131:15-22, 133:13-
`
`18 (“Q. Are you familiar with this generally? A. Yes. Q. Okay. A. In general, yes,
`
`but I haven't looked at it recently.” “Can you measure idle channel noise while
`
`these superframes are being transmitted? MR. EMERSON: Object to the scope.
`
`THE WITNESS: I'd have to look at the details of the superframes and how it's
`
`5
`
`
`
`Petitioner’s Response to Patent Owner’s Motion for Observation
`IPR2016-01006
`being sent and if there is -- what are the details there.”) Further, the fact that “idle
`
`packets” are sent supports Petitioner’s position (Reply, Paper 17, 16-17) that there
`
`are idle periods during which idle channel noise can be measured, as confirmed by
`
`Dr. Kiaei’s deposition testimony. Ex. 2011, 133:21-134:15 (“Q. You have your
`
`opinion here that Milbrandt's ADSL modem will experience idle periods during the
`
`day when no information is being transmitted. And when no information is being
`
`transmitted, your position is that idle chatter noise can be measured; is that correct?
`
`A. Yes. And actually, we did that when I was in Motorola. Q. And can you
`
`perform -- when you were at Motorola when you performed idle channel
`
`measurement, were these superframes being transmitted?... THE WITNESS:…
`
`That was 15 years ago, 17 years ago, but we were able to measure background
`
`noise when the modem was in idle. What happened in idle protocol to deal with
`
`these issues I'm not prepared to answer, meaning the superframes and so on.”)
`
`Response to Observation 5:
`
`
`
`Patent Owner’s observation regarding whether Dr. Kiaei could remember
`
`the provided reasons for measuring SNR at the subscriber modem is not relevant to
`
`any issue in this proceeding. Particularly, the ‘430 patent at issue in this proceeding
`
`pertains to measuring idle channel noise, not measuring SNR. See e.g., Ex. 1001,
`
`claim 1. Moreover, Patent Owner’s observation is not relevant to the issue of “Dr.
`
`Kiaei’s credibility and qualifications as an expert in DSL communications,” since
`
`6
`
`
`
`Petitioner’s Response to Patent Owner’s Motion for Observation
`IPR2016-01006
`depositions are not a memory test. Ex. 2011, 164:24-165:2 (“So I don't remember
`
`whether I discussed it there or not, but I don't have that declaration in front of me
`
`so I can't say that.”) Nevertheless, and contrary to Patent Owner’s observation, Dr.
`
`Kiaei did in fact provide motivation for measuring SNR at the subscriber modem
`
`in his first declaration. See e.g., IPR2016-01007, Ex. 1009, ¶85, and pp. 86-88;
`
`IPR2016-01008, Ex. 1009, ¶113, and pp. 91-93; IPR2016-01009, Ex. 1009, ¶85,
`
`and pp. 91-93.
`
`Response to Observation 6:
`
`Patent Owner’s observation includes attorney argument, which
`
`mischaracterizes the cited testimony. Dr. Kiaei never said that a person with a
`
`background in mathematics and statistics “would qualify as a person of ordinary
`
`skill in the art.” When the question was posed, and after providing qualifiers, Dr.
`
`Kiaei stated that such a person would understand some of the concepts. Ex. 2011,
`
`15:20-24 (“I don't have Mr. Abe's -- Mr. Abe's resume in front of me, but in
`
`general, a person with a background in mathematics and statistics would, and
`
`having a background in other areas related to that would understand some of the
`
`concepts that are discussed here”). To the point, Dr. Kiaei testified that he was not
`
`changing his definition of a POSITA. Ex. 2011, 15:12-17. (“Q. So are you
`
`changing your definition of a 13 POSITA then? A. No, I'm not.” “Q. So you're
`
`supplementing your definition of a POSITA then? A. No, I'm not, Counsel.”)
`
`7
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`
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`Petitioner’s Response to Patent Owner’s Motion for Observation
`IPR2016-01006
`
`
`
`July 17, 2017
`
`
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`
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`Respectfully submitted,
`
`/David L. McCombs/
`David L. McCombs
`Counsel for Petitioner
`Registration No. 32,271
`
`
`
`8
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`
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`CERTIFICATE OF SERVICE
`
`The undersigned certifies, in accordance with 37 C.F.R. § 42.205, that
`service was made on the Patent Owner as detailed below.
`
`Date of service
`
`July 17, 2017
`
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`Persons served
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`Manner of service
`Email: pmcandrews@mcandrews-ip.com;
`twimbiscus@mcandrews-ip.com; smcbride@mcandrews-ip.com;
`cscharff@mcandrews-ip.com; rchiplunkar@mcandrew-ip.com;
`TQD-CISCO@mcandrews-ip.com
`
`Documents served
`
`Petitioner’s Response to Patent Owner’s Motion
`for Observation on Cross-examination Testimony
`
`Peter J. McAndrews
`Thomas J. Wimbiscus
`Scott P. McBride
`Christopher M. Scharff
`Rajendra A. Chiplunkar (admitted PHV)
`MCANDREWS, HELD & MALLOY, LTD
`500 West Madison Street, 34th Floor
`Chicago, IL 60661
`
`
`
`/David L. McCombs/
`David L. McCombs
`Counsel for Petitioner
`Registration No. 32,271
`
`9
`
`
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