Trials@uspto.gov
`571.272.7822
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` Paper No. 40
` Filed: March 28, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC. and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_______________
`
`Case IPR2016-010071
`Patent 8,432,956 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISON
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`1 ARRIS Group, Inc., who filed a Petition in IPR2017-00422, has been
`joined in this proceeding.
`
`
`571.272.7822
`
`
`
`
`
`
`
`
`
`
` Paper No. 40
` Filed: March 28, 2018
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC. and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`_______________
`
`Case IPR2016-010071
`Patent 8,432,956 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`JEFFERSON, Administrative Patent Judge.
`
`
`DECISON
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`1 ARRIS Group, Inc., who filed a Petition in IPR2017-00422, has been
`joined in this proceeding.
`
`
`
`IPR2016-01007
`Patent 8,432,956 B2
`
`
`INTRODUCTION
`I.
`Pursuant to 37 C.F.R. § 42.71(d), TQ Delta, LLC (“Patent Owner”)
`requests rehearing of our Final Written Decision (Paper 38, “Dec.”). Paper
`39 (“Req. Reh’g”). Specifically, Patent Owner submits that we overlooked
`arriving at a contradictory claim construction, overlooked a non-obviousness
`argument, misapprehended Patent Owner’s argument with respect to “power
`level per subchannel information . . . based on a reverb signal,” and
`misapprehended the law regarding proper reply evidence and argument.
`Req. Reh’g passim.
`For the reasons set forth below, Patent Owner’s Request for
`Rehearing is denied.
`
`II. STANDARD OF REVIEW
`A party requesting rehearing bears the burden of showing that the
`decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
`specifically all matters we misapprehended or overlooked, and the place
`where each matter was addressed previously in a motion, an opposition, or a
`reply. Id. With this in mind, we address the arguments presented by Patent
`Owner.
`
`III. ANALYSIS
`A. “During Showtime”
`Patent Owner argues that our claim construction of “during
`showtime” in this proceeding to mean “during normal communications of a
`DSL receiver” (Dec. 9) contradicts our discussion of the claim construction,
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`IPR2016-01007
`Patent 8,432,956 B2
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`which made the bases for our finding that the prior art rendered obvious the
`claim limitation of “SNR during Showtime” unclear. Req. Reh’g 1–2.
`Patent Owner’s issue is based on a sentence in the claim construction
`analysis of “during Showtime” in the Final Written Decision that states,
`“[w]e are not persuaded by Patent Owner’s negative construction, which
`excludes initialization from normal communication.” The “not” in that
`sentence is a mistake. In an Errata mailed concurrently herewith, we correct
`that sentence in the Final Written Decision to read “[w]e are persuaded by
`Patent Owner’s negative construction, which excludes initialization from
`normal communication.” The construction in the Final Written Decision is
`consistent with our discussion that notes that “[t]he parties agree that ‘during
`Showtime’ is a term of art that encompasses normal communication, which
`follows the completion of initialization and handshaking, for known DSL
`standards and protocols.” Dec. 8 (citing PO Resp. 6–7; Reply 10; Kiaei
`Decl. ¶ 43). Our Final Written Decision also noted that “[t]here is also no
`dispute that ‘during Showtime’ is intended to distinguish initialization and
`training.” Dec. 9 (citing PO Resp. 7–8; Reply 9; Tr. 21:19–23:11).
`Patent Owner also argues that we misapprehended its arguments and
`evidence that the prior art does not teach measuring signal-to-noise ratio
`(“SNR”) “during Showtime” (i.e., not during initialization). Req. Reh’g. 2.
`Specifically, Patent Owner argues that we overlooked its explanation that
`Milbrandt’s use of “during operation” in the context of measuring noise (see,
`e.g., Ex. 1011, 12:58–63 (“[t]he noise information for a particular subscriber
`line 16 may be determined by measuring noise characteristics of a subscriber
`line 16 during operation”)) means during modem training, which is not
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`IPR2016-01007
`Patent 8,432,956 B2
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`during “Showtime.” Id. at 2–5 (citing Ex. 2001 ¶ 62). To the contrary, this
`argument was addressed at pages 30 to 31 of our Final Written Decision,
`which explained that it is not persuasive because Milbrandt appears to be
`using “modem training” idiosyncratically to refer to a process that occurs
`“while providing data services to subscribers 12” and “during the normal
`course of operation of system 10,” both which occur “during Showtime” as
`we have construed that term. Dec. 30–31. Our Final Written Decision’s
`reference to any ambiguity in Milbrandt’s discussion of modem training
`notes that it stands in direct contrast to Milbrandt’s clear description of the
`modem “operating as a spectrum analyzer during operation” to measure
`noise characteristics of a subscriber line. Dec. 31 (citing Ex. 1011, 12:58–
`63; Pet. 42; Reply 19).
`Patent Owner also argues that we misapprehended the parties’
`argument by finding that ANSI T1.413 teaches measuring “SNR during
`Showtime” whereas not even Petitioner alleged that ANSI T1.413 measured
`SNR during Showtime. Req. Reh’g 5. Patent Owner’s argument appears to
`be based on our description of Petitioner’s evidence that “ANSI T1.413 []
`teaches ‘SNR, as measured by the receivers at . . . the ATU-R shall be
`externally accessible from the ATU-C,’ which explains that SNR per tone is
`measured on demand during normal operation.” Dec. 30 (quoting Reply 21
`(citing Ex. 1100 ¶ 51; Ex. 1014, 82)). Contrary to Patent Owner’s argument
`(Req. Reh’g 5), our Final Written Decision does not state that ANSI T1.413
`teaches “SNR during Showtime.” Dec. 29–31. Instead, our Decision cites
`Petitioner’s argument that ANSI T1.413 teaches “SNR, as measured” in
`conjunction with the “noise information” measurement in Milbrandt. Dec.
`4
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`IPR2016-01007
`Patent 8,432,956 B2
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`29, 30 (emphasis added). We credited Petitioner’s argument that Milbrandt
`discusses measuring noise information that is measured during normal
`operation and that ANSI T1.143 discloses “SNR, as measured by the
`receivers.” Dec. 29–31.
`Patent Owner also argues that we overlooked its argument, in its
`Preliminary Response, that it would not have been obvious to combine
`Milbrandt with ANSI T1.413. Req. Reh’g 6–7. We addressed this argument
`in our Final Written Decision and found it unpersuasive.2 Dec. 32–34.
`Contrary to Patent Owner’s arguments (Req. Reh’g 6–7), we addressed
`Patent Owner’s arguments and did not rely on impermissible evidence. Our
`Final Written Decision noted that Patent Owner’s argument did not comport
`with the express text of ANSI T1.413 and credited the Petitioner’s argument
`and evidence in support of the combination. Dec. 33–34 (citing Ex. 1011,
`9:31–34; Ex. 1100 ¶ 38; Ex. 1009 ¶¶ 86–87; Ex. 1011, 9:31–34).
`
`B. “Power Level Per Subchannel Information . . .
`Based on a Reverb Signal”
`Patent Owner argues that we “misapprehended the nature of the
`limitation, Petitioners’ arguments, and Patent Owner’s rebuttal evidence” in
`determining that Petitioner showed that Milbrandt and ANSI T1.143 teach
`the “power level per subchannel information is based on a Reverb signal”
`limitation. Req. Reh’g 8–9. We disagree, as we addressed Petitioner’s and
`
`2 To the extent Patent Owner’s rehearing request relies on arguments
`presented in the Patent Owner Preliminary Response (Req. Reh’g 6–7 (citing
`Paper 7)), our Scheduling Order “cautioned that any arguments for
`patentability not raised in the [Patent Owner] response will be deemed
`waived.” Paper 9, 5–6.
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`IPR2016-01007
`Patent 8,432,956 B2
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`Patent Owner’s evidence and argument. Dec. 27–28, 34–35. Specifically,
`we addressed Patent Owner’s argument that “power level per subchannel
`information, even if it is based on a Reverb signal, is not used to adjust
`AGC” and found it unpersuasive. Dec. 34–35.
`C. Reply Evidence and Argument
`Patent Owner generally argues that the Final Written Decision relied
`on evidence and argument that Patent Owner objected to as being improper
`new reply arguments. Req, Reh’g 9–10. Patent Owner does not identify any
`specific evidence cited in the Final Written Decision that rely on improper
`new reply arguments from Petitioner.
`Patent Owner argues that we abused our discretion by authorizing it to
`file only a listing of allegedly improper Reply arguments with the Petitioner
`submitting a response identifying where allegedly improper arguments reply
`to the Patent Owner’s Response. Req. Reh’g 10. Patent Owner argues that
`the process was unreasonable because it failed to allow Patent Owner to
`explain why Petitioner’s Reply arguments were improper and could have
`been brought earlier, denied Patent Owner due process via an opportunity to
`be heard without a reasoned justification, and addressed Patent Owner’s
`listing in a footnote in the Final Written Decision. Req. Reh’g. 10–11
`(citing Redline Detection, LLC v. Star Envirotech, Inc., 811 F.3d 435 (Fed.
`Cir. 2015); Ultratec, Inc. v. CaptionCall, LLC, 872 F.3d 1267 (Fed. Cir.
`2017)).
`The cases relied upon by Patent Owner do not stand for the
`proposition that we must authorize a motion to strike and/or a surreply with
`explanation. Redline involved a denial of Petitioner’s Motion to Submit
`6
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`IPR2016-01007
`Patent 8,432,956 B2
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`Supplemental Information and, on appeal, the Federal Circuit held that the
`denial did not constitute an abuse of discretion. Redline, 811 F.3d at 443–
`449. Ultratec involved a denial of a Patent Owner authorization to file a
`Motion to Submit Supplemental Information in the form of sworn
`inconsistent testimony. Ultratec, 872 F.3d 1269–1271. The Federal Circuit
`held that “[t]he Board abused its discretion when it refused to admit and
`consider Mr. Occhiogrosso's trial testimony and when it refused to explain
`its decision. Ultratec, 872 F.3d at 1275.
`Here, in contrast, Patent Owner was not denied an opportunity to
`submit evidence. Instead, Patent Owner was granted the opportunity to
`identify allegedly new arguments and evidence in Petitioner’s Reply, and we
`considered the identified portions when reaching our decision. Although the
`“listing” format required Patent Owner to be efficient in its identification
`and required Petitioner to be efficient in its responsive paper, these papers
`provided “the information necessary to make a reasoned decision” (Ultratec,
`872 F.3d at 1273) about whether the arguments and evidence raised in reply
`were outside the scope of a proper reply. Accordingly, we are not persuaded
`that we abused our discretion by denying Patent Owner authorization to file
`a Motion to Strike and/or Sur-Reply, or by determining, in the Final Written
`Decision, that “Petitioner’s arguments and evidence that Patent Owner
`objects to are not beyond the proper scope of a reply because we find that
`they fairly respond to Patent Owner’s arguments raised in Patent Owner’s
`Response” (Dec. 21 n.5).
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`IPR2016-01007
`Patent 8,432,956 B2
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`IV. ORDER
`Accordingly, it is it is ORDERED that Patent Owner’s Request for
`Rehearing is denied.
`
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`8
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`IPR2016-01007
`Patent 8,432,956 B2
`
`PETITIONER:
`David L. McCombs
`Theodore M. Foster
`Gregory P. Huh
`HAYNES & BOONE, LLP
`David.mccombs.ipr@haynesboone.com
`ipr.theo.foster@haynesboone.com
`gregory.huh.ipr@haynesboone.com
`
`For PATENT OWNER:
`Peter J. McAndrews
`Thomas J. Wimbiscus
`Scott P. McBride
`Christopher M. Scharff
`MCANDREWS, HELD & MALLOY, LTD.
`pmcandrews@mcandrews-ip.com
`twimbiscus@mcandrews-ip.com
`smcbride@mcandrews-ip.com
`
`
`
`
`
`9
`
`
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