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`Filed on behalf of TQ Delta LLC
`By: Peter J. McAndrews
`McAndrews, Held & Malloy, Ltd.
`500 W. Madison St., 34th Floor
`Chicago, IL 60661
`Tel: 312-775-8000
`Fax: 312-775-8100
`E-mail:
`pmcandrews@mcandrews-ip.com
`
`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 No. 8,432,956 B2
`_____________
`
`PATENT OWNER’S REPLY IN SUPPORT OF ITS MOTION TO
`EXCLUDE INADMISSIBLE EVIDENCE
`
`
`
`
`1 ARRIS Group, Inc., who filed a Petition in IPR2017-00422, has been joined in
`this proceeding.
`
`
`
`
`
`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2016-01007
`Patent No. 8,432,956
`
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`Petitioners do not dispute that Exhibits 1103 and 1109 are—if relied upon
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`for the truth of the matter asserted—hearsay. Petitioners’ only arguments are that
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`they purportedly are just relying on Exhibits 1103 and 1109 for what they
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`“describe,” or that they should be admitted under the residual hearsay exception.
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`Both arguments are frivolous and nonsensical as applied to these exhibits.
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`Exhibit 1103, Short Declaration in IPR2016-01020:
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` Contrary to
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`Petitioners’ argument, they are very much relying on the Short declaration for the
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`truth of the matter asserted—that it allegedly shows that “the terms ‘carrier,’
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`‘subcarrier,’ ‘band,’ ‘sub-band,’ ‘bin,’ ‘channel,’ and ‘tone’ are often used
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`interchangeably.” Ex. 1100, Kiaei Decl. at ¶ 6. If that statement is true, according
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`to Dr. Kiaei, it allegedly proves in turn that the concept of a “subfrequency” in the
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`asserted Milbrandt reference “would be understood to be equivalent and
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`interchangeable with the term ‘subchannel.’” Id. This is squarely a case of a
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`statement being used for the truth of the matter asserted. The Short Declaration is
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`not being used to show the mental state of any witness or the mere fact that
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`something was disclosed in the prior art—it is being used to prove that these terms
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`are in fact all the same thing.
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`Nor does the exhibit fall within the residual exception of Rule 807. At the
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`very least it is not evidence of a “material” fact. Dr. Short never testified in his
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`Patent Owner’s Reply ISO Motion to Exclude
`IPR2016-01007
`Patent No. 8,432,956
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`prior declaration that Milbrandt’s “subfrequency” is the same thing as the claimed
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`“subchannel”—which is the actual material fact Petitioners must prove. Indeed, he
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`did not even address whether the concept of a “subfrequency” is the same thing as
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`a “subchannel”—he only commented on the very different terms “carrier,’
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`‘subcarrier,’ ‘band,’ ‘sub-band,’ ‘bin,’ ‘channel,’ and ‘tone’.” Even if any or all of
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`these terms are interchangeable, that is utterly irrelevant to Milbrandt’s use of the
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`term “sub-frequency.”
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` Moreover, Petitioners’ claim that Dr. Short’s testimony is somehow “more
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`probative on the point for which it is offered than any other evidence that the
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`proponent can obtain through reasonable efforts” (Pet. Reply at pp. 5-6) is belied
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`by all of the other testimony Petitioners offered on this same irrelevant point.
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`Petitioners offered the declaration testimony of Dr. Kiaei and citations from
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`several other patents or publications on this issue. See Ex. 1100, Kiaei Decl. at ¶ 8
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`(“I also note that other references evidence that the terms . . . are used
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`interchangeably . . .”). Further, Petitioners nowhere alleged that they could not
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`have taken reasonable efforts to depose Dr. Short in this proceeding.
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`Ex. 1109 (FCC filing by Alcatel) and App. B to Ex. 1112: Exhibit 1109 is
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`also hearsay under FRE 801-802. It is also unquestionably being relied upon for
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`the truth of the matters asserted, i.e., that (1) “Alcatel measures PSD based on
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`
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`2
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`Patent Owner’s Reply ISO Motion to Exclude
`IPR2016-01007
`Patent No. 8,432,956
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`Reverb,” (2) that Alcatel “recognizes the importance of ‘demonstrat[ing]
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`compliance with the requisite ANSI T1.413 . . . standard,” and (3) that “[t]o
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`demonstrate compliance, Alcatel measures PSD based on Reverb.” Ex. 1100,
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`Kiaei Decl. at ¶ 39. Now, in their Reply to Patent Owner’s Motion to Exclude,
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`Petitioners also argue that it is being relied upon for the truth of whether Alcatel
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`measures “Reverb PSD across the frequency spectrum.” See Reply at 3. Dr.
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`Kiaei, in turn, concludes from this exhibit the alleged truth of another fact in
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`dispute—that a “POSITA would have measured the PSD based on REVERB to
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`understand the changes over the frequency spectrum.” See Ex. 1100, Kiaei Decl.
`
`at ¶ 40. In other words, Petitioners argues that if these statements are true, they
`
`support Petitioners’ position. Importantly, only if it does not matter whether or not
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`the statements are true could the statements constitute admissible non-hearsay.
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`Nor does Exhibit 1109 fall within the residual exception of Rule 807. It also
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`does not constitute evidence of a “material” fact. The “material fact” that
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`Petitioners must prove is that it would have been obvious to add to Milbrandt the
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`ability to measure, and then also transmit or receive in a test message, power level
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`per subchannel based on a Reverb signal. Nowhere do Petitioners claim that
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`Exhibit 1109 discloses doing so, or that it provides any reason for doing so. They
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`only rely on Exhibit 1109 for redundant disclosure of what ANSI T1.413 and
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`
`
`3
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`
`
`Patent Owner’s Reply ISO Motion to Exclude
`IPR2016-01007
`Patent No. 8,432,956
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`Milbrandt already disclose—to just “measure PSD based on REVERB” and to
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`satisfy “compliance with the ANSI T1.413 standard.” Importantly, the ANSI
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`T1.413 only discloses measuring (not transmitting) an aggregate (not per
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`subchannel) PSD for the whole frequency band. See Ex. 2001, Chrissan Decl. at
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`53 (“The sections of the ANSI T1.413 standard that Cisco cites merely describe
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`‘measuring[ing]
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`the aggregate received upstream power’ based on a R-
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`REVERB1.” ); see also Exhibit 1109. Exhibit 1109 does not show anything
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`different—it naturally discloses the exact same thing as the ANSI T1.413 standard
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`because, as it states, it complies with that standard. See Ex. 1109 at Fig. 5.6.
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`Indeed, Petitioners never specifically allege that Exhibit 1109 shows measuring
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`separate PSD values for each subchannel, much less transmitting those values—
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`only that Exhibit 1109 allegedly measures PSD “across the frequency spectrum.”2
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`See Reply at p. 3. As such, Exhibit 1109 is no more probative on any material
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`2 To the extent that Petitioners do assert that Ex. 1109 shows that ANSI T1.413
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`measures PSD “per subchannel,” this is also addressed in Patent Owner’s listing of
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`improper new reply evidence. See Paper 21. Patent Owner raised, in connection
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`with its Response, the fact in “Cisco does not provide any support (including any
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`citation to any specific disclosure in ANSI T1.413) that ANSI T1.413’s PSD is
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`measured on a per-subchannel basis.” Ex. 2001, Chrissan Decl. at ¶ 53.
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`
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`4
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`Patent Owner’s Reply ISO Motion to Exclude
`IPR2016-01007
`Patent No. 8,432,956
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`facts than the ANSI T1.413 standard or Milbrandt themselves, or Dr. Kiaei’s
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`testimony. Therefore, it also fails the requirement of being “more probative on the
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`point for which it is offered than any other evidence that the proponent can obtain
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`through reasonable efforts.” Pet. Reply at pp. 5-6.
`
`
`
`
`
`
`
`Respectfully submitted,
`
`/Peter J. McAndrews/
`Peter J. McAndrews
`Registration No. 38,547
`McAndrews, Held & Malloy, Ltd.
`500 West Madison St., Suite 3400
`Chicago, IL 60661
`Telephone: (312) 775-8000
`Fax: (312) 775-8100
`pmcandrews@mcandrews-ip.com
`
`Lead Counsel For Patent Owner
`
`
`
`Dated: July 21, 2017
`
`
`
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`5
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`Patent Owner’s Reply ISO Motion to Exclude
`IPR2016-01007
`Patent No. 8,432,956
`
`
`CERTIFICATE OF SERVICE
`I hereby certify that a true and correct copy of the foregoing PATENT
`
`OWNER’S REPLY IN SUPPORT OF ITS MOTION TO EXCLUDE
`
`INADMISSIBLE EVIDENCE is being served on July 21, 2017, via email to
`
`counsel for Petitioners at the following:
`
`Lead Counsel
`
`Back-up Counsel
`
`David L. McCombs
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Tel. 214-651-5533
`Fax 214-200-0853
`david.mccombs.ipr@haynesboone.com
`
`Theodore M. Foster
`Tel. 972-739-8649
`Gregory P. Huh
`Tel. 972-739-6939
`Russell Emerson
`Tel. 214-651-5328
`HAYNES & BOONE, LLP
`2323 Victory Ave., Suite 700
`Dallas, TX 75219
`Fax 972-692-9156
`ipr.theo.foster@haynesboone.com
`gregory.huh.ipr@haynesboone.com
`russell.emerson.ipr@haynesboone.com
`Christopher Tyson
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington, DC 20004
`Tel. 202-776-7819
`Fax 202-776-7801
`CJTyson@duanemorris.com
`
`
`John M. Baird
`Duane Morris LLP
`505 9th St. NW, Ste 1000
`Washington, DC 20004
`Tel. 202-776-7819
`Fax 202-776-7801
`JMBaird@duanemorris.com
`
`
`
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`Patent Owner’s Reply ISO Motion to Exclude
`IPR2016-01007
`Patent No. 8,432,956
`
`MCANDREWS, HELD & MALLOY
`
`
`
`
`
`
`
`Telephone: 312-775-8000
`
`
`Facsimile: 312-775-8100
`
`
`
`CUSTOMER NUMBER: 23446
`Date: July 21, 2017
`
`
`
`
`
`
`
`
`/Peter J. McAndrews/
`Peter J. McAndrews
`Registration No. 38,547
`
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