Trials@uspto.gov
`571.272.7822
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` Paper No. 38
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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.
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`1 ARRIS Group, Inc., who filed a Petition in IPR2017-00422, has been
`joined in this proceeding.
`
`
`571.272.7822
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` Paper No. 38
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` Filed: October 27, 2017
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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.
`
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`1 ARRIS Group, Inc., who filed a Petition in IPR2017-00422, has been
`joined in this proceeding.
`
`
`
`IPR2016-01007
`Patent 8,432,956 B2
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`
`INTRODUCTION
`I.
`On November 4, 2016, we instituted inter partes review based upon
`the ground asserted in the Petition (Paper 2, “Pet.”) by Cisco Systems, Inc.
`(“Petitioner”), challenging claims 1–10 of U.S. Patent No. 8,432,956 B2
`(Ex. 1001, “the ’956 patent”) and a Preliminary Response to the Petition
`(Paper 7, “Prelim. Resp.”) filed by TQ Delta, LLC (“Patent Owner”).
`Decision to Institute (Paper 8, “Dec.”). We instituted inter partes review on
`the ground that claims 1–10 of the ’956 patent are unpatentable under 35
`U.S.C. § 103(a) over Milbrandt,2 Hwang,3 and ANSI T1.413.4 Dec. 22–23;
`see Pet. 7–8 (setting forth grounds).
`Following institution, Patent Owner filed a Patent Owner’s Response
`(Paper 13, “PO Resp.”) and Petitioner filed a Reply (Paper 16, “Reply).
`With respect to the Reply, Patent Owner filed a paper listing portions of
`Petitioner’s Reply it deemed beyond the proper scope of a reply. Paper 21.
`Petitioner filed a response to Patent Owner’s listing. Paper 25.
`Patent Owner filed an objection to Petitioner’s evidence (Paper 18)
`and a Motion to Exclude (Paper 28, “PO Mot. Exc.”), Petitioner filed an
`Opposition (Paper 32, “Pet. Opp. Exc.”), and Patent Owner filed a Reply
`(Paper 35, “PO Reply Exc.”). Patent Owner also filed a Motion for
`
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`2 U.S. Patent No. 6,636,603 B1; issued Oct. 21, 2003 (Ex. 1011)
`(“Milbrandt”).
`3 U.S. Patent No. 6,590,893 B1; issued July 8, 2003 (Ex. 1013) (“Hwang”).
`4 AMERICAN NATIONAL STANDARDS INSTITUTE, Network and Customer
`Installation Interfaces – Asymmetric Digital Subscriber Line (ADSL)
`Metallic Interface, 1–186 (1995) (ANSI T1.413-1995) (Ex. 1014) (“ANSI
`T1.413”).
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`Observation (Paper 30) to which Petitioner filed a Response (Paper 33). We
`held a consolidated hearing on August 3, 2017, for this case and related
`cases, and a transcript of the hearing is included in the record. Paper 37
`(“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
`For the reasons discussed below, Petitioner has shown by a preponderance
`of the evidence that the challenged claims are unpatentable. Patent Owner’s
`Motion to Exclude is dismissed.
`
`A. Related Proceedings
`The parties state that the ’956 patent has been asserted in TQ Delta
`LLC v. Comcast Cable Commc’ns LLC, Case No. 1:15-cv-00611-RGA (D.
`Del); TQ Delta LLC v. Coxcom LLC et al., Case No. 1:15-cv-00612-RGA
`(D. Del.); TQ Delta LLC v. DirecTV LLC, Case No. 1:15-cv-00613-RGA
`(D. Del.); TQ Delta LLC v. DISH Network Corp. et al., Case No. 1:15-cv-
`00614-RGA (D. Del.); TQ Delta LLC v. Time Warner Cable Inc., et al.,
`Case No. 1:15-cv-00615-RGA (D. Del.); TQ Delta LLC v. Verizon Servs.
`Corp., Case No. 1:15-cv-00616-RGA (D. Del.); TQ Delta LLC v. 2Wire,
`Inc., Case No. 13-cv-1835-RGA (D. Del.); TQ Delta LLC v. Zhone Techs.,
`Inc., Case No. 13-cv-1836-RGA (D. Del.); TQ Delta LLC v. ZyXEL
`Commc’ns, Inc. and ZyXEL Commc’ns Corp., Case No. 13-cv-02013-RGA
`(D. Del.); TQ Delta LLC v. ADTRAN, Inc., Case No. 1:14-cv-00954-RGA
`(D. Del.); ADTRAN, Inc. v. TQ Delta LLC, 15-cv-00121-RGA (D. Del.);
`Arris Group, Inc. v. TQ Delta, LLC, IPR2016-00428; Arris Group, Inc. v.
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`TQ Delta, LLC, IPR2016-00429; and Arris Group, Inc. v. TQ Delta, LLC,
`IPR2016-00430. Paper 6, 3–4; Pet. 1–2.
`
`B. The ʼ956 Patent (Ex. 1001)
`The ’956 patent generally describes “exchanging diagnostic and test
`information between transceivers over a digital subscriber line.” Ex. 1001,
`1:62–66. A transceiver or modem (remote terminal (RT)) is located at a
`customer premises downstream from a central office (CO), while a
`transceiver or modem is also located upstream from the customer premises
`at the CO. Id. at 2:1–5. Figure 1, below, is a functional block diagram of
`the communication system of the invention.
`
`
`Figure 1, reproduced above, shows modem components associated with the
`diagnostic link mode, that comprise central office (CO) modem 200 and
`remote terminal (RT) modem 300, both connected via link 5 to splitter 10 to
`phone switch 20 and splitter 30 to phone 40. Id. at 4:61–5:7. CO modem
`200 includes CRC checker 210, diagnostic device 220, and diagnostic
`information monitoring device 230. Id. The RT modem 300 includes
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`message determination device 310, power control device 320, diagnostic
`device 330 and diagnostic information storage device 340. Id.
`“In the diagnostic link mode, the RT modem sends diagnostic and test
`information in the form of a collection of information bits to the CO
`modem.” Id. at 3:50–52. In one method, system diagnostic and test
`information are exchanged using multiple carriers with a higher order
`quadrature amplitude modulation (QAM) with more than 1 bit per carrier.
`Id. at 3:56–59.
`
`C. Illustrative Claims
`Claims 1, 3, 5, 7, and 9 of the ’956 patent are independent. Claims 1,
`5, and 9 are illustrative and reproduced below (Ex. 1001, 8:47–58, 9:8–18,
`10:3–28):
`1. A transceiver capable of transmitting diagnostic
`information over a communication channel using
`multicarrier modulation comprising:
`a transmitter portion capable of transmitting a
`message, wherein the message comprises one or more data
`variables that represent the diagnostic
`information,
`wherein bits in the message are modulated onto DMT
`symbols using Quadrature Amplitude Modulation (QAM)
`with more than 1 bit per subchannel and wherein at least
`one data variable of the one or more data variables
`comprises an array representing power
`level per
`subchannel information.
`
`In a transceiver capable of transmitting diagnostic
`5.
`information over a communication channel using
`multicarrier modulation, a method comprising:
`transmitting a message, wherein the message
`comprises one or more data variables that represent the
`diagnostic information, wherein bits in the message are
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`modulated onto DMT symbols using Quadrature
`Amplitude Modulation (QAM) with more than 1 bit per
`subchannel and wherein at least one data variable of the
`one or more data variables comprises an array representing
`power level per subchannel information.
`
`9. A communications system for DSL service
`comprising a first DSL transceiver capable of transmitting
`diagnostic information over a communication channel
`using multicarrier modulation and a second DSL
`transceiver
`capable of
`receiving
`the diagnostic
`information over the communication channel using
`multicarrier modulation comprising:
`a transmitter portion of the first transceiver capable
`of transmitting a message, wherein the message comprises
`one or more data variables that represent the diagnostic
`information, wherein bits in the message are modulated
`onto DMT symbols using Quadrature Amplitude
`Modulation (QAM) with more than 1 bit per subchannel
`and wherein at least one data variable of the one or more
`data variables comprises an array representing Signal to
`Noise ratio per subchannel during Showtime information;
`and
`
`a receiver portion of the second transceiver capable
`of receiving the message, wherein the message comprises
`the one or more data variables that represent the diagnostic
`information, wherein the bits in the message were
`modulated onto the DMT symbols using Quadrature
`Amplitude Modulation (QAM) with more than 1 bit per
`subchannel and wherein the at least one data variable of
`the one or more data variables comprises the array
`representing Signal to Noise ratio per subchannel during
`Showtime information.
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`II. ANALYSIS
`A. Claim Interpretation
`We interpret claims of an unexpired patent using the broadest
`reasonable interpretation in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); see also 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 construction standard to be
`applied in an inter partes review proceeding). Under the broadest
`reasonable interpretation standard, claim terms are generally given their
`ordinary and customary meaning, as would be understood by one of ordinary
`skill in the art, in the context of the entire disclosure. In re Translogic Tech.
`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
`1. “during Showtime” (claims 9 and 10)
`Our Decision on Institution construed “during Showtime” to include
`“during normal communications of an ANSI T1.413-compliant device.”
`Dec. 7. Petitioner asserts that “during Showtime” as recited in claims 9 and
`10 is described in the ’956 patent specification by example as “e.g. the
`normal steady state transmission mode, or the like.” Pet. 9 (citing Ex. 1001,
`3:37–38). Petitioner contends that “showtime” is a term of art in DSL
`communication standards. Pet. 9 (citing Declaration of Dr. Sayfe Kiaei (Ex.
`1009, “Kiaei Decl”) 19). Petitioner cites extrinsic evidence in support of the
`contention that “normal communications” is known as “showtime.” Pet. 9
`(citing Ex. 1019, 379; Ex. 1014, 108).
`Patent Owner argues that “during Showtime” should be construed to
`mean “during normal data communications that occurs after initialization.”
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`PO Resp. 7–8 (citing Declaration of Dr. Douglas Chrissan (Ex. 2001,
`“Chrissan Decl”) ¶ 31). Patent Owner cites the testimony of its declarant to
`support the contention that “during Showtime” excludes “any modem
`initialization or modem training.” Id. at 6 (citing Chrissan Decl. ¶ 31).
`Further, Patent Owner asserts that the term showtime is used with “many
`different communication protocols to refer to a state of communications
`reached after initialization and training.” PO Resp. 7 (citing Chrissan Decl.
`¶ 31). In addition, Patent Owner argues that Petitioner’s declarant, Dr. Kiaei
`supports the contention that “during Showtime” refers to a mode that follows
`initialization. PO Resp. 6 (citing Kiaei Decl. ¶ 43).
`Petitioner replies that Patent Owner’s declarant agrees that “during
`Showtime” is a term of art specific to DSL technology (Chrissan Deposition,
`Ex. 1110, 79:12–24), and that Dr. Kiaei acknowledges that this term is
`applicable to additional communication standards beyond the ANSI standard
`(Chrissan Decl. ¶ 31; Ex. 1110, 80:2). Reply 10. Accordingly, Petitioner
`maintains that “during Showtime” should be construed as during normal
`communications of a device compliant with the ANSI T1.413, ITU-T
`G.992.1, G.992.2, ADSL2, or VDSL2 communication standards.” Reply 10
`(citing Declaration of Dr. Sayfe Kiaei in support of Petitioner’s Reply, Ex.
`1100 ¶12).
`The 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. PO
`Resp. 6–7; Reply 10; Kiaei Decl. ¶ 43. The parties’ arguments are not based
`on or do not depend on the various DSL standards identified in Petitioner’s
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`proposed construction. There is also no dispute that “during Showtime” is
`intended to distinguish initialization and training. PO Resp. 7–8; Reply 9;
`Tr. 21:19–23:11. We are not persuaded by Patent Owner’s negative
`construction, which excludes initialization from normal communication.
`Accordingly, based on review of the parties’ evidence and arguments, we
`determine that the broadest reasonable interpretation in light of the ’956
`patent specification for “during Showtime” is “during normal
`communications of a DSL transceiver.”
`2. “array” and “transceiver” (claims 1–10)
`Our Decision on Institution construed “array” as “an ordered
`collection of multiple data items of the same type.” Dec. 7–8. We also
`construed “transceiver” as “a device, such as a modem, with a transmitter
`and receiver.” Id. at 8. Patent Owner does not contest the constructions for
`“array” and “transceiver,” but instead contends that no construction of these
`terms is necessary as they are not dispositive for the challenged claims. PO
`Resp. 8. Based on the parties’ contentions we maintain the constructions
`from the Decision on Institution for the reasons discussed in our Decision.
`Dec. 7–8.
`
`3. “subchannel” (claims 1–10)
`Patent Owner contends that “subchannel” should be construed as a
`“carrier of a multicarrier communication channel.” PO Resp. 9. Patent
`Owner contends that “the ’956 patent claims . . . recite a ‘subchannel’ in the
`context of a ‘communication channel using multicarrier modulation.’” PO
`REsp. 8–9 (citing claims of Ex. 1001). Patent Owner argues that the ’956
`patent specification describes communication between ADSL transceivers
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`that modulates multiple discrete frequency carriers summed together
`transmitted over the subscriber loop where “the carriers form discrete non-
`overlapping communication subchannels of limited bandwidth.” PO Resp. 9
`(quoting Ex. 1001, 1:44–47). Patent Owner argues that because
`“[c]ollectively, the carriers form what is effectively a broadband
`communications channel,” the subchannel of the claims refers to “a carrier
`of a multicarrier communication channel.” PO Resp. 9 (quoting Ex. 1001,
`1:47–50).
`Petitioner argues that Patent Owner’s construction of “subchannel” is
`overly narrow and contradicts the ’952 patent specification and the
`testimony of record. Reply 7. Although the ’956 patent states that “carriers
`form discrete, non-overlapping communication subchannels of limited
`bandwidth” (Ex. 1001, 1:44–47), it also “use[s] the term ‘tone’
`interchangeably with ‘subchannel.’” Reply 8 (citing Ex. 1001, 4:38–40;
`Ex.1100 ¶¶ 6–8). Petitioner also notes that the proposed construction refers
`to both “channel” and “carrier,” which Patent Owner’s declarant admits are
`equivalent terms in the ADSL context (Ex. 1110, 53:20–54:1).
`Petitioner offers testimony that “subchannel” would have been
`understood to be equivalent to and interchangeable with the terms “‘tone,’
`‘carrier,’ ‘subcarrier,’ ‘channel,’ ‘band,’ and ‘sub-band.’” Reply 8–9 (citing
`Ex. 1100 ¶¶ 6–8; see also Ex. 1101, 69; Ex. 1102, 3; Ex. 1104, 1:41; Ex.
`1105, 1:36; Ex. 1106, 13). Thus, Petitioner argues that a person of ordinary
`skill in the art after reviewing the patents at issue would have understood
`that the term subchannel includes a tone, carrier, subcarrier, band, sub-band,
`sub-frequency, or channel, of a multicarrier frequency spectrum (Ex. 1100
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`¶ 11) and in context of the ’956 patent is properly construed as “a portion of
`a frequency spectrum used for communication.” Reply 9 (quotations
`omitted).
`Although Patent Owner’s construction of “subchannels” refers to “a
`carrier” in a multicarrier channel, Petitioner presents evidence that a
`“carrier” may be described by other terms understood by a person of
`ordinary skill in the art. See Ex. 1110, 53:17–54:5 (noting equivalence of
`terms in context); see Reply 8; Ex. 1100 ¶ 8; Ex. 1110, 43:13–49:15, 53:20–
`54:1. Petitioner’s proposed construction is overly broad because “a portion
`of a frequency spectrum used for communication” is not limited to one
`carrier or channel.
`Patent Owner contends that a “subchannel” is “the smallest division of
`the data transmission in a multicarrier communication system that uses DMT
`modulation,” and gives, as examples, the 256 subchannels of ADSL1, the
`512 subchannels of ADSL2+, and the 4096 subchannels of VDSL2. PO
`Resp. 14 (citing Chrissan Decl. ¶¶ 38; Ex. 1001, 1:42–51). Petitioner,
`likewise, contends a “subchannel” is “a discrete non-overlapping portion
`(e.g., one of 256 carriers) of a frequency spectrum . . . that uses DMT/QAM
`modulation for communication.” Reply 14 (emphasis omitted). Both
`parties, therefore, appear to agree that a “subchannel” is a single carrier,
`such as one of the 256 carriers in ADSL1; they disagree, however, on how to
`describe it.
`Petitioner’s proposed construction is overly broad because “a portion
`of a frequency spectrum used for communication” is not limited to one
`carrier. For example, “a portion of a frequency spectrum used for
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`communication” could encompass the group of carriers used for upstream
`communication. Patent Owner’s proposed construction, in contrast, is
`limited to a single “carrier.” For the sake of clarity, however, we determine
`explicitly that a “subchannel” is a single carrier within a multicarrier
`communication system that, by definition, has a plurality of carriers.
`Accordingly, we construe “subchannel” to mean “one of a plurality of
`carriers of a multicarrier communication channel.”
`
`B. Principles of Law
`A claim is unpatentable under § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of skill in
`the art; and (4) when in evidence, objective indicia of non-obviousness
`(i.e., secondary considerations). Graham v. John Deere Co., 383 U.S. 1, 17–
`18 (1966). We analyze this asserted ground based on obviousness with the
`principles identified above in mind.
`
`C. Level of Skill in the Art
`Petitioner states that “the person of ordinary skill in the art is someone
`knowledgeable concerning multicarrier communications. That person would
`have (i) a Master’s degree in Electrical and/or Computer Engineering, or
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`equivalent training, and (ii) approximately five years of experience working
`in digital telecommunications.” Pet. 8 (citing Ex. 1009, 15–16). Petitioner
`adds, that a “[l]ack of work experience can be remedied by additional
`education, and vice versa.” Id.
`Patent Owner’s declarant, Dr. Chrissan, indicated that “a person of
`skill in the art would be a person with a bachelor’s degree in electrical
`engineering (or a similar technical degree or equivalent work experience)
`and at least three years of experience working with such multicarrier
`communication systems.” Chrissan Decl. ¶ 34. We find that the parties
`proposed levels of skill in the art do not differ in material ways. For
`purposes of this Decision, we adopt Petitioner’s proposed definition. We
`further find that the level of ordinary skill in the art is also reflected by the
`prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
`Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`
`D. Obviousness Based on Milbrandt (Ex. 1011),
`Hwang (Ex. 1013), and ANSI TI.413 (Ex. 1014)
`1. Milbrandt (Ex. 1011)
`Milbrandt describes a system and method for determining the transmit
`power of a communication device operating on digital subscriber lines.
`Ex. 1011, 1:20‒24. An example of the system as illustrated in Figure 1 is
`reproduced below as follows:
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`Figure 1, reproduced above, illustrates a block diagram of a communication
`system that provides telephone and data service to subscribers.
`
`Communication system 10 includes system management server 18
`coupled to central offices 14, which are coupled to several subscribers’
`premises 12 using subscriber lines 16. Id. at 4:6‒9. Database 22 stores
`subscriber line information 28 and communication device information 29
`defining the physical and operating characteristics of the subscriber lines 16
`and communication devices 60. Id. at 4:9‒15. System management server
`18 determines the data rate capacity of selected subscriber lines 16 using
`subscriber line information 28 stored in database 22, and the optimal
`transmit power for a communication device operating on a subscriber line
`16. Id. at 4:15‒21.
`Modem 42 at subscriber premises 12 receives the data signal
`communicated by modem 60 and determines the subscriber line information
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`28, such as attenuation information, noise information, received signal
`power spectrum density, or any other information describing the physical or
`operating characteristics of subscriber line 16 at the one or more sub-
`frequencies over which the connection between modem 60 and 42 is
`established. Id. at 11:38‒45. Modem 42 extrapolates subscriber line
`information 28 to central office 14 over any achievable range of sub-
`frequencies using any suitable communication protocol. Id. at 4:45‒53.
`2. Hwang (Ex. 1013)
`Hwang discloses an adaptive transmission system used in a network.
`Ex. 1013, 1:6‒8. The system includes a computer network including
`network nodes capable of transmitting and receiving data over a channel
`using a transmitter and receiver. Id. at 5:1‒8. The computer network
`utilizes discrete multi-tone (DMT) technology to transmit data over the
`channels. Id. at 5:12‒14. A DMT-based system utilizes 256 tones, where
`each tone is capable of transmitting up to 15 bits of data on the tone
`waveform. Id. at 5:22‒24. Within each carrier, data is encoded using
`quadrature amplitude modulation (QAM) signals. Id. at 3:1‒3. Hwang’s
`techniques provide effective high-speed data communications over twisted
`pair wiring between customer premises and corresponding network-side
`units, for example located at a central office of a telephone network. Id. at
`3:15‒19. If a channel characteristics are poor and the receiving node is
`unable to receive the transmitted data without errors, the transmitting node is
`able to adapt the transmission rate to ensure error-free data is received. Id.
`at 7:3‒7.
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`3. ANSI TI.413 (Ex. 1014)
`ANSI T1.413 discloses electrical characteristics of Asymmetric
`Digital Subscriber Line (ADSL) signals appearing at a network interface.
`Ex. 1014, Abstract. ADSL allows for the provision of Plain Old Telephone
`Service (POTS) and a variety of digital channels. Id. at 1. Digital channels
`consist of full duplex low-speed channels and simplex high-speed channels
`in the direction from the network to the customer premises, and low-speed
`channels in the opposite direction. Id. Among the features of ADSL is the
`encoding of data into discrete multitone (DMT) symbols. Id. at 23‒34.
`Within each DMT subchannel, an ADSL transmitter encodes a variable
`number of bits of data using a constellation encoder. Id. at 43‒45.
`4. Petitioner’s Contentions
`Petitioner contends that that claims 1‒10 are unpatentable under
`35 U.S.C. § 103(a) as obvious over Milbrandt, Hwang, and ANSI T1.413.
`Pet. 19–50.
`Petitioner sets forth evidence and argument that Milbrandt and Hwang
`teach the preamble of claim 1, which recites “[a] transceiver capable of
`transmitting diagnostic information over a communication channel using
`multicarrier modulation.” Pet. 19–20. Petitioner argues that “Milbrandt
`teaches a modem 42 that ‘comprises any suitable communication device that
`transmits and receives data,’” where “[t]he modem 42 has a ‘diagnostic
`mode” that “‘measures the received signal power spectrum density’ and
`‘communicates this and other subscriber information 28 to modem 60’
`‘using data line 40.’” Pet. 19 (quoting Ex. 1011, 4:64–65, 4:64, 11:20–24,
`27:26–27). Petitioner further provides supporting evidence and argument
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`that Milbrandt teaches multicarrier communication using a modem
`employing DMT technology, which Hwang explains involves N independent
`quadrature amplitude modulated (QAM) signals carried over distinct carrier
`frequency channels. Pet. 20 (citing Ex. 1011, 10:58–11:4; Ex. 1013, 2:67–
`3:3).
`With respect to claim 1, Petitioner asserts that Milbrandt teaches “a
`transmitter portion capable of transmitting a message, wherein the message
`comprises one or more data variables that represent the diagnostic
`information.” Pet. 21–22. Petitioner provides declarant testimony and
`citation to the evidence that Milbrandt teaches a modem capable of
`transmitting a message using DMT, determining subscriber line information,
`and communicating that information to a central office. Id. (citing Ex. 1011,
`11:19–24, 12:54, 11:31–43, 11:45–53, 13:12–15; Ex. 1009, 45–46).
`Petitioner further argues that Milbrandt discloses a modem that “transmits
`and receives data” using DMT technology and measures the received power
`spectrum density and other subscriber line information, which are the
`claimed “diagnostic information.” Id. at 19‒20 (quoting Ex. 1011, 4:64‒65;
`citing Ex. 1011, 5:39–40, 10:58–11:4; Ex. 1009, 39). Petitioner contends
`that Milbrandt discloses communication using DMT modulation, where
`“DMT technology divides a subscriber line into individual ‘sub-bands or
`channels,’ and ‘uses a form of quadrature amplitude modulation (QAM) to
`transmit data in each channel simultaneously.’” Id. at 23 (quoting Ex. 1011,
`11:60‒64); Ex. 1009, 48. Petitioner argues that Hwang discloses that a
`“DMT signal is basically the sum of N independently quadrature amplitude
`modulated (QAM) signals, each carried over a distinct carrier frequency
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`channel,” and the ANSI standard provides for 256 carriers or tones, where
`“[e]ach tone is QAM to carry up to 15 bits of data on each cycle of the tone
`waveform (symbol).” Pet. 23 (quoting Ex. 1013, 2:67‒3:12). Thus,
`Petitioner contends that Milbrandt and Hwang teach the claim 1 limitation
`for “wherein bits in the message are modulated onto DMT symbols using
`Quadrature Amplitude Modulation (QAM) with more than 1 bit per
`subchannel” (Pet. 22–24), and that Milbrandt and ANSI T1.413 teach
`“wherein at least one data variable of the one or more data variables
`comprises an array representing power level per subchannel information,” as
`recited in claim 1 (id. at 24–28). With respect to the “an array representing
`power level per subchannel information” limitation, Petitioner asserts that
`“[a] person of ordinary skill in the art would have recognized that a
`frequency sub-carrier in the ANSI T1.413 standard corresponds to
`Milbrandt’s sub-frequency, and that both of these terms correspond to the
`claimed ‘subchannel.’” Pet. 27–28 (citing Ex. 1009, 55).
`For independent claims 3, 5, 7, and 9 and dependent claims 2, 4, 6, 8
`and 10, Petitioner provides argument and evidence similar to the
`presentation related to claim 1, demonstrating that Milbrandt, Hwang, and
`ANSI T1.413 teach the limitations of the challenged claims. Pet. 28–33
`(ind. claim 3), 33–35 (ind. claim 5), 36–38 (ind. claim 7), 38–47 (ind. claim
`9); and 48–50 (dep. claims 2, 4, 6, 8, and 10). Specifically, for dependent
`claims 2, 4, 6, 8, and 10, Petitioner argues that ANSI T1.412 teaches that it
`was known to determine power spectral density (PSD) based on a measuring
`a REVERB signal. Pet. 48–50. Thus, ANSI T1.412 in combination with
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`Milbrandt teaches the “power level per subchannel information is based on a
`Reverb signal” limitation of dependent claims 2, 4, 6, 8, and 10. Id.
`Petitioner contends, with supporting evidence, that a “person of
`ordinary skill in the art would have found it obvious to combine the
`teachings of Milbrandt and Hwang because Hwang provides additional
`details of ADSL communication technology” and a person with ordinary
`skill in the art would “refer to all of their teachings in implementing an
`ADSL communication system for the purpose of obtaining a more complete
`understanding.” Pet. 113–14. Petitioner argues that a person with ordinary
`skill in the art would have combined Hwang’s teaching of using up to 15 bits
`for each subchannel with Milbrandt’s communication system in order to
`transmit more data on each subchannel. Id. at 14 (citing Ex. 1009, 32).
`Petitioner also argues that a person would have been motivated to make such
`a combination in order to achieve a system that is “overall more efficient and
`has [a] higher throughput.” Id. (citing Ex. 1009, 32). Accordingly,
`Petitioner argues that the combination of Hwang’s known technique of using
`up to 15 bits per subchannel to Milbrandt’s communication system renders
`nothing more than the predictable results of, for example, “transmitting data
`more efficiently, increasing throughput, improving service for customers,
`and making the system as [a] whole commercially desirable in the
`marketplace.” Id. at 14–15 (citing Ex. 1009, 32–33). We are persuaded that
`a person having ordinary skill in the art would have found it obvious to
`combine the teachings of Milbrandt and Hwang because we agree that
`transmitting more data per subchannel would have been recognized by a
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`person having ordinary skill in the art as resulting in a more efficient system
`that has higher throughput.
`Petitioner also argues that a person with ordinary skill in the art would
`have found it obvious to combine Milbrandt/Hwang with ANSI T1.413
`because Milbrandt/Hwang describe communication systems, and ANSI
`T1.413 defines the ADSL communication standard applicable to those
`systems. Pet. 15‒19 (citing Ex. 1009, 33‒36). Thus, Petitioner argues that
`both Milbrandt and Hwang refer to the ADSL standard set forth by ANSI
`T1.413, such that a person with ordinary skill in the art would have been
`directed to combine the teachings of all three references for several reasons.
`Id. at 15–16 (citing Ex. 1009, 33–34). Petitioner also argues that it would
`have been advantageous to modify the teachings of Milbrandt and Hwang
`with the teachings of ANSI T1.413 in order to “improve signal quality and
`reliability,” “adjust its automatic gain control (AGC) to an appropriate
`level,” and “allow for interoperability with other devices that are ANSI
`T1.413 standard compliant, mak[ing] the overall system more robust.” Id. at
`16‒17 (citing Ex. 1009, 34‒35). Specifically, Petitioner argues that
`a person of ordinary skill in the art would have recognized that
`transmitting per-subchannel data as an array, as taught by ANSI
`T1.413, would advantageously [allow] the receiving modem to
`receive and access the information on a per sub-channel basis,
`without the need for additional processing or reordering of the
`received information.
`
`Id. at 28 (citing Ex. 1009, 55–56).
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`5. Patent Owner’s Response and Petitioner’s Reply
`Petitioner has established by a preponderance of the evidence that the
`challenged claims are unpatentable over the cited prior art. 35 U.S.C.
`§ 316(e). Patent Owner’s response addresses specific limitations and
`arguments but waives arguments not raised. See 37 C.F.R. § 42.23(a) (“Any
`material fact not specifically denied may be considered admitted.”); In re
`Nuvasive, Inc., 842 F.3d 1376, 1379–1382 (Fed. Cir. 2016) (holding Patent
`Owner waived argum
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