Trials@uspto.gov
`571-272-7822
`
`
`Paper: 39
`Entered: March 5, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01009
`Patent 8,238,412 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`CLEMENTS, Administrative Patent Judge.
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`571-272-7822
`
`
`Paper: 39
`Entered: March 5, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01009
`Patent 8,238,412 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`CLEMENTS, Administrative Patent Judge.
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`IPR2016-01009
`Patent 8,238,412 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 37, “Dec.”). Paper
`38 (“Req. Reh’g”). Specifically, Patent Owner submits that we overlooked
`arriving at a contradictory claim construction, overlooked a non-obviousness
`argument, 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” contradicts our claim construction of the same term in Cisco
`Systems, Inc. v. TQ Delta, LLC, Case IPR2016-01007 (“the 1007 IPR”).
`Req. Reh’g 1–2. In the 1007 IPR, however, we construed “during
`Showtime” exactly the same as in this proceeding, i.e., to mean “during
`normal communications of a DSL transceiver.” Cisco Systems, Inc. v. TQ
`
`2
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`Delta, LLC, Case IPR2016-01007 (PTAB Oct. 27, 2017), Paper 38 (“the
`1007 FWD”) at 9. Thus, the construction of “during Showtime” in this
`proceeding is consistent with the construction of “during Showtime” in the
`1007 IPR.
`Patent Owner’s issue is with a sentence in the claim construction
`analysis of “during Showtime” in the 1007 FWD 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 1007 FWD to read “[w]e are persuaded by Patent Owner’s negative
`construction, which excludes initialization from normal communication.”
`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
`during “Showtime.” Id. at 2–5. To the contrary, this argument was
`addressed explicitly at pages 36 to 37 of our Final Written Decision, where
`we 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 are “during Showtime” as we have
`construed that term. Dec. 36–37.
`
`3
`
`
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`IPR2016-01009
`Patent 8,238,412 B2
`
`
`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 concluding sentence, which states that “we are persuaded by
`Petitioner’s evidence that ANSI T1.413’s teaching of ‘SNR, as measured by
`the receivers’ and ‘externally accessible from the ATU-C’ teaches the
`disputed limitation.” Dec. 38. In an Errata mailed concurrently herewith,
`we correct that sentence to replace “the disputed limitation” with “Signal to
`Noise ratio.”
`Patent Owner also argues that we overlooked its argument that it
`would not have been obvious to combine Milbrandt with ANSI T1.413, and
`that Petitioner’s Reply arguments about “bit swapping” were new. Req.
`Reh’g 6–8. We addressed this argument in our Final Written Decision and
`found it unpersuasive. Dec. 38–39. Petitioner’s argument in Reply was not
`new. The Reply cites, inter alia, page 45 of the Petition (Pet. Reply 20–21),
`where the same argument was made. Specifically, the Petition states
`A person of ordinary skill in the art would have found it obvious
`to measure and calculate a signal-to-noise ratio on a per
`subchannel (sub-frequency) basis. Ex. 1009, p. 131. In
`particular, the discrete multitone (DMT) technology employed in
`Milbrandt’s modems 42 and 60 allows for a variable number of
`bits to be transmitted on each subchannel. Id. Thus, the number
`of bits on any particular subchannel can be tailored to match the
`signal quality of that subchannel. Id. To determine how to
`spread the bits across the available subchannels (i.e., how many
`bits to transmit on each available subchannel), it would have
`been obvious to a person of ordinary skill in the art to measure
`the signal-to-noise ratio on a per subchannel basis. Id.
`
`4
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`Pet. 45. Patent Owner is correct that this passage does not use the exact
`words “bit swapping” or “allocate[ing] bits,” but the substance of the
`argument is the same.
`
`B. Reply Evidence
`Patent Owner argues that, in determining that Milbrandt’s
`“subfrequency” teaches the recited “subchannel,” we relied improperly on
`argument and evidence that were introduced only in Petitioner’s Reply.
`Req. Reh’g 8–10. We disagree. Both our Final Written and the Petition rely
`upon Milbrandt’s sub-frequency as teaching the recited “subchannel.” See,
`e.g., Pet. 34. Petitioner’s Reply rebuts arguments raised in the Patent Owner
`Response. Petitioner was not required to anticipate and rebut, in the
`Petition, those arguments.
`Patent Owner also argues that we overlooked or misapprehended its
`evidence showing that Milbrandt’s sub-frequency is not the recited
`“subchannel.” Req. Reh’g. 10–12. To the contrary, we addressed Patent
`Owner’s arguments about V.90 and columns 344 of Figure 3 of Milbrandt,
`and found them unpersuasive. Dec. 26–30. Mere disagreement with the
`Board’s conclusion is not a proper basis for rehearing. It is not an abuse of
`discretion to have made a conclusion with which a party disagrees.
`Patent Owner also argues that we misapprehended evidence that
`ANSI T1.413 does not use “aggregate” to include individual values for each
`of the subchannels. Req. Reh’g. 12–13. As we explained in the Final
`Written Decision, Patent Owner’s argument for claims 10 and 12 is not
`persuasive because it attacks ANSI alone, whereas Petitioner relies upon the
`combination of Milbrandt for teaching PSD “per subchannel” with ANSI for
`teaching PSD “based on a Reverb signal.” Dec. 32–33. Thus, even
`
`5
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`assuming that ANSI uses “aggregate” as Patent Owner contends, “that is not
`necessarily inconsistent with the claims, which” do not require the Reverb
`signal to be “per subchannel.” Id. at 33.
`
`C. Motion to Strike
`Finally, Patent Owner argues that we abused our discretion by
`authorizing it to file only a listing of allegedly improper Reply arguments,
`by not authorizing it to file a motion to strike “showing why Petitioners’
`Reply arguments were improper and/or a motion to file a surreply showing
`why due process required that Patent Owner be given an opportunity to
`respond to Petitioner’s new arguments,” and by addressing its listing in a
`footnote in the Final Written Decision. Req. Reh’g. 13–15 (emphasis
`original) (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.
`Redline involved a denial of Petitioner’s Motion to Submit 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.
`
`6
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`
`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 (Paper 20, 1–2) 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. 25 n.5).
`
`
`II. ORDER
`Accordingly, it is it is ORDERED that Patent Owner’s Request for
`Rehearing is denied.
`
`
`7
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
`
`For 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
`cscharff@mcandrews-ip.com
`
`
`
`
`8
`
`
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