Trials@uspto.gov Paper No. 37
`571-272-7822
`Entered: October 26, 2017
`
`
`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.
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`571-272-7822
`Entered: October 26, 2017
`
`
`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.
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`IPR2016-01009
`Patent 8,238,412 B2
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`
`INTRODUCTION
`I.
`In this inter partes review, instituted pursuant to 35 U.S.C. § 314,
`Cisco Systems, Inc. (“Petitioner”) challenges claims 9–12, 15–18, and 21
`(“the challenged claims”) of U.S. Patent No. 8,238,412 B2 (Ex. 1001, “the
`’412 patent”), owned by TQ Delta, LLC (“Patent Owner”). 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. Procedural History
`Petitioner filed a Petition requesting an inter partes review of claims
`9–12, 15–18, and 21 of the ’412 patent. Paper 2 (“Pet.”). Patent Owner
`filed a corrected Preliminary Response. Paper 7. On November 4, 2016, we
`instituted inter partes review of claims 9–12, 15–18, and 21 of the ’412
`patent under 35 U.S.C. § 103(a) as obvious over Milbrandt,1 Chang,2
`Hwang,3 and ANSI T1.413.4 Paper 8 (“Inst. Dec.”), 30.
`Thereafter, Patent Owner filed a Patent Owner Response (Paper 13,
`“PO Resp.”), to which Petitioner filed a Reply (Paper 15, “Reply”).
`
`
`1 U.S. Patent No. 6,636,603 B1; issued Oct. 21, 2003 (Ex. 1011)
`(“Milbrandt”).
`2 U.S. Patent No. 6,891,803 B1; issued May 10, 2005 (Ex. 1012) (“Chang”).
`3 U.S. Patent No. 6,590,893 B1; issued July 8, 2003 (Ex. 1013) (“Hwang”).
`4 Network and Customer Installation Interfaces – Asymmetric Digital
`Subscriber Line (ADSL) Metallic Interface, AMERICAN NATIONAL
`STANDARDS INSTITUTION (ANSI) T1.413-1995 STANDARD (Ex. 1014)
`(“ANSI T1.413”).
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`Pursuant to an Order (Paper 19), Patent Owner filed a listing of alleged
`statements and evidence in connection with Petitioner’s Reply that Patent
`Owner considered to be beyond the proper scope of a reply. Paper 20.
`Petitioner filed a response to Patent Owner’s listing. Paper 24.
`Patent Owner filed a Motion to Exclude (Paper 27), Petitioner filed an
`Opposition (Paper 31), and Patent Owner filed a Reply (Paper 34). Patent
`Owner also filed a Motion for Observation (Paper 29) to which Petitioner
`filed a Response (Paper 32).
`We held a consolidated hearing on August 3, 2017, for this case and
`related Cases IPR2016-01006, IPR2016-01007, and IPR2016-01008, and a
`transcript of the hearing is included in the record. Paper 36 (“Tr.”).
`
`B. Related Proceedings
`The parties indicate that the ’412 patent is involved in the following
`district court cases: (1) TQ Delta LLC v. Comcast Cable Communications
`LLC, No. 1:15-cv-00611 (D. Del.); (2) TQ Delta LLC v. CoxCom, LLC, No.
`1:15-cv-00612 (D. Del.); (3) TQ Delta LLC v. DIRECTV, No. 1:15-cv-
`00613 (D. Del.); (4) TQ Delta LLC v. DISH Network Corp., No. 1:15-cv-
`00614 (D. Del.); (5) TQ Delta LLC v. Time Warner Cable Inc., No. 1:15-cv-
`00615 (D. Del.); (6) TQ Delta LLC v. Verizon Communications, Inc., No.
`1:15-cv-00616 (D. Del.); (7) ARRIS Group, Inc. v. TQ Delta LLC, Case
`IPR2016-00430; (8) Comcast Cable Communications, LLC v. TQ Delta,
`LLC, Case IPR2017-00419; and (9) DISH Networks, LLC v. TQ Delta, LLC,
`Case IPR2017-00253. Paper 11, 1; Paper 6, 2–4. Patent Owner further
`identifies (1) TQ Delta LLC v. 2Wire, Inc., No. 13-cv-1835 (D. Del.); (2) TQ
`Delta LLC v. Zhone Technologies, Inc., No. 13-cv-1836 (D. Del.); (3) TQ
`Delta LLC v. ZyXEL Communications, Inc. and ZyXEL Communications
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`Corp., No. 13-cv-02013 (D. Del.); (4) TQ Delta LLC v. ADTRAN, Inc., No.
`1:14-cv-00954 (D. Del.); and (5) ADTRAN, Inc. v. TQ Delta LLC, No. 1:15-
`cv-00121 (D. Del.). Paper 6, 3–4. Also, Petitioner filed, concurrently with
`this Petition, a second petition challenging claims of the ’412 patent, which
`became Case IPR2016-01008.
`Petitioner also indicates that the ’412 patent is related to U.S. Patent
`No. 8,432,956 B2 and U.S. Patent No. 7,835,430 B2, which are the subjects
`of IPR2016-00428 and IPR2016-00429, respectively. Pet. 1. U.S. Patent
`No. 8,432,956 B2 also is the subject of IPR2016-01007 and IPR2017-00422.
`U.S. Patent No. 7,835,430 B2 also is the subject of IPR2016-01006,
`IPR2017-00251, and IPR2017-00420.
`
`C. The ’412 patent (Ex. 1001)
`The ’412 patent discloses systems and methods for reliably
`exchanging diagnostic and test information between transceivers over a
`digital subscriber line in the presence of disturbances. Ex. 1001, 1:59‒62.
`The systems and methods include the use of a diagnostic link mode in the
`communication of diagnostic information from a remote terminal (RT)
`transceiver or modem to the central office (CO) transceiver or modem,
`where either modem transmits a message to the other modem to enter
`diagnostic link mode. Id. at 2:60‒64, 3:34‒42. In diagnostic mode, the RT
`modem sends diagnostic and test information as bits to the CO modem. Id.
`at 3:48‒53.
`
`Figure 1 illustrates the additional modem components associated with
`the diagnostic link mode, and is reproduced below:
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`Figure 1 illustrates a diagnostic mode system, where CO modem 200 and RT
`modem 300 are connected via link 5 to splitter 10 for a phone switch, and a
`splitter 30 for a phone 40. Id. at 4:58‒5:5. CO modem 200 includes CRC
`checker 210, diagnostic device 220, and diagnostic information monitoring
`device 230. Id. RT modem includes message determination device 310,
`power control device 320, diagnostic device 330, and diagnostic information
`storage device 340. Id.
`
`D. Illustrative Claims
`Of the instituted claims, claims 9, 11, 15‒18, and 21 are independent
`claims. Claims 10 and 12 depend from independent claims 9 and 11,
`respectively. Claims 15, 17, and 21 are illustrative of the claims at issue and
`are reproduced below:
`computer-readable
`non-transitory
`15. One
`or more
`information storage media having stored thereon instructions
`that, if executed, cause a communications system for DSL
`service to perform a method comprising:
`transmitting a message from a first transceiver, wherein
`the message comprises one or more data variables that represent
`the test information, wherein bits in the message are modulated
`onto DMT symbols using Quadrature Amplitude Modulation
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`(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
`receiving the message at a second transceiver, wherein the
`message comprises the one or more data variables that represent
`the test 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.
`
`Ex. 1001, 10:40‒61.
`17.
`In a communications system for DSL service with a first
`DSL transceiver capable of transmitting test information over a
`communication channel using multicarrier modulation and a
`second DSL transceiver capable of receiving the test information
`over the communication channel using multicarrier modulation,
`a method comprising:
`transmitting a message, wherein the message comprises
`one or more data variables that represent the test 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
`frequency domain received idle channel noise information; and
`receiving the message, wherein the message comprises the
`one or more data variables that represent the test 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 frequency domain received idle channel noise
`information.
`Ex. 1001, 11:19‒41.
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`computer-readable
`non-transitory
`or more
`21. One
`information storage media having stored thereon instructions
`that, if executed, cause a communications system for DSL
`service to perform a method comprising:
`transmitting a message, wherein the message comprises
`one or more data variables that represent the test 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; and
`receiving the message, wherein the message comprises the
`one or more data variables that represent the test information,
`wherein the bits in the message were 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
`Ex. 1001, 12:44‒63.
`
`II. ANALYSIS
`A. Claim Construction
`The Board interprets claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); see Cuozzo Speed Techs., LLC v.
`Lee, 136 S. Ct. 2131, 2142–46 (2016). Under the broadest reasonable
`construction standard, claim terms are 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).
`In our Decision on Institution, we adopted the following
`constructions:
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`Claim Term
`frequency domain
`received idle channel
`noise information
`array
`
`Construction
`information about the background noise present in
`each of a plurality of frequency subchannels when
`the subchannels are not in use
`an ordered collection of multiple data items of the
`same type
`a device, such as a modem, with a transmitter and
`receiver
`Dec. 7–9. Neither party has indicated that our interpretations were improper
`and we do not perceive any reason or evidence that now compels any
`deviation from our initial interpretations. Accordingly, based on the record
`developed during this proceeding, we continue to apply these constructions.
`The parties dispute the meaning of “during Showtime” and
`“subchannel.” PO Resp. 7–10; Reply 7–9. Accordingly, we construe those
`terms expressly.
`
`transceiver
`
`1. “during Showtime”
`In our Decision on Institution, we construed “during Showtime” to
`mean “during normal communications of an ANSI T1.413-compliant
`device.” Inst. Dec. 8. Patent Owner argues that this construction (1) “could
`be incorrectly understood to cover modem initialization and training,” and
`(2) neither the phrase “during Showtime” nor the claims of the ’412 patent
`are limited to an “ANSI T1.413 compliant device.” PO Resp. 7–8 (citing
`Ex. 2001 ¶ 31; Ex. 2005 (Declaration of Douglas Chrissan, Ph.D.)).
`According to Patent Owner, “during Showtime” should be construed to
`mean “during normal data communication that occurs after initialization.”
`Id. at 9. Petitioner replies that, to the extent any revision is necessary, the
`testimony of Patent Owner’s declarant, Dr. Chrissan, may be taken into
`account by construing “during Showtime” to mean “as “during normal
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`communications of a device compliant with the ANSI T1.413, ITU-T
`G.992.1, G.992.2, ADSL2, or VDSL2 communication standards.” Reply 9.
`Apart from the claims and Table 1, the ’412 patent uses “during
`Showtime” only once. Ex. 1001, 3:33–34 (“during showtime, e.g., the
`normal steady state transmission mode”). There appears to be no dispute
`that “during Showtime” is intended to distinguish initialization and training.
`Pet. 14; PO Resp. 7; Reply 9; see also Tr. 21:19–23:11 (counsel for
`Petitioner). Moreover, both experts acknowledge that “during Showtime” is
`a term of art in DSL technology. Ex. 1009 ¶ 52; Ex. 1110 (deposition of Dr.
`Chrissan), 79:21–24. Although DSL is not recited in every challenged claim
`of the ’412 patent, the Specification summarizes the invention as “systems
`and methods . . . directed toward reliably exchanging diagnostic and test
`information between transceivers over a digital subscriber line in the
`presence of voice communications and/or other disturbances.” Ex. 1001,
`1:59–62 (emphasis added). Accordingly, we determine that the broadest
`reasonable interpretation of “during Showtime” in the context of the ’412
`patent is “during normal communications of a DSL transceiver.”
`
`2. “subchannel”
`Patent Owner argues that “subchannel” should be construed to mean a
`“carrier of a multicarrier communication channel.” PO Resp. 10. Patent
`Owner argues that “communication between ADSL transceivers ‘is
`accomplished by modulating the data to be transmitted onto a multiplicity of
`discrete frequency carriers which are summed together and then transmitted
`over the subscriber loop. Individually, the carriers form discrete, non-
`overlapping communication subchannels of limited bandwidth.’”
`Id. (quoting Ex. 1001, 1:41–45 (emphasis added)).
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`Petitioner replies that this construction is overly narrow because the
`’412 patent elsewhere uses “subchannel” interchangeably with “tone,” not
`just with “carrier.” Reply 7–8 (citing Ex. 1001, 4:35–39; Ex. 1100 ¶ 6).
`Petitioner contends that a person of ordinary skill in the art would have
`understood “subchannel” to be equivalent and interchangeable with
`“channel,” “carrier,” “subcarrier,” “band,” “subband,” and “tone.” Id.
`(citing Ex. 1110, 43:13–49:15, 53:20–54:1). Petitioner’s expert also testifies
`that “sub-frequency” would have been understood to be equivalent and
`interchangeable with “subchannel.” Id. at 8 (citing Ex. 1100 ¶¶ 8–9).
`Petitioner also argues that Patent Owner’s proposed interpretation is circular
`and confusing because it refers to both a “carrier” and a “channel,” which
`Patent Owner’s expert testified are equivalent terms. Id. (citing Ex. 1110,
`53:20–54:1). Petitioner concludes that “subchannel” should be construed to
`mean “a portion of a frequency spectrum used for communication.”
`Apart from the claims and portion of column 1 cited by Patent Owner,
`the ’412 patent uses “subchannels” only as follows:
`Individually,
`the carriers form discrete, non-overlapping
`communication subchannels of limited bandwidth.
`. . .
`Each modem includes a transmitter section for transmitting data
`and a receiver section for receiving data, and is of the discrete
`multitone type, i.e., the modem transmits data over a multiplicity
`of subchannels of limited bandwidth. Typically, the upstream or
`ATU-C modem transmits data to the downstream or ATU-R
`modem over a first set of subchannels, which are usually the
`higher-frequency subchannels, and receives data from the
`downstream or ATU-R modem over a second, usually smaller,
`set of subchannels, commonly the lower-frequency subchannels.
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`Ex. 1001, 1:44–2:16 (emphases added). This description is consistent with
`the following illustration provided by Patent Owner:
`
`
`PO Resp. 16. 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. Id. at 15–16 (citing Ex. 2001 ¶¶ 38–39). 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 13 (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 the specific construction to
`be used.
`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
`communication” could encompass the group of carriers used for upstream
`communication. Patent Owner’s proposed construction, in contrast, is
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`limited to a single carrier. With respect to Petitioner’s concern about Dr.
`Chrissan’s testimony that “channel” and “carrier” are equivalent “in certain
`contexts” (Ex. 1110, 53:20–21), it is not clear that that testimony was in the
`context of DSL specifically. 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. Level of Ordinary Skill in the Art
`Petitioner contends that a hypothetical person of ordinary skill in the
`art, with respect to and at the time of the’412 patent, would have, “(i) a
`Master’s degree in Electrical and/or Computer Engineering, or equivalent
`training, and (ii) approximately five years of experience working in
`multicarrier telecommunications,” and that a “[l]ack of work experience can
`be remedied by additional education, and vice versa.” Pet. 13.
`Patent Owner’s expert, Dr. Chrissan, essentially agrees:
`[A] person of ordinary skill in the art would have an electrical
`engineering background and experience in the design of
`multicarrier communication systems, such as those employing
`OFDM or DMT modulation. More particularly, 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.
`Ex. 2001 ¶ 34. We determine that the hypothetical person of ordinary skill
`in the art would have had either a Master’s degree or a Bachelor’s degree in
`electrical or computer engineering, and several years of experience working
`with multicarrier telecommunications. We note, however, that neither party
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`has explained substantively any significance that the difference in the
`proffered levels of ordinary skill in the art would play in the obviousness
`analysis. See Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966);
`Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he level of
`skill in the art is a prism or lens through which a judge, jury, or the Board
`views the prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star,
`Inc., 950 F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the
`level of ordinary skill in the art lies in the necessity of maintaining
`objectivity in the obviousness inquiry.”). To that end, we note that, in this
`case, the prior art itself reflects an appropriate skill level. See Okajima, 261
`F.3d at 1355.
`
`C. The Parties’ Post-Institution Arguments
`In our Decision on Institution, we concluded that the arguments and
`evidence advanced by Petitioner demonstrated a reasonable likelihood that
`claims 9–12, 15–18, and 21 of the ’412 patent are unpatentable under 35
`U.S.C. § 103(a) as obvious over the combination of Milbrandt, Chang,
`Hwang, and ANSI T1.413. Inst. Dec. 30. We must now determine whether
`Petitioner has established by a preponderance of the evidence that the
`specified claims are unpatentable over the cited prior art. 35 U.S.C.
`§ 316(e). We previously instructed Patent Owner that “any arguments for
`patentability not raised in the [Patent Owner Response] will be deemed
`waived.” Paper 9, 6; see also In re Nuvasive, 842 F.3d 1376, 1379–82 (Fed.
`Cir. 2016) (holding Patent Owner waived argument addressed in Preliminary
`Response by not raising argument in the Patent Owner Response).
`Additionally, the Board’s Trial Practice Guide states that the Patent Owner
`Response “should identify all the involved claims that are believed to be
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`patentable and state the basis for that belief.” Office Patent Trial Practice
`Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012).
`With a complete record before us, we note that we have reviewed
`arguments and evidence advanced by Petitioner to support its unpatentability
`contentions where Patent Owner chose not to address certain limitations in
`its Patent Owner Response. In this regard, the record now contains
`persuasive, unrebutted arguments and evidence presented by Petitioner
`regarding the manner in which the asserted prior art teaches corresponding
`limitations of the claims against which that prior art is asserted. Based on
`the preponderance of the evidence before us, we conclude that the prior art
`identified by Petitioner teaches or suggests all uncontested limitations of the
`reviewed claims. The limitations that Patent Owner contests in the Patent
`Owner Response are addressed below.
`D. Obviousness of Claims 9–12, 15–18, and 21
`over Milbrandt, Chang, Hwang, and ANSI T1.413
`Petitioner contends that claims 9–12, 15–18, and 21 of the ’412 patent
`are unpatentable under 35 U.S.C. § 103(a) as obvious over Milbrandt,
`Chang, Hwang, and ANSI T1.413. Pet. 15–68.
`
`1. 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
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`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.
`
`2. Milbrandt Overview
`Milbrandt discloses 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 is illustrated in Figure 1 as
`follows:
`
`
`Figure 1 illustrates a communication system that provides both telephone
`and data services. Id. at 4:4‒5. 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
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`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
`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.
`3. Chang Overview
`Chang discloses a telecommunications transmission test set for testing
`digital communications networks. Ex. 1012, 1:7‒9. One embodiment of the
`test set includes a light emitting diode (LED) display, a graphical display, a
`keypad, and an integrated microphone and speaker. Id. at 5:8‒12. The
`system can further include a processor, a DMM (digital multimeter) test
`circuit, a TDR (time domain reflection) test circuit, and a transmission line
`impairment test circuit. Id. at 5:28‒31, 5:58‒60. The test circuits provide
`test signals or test tones, and perform test measurements for various line
`qualification tests. Id. at 5:60‒63. The system further includes a modem
`module interface that receives data and control signals. Id. at 6:1‒10. The
`test set performs both line qualification testing and connectivity testing to
`allow complete installation, maintenance, and repairs of a communications
`
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`network. Id. at 9:29‒32
`
`4. Hwang Overview
`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. 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.
`
`5. ANSI T1.413 Overview
`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.
`
`6. Petitioner’s Initial Positions
`Petitioner contends that a combination of Milbrandt, Chang, Hwang,
`and ANSI T1.413 would have rendered obvious claims 9–12, 15–18, and 21
`of the ’412 patent. Pet. 15–68. We have reviewed the Petition, Patent
`Owner’s Response, and Petitioner’s Reply, as well as the relevant evidence
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`discussed in those papers and other record papers, and are persuaded that the
`record sufficiently establishes Petitioner’s contentions for claims 9–12, 15–
`18, and 21, and we adopt Petitioner’s contentions discussed below as our
`own.
`For example, the claim 21 preamble recites “[o]ne or more non-
`transitory computer-readable information storage media having stored
`thereon instructions that, if executed, cause a communications system for
`DSL service to perform a method.” Petitioner argues that Milbrandt
`discloses a “communication system [] that provides both telephone and data
`services to subscribers” and a “communication device that transmits and
`receives data in [a] communication system [] using any suitable digital
`subscriber line technology (xDSL).” Pet. 42 (quoting Ex. 1011, 4:3‒4,
`4:64‒67), 64 (citing Ex. 1009, 165) (emphasis omitted). Petitioner argues
`that Chang supplements Milbrandt because Chang discloses “a processor []
`that controls the operation of modem module [] according to program
`instructions stored in a memory,” where memory can be implemented as
`RAM, ROM, PROM, EPROM, FLASH memory, registers, or other memory
`devices. Id. at 30 (quoting Ex. 1012, 7:31‒34; citing Ex. 1012, 7:40‒46)
`(emphasis omitted). Petitioner argues that “[a] person of ordinary skill in the
`art would have understood that a ROM, a PROM, an EPROM, and FLASH
`are non-transitory computer readable memory since ‘ROM’ is an acronym
`for ‘Read Only Memory.’” Id. (citing Ex. 1009, 107). We are persuaded by
`Petitioner’s showing and find that a person of ordinary skill in the art would
`have understood that the devices of Milbrandt’s DSL system, like modem
`42, include a processor and program instructions that, if executed, cause the
`device to perform a method.
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`Petitioner argues that a person of ordinary skill in the art would have
`found it obvious to combine Milbrandt and Chang because both Milbrandt
`and Chang evaluate DSL communications and determine operational
`characteristics such as noise. Pet. 18‒19 (citing Ex. 1011, 8:53‒65, 9:31‒34;
`Ex. 1012, 1:6‒8, 2:59‒61; Ex. 1009, 34). Petitioner explains that a person
`with ordinary skill in the art would have recognized the advantages of
`measuring background noise using Chang’s techniques, where, for example,
`“when the system of Milbrandt updates the transmit power level for a device
`on one telephone line the impact on adjacent idle telephone lines within a
`binder group can be monitored using Chang’s approach.” Id. at 20.
`Petitioner further argues that “[t]hose of skill in the art would have
`understood that raising the transmit power level on a telephone line can
`improve [the] service quality by delivering a stronger signal to the far end.”
`Id. at 19‒20 (citing Ex. 1009, 37). Petitioner further provides several other
`advantages a person of ordinary skill in the art would have recognized as the
`benefits of combining Milbrandt and Chang. See id. at 20‒23. As such,
`Petitioner argues, and we agree, that a person with ordinary skill in the art
`would have combined Milbrandt and Chang.
`Claim 21 additionally recites “transmitting a message, wherein the
`message comprises one or more data variables that represent the test
`information.” Petitioner argues that Milbrandt discloses this limitation. Pet.
`31, 43, 64. Petitioner explains that Milbrandt discloses a “[m]odem []
`comprises any suitable communication device [] that transmits and receives
`data.” Id. at 31 (quoting Ex. 1011, 4:64‒65) (emphasis omitted). Petitioner
`further argues that Milbrandt discloses “subscriber line information” that
`includes power spectrum density per sub-frequency Sf, attenuation
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`information per sub-frequency Hf, and noise information per sub-frequency
`Nf, and it would have been obvious to a person with ordinary skill in the art
`that these values represent “one or more data variables.” Id. at 31‒32 (citing
`Ex. 1011, 11:38‒45; Ex. 1009, 56). We are persuaded by Petitioner’s
`showing and find that Milbrandt’s description of measured values of power
`spectrum density per sub-frequency Sf, noise information per sub-frequency
`Nf, and attenuation information per sub-frequency Hf meets the claim
`element of data variables that represent test information.
`Claim 21 also recites “wherein bits in the message are modulated onto
`DMT symbols using Quadrature Amplitude Modulation (QAM) with more
`than 1 bit per subchannel.” Petitioner argues that the combination of
`Milbrandt and Hwang disclose this limitation. Id. at 32‒34, 65. Petitioner
`contends that Milbrandt discloses communication
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