Trials@uspto.gov
`571-272-7822
`
`
`Paper No. 43
`Entered: February 1, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-010201
`Patent 9,014,243 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`1 DISH Network, LLC, who filed IPR2017-00254, and Comcast Cable
`Communications, LLC, Cox Communications, Inc., Time Warner Cable
`Enterprises LLC, Verizon Services Corp., and ARRIS Group, Inc., who filed
`IPR2017-00418, have been joined in this proceeding. Paper 14; Paper 15.
`
`
`571-272-7822
`
`
`Paper No. 43
`Entered: February 1, 2018
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC., DISH NETWORK, LLC,
`COMCAST CABLE COMMUNICATIONS, LLC,
`COX COMMUNICATIONS, INC.,
`TIME WARNER CABLE ENTERPRISES LLC,
`VERIZON SERVICES CORP., and ARRIS GROUP, INC.,
`Petitioner,
`
`v.
`
`TQ DELTA, LLC,
`Patent Owner.
`____________
`
`Case IPR2016-010201
`Patent 9,014,243 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`CLEMENTS, Administrative Patent Judge.
`
`
`
`DECISION
`Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`1 DISH Network, LLC, who filed IPR2017-00254, and Comcast Cable
`Communications, LLC, Cox Communications, Inc., Time Warner Cable
`Enterprises LLC, Verizon Services Corp., and ARRIS Group, Inc., who filed
`IPR2017-00418, have been joined in this proceeding. Paper 14; Paper 15.
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`
`INTRODUCTION
`I.
`Pursuant to 37 C.F.R. § 42.71(d), TQ Delta, LLC (“Patent Owner”)
`request rehearing of our Final Written Decision (Paper 41, “Dec.”). Paper
`42 (“Req. Reh’g”). Specifically, Patent Owner submits that our construction
`of “scrambling . . . a plurality of carrier phases” misapprehends or overlooks
`certain evidence, that Stopler2 does not disclose “scrambling . . . a plurality
`of carrier phases,” that we misapprehended or overlooked certain testimony,
`and that we misapprehended that Shively3 would not have an increased or
`high PAR. 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. “scrambling . . . a plurality of carrier phases”
`Independent claim 1 recites “scrambling . . . a plurality of carrier
`phases.” Independent claim 7 similarly recites “scramble a plurality of
`
`
`2 U.S. Patent No. 6,625,219 B1; issued Sept. 23, 2003 (Ex. 1012, “Stopler”).
`3 U.S. Patent No. 6,144,696 B1; issued Nov. 7, 2000 (Ex. 1011, “Shively”).
`
`2
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`carrier phases.” Independent claims 13 and 20 similarly recite “scramble[s]
`a plurality of phases.” We adopted Patent Owner’s proposed construction in
`part by construing “scrambling . . . a plurality of carrier phases” to mean
`“adjusting the phases of a plurality of carriers in a single multicarrier
`symbol.” Dec. 6–9. We did not add to that construction “by pseudo-
`randomly varying amounts” because Patent Owner did not show why that
`additional language should be included for the broadest reasonable
`construction of the term “scrambling . . . a plurality of carrier phases.” Id.
`Patent Owner argues that our construction is overly broad because it
`encompasses adjusting the phases of every carrier in the single multicarrier
`symbol by the same amount. Req. Reh’g. 1–2. Such an adjustment,
`according to Patent Owner, would not reduce peak-to-average power ratio
`(“PAR”), which the parties and the panel all agree scrambling must do. Id.
`at 3–5. “The FWD misapprehends or overlooks that, under any proper
`construction, there must at a minimum be varying amounts by which the
`phases are adjusted within a single multicarrier symbol (i.e., from carrier-to-
`carrier) such that PAR is reduced.” Id. at 2.
`Patent Owner presents arguments not presented previously. We could
`not have overlooked or misapprehended those arguments presented for the
`first time in the rehearing request. Importantly, Patent Owner argues now
`for the first time that for any proper construction “there must at a minimum
`be varying amounts by which the phases are adjusted within a single
`multicarrier symbol (i.e., from carrier-to-carrier) such that PAR is reduced.”
`Id. at 2. This proposed construction differs from Patent Owner’s original
`proposed construction which included “by pseudo-randomly varying
`
`3
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`amounts.” Absent from the new proposed construction is the term “pseudo-
`randomly.”
`In any event, it is clear from the Decision that we construed the
`totality of each claim as requiring varying the amount by which the phase of
`each carrier is adjusted. See, e.g., Dec. 21–24. Accordingly, even if we
`were to adopt Patent Owner’s new proposed construction, it would not
`change the way we applied the prior art to the claim language as a whole.
`
`B. Stopler’s Single-Carrier Embodiment
`Patent Owner argues that Stopler’s QAM Mapper and Phase
`Scrambler 82 “must be compatible with single-carrier CDMA” because
`Stopler teaches that its output can, in one embodiment, be provided to a
`CDMA modulator. Req. Reh’g. 6. Patent Owner concludes that Stopler’s
`phase scrambling “must have a different purpose than the claimed phase
`scrambling because [it] . . . cannot reduce PAR.” Id. at 7.
`We addressed this argument and found it unpersuasive. Dec. 18–22.
`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.
`
`C. Allegedly Misapprehended or Overlooked Testimony
`Patent Owner quotes page 21 of our Decision and argues that “there
`are several inaccuracies.” Req. Reh’g 8–12. These arguments are based, in
`part, on a mischaracterization of our claim construction as requiring the
`same amount of rotation of the phase of each of the QAM symbols in a
`DMT symbol. See, e.g., id. at 8 (“First, a DMT symbol cannot be phase
`scrambled as that term is used in the claims by having its component QAM
`symbols rotated by the same amount.”), 9 (“as interpreted in the FWD (‘i.e.,
`
`4
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`rotates by the same amount, the phase of a plurality of QAM symbols.’).”).
`Our construction of “scrambling . . . a plurality of carrier phases” does not
`require rotating by the same amount. And as we applied the prior art, to the
`totality of the claim language, it is clear that we construed the totality of the
`claim language to require the phases of the carriers of the multi-carrier
`signal be rotated by varying amounts. For example, our Decision states
`Stopler further teaches that, “a phase scrambling sequence is
`applied to the output symbols,” including “all symbols, not just
`the overhead symbols.” Id. at 12:25–28. Patent Owner’s expert,
`Dr. Short, agreed that Stopler is referring to phase scrambling
`QAM symbols. Reply 16–17 (citing Ex. 1027 (Tellado Dep.),
`54:17–55:3, 55:19–24, 58:6–8, 59:9–12, 60:15–22). Stopler
`further teaches that a “scrambling sequence may be generated by
`a pseudorandom generator” that generates pairs whose sum “is
`used to select the amount of rotation to be applied to the symbol,”
`singular; not “symbols” plural. Ex. 1012, 12:28–36. Thus, the
`most intuitive reading of Stopler supports Petitioner’s contention
`that QAM Mapper and Phase Scrambler 82 determines an
`amount of rotation and rotates the phase of a single QAM symbol
`by that amount.
`Dec. 21–22.
`Patent Owner also objects to our characterization of Dr. Short’s
`testimony as “admit[ing] that Stopler does not describe phase scrambling
`DMT symbols” (Dec. 21 (citing Ex. 1027, 60:11–14)). Req. Reh’g 9
`(regarding Ex. 1027, 60:11–14). That testimony is as follows:
`Q. Well, you would agree with me that [Stopler] doesn’t
`expressly teach applying the phase scrambler to the DMT as a
`whole?
`A. I would agree with that.
`Ex. 1027, 60:11–14. We acknowledge that Dr. Short testified that he
`understands Stopler to be rotating all of the QAM symbols within a
`
`5
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`DMT symbol by the same amount, but the point made in our Decision
`remains: Dr. Short clearly conceded, however, that Stopler does not
`expressly teach applying the phase scrambler to the DMT symbol as a
`whole. Dec. 21 (citing Ex. 1027, 60:11–14).
`Patent Owner also argues that we misapprehended its argument that
`Stopler would adjust the phases of QAM symbols over time in order to
`reduce narrowband noise. Req. Reh’g 10 (citing PO Resp. 39 (“According
`to a second narrowband-noise-reducing technique, Stopler addresses
`narrowband noise at the frequency of an overhead pilot carrier by
`scrambling the phase of the pilot carrier over time from one DMT symbol to
`the next, i.e., by inter-symbol phase scrambling. See Ex. 2003 at ¶ 82.”).
`As we noted in our Decision, however, Stopler teaches and Petitioner relies
`“not just on the scrambling of ‘overhead signals, such as pilot tones,’ (Pet.
`12) but on the scrambling of all QAM symbols. Because neither Petitioner’s
`argument nor Stopler’s teaching of phase scrambling is limited to pilot
`tones, Patent Owner’s argument is not persuasive.” Dec. 23.
`Patent Owner also argues that we misapprehended its burden by
`noting that “Patent Owner identifies nothing in Stopler to suggest that, in an
`alternative embodiment with a multicarrier modulator, QAM Mapper and
`Phase Scrambler 82 do not supply a plurality of phase-scrambled QAM
`symbols for modulation onto the plurality of carriers in the, e.g., DMT
`symbol.” Req. Reh’g 10–11 (quoting Dec. 21). Petitioner has the burden of
`persuasion to prove unpatentability by a preponderance of the evidence. See
`35 U.S.C. § 316(e); Dynamic Drinkware, LLC v. Nat’l Graphics, Inc., 800
`F.3d 1375, 1379 (Fed. Cir. 2015). For this element, we explained how
`Petitioner satisfied that burden based, inter alia, on express disclosure in
`
`6
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`Stopler. Dec. 21–22. The sentence to which Patent Owner objects merely
`notes that, even assuming Stopler works as Patent Owner argues in an
`embodiment with a single-carrier modulator, that does not persuasively rebut
`the express disclosure upon which Petitioner relies. Accordingly, we are not
`persuaded that we misapprehended Patent Owner’s burden.
`Patent Owner also argues it was denied the opportunity to file a sur-
`reply. Req. Reh’g. 11–12. Patent Owner was, however, granted an
`opportunity to identify allegedly new arguments and evidence in Petitioner’s
`Reply (Paper 21), and we considered the identified portions when reaching
`our Decision (Dec. 24 n.7). 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, Inc. v. CaptionCall, LLC,
`872 F.3d 1267, 1273 (Fed. Cir. 2017)) about whether the arguments and
`evidence raised in reply were outside the scope of a proper reply.
`
`D. Shively’s PAR
`Finally, Patent Owner argues that we misapprehended or overlooked
`its argument that Shively’s PAR would not be so “increased” or “high” that
`it resulted in clipping, as would be needed before a person of ordinary skill
`in the art had reason to modify Shively. Req. Reh’g 12–15. We addressed
`this argument and found it unpersuasive. Dec. 27–28. 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.
`Moreover, Patent Owner alleges that “the FWD characterizes Shively
`as having a ‘high’ or ‘increased’ PAR.” Req. Reh’g. 13 (citing Dec. 27–28).
`That is false. Our Decision states that it is undisputed that Shively’s
`
`7
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`technique “will increase PAR” (Dec. 27–28), but does not characterize
`Shively as having a “high” or “increased” PAR.4 Our Decision relies upon
`page 28 of Patent Owner’s Response (Paper 12), which concedes that
`“Shively’s ‘spreading’ technique will contribute a small uptick in clipping
`probability.” Patent Owner does not dispute, in its Request for Rehearing,
`Shively’s technique increases PAR.
`With respect to Patent Owner’s argument that “there is no PAR
`problem presented by Shively” (Req. Reh’g. 13) and “the only PAR problem
`in this case relates to clipping” (id. at 14), we considered that argument and
`found it unpersuasive. Dec. 27–28. As we noted, “Petitioner’s reason to
`combine does not depend on the PAR increase exceeding some specific
`numeric threshold,” “there also is no dispute that equipment designed to
`handle a higher PAR can be larger, more expensive, and more power hungry
`than equipment designed to handle a lower PAR,” and, therefore, “a person
`of ordinary skill in the art . . . would have been motivated to reduce PAR
`regardless of whether Shively’s technique resulted in clipping.” Id. In other
`words, as we explained in our Decision, Shively’s PAR need not result in
`clipping in order to motivate a person of ordinary skill in the art because we
`are persuaded such a person would have been motivated sufficiently to
`reduce PAR by the benefit of being able to use smaller, less expensive, less
`power hungry components.
`
`
`4 In a sentence summarizing Petitioner’s position, our Decision states,
`“Petitioner alleges that Shively’s proposed system would have an
`‘increased’ or ‘high’ PAR.” Dec. 27 (quoting Pet. 13–14) (emphasis added).
`It should be obvious, however, that a summary of Petitioner’s allegation is
`not a characterization by the panel.
`
`8
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`
`II. ORDER
`Accordingly, it is it is ORDERED that Patent Owner’s Request for
`Rehearing is denied.
`
`
`9
`
`
`
`IPR2016-01020
`Patent 9,014,243 B2
`
`For PETITIONER:
`
`David L. McCombs
`Theodore M. Foster
`HAYNES & BOONE, LLP
`David.mccombs.ipr@haynesboone.com
`ipr.theo.foster@haynesboone.com
`
`For PATENT OWNER:
`
`Peter J. McAndrews
`Thomas J. Wimbiscus
`Scott P. McBride
`Andrew Karp
`Christopher M. Scharff
`MCANDREWS, HELD & MALLOY, LTD.
`pmcandrews@mcandrews-ip.com
`twimbiscus@mcandrews-ip.com
`smcbride@mcandrews-ip.com
`akarp@mcandrew-ip.com
`cscharff@mcandrews-ip.com
`
`
`
`
`10
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
