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`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________
`
`ARRIS GROUP, INC.,
`Petitioner,
`
`vs.
`
`TQ DELTA, LLC,
`Patent Owner.
`__________
`
`Case IPR2016-01160
`Patent 8,611,404 B2
`__________
`
`Record of Oral Hearing
`Held: September 7, 2017
`______________
`
`
`
`
`
`
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and MATTHEW
`R. CLEMENTS, Administrative Patent Judges.
`
`
`
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`
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`Case IPR2016-01160
`Patent 8,611,404 B2
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`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
` DAN GRESHAM, ESQUIRE
` Thomas Horstemeyer
` 3200 Windy Hill Road Southeast
` Suite 1600E
` Atlanta, Georgia 30339
` (770) 933-9500
` dan.gresham@thomashorstemeyer.com
` CHARLES GRIGGERS, ESQUIRE
` Thomas Horstemeyer
` 3200 Windy Hill Road Southeast
` Suite 1600E
` Atlanta, Georgia 30339
` (770) 933-9500
` charles.griggers@thomashorstemeyer.com
`
`
`ON BEHALF OF THE PATENT OWNER:
`
` RAJENDRA A. CHIPLUNKAR, ESQUIRE
` McAndrews, Held & Malloy, Ltd
` 500 West Madison Street, 34th Floor
` Chicago, Illinois 60661
` (312) 775-8000
` rchiplunkar@mcandrews-ip.com
` PETER J. MCANDREWS, ESQUIRE
` McAndrews, Held & Malloy, Ltd
` 500 West Madison Street, 34th Floor
` Chicago, Illinois 60661
` (312) 775-8000
` pmcandrews@mcandrews-ip.com
`
`
`The above-entitled matter came on for hearing on Thursday, September
`7, 2017, commencing at 1:01 p.m., at the U.S. Patent and Trademark Office,
`600 Dulany Street, Alexandria, Virginia.
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`Patent 8,611,404 B2
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`P R O C E E D I N G S
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` JUDGE MEDLEY: Please be seated.
` JUDGE CLEMENTS: All right. Good morning.
` This is the final hearing for IPR2016-01160 between
` petitioner, ARRIS Group, Inc., and patent owner, TQ
` Delta, LLC.
` I'm Judge Clements participating remotely
` from San Jose and with you in the room are Judges Medley and
` Jefferson. At this time, we'd like counsel to
` introduce yourselves, beginning with petitioner.
` MR. GRESHAM: This is Dan Gresham. I'll be
` speaking today on behalf of petitioner, ARRIS
` Group. With me is my colleague, Charles Griggers.
` And our client representative is Carol Ansley from
` ARRIS Group.
` JUDGE CLEMENTS: Okay. Thank you. And
` patent owner?
` MR. MCANDREWS: Good afternoon, Your
` Honors. I'm Peter McAndrews on behalf of patent
` owner, TQ Delta, LLC. Here with me today from our
` law firm is Rajendra Chiplunkar, who will be
` presenting the oral argument today, and Tom
` Wimbiscus. We also have here on behalf of TQ
` Delta, Representative Mark Roche.
` JUDGE CLEMENTS: Very good. Thank you very
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` much.
` Before we proceed, I have a couple of
` reminders. Each party has 60 minutes of total time
` to present argument in the case. Petitioner will
` proceed first and may reserve rebuttal time.
` Thereafter, the patent owner will respond to
` petitioner's presentation and petitioner may then
` make use of its rebuttal time, if any.
` With respect to demonstratives, because I
` am remote today and in the interest of maintaining
` a clear transcript, when you refer to a
` demonstrative, please refer to the slide number so
` that it will appear in the transcript. I have a
` copy of both party's demonstratives in front of me.
` Any questions, petitioner?
` MR. GRESHAM: Yes. Just with regard to
` housekeeping as far as reserving time, do I need to
` reserve a specific amount of time for rebuttal in
` advance, or can I make the argument and use
` whatever time I have left for rebuttal?
` JUDGE CLEMENTS: I'll ask you at the outset
` how much time you want to reserve. And if you end
` up running into that time a little bit, that's
` fine. Or if you end early, we can give you that
` time on rebuttal.
` MR. GRESHAM: Thank you.
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` JUDGE CLEMENTS: And any questions, patent
` owner?
` MR. MCANDREWS: No, Your Honor.
` JUDGE CLEMENTS: Okay. Very good.
` Petitioner, would you like to reserve rebuttal
` time?
` MR. GRESHAM: Yes. We'd like to reserve 20
` minutes for rebuttal.
` JUDGE CLEMENTS: 20 minutes. Okay. I'm
` giving 40 minutes for your opening. I will give
` you a five-minute head's up when we approach the
` 40-minute mark. Otherwise, you may begin when
` ready.
` MR. GRESHAM: Thank you. Good morning
` [sic]. I'm Dan Greshman, as I said, representing
` the petitioner, ARRIS Group. And we're here today
` to address Ground 1, the instituted ground, with
` regard to our Slide Number 2, Demonstrative Slide
` Number 2, of the '404 patent, obviousness in view
` of three references; the patented Bowie, the
` patented Vanzieleghem -- and I apologize in advance
` for the pronunciation. I may refer to that as Van
` at some point during the process. And the third
` reference is the 1995 ADSL Standard.
` With regard to Slide 3 of the
` demonstratives, the overview of the issues that we
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` have before us today are whether each of -- whether
` the three references disclose or render obvious the
` claimed element; store in a low power mode at least
` one of a fine gain parameter and a bit allocation
` parameter.
` The second issue is whether the references
` disclose or render obvious; exit from the low power
` and restore the full power mode without needing to
` reinitialize the transceiver.
` The third issue is whether the references
` disclose or render obvious; receive in the low
` power mode a synchronization signal.
` And the last issue is whether there's a
` motivation to combine the three references.
` With regard to Slide 4, we'll take a brief
` overview of the patent that's at issue, the '404
` patent. And briefly, the '404 patent discloses a
` multicarrier transmission system for using digital
` subscriber line communications that can rapidly
` switch from a sleep mode to a full power on
` condition. The stated objectives of the '404
` patent include reducing power consumption via sleep
` mode and enabling a rapid resumption from the sleep
` mode.
` That's essentially -- the title of the
` patent deals with the multicarrier transmission
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` system having a low power sleep mode and rapid on
` capability. When exiting the low power mode, the
` '404 patent restores stored parameters that were
` stored before the power down and uses those
` parameters to enable a rapid restart. And to
` ensure that the two ends of the link can
` communicate successfully to restore normal
` operation, the '404 patent also discloses
` synchronization between the two transceivers
` connected by the ADSL link.
` With regard to Slide 5, Slide 5 is a figure
` from the '404 patent that was cited in the
` petition, which basically gives a flowchart of the
` operation. The numbers that are circled were added
` by the petitioner for ease of reference in
` comparison with the Bowie reference, which we'll
` get to in a moment. And basically those -- the
` overview on Slide 5 illustrates the operation. And
` the '404 patent talks about the customer premise
` transceiver and the central office transceiver.
` So moving to Slide 6, the Bowie reference
` is entitled, Power Conservation for POTS -- plain
` old telephone system -- and Modulated Data
` Transmission. Bowie was not considered during
` prosecution of the '404 patent. Like the '404
` patent, Bowie specifically discloses that it is
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` applicable to ADSL circuitry. And Bowie also
` discloses a low power mode and claims a low power
` mode that includes signaling between end points to
` control transitions into and out of low power mode,
` as well as storing parameters, which Bowie refers
` to sometimes as loop characteristics determined
` during initialization for a rapid recovery upon a
` return to normal operation.
` And Slide 7 illustrates a flowchart from
` Bowie. Now, it also has the numbered -- reference
` numbers that were added by the petitioner for ease
` of comparison with the '404 patent. The Bowie
` figure actually talks about both the CPE Unit and
` the CO Unit in the same figure, whereas the
` previous flowchart from the '404 patent basically
` broke the two apart, as we'll see on Slide 8, which
` illustrates a side-by-side comparison of the figure
` from the '404 patent with the figure from the Bowie
` patent.
` And from the figures it is clear -- several
` things are clear. One, what both Bowie and the
` '404 patent disclose; one, storing parameters when
` entering a low power mode, and that's labeled Step
` 3 on the drawings; two, restoring the stored
` parameters when exiting a low power mode to provide
` a rapid restart. That's labeled Step 6 and 9 in
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`Patent 8,611,404 B2
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` the references.
` Both the '404 patent and the Bowie patent
` disclose the possibility of additional testing or
` verification upon exiting the low power mode before
` resuming full data exchange. Bowie refers to this
` as additional handshaking, while the '404 patent
` refers to "test data", "verified data", and
` "reinitialize". And those are labeled in Step 10
` with the resumption of full power operation after
` the restart taking place in Step 12.
` Thus, as we'll discuss with regard to the
` disputed claim elements, a person of ordinary skill
` in the art familiar with the 1995 ADSL Standard
` would recognize that Bowie discloses or renders
` obvious all elements of represented Claim 6 of the
` '404 patent, with the exception of maintaining
` synchronization in the low power mode.
` Synchronization in the low power mode is
` specifically addressed in the Vanzieleghem
` reference.
` And with regard to Slide 9, the
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` Vanzieleghem reference discloses a multicarrier
` transmission system with power adaptation means.
` Like the '404 patent, Vanzieleghem discloses a
` multicarrier system that is applicable to ADSL.
` Vanzieleghem also reduces power consumption over
` normal operation by sending symbols derived from a
` few, or even a single carrier, which it refers to
` as a pilot tone instead as from all the available
` carriers. And like the '404 patent, Vanzieleghem
` also discloses normal operation of a DSL line,
` including the formation of super frames by way of
` background.
` With reference to Slide 10, Vanzieleghem
` discloses that a pilot tone allows frequency
` synchronization requirements to be met while in a
` low power mode. It further discloses that a count
` of the number of symbols transmitted is maintained
` and a synchronization symbol is transmitted after
` each group of N symbols. Vanzieleghem further
` discloses that sending synchronization symbols
` periodically allows framing synchronization to be
` maintained while in low power mode. And it's
` noted, during low power mode, symbols, such as the
` synchronization symbol, may be derived from the
` pilot tone.
` The third reference involving Ground 1 is
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` the 1995 ADSL Standard. And the 1995 ADSL Standard
` presents the electrical characteristics of ADSL
` signals. The Standard provides four
` synchronization of transceivers. And the Standard
` also defines the initialization sequences for
` determining bit and gain parameters. And again,
` like the '404 patent and Vanzieleghem, the ADSL
` Standard discloses the super frame format, which
` includes the synchronization frame and symbol,
` which is discussed in both the '404 patent and
` Vanzieleghem.
` Moving to Slide 12, we've illustrated
` illustrative Claim 6 of the '404 patent. And in
` the institution decision, the Board determined that
` Claim 6 was representative of all of the claims in
` the patent that are at issue. Neither party raised
` a dispute over that or made any independent
` argument with respect to any of the other claims or
` the dependent claims. So for reference, we'll be
` referring to Claim 6. In Claim 6, we've
` highlighted on Slide 12 the terms that we'll be
` discussing further as the presentation progresses.
` Moving to Slide 13, the first element we
` want to discuss is storing in a low power mode at
` least one parameter associated with the full power
` mode operation, wherein at least one parameter
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` comprises at least one of a fine gain parameter and
` a bit allocation parameter.
` And moving to Slide 14, starting out with
` the first clause of this element, it's a parameter
` associated with the full power mode operation. And
` the patent owner proposed for the first time that
` this term be construed in the patent owner's
` response. And the patent owner proposes a
` construction that attempts to narrow the term
` "parameter" associated with the full power mode
` operation by adding the word "transmission" to
` limit the types of parameters that are stored in
` this mode that are associated with the full power
` mode operation.
` Petitioner doesn't agree with that proposed
` claim construction. As stated in the petition, we
` believe that the plain and ordinary meaning of that
` term would apply, which would be any parameter
` associated with the full power mode operation. And
` the '404 patent also discloses parameters
` associated with full power mode operation, such as
` signal-to-noise ratio of a sub channel as types of
` parameters that can be stored. So we think it
` would be inappropriate to limit the opening clause
` of this disputed claim element to a transmission
` parameter. But really that's --
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` JUDGE CLEMENTS: Mr. Gresham, I have a
` question about that.
` MR. GRESHAM: Yes, Judge Clements?
` JUDGE CLEMENTS: Patent owner does argue in
` 24 to 25 that this term should not include -- well,
` they say it should be limited to transmission
` parameters, but their construction actually just
` substitutes the words “transmission and/or reception
` of data during normal operation” for the recited
` full power mode operation. And just to be totally transparent, I don't see a
`great big difference
` between transmission and reception of data during
` normal operation and the recited full power mode
` operation. So is there anything about their
` proposed claim construction itself that's
` objectionable to petitioner, or is it just the
` notion that it wouldn't include -- that it
` shouldn't include transmission
` characteristics -- or it's limited to transmission
` characteristics?
` MR. GRESHAM: I think that is the issue
` that we're really concerned about. To the
` extent -- you're understanding of what their
` construction is attempting to do is correct, that
` they're just saying that full power mode operation
` is the transmission and reception of data. That's
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` not objectionable in itself.
` But with regard to the arguments that
` they're making in terms of saying that the loop
` transmission characteristics that are claimed in
` Bowie would not meet this limitation, we think it's
` an obvious attempt to narrow the limitation to such
` an extent that it would not be met by Bowie. And
` Bowie clearly discloses, as we'll get to, storing
` parameters associated with a full power mode
` operation.
` JUDGE CLEMENTS: And I guess that -- and so
` that brings me to my next question. Even assuming
` we adopt patent owner's construction here, would
` Bowie's loop characteristics teach parameters
` associated with the transmission and/or reception
` of data during normal operation, as patent owner
` would have us construe that term?
` MR. GRESHAM: Yes. We believe it would.
` Because as set forth in the McNally declaration,
` even the loop characteristics themselves -- they're
` used to derive all of the parameters. They're the
` starting point in the initialization sequence
` that's used to derive the other parameters, which
` we'll get to, including the bit rate and the fine
` gain parameters that are claimed in this element.
` And to further answer your question, I think the
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` element itself further narrows itself in the next
` clause where it says, wherein the -- one of the
` parameters has to include either bit rate or fine
` gain. So we don't really think it's necessary to
` adopt any sort of narrowing construction for this
` term, other than what the words say themselves,
` because the remainder of the claim has to be
` addressed. And if we can't show that fine gain and
` bit rate are obvious, then the claim would survive.
` JUDGE CLEMENTS: Okay. Thank you.
` MR. GRESHAM: And that's sort of the last
` point we were getting to with reference to Slide
` 14. Since the last clause of the claim element
` limits -- further limits the claim element to at
` least one of a fine gain parameter and a bit
` allocation parameter, it's really unnecessary for
` the Board to go through the exercise of determining
` the proper construction of anything other than
` ordinary meaning of the -- at least one parameter
` associated with full power mode operation.
` So moving to Slide 15, again, storing in a
` low power mode at least one parameter. And I
` think, Judge Clements, this will speak a little bit
` to our objection to petitioner's construction.
` Because in the petition, we clearly show that Bowie
` claims circuitry acting to store loop
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` characteristic parameters in a low power state.
` And the petition also talks about -- and if you'll
` recall Slide Number 7 where we looked at the
` flowchart. On the flowchart of Slide Number 7,
` Step 310 of Figure 3 of Bowie discloses storing
` parameters when entering the low power mode. So
` what's -- when Bowie receives a signal to enter the
` low power mode, it's obvious from the figure that
` it was operating in the full power mode of
` operation. It gets the signal to enter the low
` power mode. Prior to getting the shutdown signal,
` it stores the parameters before shutting down. So,
` therefore, those parameters that Bowie shows
` storing in the figure are necessarily associated
` with full power mode operation. So we believe that
` this element is clearly met.
` Now, patent owner admits in its response at
` Page 13, Note 1, that Bowie tends to use the terms
` not always clearly, that they use the terms loop
` characteristics, electronic characteristics of the particular wire loop, loop
`transmission
` characteristics, and loop characteristic parameters
` essentially to mean the same types of parameters.
` And so in the figure they talk about storing
` parameters. And all of those parameters are
` obviously associated with the full power mode of
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` operation because Bowie doesn't do anything in the
` low power mode. It doesn't transmit. It doesn't
` receive anything. The only thing it can receive is
` the resume signal. So, therefore, any parameters
` it stored when entering the mode had to be
` associated with the full power mode of operation.
` And moving to Slide 16, this is more of the
` crux of the element of this particular element
` that's at issue, and that's whether Bowie in
` combination with the ADSL Standard renders obvious
` storing a fine gain parameter and a bit allocation
` parameter. Now, as noted in the petition, the ADSL
` Standard presents the electrical characteristics of
` ADSL signals, and defines the initialization
` sequences for determining bit and gain parameters.
` And the petition also shows that the 1995 ADSL
` Standard's initialization process specifically
` mentions that the determination of optimum
` subcarrier gains and bit allocations is the goal of
` the initialization sequence, that both the '404
` patent and Bowie propose to minimize by using
` stored parameters to enable a rapid restart when
` exiting the low power mode.
` Now, with regard to Slide 17, in the
` petition at 5 Bowie specifically discloses storing
` loop characteristics determined during
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` initialization for a rapid recover upon a return to
` normal operation. Bowie expressly discloses that
` if loop transmission characteristics had been
` stored, these parameters are retrieved from memory
` and used to enable data transmission to resume
` quickly by reducing the time needed to determine
` loop transmission characteristics.
` So with regard to Slide 18, continuing with
` the disputed element of a fine gain parameter and a
` bit allocation parameter, Mr. McNally's expert
` report describes how Bowie's claims of storing loop
` characteristic parameters must obviously include at
` least one of the bit allocation or a fine gain
` parameter. As explained in the petition and in the
` expert declaration, the standard identifies fine
` gain and bit allocation parameters as part of the
` loop characterization parameters in ADSL.
` Therefore, the limitation of storing at least one
` parameter, comprising at least one of a fine gain
` parameter and a bit allocation parameter, is
` obvious over Bowie and the 1995 ADSL Standard.
` Now, the obviousness of Bowie's -- yes?
` JUDGE CLEMENTS: Yeah. Mr. Gresham, I have
` a question.
` MR. GRESHAM: Yes?
` JUDGE CLEMENTS: Since we're at a pause here, I
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` just want to make sure I understand petitioner's
` argument. So Bowie is discussing storing some
` characteristics in full power mode when it goes
` into the low power mode. And Paragraph 74 of the
` McNally declaration seems to say that the ADSL
` Standard identifies these fine gain and bit
` allocation parameters as loop characterization
` parameters and things that are determined during
` initialization. And so is the argument that Bowie
` must be storing all of the parameters established
` or determined during initialization in order to
` achieve the rapid resume capability that it
` teaches, and that these two parameters are
` determined during initialization and, therefore,
` they're stored?
` MR. GRESHAM: Bowie could very well be
` storing those parameters. But Bowie doesn't
` specifically talk about those parameters. So what
` is being argued in the petition and in Mr.
` McNally's declaration is that a person of ordinary
` skill in the art reading Bowie who's familiar with
` the standard would know that these parameters are
` important to -- they are the parameters that are
` determined in the initialization process. And then
` in order to avoid having to complete the
` initialization process, it would be obvious for
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` one, if Bowie doesn't actually disclose it, to
` store these parameters as part of the parameters
` that Bowie clearly discloses in storing.
` JUDGE CLEMENTS: Is there any evidence in the record about
`whether Bowie could achieve its
` rapid resume without storing these parameters?
` MR. GRESHAM: Well, I think -- in the
` record I think some of the argument that you'll
` hear from the patent owner talks about the
` initialization process. And I think Mr. McNally
` actually testified about that in the -- in his
` deposition. So I believe that you could store some
` parameters and it would get you a jumpstart on
` reinitializing and cut out some of the steps of
` reinitializing so it would make the restart
` quicker. But if you store the bit and gain
` parameters, it would make it even quicker than
` that. And a person of ordinary skill in the art
` would understand, in view of the initialization
` sequence in ADSL, that those are the parameters
` that are determined. Once you have the loop
` characteristics, you've got signal-to-noise.
` You've got various parameters that lead to the
` determination of the fine gain and bit allocation
` parameters. So once you get to those, you're at
` the end of the process. And those would be the
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` most valuable parameters to store in order to speed
` up the ability to restart quickly.
` JUDGE CLEMENTS: Okay. Thank you. And is
` the best McNally testimony on that argument
` Paragraphs 74 and 75 here?
` MR. GRESHAM: Yes. I believe it is, yes.
` JUDGE CLEMENTS: Okay. Thank you.
` MR. GRESHAM: Now, still with regard to the
` statements on Page 18, I think the obviousness of
` Bowie's storage of the bit allocation and fine gain
` parameters is actually confirmed by the patent
` owners's argument.
` Now, in the patent owner's response at
` Pages 16 and 32 to 33, the patent owner admits that
` under the 1995 ADSL Standard, initialization
` includes determining parameters based on loop
` characteristics, including bit allocation and fine
` gain parameters. And further in its response at
` 33, the patent owner contends that communication
` protocol specific transmission parameters, like
` fine gain parameters and bit allocation parameters,
` are -- and this is different than loop
` characteristics -- and are determined from loop
` characteristics in a separate step of the
` initialization process. And again, that's a quote
` from patent owner's response at 33.
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` But at Page 12 of its response, the patent
` owner admits that "Bowie further teaches that upon
` entering the low power mode, the ADSL units may
` store in memory characteristics of the loop that
` were determined by handshaking." Now, although
` Bowie uses the term handshaking at Page 13 of its
` response, the patent owner states its understanding
` that Bowie's handshaking is referring to
` initialization. And the quote from Page 13
` says -- in quoting Bowie, it says, "the initial
` handshaking, (i.e., re-initialization)." And
` that's part of the quote. So Bowie is using the
` term handshaking to refer to initialization. Bowie
` states that it can store parameters that were
` determined by handshaking. And that means Bowie
` can store parameters that are determined during
` initialization. And I think that's perfectly
` consistent with Mr. McNally's testimony that will
` be obvious for Bowie to store those parameters.
` JUDGE CLEMENTS: Counsel, the way I
` understand patent owner's argument, though, is that
` even assuming Bowie teaches storing some parameters
` determined during handshaking, it's not necessarily
` storing all. And indeed it discloses that some
` additional handshaking may occur. And if that
` additional handshaking –occurs, patent owner
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` contends that these parameters would be
` redetermined.
` And so, you know, I guess I'm back to my
` earlier question. Because in the petition on Page
` 40 for this limitation, it says Mr. McNally's
` report describes how storing loop characteristics
` must obviously include at least one of the two
` parameters in this limitation. That almost sounds
` more like an inherency argument to me rather than
` the obviousness argument you just made. So I just
` want to be clear. Are we saying that Bowie is
` storing these things, storing everything determined
` during handshaking, which must obviously include
` the two sets of parameters, or one of the two sets of parameters, or are we
`saying that Bowie doesn't
` necessarily teach those things, but it would have
` been obvious to do that?
` MR. GRESHAM: I think it's the latter.
` Bowie does not specifically mention all the
` parameters. It doesn't drill down deep into the
` handshaking as to what parameters are actually
` stored. It claims storing loop characteristics.
` It shows in its flowchart that parameters are
` stored when the full power mode is exited. In view
` of Mr. McNally's testimony, a person of the
` ordinary skill in the art familiar with the 1995
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` Standard would understand, if not specifically
` disclosed in Bowie, that it would be obvious to
` choose those characteristics to be stored as part
` of Bowie's system.
` Does that clarify your question.
` JUDGE CLEMENTS: It does. Yeah. Thank
` you.
` MR. GRESHAM: So the next disputed claim
` element -- and I think this will get back to
` dealing with some of the questions that you've had,
` Judge Clements -- is exiting from the low power
` mode and restoring the full power mode without
` needing to reinitialize the transceiver.
` Now, with regard to Slide 20, the low power
` mode disclosed and claimed in Bowie, as we've said,
` includes storing loop characteristics determined
` during initialization for rapid recovery upon a
` return to normal operation. And Bowie provides
` several examples of power-up sequences that include
` restoring the loop parameters. And the figure that
` we've alluded to previously also says that the
` stored parameters are used to restart the system.
` And with regard to Slide 21, the Standard
` discloses that determining the parameters to
` account for loop characteristics is a principal
` objective/goal of the ADSL initialization process.
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