`571-272-7822
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`Paper No. 28
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` Entered: February 23, 2018
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CISCO SYSTEMS, INC.,
`Petitioner,
`
`v.
`
`CHANBOND LLC,
`Patent Owner.
`____________
`
`Case IPR2016-01744
`Patent 7,941,822 B2
`____________
`
`
`
`Before JONI Y. CHANG, JENNIFER S. BISK, and
`JACQUELINE T. HARLOW, Administrative Patent Judges.
`
`HARLOW, Administrative Patent Judge.
`
`
`FINAL WRITTEN DECISION
`Determining Claims 1, 2, 5, 6, 19, 20, 23, and 29
`Have Been Shown To Be Unpatentable
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
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`IPR2016-01744
`Patent 7,941,822 B2
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`I.
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`INTRODUCTION
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`Cisco Systems, Inc. (“Petitioner”), filed a Petition requesting an inter
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`partes review of claims 1, 2, 5, 6, 19, 20, 23, and 29 of U.S. Patent
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`No. 7,941,822 B2 (Ex. 1001, “the ’822 patent”). Paper 1 (“Pet.”).
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`ChanBond LLC (“Patent Owner”), filed a Preliminary Response. Paper 8
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`(“Prelim. Resp.”). We determined that the information presented in the
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`Petition demonstrated a reasonable likelihood that Petitioner would prevail
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`in challenging claims 1, 2, 5, 6, 19, 20, 23, and 29 as unpatentable under 35
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`U.S.C. § 103(a). Pursuant to 35 U.S.C. § 314, the Board instituted trial on
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`March 3, 2017, as to those claims of the ’822 patent. Paper 10 (“Institution
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`Decision” or “Inst. Dec.”).
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`Following our institution, Patent Owner filed a Response to the
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`Petition (Paper 13, “PO Resp.”) and Petitioner filed a Reply to the Patent
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`Owner Response (Paper 17, “Reply”).1 An oral hearing was held on
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`November 1, 2017. The transcript of the hearing has been entered into the
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`record. Paper 27 (“Tr.”).
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`We have jurisdiction under 35 U.S.C. § 6. This Final Written
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`Decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
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`Based on the record before us, we conclude that Petitioner has demonstrated
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`
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`1 Petitioner filed a Reply to Patent Owner’s Response to Petition on July 31,
`2017. Paper 15. That same day, Petitioner filed a Corrected Reply to Patent
`Owner’s Response to Petition. Paper 17. All references in this Decision to
`Petitioner’s Reply are to Paper 17.
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`2
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`IPR2016-01744
`Patent 7,941,822 B2
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`by a preponderance of the evidence that claims 1, 2, 5, 6, 19, 20, 23, and 29
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`of the ’822 patent are unpatentable.
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`A. Related Matters
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`The ’822 patent is asserted in several cases in the District of
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`Delaware. Pet. 3; Paper 5, 1–3. In addition, Petitioner challenged, and we
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`declined to institute inter partes review of, claims 13 and 14 of the
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`’822 patent in IPR2016-01746. IPR2016-01746, Paper 10.
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`Petitioner also challenged, and we declined to institute inter partes
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`review of, various claims of two patents related to the ’822 patent: U.S.
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`Patent No. 8,341,679 B2 (“the ’679 patent”) and U.S. Patent No. 8,984,565
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`B2 (“the ’565 patent”). Cisco Sys., Inc. v. ChanBond LLC, Case IPR2016-
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`01889, Paper 10 (PTAB Mar. 29, 2017); Cisco Sys., Inc. v. ChanBond LLC,
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`Case IPR2016-01890, Paper 10 (PTAB Mar. 29, 2017); Cisco Sys., Inc. v.
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`ChanBond LLC, Case IPR2016-01891, Paper 10 (PTAB Mar. 29, 2017);
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`Cisco Sys., Inc. v. ChanBond LLC, Case IPR2016-01898, Paper 10 (PTAB
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`Mar. 29, 2017); Cisco Sys., Inc. v. ChanBond LLC, Case IPR2016-01899,
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`Paper 10 (PTAB Mar. 29, 2017); Cisco Sys., Inc. v. ChanBond LLC, Case
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`IPR2016-01900, Paper 10 (PTAB Mar. 29, 2017).
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`Separately, RPX Corporation challenged the patentability of claims 1–
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`31 of the ’822 patent in IPR2016-00234. On May 25, 2017, we issued a
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`Final Written Decision in IPR2016-00234 determining that claims 1–31 of
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`the ’822 patent had not been shown to be unpatentable over references
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`3
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`IPR2016-01744
`Patent 7,941,822 B2
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`distinct from those at issue here. RPX Corp. v. ChanBond LLC, Case
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`IPR2016-00234, Paper 28 (PTAB May 25, 2017).
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`B. The ’822 Patent
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`The ’822 patent is titled “Intelligent Device System and Method for
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`Distribution of Digital Signals on a Wideband Signal Distribution System.”
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`Ex. 1001, at [54]. The ’822 patent is a division of U.S. Patent Application
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`No. 09/749,258, filed on December 27, 2000, and now issued as U.S. Patent
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`No. 7,346,918. Id. at [62].
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`The ’822 patent is directed to systems and methods for the
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`“distribution of digital signals onto, and off of, a wideband signal
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`distribution system.” Ex. 1001, 1:24–29. The ’822 patent aims to address
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`the difficulties created by adapting existing telephone and data networks to
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`accommodate the greater demands of transmitting television and video data.
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`Id. at 1:31–36. In particular, the ’822 patent explains that “digital TV/video
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`applications clog data networks, even with the use of available compression
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`techniques,” and “[a]nalog RF distribution may require special cables and
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`infrastructure.” Id. at 1:36–40. According to the ’822 patent, one solution to
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`this problem would be to transport digitized data on an analog carrier “in a
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`format that would allow for greater amounts of data to be carried at one
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`time, such as by modulated RF.” Id. at 2:15–16. The ’822 patent, therefore,
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`discloses a “network of intelligent devices” that “enables digital video, IP
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`voice/data/video, to be modulated and demodulated onto and off of” “a
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`wideband signal distribution system.” Id. at 2:30–34.
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`4
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`Patent 7,941,822 B2
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`The ’822 patent describes, as a preferred embodiment, an “intelligent
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`device” that receives an RF signal that has been modulated onto two or more
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`RF channels, and combines that information back into a single stream.
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`Ex. 1001, 10:55–11:31. Figure 5 of the ’822 patent, depicting this intelligent
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`device, is reproduced below.
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`Figure 5 of the ’822 patent illustrates the signal path from intelligent
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`device 502 to addressable devices 202. Id. at 10:55–11:31. As shown in
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`Figure 5, RF splitter 214 splits the signal entering intelligent device 502, and
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`sends information regarding the RF channels in use to RF system channel
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`detector 239. Id. at 10:55–60. In addition, the modulated RF signal is
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`differentiated into an IP portion and a non-IP portion, according to the
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`information frequency on the incoming carrier. Id. at 10:60–64. The non-IP
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`5
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`portion of the signal passes through bandpass filter 216 and is fed to a
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`standard RF television or computer outlet. Id. at 10:66–11:2. The IP portion
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`of the signal passes through bandpass filter 218, and is demodulated by
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`demodulator 220, which strips the RF carrier signal from the digital
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`baseband signal. Id. at 11:15–20. Subsequently, the digital signals are
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`combined by digital combiner 212, to achieve a parallel to serial conversion.
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`Id. at 11:20–25. This signal is routed to addressable device 202. Id. at
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`11:25–31.
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`C. Inter Partes Review Proceedings
`Involving Related Patents
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`As set forth above, the ’679 patent, which is a division of the
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`’822 patent (Ex. 2004, at [62]), and the ’565 patent, which is a continuation
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`of the ’679 patent (Ex. 2001, at [60]), were the subject of several
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`proceedings in which we declined to institute inter partes review. See, e.g.,
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`Cisco, IPR2016-01889, Paper 10 (declining to institute review of the
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`’565 patent).2
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`Central to our decision not to institute inter partes review in the
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`proceedings concerning the ’679 and ’565 patents was our interpretation of
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`the claim term “RF channel”––a term that does not appear in the challenged
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`claims of the ’822 patent. In those proceedings, we concluded that the
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`2 Because the Board reached substantially similar conclusions in each
`proceeding, for the sake of brevity citations will be provided to
`representative portions of IPR2016-01889 only.
`6
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`broadest reasonable interpretation of “RF channel” “does not include code
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`channels––for example, data streams created by [code division multiple
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`access (“CDMA”)]––but instead refers only to frequency bands, such as
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`those created by FDMA.” Cisco, IPR2016-01889, Paper 10, slip op. at 13–
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`14. In reaching this conclusion, we noted that the patents-at-issue “discuss[]
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`RF channels in terms of frequency bands.” Id. at 10. Furthermore, in
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`response to argument that CDMA channels are encompassed by the claims
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`because the specification “teaches that both analog and digital signals can be
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`sent using modulation carrier, such as in digital PCS and cellular telephone
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`and that the cellular CDMA defines two types of channels—CDMA and
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`code channels” (id. at 11 (internal quotation omitted)), we observed that
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`“Petitioner does not explain why this would be the case and does not cite to
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`any evidence” to support the conclusion that an ordinarily skilled artisan
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`would understand “RF channel” to include CDMA and code channels (id.).
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`D. Illustrative Claim
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`Of the challenged claims, claims 1 and 19 are independent. Claim 1,
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`reproduced below, is illustrative of the claimed subject matter.
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`An intelligent device for receiving and processing RF
`1.
`signals, comprising:
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`an input configured to receive a modulated RF signal
`containing multiple channels, and to receive channel in use
`information which identifies each channel in the modulated RF
`signal that includes information addressed to at least one
`addressable device;
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`a demodulator unit configured to demodulate at least two
`channels contained in the modulated RF signal when the channel
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`in use information identifies the at least two channels as
`containing information addressed to the at least one addressable
`device; and
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`a combiner configured to combine the at least two
`channels demodulated by the demodulator unit into a digital
`stream when the channel in use information identifies the at least
`two channels as containing information addressed to the at least
`one addressable device, and to output the digital stream to the at
`least one addressable device.
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`Ex. 1001, 12:22–40.
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`Claim 19 recites a similar device, but requires “a detector configured
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`to detect each channel contained in the received modulated RF signal that
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`includes information addressed to at least one addressable device, and to
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`generate channel in use information identifying each channel that includes
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`information addressed to the at least one addressable device” (id. at 15:5–
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`10), in lieu of “an input configured to . . . receive channel in use information
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`which identifies each channel in the modulated RF signal that includes
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`information addressed to at least one addressable device” (id. at 12:24–28),
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`as recited by claim 1.
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`E. Instituted Ground of Unpatentability
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`We instituted inter partes review in this proceeding based on the
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`following patentability challenge:
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`Claims
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`Basis
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`References
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`1, 2, 5, 6, 19, 20, 23, and 29
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`§ 103(a)
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`Tiedemann, Gilhousen, and
`Gorsuch
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`8
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`Petitioner relies on the Declaration of Anthony Wechselberger
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`(“Wechselberger Declaration,” Ex. 1002) to support its Petition and Reply.
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`Patent Owner relies on the Declaration of Scott M. Nettles, Ph.D.
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`(“Nettles Declaration,” Ex. 2002) to support its Response to the Petition.
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`II. ANALYSIS
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`A. Level of Skill in the Art
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`Petitioner contends that a person of ordinary skill in the art for the
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`’822 patent would have “been an engineer or physicist with at least a
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`bachelor’s degree, or equivalent experience, in electrical engineering, or a
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`related field.” Pet. 19 (citing Ex. 1002 ¶¶ 26–33). Petitioner further asserts
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`that such an artisan would have had “at least three years of industry
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`experience in the fields of analog and digital communications, inclusive of
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`exposure to telecommunications standards as applied in wired and wireless
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`broadband networks, or equivalent work experience.” Id. at 19–20 (citing
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`Ex. 1002 ¶¶ 26–33).
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`Patent Owner does not dispute Petitioner’s proposal, or otherwise
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`address the level of skill in the art at the time of invention of the ’822 patent
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`in its Response. See generally, PO Resp. Patent Owner’s expert,
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`Dr. Nettles, however, provides an opinion regarding the level of skill in the
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`field. Specifically, Dr. Nettles opines that an ordinarily skilled artisan at the
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`time of invention of the ’822 patent would have possessed an
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`“undergraduate or graduate degree in a field such as computer science,
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`electrical engineering, or equivalent (e.g., computer engineering).” Ex. 2002
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`¶ 17. Dr. Nettles further opines that such an artisan would also have had
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`“work experience (which, in some instances may have been achieved
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`through post-graduate degree-related activities) with the design of
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`networking or communication devices, including but not limited to cable
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`modems, routers, wireless network interfaces, satellite telephone handsets,
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`and the like.” Id. Dr. Nettles additionally states that “[s]uch an individual
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`would have studied and had some design experience with RF and digital
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`signal distribution systems (including receiver architectures, modems, and
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`signal processors).” Id. In evaluating the differences between his own and
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`Mr. Wechselberger’s assessments of the level of skill in the field, Dr. Nettles
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`testifies that his assessment “differs slightly from the standard offered by
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`Mr. Wechselberger, but in expressing my opinions in this declaration I have
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`considered these distinctions and determined that they do not alter my
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`conclusions.” Id.
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`The formulations offered by Mr. Wechselberger and Dr. Nettles do
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`not differ in any way that is material to this Decision. Based on our review
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`of the record, we adopt Petitioner’s definition of a person of ordinary skill in
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`the field at the time of invention of the ’822 patent, with the understanding
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`that the level of skill is also reflected in the prior art of record. See Okajima
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`v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001). In addition, we have
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`reviewed the credentials of Mr. Wechselberger (Ex. 1003) and Dr. Nettles
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`(Ex. 2002), and we consider each of them to be qualified to opine on the
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`level of skill and the knowledge of a person of ordinary skill in the art at the
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`time of the invention.
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`10
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`A. Claim Construction
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`In an inter partes review, claim terms in an unexpired patent are given
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`their broadest reasonable interpretation in light of the specification of the
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`patent in which they appear. 37 C.F.R. § 42.100(b). Under the broadest
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`reasonable interpretation standard, claim terms are given their ordinary and
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`customary meaning as would be understood by one of ordinary skill in the
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`art in the context of the entire disclosure. In re Translogic Tech., Inc.,
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`504 F.3d 1249, 1257 (Fed. Cir. 2007). “The correct inquiry in giving a
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`claim term its broadest reasonable interpretation in light of the specification
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`is . . . an interpretation that corresponds with what and how the inventor
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`describes his invention in the specification, i.e., an interpretation that is
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`consistent with the specification.” In re Smith Int’l, Inc., 871 F.3d 1375,
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`1382–83 (Fed. Cir. 2017) (internal quotation omitted).
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`“While we read claims in view of the specification, of which they are
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`a part, we do not read limitations from the embodiments in the specification
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`into the claims.” Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367,
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`1371 (Fed. Cir. 2014). A claim term is only given a special definition
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`different from the term’s plain and ordinary meaning if the “patentee . . .
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`clearly set[s] forth a definition of the disputed claim term other than its plain
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`and ordinary meaning.” Thorner v. Sony Comput. Entm’t. Am., LLC, 669
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`F.3d 1362, 1365 (Fed. Cir. 2012) (citations omitted). Under this standard,
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`we may take into account definitions or other explanations provided in the
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`written description of the specification. In re Morris, 127 F.3d 1048, 1054
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`(Fed. Cir. 1997). In this regard, we observe that [t]he specification acts as a
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`dictionary when it . . . defines terms by implication.” Bell Atl. Network
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`Servs., Inc. v. Covad Commc'ns Grp., Inc., 262 F.3d 1258, 1268 (Fed. Cir.
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`2001) (internal quotation omitted). However, any special definition for a
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`claim term must be set forth in the specification with reasonable clarity,
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`deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
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`1994).
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`“A patentee can also disavow claim scope, but the standard is
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`similarly exacting.” Akamai Techs., Inc. v. Limelight Networks, Inc., 805
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`F.3d 1368, 1375 (Fed. Cir. 2015). “[C]laims are not necessarily and not
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`usually limited in scope simply to the preferred embodiment.” RF Del. v.
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`Pac. Keystone Techs., Inc., 326 F.3d 1255, 1263 (Fed. Cir. 2003).
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`Only those terms that are in controversy need be construed, and only
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`to the extent necessary to resolve the controversy. See Nidec Motor Corp. v.
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`Zhongshan Broad Ocean Motor Co. Ltd., 868 F.3d 1013, 1017 (Fed. Cir.
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`2017); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed.
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`Cir. 1999).
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`1. “channel”
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`The term “channel” appears repeatedly throughout the challenged
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`claims of the ’822 patent. Independent claim 1, for example, recites: 1) “an
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`input configured to receive a modulated RF signal containing multiple
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`channels, and to receive channel in use information which identifies each
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`channel in the modulated RF signal . . . ;” 2) “a demodulator unit configured
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`to demodulate at least two channels contained in the modulated RF signal
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`when the channel in use information identifies the at least two channels as
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`containing information. . . ;” and 3) “a combiner configured to combine the
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`at least two channels demodulated by the demodulator unit into a digital
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`stream when the channel in use information identifies the at least two
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`channels as containing information . . . .” Ex. 1001, 12:22–40 (emphasis
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`added). In our Institution Decision, we construed “channel” to mean “a path
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`for transmitting electric signals.” Inst. Dec. 11.
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`Petitioner agrees with that construction (Pet. 16), and asserts that the
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`claims of the ’822 patent “refer to channels in the context of a modulated
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`RF signal containing multiple channels but do not mandate the specific size
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`or types of channels contained in the RF signal” (id.). Thus, according to
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`Petitioner, the term “channel,” as it is used in the ’822 patent, encompasses,
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`for example, the frequency band channels used in Frequency Division
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`Multiple Access (“FDMA”) systems, the code channels used in Code
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`Division Multiple Access (“CDMA”) systems, and the time slots used in
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`Time Division Multiple Access (“TDMA”) systems. Id. at 17.
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`Patent Owner responds that “channel” should instead be interpreted to
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`mean “frequency band.” PO Resp. 7. Patent Owner contends that both the
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`claims and the specification of the ’822 patent indicate that the recited
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`“‘channel’ is not any channel, but an ‘RF channel.’” Id. at 8 (citing
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`Ex. 2002 ¶ 33) (emphasis omitted). Specifically, Patent Owner points to the
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`recitation of “an input configured to receive a modulated RF signal
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`containing multiple channels” (Ex. 1001, 12:24–25, 15:3–4) in claims 1 and
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`19 of the ’822 patent as supporting its proffered construction, reasoning that
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`“[t]he channels contained within a ‘modulated RF signal’ are necessarily
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`13
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`‘RF channels.’” Prelim. Resp. 8 (citing Ex. 2002 ¶ 33) (emphasis omitted).
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`Patent Owner further contends that Petitioner’s expert, Mr. Wechselberger
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`agrees that the channels of the ’822 patent are RF channels. Id. (citing
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`Ex. 1002 ¶ 122).
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`Patent Owner additionally asserts that “channel” is used
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`interchangeably with “RF channel” and “frequency channel” throughout the
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`specification of the ’822 patent. PO Resp. 8–12. According to Patent
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`Owner, “[e]ach of the embodiments of the ’822 Patent’s invention discloses
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`‘channels’ that are ‘RF channels’ or ‘frequency channels,’ i.e., frequency
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`bands in a frequency division multiplexing scheme.” Id. at 11. Therefore,
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`reasons Patent Owner, “the specification consistently uses the term
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`‘RF channel”’ to denote a frequency band, but also uses the abbreviated
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`forms ‘frequency channel’ and ‘channel’ as a shorthand, as a person of
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`ordinary skill would readily understand.” Id. at 11–12.
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`Patent Owner also contends that our construction of the term
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`“RF channel” as “frequency band” in proceedings concerning the related
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`’679 and ’565 patents supports interpreting the purportedly “closely related”
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`term “channel” to have the same meaning in the instant proceedings. PO
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`Resp. 12. Patent Owner similarly argues that our findings in the “present
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`proceedings are consistent with a construction of both ‘channel’ and ‘RF
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`channel’ as frequency bands.” Id. at 13. Moreover, asserts Patent Owner,
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`we should identically construe “channel” and “RF channel” to “harmonize”
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`the intrinsic record for the patent family that includes the ’822, ’679, and
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`’565 patents. Id. at 18.
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`In reply, Petitioner asserts that Patent Owner’s proposal to restrict
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`“channel” to frequency channels contradicts the ordinary meaning of that
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`term. Reply 4. According to Petitioner, “‘channel’ is a basic, well-known
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`term in the art,” the ordinary meaning of which “encompasses various types
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`of channels––including CDMA channels.” Id. Petitioner further contends
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`that the applicants for the ’822 patent did not act as their own lexicographer
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`with regard to the term “channel,” and, thus, there is no basis for restricting
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`the meaning of “channel” to encompass only a particular type of channel.
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`Id. at 7. In this vein, Petitioner argues that “[t]he ’822 Patent contains no
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`express definitions for ‘channel,’ nor does it use ‘channel’ as shorthand for
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`‘RF channel.’” Id. To the contrary, asserts Petitioner, the applicants for the
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`’822 patent used different claim terms within the same patent family,
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`specifying that the recited channel is an “RF channel” in the ’679 and
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`’565 patents, and referring simply to a “channel” in the ’822 patent. Id. at
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`7–8. Petitioner additionally contends that the ’822 patent “uses ‘channel’ in
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`contexts with modifiers that are not frequency specific,” and encompass
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`other channel types. Id. at 8.
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`Petitioner likewise contends that the applicants for the ’822 patent did
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`not disavow CDMA channels from the scope of the term “channel.”
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`Reply 9. In this regard, Petitioner asserts that the ’822 patent is not limited
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`to a single embodiment, but suggests channel types in addition to frequency
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`bands. Id. at 11. Petitioner further asserts that the examples and
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`embodiments disclosed by the ’822 patent are non-limiting, and, therefore,
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`even if Patent Owner is correct that the embodiments described relate solely
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`to RF channels, the’822 patent does not disavow CDMA channels from
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`claim scope. Id. at 11–12.
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`On the record before us, we conclude that the broadest reasonable
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`interpretation of the term “channel” as used in the ’822 patent is “a path for
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`transmitting electric signals,” consistent with its plain and ordinary meaning.
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`As an initial matter, we determine that the ordinary meaning of
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`“channel” encompasses a variety of channel types, including CDMA. Patent
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`Owner does not expressly address the plain meaning of “channel” in its
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`Response (see PO Resp. 7–19); however, the testimony of Patent Owner’s
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`expert, Dr. Nettles, comports with our understanding of the ordinary
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`meaning of this term. For example, Dr. Nettles testifies that, in general,
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`“channel” is “a very broad term” that describes “something that you can use
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`for communication.” Ex. 1043, 32:17–24. Dr. Nettles further testifies that,
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`although “you could certainly add modifiers to the word ‘channel’ which
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`would cause you to start thinking about either modulation schemes or
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`multiple access techniques,” “‘channel’ itself doesn’t say anything about the
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`specific modulation scheme.” Ex. 1043, 33:10–22; see also id. at 31:22–
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`32:13, 34:10–18. As discussed in greater detail below, the specification of
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`the ’822 patent likewise reflects that the plain and ordinary meaning of
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`“channel” encompasses a variety of channel types, including CDMA. See,
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`e.g., Ex. 1001, 5:24–39 (describing analog and digital “transmission
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`channels” and observing that “both analog and digital signals can be sent
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`using modulation carriers, such as in digital PCS and cellular telephone”);
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`Ex. 1043, 33:6–9 (“Well, I mean, just to be clear, even -- even in the context
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`of the ’822 patent, the word ‘channel’ doesn’t have – doesn’t imply a
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`particular modulation scheme.”). Accordingly, based on the record before
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`us, we determine that the plain and ordinary meaning of “channel”
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`encompasses “a path for transmitting electric signals.”
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`The claims of the ’822 patent use “channel” in a manner consistent
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`with its plain and ordinary meaning, and are devoid of any basis for
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`restricting that term to exclude CDMA channel types. Indeed, by their plain
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`language, the challenged claims are indifferent to whether frequency
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`channels or CDMA channels are used. See, e.g., Ex. 1001, 12:22–40; see
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`also Pet. 10. For example, language directed to “frequency channel-specific
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`structure or functionality, such as ‘channel widths,’ ‘6 MHz channels,’ or
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`‘frequency bands’” does not appear in those claims. See, e.g., Ex. 1001,
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`12:22–40; see also Pet. 10.
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`We are unpersuaded by Patent Owner’s contention that the recitation
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`of “an input configured to receive a modulated RF signal containing multiple
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`channels” (Ex. 1001, 12:24–25, 15:3–4) in claims 1 and 19 of the
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`’822 patent supports a narrow interpretation of “channel” limited to
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`frequency bands (PO Resp. 8). Patent Owner reads this claim phrase as
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`necessarily requiring that the recited “channels” must be frequency bands
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`because they are channels within a “modulated RF signal.” PO Resp. 8.
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`Such reading is, at best, superficial. According to Patent Owner’s expert,
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`Dr. Nettles, the term “RF signal” refers generally to signals within the radio
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`frequency portion of the electromagnetic spectrum. Ex. 1043, 23:5–24:8.
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`As Dr. Nettles explains, “RF signal” encompasses signals used by many
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`systems, from AM and FM radio to 3G and 4G cell phones, and RF signals
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`can be used to transmit CDMA data. Ex. 1043, 22:15–25:21. Consistent
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`with Dr. Nettles’ understanding, the ’822 patent expressly identifies a
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`variety of technologies that utilize RF signals for data transmission, but
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`employ modulation schemes other than FDMA, and use channels other than
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`frequency bands––for example, cellular telephone systems. Ex. 1001, 5:35–
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`39.
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`Furthermore, Patent Owner’s characterization of Mr. Wechselberger’s
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`testimony as endorsing Patent Owner’s proposed interpretation of “channel”
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`(PO Resp. 8) relies on selectively truncated portions of that testimony. A
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`complete review of Mr. Wechselberger’s testimony reveals that he
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`unambiguously testifies that the claim phrase “a modulated RF signal
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`containing multiple channels” (Ex. 1001, 12:24–25, 15:3–4) does not require
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`a particular type of multiplexing to provide the channel in the RF signal:
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`The claims do not discuss any type multiplexing technique for
`providing a channel in the RF signal—instead only referring to
`“a modulated RF signal containing multiple channels.” In my
`opinion a POSITA would understand this usage in the claims to
`identify RF channels—that is channels in an RF signal—but not
`specify or require a particular type of multiplexing or modulation
`to provide the channel in the RF signal.
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`Ex. 1002 ¶ 122.
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`Accordingly, an ordinarily skilled artisan at the time of invention of
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`the ’822 patent would have understood that the “modulated RF signal”
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`recited in claims 1 and 19 refers not to one specific modulation scheme, such
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`as FDMA, but encompasses the set of modulation schemes known in the
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`communications art at that time. Such an ordinarily skilled artisan would
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`have additionally recognized that the “multiple channels” contained in that
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`“modulated RF signal” would have encompassed the set of channels used in
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`the various known RF modulation schemes, including, for example, CDMA
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`channels and code channels. See Ex. 1002 ¶ 122.
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`The specification and prosecution history of the ’822 patent likewise
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`support construing “channel” as “a path for transmitting electric signals.”
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`As an initial matter, Patent Owner does not identify (see PO Resp. 7–19),
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`and we do not discern any express definition of the term “channel” in the
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`specification of the ’822 patent. Cf. Ex. 1001, 7:6–9 (defining “wideband”).
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`In addition, we note that Patent Owner does not contend, and we do not
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`ascertain record support for the proposition that the applicants for the
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`’822 patent equated the terms “channel” and “RF channel” or “frequency
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`channel,” or otherwise narrowed the meaning of “channel” during
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`prosecution. Rather, Patent Owner argues that we should interpret
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`“channel” as being limited to a “frequency band” because the’822 patent
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`purportedly uses “channel” interchangeably with, or as shorthand for,
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`“RF channel” and “frequency channel” (PO Resp. 8). We do not find Patent
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`Owner’s position persuasive.
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`The ’822 patent consistently and explicitly identifies the particular
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`type of channel being discussed; it does not use “channel” interchangeably
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`with “RF channel” or “frequency channel.” In fact, the term “RF channel”
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`itself appears in the description of the preferred embodiments of the ’822
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`patent more than twenty times. See Ex. 1002 ¶ 122. Moreover, the portions
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`of the ’822 patent to which Patent Owner points as supporting its position
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`that “channel” and “RF channel” or “frequency channel” are used
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`interchangeably, instead reflect the ’822 patent’s consistent use of modifiers
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`to expressly identify the particular type of channel described.
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`For example, Patent Owner relies on select portions of the following
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`paragraph to support its contention that the ’822 patent uses the unadorned
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`word “channel” as shorthand for “RF channel” (PO Resp. 8–9):
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`The wideband signal distribution system 10 may allow for
`distribution of, for example, 29 channels, wherein each channel
`is 6 MHz in width, and it is known that such channels can handle
`analog video signals. However, where digital information can be
`transmitted over the RF channel, each 6 MHz channel can
`handle, depending on the modulation technique used, in excess
`of 40 megabits per second of digital information, and new
`modulation techniques may increase this information to, and in
`excess of, 100 megabits per second. This 40 megabits per second
`transmission allows for the transmission rate in excess of one
`gigabit/sec of digital information to be carried on the sum of the
`29 RF channels in the wideband signal distribution system 10.
`Using advanced modulation techniques will allow the wideband
`signal distribution system 10 to be expanded up to 60, or more,
`channels, thereby further increasing throughput data rate.
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`Ex. 1001, 6:50–65 (emphasis added). When considered in its entirety, as set
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`forth above, however, it is clear that this paragraph does not haphazardly
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`interchange the generic term “channel” and more particularized term
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`“RF channel.” Rather, the very first sentence of the above paragraph
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`expressly characterizes the channels described as being 6 MHz in width,
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`thus, making plain that the channels referred to are of a particular type,
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`namely, frequency bands. Because the statement “29 channels, wherein
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`each channel is 6 MHz in width” (id. at 6:51–52) expressly identifies the
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`channels in question as frequency band