Trials@uspto.gov
`571-272-7822
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` Paper 40
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` Entered: October 26, 2017
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`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 IPR2016-010061
`Patent 7,835,430 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`1 DISH Network, L.L.C., who filed a Petition in IPR2017-00251, and
`Comcast Cable Communications, L.L.C., Cox Communications, Inc., Time
`Warner Cable Enterprises L.L.C., Verizon Services Corp., and ARRIS
`Group, Inc., who filed a Petition in IPR2017-00420, have been joined in this
`proceeding.
`
`
`571-272-7822
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` Paper 40
`
`
`
` Entered: October 26, 2017
`
`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 IPR2016-010061
`Patent 7,835,430 B2
`____________
`
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`
`
`1 DISH Network, L.L.C., who filed a Petition in IPR2017-00251, and
`Comcast Cable Communications, L.L.C., Cox Communications, Inc., Time
`Warner Cable Enterprises L.L.C., Verizon Services Corp., and ARRIS
`Group, Inc., who filed a Petition in IPR2017-00420, have been joined in this
`proceeding.
`
`
`
`IPR2016-01006
`Patent 7,835,430 B2
`
`
`I.
`INTRODUCTION
`In this inter partes review, instituted pursuant to 35 U.S.C. § 314,
`Cisco Systems, Inc. (“Petitioner”) challenges claims 1–6 (“the challenged
`claims”) of U.S. Patent No. 7,835,430 B2 (Ex. 1001, “the ’430 patent”),
`owned by TQ Delta, LLC (“Patent Owner”). We have jurisdiction under
`35 U.S.C. § 6. This Final Written Decision is entered pursuant to 35 U.S.C.
`§ 318(a) and 37 C.F.R. § 42.73. For the reasons discussed below, Petitioner
`has shown by a preponderance of the evidence that the challenged claims are
`unpatentable. Patent Owner’s Motion to Exclude is dismissed.
`
`A. Procedural History
`Petitioner filed a Petition for inter partes review of claims 1‒6 of the
`’430 patent. Paper 2 (“Pet.”). Patent Owner filed a Preliminary Response.
`Paper 6 (“Prelim. Resp.”). On November 4, 2016, we instituted an inter
`partes review of claims 1–6 of the ’430 patent on the ground that claims 1–6
`would have been obvious under 35 U.S.C. § 103(a)2 over Milbrandt,3
`Chang,4 Hwang,5 and ANSI T1.413.6 Paper 7 (“Dec.”).
`
`
`2 The Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284
`(2011) (“AIA”), amended 35 U.S.C. §§ 102 and 103. Because the
`’430 patent has an effective filing date before the effective date of the
`applicable AIA amendments, we refer to the pre-AIA versions of 35 U.S.C.
`§§ 102 and 103.
`3 U.S. Patent No. 6,636,603 B1; issued Oct. 21, 2003 (Ex. 1011)
`(“Milbrandt”).
`4 U.S. Patent No. 6,891,803 B1; issued May 10, 2005 (Ex. 1012) (“Chang”).
`5 U.S. Patent No. 6,590,893 B1; issued July 8, 2003 (Ex. 1013) (“Hwang”).
`6 “Network and Customer Installation Interfaces – Asymmetric Digital
`Subscriber Line (ADSL) Metallic Interface,” American National Standards
`Institution (ANSI) T1.413-1995 Standard (Ex. 1014) (“ANSI T1.413”).
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`Thereafter, Patent Owner filed a Patent Owner Response (“PO
`Resp.”). Paper 14.7 Petitioner filed a Reply to the Patent Owner Response
`(“Pet. Reply”). Paper 17. Pursuant to an Order (Paper 21), Patent Owner
`filed a listing of alleged statements and evidence in connection with
`Petitioner’s Reply that Patent Owner considered to be beyond the proper
`scope of a reply. Paper 22. Petitioner filed a response to Patent Owner’s
`listing. Paper 26.
`Patent Owner filed a Motion to Exclude, Paper 30 (“PO Mot. Exc.”),
`Petitioner filed an Opposition, Paper 34 (“Pet. Opp. Mot. Exc.”), and Patent
`Owner filed a Reply, Paper 37. Patent Owner filed a Motion for
`Observation, Paper 32 (“PO Mot. Obs.”) and Petitioner filed a Response to
`the Motion for Observation, Paper 35 (“Pet. Resp.”).
`A consolidated oral hearing for this case and related Cases IPR2016-
`01007, IPR2016-01008, and IPR2016-01009, was held on August 3, 2017.
`A transcript of the hearing has been entered into the record. Paper 39
`(“Tr.”).
`
`B. Related Proceedings
`Petitioner indicates that the ’430 patent is the subject of several
`
`pending judicial matters. Pet. 1‒2. In addition, a different Petitioner filed a
`petition for inter partes review of the ’430 patent, but we did not institute
`trial. See Arris Group, Inc. v. TQ Delta, LLC, Case IPR2016-00428 (PTAB
`June 22, 2016) (Paper 8).
`
`
`7 Although the title page of the brief is styled “Patent Owner’s Response
`Under 37 CFR § 42.120,” the header of each subsequent page is styled
`“Patent Owner’s Preliminary Response.” We understand the subsequent
`header to contain a typographical error.
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`C. The ʼ430 Patent (Ex. 1001)
`The ’430 patent discloses systems and methods for reliably
`
`exchanging diagnostic and test information between transceivers over a
`digital subscriber line in the presence of disturbances. Ex. 1001, 1:44‒47.
`The systems and methods include the use of a diagnostic link mode in the
`communication of diagnostic information from a remote terminal (RT)
`transceiver or modem to the central office (CO) transceiver or modem,
`where either modem transmits a message to the other modem to enter
`diagnostic link mode. Id. at 2:44‒48, 3:19‒29. Each modem includes a
`transmitter section for transmitting data and a receiver section for receiving
`data, and is of the discrete multitone (DMT) type (the modem transmits data
`over a multiplicity of subchannels of limited bandwidth). Id. at 1:58‒62. In
`diagnostic mode, the RT modem sends diagnostic and test information as
`bits that are modulated to the CO modem. Id. at 3:32‒34. One described
`modulation technique includes Differential Phase Shift Keying (DPSK) on a
`subset or all the carriers, as specified in ITU standard G.994.1, higher order
`Quadrature Amplitude Modulation (QAM) (>1 bit per carrier). Id. at 3:38‒
`41.
`Figure 1 illustrates the additional modem components associated with
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`the diagnostic link mode, and is reproduced below:
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`Figure 1 illustrates a diagnostic mode system, where CO modem 200 and RT
`modem 300 are connected via link 5 to splitter 10 for a phone switch 20, and
`a splitter for a phone 40. Id. at 4:48‒62. CO modem 200 includes CRC
`checker 210, diagnostic device 220, and diagnostic information monitoring
`device 230. Id. RT modem includes message determination device 310,
`power control device 320, diagnostic device 330, and diagnostic information
`storage device 340. Id.
`
`D. Illustrative Claim
`Claims 1‒6 are independent claims. Claim 1 is reproduced below.
`1. A transceiver capable of transmitting test information
`over a communication channel using multicarrier modulation
`comprising:
`a transmitter portion capable of transmitting a message,
`wherein the message comprises one or more data variables that
`represent the test information, wherein bits in the message are
`modulated onto DMT symbols using Quadrature Amplitude
`Modulation (QAM) with more than 1 bit per subchannel and
`wherein at least one data variable of the one or more data
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`variables comprises an array representing frequency domain
`received idle channel noise information.
`
`Ex. 1001, 8:33–44.
`
`II. ANALYSIS
`A. Principles of Law
`To prevail in its challenge to Patent Owner’s claims, Petitioner must
`demonstrate by a preponderance of the evidence that the claims are
`unpatentable. 35 U.S.C. § 316(e); 37 C.F.R. § 42.1(d). A claim is
`unpatentable under 35 U.S.C. § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time of the invention to a person
`having ordinary skill in the art. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
`406 (2007). The question of obviousness is resolved on the basis of
`underlying factual determinations including: (1) the scope and content of
`the prior art; (2) any differences between the claimed subject matter and the
`prior art; (3) the level of ordinary skill in the art; and (4) objective evidence
`of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966).
`In that regard, an obviousness analysis “need not seek out precise
`teachings directed to the specific subject matter of the challenged claim, for
`a court can take account of the inferences and creative steps that a person of
`ordinary skill in the art would employ.” KSR, 550 U.S. at 418; see also In re
`Translogic Tech., Inc., 504 F.3d 1249, 1259, 1262 (Fed. Cir. 2007).
`B. Level of Ordinary skill in the Art
`Citing its declarant, Dr. Sayfe Kiaei, Petitioner contends that a person
`having ordinary skill in the art at the time of the invention would have had
`(1) a Master’s degree in Electrical and/or Computer Engineering, or
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`equivalent training, and (2) approximately five years of experience working
`in digital telecommunications. Pet. 10–11; Ex. 1009 ¶ 36. Petitioner also
`contends that “[l]ack of work experience can be remedied by additional
`education, and vice versa.” Id. at 11.
`Patent Owner’s expert, Dr. Douglas Chrissan, opines that a person of
`ordinary skill in the art would have had (1) a bachelor’s degree in electrical
`engineering, and (2) at least three years of experience working with
`multicarrier communication systems. Ex. 2001 ¶ 34.
`We determine that no express finding on a specific corresponding
`level of technical education and experience is necessary. Here, the level of
`ordinary skill in the art is reflected by the prior art of record. See Okajima v.
`Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d
`1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`C. Claim Interpretation
`The Board interprets claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); Office Patent Trial Practice Guide,
`77 Fed. Reg. at 48,766. Under the broadest reasonable construction
`standard, claim terms are given their ordinary and customary meaning, as
`would be understood by one of ordinary skill in the art in the context of the
`entire disclosure. See Translogic, 504 F.3d at 1257.
`Petitioner proposes constructions for the following claim terms:
`“frequency domain received idle channel noise information,” “array,” and
`“transceiver.” Pet. 8–9. In our Decision to Institute, we interpreted these
`terms. Dec. 5–8. Neither party has indicated that our interpretations were
`improper and we do not perceive any reason or evidence that now compels
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`any deviation from our initial interpretations. See, PO Resp. 6 (“Patent
`Owner does not contest the Board’s express claim constructions.”); Pet.
`Reply 8 n.2. Accordingly, the following constructions apply to this
`Decision:
`
`Claim Term
`frequency domain received idle
`channel noise information
`
`array
`
`transceiver
`
`
`
`Construction
`information about the background
`noise present in each of a plurality
`of frequency subchannels when the
`subchannels are not in use
`an ordered collection of multiple
`data items of the same type
`a device, such as a modem, with a
`transmitter and receiver
`
`D. Asserted Obviousness over Milbrandt,
`Chang, Hwang, and ANSI T1.413
`Petitioner contends that claims 1‒6 are unpatentable under 35 U.S.C.
`§ 103(a) as obvious over Milbrandt, Chang, Hwang, and ANSI T1.413. Pet.
`24–49. We have reviewed Petitioner’s showing identifying where each
`limitation allegedly appears in Milbrandt, Chang, Hwang, and ANSI T1.413,
`along with the testimony of Petitioner’s declarant, Dr. Sayfe Kiaei. Id.
`(citing Ex. 1009). We also have reviewed Patent Owner’s assertions and
`evidence, including the testimony of Dr. Douglas Chrissan, as to why
`Petitioner’s showing is deficient. PO Resp.
`Milbrandt (Ex. 1011)
`Milbrandt describes a system for determining the transmit power of a
`communication device operating on digital subscriber lines. Ex. 1011, 1:20–
`23. A communication server, coupled to a first subscriber line and a second
`subscriber line, includes a communication device that communicates a signal
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`using the first subscriber line. Id. at 2:24–27. The system includes a
`memory coupled to the communication server that stores noise information
`and cross-channel-coupling information for the first subscriber line and the
`second subscriber line. A processor coupled to the memory determines the
`transmit power of the communication device based on the noise and cross-
`channel coupling information. Id. at 2:26–35. Figure 1 shows details of the
`system hardware and is reproduced below.
`
`
`Figure 1 of Milbrandt illustrates a block diagram of a communication
`system that provides telephone and data service to subscribers
`Communication system 10 includes system management server 18
`coupled to central offices 14, which are coupled to several subscribers’
`premises 12 using subscriber lines 16. Id. at 4:6‒9. Database 22 stores
`subscriber line information 28 and communication device information 29
`defining the physical and operating characteristics of the subscriber lines 16
`and communication devices 60. Id. at 4:9‒15. System management server
`18 determines the data rate capacity of selected subscriber lines 16 using
`subscriber line information 28 stored in database 22, and the optimal
`
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`transmit power for a communication device operating on a subscriber line
`16. Id. at 4:15‒21.
`Modem 42 extrapolates subscriber line information 28 to central
`office 14 over any achievable range of sub-frequencies using any suitable
`communication protocol. Id. at 11:45‒53. As one described embodiment,
`subscriber line 16 and components of subscriber 12 and central office 14
`support communication using ADSL techniques that comply with ANSI
`Standard T1.413, such as discrete multi tone (DMT) modulation. Id. at
`9:31‒34. Modem 42 of subscriber 12, receives a data signal that is
`communicated by modem 60 and determines subscriber line information 28,
`such as attenuation information, noise information, received signal power
`spectrum density, or other information describing the physical or operating
`characteristics of subscriber line 16 at the one or more sub-frequencies over
`which connection between modems 42 and 60 is established. Id. at 11:38‒
`45.
`
`Chang (Ex. 1012)
`Chang describes a telecommunications transmission test set for testing
`
`digital communications networks. Ex. 1012, 1:6–8. The test set is capable
`of performing line qualification testing including digital multimeter (DMM)
`tests, time domain reflection (TDR) test, and line impairment tests. The line
`impairment tests include insertion loss, signal-to-noise, background noise,
`and loop resistance. Id. at 2:56–61.
`Hwang (Ex. 1013)
`Hwang describes an adaptive transmission system used in a network.
`Ex. 1013, 1:6‒8. The system includes a computer network including
`network nodes capable of transmitting and receiving data over a channel
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`using a transmitter and receiver. Id. at 5:1‒8. The computer network
`utilizes discrete multi-tone (DMT) technology to transmit data over the
`channels. Id. at 5:12‒14. A DMT-based system utilizes 256 distinct
`carriers, or tones, where each tone is capable of transmitting up to 15 bits of
`data on the tone waveform. Id. at 5:22‒24. Within each carrier, data is
`encoded using quadrature amplitude modulation (QAM) signals. Id. at 3:1‒
`3. Hwang’s techniques provide effective high-speed data communications
`over twisted pair wiring between customer premises and corresponding
`network-side units, for example located at a central office of a telephone
`network. Id. at 3:15‒19.
`
`ANSI T1.413 (Ex. 1014)
`ANSI T1.413 is a standard specification presenting the electrical
`
`characteristics of the Asymmetric Digital Subscriber Line (ADSL) signals
`appearing at a network interface. Ex. 1014, Abstract. The standard provides
`the minimal set of requirements for satisfactory transmission between the
`network and the customer installation. Id. Among the features of ADSL is
`the encoding to data into discrete multitone (DMT) symbols. Id. at 23‒34.
`Within each DMT subchannel, an ADSL transmitter encodes a variable
`number of bits of data using a constellation encoder. Id. at 43‒45.
`Analysis
`Petitioner contends that claims 1‒6 would have been obvious over
`Milbrandt, Chang, Hwang, and ANSI T1.413. Pet. 24–49. Patent Owner’s
`arguments are directed to whether a person of ordinary skill in the art would
`have combined Milbrandt, Chang, Hwang, and ANSI T1.413. PO Resp. 6‒
`28. Patent Owner, however, does not dispute Petitioner’s contentions that
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`the individual elements of claims 1‒6 would be met by the combination of
`Milbrandt, Chang, Hwang, and ANSI T1.413. Id.8
` We begin our analysis by discussing how the prior art describes
`each element of each of the challenged claims. Claim 1 recites a
`“transceiver capable of transmitting test information over a communication
`channel using multicarrier modulation.” Petitioner contends that Milbrandt
`describes a modem 42 that “comprises any suitable communication device
`that transmits and receives data.” Pet. 24 (citing Ex. 1011, 4:64‒65). We
`are persuaded by Petitioner’s showing and find that Milbrandt’s modem 42
`is a transceiver.
`Petitioner further contends that modem 42 measures received signal
`power spectrum density per sub-frequency Sf, noise information per sub-
`frequency, attenuation information per sub-frequency Hf, and communicates
`this information and other subscriber line information 28 to modem 60 using
`data line 40, which is part of subscriber line 16. Id. at 24‒25; Ex. 1011,
`5:39‒40, 11:20‒53, 12:65‒13:16. Petitioner contends that the subscriber
`line information, including the measured values of the power spectrum
`density per sub-frequency Sf, noise information per sub-frequency, and
`attenuation information per sub-frequency Hf are test information as
`
`
`8 Although Patent Owner, in its concluding statement at the end of its brief,
`asserts that Petitioner “failed to show that the asserted references, alone or in
`combination, disclose every element of the claims” (PO Resp. 29), nothing
`in Patent Owner’s Response resembles a substantive argument explaining
`why the claimed elements are not met by the prior art. Accordingly, we
`understand this conclusory argument to be a typographical error. See also,
`Pet. Reply 6; Tr. 28:23‒29:3, 42:2‒12.
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`claimed. Pet. 25; Ex. 1009, 46.9 We are persuaded by Petitioner’s showing
`and find that Milbrandt’s description of measured values of power spectrum
`density per sub-frequency Sf, noise information per sub-frequency, and
`attenuation information per sub-frequency Hf meets the claim element of test
`information transmitted over subscriber line 16 (“communication channel”).
`Petitioner directs attention to Milbrandt’s description of how modem
`42 employs communication techniques like discrete multi tone (DMT)
`modulation. Pet. 25; Ex. 1011, 9:31‒34. Petitioner also directs attention to
`Hwang’s description that a DMT signal is the sum of N independently
`quadrature amplitude modulated (QAM) signals, each carried over a distinct
`carrier frequency channel. Pet. 25; Ex. 1013, 2:67‒3:3. Petitioner argues,
`with supporting evidence, that a person having ordinary skill in the art would
`have understood that DMT modulation taught by Milbrandt and Hwang is an
`example of multicarrier communication that is used by modem 42 to
`transmit test information. Pet. 25‒26; Ex. 1009, 47‒49. We are persuaded
`by Petitioner’s showing and find that Milbrandt and Hwang describe using
`multicarrier modulation (DMT).
`Claim 1 recites “a transmitter portion capable of transmitting a
`message.” Petitioner contends that Milbrandt describes a modem 42 that
`transmits and receives data. Pet. 26; Ex. 1011, 4:64‒65. We find that a
`person having ordinary skill in the art would have understood Milbrandt’s
`modem 42 to contain a transmitter portion capable of transmitting a
`message. Ex. 1011, 4:64‒65. Claim 1 also recites “wherein the message
`
`
`9 In the Petition, Petitioner references page numbers of Dr. Kiaei’s
`declaration, as opposed to paragraph numbers. Citations are to page
`numbers, unless otherwise indicated by use of the paragraph symbol (“¶”).
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`comprises one or more data variables that represent the test information.”
`For this limitation, Petitioner contends that Milbrandt describes “subscriber
`line information 28,” that includes power spectrum density per sub-
`frequency, attenuation information per sub-frequency, and noise information
`per sub-frequency. Pet. 27 (citing Ex. 1011, 11:31‒43). Petitioner contends,
`with supporting evidence, and we agree, that it would have been obvious to a
`person having ordinary skill in the art that the values representing the test
`information are “one or more data variables.” Pet. 27‒28 (citing Ex. 1009,
`51‒53; Ex. 1011, 11:45‒53).
`Claim 1 recites “wherein bits in the message are modulated onto DMT
`symbols using Quadrature Amplitude Modulation (QAM) with more than 1
`bit per subchannel.” Petitioner contends that Milbrandt describes that
`modem 42 supports “communication using ADSL techniques that comply
`with . . . discrete multi tone (DMT) modulation.” Pet. 28 (citing Ex. 1011,
`9:31‒34). Petitioner further contends that Milbrandt explains that DMT
`technology divides a subscriber line into individual “sub-bands or channels,”
`and “uses a form of quadrature amplitude modulation (QAM) to transmit
`data in each channel simultaneously.” Pet. 28 (citing Ex. 1011, 10:60‒65).
`Petitioner concludes, with supporting evidence, that a person having
`ordinary skill in the art would have understood that Milbrandt’s modem 42
`transmits a message (including subscriber line information) whose bits are
`modulated onto DMT symbols using QAM. Pet. 28; Ex. 1009, 53‒54. As
`further support for the contention, Petitioner relies on Hwang for its
`description that a “DMT signal is basically the sum of N independently
`quadrature amplitude modulated (QAM) signals, each carried over a distinct
`carrier frequency channel.” Pet. 28 (citing Ex. 1013, 2:67‒3:3) (emphasis
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`omitted). Hwang further explains, as pointed out by Petitioner, that ANSI
`standard provides for a total number of 256 carriers or tones where each tone
`is QAM to carry up to 15 bits of data on each cycle of the tone waveform
`(symbol). Pet. 28 (citing Ex. 1013, 3:4‒12). Petitioner concludes, and we
`agree, that it would have been obvious to transmit Milbrandt’s message
`(including subscriber line information) by modulating bits in the message
`onto DMT symbols using QAM with more than 1 bit per subchannel, as
`taught by Hwang for the reasons provided and discussed in more detail
`below. Pet. 28; Ex. 1009, 55.
`Claim 1 further recites “wherein at least one data variable of the one
`or more data variables comprises an array representing frequency domain
`received idle channel noise information.” Petitioner contends Milbrandt
`describes that modem 42 determines noise information for a received signal
`at one or more sub-frequencies. Pet. 29 (citing Ex. 1011, 11:38‒45, 12:65‒
`13:16). Petitioner further contends that Milbrandt describes that noise
`information is stored in a grid as a function of frequency. Pet. 29‒30 (citing
`Ex. 1011, 23:51‒57, Fig. 3). Petitioner argues, and we agree, that a person
`having ordinary skill in the art would have recognized Milbrandt’s grid as an
`array as claimed. Pet. 30; Ex. 1009, 56‒57. Petitioner also contends, and
`we agree, that Milbrandt describes that determined noise information is
`transmitted by modem 42 to modem 60. Pet. 31 (citing Ex. 1011, 11:19‒24;
`Ex. 1009, 43‒53); see also Ex. 1011, 13:11‒15. Petitioner accounts for the
`differences between Milbrandt and the claimed invention. In particular,
`record evidence supports a finding that Milbrandt describes collecting noise
`information during operation. Ex. 1011, 12:58‒13:3; Ex. 1009 ¶ 90.
`Petitioner relies on Chang for its description of measuring background noise
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`on a communication line when no signals are being transmitted, e.g., “idle
`channel noise information.” Pet. 31; Ex. 1012, Figs. 1, 5, 12:59‒66, 13:7‒
`21.
`
`Petitioner contends, with supporting evidence, that a person having
`ordinary skill would have recognized that Chang measures frequency
`domain received idle channel noise information (background noise).10 Pet.
`31‒32; Ex. 1009, 60‒61. Petitioner concludes that it would have been
`obvious for Milbrandt to measure and evaluate background channel noise,
`for the purpose of assessing system interactions from different sources of
`noises and to address any problems. Pet. 32; Ex. 1009, 35‒37.
`Notwithstanding Patent Owner’s arguments with respect to the combined
`teachings of Milbrandt and Chang, which we address below, we are
`persuaded by Petitioner’s showing, and agree that it would have been
`obvious to combine Chang with the teachings of Milbrandt for the purpose
`of assessing interactions from other sources. The record evidence supports
`the conclusion of obviousness, because combining Chang’s teaching of
`assessing idle channel noise to Milbrandt’s system would have provided a
`person of ordinary skill in the art additional information, such as assessing
`interactions from other sources, enabling a person of ordinary skill in the art
`to have taken remedial measures to address system interactions. Pet. 16
`(citing Ex. 1009, 35‒36).
`Petitioner argues that while Milbrandt teaches that noise information
`is stored in a grid (array), Milbrandt does not explicitly describe that the
`information is transmitted as an array. Pet. 33. ANSI T1.413, Petitioner
`
`
`10 As set forth above, in the claim interpretation section, and uncontested by
`the parties, background noise is within the scope of “idle channel noise.”
`16
`
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`IPR2016-01006
`Patent 7,835,430 B2
`
`contends, describes transmitting data variables that have a value for a
`plurality of frequency sub-carriers. Pet. 33; Ex. 1009, 62‒63. Petitioner
`argues that a person having ordinary skill in the art would have recognized
`that a frequency sub-carrier in the ANSI T1.413 standard corresponds to
`Milbrandt’s sub-frequency, and that both of these terms correspond to the
`claimed “subchannel.” Pet. 33‒34; Ex. 1009, 62‒63. Petitioner concludes,
`and we agree, that it would have been obvious to a person having ordinary
`skill in the art to transmit Milbrandt’s power spectrum density and
`attenuation information using the same array data format taught by ANSI
`T1.413, which would have resulted in the benefit of allowing the receiving
`modem to receive and access the information on a per channel basis, without
`the need for additional processing or reordering of the received information.
`Pet. 34; Ex. 1009, 62‒63.
`Petitioner provides a reasonable rationale for combining Milbrandt,
`Chang, Hwang, and ANSI T1.413. Pet. 14‒24. In addition to the reasons
`for combining Chang with Milbrandt discussed above, Petitioner further
`contends that combining Hwang with the Milbrandt/Chang combination
`would have been obvious. Pet. 20‒22. Petitioner explains that Hwang
`provides additional details about ADSL services, beyond those expressly
`disclosed in Milbrandt, by explaining that multitoned (DMT) symbols are
`modulated using QAM. Pet. 20. Petitioner contends, and we agree, that a
`person having ordinary skill in the art would have found it obvious to
`combine the teachings of Milbrandt and Hwang, because Hwang provides
`additional details of ADSL communication technology, such as using up to
`15 bits for each subchannel for the purpose of transmitting more data on
`each subchannel. More data per subchannel, Petitioner contends and we
`
`
`
`17
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`IPR2016-01006
`Patent 7,835,430 B2
`
`agree, would have been recognized by a person having ordinary skill in the
`art as resulting in a more efficient system that has higher throughput. Pet.
`20‒21; Ex. 1009, 39.
`Lastly, Petitioner contends that it would been obvious to combine the
`teachings of Milbrandt, Chang, and Hwang with the teachings of ANSI
`T1.413, because each reference describes ADSL communications systems,
`and ANSI T1.413 defines the ADSL communication standard. Pet. 22;
`Ex. 1009, 40. Petitioner further contends, and we agree, that a person
`having ordinary skill in the art would have utilized the teachings of ANSI
`T1.413 in the combined communication system for the purpose of making
`the system compliant with the ANSI T1.413 standard. Pet. 27; Ex. 1009, 41.
`Independent claims 2‒6 are similar to claim 1. Petitioner has made a
`showing with respect to those claims similar to its showing with respect to
`claim 1. Pet. 34‒49. To the extent that claims 2‒6 differ from claim 1,
`Petitioner has accounted sufficiently for such differences. Notwithstanding
`Patent Owner’s arguments, which we have considered and which we address
`below, we are persuaded by Petitioner’s showing, which we adopt as our
`own findings and conclusions, that claims 1‒6 are unpatentable as obvious
`over Milbrandt, Hwang, Chang, and ANSI T1.413.
`Patent Owner’s Contentions
`Patent Owner argues that the combined teachings of the references, in
`particular Milbrandt and Chang, do not render obvious transmitting
`(receiving) a test message comprising “idle channel noise information.” PO
`Resp. 8. In particular, Patent Owner argues that (1) Milbrandt teaches away
`from using Chang’s circuitry for measuring background noise (id. at 9‒16);
`(2) Petitioner failed to establish a reasonable expectation of success in using
`
`
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`18
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`Patent 7,835,430 B2
`
`Chang’s concept of measuring background noise in some other manner (id.
`at 16‒19); (3) incorporating Chang’s background noise measurement would
`have improperly changed Milbrandt’s fundamental principle of operation
`(id. at 19‒22); and (4) adding any method of measuring background noise to
`Milbrandt would have been redundant and unnecessary (id. at 22‒26).
`Lastly, Patent Owner argues that Dr. Kiaei’s original declaration should be
`given no weight. Id. at 26‒28. We address each argument below.
`Teaching Away
`Patent Owner argues that Milbrandt teaches away from using Chang’s
`circuitry for measuring background noise. PO Resp. 9‒16 (citing “teaching
`away” case law regarding prior art teaching away from the claimed
`invention). Patent Owner argues that Petitioner only proposed combining
`Chang’s actual physical equipment, which would require a visit from a
`technician or “truck roll,”11 into Milbrandt’s system, but that Milbrandt
`describes that a truck roll is undesirable. PO Resp. 9‒11. We disagree.
`Although the Petition suggests combining Chang’s background noise test
`circuitry with Milbrandt, the Petition argues that “Petitioner’s combination
`permits, but does not require, physical incorporation of elements but rather
`that the combined teachings of the prior art as a whole would have rendered
`the claim[s] obvious.” Pet. 19; see also Ex. 1009 ¶ 98. Patent Owner’s view
`of Petitioner’s position is too myopic. Because Patent Owner’s entire
`teaching away argument is premised on the incorrect notion that Petitioner
`
`
`11 The parties use “truck roll” to mean a service technician visit. See, e.g.,
`PO Resp. 11 (citing Ex. 1011, 2:9‒15 “dispatch of a service technician to
`install communication equipment or to configure the telephone line at the
`customer premises”); Pet. Reply 6.
`
`
`
`19
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`Patent 7,835,430 B2
`
`proposes only physically incorporating the entirety of Chang’s testing
`arrangement, which would necessitate using a “truck roll” into Milbrandt,
`the argument nec
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