`571-272-7822
`
` Paper No. 9
` 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 IPR2016-010201
`Patent 9,014,243 B2
`____________
`
`Before SALLY C. MEDLEY, TREVOR M. JEFFERSON, and
`MATTHEW R. CLEMENTS, Administrative Patent Judges.
`
`CLEMENTS, Administrative Patent Judge.
`
`FINAL WRITTEN DECISION
`Inter Partes Review
`35 U.S.C. § 318(a) and 37 C.F.R. § 42.73
`
`1 DISH Network, LLC, who filed IPR2017-00254, and Comcast Cable
`Communications, LLC, Cox Communications, Inc., Time Warner Cable
`Enterprises LLC, Verizon Services Corp., and ARRIS Group, Inc., who filed
`IPR2017-00418, have been joined in this proceeding. Paper 14; Paper 15.
`
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`IPR2016-01020
`Patent 9,014,243 B2
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`
`INTRODUCTION
`I.
`In this inter partes review, instituted pursuant to 35 U.S.C. § 314,
`Cisco Systems, Inc. (“Petitioner”) challenges claims 1–25 (“the challenged
`claims”) of U.S. Patent No. 9,014,243 B2 (Ex. 1001, “the ’243 patent”),
`owned by TQ Delta, LLC (“Patent Owner”). We have jurisdiction under
`35 U.S.C. § 6. This Final Written Decision is entered pursuant to 35 U.S.C.
`§ 318(a) and 37 C.F.R. § 42.73. For the reasons discussed below, Petitioner
`has shown by a preponderance of the evidence that the challenged claims are
`unpatentable. Patent Owner’s Motion to Exclude is dismissed.
`
`A. Procedural History
`Petitioner filed a Petition requesting an inter partes review of claims
`1–25 of the ’243 patent. Paper 2 (“Pet.”). Patent Owner filed a Preliminary
`Response. Paper 6. On November 4, 2016, we instituted inter partes review
`of claims 1–25 of the ’243 patent under 35 U.S.C. § 103(a)2 on the following
`grounds. Paper 7 (“Inst. Dec.”), 16.
`References
`Shively3 and Stopler4
`
`Claims
`1‒3, 7‒9, 13‒16, and 20‒22
`
`Shively, Stopler, and Gerszberg5
`
`4‒6, 10‒12, 17‒19, and 23‒25
`
`
`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 ’243
`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. 6,144,696; issued Nov. 7, 2000 (Ex. 1011, “Shively”).
`4 U.S. Patent No. 6,625,219 B1; issued Sept. 23, 2003 (Ex. 1012, “Stopler”).
`5 U.S. Patent No. 6,424,646 B1; issued July 23, 2002 (Ex. 1013,
`“Gerszberg”).
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`Thereafter, Patent Owner filed a Patent Owner Response (Paper 12,
`“PO Resp.”), to which Petitioner filed a Reply (Paper 17, “Reply”).
`Pursuant to an Order (Paper 21), Patent Owner filed a listing of alleged
`statements and evidence in connection with Petitioner’s Reply deemed to be
`beyond the proper scope of a reply. Paper 22. Petitioner filed a response to
`Patent Owner’s listing. Paper 29.
`Patent Owner filed a Motion to Exclude (Paper 28), Petitioner filed an
`Opposition (Paper 33), and Patent Owner filed a Reply (Paper 37). Patent
`Owner also filed a Motion for Observation (Paper 27) to which Petitioner
`filed a Response (Paper 34).
`We held a consolidated hearing on August 3, 2017, for this case and
`related Case IPR2016-01021, and a transcript of the hearing is included in
`the record. Paper 39 (“Tr.”).
`
`B. Related Proceedings
`The parties indicate that the ’243 patent is the subject of several
`district court cases. Pet. 1; Paper 5, 2–3; Paper 10.
`
`C. The ’243 patent (Ex. 1001)
`The ’243 patent discloses multicarrier communication systems that
`lower the peak-to-average power ratio (PAR) of transmitted signals.
`Ex. 1001, 1:26‒29. A value is associated with each carrier signal, and a
`phase shift is computed for each carrier signal based on the value associated
`with that carrier signal. Id. at 2:36‒40. The computed phase shift value is
`combined with the phase characteristic of that carrier signal to substantially
`scramble the phase characteristics of the carrier signals. Id. at 2:40‒43.
`Figure 1 illustrates the multicarrier communication system and is
`reproduced below:
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`Figure 1 illustrates the multicarrier communication system, digital subscriber
`line (DSL) communication system 2 includes discrete multitone (DMT)
`transceiver 10 communicating with remote transceiver 14 over
`communication channel 18 using transmission signal 38 having a plurality of
`carrier signals. Id. at 3:25‒29. DMT transceiver 10 includes DMT
`transmitter 22 and DMT receiver 26. Id. at 3:29‒30. Remote transceiver
`also includes transmitter 30 and receiver 34. Id. at 3:30‒32. DMT
`transmitter 22 transmits signals over communication channel 18 to receiver
`34. Id. at 3:38‒41.
`DMT transmitter 22 includes quadrature amplitude modulation
`(QAM) encoder 42, modulator 46, bit allocation table (BAT) 44, and phase
`scrambler 66. QAM encoder 42 has a single input for receiving serial data
`bit stream 54 and multiple parallel outputs to transmit QAM symbols 58
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`generated by QAM encoder 42 from bit stream 54. Modulator 46 provides
`DMT modulation functionality and transforms QAM symbols 58 into DMT
`symbols 70. Id. at 4:10‒13. Modulator 46 modulates each carrier signal
`with a different QAM symbol 58, and, therefore, this modulation results in
`carrier signals having phase and amplitude characteristics based on QAM
`symbol 58. Id. at 4:13‒16. Modulator 46 also includes phase scrambler 66
`that combines a phase shift computed for each QAM-modulated carrier
`signal with the phase characteristics of that carrier signal. Id. at 4:29‒32.
`
`D. Illustrative Claims
`Petitioner challenges claims 1‒25 of the ’243 patent. Pet. 8–52.
`Claims 1, 7, 13, and 20 are independent claims. Claims 2‒6 depend from
`independent claim 1, claims 8‒12 depend from independent claim 7, claims
`14‒19 depend directly or indirectly from independent claim 13, and claims
`21‒25 depend from independent claim 20. Claim 1 is illustrative of the
`claims at issue and is reproduced below:
`1. A method, in a multicarrier communications transceiver
`comprising a bit scrambler followed by a phase scrambler,
`comprising:
`scrambling, using the bit scrambler, a plurality of input
`bits to generate a plurality of scrambled output bits, wherein at
`least one scrambled output bit is different than a corresponding
`input bit;
`scrambling, using the phase scrambler, a plurality of
`carrier phases associated with the plurality of scrambled output
`bits;
`
`transmitting at least one scrambled output bit on a first
`carrier; and
`transmitting the at least one scrambled output bit on a
`second carrier.
`
`Ex. 1001, 10:58‒11:4.
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`II. ANALYSIS
`A. Claim Construction
`The Board interprets claims of an unexpired patent using the broadest
`reasonable construction in light of the specification of the patent in which
`they appear. See 37 C.F.R. § 42.100(b); see Cuozzo Speed Techs., LLC v.
`Lee, 136 S. Ct. 2131, 2142–46 (2016). Under the broadest reasonable
`construction standard, claim terms are given their ordinary and customary
`meaning, as would be understood by one of ordinary skill in the art in the
`context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249,
`1257 (Fed. Cir. 2007).
`
`1. “transceiver”
`In our Decision on Institution, we construed “transceiver” to mean “a
`device, such as a modem, with a transmitter and a receiver.” Inst. Dec. 6.
`Patent Owner contends that a construction is not necessary and cites a
`construction from a corresponding district court matter (Ex. 2007, 8), but
`does not argue we should adopt this construction. PO Resp. 13–14
`(“Petitioners’ arguments fail irrespective of which of the foregoing
`constructions for ‘transceiver’ is used.”). Petitioner contends we should
`maintain our construction. Reply 7–8. Based on the record developed
`during this proceeding, we continue to apply this construction.
`
`2. “scrambling . . . a plurality of carrier phases”
`Independent claim 1 recites “scrambling . . . a plurality of carrier
`phases.” Independent claim 7 similarly recites “scramble a plurality of
`carrier phases.” Independent claims 13 and 20 similarly recite “scramble[s]
`a plurality of phases.” Patent Owner argues that this language should be
`interpreted to mean “adjusting the phases of a plurality of carriers in a single
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`multicarrier symbol by pseudo-randomly varying amounts.” PO Resp. 14–
`19. Petitioner argues that the phrase does not need to be interpreted, since
`the prior art relied upon uses the same “phase scrambling” terminology to
`describe pseudo-random phase changes. Reply 7 (citing Ex. 1012, 12:24–
`31). Additionally, Petitioner argues, without any other explanation, that “the
`Board should not adopt TQ Delta’s proposed construction.” Id. During oral
`argument, however, counsel for Petitioner reiterated that it is Petitioner’s
`position that no construction of the term is necessary, because “[r]egarding
`patent owner’s proposal of the construction, we believe that is exactly how
`Stopler is describing his phase scrambler as operating.” Tr. 18:23–19:5.
`Patent Owner argues that “scramble[e/ing . . . a plurality of carrier
`phases” and “scramble[] a plurality of phases” should be construed to mean
`“adjusting the phases of a plurality of carriers in a single multicarrier symbol
`by pseudo-randomly varying amounts.” PO Resp. 14. Patent Owner
`contends that the construction is supported by the Specification of the ’243
`patent and clarifies that the claimed phase scrambling “must be performed
`amongst the individual carrier phases in a single multicarrier symbol” and is
`not met if the phase adjustment only occurs over time from one symbol to
`the next. PO Resp. 14 (citing Ex. 2003 ¶ 37).
`In support of its proposed interpretation, Patent Owner argues that the
`’243 patent describes that each of the plurality of carriers (of a multicarrier
`signal) corresponds to a different QAM symbol. PO Resp. 15 (citing Ex.
`1001, 4:13–14). Patent Owner further argues that each carrier (or QAM
`symbol) has its own phase or phase characteristic, and that the combination
`of the carriers (or QAM symbols) is referred to as a DMT symbol. PO Resp.
`16 (citing Ex. 1001, 4:7–9, 9:8–9; Ex. 2003 ¶ 39). Patent Owner further
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`contends that the ’243 patent describes that a “phase scrambler” scrambles
`phases or phase characteristics of carriers within a single DMT symbol, and
`that PAR in the transmission signal is reduced by adjusting the carrier
`phases within a single DMT symbol. PO Resp. 16 (citing Ex. 1001, 6:30–
`8:13; Ex. 2003 ¶ 39). PAR, Patent Owner contends, would not be reduced if
`carrier phases were only adjusted from one symbol to the next. PO Resp. 16
`(Ex. 2003 ¶¶ 41–42).
`Based on the record before us, we agree with Patent Owner’s
`proposed construction as far as meaning “adjusting the phases of a plurality
`of carriers in a single multicarrier symbol.” Patent Owner, however,
`provides no persuasive reasoning for also adding to that construction “by
`pseudo-randomly varying amounts.” Rather, Patent Owner merely contends
`that (1) in a corresponding district court matter, the court construed the
`phrase to mean “adjusting the phase characteristics of the carrier signals by
`pseudo-randomly varying amounts;” (2) during prosecution of the ’243
`patent, the applicant explained that a “scrambler” operates by pseudo-
`randomly selecting bits to invert; and (3) there was no fundamental
`disagreement between parties that scrambling involves adjusting the phase
`characteristic of a carrier signal by pseudo-randomly varying amounts. PO
`Resp. 16–17 (citing Ex. 2007, 10–11; Ex. 2008, 18). Patent Owner’s
`explanation for why we should add “by pseudo-randomly varying amounts”
`to its proposed construction is conclusory. We interpret claims using the
`broadest reasonable construction in light of the specification of the involved
`patent. That standard is not the same as the standard used in district court.
`Patent Owner, however, provides no explanation for why we should apply
`the district court construction, which is not necessarily the same as used
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`before us, here. Moreover, the statement made during prosecution is in the
`context of summarizing an interview, purports to be part of a definition from
`Wikipedia, and is preceded by an “e.g.” (Ex. 2008, 18). Patent Owner does
`not explain persuasively why this statement should be interpreted as
`disclaiming other possible forms of scrambling. In summary, Patent
`Owner’s arguments are conclusory.
`For all of the above reasons, and for purposes of this decision, we
`determine that “scrambling the phase characteristics of the carrier signals”
`means “adjusting the phases of a plurality of carriers in a single multicarrier
`symbol.”
`
`B. Level of Ordinary Skill in the Art
`Petitioner contends that a hypothetical person of ordinary skill in the
`art, with respect to and at the time of the’243 patent, would have, “(i) a
`Master’s degree in Electrical and/or Computer Engineering, or equivalent
`training, and (ii) approximately five years of experience working in
`multicarrier telecommunications,” and that a “[l]ack of work experience can
`be remedied by additional education, and vice versa.” Pet. 9–10. Patent
`Owner’s expert, Dr. Short, agrees. Ex. 2003 ¶ 16 (“For purposes of this
`declaration only, I have adopted Dr. Tellado’s definition of a person of
`ordinary skill in the art.”)
`We determine that the hypothetical person of ordinary skill in the art
`would have had either Master’s degree in Electrical and/or Computer
`Engineering, or equivalent training, and approximately five years of
`experience working in multicarrier telecommunications. We note also that
`the prior art itself often reflects an appropriate skill level. Okajima v.
`Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) (“[T]he level of skill in the
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`art is a prism or lens through which a judge, jury, or the Board views the
`prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star, Inc., 950
`F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the level of
`ordinary skill in the art lies in the necessity of maintaining objectivity in the
`obviousness inquiry.”).
`
`C. The Parties’ Post-Institution Arguments
`In our Decision on Institution, we concluded that the arguments and
`evidence advanced by Petitioner demonstrated a reasonable likelihood that
`claims 1‒3, 7‒9, 13‒16, and 20‒22 of the ’243 patent are unpatentable under
`35 U.S.C. § 103(a) over Shively and Stopler, and that claims 4‒6, 10‒12,
`17‒19, and 23‒25 of the ’243 patent are unpatentable under 35 U.S.C.
`§ 103(a) over Shively, Stopler, and Gerszberg. Inst. Dec. 16. We must now
`determine whether Petitioner has established by a preponderance of the
`evidence that the specified claims are unpatentable over the cited prior art.
`35 U.S.C. § 316(e). We previously instructed Patent Owner that “any
`arguments for patentability not raised in the [Patent Owner Response] will
`be deemed waived.” Paper 8, 6; see also 37 C.F.R. § 42.23(a) (“Any
`material fact not specifically denied may be considered admitted.”); In re
`Nuvasive, Inc., 842 F.3d 1376, 1379–1382 (Fed. Cir. 2016) (holding Patent
`Owner waived argument addressed in Preliminary Response by not raising
`argument in the Patent Owner Response). Additionally, the Board’s Trial
`Practice Guide states that the Patent Owner Response “should identify all the
`involved claims that are believed to be patentable and state the basis for that
`belief.” Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,766
`(Aug. 14, 2012).
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`With a complete record before us, we note that we have reviewed
`arguments and evidence advanced by Petitioner to support its unpatentability
`contentions where Patent Owner chose not to address certain limitations in
`its Patent Owner Response. In this regard, the record now contains
`persuasive, unrebutted arguments and evidence presented by Petitioner
`regarding the manner in which the asserted prior art teaches corresponding
`limitations of the claims against which that prior art is asserted. Based on
`the preponderance of the evidence before us, we conclude that the prior art
`identified by Petitioner teaches or suggests all uncontested limitations of the
`reviewed claims. The limitations that Patent Owner contests in the Patent
`Owner Response are addressed below.
`
`D. Obviousness of Claims 1–3, 7–9, 13–16,
`and 20–22 over Shively and Stopler
`Petitioner contends that claims 1–3, 7–9, 13–16, and 20–22 of the
`’243 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
`Shively and Stopler. Pet. 10–42.
`
`1. Principles of Law
`A claim is unpatentable under § 103(a) if the differences between the
`claimed subject matter and the prior art are such that the subject matter, as a
`whole, would have been obvious at the time the invention was made to a
`person having ordinary skill in the art to which said subject matter pertains.
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`obviousness is resolved on the basis of underlying factual determinations,
`including (1) the scope and content of the prior art; (2) any differences
`between the claimed subject matter and the prior art; (3) the level of skill in
`the art; and (4) when in evidence, objective indicia of non-obviousness
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`(i.e., secondary considerations). Graham v. John Deere Co., 383 U.S. 1, 17–
`18 (1966). We analyze this asserted ground based on obviousness with the
`principles identified above in mind.
`
`2. Shively Overview
`Shively discloses discrete multitone transmission (DMT) of data by
`digital subscriber loop (DSL) modems and the allocation of bits to the
`discrete multitones. Ex. 1011, 1:5‒8. Bit allocation is performed to
`optimize throughput within aggregate power and power spectral density
`mask limits. Id. at 4:17‒19. The system includes a transmitting modem and
`a receiving modem connected by a cable having four twisted pairs of
`conductors. Id. at 9:63‒65. The modems include a source encoder, a
`channel decoder, and a digital modulator to take in and transmit data from a
`data source. Id. at 10:9‒12. The modems also include a digital
`demodulator, a channel decoder, and a source decoder to receive the data
`and supply it to a data sink. Id. at 10:12‒14. The source encoder
`compresses data, applies the compressed data to the channel decoder, which
`performs error correction. Id. at 10:15‒19. The error corrected data is
`applied to the digital modulator, which acts as the interface with the
`communication channel. Id. at 10:15‒22. The digital demodulator
`constructs a data stream from the modulated signal and applies it to the
`channel decoder, which performs error correction, and then applies the
`corrected data to the source decoder, which decompresses the data. Id. at
`10:22‒26.
`In the QAM multitone modulation, the spectrum is broken into
`multiple sub-bands or QAM channels. Id. at 10:27‒29. The digital
`modulator generates N QAM signal tones, one for each QAM channel. Id.
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`at 10:29‒30. The serial stream is segmented into N frames, each having
`allocated to it ki bits of data. Id. at 10:30‒31. The multi-carrier modulator
`generates N QAM tones, one for each channel, at the same symbol rate but
`with a respective constellation for each channel. Id. at 10:35‒37.
`3. Stopler Overview
`Stopler discloses a method and apparatus for encoding/framing a data
`stream of multitone modulated signals to improve impulse burst immunity.
`Ex. 1012, 1:8‒11. The encoding/framing scheme allows efficient operation
`in multipoint to point channels affected by ingress and impulsive
`interference. Id. at 5:11‒14. Two dimensional interleaving is performed,
`with one dimension being time and the other dimension being frequency
`(tones or sub-channels). Id. at 5:18‒20. Stopler further discloses a
`diagonalization scheme, where data packets are spread over time in a
`diagonal fashion, such that an impulse noise affects more than one user’s
`packets, with the effect on each being reduced. Id. at 5:64‒67.
`
`4. Petitioner’s Initial Positions
`Petitioner contends that a combination of Shively and Stopler would
`have rendered obvious claims 1–3, 7–9, 13–16, and 20–22 of the ’243
`patent. Pet. 10–42. We have reviewed the Petition, Patent Owner’s
`Response, and Petitioner’s Reply, as well as the relevant evidence discussed
`in those papers and other record papers, and are persuaded that the record
`sufficiently establishes Petitioner’s contentions for claims 1–3, 7–9, 13–16,
`and 20–22, and we adopt Petitioner’s contentions discussed below as our
`own.
`For example, the claim 1 preamble recites “[a] method, in a
`multicarrier communications transceiver comprising a bit scrambler
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`followed by a phase scrambler.” Petitioner argues that the combination of
`Shively and Stopler disclose the preamble. Pet. 15‒19. Petitioner argues
`that Shively discloses a “method for transmission in a multitone
`communication system,” and Shively teaches the use of modems to transmit
`and receive communications. Id. at 15‒16 (quoting Ex. 1011, 3:28‒29;
`citing 9:42, 9:63‒64, Fig. 2). Petitioner argues that Stopler discloses that
`“[m]ultitone modulation is a signal transmission scheme which uses a
`number of narrow-band carriers positioned at different frequencies, all
`transmitting simultaneously in parallel” and “[o]ne type of multitone
`transmission scheme is discrete multitone.” Id. at 16‒17 (quoting Ex. 1012,
`1:42‒49, 1:50‒58; citing Ex. 1009, 31‒32) (emphasis omitted). Petitioner
`further argues that Stopler discloses a transmitter that includes two
`scramblers, a bit scrambler and a phase scrambler. Id. at 18 (citing Ex.
`1012, 9:34‒37, Fig. 5; Ex. 1009, 33‒34). We are persuaded by Petitioner’s
`showing and find that Stopler’s scrambler 56 is a bit scrambler and Stopler’s
`QAM mapper and phase scrambler 82 is a phase scrambler.
`Claim 1 further recites “scrambling, using the bit scrambler, a
`plurality of input bits to generate a plurality of scrambled output bits.”
`Petitioner argues that Stopler discloses that “data output by the interleaver
`54 is rearranged into a serial bit stream (MSB first) and then scrambled in
`scrambler 56, which is used to randomize the coded and interleaved data.”
`Id. at 19 (quoting Ex. 1012, 9:34‒48) (emphasis omitted). Petitioner argues
`that a person with ordinary skill in the art would have recognized that
`“Stopler’s generating a randomizing sequence that is XORed with an input
`bit stream constitutes ‘scrambling . . . a plurality of input bits.’” Id. (citing
`Ex. 1009, 35). We are persuaded by Petitioner’s showing and find that
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`Stopler’s scrambler 56 scrambles a plurality of input bits to generate a
`plurality of scrambled output bits.
`Claim 1 also recites “wherein at least one scrambled output bit is
`different than a corresponding input bit.” Petitioner argues that Stopler
`discloses that “the bits of the serial bit stream are ‘scrambled in scrambler
`56’ to ‘randomize’ the data.” Id. at 20 (citing Ex. 1012, 9:34‒47). Petitioner
`argues that a person with ordinary skill would have recognized that “the
`XOR operation would result in at least one input bit to be changed when the
`corresponding bit in the randomizing sequence has a value of 1.” Id. at 21
`(citing Ex. 1009, 37). We are persuaded by Petitioner’s showing and find
`that a person of ordinary skill in the art would have understood that, after
`Stopler’s XOR operation, at least one scrambled output bit is different than a
`corresponding input bit.
`Claim 1 additionally recites “scrambling, using the phase scrambler, a
`plurality of carrier phases.” Petitioner argues that Stopler discloses that “the
`phase scrambler applies ‘a phase scrambling sequence’ to ‘data in the form
`of m-tuples which are to be mapped into QAM symbols.’” Id. at 21 (quoting
`Ex. 1012, 12:20‒28). Petitioner argues that Stopler discloses that “the phase
`scrambled symbols are provided to a modulator that performs signal
`modulation.” Id. at 21‒22 (citing Ex. 1012, 12:55‒57, Fig. 5; Ex. 1009, 39‒
`40). Petitioner further argues that both Shively and Stopler disclose
`“transmitting information by modulating multiple carrier frequencies.” Id. at
`22 (citing Ex. 1011, 8:3‒13; Ex. 1012, 1:42‒49, 1:50‒61; Ex. 1009, 40).
`Notwithstanding Patent Owner’s arguments, which we have considered and
`which we address below, we are persuaded by Petitioner’s showing and find
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`that Stopler’s QAM mapper and phase scrambler 82 scrambles a plurality of
`carrier phases.
`Claim 1 further recites “a plurality of carrier phases associated with
`the plurality of scrambled output bits.” Petitioner argues that the
`combination of Shively and Stopler discloses that “the plurality of carrier
`phases are based on the symbols provided to the modulator” and Stopler
`further discloses “the symbols are mapped from m-tuple data . . . [where] the
`m-tuple data provided to QAM mapper and phase scrambler 82 are formed
`by processing the data output by the big scrambler 56 on an ‘upper level’
`and a ‘lower level.’” Id. at 23 (citing Ex. 1012, 9:48‒55, 10:1‒7, 10:40‒
`11:50, 11:51‒54, 12:20‒22, Fig. 5; Ex. 1009, 42‒43). We are persuaded by
`Petitioner’s showing and find that the plurality of scrambled output bits are
`processed to become m-tuple data that is then “associated with” a plurality
`of carrier phases by QAM mapper and phase scrambler 82.
`Claim 1 also recites “transmitting at least one scrambled output bit on
`a first carrier” and “transmitting the at least one scrambled output bit on a
`second carrier.” Petitioner argues that Shively discloses determining “a
`respective carrier modulated to transmit one bit in each of a plurality of
`multitone subchannels of the channel” and “modulating a first set of
`respective carriers to represent respective unique portions of the data stream
`in at least a subset of those of the multitone subchannels.” Id. at 24‒25
`(quoting Ex. 1011, 8:3‒6, 8:5‒13). Petitioner further argues that Stopler
`discloses “transmitting data bits by modulating the data bits on carriers using
`quadrature amplitude modulation (QAM) and multitone (multicarrier)
`modulation.” Id. at 25 (citing Ex. 1012, 1:42‒49, 12:20‒28). Petitioner
`explains that it would have been obvious to a person with ordinary skill in
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`the art “to employ the techniques of Shively and Stopler to transmit at least
`one scrambled output bit that is provided to the modulator.” Id. (citing Ex.
`1009, 49). Petitioner further argues that Shively discloses transmitting a
`portion of data on multiple carriers, and, therefore, meets the “second
`carrier” claim limitation. Id. at 26‒27. We are persuaded by Petitioner’s
`showing and find that both Shively and Stopler teach transmitting at least
`one scrambled output data bit on a first carrier by modulating it using QAM.
`Petitioner argues that “[i]t would have been obvious for a POSITA to
`combine Shively and Stopler because the combination is merely a use of a
`known technique to improve a similar device, method or product in the same
`way.” Id. at 13 (citing Ex. 1009, 26). Petitioner explains that a person of
`ordinary skill in the art would have recognized that “by transmitting
`redundant data on multiple carriers, Shively’s transmitter would suffer from
`an increased peak-to-average power ratio” because “the overall transmitted
`signal in a multicarrier system is essentially the sum of its multiple carriers.”
`Id. (citing Ex. 1009, 26). Petitioner asserts that a person of ordinary skill in
`the art “would have sought out an approach to reduce the [(peak-to-average
`power ratio)] PAR of Shively’s transmitter” and “Stopler provides a solution
`for reducing the PAR of a multicarrier transmitter.” Id. at 14 (citing
`Ex. 1009, 27). Petitioner argues that Stopler discloses “a phase scrambler
`[that] can be employed to randomize the phase of the individual subcarriers”
`(id. at 14 (quoting Ex. 1011, 12:24‒28)) and “[a] POSITA would have
`recognized that by randomizing the phase of each subcarrier, Stopler
`provides a technique that allows two subcarriers in Shively’s system to
`transmit the same bits, but without those two subcarriers having the same
`phase.” Id. at 14. Petitioner explains that “[s]ince the two subcarriers are
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`out-of-phase with one another, the subcarriers will not add up coherently at
`the same time,” thereby reducing the peak-to-average power ratio (PAR) in
`Shively’s system. Id. at 14‒15. Accordingly, Petitioner argues that
`“[c]ombining Stopler’s phase scrambler into Shively’s transmitter would
`have been a relatively simple and obvious solution to reduce Shively’s
`PAR.” Id. at 15 (citing Ex. 1009, 28). Notwithstanding Patent Owner’s
`arguments, which we have considered and which we address below, we are
`persuaded by Petitioner’s showing and find that Petitioner’s articulated
`reasoning has sufficient rational underpinning to support the legal
`conclusion of obviousness. See KSR Int’l Co., 550 U.S. at 418 (citing In re
`Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
`Petitioner performs a similar analysis for claims 2, 3, 7–9, 13–16, and
`20–22. Pet. 28–42. 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 1–3, 7–9, 13–16, and 20–22 are unpatentable as obvious over
`Shively and Stopler.
`
`5. Patent Owner’s Argument that
`Stopler Does Not Phase Scramble
`Patent Owner contends that “Stopler must be compatible with single-
`carrier CDMA” (PO Resp. 59) based on Stopler’s teaching that “[t]he
`framing scheme according to the present invention may also be performed in
`a CDMA system, in which case the modulator (not shown) may, for
`example, be a CDMA-type modulator in accordance with the TIA/EIA/IS-95
`‘Mobile Station Compatibility Standard for Dual Mode Wideband Spread
`Spectrum Cellular System.’” Ex. 1012, 12:58–63; PO Resp. 29–30; see also
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`id. at 29–44 (arguing Stopler’s framing scheme must be compatible with
`single-carrier CDMA). According to Patent Owner, “[b]ecause Stopler must
`be compatible with single-carrier CDMA, it makes no sense to argue that his
`phase scrambling must be performed within a single multicarrier symbol.”
`PO Resp. 59. Thus, concludes Patent Owner, “Stopler only discloses
`scrambling phases from one symbol6 to the next symbol in time, and not
`with respect to multiple carriers in a single multicarrier symbol.” PO Resp.
`58–59; see also id. at 37 (“[i]t is nonsensical to scramble phases within a
`symbol because there is only one phase in each symbol.”).
`Patent Owner also relies on Stopler’s claim 31 as corroboration for its
`position, contending that the phase scrambling performed by QAM Mapper
`and Phase Scrambler 82 “must at least be compatible with single carrier
`CDMA” because claim 31 is directed to a method in a “CDMA system” that
`includes the step of “phase scrambling.” Id. at 33–34 (citing Ex. 1012,
`16:4–48).
`The “framing scheme” of Stopler is shown as a block diagram in
`Figure 5, reproduced below. Ex. 1012, 8:54–55 (“A block diagram of the
`framing scheme according to the present invention is shown in FIG. 5.”).
`
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`6 Patent Owner uses “symbol” to mean “a collective multicarrier symbol in a
`single symbol period (e.g. a DMT symbol).” PO Resp. 12. Patent Owner
`uses “carrier” to mean “a carrier symbol (e.g., a QAM symbol).” Id.
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