Trials@uspto.gov
`571-272-7822
`
`Paper No. 8
`Entered: January 9, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DALI WIRELESS INC.,
`Petitioner,
`
`v.
`
`COMMSCOPE TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01324
`Patent 7,848,747 B2
`____________
`
`
`Before JAMES B. ARPIN, BARBARA A. PARVIS, and
`TERRENCE W. McMILLIN, Administrative Patent Judges.
`
`McMILLIN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`571-272-7822
`
`Paper No. 8
`Entered: January 9, 2018
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`DALI WIRELESS INC.,
`Petitioner,
`
`v.
`
`COMMSCOPE TECHNOLOGIES LLC,
`Patent Owner.
`____________
`
`Case IPR2017-01324
`Patent 7,848,747 B2
`____________
`
`
`Before JAMES B. ARPIN, BARBARA A. PARVIS, and
`TERRENCE W. McMILLIN, Administrative Patent Judges.
`
`McMILLIN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71(d)
`
`
`
`
`
`
`
`IPR2017-01324
`Patent 7,848,747 B2
`
`
`I. INTRODUCTION
`
`A. Background
`Dali Wireless Inc. (“Petitioner”) filed a Petitioner’s Request for
`Rehearing Pursuant to 37 C.F.R. § 42.71 (Paper 7, “Req. Reh’g”) of our
`decision not to institute an inter partes review (Paper 6, “DDI”) of claims 1–
`5 and 7–17 of U.S. Patent No. 7,848,747 B2 (Ex. 1001, “the ’747 patent”).1
`Specifically, Petitioner argues:
`In rendering its Decision, the Board did not interpret the
`claimed “sample rate selected based on the bandwidth” and
`similar limitations under the Broadest Reasonable Interpretation
`standard, and as a result misapprehended the Petition’s
`application of the Bellers and Ichiyoshi references to this claim
`limitation. In addition, the Board did not fully analyze the
`evidence provided by Petitioner that supports the motivation to
`combine. As a result, the Board inadvertently overlooked
`evidence provided by the Petition that supports a finding of a
`motivation to combine these references.
`Req. Reh’g. 1. Accordingly, we have considered whether we overlooked or
`misunderstood the Petition’s arguments and evidence establishing whether:
`(1) Bellers or Ichiyoshi teach or suggest a “sample rate selected based on the
`bandwidth” and (2) there is a motivation to combine the applied references.
`
`
`1 The Petition (Paper 2, “Pet.”) and our Decision Denying Institution (Paper
`6) were broader in scope than the Request for Rehearing (Paper 7). In the
`Petition, inter partes review was requested of claims 1–17 (all) of the ’747
`patent based on three asserted grounds. Pet. 16. In the Request for
`Rehearing, Petitioner only requests “reconsideration of the Board’s decision
`not to institute a review of claims 1-5 and 7-17 of U.S. Patent No. 7,848,747
`as being rendered obvious by the combination of Bellers in view of Farhan
`and of claims 1, 7, 8, 10, 11, and 14 as being rendered obvious by the
`combination of Ichiyoshi and Farhan.” Req. Reh’g 2.
`
`2
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`IPR2017-01324
`Patent 7,848,747 B2
`
`
`Upon consideration of the Request for Rehearing and Petitioner’s
`arguments and evidence, we conclude that Petitioner has not persuaded us of
`any reason to alter our decision denying institution of an inter partes review
`of claims 1–5 and 7–17 of the ’747 patent. For the reasons provided below,
`we deny Petitioner’s Request for Rehearing.
`
`B. The ’747 Patent
`The ’747 patent is entitled, “System and Method for Enhancing the
`Performance of Wideband Digital RF Transport Systems.” Ex. 1001, (54).
` The Abstract of the ’747 patent states that:
`A system and method for enhancing the performance of
`wideband digital RF transport systems is disclosed, which
`enables the transport of different bandwidth segments on a
`plurality of wideband channels by selecting an optimal clock
`sample rate for each bandwidth segment to be transported. Thus,
`the bandwidth segments are proportionally allocated so that an
`optimum amount of bandwidth can be transported at the serial bit
`rate.
`Id., (57).
`Figure 2 of the ’747 patent is reproduced below.
`
`
`
`
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`3
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`IPR2017-01324
`Patent 7,848,747 B2
`
`Figure 2 depicts “how the present invention allocates bandwidth
`proportionally.” Id. at 6:2–3. The detailed description of Figure 2 states
`that:
`
`The sample rate of sample clock 204a is selected to be
`approximately 15 Msps (for 5 MHz bandwidth segments),
`approximately 90 Msps for sample clock 204b (for 40 MHz
`bandwidth segments), approximately 60 Msps for sample clock
`204c (for 25 MHz bandwidth segments), and approximately 15
`Msps for sample clock 204d (for 5 MHz bandwidth segments).
`Thus, as illustrated by this example, the bandwidths in frame 208
`are allocated proportionally, by transporting one slot for
`bandwidth A (5 MHz), six slots for bandwidth B (40 MHz), four
`slots for bandwidth C (25 MHz), and one slot for bandwidth D
`(5 MHz).
`Id. at 6:25–36.
`The ’747 patent contains seventeen claims, four of which are
`independent claims. Independent claim 1 is directed to a method,
`independent claims 7 and 11 are directed to host units, and independent
`claim 14 is directed to a system. Petitioner challenges all 17 claims.
`Independent claim 1 recites (emphasis added):
`1. A method comprising:
`
`receiving a plurality of analog inputs each having an associated
`bandwidth containing an arbitrary number of channels;
`
`
`sampling each of the plurality of analog inputs with a selected
`sample rate, the selected sample rates selected based on the
`bandwidth of the associated one of the plurality of analog
`inputs;
`
`
`combining the samples of the plurality of analog inputs;
`
`converting the combined samples to a serial data stream; and
`
`
`4
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`IPR2017-01324
`Patent 7,848,747 B2
`
`
`transmitting the serial data stream over a communication
`medium.
`Ex. 1001, 6:49–61.
`
`Dependent claim 6 recites (emphasis added), “[t]he method
`of claim 1, wherein the sample rate is proportional to the
`bandwidth of the associated one of the plurality of analog inputs.”
`Id. at 7:12–14.
`
`Independent claim 7 recites (emphasis added), “each analog
`to digital converter circuit operating at a sample rate related to a
`signal bandwidth of its associated broadband RF signal.” Id. at
`7:15–27.
`
`Independent claim 11 recites (emphasis added), “the selected
`sample rates selected based on the bandwidth of the analog
`signal.” Id. at 7:48–61.
`
`Independent claim 14 recites (emphasis added), “each output
`has an associated sample clock with a sample rate selected based
`on the bandwidth of the associated RF bandwidth segment.” Id. at
`8:14–47.
`
`Dependent claim 16 recites (emphasis added), “each analog
`to digital converter circuit has an associated sample clock with a
`sample rate selected based on the bandwidth of the associated RF
`bandwidth segment.” Id. at 8:53–56.
`II. ANALYSIS
`A. Selecting the Sample Rate Based on Bandwidth
`
`Each of the claims of the ’747 patent contains a limitation relating to
`selecting the sample rate based on the bandwidth. See Req. Reh’g 3–4. In
`the Petition, Petitioner relied on each of the cited references as teaching or
`suggesting selecting the sample rate based on the bandwidth. See Pet. 14–15
`(claim 1, citing Bellers and Farhan), 25–26 (claim 6, citing Bellers and
`
`5
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`IPR2017-01324
`Patent 7,848,747 B2
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`Farhan), 31–32 (claim 7, citing Bellers and Farhan), 39–40 (claim 11, citing
`Bellers and Farhan), 56 (claim 14, citing Farhan), 58 (claim 16, citing
`Bellers and Farhan), 61–64 (all claims, citing Bellers and Farhan), 67 (claim
`7, citing Bellers and Grace), 72 (claim 11, citing Bellers and Grace), 78–79
`(claim 14, citing Grace), 79–80 (claim 16, citing Bellers and Grace), 80–82
`(claims 7–11 and 13–17, citing Bellers and Grace), 83 (claim 1, citing
`Ichiyoshi), 86 (claim 7, citing Ichiyoshi and Farhan), 90 (claim 11, citing
`Ichiyoshi and Farhan), 95 (claim 14, citing Farhan), 95–96 (claims 1, 7, 8,
`10, 11, 14, citing Ichiyoshi and Farhan). After reviewing the applied art and
`other evidence, primarily the Bims Declaration,2 we found the applied art
`failed to teach or suggest at least selecting the sample rate based on
`bandwidth. DDI 9–13.
`
`1. Claim Construction
`Petitioner argues that we applied an overly narrow construction of
`“sample rate based on the bandwidth.” Req. Reh’g 4–6. Specifically,
`Petitioner argues that we required “that the sample rate must be directly
`related to the bandwidth” and, under a proper construction, the phrase “only
`requires that the sample rate is somehow related to the bandwidth.” Req.
`Reh’g 4–5 (emphasis added). Petitioner argues that:
`For example, under the broadest reasonable reading of the
`claims, the sample rate can be based on a variable that itself is
`based on the bandwidth. In such an example, the sample rate is
`based on the bandwidth, although indirectly through the
`intermediary variable. This, however, clearly satisfies the “based
`on” claim language requirement.
`
`
`2 Declaration under 37 C.F.R. § 42.53 of Harry Bims, Ph.D. (Ex. 1002,
`“Bims Decl.”).
`
`6
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`IPR2017-01324
`Patent 7,848,747 B2
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`Id. at 5.
` We interpret 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). In applying a broadest reasonable
`construction, claim terms generally 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 In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007).
`Petitioner’s new claim construction argument was not made in the
`Petition. See Pet. 10 (“Claim Construction”). In the Request for Rehearing,
`Petitioner does not cite to the Petition or make any showing that this
`argument was made explicitly or implicitly in the Petition. Req. Reh’g 4–6.
`As an initial matter, we could not have overlooked or misapprehended a
`claim construction that Petitioner did not argue in the Petition. Moreover,
`Petitioner’s only support for its newly proposed construction is the wording
`of the claims themselves and a claim differentiation argument based on
`dependent claim 6 which recites that the “sample rate is proportional to the
`bandwidth.” Id. Petitioner fails to persuade us that its proposed
`construction is supported adequately by the wording of the claims, the
`Specification, and the file history. We also conclude that Petitioner’s
`“somehow related to” construction of “based on” is unreasonable and overly
`broad. Based on this record, we decline to adopt Petitioner’s proposed
`construction. Thus, Petitioner fails to show that it argued this construction
`in the Petition or that its construction is demonstrably correct in view of the
`claim language, the Specification, the file history, or other evidence.
`Further, as stated in the Decision Denying Institution, we do not
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`IPR2017-01324
`Patent 7,848,747 B2
`
`believe the express construction of “sample rate based on the bandwidth” is
`necessary for this Decision. See DDI 6. As shown below, Petitioner has
`failed to establish the applied art teaches or suggests basing the sample rate,
`directly on the bandwidth or that the sample rate is somehow related to the
`bandwidth.
`
`2. Bellers (Ex. 1006)3
`Petitioner argues Bellers teaches “selecting the sample rate based on
`bandwidth.” Req. Reh’g 9–13. As noted by Petitioner (id. at 10–11),
`Bellers states: “[r]eceiver 101 includes a sampling mechanism 104 which
`samples the analog video input signal at a frequency modulated by or
`dependent upon the spatial frequency of the sampled content” (Ex. 1006,
`3:11–14) and “[t]he present invention employs a sampling rate which is
`modulated based upon the spatial frequencies of the content being sampled.
`Higher sampling rates, and larger sample densities, are employed for content
`having high spatial frequencies while lower sampling rates are employed for
`content having low spatial frequencies” (id. at 4:14–19 (emphasis added)).
`Bellers expressly defines spatial frequencies, as follows: “[t]he spatial
`frequency or frequencies of an image are the rates of pixel change per unit
`distance, usually expressed in cycles per degree or radian.” Id. at 1:11–13.
`Thus, Bellers teaches modulating the sampling rate based on the rates of
`pixel change per unit distance. Petitioner has not shown that Bellers teaches
`or suggests a “sample rate selected based on the bandwidth.” Petitioner has
`not directed our attention, either in the Petition or the Request for Rehearing,
`
`
`3 U.S. Patent No. 8,446,530 B2.
`
`8
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`IPR2017-01324
`Patent 7,848,747 B2
`
`to teachings or suggestions in Bellers of selecting the sample rate based on
`the bandwidth.
`3. Ichiyoshi (Ex. 1009)4
`In both the Petition (Pet. 83, 86, 90, 95–96) and the Request for
`
`Rehearing (Req. Reh’g 7–8), Petitioner argues the following passages in
`Ichiyoshi teach or suggest selecting the sample rate based on bandwidth.
`The sampling frequency fs is normally set to fs = NΔf where Δf
`represents a channel frequency interval. The sampling frequency
`fs is generated independently in the transmission device 81 and
`the reception device 82.
`Ex. 1009, 6:3–6.
`. . . signal combining circuit 91 includes a sampling timing
`generator 1 for generating a signal of the sampling frequency fs,
`and N A/D converter 3 for sampling N independent information
`signals with the sampling frequency fs . . .
`Id. at 6:9–13.
`These passages, however, do not relate to selecting the sample rate
`based on bandwidth. Petitioner provides no adequate explanation or other
`support in the Petition (Pet. 83) or the Request for Rehearing (Req. Reh’g 7–
`8) for concluding these passages in Ichiyoshi teach or suggest selecting the
`sample rate based on bandwidth. Indeed, in the Petition, the Petitioner
`quoted these two passages, but failed to provide any explanation or to cite
`any further support for finding Ichiyoshi taught or suggested selecting the
`sample rate based on bandwidth. See Pet. 83.
`
`B. Reason to Combine
`In the Request for Rehearing, Petitioner argues that we “inadvertently
`
`
`4 U.S. Patent No. 6,014,366.
`
`9
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`IPR2017-01324
`Patent 7,848,747 B2
`
`overlooked evidence provided by the Petition that supports a finding of a
`motivation to combine” the teachings of (1) Bellers and Farhan; and (2)
`Ichiyoshi and Farhan. Reg. Reh’g 1, 9, 14. Petitioners are incorrect. We
`fully considered all of the evidence argued in the Petition relating to
`motivation to combine the cited references. See DDI 13–15 (finding
`“Petitioner has failed to show a reasonable likelihood of establishing a
`reason to combine with regard to any of the asserted combinations of the
`teachings of the applied references.”).
`With regard to the combination of Bellers and Farhan, in the Petition,
`Petitioner cited paragraphs 117–120 of the Bims Declaration (Ex. 1002) as
`providing support for combining the teachings of these references. Pet. 11.
`As discussed in the Decision Denying Institution, however, the cited
`paragraphs relate to different subject matter. DDI 14. In the Request for
`Rehearing, Petitioner now relies upon paragraphs 104–107 of the Bims
`Declaration. Req. Reh’g 14. Petitioner did not rely upon these paragraphs
`in the Petition, and Petitioner provides no explanation for this change of
`argument and evidence in its Request for Rehearing. Id.
`With regard to the combination of the teachings of Ichiyoshi and
`Farhan, in the Petition, Petitioner cited paragraph 254 of the Bims
`Declaration. Pet. 12. As discussed in the Decision Denying Institution, the
`cited paragraph relates to different subject matter. DDI 15. In the Request
`for Rehearing, Petitioner now relies upon paragraphs 255–258 of the Bims
`Declaration. Req. Reh’g 9. Petitioner did not rely upon these paragraphs in
`the Petition, and Petitioner provides no explanation for this change of
`argument and evidence in its Request for Rehearing. Id.
`As noted above, we could not overlook or misapprehend arguments
`
`10
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`IPR2017-01324
`Patent 7,848,747 B2
`
`that Petitioner did not make or evidence upon which it did not rely. Thus,
`contrary to Petitioner’s assertion, we did not overlook argument or evidence
`presented in the Petition relating to motivation to combine.
`Moreover, we have reconsidered Petitioner’s reasons to combine for
`the combinations of (1) Bellers and Farhan; and (2) Ichiyoshi and Farhan
`provided in the Petition (Pet. 11–12) in light of the additional citations
`provided in the Request for Rehearing and find, as we did in the Decision
`Denying Institution (Dec. 13–15) that Petitioner has failed to show a
`reasonable likelihood of establishing a reason to combine the relevant
`teachings of these references. As we indicated in the Decision Denying
`Institution (id.), the reasons to combine in the Petition for all of the asserted
`combinations of references were brief and conclusory. With regard to the
`combination of Bellers and Farhan, the Petition states, “[i]t was commonly
`understood that flexible ADCs could have a sampling rate adapted to the
`associated bandwidth of their analog input signal.” Pet. 11 (emphasis
`added). With regard to the combination of Ichiyoshi and Farhan, the
`Petition states, “POSITAS would have been motivated to combine
`Ichiyoshi’s sampling system with Farhan’s broadband communications
`system based on POSITA’s commonly understood knowledge that
`optimizing RF signal sampling rates can further improve bandwidth
`efficiency.” Pet. 12 (emphasis added). Neither the Petition nor the Bims
`Declaration provide adequate support for the assertions as to what was
`“commonly understood” by persons of skill in the art. The only support
`given in the Bims Declaration for these assertions are quotations from the art
`cited in the Petition (see Ex. 1002, ¶¶ 104, 255), which fall far short of
`establishing what was “commonly understood” as of the date of filing the
`
`11
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`IPR2017-01324
`Patent 7,848,747 B2
`
`’747 patent.
`
`III. CONCLUSION
`
`Petitioner has not established that any argument or evidence was
`misapprehended or overlooked or that any errors were made in making the
`decision denying institution of inter partes review of the ’747 patent, which
`justify altering our Decision denying review of claims 1–5 and 7–17.
`Accordingly, we are not persuaded that changes to our Decision Denying
`Institution (Paper 6) are appropriate, and we deny Petitioner’s Request for
`Rehearing.
`
`IV. ORDER
`
`For the reasons given, it is:
`ORDERED that Petitioner’s Request for Rehearing Pursuant to 37
`C.F.R. § 42.71 (Paper 7) is denied.
`
`
`
`
`
`
`12
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`IPR2017-01324
`Patent 7,848,747 B2
`
`PETITIONER:
`Richard T. Black
`Benjamin J. Hodges
`Kevin S. Ormiston
`Foster Pepper PLLC
`Rich.Black@foster.com
`Ben.Hodges@foster.com
`Kevin.Ormiston@foster.com
`
`PATENT OWNER:
`
`Philip P. Caspers
`Samuel A. Hamer
`Carlson, Caspers, Vandenburgh, Lindquist & Schuman, P.A.
`pcaspers@carlsoncaspers.com
`shamer@carlsoncaspers.com
`
`
`13
`
`
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